Dr.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

PUBLIC INTERNATIONAL LAW

PROJECT ON TOPIC

“THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA: A GREAT

MISTAKE?”

Submitted to Submitted by

Dr. Manwendra K. Tiwari Aniket Sachan

Assistant Professor, (law) Roll no – 28

Dr. Ram Manohar Lohiya Enrollment id-170101028

National Law University B.A. LLB(HONS), IVth semester

SECTION-“A”

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  ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr. Manwendra K. Tiwari
who gave me the golden opportunity to do this wonderful project of Public International Law on
the topic “THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA: A
GREAT MISTAKE?”. He also helped me in completing my project and has rendered endless
support, kind and understanding spirit during my project completion. I came to know about so
many new things, I am really thankful to him.
The completion of this project could not have been possible without the participation and assistance
of various people thus; I would also like to thank my parents and friends who helped me a lot in
finalizing this project within the limited period.
I would also like to thank the Great Almighty, source of supreme knowledge for countless love
rendered on me.

ANIKET SACHAN
ROLLNO-28
BA LLB(HONS), IVth semester.

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  TABLE OF CONTENTS

Contents
ACKNOWLEDGEMENT .................................................................................................. 2

TABLE OF CONTENTS ................................................................................................... 3

INTRODUCTION .............................................................................................................. 4

JURISDICTION ................................................................................................................. 4

DISPUTE SETTLEMENT PROVISIONS ........................................................................ 5

FUNDAMENTAL PRINCIPLES ON WHICH ITLOS DISPUTE RESOLUTION

WORKS ..................................................................................................................................... 5

APPLICATION OF THE COMPULSORY DISPUTE SETTLEMENT PROCEDURES 6

ROLE OF ITLOS IN PROMOTING INTERNATIONAL LAW & PEACE .................... 6

Article 292: Prompt Release .................................................................................................. 6

Article 290: Provisional Measures ......................................................................................... 7

CASES BEFORE THE TRIBUNAL ................................................................................. 9

BENEFITS OF ITLOS OVER OTHER ALTERNATIVE MECHANISM ....................... 9

CONCLUSION ................................................................................................................ 11

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  INTRODUCTION

“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 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. The propositions were made on 27 August 1974 at Caracas therefore it is
popularly known as the “Document of Caracas.”
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. In following project I have discussed the
International Tribunal for the Law of the Sea and its role and value.“The Tribunal has
compulsory jurisdiction in “prompt release” cases and in claims for provisional measures
where the arbitral tribunal before which the claim will ultimately be brought has not yet been
constituted. Even before the Tribunal’s establishment, it was argued that an additional standing
tribunal was simply not necessary given because of the existence of the International Court of
Justice.”

 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). This means that the ICJ cannot accept or deal with a dispute
if one of the parties involved is a non-state entity. For example, a dispute between a State and
a multinational corporation or an inter-governmental cannot be submitted to the International
Court of Justice. ITLOS, on the other hand, is able to deal with such cases.1

“This provision is an amplification of Article 288 of the Convention. That article states that the
Tribunal 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. Article 21 of Annex VI envisages a more
expansive jurisdiction and provides that “the jurisdiction of the Tribunal comprises all disputes
and all applications submitted in accordance with the Convention, and all matters specifically

1
Article 20 of the Statute of ITLOS.

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provided for in any other agreement which confers jurisdiction on the Tribunal.” However,
Article 288(2) arguably limits the Tribunal’s consensual jurisdiction to the interpretation or
application of any “international agreement related to the purposes of the Convention,”
whereas Annex VI, Article 21 refers to “any other agreement which confers jurisdiction on
the Tribunal.” 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.””

 DISPUTE SETTLEMENT PROVISIONS

“The dispute settlement provisions in the 1958 Convention on the Law of the Sea were
contained in an optional protocol. However, in the 1982 Convention, in favour of obligatory
and binding third-party procedures prevailed.” The dispute settlement mechanisms, primarily
contained in Part XV, are a complex set of provisions providing for a combination of resort to
existing procedures, adjudication by a new specialist court (the Tribunal), and exclusion of
certain classes of matters, which are effectively left either to states or to other specialist bodies.

