The Contentious and Advisory Jurisdiction of the International Tribunal for the Law of the Sea [1 ed.] 9789004200999, 9789004200982

Citation preview

The Contentious and Advisory Jurisdiction of the International Tribunal for the Law of the Sea





The Contentious and Advisory Jurisdiction of the International Tribunal for the Law of the Sea By

Miguel García García-Revillo Foreword by

Tullio Treves Rafael Casado

LEIDEN | BOSTON

 Library of Congress Cataloging-in-Publication Data García-Revillo, Miguel García, author. The contentious and advisory jurisdiction of the International Tribunal for the Law of the Sea / By Miguel García García-Revillo. pages cm Includes bibliographical references and index. ISBN 978-90-04-20098-2 (hardback : alk. paper) 1. International Tribunal for the Law of the Sea. 2. Jurisdiction (International law) 3. Law of the sea. 4. Pacific settlement of international disputes. I. Title. KZA5200.G37 2015 341.4’5--dc23 2015031735

isbn 978-90-04-20098-2 (hardback) isbn 978-90-04-20099-9 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.



In loving memory of Dad (1925–2008)

∵

Contents Foreword xi Acknowledgements xiii Abbreviations and Acronyms xiv Introduction 1

Part 1 Contentious Jurisdiction Section 1 Ratione Materiae 1 Principal Jurisdiction (Mainline Jurisdiction or Jurisdiction on the Merits) 10 1 The Voluntary or Compulsory Nature of the Principal Ratione Materiae Contentious Jurisdiction of itlos 10 2 The Maximum Extent of the Voluntary Jurisdiction of itlos. Can itlos Deal with Non-Law of the Sea Disputes? 13 3 Ways of Conferring Jurisdiction on itlos 29 3.1 Ante controversiam 30 3.1.1  u nclos as the Main axle of itlos Jurisdiction 31 3.1.1.1 A General view of the Disputes Settlement System of unclos 31 3.1.1.2 Disputes Concerning the Interpretation or Application of Convention 37 3.1.1.3 Disputes Not Submitted to the Settlement System of unclos and Disputes Submitted to it 48 3.1.1.4 Disputes Falling and not Falling under the Compulsory Procedures Entailing Binding Decisions of unclos 77 3.1.1.5 The Position of itlos within the Dispute Settlement System of unclos: Disputes Falling under the Compulsory Jurisdiction of the International Tribunal for the Law of the Sea 145 3.1.2 Other Treaties where itlos is Envisaged among the Means for Settlement 173 3.2. Post Controversiam 186 3.2.1 Special Agreement (Compromis) 187 3.2.2 Forum Prorogatum 200

viii

Contents

2 Incidental (Accessory) Jurisdiction 203 1 Introdution 203 2 Competence de la Competence 205 3 Conduct of Proceedings 211 4 Incidental Jurisdiction Stricto Sensu 212 4.1 Jurisdiction on Provisional Measures (Articles 25 st, 290 unclos and 89 to 95 rt) 213 4.1.1 Provisional Measures in General 213 4.1.2 Jurisdiction of the International Tribunal for the Law of the Sea to Prescribe Provisional Measures 216 4.1.2.1 Regulation 216 4.1.2.2 Disputes Concerning the Interpretation or Application of unclos 218 4.1.2.3 Disputes Concerning the Interpretation or Application of other International Treaties 247 4.2 Jurisdiction to Decide through a Preliminary Proceeding on the Allegation of Abuse of Legal Process (Article 294.1 in Relation to Article 297 of the Convention and Article 96 rt) 250 4.3 Jurisdiction to Decide on the Allegation of Preliminary Objections (Articles 294.3 unclos and 97 rt) 252 4.4 Jurisdiction to Decide on the Admission or not of a Counter-Claim (Article 98 RT) 254 4.5 Jurisdiction to Decide on a Request for Intervention (Articles 31 and 32 st, and Articles 99 and 100 rt) 256 4.6 Jurisdiction to Decide on the Discontinuance of the Proceedings as requested by the Applicant (article 106 rt) 259 5 Jurisdiction after the Judgment or the Final Decision 261

Section 2 Ratione Personae 3 Regulation 267 4 States Parties. Special Reference to the European Union 268 5 Entities Other Than States Parties. Is the International Tribunal for the Law of the Sea Competent to Deal with Disputes between Private Entites or Persons? 288

Contents

Part 2 Advisory Jurisdiction 6 Difficulty in Defining the Advisory Jurisdiction of itlos 297 7 Regulation 300 8 The Advisory Jurisdiction Expressly Conferred on Itlos by the Law of the Sea Convention: The Advisory Jurisdiction of the Seabed Disputes Chamber 301 9 Extending the Advisory Jurisdiction of the International Tribunal for the Law of the Sea by Means of Its Own Rules: The Advisory Jurisdiction of Itlos Itself 310 Bibliography 315 Index 336

ix



Foreword This book is clear evidence that the International Tribunal for the Law of the Sea (itlos) is today a thriving reality. The twenty-three cases, contentious and on requests for advisory opinions, that currently appear in its official List, support this statement. This is particularly noteworthy as the establishment of the International Tribunal for the Law of the Sea, a new international judicial organ created by the United Nations Convention on the Law of the Sea, the so-called Constitution of the Oceans, was strongly contested during the Third United Nations Conference on the Law of the Sea. During the early years since its establishment scholars and practitioners frequently expressed doubts as to the usefulness of this new judicial body and expressed concern that it would contribute to fragmentation of international law. Considering the relatively narrow scope of its jurisdiction, the Tribunal has fared quite well and the opposition of principle to it has vanished. States of all continents have been parties in cases before it and a number of the practitioners that frequently appear before the icj have pleaded before it. The contacts between the icj and the Tribunal are now amicable. Judges of the Tribunal have served as ad hoc judges in the icj, and currently the President of the icj is serving as judge ad hoc in the Tribunal. The author of this book, Miguel García García-Revillo, is a well-known expert in the settlement of law of the sea disputes His first contacts with the topic began in 1997 and, since then, he has made excellent contributions to the knowledge of itlos, in all its facets. These contributions include books, chapters of books and papers, but also his participation, as a guest speaker, in a number of international congresses and symposia all over the world. Among his scholarly writings, we must mention the monograph El Tribunal Internacional del Derecho del Mar. Origen, organización y competencia, published in 2005 by the Spanish Ministry of Foreign Affairs and Cooperation and the University of Córdoba (Spain), the latter being the academic institution in which Miguel Garcia works as a senior lecturer on international law. In that book, whose prologue-writer assured that “we are in presence of the best monographic study that has been written to date” on itlos, the author analyzed three of the four major areas worthy of investigation on this international judicial organ: its history, its organization and its jurisdiction. The fourth one, relating to the proceedings before the Tribunal, was not addressed in that book and still remains open on the author’s desk for future writings. Being itlos an international tribunal, and, accordingly, an institution depending on the States’ consent (or on the limits imposed by them), its most

xii

Foreword

interesting and stimulating facet is by far its jurisdiction. itlos jurisdiction is subject to constant jurisprudential developments and must be analyzed and understood in light of recent practice. It is consequently easy to understand that the important chapter on jurisdiction of the 2005 monograph required an update. Since 2005, itlos has received ten new cases (one of them pending at the time of writing these lines, namely the Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean) including the first request for an advisory opinion to the tribunal in its plenary composition, Request for an advisory opinion submitted by Sub-Regional Fisheries Commission. These cases enrich the analysis already done, help in the verification of the ideas developed and in the formation of new ones. Nevertheless, the reading of this book will show that the most of what was written in 2005 is still valid and confirmed by the new developments. Just in a few cases the approach taken in the work of 2005 has required review. Needless to say, this monograph on the contentious and advisory jurisdiction of itlos has all the features of good scholarly work: adequate metho­ dology, scientific rigor, reference to abundant jurisprudence and selected bibliography and documentation, discussion of opinions and critical analysis. In this respect, the bibliographical and documental research originally done by professor Miguel García at the libraries of the International Tribunal for the Law of the Sea in Hamburg, the Peace Palace in The Hague and several Spanish universities, has been enriched, for this new book, with that carried out at the libraries of the American University Washington College of Law, the Georgetown University School of Law and the Law Library of Congress of the United States, all in Washington dc, among others. His contacts with itlos, along with his participation in meetings and committees of the American Society of International Law, the European Society of International Law, the Association internationale du droit de la mer and in several research Projects, such as marsafenet (at the European level) and euromar (at the Spanish national level), and the success of the book of 2005, motivated García-Revillo to prepare this monograph and to do so in English. This time he focuses exclusively on the most important facet of itlos: its jurisdiction. In this regard, the author not only addresses general aspects but also tackles challenging topics such as the compulsory jurisdiction of itlos, its capacity to deal with non-law of the sea disputes, its jurisdiction regarding disputes between private persons or entities and the advisory jurisdiction conferred upon the full Tribunal by article 138 of its Rules. Tullio Treves and Rafael Casado Raigón

Acknowledgements In the preparation of this book I have received, over various periods of time, the unselfish help of a number of people to whom I am sincerely thankful. Firstly, I would like to express my gratitude to those who belong, in one way or another, to the “family” of the International Tribunal for the Law of the Sea through its successive Presidents. Either in itlos’ premises at Hamburg or in several other places, like the United Nations Headquarters in New York and a number of universities and entities around the world, I have enjoyed the hospitality and availability of the judges and the staff of the Tribunal. Particularly, I would like to express my appreciation to former Judges Treves, Yankov, Caminos, Anderson, Vukas, Nelson, Marsit and Eiriksson, to Judges Akl, Wolfrum, Marotta Rangel, Cot and Jesus, to Judge ad hoc and Professor Bernard Oxman and to the memory of those judges who have passed away: Kolodkin, Park and Bamela Engo. I want to also express my particular appreciation to the Registrar of itlos, Dr. Philippe Gautier. I would also like to express my gratitude to those universities and research centers that allowed me to access to their libraries and archives, literally opening their doors for my investigations, like the Universities Complutense de Madrid (Profs. Pastor and Martínez), Cantabria (Profs. Valle and Escobar Hernández) and Navarra (Prof. Espaliú) all of them in Spain, as well as the American Society of International Law (Prof. E. Andersen and Ms. Sheila Ward), the American University Washington College of Law (Profs. D. Hunter and M. Radnovic), the Georgetown University Law Center (Ms. Mariah J. Strauch-Nelson) and the Law Library of Congress of the United States (Ms. L-A. Rupple). I would like to offer a special mention in these acknowledgements, to the members of the Public International Law Department of the University of Cordoba, Profs. Manuel Hinojo Rojas, Eva Mª Vázquez Gómez and Mrs. María Garrido Ramos, to whom I am particularly thankful for their help and encouragement over these many years. Finally, and above all, I would like to express my deepest gratitude and affection to my mentor, supervisor and friend, Professor Rafael Casado Raigón, and to my family, for their infinite patience and their unconditional and ongoing support. This book has been written by its author within the framework of activities carried out by the research project La Unión Europea y el Derecho del Mar (euromar) (DER2013-47863-P), of the Spanish Ministry of Economy and Competitiveness.

