International Tribunal for the Law of the Sea: Its Role in Resolving Sea Disputes

  • DR. N. RamPrasad
  • Show Author Details
  • DR. N. RamPrasad

    Assistant Professor at University College of Law Osmania University, Hyderabad, T.S., India

Abstract

Oceans are key to sustaining life on the planet. They cover more than 70% of the earth and they constitute one of the most essential bases for human life and in the course of time a tangle of claims, spreading pollution, competing demands for lucrative fish stocks in coastal waters and adjacent seas, growing tension between coastal nation’s rights to these resources. And uses of the sea multiplied resulting in conflicts between the wide claims of coastal states seeking to protect their economic interest over large parts of the sea and attempts by major maritime powers to maintain the status quo on the other. To resolve these claims the United Nations convention on the law of the sea 1982 provides comprehensive system of settlement of sea disputes under the convention itself among the other dispute settlement systems provided under convention ITLOS being a specialized body of institution with dealing with sea disputes. These makes that the tribunal is well positioned to be very busy court in the near future and that it may therefore be able to play a major role in global ocean governance.

Type

Research Paper

Information

International Journal of Law Management and Humanities, Volume 4, Issue 2, Page 738 - 748

DOI: http://doi.one/10.1732/IJLMH.26159

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.

Copyright

Copyright © IJLMH 2021

I. Introduction

Life itself arose from the oceans. The ocean is vast and covers 140 million square miles, some 72 percent of the earth surface. The ocean has always been an important source of food for the life it helped generate, and from earliest recorded history it has also serve trade and commerce, adventure and discovery. It has separated and brought together[1].further, the seas have historically performed two important functions: first, as a medium of communication and secondly as a vast reservoir of resources both living and non-living, both of these functions have stimulated the development of legal rules. As pointed out by MC Dougal and Burke[2]The historic function of the law of the sea has been long been recognised as that of protecting and balancing the common interest, inclusive and exclusive of all peoples in the use and enjoyment of the oceans, while rejecting all egocentric assertions of special interests in contravention of general community interest”. However, there was imperative necessity to adopt the traditional doctrine to the present times and circumstances so as to accommodate the interests of all the states the developing and the developed.

Further, a tangle of claims spreading pollution, competing demands for lucrative fish stocks in coastal waters and adjacent seas, growing tension between coastal nations rights to these resources and those of distant water fishermen, the prospects of a rich harvest of resources on the sea floor, the increased presence of maritime powers and the pressures of long distance navigation and see floor, the increased presence of maritime powers and the pressures of long-distance navigation and seemingly outdated. If not inherently conflicts, the freedom-of-the-seas doctrine-all these were threatening to transform the oceans into another arena for conflict and instability. It was a time that held dangers and promises, risks and hopes. the dangers are numerous: nuclear submarine charting deep waters never before explored: designs for antiballistic missile systems to be placed on the sea-bed. super tanker ferrying oil from the middle east to European and other parts passing through congested straits and having behind a trial of oil spills, and rising tensions over conflicting claims to ocean space and resources. The oceans were generating a multitude of claims, counterclaims and sovereignty disputes[3].

In the course of time, uses of the sea multiplied resulting in conflicts between the wide claims of coastal states seeking to protect their economic interest over large parts of the sea and attempts by major maritime powers to maintain the status quo on the other. These claims and controversies assumed serious magnitude after the second world war with a view to reconcile these claims and resolve controversies. A series of conference have been held, which has led to the four 1958 conventions on the law of the sea and then to the 1982 convention on the law of the sea[4] as it is known to many as the constitution for the oceans[5].

The 1982 U.N convention on the law of the sea (LOS Convention)[6] was considered as one the most successful of the codifications and progressive developments of international law made by the United Nations since the end of the Second World War. Further, one of the most significant aspects of the convention, making it unique amongst the major law-making treaties, is the comprehensive system of settlement of disputes set out in the convention itself[7].At the first substantive session of UNCLOS III in Caracas a dispute settlement group was established which prepared the ground material for of most of what are now the provisions of Part XV of the convention and related Annexure V,VI,VII AND VIII dealing with conciliation, statute of ITLOS, arbitrator and special Arbitrator respectively[8].