“The Convention also makes provision for States Parties to choose, prior to any dispute arising,
any of the four means for dispute settlement nominated in Article 287(1). In the event of a
dispute, if both parties have selected the same forum, it goes to that body, unless they otherwise
agree.2 Few states that have selected the Tribunal as their preferred forum for the compulsory
settlement of disputes are so geographically diverse that it seems highly unlikely that a dispute
could arise between some of them. While there have been cases between geographically distant
states in the Tribunal3, these claims were brought before the Tribunal on the basis of its
compulsory prompt release jurisdiction.4”

 FUNDAMENTAL PRINCIPLES ON WHICH ITLOS DISPUTE

RESOLUTION WORKS

The dispute settlement procedures under the UNCLOS are based on a number of fundamental
principles. “Parties are obliged to settle their disputes by peaceful means. 5 No reservations to

2
Art.287 of the United Nations Convention on the Law of the Sea.
3
Volga (Russ. v. Austl.), 126 I.L.R. 433.
4
Southern Bluefin Tuna Cases (N.Z. v. Japan) (Austl. v. Japan), 117 I.L.R. 148.
5
Art 273 of the United Nations Convention on the Law of the Sea.

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the Convention are allowed6 and parties are required to accept dispute settlement in accordance
with Part XV. However, other principle is freedom of choice7, and so Part XV gives states the
right to settle any dispute between them by peaceful means of their own choosing. Clearly, this
affects the extent to which the UNCLOS dispute settlement provisions can be said to be
“compulsory,” but it is clear that this provision was crucial to the acceptability of the
Convention’s dispute settlement provisions.”

 APPLICATION OF THE COMPULSORY DISPUTE SETTLEMENT

PROCEDURES

If the parties to a dispute have agreed upon a particular means of settlement, the UNCLOS
compulsory procedures will apply only if such means prove unsuccessful, if the agreement
between the parties does not exclude any further procedure8 . “These compulsory procedures
are subject to a number of substantive exceptions. Article 297 provides that certain types of
disputes are not included in the compulsory dispute settlement process.9 The UNCLOS also
permits states to opt out of the compulsory procedures in particular disputes.10” Where the
compulsory dispute settlement procedures do apply, states have four main choices11 for dispute
settlement: the Tribunal, the ICJ, an arbitral tribunal, or a special arbitral tribunal.

 ROLE OF ITLOS IN PROMOTING INTERNATIONAL LAW & PEACE

“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 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 disputes were subjected to compulsory binding settlement under Part
XV, section 2, of the treaty.”

Article 292: Prompt Release

“The UNCLOS introduced significant extensions of coastal state jurisdiction with respect to
marine resources, environmental protection. This raised concerns and a number of safeguards

6
Art 309 of the United Nations Convention on the Law of the Sea.
7
Art 280 of the United Nations Convention on the Law of the Sea.
8
Art 281 of the United Nations Convention on the Law of the Sea.
9
Art. 297 of the United Nations Convention on the Law of the Sea.
10
Art. 298. States can opt out of the compulsory dispute settlement procedures in disputes concerning military
and law-enforcement activities and sea-boundary delimitation etc.
11
Art 287(1) of the United Nations Convention on the Law of the Sea.

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were introduced. Article 292 provides a limited right of action for a state party when a vessel
flying its flag has been detained by the authorities of another state party. These cases usually
arise in circumstances in which fisheries or naval authorities of the coastal state suspect that a
fishing vessel is illegally fishing in its EEZ.
“The coastal state then arrests the vessel and its crew, detaining them at a coastal state port.
The UNCLOS is concerned to protect not only the humanitarian rights of the crew and the
property rights of the vessel’s owner, but also the ability of a coastal state to effectively enforce
its regulation of the EEZ. Therefore, Article 292 provides for the prompt release of the vessel
upon payment of a reasonable bond.”
Article 292(3) requires a court or tribunal dealing with applications for prompt release to do so
immediately. The Tribunal’s rules give applications for prompt release priority over all other
proceedings and emphasize expeditiousness in prompt release cases. A hearing is to be held
within fifteen days after receipt of an application and the detaining state is to submit a response
at least ninety-six hours before the start of the oral hearing. The Tribunal’s jurisdiction extends
to case in which a vessel or its crew and in which it is alleged “that the detaining State has not
complied with the provisions of this Convention for the prompt release of the vessel or its crew
upon the posting of a reasonable bond or other financial security.”