Abbreviations and Acronyms 1994 Agreement, Seabed Agreement Agreement Relating to the Implementation of Part xi of the United Nations Convention on the Law of the Sea of 10 December 1982, signed in New York, 28 July 1994 1995 Agreement, Straddling Stocks Agreement for the Implementation of the Agreement 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, adopted on 4 August 1995 cjec, cjeu The Court of Justice of the European Communities, The Court of Justice of the European Union doalos Division for Ocean Affairs and the Law of the Sea of the United Nations ec, eu European Community, European Union echr European Court of Human Rights icj, The Hague Court, the Court The International Court of Justice icj Rules, rc The Rules of the International Court of Justice icj st The Statute of the International Court of Justice isba The International Seabed Authority itlos, the Hamburg Tribunal, the The International Tribunal for the Law of the Tribunal Sea itlos Rules The Rules of the International Tribunal for the Law of the Sea itlos st, st The Statute of the International Tribunal for the Law of the Sea pcij The Permanent Court of International Justice sdc Seabed Disputes Chamber Seabed Area, The Area The seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction United Nations Convention on the Law of the unclos, the 1982 Convention, the Convention Sea of 10 December 1982 Third Conference, iii Third United Nations Conference on the Law of Conference, iii los Conference the Sea (1973–1982) unga United Nations General Assembly

Abbreviations and Acronyms

xv

un unsc wg

United Nations Organization United Nations Security Council Informal Working Group on the Settlement of Disputes

adi

Anuario de Derecho Internacional (University of Navarra) Annuaire Français de Droit International American Journal of International Law Proceedings of the American Society of International Law Annuaire de l'Institut de Droit International British Yearbook of International Law Collection Espaces et Ressources Maritimes United Nations Convention on the Law of the Sea 1982: A Commentary, Center for Oceans Law and Policy, University of Virginia, Martinus Nijhoff, 1989–2010 (M. Nordquist, Gen. Ed.) European Journal of International Law German Yearbook of International Law Reports of Judgments, Advisory Opinions and Orders of the International Court of Justice, Recueil des Arrêts, Avis Consultatifs et Ordonnances de la Cour internationale de Justice International and Comparative Law Quarterly The International Journal of Marine and Coastal Law International Legal Materials The Law and Practice of the International Courts and Tribunals Netherlands Yearbook of International Law Ocean Development and International Law Revue Belge de Droit International Recueil des Cours de l’Académie de Droit International de La Haye (Collected Courses of The Hague Academy on International Law) Revista Española de Derecho Internacional Revue Générale de Droit International Public Spanish Yearbook of International Law

afdi ajil asil Proceedings Annuaire idi, iil Yearbook byil Coll. erm Commentary, Virginia Commentary

ejil gyil icj Reports, cij Recueil

iclq ijmcl ilm lpict nyil odil rbdi rcadi

redi rgdip syil

xvi

Abbreviations and Acronyms

Zaö rv

Zeitschrift für ausländdisches öffentliches Recht und Völkerrecht

art. cit. doc., docs. ed., eds. Of.Docs. p., pp. para., paras. res. ss. v. vol.

article cited document, documents editor, editors Official Documents page, pages paragraph, paragraphs resolution et sequentes (and following) versus volume

Introduction It is well known that the United Nations Convention on the Law of the Sea (unclos), signed in Montego Bay (Jamaica) the 10th of December 1982, represented a milestone in the codification and progressive development of both Public International Law and its branch, the international law of the sea. Among its innovations, unclos meant the creation ex novo of three international entities, each responsible for handling a particularly sensitive issue: the International Seabed Authority, to organize and control the activities in the so-called Area (arts. 156 and 157), the Commission on the Limits for the Continental Shelf, to make recommendations on State proposals regarding the limits of their continental shelves extending beyond 200 nautical miles (art. 76 and Annex ii) and the International Tribunal for the Law of the Sea, to which this book is devoted. The Tribunal is entrusted with the delicate task of playing a key-role in the complex system for the settlement of disputes as set out in the Convention (article 287 and Annex vi). The establishment of itlos became very controversial during the Third United Nations Conference on the Law of the Sea. The main reason was that a number of States considered the proposed institution unnecessary and a source of future problems. Unnecessary, from their point of view, since the settlement of disputes was sufficiently covered by the International Court of Justice, the arbitral tribunals and the non-judicial means also at their disposal for a peaceful settlement of their disputes. And a source of troubles for the future, because a new international tribunal with universal geographic competence, even though constrained to law of the sea issues, might pose a dramatic risk of conflicting jurisdiction and jurisprudence with that of the icj and arbitral tribunals. More than thirty years after those debates, and nearly twenty years after its inauguration, the International Tribunal for the Law of the Sea is a reality and even when the discussion regarding conflicting jurisdiction and conflicting jurisprudence is still active, nobody considers the existence of itlos at stake. To date (28 February 2015), 21 cases have been resolved by itlos (the last is its Judgment of 28 May 2013 in the M/V Louisa case (Saint Vincent and the Grenadines v. Spain)). In addition, two cases are still pending: the Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (srfc) and the Dispute concerning Delimitation of the Marine Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire). These have provided the Hamburg Tribunal with a solid hull, so to speak, clearly resistant to

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004200999_002

2

Introduction

those who at first advocated for not creating it and who subsequently, after its establishment, lobbied for its dismantling. In order to maintain a coherent structure, certain divisions frequently employed by scholars to explain and study the competence of the International Court of Justice and that of the Permanent Court of International Justice have been used in this book. In particular, I am referring to the “traditional” distinctions between contentious and advisory jurisdiction, jurisdiction ratione materiae and ratione personae, and finally, incidental (or accessory) jurisdiction and principal jurisdiction (mainline jurisdiction or jurisdiction on the merits). The main division has been made between contentious and advisory jurisdiction while all other classifications are used in the form of subdivisions when necessary. Turning back for a moment to the main division, it is not easy to draw a clear border between contentious and advisory jurisdiction, due to the ongoing transformation that the advisory jurisdiction of the icj has been experiencing for years. In this respect, while it is more or less universally accepted that contentious jurisdiction is linked to the idea of a dispute, as it was defined by the pcij in the Mavrommatis Palestine Concessions Judgment,1 and to the idea of a judgment, that is to say, a final and binding decision over the dispute (if the requirements for that judgment to be delivered are met), it is not currently as widely accepted to associate the advisory jurisdiction to its original content, that is, a question on a point of law to be answered by means of a non-binding opinion. Nevertheless, insofar as this classification is frequently used by scholars (and as it may help to clarify the contents of this book) I have found it preferable to utilize these terms here and revert back to the precise meaning of the advisory competence in its corresponding part. Contentious jurisdiction is divided into two major sections respectively focused on material jurisdiction (ratione materiae) and personal jurisdiction (ratione personae). Both types of jurisdiction are directly linked to each other to the extent that they could be considered as two sides of the same coin. Nonetheless, insofar as one tribunal may be competent to deal with a case attending its material aspects and may not be competent to deal with the same case for its personal aspects, and vice versa, it is worthwhile to maintain a distinction that offers the advantage of more clearly delineating some issues where the material or personal aspects of the Tribunal’s competence are r­elevant. On the one side, for example, the maximum range of the Tribunal’s voluntary jurisdiction as related to that of its material jurisdiction, 1 “A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons” (Judgment of 30 August 1924, cpji Series A, n° 2, page 11).

Introduction

3

and on the other side whether or not this international judicial organ is even open to d­ isputes between private persons or entities as related to its personal competence. In respect to contentious ratione materiae jurisdiction (Part 1, Section 1) a division will be made between principal jurisdiction (or jurisdiction on the merits) that is, jurisdiction which covers the case or dispute submitted for the tribunal’s consideration and decision, and accessory or incidental jurisdiction, which is, by exclusion, that which covers issues other than the main dispute, though connected to it, whose resolution is required to continue with the proceedings, to deliver a judgment, to complete or clarify its content, or to execute it. So as to the principal (contentious ratione materiae) jurisdiction of the Tribunal (Chapter 1) its analysis is oriented to two questions that I find critical, both of them linked to its voluntary or compulsory nature: The first, as derived from the discordance between article 288.2 unclos and article 21 of itlos Statute, concerns the maximum extent of its jurisdiction on the merits (principal) in those cases where the parties agree to submit the dispute to it. It poses the question: can the parties, acting by mutual consent, submit any kind of dispute to itlos, even if such dispute is totally alien to the law of the sea? Or, on the contrary: even when the parties agree, are there disputes, like those totally alien to the law of the sea, that fall outside of this tribunal’s jurisdiction? The second question refers to the actual range of the compulsory jurisdiction of the International Tribunal for the Law of the Sea. In general terms, it is understood by compulsory jurisdiction of an international tribunal that which enables one of the parties in a dispute to unilaterally submit it to the said tribunal without the explicit consent of the other party or even against its objection, on the basis of a prior consent agreed to before the dispute arises. Therefore, it is necessary to distinguish, among the so-called “ways of jurisdiction”, those conferring jurisdiction upon the Tribunal ante controversiam, that is, before the dispute arises, from those conferring it post controversiam, that is, after the dispute arises, because only in the first case can compulsory jurisdiction of that international judicial body take place. In respect to the jurisdiction of itlos as accepted ante controversiam, it is clear that the 1982 Convention, aside from the constitutive treaty and the statute of the Hamburg Tribunal, is by far its main source of compulsory jurisdiction, thus making it convenient to treat it separately in its own block. In this matter I would like to point out that not every issue referred to unclos involves compulsory jurisdiction, much less the compulsory jurisdiction of itlos. The complex system for settlement of disputes as organized in the 1982

