Rothwell: Climate Change, Small Island States, and the Law of the Sea: The ITLOS Advisory Opinion Request

Donald R. Rothwell (Australian National Univ. - Law) has posted an ASIL Insignt on Climate Change, Small Island States, and the Law of the Sea: The ITLOS Advisory Opinion Request.

Chandrasekhara Rao & Gautier: The International Tribunal for the Law of the Sea: Law, Practice and Procedure

P. Chandrasekhara Rao (formerly, Judge, International Tribunal for the Law of the Sea) & Philippe Gautier (Registrar, International Tribunal for the Law of the Sea) have published The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Edward Elgar Publishing 2018). Here's the abstract:

This authoritative guide to the International Tribunal for the Law of the Sea provides a timely assessment of its activities over the past two decades. P. Chandrasekhara Rao and Philippe Gautier’s comprehensive book delivers a detailed and extensive analysis of the Tribunal’s jurisdiction, the procedural rules governing cases before it and its contribution to the development of the law of the sea. Through a thorough examination of the Tribunal’s judicial practice, as well as referencing primary sources such as treaties and statutes, the authors demonstrate that the Tribunal has fulfilled the role entrusted to it by the United Nations Convention on the Law of the Sea. Utilising a practice-orientated approach, this methodical analysis reveals that the Tribunal has successfully developed its own working methods in handling cases, whilst establishing itself as a judicial institution with the ability to discharge its functions efficiently and cost-effectively, and most importantly, determines that its jurisprudence has contributed to the development of a coherent and progressive interpretation of the law of the sea.

Conference: Les 20 ans du Tribunal international du droit de la mer

On June 2-3, 2016, the Institut du droit public et de la science politique at the Université de Rennes 1 will host a conference on "Les 20 ans du Tribunal international du droit de la mer." The program is here. Here's the idea:

Au cours de 2 décennies passées, le TIDM a su trouver sa place dans le concert des juridictions internationales. Sa procédure sur plusieurs aspects est innovante. Il a par ailleurs réglé de nombreux différends dans le domaine du droit de la mer et a apporté une contribution significative au développement de celui-ci. Le colloque sera l’occasion de revenir sur ces différents aspects et d’envisager l’avenir. Le TDIM a un potentiel qui n’est très certainement pas encore totalement exploité. Le colloque sera ainsi l’occasion de confronter le point de vue de spécialistes de la question sous un angle à la fois théorique et pratique.

Long: Court of Justice of the European Union Rules on EU Institutional Prerogatives in ITLOS Advisory Opinion

Ronán Long (National Univ. of Ireland Galway - Law) has posted an ASIL Insight on Court of Justice of the European Union Rules on EU Institutional Prerogatives in ITLOS Advisory Opinion.

García García-Revillo: The Contentious and Advisory Jurisdiction of the International Tribunal for the Law of the Sea

Miguel García García-Revillo (Univ. of Córdoba - Law) has published The Contentious and Advisory Jurisdiction of the International Tribunal for the Law of the Sea (Brill | Nijhoff 2015). Here's the abstract:

In The Contentious and Advisory Jurisdiction of the International Tribunal for the Law of the Sea, Miguel García García-Revillo offers an in-depth examination of all relevant facets of the jurisdiction of this important international judicial institution. Created by the United Nations Convention on the Law of the Sea, ITLOS plays an essential role not only in respect to the interpretation of this major international treaty but also to the contemporary law of the sea in general. The book covers both the contentious (ratione materiae, ratione personae, mainline, incidental, compulsory, not compulsory) and the advisory jurisdiction of ITLOS, which are analysed not only from a theoretical perspective but also in light of the own Tribunal's jurisprudence.

Stephens: ITLOS Advisory Opinion: Coastal and Flag State Duties to Ensure Sustainable Fisheries Management

Tim Stephens (Univ. of Sydney - Law) has posted an ASIL Insight on ITLOS Advisory Opinion: Coastal and Flag State Duties to Ensure Sustainable Fisheries Management.

Dolidze: The Arctic Sunrise and NGOs in International Judicial Proceedings

Anna Dolidze (Univ. of Western Ontario - Law) has posted an ASIL Insight on The Arctic Sunrise and NGOs in International Judicial Proceedings.