Since the convention on the law of the sea would have been incomplete without provisions relating to settlement of Disputes, Part XV of the convention is devoted to such provisions. These provisions may be divided into two parts (i) General provisions, and (b) compulsory procedures entailing binding decisions.

As regards the general provisions, Art.287 impose obligation upon state parties to settle disputes by peaceful means. According to Art.280, state parties may agree to settle a dispute concerning the interpretation or application of the convention by any peaceful means of their own choice. The convention also provides for procedure where no settlement has been reached by the parties[9]provisions relating to obligation to exchange view[10] and conciliation[11] have also been made.

As regards compulsory procedures entailing binding decisions the convention has made “a significant departure from the traditional principle of international law under which a state has the sovereign right to refuse to submit a dispute to an independent body[12]

Upon signing, ratifying or acceding to the convention or at any time thereafter, a state may choose one of the following means of dispute settlement[13] by means of a written declaration, one or more of the following means of settlement of disputes concerning the interpretation or application of this convention.

(a) International Tribunal for the Law of the Sea, established in accordance with annex VI

(b) 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

Among the four means for the settlement of dispute concerning the interpretation or application of the law of the sea convention, two are judicial institutions strict sensu, namely, ITLOS and ICJ[14]. Further, The convention does not purport to establish any hierarchy among the various procedures it lies in the power of each party to establish its own order of preference[15].The listing of four different means for binding settlement of disputes concerning the interpretation or application of the LOS Convention (Art.287) may have the impression that the choice of states parties depends exclusively upon their preference for one or two other of the mentioned courts or tribunals. That impression is only partially convert as all these courts and tribunals do not have the some jurisdiction and therefore states parties are not completely free in the choice of the forum of their cases[16].

But there are some exceptions to the obligation to submit a dispute to one of these mechanisms in the absence of a freely chosen resolution process by the parties[17].As, the convention provides that disputes concerning the exercise by a coastal state of its sovereign rights or jurisdiction in the Exclusive economic zone may only be subject to the compulsory settlement procedure in particular cases[18] and also convention provides that while disputes concerning marine scientific research shall be settled in accordance with sec.2 of the convention, the coastal state is not obliged to accept the submission to such compulsory settlement of any dispute arising out of the extreme by the coastal state of a right or discretion to regulate, authorise and conduct marine scientific research in its economic zone or on its continental shelf or a decision to order suspension or cessation of such research[19].Further, the convention provides similarly that while generally disputes with regard to fisheries shall be settled in accordance with section 2,the coastal state shall not be obliged to accept the submission to compulsory settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or other exercise including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surplus to other states and the terms and conditions established in its conservation and management laws and regulations[20].Even there are situations with regard to which states may opt out of compulsory settlement procedures[21].

Thus, the ITLOS should be considered as a specialized judicial institution with in the comprehensive settlement system under the law of the sea convention without any pretence for exclusive states. ITLOS, therefore has to accomplish its mission side by side with other international judicial or arbitral bodies[22].The then secretary-general of the united nations Mr.kofi Annan[23]emphasised the mission of the convention on the law and International tribunal for the law of the sea in their endeavour to meet the challenges of potential maritime dispute and conflicts in an empathetic he stated

Look at the law of the sea convention which is an incredible achievement.70% of the earth is covered by water. The way we exploiting our resources of the land it won’t be very long that we Starts finishing each other our resources of the seas and seabed mining.we have anticipated this problem and came up with the convention and the law of the sea tribunal that will deal with these problems when they came up”

As also it was stated by Thomas A.mensfih[24]. The ITLOS is one of the large variety of mechanisms by which the international community seeks to achieve what has been a major objective of international relations for centuries: the wish that “the adjustment on settlement of international disputes shall be brought about peaceful means and in conformity with the principles of justice and international law”. This has now been enshrined in the preamble and Art.2, paragraph 3, of the charter of the U.N as a cardinal principle of international law.