4

Introduction

Convention must coexist with the settlement systems of other treaties and the optional clause system for the icj. Accordingly, only a part of the disputes concerning the interpretation or application of unclos fall under its compulsory procedures entailing binding decisions. Among the latter, just a portion fall under or may fall under the compulsory jurisdiction of itlos. Therefore it seems prudent to attempt a type of “decanting” process for discovering the real size of the compulsory jurisdiction of the Hamburg Tribunal. To this end, disputes will be successively separated this way: first, they will be separated as to whether or not they concern the interpretation or application of unclos. Secondly, disputes concerning the interpretation or application of unclos will then be separated according to whether or not they fall under the settlement system of this treaty (Section 1, Part xv). Thirdly, disputes falling under the unclos settlement system will further be separated as to whether or not they fall under its compulsory procedures entailing binding decisions (automatic exceptions of article 297 and facultative exceptions of article 298). And fourthly, a final separation will be done among disputes submitted to compulsory proceedings entailing binding decisions of unclos to set aside those disputes that fall under other compulsory procedures different from itlos (like the icj and arbitration) (article 287.1, 3 and 5). At the conclusion of this “decanting” operation, it will become possible, by exclusion, to determine which, among those disputes concerning the interpretation or application of the Convention falling under its compulsory procedures entailing binding decisions, are submitted to the compulsory jurisdiction of the Hamburg Tribunal. Hence, the real dimension of the compulsory jurisdiction of itlos and its position in the settlement of disputes system of unclos will be revealed. unclos is not the only international treaty conferring compulsory jurisdiction upon the Hamburg Tribunal. Along with the 1982 Convention, there may be found other treaties from which the said compulsory jurisdiction can derivate. Undoubtedly, the most important is the 1995 New York Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks. In addition, by referring to the settlement system of unclos or even to the system of the said 1995 Agreement, several other treaties may be quoted in this respect. Not all of them confer compulsory jurisdiction to itlos, thus making it convenient to analyze them case-by-case. Besides the jurisdiction given to the Tribunal ante controversiam, the only one from which its compulsory jurisdiction may result, it is also possible that the parties agree in bringing the case before it after the dispute emerges. In this situation, like the International Court of Justice, the competence of the Hamburg Tribunal can derivate either from a special agreement (also called

Introduction

5

compromis) or from an implicit agreement (also called forum prorogatum). In the special agreement situation, the content and range of that agreement and the powers of the Tribunal are the most interesting topics, particularly after its judgment in the Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar). On the other hand, in addition to its principal ratione materiae jurisdiction, itlos has incidental (or accessory) competence (Chapter 2). In this respect, the Hamburg Tribunal has been invested with an important role regarding the adoption of provisional measures, insofar as this judicial entity has powers not only to prescribe them in cases submitted to it but also in cases submitted to an arbitral tribunal during the period when the constitution of the said arbitral tribunal is pending. In fact, itlos has dealt with several requests for provisional measures in that way. Besides provisional measures, the incidental jurisdiction of itlos also empowers it to decide on its own competence (competence de la competence) to conduct the proceedings, to decide in preliminary proceedings on the allegation of an abuse of powers by one of the parties, to decide on preliminary objections to admit or reject the entertaining of a counter-claim, to admit or refuse the request for an intervention, to admit or reject the discontinuance of the case put forward by the applicant, as well as to carry out activities after delivering judgment, e.g., the interpretation or revision of that judgment. Along with the material jurisdiction, the competence of itlos may be also analyzed from the personal perspective (Part 1, Section 2). In this respect, the study of the ratione personae jurisdiction of the Hamburg Tribunal makes it possible not only to determine entities with ius standi before this international judicial body but also to tackle two issues I find of special interest: the access to itlos by international organizations of Annex ix (to date, the European Union) and the possibility (or not) for the Tribunal to deal with disputes between private entities or persons. To conclude the study of the Tribunal’s competence, Part 2 is devoted to the advisory jurisdiction. The division between jurisdiction ratione materiae and ratione personae might be also applied here, as well as principal and incidental jurisdiction. However, for the reasons stated below, it seems more appropriate, in this case, to divide the material in a different way. If we constrain ourselves just to the text of the Tribunal’s Statute, then the advisory jurisdiction of the Hamburg Tribunal is limited to dealing with some questions concerning the Seabed Area only when they are posed by certain organs of the International Seabed Authority. In addition, they would be dealt with solely by the Seabed Disputes Chamber. However, in view of the itlos’ Rules, the advisory jurisdiction of this judicial entity has been extended. The Hamburg

6

Introduction

Tribunal, motu proprio, through its Rules, and with the acquiescence (or, at least, the silence) of States Parties to unclos, has conferred advisory jurisdiction also to the plenary, widening its scope to a range ratione personae and ratione materiae far superior to that originally conferred upon the sdc by the Law of the Sea Convention. Given this, I find it more appropriate to divide this part accordingly, thereby focusing the first Chapter (Chapter 6) on the definition of advisory jurisdiction, the second on the norms regulating that competence (Chapter 7), the third on the advisory jurisdiction expressly conferred by unclos upon the Seabed Disputes Chamber (Chapter 8) and the last (Chapter 9) on the extension of the advisory jurisdiction carried out by the Rules of the Tribunal in favor of its plenary. To all the above mentioned contents, a Bibliography section has also been added.

part 1 

Contentious Jurisdiction

∵

section 1 

Ratione Materiae

∵

chapter 1

Principal Jurisdiction (Mainline Jurisdiction or Jurisdiction on the Merits) As mentioned in the Introduction, we have focused the study of the principal ratione materiae contentious jurisdiction of itlos around two critical points. The first, coming out from the partial discordance between articles 288.2 of the Law of the Sea Convention and article 21 in fine of its Annex vi, concerns the maximum extent of the principal jurisdiction of the Tribunal in cases where the two parties agree to submit the dispute to the said judicial organ. The second refers to the real extent of the compulsory jurisdiction of itlos. Both points are linked to the compulsory or voluntary character of its jurisdiction, making it advisable to deal with this topic first, before a­ ttempting the others. 1

The Voluntary or Compulsory Nature of the Principal Ratione Materiae Contentious Jurisdiction of itlos

It is not unusual, in the language of scholars and practitioners in Public International Law, to affirm that the jurisdiction of an international tribunal, like the International Court of Justice or, nowadays, that of the International Tribunal for the Law of the Sea, is voluntary (consensual) and, simultaneously, to analyze and comment on the compulsory jurisdiction of the same international tribunal. This paradox comes, in my view, from an inappropriate use of a single term (compulsory jurisdiction) with two different meanings. In the first, consensual jurisdiction means a jurisdiction that eventually depends on the consent of all the parties in a dispute. On the other hand, compulsory jurisdiction is, in this first sense, the jurisdiction that can be imposed on any of the parties without its consent, or even against its consent. In the second meaning, however, it has become frequent to use the expression compulsory jurisdiction to name a jurisdiction which has been accepted by the parties before the emergence of the dispute. In this second sense, any of the parties can unilaterally bring the dispute before the competent court or tribunal without a new consent of its opponent. Accordingly, in this second classification, consensual jurisdiction designates only those cases where, after the emergence of the dispute, the

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004200999_003

Principal Jurisdiction

11

consent of both litigants is required to bring the dispute before the court or tribunal.1 As I see it, compulsory jurisdiction is only that which can be imposed on the parties even against their will. All jurisdiction based on the consent of both parties is, actually, consensual jurisdiction. Conversely, it might be argued that, pushing it to the extreme, compulsory jurisdiction doesn’t exist at all since there is always some degree of consent involved, if even implicit, in the acceptance by the parties to the court or tribunal’s existence and, through it, to its jurisdiction. However, this claim would not be correct and is not supported in the practice. To admit that it is possible to find some sort of consent by all and every person or entity submitted to a tribunal – even implicit and referred to the system as a whole – would, by analogy, be similar to saying that a tyrannical regime receives implicit acceptance by its citizens since the tyrant has not been overthrown by them. I don’t believe Rousseau’s social contract goes that far. Furthermore, experience proves that compulsory jurisdiction has a real existence than cannot be ignored by the mere fact that it is not found in international law applicable to States. Focusing on internal law, a significant part of domestic court’s jurisdiction is compulsory because it doesn’t depend on the will of the individuals submitted to it. Even in democratic regimes, where the courts’ jurisdiction relies on and is legitimized by majority consent, the competence of internal judicial organs can be imposed not only on those who agree with it but also on those who are against the existence of the court or tribunal or to the whole system;2 much more when the political regime is an imperfect democracy or is not a democracy at all. Is there such a thing as compulsory jurisdiction in International Law? In my opinion, there isn’t in respect to its principal actors, States and International Intergovernmental Organizations. However, we can find some examples in the field of international criminal law, where the jurisdiction of 1 The term compulsory jurisdiction in this second sense has been used even in normative instruments. See, in particular, article 36.2 of the Statute of the Permanent Court of International Justice and its successor article 36.2 of icj’s Statute. See also the Manila Declaration on the Peaceful Settlement of Disputes between States (unga, Res. 37/10, 15 November 1982). 2 A local national Spanish example: when terrorists belonging to the nationalist-separatist Basque organization eta are summoned to appear before Spanish and French criminal courts, they use to claim that they don’t recognize the jurisdiction of those courts because they consider them to be under the authority of a foreign country instead of their alleged own nation, the Basque Country. Moreover, terrorists belonging to anarchist movements in the past xx century used to reject not only the power of some national courts but also the system as a whole, whose overall destruction they were trying to reach (obviously including its judicial organization).