Mahinga: Le Tribunal international du droit de la mer : Organisation, compétence et procédure

Jean–Grégoire Mahinga has published Le Tribunal international du droit de la mer : Organisation, compétence et procédure (Larcier 2013). Here's the abstract:

L’entrée en vigueur de la Convention des Nations-Unies sur le droit de la mer de 1982 a fait apparaître que le Tribunal international du droit de la mer institué par cette Convention pourrait faire double emploi avec la Cour internationale de justice. Dès lors, l’idée de prolifération des juridictions internationales avait fait jour et cette prolifération pouvait aboutir à un fractionnement du droit international. Or, l’étude du Tribunal international du droit de la mer permet de montrer qu’il n’en est rien. Cette juridiction spécialisée constitue un forum de règlement des différends internationaux original tant du point de ses procédures que de sa compétence. D’une part, les procédures en vigueur au sein du Tribunal se caractérisent par une extrême rapidité et, d’autre part, la compétence du Tribunal a pour conséquence que des entités autres les États peuvent agir devant cette nouvelle juridiction internationale. Au demeurant, l’analyse de la jurisprudence du Tribunal met en relief le fait que le Tribunal participe à la consolidation du droit international en même temps qu’il élargit le domaine d’application de ce dernier.

Becker: Sustainable Fisheries and the Obligations of Flag and Coastal States: The Request by the Sub-Regional Fisheries Commission for an ITLOS Advisory Opinion

Michael A. Becker has posted an ASIL Insight on Sustainable Fisheries and the Obligations of Flag and Coastal States: The Request by the Sub-Regional Fisheries Commission for an ITLOS Advisory Opinion.

Amerasinghe: Jurisdiction of Specific International Tribunals

Chittharanjan F. Amerasinghe (formerly, Judge, UN Administrative Tribunal) has published Jurisdiction of Specific International Tribunals (Martinus Nijhoff Publishers 2009). Here's the abstract:

This volume examines the jurisdiction, both contentious and advisory, of the ICJ as a specific permanent international court or tribunal but also brings together in one book the examination of the jurisdiction of certain other tribunals, not excluding most of the other four tribunals or groups of tribunals examined in Jurisdiction of International Tribunals by the same author. Material relating to them is expanded, re-examined and brought up to date. Hence, This volume covers the jurisdiction of: (i) the World Court, i.e., the ICJ and PCIJ — both contentious and advisory jurisdiction, (ii) the leading International Administrative Tribunals, (iii) the ECHR, (iv) ICSID tribunals, (v) the WTO Panels and Appellate Body, and (vi) the ITLOS. The six systems for the judicial settlement of disputes chosen to be examined in this work are by far the most important in the modern era and deserve close attention.

ITLOS: President Jesus's Statement to the General Assembly

On Friday, December 5th, International Tribunal for the Law of the Sea President José Luis Jesus addressed the General Assembly on its agenda item "oceans and the law of the sea." Statement here; ITLOS press release here; UN meeting report here.

ITLOS: Election of Seven Judges / Annual Report

On Friday, June 13 (while I was on vacation), at the eighteenth meeting of the States Parties to the United Nations Convention on the Law of the Sea, seven persons were elected to the International Tribunal for the Law of the Sea for nine-year terms commencing on October 1, 2008. Those elected included five sitting judges (Joseph Akl; José Luis Jesus; Vicente Marotta Rangel; P. Chandrasekhara Rao; and Rüdiger Wolfrum) and two new judges (Boualem Bouguetaia and Vladimirovitch Golitsyn).

Also noteworthy is the Tribunal's Annual Report (SPLOS/174) and President Wolfrum's statement presenting it. Coverage of the meeting can be found here, here, here, here, and here.

ITLOS: Election of Zhiguo Gao

On Wednesday, at a Special Meeting of States Parties to the United Nations Convention on the Law of the Sea, Zhiguo Gao (China) was elected a judge of the International Tribunal for the Law of the Sea, filling the vacancy created by the resignation of Judge Guangjian Xu (China) on August 15, 2007. In accordance with Article 6 of the Statute of the Tribunal, Judge Gao will hold office for the remainder of his predecessor's nine-year term, which expires on September 30, 2011. Judge Gao was the only candidate nominated and obtained 136 votes out of 137 ballots cast, with one abstention. Prior to his election, Judge Gao was Executive Director of the China Institute for Marine Affairs. A full bio is available here.