II. ITLOS: its composition

The tribunal was established as one of the dispute settlement mechanisms under part XV of the law of the sea convention[25] and it provides that it shall be composed of twenty one independent members enjoying the highest reputation for fairness and integrity and of recognised competence in the field of the law of the sea, while the representation of the principal legal systems of the world and equitable geographical distribution are to be assured[26] The judges are elected for nine years terms by the state parties to the convention[27].The statute also allows for the appointment of adhoc-judges Art.17 provides that where the tribunal includes a member of the nationality of one of the parties to the dispute, any other party may choose a person to participate as a member of the tribunal. Where in a dispute neither or none of the parties have a judge of the same nationality they may choose to participate as a member of the tribunal[28].The Tribunal may also at the request of a party or of its own motion decide to select no fewer than two scientific or technical experts to sit with it, but without the right to vote[29].

III. ITLOS: Its Jurisdiction

The tribunal have jurisdiction is based on the laws constituted by the convention as well as any other agreement that conveys jurisdiction on the tribunal[30].In the case of the International tribunal for the law of the sea, all courts and tribunals pointed out in Art.287 have jurisdiction over all disputes concerning the interpretation and application of the convention[31]as well as of all international agreement related to the purposes of the convention[32]

Pursuant to Art.287 paragraph 1 in conjunction with annex VII Art.1, the pertinent courts and tribunals besides ITLOS, are the ICJ, arbitral tribunals created under Annex VII of the convention as well as special arbitral tribunals constituted under Annex VII. As it is applicable in relation to (1) Fisheries (2) Protection and preservation of marine Environment (3) Marine scientific research or (4)Navigation, including pollution from vessels and by dumping[33]

The jurisdiction of the tribunal comprises all disputes and all application submitted to it in accordance with the convention. It also includes all matters specifically provided for in any agreement which confers jurisdiction of the tribunal[34]

As Rosanne and sohn have stated that Art.288, paragraph 2, requires that the agreement be related to the purposes of the convention, the subject matter of the agreement referred to in Art.21 will determine whether a dispute given comes within the jurisdiction of the tribunal[35] .Professor Boyle on the other hand, sees Art.21 as giving the Tribunal carte blanche to deal with any dispute whether or not it concerns the law of the sea. In his view “the convention provides little warrant for conforming the tribunal’s consensual jurisdiction to law of the sea cases”[36]

The tribunal has the jurisdiction to deal with disputes of

(a) Contentious Jurisdiction

The Tribunal has jurisdiction over all disputes concerning the interpretation or application of the convention, subject to the provisions of Art.297 and tot the declarations made in accordance with Art.298 of the convention.

Art.297 and Declarations made under Art.298 of the convention do not prevent parties from agreeing to submit to the tribunal a dispute otherwise excluded from agreeing to submit to the tribunal a dispute otherwise excluded from the tribunals jurisdiction under these provisions (convention, Article 299)[37]

The tribunal also has jurisdiction over all disputes and all applications submitted to it pursuant to the provisions of any other agreement conferring jurisdiction on the tribunal. A number of multilateral agreements conferring jurisdiction on the tribunal have been concluded to date.

(b) Advisory Jurisdiction

The seabed disputes chamber is entitled to give advisory opinions at the request of the councillor the assembly on legal questions within the scope of their activities[38].and the tribunal may also give advisory opinion on legal question if this provided for by “an international agreement related to the purpose of the convention[39].

Further the convention also provides for the establishment of seabed disputes chamber pursuant to PART XI,section 5 of the convention and article 14 of the statute, a sea-bed disputes chamber of the tribunal has been formed with jurisdiction to hear disputes regarding activities in the international seabed area. The chamber composed of eleven judges representing the principal legal systems of the world and with equitable geographical distribution[40].Ad hoc chambers consisting of three judges may be established if a party to a dispute so requests. The composition is determined by the seabed disputes chamber with the approval of the parties to the dispute[41].the seabed disputes chamber has jurisdiction to give advisory opinions at the requests of the assembly or the council of the international seabed authority on legal questions arising within the scope of their activities and such opinions shall be given as a matter of urgency[42].In addition, the tribunal may create such chambers of three or more persons as it considers necessary[43] and a five-persons chamber of summary procedure[44]