12

chapter 1

some international criminal courts has been and currently is imposed over the accused persons against their will.3 The use of the expression compulsory jurisdiction, when dealing with disputes involving States, is, in fact, a euphemistic way of referring to consensual jurisdiction where the consent of both parties has been given (and recorded) ante controversiam, that is, before their dispute arises. It is, in short, a polite way to hide a crude reality: in International Law, at least in the International Law of States under which we are currently governed, compulsory jurisdiction doesn’t exist. Assuming that the use of the words compulsory jurisdiction, is, strictly speaking, a kind of consensual jurisdiction, it might be recognized that it is nevertheless a much reinforced one and supposedly a remarkable advance in respect to earlier usages. By submitting themselves ante controversiam to the jurisdiction of an international arbitral tribunal or a permanent court, and by doing it “blindly”, that is, without knowing what dispute might arise between them, States lose the power, they would otherwise have, to deny that the case be dealt with and resolved by a third party, that is to say, the legal body they have agreed to accept. In short, their consent turns out to be considerably mitigated. Nonetheless, that mitigation is the result of their sole and exclusive will, no matter how conditioned or pressured it was; jurisdiction has been agreed, after all, and this is the critical factor in determining whether it is compulsory or not.4 Either way, like it or not, or whether appropriate or not, the fact is that this second classification which draws such a distinction between compulsory and consensual jurisdiction, possesses a wide acceptance in legal texts, scholarly writings and jurisprudence itself. It is thus not reasonable to ignore it. On the other hand, as language is purely conventional, it is undeniable that the expression “compulsory jurisdiction” in this second sense, unequivocally designates its object: it refers to a kind of jurisdiction agreed upon by the parties involved prior to the emergence of a dispute by virtue of which they mutually accept that any party can bring the dispute to one tribunal without the subsequent consent of the other.5 3 Regarding the international personality of human being, see Barberis, J., “Nouvelles questions concernant la personnalité juridique internationale”, rcadi, vol. 179, 1983, pp. 145–304. For instance, former Yugoslav President Milosevic rejected the authority of the International Criminal Tribunal for the Former Yugoslavia to adjudge him (See the records of hearings held in July, 3rd and August 30th, 2001). 4 Sound evidence of this is the power that States have to make reservations to their declarations made in conformity to article 36.2 icj st. 5 Jiménez García, referring to that of the icj, claims that compulsory jurisdiction exists [in this second sense] when the tribunal can decide on the merits of the case submitted to it by

Principal Jurisdiction

13

Taking into account what has been said in the previous paragraphs, and turning particularly now to the main or principal contentious ratione materiae jurisdiction of the International Tribunal for the Law of the Sea, my opinion is that such jurisdiction is strictly consensual in the most precise use of this term, that is, attending to the first of the aforementioned classifications. However, assuming its strict consensual nature, the fact is that the Tribunal is entrusted with a very relevant role in those ambits that the Law of the Sea Convention reserves for the so-called compulsory jurisdiction (to which I will also refer, when advisable to avoid confusion, as “pre-consented” compulsory jurisdiction).6 Again strictly speaking, itlos’ jurisdiction is consensual for States because it is based upon their consent to be Parties to the Montego Bay  Convention and the other treaties conferring jurisdiction upon the Tribunal. For the same reason, it is also consensual as regards the regional international organizations as defined in Annex ix of the Convention (to date, the European Union). It is consensual as well in respect to the International Seabed Authority since this organization assumes itlos’ jurisdiction insofar as it assumes the 1982 Convention as its constitutive treaty. And eventually, it is also consensual regarding the individuals who might be submitted to the aforesaid itlos’ jurisdiction because it is only exercised over those who have entered in the system for the exploration and exploitation of the seabed, as it is managed and ruled by the isba, but not over those who remain outside of its margins.7 2

The Maximum Extent of the Voluntary Jurisdiction of itlos. Can itlos Deal with Non-law of the Sea Disputes?

How far might the mutual consent of the parties extend? Are there limits ratione materiae to that will? In other words, how far does it reach the principal contentious material jurisdiction of the International Tribunal for the Law of the Sea? Are the parties allowed, by mutual consent, to submit any kind of dispute to the Hamburg Tribunal whether or not it is connected to the law of the sea or, on the contrary, are there disputes that surpass the means of an unilateral application pursuant to previous juridical agreements irrespective of the ad hoc consent of the defendant (Jiménez García, F., La jurisdicción obligatoria unilateral del Tribunal Internacional de Justicia, sus efectos para España, Dykinson, Madrid, 1999, p. 78). 6 Jiménez García (cit.) prefers the term “unilateral” compulsory jurisdiction. 7 For example, the jurisdiction of itlos doesn’t apply to a national of a State non-Party to unclos exploiting the resources of the Area without the isba’s permits.

14

chapter 1

limits of the ratione materiae jurisdiction of this international judicial institution? In short, what is the maximum extent of the consensual jurisdiction of itlos? In the rules that govern the majority of the existing international courts and tribunals, the answer to those questions is simple because their competence is ruled by one single provision or set of provisions with concordant contents.8 However, in dealing with the International Tribunal for the Law of the Sea, two provisions with their content partially in discordance, even prima facie in contradiction, refer to the said jurisdiction in a comparable range. It affects nothing less than the extent of the Tribunal’s jurisdiction beyond the international treaty that created it, that is, the maximum extent of its voluntary or consensual jurisdiction. In general, scholars base the principal contentious material jurisdiction of itlos on articles 288, paragraphs 1 and 2, of the 1982 Convention, on the one hand, and on articles 21 and 22 of itlos’ Statute, on the other. Those provisions say: Article 288: Jurisdiction 1. A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part. 2. A court or tribunal referred to in article 287 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.9 Statute of itlos: Article 21: Jurisdiction The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.10

8 9 10

For example, in the case of the icj, article 36 of its Statute. Emphasis added. Emphasis added. It has been also a topic for discussion the fact that article 21 st refers only to an “agreement” instead of an “international agreement” as it appears in article 288.2 unclos. For this, see Part 1, Section 2, Chapter 5.

Principal Jurisdiction

15

Article 22: Reference of disputes subject to other agreements If all the parties to a treaty or convention already in force and concerning the subject-matter covered by this Convention so agree, any disputes concerning the interpretation or application of such treaty or convention may, in accordance with such agreement, be submitted to the Tribunal. As may be deduced from their texts, the content of the provisions as reproduced above is for the most part coincident but not totally so: there is a clear discordance between article 288.2 (international agreement related to the purposes of this Convention) and article 21 in fine of the Statute (any other agreement). Accordingly, in dealing with disputes falling within the area of coincidence, that is to say, those disputes concerning the interpretation or application of 1982 Convention or concerning the interpretation or application of other treaties related to the purposes of unclos, there is no great difficulty in basing the Tribunal’s jurisdiction on either article 288.2 or article 21 st, or on both articles at the same time. However, in dealing with disputes whose object goes beyond the interpretation or application of international treaties concerning the purposes of unclos, the answers offered by articles 288.2 and 21 st differ. Among the said disputes, we might place not only those regarding the interpretation or application of treaties not related to the purposes of 1982 Convention but also disputes on customary law of the sea not provided for in unclos nor in any other treaty related to its purposes. In light of article 288.2 of the Convention, such disputes fall outside of the Tribunal’s jurisdiction while, according to article 21 st, the Tribunal’s jurisdiction would cover them because it extends to any dispute that the parties have consented to submit to itlos by means of an agreement. The point is, obviously, of major importance because the answer determines how far the Tribunal’s jurisdiction reaches beyond the international treaty that constituted it (unclos) and, through it, the maximum extent of its consensual jurisdiction. Can itlos deal with any dispute that the parties agree to submit to it even when the dispute doesn’t refer to the law of the sea and is completely alien to the purposes of unclos, as seemingly suggested by article 21 st or, on the contrary, is itlos jurisdiction constrained just to disputes regarding the interpretation or application of unclos and the group of conventions related to it, as delineated in article 288.2? In short, has the International Tribunal for the Law of the Sea a universal ratione materiae jurisdiction like the International Court of Justice or, on the contrary, is its competence just constrained to particular kinds of disputes? As far as I know, to date there is no special study on the relationship between articles 288.2 and 21 st. Obviously, there are a number of works referring to

16

chapter 1

itlos’ jurisdiction in which their authors deal with the content of one or both articles. However, they usually depart from one provision or the other without analyzing the relationship between them and the role to be played by one in respect to the other. From the papers dealing with the jurisdiction of itlos, it may be deduced that the majority of scholars (including a number of judges or former judges of the Tribunal, even from the icj, expressing their opinion in academic publications) opt for a restrictive interpretation. To this end, they rely either on article 288.2 alone;11 or on article 288.2 together with article 21 st, but always placing these provisions in the same order: prominence is given to article 288.2, while article 21 st remains in a secondary role, subject to the first; or on article 21 st but clarifying that this provision has to be necessarily interpreted in light of article 288.2.12 Just to quote some scholarly opinions that for the most part tow the majority line, I can reproduce the words by former judge Treves and by judge and former President of itlos Nelson. According to Treves: “It is however necessary that the dispute concern the interpretation 11

12

See, for instance, Eiriksson, G., “The Role of the International Tribunal for the Law of the Sea in the Peaceful Settlement of Disputes”, Indian Journal of International Law, vol. 37 (3), 1997, pp. 352 and 354. For one of these latter two views, see, inter alia: Commentary, vol. v, p. 375; Cannone, A., Il Tribunale Internazionale del Diritto del Mare, Cacucci, Bari, 1991, p. 13; Eiriksson, G., The International Tribunal for the Law of the Sea, Kluwer, The Hague, London, Boston, 2000, p. 113; Fleishauer, C.A., “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. 330; Mensah, T., “The Place of the International Tribunal for the Law of the Sea in the International System for the Peaceful Settlement of Disputes”, Indian Journal of International Law, vol. 37 (3), 1997, pp. 475 and 476; Mensah, T., “The International Tribunal for the Law of the Sea”, ljil, vol. 11, 1998, pp. 538 and 539; Mensah, T., “The International Tribunal for the Law of the Sea: Its Role for the Settlement of the Law of the Sea Disputes”, African Yearbook of International Law, vol. 5, 1997, p. 239; Nelson, D.M., “ The International Tribunal for the Law of the Sea: Some Issues”, Indian Journal of International Law, vol. 37 (3), 1997, pp. 391 and 392; ; Sola, J.V., The International Tribunal for the Law of the Sea, Institut universitaire de hautes etudes internationales, Geneva, 1986, p. 58; Treves, T., “The Jurisdiction of the International Tribunal for the Law of the Sea”, Indian Journal of International Law, vol. 37 (3), 1997, pp. 408 and 409; Treves, T., “The Law of the Sea Tribunal: Its Status and Scope of Jurisdiction after November 16, 1994, Zaö rv, 55 (2), 1995, p. 439; Treves, T., Le controversie internazionali. Nuove tendenze, nuovi tribunali, Giuffrè, Milano, 1999, p. 135; Vukas, B., “The International Tribunal for the Law of the Sea, Some Features of the New International Judicial Institution”, Indian Journal of International Law, vol. 37 (3), 1997, p. 383; Yankov, A., “The International Tribunal for the Law of the Sea: Its Place within the Dispute Settlement System of the un Law of the Sea Convention”, Indian Journal of International Law, vol. 37 (3), 1997, p 363.