Only the flag state can make an application for prompt release, and in Grand Prince, the
Tribunal took the opportunity to comment on the definition of flag state. It held “that it had no
jurisdiction over the matter, as the evidence failed to establish that Belize was the flag State of
the vessel when the Application was made. Tribunal suggested that confiscation is legal but
subject to the demands of due process.” In Juno Trader case, judges explicitly provided
support for the legality of confiscation.

Article 290: Provisional Measures

Any of the courts or tribunals nominated in Part XV of the Convention may prescribe
provisional measures.12 However, the Tribunal is given a particular role if the case is to be
heard by an arbitral tribunal that has not yet been constituted. In these circumstances,
provisional measures may be prescribed by the Tribunal,13 either on the basis of agreement
between the parties to the dispute, or if the parties do not agree within two weeks of the request,
on unilateral application to the Tribunal.“The Tribunal may prescribe measures that it considers
appropriate under the circumstances to preserve the respective rights of the parties to the

12
Art 290 of the United Nations Convention on the Law of the Sea.
13
Art 290(5) of the United Nations Convention on the Law of the Sea.

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dispute or to prevent serious harm to the marine environment. In Juno Trader, the Tribunal
stated that its prompt release jurisdiction was subject to due process and humanitarian
considerations. Unnecessary use of force, due process, and violation of human rights must also
be taken into consideration in fixing a reasonable bond.”
“The Tribunal only has jurisdiction to order provisional measures under Article 290(5) “if it
considers that prima facie the tribunal which is to be constituted would have jurisdiction” and
“the urgency of the situation so requires.” The Tribunal’s response has consistently been that
the parties are not obliged to continue negotiations if all possibilities have been exhausted.14
Japan’s argument that Australia and New Zealand had not exhausted the procedures for
amicable dispute settlement under Article 281 met with a similar response.15 Even Churchill
concludes that the Tribunal is able to play a significant role in conflict management through its
provisional measures jurisdiction.”

14
Art 283 of the United Nations Convention on the Law of the Sea.
15
MOX Plant, 126 I.L.R. at 274–75.

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  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, 18 cases have
been filed. Of these, 13 have been resolved. “Of the 13 cases that have been resolved, eight
were prompt release cases,16 four involved were of provisional measures17 pending in 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 Conservation and Sustainable Exploitation of Swordfish
Stocks in the South-Eastern Pacific Ocean(Chile v. the European Union). 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.

 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.

1. 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 it will be applicable to ITLOS.
2. “There is a provision for the developing countries who accept the ITLOS jurisdiction
may get financial assistance. It is clearly specified that the developing States, which are
parties to a dispute before the Tribunal, may qualify 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.”

16
The M/V “Saiga” case (Saint Vincent and the Grenadines v. Guinea); the “Grand Prince” case (Belize v.
France); the “Juno Trader” case (Saint Vincent and the Grenadines v. Guinea Bissau);
17
The Bluefin Tuna cases (Australia v. Japan; New Zealand v. Japan), the MOX Plant case (Ireland v. the
United Kingdom)

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 3. The fact that the tribunal is a specialized judicial body places it in a better position to
decide cases that demand special expertise. “the tribunal’s jurisdiction is limited to
decide on the interpretation and application of the UNCLOS & it has the advantage to
decide a case expeditiously than the ICJ. In fact, I would say, the tribunal has built a
reputation for its expeditious handling of cases.”
4. “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.18
5. 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. “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 Tribunal19.”

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. This means that ITLOS can exercise jurisdiction conferred on it by an
agreement.

18
Article 20 of the Statute of ITLOS.
19
Art. 292 of the United Nations Convention on the Law of the Sea.

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  CONCLUSION: IS ITLOS A MISTAKE?

“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. Moreover, the graph of ITLOS heard only 13
disputes.”So, I believe to some extent it is a mistake but there are other points too which rectify
my following belief.

“The ITLOS in the period under review has received 20 cases on the law of the sea, whereas
the ICJ received almost half the number of such cases.” These facts say eloquently that the
establishment of the Tribunal was not a ‘great mistake’. 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.

“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. The
Tribunal may assist the parties in more than one way.”

Adjudication is of course, 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. Hence, we can see that the Tribunal’s role in the law of the sea dispute
settlement system goes beyond its judicial competence.

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