ITLOS: Wolfrum's Statement to the General Assembly

On Monday, December 10th, International Tribunal for the Law of the Sea President Rüdiger Wolfrum addressed the General Assembly on its agenda item "oceans and the law of the sea." (Statement here; ITLOS press release here; UN meeting report here.) Judge Wolfrum's statement, for the most part, recited, in the standard fashion of such addresses, the activities of the Tribunal during the past year. He reserved for the last part of his talk, interestingly, a discussion of why the Tribunal should be the preferred dispute resolution mechanism of parties to the Law of the Sea Convention and other international agreements. The ITLOS is hardly swamped with business, and clearly Judge Wolfrum is attempting to convince States to send their disputes to the Tribunal and not to its competitor fora, such as the International Court of Justice and arbitration. I'll have more to say about competition in international adjudication next week once I post an essay of mine that is forthcoming in the Virginia Journal of International Law. For now, here's the relevant excerpt from Judge Wolfrum's statement:

. . . The choice of procedure under article 287 of the Convention is of particular relevance as, apart from the Tribunal, there are two other compulsory procedures under the Convention, namely, the International Court of Justice and arbitration (Annexes VII and VIII). The default procedure is, however, arbitration. This explains why the provisional measures cases the Tribunal has dealt with under article 290, paragraph 5, of the Convention were the subject of subsequent proceedings before Annex VII arbitral tribunals. I refer to the Southern Bluefin Tuna cases, the MOX Plant case and the Land Reclamation case. In respect of these cases, the Tribunal has not only made a significant contribution to the development of environmental law but has also assisted the parties in resolving their differences. In this regard, allow me to quote from an article published by the distinguished Professor J.G. Merrills that [I quote] “it is clear that in all three cases the main substantive contribution came not from the Annex VII tribunal, supposedly there to determine the merits, but rather from ITLOS, exercising its incidental jurisdiction” [end of quote] [J.G. Merrills, The Mosaic of International Dispute Settlement Procedures: Complementary or Contradictory?, NILR, LIV (2007), pp. 361-393, at p. 381.]

Compared with an arbitral tribunal constituted to deal with a specific case, the Tribunal, as a permanent institution, has the advantage of ensuring consistency in the development of a coherent corpus of jurisprudence. May I add that, in my view, harmonization of international jurisprudence may be achieved only through permanent courts and tribunals. This should be borne in mind when States make their declarations on the choice of dispute settlement under article 287 of the Convention. In this respect, I should like to note that in 2007 one State Party, Trinidad and Tobago, made a declaration under article 287 by which it chose, in order of priority, the International Tribunal for the Law of the Sea and the International Court of Justice.

It may also be useful to observe that parties have the option for their dispute to be heard before an ad hoc special chamber, in accordance with article 15, paragraph 2, of the Statute. Parties may choose any of the 21 judges to sit in the chamber and may also appoint judges ad hoc if the chamber does not include a member of the nationality of the parties. Parties may also propose modifications and additions to the Rules of the Tribunal. Furthermore, parties do not have to bear the costs of proceedings. Indeed, access to the Tribunal and its facilities is not subject to any fees and is free to States Parties. Likewise, the remuneration of judges and Registry staff members is financed through the regular budget of the Tribunal and not by the parties to the dispute. This is particularly advantageous when all the costs relating to the functioning of an arbitral tribunal are taken into consideration (remuneration of arbitrators, registrar and registry staff members, rental of premises, and translation and interpretation services).

I should explain that the jurisdiction of the Tribunal is not limited to issues concerning the United Nations Convention on the Law of the Sea and that there are other possibilities which States Parties may use to confer jurisdiction upon it. A dispute may be brought before the Tribunal on the basis of any international agreement related to the purposes of the Convention which specifically confers jurisdiction on the Tribunal. A number of agreements have been concluded which contain provisions stipulating that disputes arising out of the interpretation or application of these agreements could be submitted to the Tribunal. A well-known example of such an agreement is the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 1995. It is worth noting that this Agreement extends mutatis mutandis the mechanism contained in Part XV of the Convention to any dispute between States Parties to this Agreement – whether or not they are also parties to the Law of the Sea Convention.

Recently, in May 2007, a new convention, the Nairobi International Convention on the Removal of Wrecks, was adopted at a diplomatic conference organized by the International Maritime Organization. This convention also contains a dispute-settlement clause that refers to Part XV of the Law of the Sea Convention. The inclusion of jurisdictional clauses of this nature is a useful development and I am therefore thankful to the sponsors of the draft resolution for having noted that States Parties to an international agreement related to the purposes of the Convention may submit to the Tribunal any dispute concerning the interpretation or application of that agreement which is submitted to it in accordance therewith.

Provisions conferring jurisdiction on the Tribunal may also be included in bilateral agreements. The Tribunal is the natural choice for States parties when they conclude a treaty relating to law of the sea matters, such as the laying of pipelines, the conservation and management of fisheries resources, marine scientific research, and the management of joint exploitation zones. In the case of agreements concluded by the European Community, the Tribunal is, in fact, the only permanent court available to the parties to the dispute.

Mr President, the Tribunal is thus prepared to discharge the functions entrusted to it by the Convention. . . .