Principal Jurisdiction

17

and application of the agreement and that the agreement be ‘related to the purposes of the Convention’ as it emerges from Article 288, paragraph 2. The Statute of the Tribunal (Article 21) adds that jurisdiction based on an agreement conferring jurisdiction on the Tribunal comprises ‘all matters specifically provided for’ in the agreement. Thus the limits to jurisdiction are not -apart from the requirement that the agreement be related to the purposes of the Convention – those set out in the Convention but those provided for in the agreement”.13 Nelson, for his part, says: “Can the Tribunal deal with cases having nothing to do with the law of the sea which parties thereto are prepared to submit it to it? (…) It seems that the clear intention of the drafters of the Convention was to establish a Tribunal to deal only with law of the sea disputes, in particular those concerning the interpretation or application of the Convention on the Law of the Sea and other related agreements. The Travaux prèparatoires support this viewpoint. It is also of some significance that the members of the Tribunal are to be people ‘enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea’. This argument is also supported by the fact that the law to be applied by the Tribunal relates to the Convention on the Law of the Sea and other rules of international law not incompatible with it”.14 Just a small minority, i.e. Professors Boyle,15 Casado Raigón16 and, to some extent, Pastor Ridruejo,17 while basing the jurisdiction of itlos directly on 13 14 15

16

17

Treves, “The jurisdiction …”, Indian Journal…, cit. Nelson, cit. Boyle, A., “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction”, iclq, vol. 46 (1997), pp. 37–54. In this author’s view: “Can the Tribunal do more? Has it the power to decide issues having nothing to do with the law of the sea? Although it might be argued that it was never intended for the Tribunal to be a court of general jurisdiction, the Convention provides little warrant for confining the Tribunal’s consensual jurisdiction to law of the sea cases. It is true that Article 288 limits compulsory jurisdiction to cases concerning the interpretation or application of the Convention or of any ‘international agreement related to the purposes of the Convention’, but no comparable restriction is found in the Statute of the Tribunal (Annex vi)” (p. 49). Casado Raigón, R., La jurisdicción contenciosa de la Corte Internacional de Justicia. Estudio de las reglas de su competencia, Servicio de Publicaciones de la Universidad de Córdoba, Córdoba, 1987, p. 90. In the 8th edition of his Curso de Derecho Internacional Público y Organizaciones Internacionales (Tecnos, Madrid, 2001, p. 609), as well as in previous editions, Professor Pastor Ridruejo says: “(…) The range of the terms of this provision [art. 21 st] would enable States to bring before the (said) Tribunal any question, including those unrelated to the law of the sea, though one must consider, in all probability, only or mainly disputes

18

chapter 1

article 21 st without mentioning article 288.2, seem to opt for the opposite thesis. In Casado’s words: “Unlike the Special Arbitral Tribunal regulated in Annex viii, the competence of the International Tribunal for the Law of the Sea comprises all the disputes and applications submitted to it in accordance with unclos and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal (art.21 Annex vi); accordingly, any matter, connected or not to the Convention or even not related to the law of the sea, falls under its ratione materiae jurisdiction”.18 In my opinion, to face this important point, there is a previous one to be dealt with, that is, the role that the apparently contradictory norms are called upon to play within the system. It may be clearly observed that both article 288.2 unclos and article 21 st refer to the Tribunal’s jurisdiction; moreover, they treat that competence with a similar latitude, in the same general terms. Yet can it be said, for this reason, that both provisions perform exactly the same function, and that one and the other are referring exactly to the same thing? The answer to this question has a lot to do, in my opinion, with the way the International Tribunal for the Law of the Sea was designed by its constitutive treaty, that is, unclos. In my view it is clear that itlos is not properly a “treaty tribunal” in the sense that it has been created to and for constraining its work to settle only disputes concerning the interpretation or application of the treaty that created it.19 Not only because both articles 288.2 and 21 st assume that Tribunal’s jurisdiction surpasses the limits of the Convention itself (without stating how far its jurisdiction does go beyond those limits) but also because unclos was conceived to be much more than a closed and static set. Rather, it was adopted to offer a framework within which other conventions and rules regarding the law of the sea are “vertebrated” (structured) and assume a new and integrated meaning as a part of that set.20 It is reasonable to think, t­ herefore,

18 19

20

concerning the interpretation or application of the Convention would be submitted to it” (translation added). However, in 9th and further editions, the quoted phrase doesn’t appear (Tecnos, Madrid, 2003, p. 598). Casado, R., cit. Translation added. In this respect, I don’t think that Eiriksson refers to itlos as a treaty tribunal in this strict sense but in the meaning that it is a court whose work is mainly focused on UNCLOS (Eiriksson, cit. p. 113). Some clear examples of treaty tribunals can be found, inter alia, in the European Court of Human Rights and the Inter-American Court of Human Rights, whose rules limit their respective ratione materiae jurisdiction to their constitutive treaties (art.32 European Convention on Human Rights, 4 November 1950, and article 62 of the Inter-American Convention on Human Rights, 22 December 1969 in connection with articles 1 and 2 of the Inter-American Court on Human Rights’ Statute). See article 312 unclos.

Principal Jurisdiction

19

that the settlement of disputes mechanism of unclos took that element into consideration. To the extent that itlos was conceived by 1982 Convention as an institution called upon to surpass its limits, it is necessary to determine how far those limits reach, that is, to what degree the ratione materiae jurisdiction of itlos extends beyond the limits of unclos, beyond the disputes concerning the interpretation or application of this treaty. To achieve this goal, the Convention must establish what we could call, for the mere purposes of description, “general rules of competence”, that is, rules that delimit in general terms the jurisdiction of the Tribunal. This is not only for dealing with disputes concerning the interpretation or application of the treaty that created it but also for any dispute whatsoever that parties agree to submit to the said Tribunal. The existence of these kinds of provisions, these general rules of competence, in the very text of the constitutive treaty, is not just convenient or advisable, it is essential. If they don’t exist, the institution would escape the control of its own creators while offering third parties the chance to amplify or modify the extent of its competence even against the consent of the formers. In this respect, the Tribunal “is” as its creators conceived it and its jurisdiction extends within the limits they set. This is compatible with the possibility that, once it has been created, in keeping with its profile and within those essential limits, the Tribunal’s jurisdiction could be open for certain categories of disputes, involving States and/or organizations who are not party to the constitutive treaty. Here is where I find that articles 288.2 unclos and 21 st should be brought if they are to be contrasted to each other. And it is here where the question raised above can be answered. In the previous paragraph, I raised a question about whether article 288.2 unclos and 21 st perform exactly the same function in the sense that they both refer to exactly the same thing. Or to reformulate the question: are both articles 288.2 unclos and 21 st general rules of competence for the International Tribunal for the Law of the Sea? In general, it is not contested that article 21 st, given its characteristics and location, is a general rule on the competence of itlos. On the other hand, it is evident that the majority of the doctrine, based on article 288.2 of unclos, which limits the Tribunal’s jurisdiction on disputes involving the law of the sea, assumes that the said provision fulfills the same function. If this is true, that is to say, if both articles 288.2 and 21 st are general rules on the competence of the Tribunal, then there is no question that it is virtually impossible to make these provisions compatible with each other. To whatever extent the contents of such provisions conflict – no matter which formula is applied in specifying jurisdiction – one of them will end up being sacrificed. The reason is the following: if it is assumed that each provision is on a par with the other (fulfilling the same function), then it should be assumed as well that each can

20

chapter 1

exhaust the regulation of the consensual principal contentious ratione materiae jurisdiction of itlos at the same time. However, if both are capable of exhausting the said regulation, then the slightest discordance in their content would leave no other option but to apply one of the provisions to the detriment of the other, thus leaving the latter wrongly ignored or unapplied, or to mitigate the dichotomy by means of a restrictive interpretation of the broadest one (article 21 st) to sacrifice its range for the benefit of the narrowest one (art. 288.2 unclos). In other words: if both provisions are given equal function, any interpretation surpassing the strict definitions outlined in article 288.2 unclos would mean the non-application of this provision, even when, in an attempt to come to an intermediate solution, the maximum latitude permitted in article 21 st would never be reached. And, on the contrary, any interpretation that did not venture beyond a strict reading of article 288.2 would find itself so far removed from the text of article 21 st that it would mean, de facto, a non-application of the latter. When trying to establish the jurisdictional boundaries of itlos beyond the limits of the treaty that was creating it, such jurisdiction, in short, cannot possess two boundaries at the same time. Yet if it comes to be understood that, despite the reasons explained above, both provisions are viewed to have similar function, which of the two would be applicable? It is clear that the majority prefer article 288.2 over article 21 st, most probably because article 288.2 is considered more in keeping with the will of its authors. From my point of view, should one have to put both provisions on an equal footing and be forced to choose between one or the other, an argument based on article 21 of the Tribunal’s Statute is more solid than one based on article 288.2. This is because the first is more specific, it is more appropriately placed and its content is more flexible than the latter. By this I do not mean to state that these three reasons are definitive for me; but rather, as a whole they constitute a more compact base on which to rest the jurisdiction of the Hamburg Tribunal rather than the one that is, or could be offered, by article 288.2 unclos. Regarding the more specific nature of article 21 st, both provisions are ­entitled “jurisdiction”. However, article 21 st is placed in a Section called “Competence” while article 288.2 unclos is in another devoted to “Compulsory Procedures Entailing Binding Decisions”. Either way, the main reason is that, while article 288.2 refers to the four tribunals of the “Montreux Formula”21 without distinction, article 21 st refers exclusively to the Hamburg Tribunal. As for location, if the Tribunal had been conceived as a true treaty t­ribunal, that is to say, as a tribunal created by and for a treaty, the concern as to the 21

itlos, icj and the Arbitral Tribunals provided for in Annex vii and Annex viii (art. 287).