The tribunal[45] and seabed disputes chamber have the power to prescribe provisional measures in accordance with article290 of the convention[46].The convention provides for another case in which the tribunal has (almost) exclusive compulsory jurisdiction in addition to the just mentioned one concerning provisional measures under article 290,paragraph.This is procedure for the prompt release of vessels and crews set out in article 292[47].Certain condition must be satisfied for the tribunal to have jurisdiction[48]

IV. Access to itlos

The tribunal is open to state parties to the convention. It will be recalled that for the purposes of the convention certain non-state entities under Article1 (2)(2) and Article 305 can become parties to the convention. This applies to entities such as the cook islands,Nieue and certain inter-governmental organizations, in particular the European union[49]

The seabed disputes chamber itself is open not only to states parties but also to the full range of non-state entities: the Authority, the enterprise, state enterprises and natural and juridical person, including of course private companies

V. Sea disputes cases heard by international tribunal for the law of the sea

The tribunal has heard a number of cases since its first case in 1997. Most of these cases

concerned under article 292 of the convention which provides that where a state party has detained a vessel flying the flag of another state party and has not complied with prompt release requirement upon a payment of a reasonable bond or other financial security. The question of release may be submitted to the tribunal[50]

The case relating “prompt release” heard by ITLOS, The M/V saiga[51], the “camouco case[52],the“monteconfurco”[53] case, The Grand prince case[54], The “chaisiri refer 2”[55] case, the Volga case[56], The Tuna Trader case[57], The “Hoshinmaru case[58],The“Tomminau case[59]

And also for the cases of ITLOS on Arrest and Detention of vessel & crew, The “ARA liberated case”[60] deals with provisional measures, it challenged the legality of detention by Ghana of Argentinean warship, The M/V “ VIRGINA G” case[61] deals with challenge to arrest of Panamanian vessel carrying out fuelling operations for fishing vessel in EEZ OF Guinea-Bissau, The M/V “ Louisa” case[62] deals with challenge to Arrest of vessels7 crew by spain for violation of laws on underwater cultural heritage.

ITLOS cases on Environmental obligations and fisheries, southern Blue fin Tuna case[63] and case concerning the conservation and sustainable exploitation of swordfish stocks in the south-Eastern Pacific Ocean[64].The Mox plant case[65] and also case concerning land reclamation by Singapore in and around the straits of johar[66]

Further, The” Nordstar”[67]case deals with challenge to arrest of Panamanian vessel oil supply in EEZ of Italy, The “ Enri lexica[68] incident deals with provisional measures of challenge to arrest of Italian military armed guards on italianship who accidently killed Indian fisherman in EEZ of India and the “Arctic sunrise”[69] case it deals with provisional measures to challenge the legality of Arrest and detention of greenpeaceship and demonstrations.

Similarly ITLOS Advisory opinions in responsibilities and obligations of states sponsoring persons and entities with respect to activities in the area[70]and in request for an Advisory opinion submitted by the Sub-Regional fisheries commission[71].

So, the tribunal is charged with the task of deciding disputes concerning the interpretation and application of the convention and related texts[72].further ITLOS will perform not only adjudicative functions but also through the prescription of provisional measures with the view of protecting the interests of the parties to the dispute and thus preventing further escalation of the dispute into a conflict.

VI. Conclusion

As the states become more involved with the law of the sea dispute settlement systems established under UNCLOS 1982 and there is likelihood that more cases will be instituted with the tribunal. As intended by the framers of the convention “we are seeing the development of a multifaceted system for the settlement of law of the sea-related disputes with ITLOS as an important player”[73]. It is not to be doubted that as time goes by and ocean uses increase exponentially, the tribunal will be placed to continue to play the “important role and authority concerning the interpretation and application of the convention and part XI agreement” that is stressed in the General Assembly’s 2010 resolutions on oceans and the law of the sea[74]. Though it is true that the international tribunal for the law of the sea is only one of the means of for the settlement of disputes relating to the law of the sea including interpretation or application of the U.N convention on the law of the sea among the other dispute settlement mechanisms provided under UNCLOS 1982, yet the importance of the tribunal cannot be undermine because it is best suited to deal with sea disputes. The disputes relating to the law of sea requires special dealing by men who are well versed and are of recognized competence in the field of law of the sea.