Address by Wolfrum to Legal Advisers

Judge Rüdiger Wolfrum, President of the International Tribunal for the Law of the Sea, addressed the assembled Legal Advisers of the Ministries of Foreign Affairs at the United Nations last Monday. His speech is now available here.

New Issue: International Journal of Marine and Coastal Law

The latest issue of the International Journal of Marine and Coastal Law (Vol. 22, no. 3, September 2007) is out. Contents include:

• Symposium to Mark the Tenth Anniversary of ITLOS: The Jurisprudence of the International Tribunal of the Law of the Sea: Assessment and Prospects
• Michael Wood, The International Tribunal for the Law of the Sea and General International Law
• Alan Boyle, The Environmental Jurisprudence of the International Tribunal for the Law of the Sea
• Robin Churchill, The Jurisprudence of the International Tribunal for the Law of the Sea Relating to Fisheries: Is There Much in the Net?
• Thomas A. Mensah, The Tribunal and the Prompt Release of Vessels
• Francisco Orrego Vicuna, The International Tribunal for the Law of the Sea and Provisional Measures: Settled Issues and Pending Problems

ITLOS: Resignation of Judge Guangjian Xu

Today, the International Tribunal for the Law of the Sea announced the resignation of Judge Guangjian Xu of China. Judge Xu submitted his letter of resignation on August 15, and pursuant to the Tribunal's Statute (Article 5, paragraph 4), his seat became vacant upon the letter's receipt. Judge Xu was first elected in 2001 to fill the unexpired term of Judge Lihai Zhao of China, who had died in office. He was re-elected the following year for a full nine-year term. The date of the election to fill the vacancy created by Judge Xu's resignation has not yet been set.

No explanation was given for Judge Xu's resignation. One thought and two facts might provide some clarification, though. First, it seems doubtful that, were Judge Xu ill, the ITLOS press release would not have mentioned it, especially since this is the Court's first resignation. Second, Judge Xu is a Chinese national. Unlike most other countries, China can expect to have a permanent member of the Court, even though, as a formal matter, there is no such guarantee. Thus, there was no pressure on Judge Xu from the Chinese Government to stay in office, lest a non-Chinese national be elected in his place. Judges from most other countries are not in the same position. Third, Judge Xu tendered his resignation on August 15, his seventy-sixth birthday. Coincidence?

Judgments: The "Hoshinmaru" and "Tomimaru" Cases

As previously noted, in early July Japan filed two applications with the International Tribunal for the Law of the Sea seeking the prompt release by Russia of two fishing vessels (the "88th Hoshinmaru" and the "53rd Tomimaru") and their crew. On Monday, August 6, the Tribunal issued its judgments in these cases. In the "Hoshinmaru" Case, the court found the application well-founded and ordered the prompt release of the vessel upon the posting of a 10 million rouble bond. In the "Tomimaru" Case, the court found that the application was without object because the vessel had been confiscated in accordance with Russian law and domestic judicial remedies concerning the confiscation had been exhausted. The judgments and related documents can be found here and here.

Hearing: The "Hoshinmaru" Case

On July 6, Japan filed two applications with the International Tribunal for the Law of the Sea requesting the release by Russian authorities of two Japanese-flagged fishing vessels and their crew "upon such terms and conditions as the Tribunal shall consider reasonable." The first case concerns the "88th Hoshinmaru"; the second concerns the "53rd Tomimaru". Both vessels were detained for alleged violations of Russian fisheries legislation. The applications were made under Article 292 of the United Nations Convention on the Law of the Sea, and they allege breaches of Article 73(2) of the Convention. Article 73(2) requires that "[a]rrested vessels and their crews shall be promptly released upon the posting of a reasonable bond or other security." A hearing in the "Hoshinmaru" Case (docketed as Case No. 14) took place today and will continue tomorrow. A hearing in the "Tomimaru" Case (docketed as Case No. 15) is scheduled for Saturday.

Illegal fishing in the Exclusive Economic Zone (EEZ) along Russia's Pacific coast by vessels flying a variety of flags (Chinese, Japanese, North Korean, and Russian, as well as others) is frequent and has significant economic and environmental impacts. (Some of the confrontations between Russian authorities and Japanese boats take place in waters near the disputed Kuril Islands, where one Japanese fisherman was killed last year by fire from a Russian Coast Guard vessel. The two cases pending before the ITLOS apparently do not raise issues relating to the sovereignty of these islands.) At today's hearing, the Japanese agent alleged that nine Japanese vessels were arrested in the Russian EEZ during the period 2004-2006. These numbers, and the long detentions of the Japanese ships and crew, gave Japan "no other choice" than to institute these proceedings.