Principal Jurisdiction

21

precise location of the provisions dealing with its jurisdiction, whether embedded in a Statute or in the body of the Convention itself, would be of minor relevance. Since the Tribunal’s work is not going to extend beyond the bounds of the treaty that created it, this international instrument will be its statute, independent of the fact that for structural reasons, even for aesthetic reasons, the said statute is so named and located in a separated Annex therein. However, since the Tribunal has been conceived as something more than a mere treaty tribunal, like a court whose competence transcends the convention that ­institutes it, then the point of the location and status of the said rules is critical. It is of capital importance that the said judicial institution is provided with a set of provisions destined to regulate its structure, functioning, procedure and jurisdiction beyond the treaty by which it was constituted; in short: a statute. In this respect, it clearly seems more appropriately located in article 21 st than in article 288.2. In addition, for determining the jurisdiction of itlos beyond its constitutive treaty, it seems to me somehow strange and rather unorthodox, to turn to a provision located within another set of provisions dealing with the settlement of disputes related to the treaty itself (Part xv), which are in a large majority, with this sole exception, devoted to disputes concerning the interpretation or application of this particular treaty. It would be far clearer to turn to a provision located precisely within its own Statute for that very purpose. And finally, let us consider the flexibility of the text in article 21 st. It is obvious that the expression “any other agreement”, given its wider implications, allows more maneuverability than the tight terms of article 288.2, thus conferring to the Hamburg Tribunal a greater capacity to determine its own jurisdiction. Putting it another way: by using the broader terms of article 21 st it is possible to move closer to the content of article 288.2; on the contrary if one uses the strict terms of the latter, it is impossible to get very far. In terms of corrective interpretation, it is always easier to narrow something than to broaden it. An objection could be raised to the line of reasoning outlined above stating that the authors of unclos never intended to create a universal jurisdiction parallel to that of the International Court of Justice. In this respect, the text of article 288.2 is clearly aligned to that will. But what exactly was their intention? Negotiations and work on the drafts for the section of unclos dealing with the settlement of disputes were carried out to a great extent in an informal atmosphere; which is why there are few official documents that give an accounting of the travaux prèparatoires.22 It is true that a part of the negotiation details has 22

See Garcia Garcia-Revillo, M., El Tribunal Internacional del Derecho del Mar. Origen, organización y competencia, Ministerio de Asuntos Exteriores y Cooperación y Servicio de Publicaciones de la Universidad de Córdoba, Cordoba, Spain, 2005, pp. 49–64.

22

chapter 1

been reflected in records kept by some of the participants during the meetings. However, the importance of those private “chronicles” detailing the inner workings of the process does not correspond with their legal value as a means of interpreting the law. Leaving aside the fact that during the informal meetings those who wrote the reports were defending the particular interests of their respective countries, and assuming that they wrote them with some degree of objectivity, how can we know whether what was recorded in those private notes is actually what was discussed and accepted? How might one assess those decisions adopted in meetings in which not all the delegates in the iii United Nations Conference on the Law of the Sea were assembled? Moreover, who, among the private note-takers, should be relied on in case of a contradiction? It is true that a majority of participants reporting on their experiences in the informal negotiations opt for article 288.2, but not all of them.23 In addition, all the participants who reported on the proceedings were but a few among all those who attended and participated in the meetings. On the other hand, at the time of proposing the creation of the Law of the Sea Tribunal, several States were experiencing some feeling of rejection towards the icj, which was going through one of the worst moments in its history as a consequence of the South West Africa cases. Moreover, even while it is very likely that article 288.2 was originally conceived, to regulate in general the jurisdiction of itlos,24 the truth is that another provision on the topic was also drafted and that this second provision extended that jurisdiction. Even further, it would hardly seem in accordance with the will of its creators to exclude disputes on major subjects such as those involving norms of international customary law which are covered neither in the 1982 Convention nor in international treaties related to its purposes. For example, in the ara Libertad case, according to the Ghanaian objection, the dispute on the immunity of the Argentinean warship ara Libertad did not concern the interpretation or application of the Law of the Sea Convention but of customary international law.25 Such an issue as described above could hardly have escaped unclos drafters’ foresight in their working. And thus to the final question: if the intention of the parties involved was so restrictive, and if the general feeling of the iii los 23

For example, in opposing the majority, comprised of several authors that attended the negotiating process, Professor and former Judge of the European Court on Human Rights, J.A. Pastor Ridruejo, an attendee and participant in the meetings (both formal and informal) as a member of the Spanish delegation, supports a broader view. (See note 17). 24 This aspect, however, is not confirmed. See Commentary, cit., A.VI.124–126, and 288.3. 25 See itlos’ Order on Provisional Measures, 15 December 2012, paras. 51, 52, 57 and 58, as well as the Joint Separate Opinion of Judges Wolfrum and Cot, especially para. 7.

Principal Jurisdiction

23

Conference was truly so restrictive, why was this restrictive view not reflected in article 21 st? Was it an oversight? That would be difficult to believe, dealing as it does with key provisions of indisputable importance set down in an essential treaty negotiated at a global international conference for nearly ten years. It may be recalled, pursuant to this, that while the first drafts of the Tribunal’s Statute were derived from a nearly mechanical transposition of the icj’s Statute, further drafts were modified and separated from that of The Hague Court until the differences became remarkable.26 In this respect, the fact that article 21 st is inspired in article 36.1 of icj Statute could be indicative either of a slip or of a conscious assumption of the most expansive rule dealing with the principal ratione materiae contentious jurisdiction of the International Court of Justice.27 Looking at it from a different perspective, it might be suggested, contrary to the arguments above and supporting the idea of giving preference to article 288.2 unclos, that even if one were to give the provisions equal weight, the content of article 21 st would be subordinate to the former by virtue of article 1.4 of the said Statute.28 However, in my opinion this article is too vague to extract not merely a link between the two, but a direct relationship that subordinates one to the other. Again, the question of the paragraph above must be reiterated: if this was actually the intention of unclos’ negotiators, why was it not stated directly and expressly? In my opinion, what is not necessary is to use a formulation so forced or so artificial as the one described above. The truth is that both provisions (article 288.2 unclos and 21 st) are not necessarily on the same level insofar as they have been written in such language that allows them to fulfill different functions. In my opinion, ways may be found to make them compatible, permitting their simultaneous implementation. Getting back to the point, are articles 288.2 unclos and 21 st situated on a similar plane? Do these two provisions play the same function? The answer to this question may be dealt with from two different perspectives: hierarchical and, what I shall term, “competential” (functional). From a hierarchical perspective, it is clear that both provisions are equal in status, with no subordination inherent in them. Both are provisions of the 1982 26

27 28

Compare, to this end, doc. DSG/n° 4, of 5 February 1975 (edited by Platzöder, R., Third United Nations Conference on the Law of the Sea, vol. xii, Oceana Pubs. pp. 17 and 23 ss.) with doc. A/CONF.62/WP.9, 25 July 1975 (published in Of. Docs., vol. v). For a more in depth view on this process, see: Commentary, cit., A.VI.122. According to article 1.4 st: “A reference of a dispute to the Tribunal shall be governed by the provisions of Parts xi and xv”.

24

chapter 1

Convention because the norms contained in its Annexes form an integral part of the treaty and are on equal footing with those in the body of the Convention;29 there is not a single directive in the Convention stipulating that, in case of a contradiction, one provision should prevail over the other. To the contrary, from a functional (“competential”) perspective, the answer to the posed question is not so simple. In previous paragraphs, both provisions, articles 288.2 unclos and 21 st have been regarded, prima facie, as similar in extent and generality at the time of regulating the jurisdiction of itlos. Might these two provisions be regarded as general rules of competence for itlos? It is very likely that both of them were dictated for that goal. However, while article 21 st not only intends but also can achieve that aim, the text of article 288.2 makes it inadequate for that purpose. The main reason is that article 288.2 refers without distinction to four tribunals, and not only to the International Tribunal for the Law of the Sea; thus it might be reasonably expected that what is established for one of these courts or tribunals would also be established for the others and so avoid distinctions where the law doesn’t make them. Obviously, article 288.2 in no way can legislate the general jurisdiction of the International Court of Justice (one of the four tribunals listed in that article) because the principal contentious ratione materiae jurisdiction of the Hague Court is regulated within its own Statute, regardless of the fact that it is further sharpened and specified in other treaties, like unclos, or by means of declarations made according to article 36.2 of the icj Statute. Accordingly, there are only two options: to assume that, despite all, article 288.2 regulates the general jurisdiction of itlos but not that of the icj (and the arbitral tribunals also listed therein), thus accepting that the same provision can be applied differently to similar cases; or, more reasonably in my view, that article 288.2 is not called upon to perform that function. So then, what role does it play? In my opinion, neither more nor less than it would play with respect to the International Court of Justice. By that I mean to say that article 288.2 would come to recognize, and anticipate, that the jurisdiction of one or other of the tribunals functioning under the system for the settlement of disputes as set down in Part xv of unclos is not constrained solely to disputes concerning the interpretation or application of that treaty, but also may cover disputes that extend beyond its content. Nevertheless, the fact that article 21 st remains as the only norm that regulates, in a general manner, the principal ratione materiae contentious jurisdiction of itlos does not necessarily signal a victory for the broadest interpretation of the Tribunal’s competence (to which I, nevertheless, adhere) because the expression “any other agreement”, even freed from the strict confines of article 288.2 (“related 29

Article 318.

Principal Jurisdiction

25

to the purposes of this Convention”), must not necessarily be interpreted to its fullest extent. So it is with respect to this, that article 288.2, together with the object and purpose of unclos, has a role to play at the time of interpreting article 21 st. Referring in particular to article 288.2, and assuming that both are placed on different planes as regards the jurisdictional bounds of itlos, ­article 288.2 may be regarded as part of the context of article 21 st when applying the rules for the interpretation of treaties as provided by the Vienna Conventions of 1969 and 1986.30 Moreover, insofar as article 288.2 unclos objectively forms part of the context of article 21 st, and subjectively reflects a certain will that is not very “expansive”, by virtue of article 1.4 st, the former provision (article 288.2) could be taken into account, along with the object and purpose of the Convention, to determine the precise borders of the said article 21 st. In my view, to determine the actual range of article 21 st we can distinguish between three types of disputes: 1/disputes concerning the interpretation or application of the 1982 Convention; 2/disputes that we could call “connected” with unclos, which is to say, those concerning the interpretation or application of treaties on the law of the sea, the interpretation or application of other treaties concerning the purposes of the Convention, the international customary law of the sea not covered by unclos, and the international customary law distinct from the former but concerning the purposes of the Convention; and 3/disputes totally alien to unclos, to its purposes and to the law of the sea in general. In my opinion, all of them, including disputes absolutely alien to the Convention, to its purposes and to the law of the sea in general, are covered by the ordinary meaning to be given to the terms of article 21 st. However, should the term “any other agreement” be understood, contrary to my view, not as any agreement whatsoever but as any agreement related to unclos, to its purposes, etc., such interpretation would require recourse to other hermeneutical means like the context, the object and purpose of the treaty and, when appropriate, supplementary means of interpretation. As to disputes concerning the interpretation or application of the Convention, the jurisdiction of the Hamburg Tribunal does not pose a major problem since it is expressly covered by article 21 st and reaffirmed by ­article  288.1 unclos. All of them, without exception, may be submitted to itlos if the parties in the dispute agree to bring the case before it. It should be recalled that we are referring here to the consensual jurisdiction of the Tribunal, not to its pre-consented compulsory jurisdiction, thus departing from the point that both litigants agree to submit the dispute to its judgment. Regarding disputes “connected” with unclos, I don’t believe it is a major problem to recognize the Tribunal’s competence in dealing with those disputes 30

Articles 31 and 32 of the Vienna Conventions on the Law of Treaties of 1969 and 1986.