Therefore, the mission of ITLOS may contribute to the promotion of the international legal order over the seas and oceans and strengthen the pillars of peace, stability and co-operation in the rational and equitable uses of the potential of the marine resources and protection and preservation of the global marine environment for present and future generations.

*****

Footnotes

[1] Un.org/en/sections/issues-depth/oceans-and-law-sea

[2] Public order of the oceans, A contemporary International Law of the Sea, by Myers s Mc Dougal and Trevor J Burke p.no.1, Publishers Brill I Nijhoff

[3] The united nations convention on the law of the sea, ahistoricalprespectiveun.org/Depts/los/convention_ag reements/convention_historical_perspective

[4] The 1958 convention on the territorial sea and the contiguous zone came into force in 1964,the 1958 convention on the High Seas came into force in 1962,the 1958 convention on fishing and conservation of living resources came into force in 1966 and the 1958 convention on the continental shelf came into force in 1964.

[5] Remarks by Tommy T.B.Koh,president of the third united nations conference on the law of the sea at the final session of the conference

[6] The LOS Convention was adopted on 30th April 1982 as a result of the long nine years of tireless negation took place at the third United Nations conference on the law of sea. The LOS convention came into force on 16th nov 1994 and currently 149 counties are parties to the LOS convention ( source: http//www.un.org/dept/los/referenc _files/status2005.PDF)

[7] The role of the ITLOS in the peaceful settlement of dispute by GUMUODUR EIRKSSON,Judge,ITLOS,,Indian journal of International law.ITLOS Special issue vol.37.n.3 july-sept 1997

[8] ITLOS within UNCLOS Dispute settlement system, Alexander yankov,judge,ITLOS,Indian journal of international law vol.37,no.3 july-sept 1997

[9] Art .281 of UNCLOS 1982

[10] Art.283 of UNCLOS 1982

[11] Art.284 of UNCLOS 1982

[12] Jorge r.coquia, “settlement of Disputes in the U.N.Convention on the law of the sea” I.J.I.L.VOL.2591985)P.171 at p.190

[13] Art.287 of UNCLOS 1982

[14] ITLOS within UNCLOS Dispute settlement system by Alexander yankov India journal of international law .ITLOS special issue VOL.37.NO.3 JULY-SEPT.1997

[15] ITLOS : some issues by L.D.M.Nelson,judge,ITLOS,Indian journal of international law special issue vol.37.no.3 july-sept 1997

[16] ITLOS:some features of the new international judicial institution by Budishav vukas,Judge,ITLOS Indian journal of international law special issue vol.37.no.3 july-sept 1997

[17] International law, By Malcolm n.shaw by Cambridge university press p.no.636

[18] Art.297(1) of UNCLOS 1982

[19] Art.297(2) UNCLOS 1982

[20] Art.298(3) UNCLOS 1982

[21] Art.298(1) UNCLOS 1982

[22] Supra note.8 p.no.364

[23] Ibid page no.17 p.no.638

[24] ibid

[25] Annex VI of the convention

[26] Art.2 of the statute, A quorum of eleven judges is required to constitute the tribunal,Art.13

[27] Art.5 of UNCLOS 1982

[28] Art.8,9-22 of the rules of ITLOS( as amended in march-sept 2001)

[29] Art.289 of the UNCLOS and Art.15 of the rules of ITLOS

[30] See statute of the ITLOS ,in : UNCLOS, Annex VI ,Article21,p.no.183,1982

[31] See UNCLOS,Article.288(1),p.no132,1982

[32] See UNCLOS, Article 288(2)p.132.1982

[33] See UNCLOS ,Annex VIII, Article 1 in conjunction with Art.287(1),p.131+190,1982

[34] Annex VI,Art.21 of the UNCLOS 1982

[35] UNCLOS 1982,A commentary vol.v.P.375

[36] A,BOYLE”Dispute settlement and the law of the sea convention: problems of fragmentation and jurisdiction”ICLQ,VOL.46(1997),PP.37-54 at P.49

[37] See.UNCLOS,Art.299 UNCLOS 1982

[38] Article 191 UNCLOS 1982

[39] See rules of ITLOS,Article 138

[40] See article 35.the chamber shall be open to the state parties, the international seabed authority and other entities referred to in PART XI,section 5 of the convention. Ad hoc judges may be chosen: see articles23-5 of the rules.