26

chapter 1

concerning treaties related to the law of the sea and treaties not related to the law of the sea but concerning the purposes of unclos.31 Insofar as treaties regarding the law of the sea are obviously international agreements “related to the purposes of this Convention”, and insofar Tribunal’s jurisdiction to deal with disputes concerning these two last is expressly recognized by article 288.2, there is a little room for doubting the competence of itlos in respect to them. In addition, and regarding agreements connected to the matters regulated in unclos, account should be taken of article 22 st, according to which: “If all the parties to a treaty or convention already in force and concerning the subjectmatter covered by this Convention so agree, any disputes concerning the interpretation or application of such treaty or convention may, in accordance with such agreement, be submitted to the Tribunal.” Apart from this, as to disputes concerning international customary law of the sea not covered by unclos, it seems clear that it is in keeping with the object and purpose of the 1982 Convention to include these types of disputes within the jurisdictional purview of itlos. It wouldn’t make sense to create a judicial organ of this nature, with far-reaching financial and political implications, while simultaneously short-circuiting its ability to work in areas it was clearly set up to deal with, especially in cases in which the litigants agree to submit the dispute to the court. Not so clear, on the other hand, are the remaining disputes, that is to say, disputes concerning international customary law alien to the law of the sea but in line with the purposes of unclos (among the “connected” ones), and disputes absolutely alien to unclos, to its purposes and to the law of the sea in general. From my point of view, tackling the subject is possible by dividing these disputes into two groups: on one side the disputes of a mixed nature (hereinafter mixed disputes), that is, those where the non-law of the sea dispute is essentially linked to another which is related to the law of the sea;32 on the other side, disputes totally alien to unclos, to its purposes and to the law of the sea in general, whatever its source may be.33 31 32

33

For example, an environmental treaty whose content overlaps that of unclos. For example, a dispute on a land and maritime boundary between two States that agree to have their disagreement settled by the judiciary on the condition that the territorial and maritime drawings of the border are jointly dealt with by the court or tribunal and will not be treated separately. Another example of mixed dispute could be that concerning the so-called “nine-dotted line” drawn by China on the South China Sea, as the points of disagreement between this country and others in the region (Philippines and Vietnam) concern not only the maritime jurisdiction over this area but also the sovereignty over certain islands and archipelagoes (Spratly and Paracels). For instance, a dispute involving human rights and the use of force in the territory.

Principal Jurisdiction

27

As regards mixed disputes,34 it would be difficult to assume that the interpretation most harmonious with the object and purpose of unclos would be to exclude them from the jurisdictional ambit of itlos, particularly if we take into account that the parties agree to submit the case to the Tribunal and in view of “the historic significance of [the] Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world”, as proclaimed in its Preamble. In my opinion, one should not discard the fact that the phrasing of article 21 st could be directly related to the desire to keep the doors to the Tribunal’s jurisdiction open, or at least not completely closed, precisely to these last two types of disputes that have just been mentioned, namely, disputes related to the international customary law of the sea not regulated in the Convention and mixed disputes. In this respect, in my opinion it is soundly in accord with the object and purpose of unclos to understand that the consensual jurisdiction of the Tribunal extends to both. The problem is that, once the doors to the Tribunal’s jurisdiction are “open” to mixed disputes, doors are also opening, or at least not being closed, on other disputes that might be encompassed by the text of article 21 st, provided that the parties agree to submit the dispute to it; and once the door is left open, it poses the tricky problem of disputes totally alien to the Convention, to its purposes and to the law of the sea. As for these disputes, the solution is obviously unclear, compelling this author to admit that, contrary to the affirmative thesis, for which I opt, the negative thesis is clearly reasonable and probably more orthodox. Plainly it was not the intention of unclos’ drafters for the International Tribunal for the Law of the Sea to create a parallel to that of the International Court of Justice, and it is equally obvious that the object and purpose of the Convention is not to create a court parallel to the one in The Hague for its States Parties; despite the fact that for some States the creation of itlos meant a reaction against the icj after the disappointment they experienced as a result of its Judgment of 18 July 1966 in the South West Africa cases.35 Its creation meant, to a certain extent, “a punishment”, in the words of professor Remiro 34 35

In this respect, see: Buga, I., “Territorial sovereignty issues in maritime disputes: a jurisdictional dilemma for law of the sea tribunals”, ijmcl, vol. 27 (1), 2012, pp. 59– 95. See the history of itlos in Garcia-Revillo, M., El Tribunal Internacional del Derecho del Mar. Origen, organización y competencia, Ministerio de Asuntos Exteriores y Cooperación y Servicio de Publicaciones de la Universidad de Córdoba, Córdoba, Spain, 2005, First Part (pp. 41 et seq.). See also Queneudec, J.-P., “Coup d’oeil retrospectif sur les origines du Tribunal International du Droit de la Mer”, in Ando, Mc Whinney and Wolfrum, (eds.), Liber amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 621–632.

28

chapter 1

Brotons.36 On the other hand, it appears equally clear to me that, with the terms “any other agreement”, the object and purpose of unclos intends to go far beyond the strict terms of the text of article 288.2. Taking into account these two limits, perhaps the most orthodox is to exclude those disputes totally alien to the Convention, its purposes and the law of the sea in general, from the jurisdiction of itlos. However, if the litigants agree to submit the dispute to the Hamburg Tribunal and given the fact that the text of unclos, with its broad and open phrasing, doesn’t expressly exclude this option, why reject it? Why close the doors on a settlement when, firstly, the Convention doesn’t exclude it, secondly, the will of the Convention negotiators is not abundantly clear nor recorded in official documents and thirdly, the object and purpose of the said treaty is, of course, to provide all the tools available for managing disputes so that their parties may settle their differences by whatever pacific means they choose? Why, if the States Parties are allowed to choose an arbitral tribunal for settling any of their disputes, must they be prohibited from opting to settle their dispute via the International Tribunal for the Law of the Sea if this is their common wish? In addition, it seems to me that the submission of a dispute of this nature to the International Tribunal for the Law of the Sea would be, if it occurs, completely exceptional. As I see it, it is difficult to imagine that the admission of such disputes by itlos would signify either a betrayal of the object and purpose of the Convention or the creation of a jurisdiction parallel to that of the icj, as experience would undoubtedly evidence. On the contrary, disputes concerning international customary law of the sea not covered by unclos and mixed disputes are likely to appear and, accordingly, at least hypothetically, likely to be submitted to the Hamburg Tribunal. It would not seem at all unusual in the foreseeable future, that itlos deals with a dispute on a territorial and maritime boundary37 or a dispute regarding an emerging maritime customary rule not declared or envisaged in unclos38 or on both the sovereignty over an 36 37

38

Remiro Brotóns, A., et al., Derecho Internacional, Mc Graw Hill, Madrid, 1997, pp. 848 and 849. For example, regarding the experience of icj, the case concerning the Land and Maritime Boundary between Cameroon and Nigeria, settled by judgment of 10 October 2002; the case on the Maritime Delimitation and Territorial Questions between Qatar and Bahrain, settled by judgment of 16 March 2001, or the Territorial and Maritime Dispute (Nicaragua v. Colombia) settled by Judgments of 13 December 2007 (preliminary objections) and 19 November 2012 (merits). For example, the dispute might refer, in this case, to the existence of the rule or on the opponibility of the said rule to the parties.

Principal Jurisdiction

29

island and the delimitation of the maritime areas surrounding it.39 As suggested previously, the majority of scholars would be closing the doors on these issues if they constrain the jurisdiction of itlos to the strict terms of article 288.2. It is worth mentioning that, at the institutional level, the International Tribunal for the Law of the Sea has prudently avoided any kind of general statement on this topic, probably waiting to deal with it on a case-by-case basis.40 3

Ways of Conferring Jurisdiction on itlos

Once the maximum extent of the parties’ consent has been examined, it is pertinent to analyze how this consent is materialized, that is to say, the ways by which jurisdiction is conferred upon the International Tribunal for the Law of the Sea. From a formal point of view, there are no impositions on the parties for expressing their intention to submit themselves to the jurisdiction of the Tribunal. Hence, according to long standing jurisprudence of the International Court of Justice, such consent may be expressed in writing, orally or even implicitly, in those cases where it can be deduced from conclusive acts that unequivocally prove the will of conferring jurisdiction upon itlos. One other thing is that occasionally, specific forms or solemnities are required either for complying with the conditions imposed for accepting certain types of preconsented jurisdiction (namely, the optional clause) or for meeting the requirements set up by a particular treaty. As regards the issue of time, the intention to submit a case to the Tribunal may be expressed before the dispute arises (ante controversiam) or after it emerges (post controversiam); in this latter case, in turn, consent may be given by special 39 40

As mentioned above, one may think, for example, in the current and complex dispute regarding the South China Sea between China, Vietnam and other States in the area. For State parties to the Convention, the ideal way to clarify this point would be the decennial revision conference as regulated in article 312. Despite addressing compulsory jurisdiction in the context of article 298 unclos, Judge Treves seems to leave this case-by-case door open to mixed land sovereignty and maritime boundary disputes as far as it might depend on several factors, like the way the case is presented by the plaintiff party, which aspects are the prevailing ones, whether certain aspects can be separated from the others and whether the dispute, as a whole, can be seen as being about the interpretation or application of the Convention (Treves, T., “What have the United Nations Convention and the International Tribunal for the Law of the Sea to offer as regards maritime delimitation disputes?”, in Lagoni, R., and Vignes, D. (Eds.), Maritime Delimitation, Nijhoff, 2006, pp. 63–78).