[41] Articles 187 and 188 of the convention and article 36 of the statute.see also article 27 of the rules.

[42] See articles 159(10) and 191.see also articles 130-7 of the rules.

[43] See article 1591).A chamber for fisheries diputes (1997),a chamber for marine environment disputes (1997)and a chamber for maritime delimitation disputes (2007)

[44] Article15(3).This may hear cases on an accelerated procedure basis and provisional measures applications when the full tribunal is not sitting:see article(25).see also article 28 of the rules.

[45] See also the resolution on internal judicial practice,31 October 1997,and articles 40-2 of the rules

[46] Article 25(1) of the statute. See also articles 89-95 of the rules. See e.g.S. rossenne,provisional measures in international law: The international court of justice and the international tribunal for the law of the sea, The Hague,2004

[47] A group of essays published just before the establishment of tribunal has had a certain influence on the elaboration of the section of the rules concerning prompt release of vessels: Lagoni, “The prompt release of vessels and crews before the international tribunal for the law of the sea”, The international journal of marine law and coastal law,vol.1191996),pp.147-164,D.H.ANDERSON,”investaiagtion,detention and release of foreign vessels under the Un convention on the law of the sea”,ibid,pp.165177;T.Treves,” The proceedings concerning prompt release of vessels and crews before the international Tribunal for the law of the sea’,ibid,pp.179-200;.H.Oxman, “Observations on vessels release under the united nations convention on the law of the sea”,ibid,pp.201-215

[48] As provided in article 292,para 1,it is necessary that, within ten days from the time of detention, the parties have not agreed to submit the question of release to the court or tribunal accepted by the detaining state under article 287.The need of deciding “promptly” makes it unlikely that the flag state will accept the jurisdiction of an arbitral tribunal still to be constituted to of the I.C.J.which,even in proceedings such as those on provisional measures, does not seem sufficiently prompt to cope with the needs of release of detained ships and crews.

[49] The Cook Islands is in fact a state party since it has ratified the convention.

[50] See.Y.Tanoua,’prompt Release’ in the UNCLOS 1982

[51] Case no.1(saint Vincent&granadines v Guinea) 1997

[52] Case no.5 seychelles v. france 2000

[53] Case no.6 seychelles v france,2000

[54] Case no.8 Belize v. France .2001

[55] Case no.9 panama v. Yemen 2001

[56] Case no.11 Russian federation v. Australia

[57] Case.no13 Vincent& grenadines v. Guinea-Bissau)2004

[58] Case no.14( Japan v Russian federation)2007

[59] Case no.15 Japan v. Russian federation

[60] Case no.20 Argentina v Ghana

[61] Case no.19 panama/Guinea – Bissau

[62] Case no.18 saint Vincent and grenadines v. Spain

[63] Case no.3&4 New Zealand& Australia v. Japan (1999)

[64] Case no.7 Chile/ European union(2000-2009)

[65] Case no.10 Ireland v United kingdom

[66] Case no.12 Malaysia v Singapore

[67] Case no.25 panama v.Italy

[68] Caseno.24 Italy v India

[69] Netherlands v Russian federation case no.22

[70] Case no.17 request for an Advisory opinion submitted to the sea-bed Disputes chamber,2010

[71] Case no.21 request for an Advisory opinion submitted to ITLOS 2014

[72] The internal judicial practice of the ITLOS by D.H. Anderson, judge, ITLOS, IJIL published by Indian society of International law,new delhi,vol,38,no.3&4 july-december1998

[73] Statement by Dame Rosalyn Higgins, President of the international court of justice, on the occasion of the tenth anniversary of the tribunal.

[74] A/Res/64/71,para.29