30

chapter 1

agreement (ad hoc) also called compromis, or by means of an implicit agreement (post hoc) also called by its procedural formula: forum prorogatum. Obviously, the pre-consented compulsory jurisdiction of the Tribunal can only be conferred upon it by a common will which is expressed before the disputes arises, for which reason post controversiam jurisdiction is always voluntary by nature.41 3.1 Ante Controversiam Before the dispute arises, the future litigants may have agreed that in case it eventually emerges, its settlement be deferred to a judicial organ and, in particular, to the International Tribunal for the Law of the Sea. In that event, it might occur that the parties establish that, once the dispute has emerged, it can only be submitted to itlos on the condition that both parties agree, thus requiring a new agreement between them, which is the actual way for submitting the dispute post controversiam to itlos. However, it is also possible that, before the dispute arises, the future litigants agree that, once it emerges, any one of them, unilaterally, and without the other’s consent, may bring the case to the Tribunal. This is, evidently, the most interesting hypothesis, as it constitutes the basis for the compulsory jurisdiction of itlos (or to state it more accurately, the only way of conferring pre-consented compulsory jurisdiction upon the Hamburg Tribunal). Since the ratione personae jurisdiction of itlos has not been analyzed yet, and because the said personal jurisdiction is open to non-State entities (including some individuals)42 it would be bold for me to assert categorically here that the principal ratione materiae jurisdiction of itlos can only be conferred upon it via an instrument that is capable of being properly qualified as an international treaty. Nevertheless, it is difficult to deny that almost always, which is not to say “always”, the way to confer ante controversiam jurisdiction on itlos will take the form of a treaty. In this sense, jurisdiction of itlos may come either from a treaty on the general settlement of disputes (multilateral, regional or bilateral), from a substantive law convention in which the parties stipulate the competence of the Hamburg Tribunal for dealing with the disputes concerning its interpretation or application, or from an additional protocol for the settlement of disputes of a substantive law treaty.43 41

42 43

As regards the ways of conferring jurisdiction on the icj, see Casado Raigón, R., La jurisdicción contenciosa de la Corte Internacional de Justicia. Estudio de las reglas de su competencia, Servicio de Publicaciones de la Universidad de Córdoba, Córdoba, 1987, pp. 31 ss. Articles 20 st and 187 unclos. Regarding codification conventions, the optional protocol formula can be found in the four Geneva Conventions of 1958 on the Law of the Sea, in the Vienna Convention on

Principal Jurisdiction

31

To date, there is not a general treaty for the settlement of disputes or an additional protocol conferring jurisdiction on the International Tribunal for the Law of the Sea. Its operative field is thus constrained to agreements involving substantive law within whose stipulations there are provisions for recourse to itlos. In this respect, there are a number of treaties that in one way or another mention itlos among the means for the settlement of disputes. The most important of these treaties, by far, is, obviously, the United Nations Convention on the Law of the Sea, designed to become the main axle of the Tribunal’s jurisdiction. However, there are other treaties to be found in which itlos is expressly or implicitly considered as a mean for settling disputes. Yet among these other treaties, not all grant compulsory jurisdiction to itlos. And further, even among the ones that do, jurisdiction is not granted for each and every dispute that might arise concerning the interpretation or application of those treaties. Hence, it is appropriate to spend some time refining and clarifying the notion of what constitutes compulsory jurisdiction and what, despite solemn declarations, plainly and simply constitutes consensual jurisdiction. 3.1.1 unclos as the Main axle of itlos Jurisdiction 3.1.1.1 A General View of the Dispute Settlement System of unclos It is evident that the United Nations Convention on the Law of the Sea, apart from being the constitutive treaty and the Statute of the International Tribunal for the Law of the Sea, is also a treaty conferring jurisdiction upon itlos to deal with the disputes on its interpretation or application. In this respect, due to its particular extent and complexity, in quality and quantity, and being designed to stand as the main source of jurisprudential work for the Tribunal, it is advisable to examine it in a special block.44 The irruption of unclos on the international scene, apart from becoming a milestone in the evolution of the substantive law of the sea, also signified an inflection point in the evolution of dispute settlement systems of codification conventions.45 To a certain extent, speaking about the settlement of disputes in these types of agreements,

44

45

Diplomatic Relations of 1961 and in the Vienna Convention on Consular Relations of 1963. An interesting comparison between provisions of the three mentioned protocols can be seen in Casado Raigón, R., La jurisdicción contenciosa de la Corte Internacional de Justicia, cit., p. 82, note 8. Clear evidence of its importance is reflected in the sheer volume of works on the unclos system for dispute settlement. Note, the bibliographies prepared by either the doalos or the Registry of itlos. See Casado, La jurisdicción contenciosa…., cit., pp. 87 ss.

32

chapter 1

it may be said that there was a turning point with the Montego Bay Convention. The time before unclos is marked by the reluctance of States to lose their control over the means for settling disputes concerning the interpretation or application of the treaties to which they were parties. This reluctance resulted, firstly, in a reticence towards the incorporation of a system for settlement of disputes inside the body of a treaty, manifested through a preference for an optional protocol formula; secondly, there was even greater reticence towards a system of compulsory settlement of disputes. Instead, there was a preference for a system offering non-compulsory means for settlement of disputes, with consequent preferences for non-jurisdictional solutions or, alternatively, for jurisdictional solutions (arbitration or adjudication) only if based on the consent of all parties; and thirdly, a similar reticence, within whatever limited space remained for compulsory procedures entailing binding decisions, towards adjudication from permanent standing courts in benefit of arbitration. On the contrary, the time after the Montego Bay Convention could be characterized by the break with the optional protocol formula46 and by the mitigation of the reluctance towards both the system for compulsory settlement of disputes as well as settlement through adjudication. To make that change in the trend real, unclos articulates a system for the settlement of disputes which has a rather complex nature, occasionally confusing and ambiguous, but containing a number of contributions. Among those contributions, and apart from the ones mentioned previously, one should underscore: the establishment of a system for pre-consented compulsory settlement of disputes with an effective ambit of application that is also far-reaching in scope, along with the creation of a new judicial organ with universal geographical jurisdiction, namely, the International Tribunal for the Law of the Sea. As has just been pointed out above, not all of the treaties that mention itlos as one among several means for settling disputes concerning their interpretation or application, confer compulsory jurisdiction to the Tribunal; neither do the treaties conferring that kind of jurisdiction upon the Hamburg Tribunal, accept its competence for each and every dispute regarding their interpretation or application, nor under the same conditions. The United Nations Convention on the Law of the Sea is a good example of such international agreements. The inherent complexity involved in the negotiation process of the 1982 Convention (as a consequence of the particular circumstances concurring at the historic moment in which the Third United Nations Conference on The Law of the Sea was being held) put the drafters of unclos 46

As Casado points out (cit.), following unclos, this formula will be employed just sporadically.

Principal Jurisdiction

33

into a difficult position.47 In particular, the authors were facing the “mission impossible” challenge of fitting a system for compulsory settlement within the framework of a system for consensual settlement (or the reverse as well, which is to say, a voluntary system needing to sit easily within that of one for compulsory settlement) while additionally having to address all the conditions previously outlined.48 As if this were not enough, the writers of the Convention were compelled to fit this new major treaty into a context in which it could coexist comfortably with past treaties as well as possible future treaties along with their respective systems for settling disputes. No wonder, in this respect, that, in the words of former President of the International Court of Justice, G. Guillaume, the system for the settlement of disputes of unclos is certainly “creative”. One thing might be added to Guillaume’s claim: as a consequence of  all the factors mentioned above, the system is, unavoidably, strewn with problems. As a consequence of the fact that unclos finds itself called upon to coexist with other treaties on which it is superimposed or on which others superimpose themselves, one thing is needed from the very outset: to coordinate the relation of its innovative system for the settlement of disputes with the equivalent systems of a constellation of treaties both previous and subsequent to unclos.49 47

48

49

Those circumstances not only concerned the substantive contents of the Convention but also the issue of dispute settlement. One can point out, among the first: 1/the belief in the exploitability of the resources of the Area, which was perceived by some as a threat and by others as a hope for their weak economies; 2/the irruption of new maritime zones or consolidation of emerging zones at the time of negotiation (like the eez); 3/the division of the States into multiple interest groups whose affiliation would change based on the topic to be discussed, with the effect that the opponents in one group (for example, dealing with the regime of the Area) were allies in others (for example, coastal States versus fishing States), etc. As regards the settlement of disputes, we can underline as concurrent circumstances, among others: 1/the requirement by some States of a compulsory jurisdiction to guarantee the effectiveness of the system; 2/the requirement by others of some spaces “off-limits” to the said compulsory jurisdiction; 3/the rejection by some others to the International Court of Justice as a consequence of the South West Africa cases. An effective settlement system, a compulsory settlement system as a guarantee for effectiveness, exceptions to the compulsory procedures, flexibility regarding the choice of forum, flexibility regarding the procedures for settling the disputes, etc. In addition, the long “waiting period”, from its adoption in 1982 to its general entry into force in 1994 has made the coexistence of unclos with the treaties prior to it even more complicated. The wait has led to the emergence of a number of treaties that we could call “contemporary” with the Convention, whose relation with the latter, as the Southern Bluefin Tuna cases show, is rather more complex.

34

chapter 1

Moreover, as a consequence of the establishment of compulsory proceedings entailing binding decisions, it is also necessary: 1/to arbitrate, make compatible and coordinate the interplay between such compulsory jurisdiction and the classical principles of the peaceful settlement of disputes and, in particular, the free election of means; 2/to regulate, accordingly, the relation between compulsory proceedings entailing binding decisions of unclos,50 with compulsory proceedings entailing binding decisions chosen by the parties for particular disputes; 3/to offer formulas so that the previous use of nonjurisdictional means, or the failure of prior arbitration or adjudication51 (due to inadmissibility or lack of competence) do not become an excuse for eluding compulsory jurisdiction unless the parties so agree; and 4/to make this system compatible with the optional clause system of article 36.2 of the Statute of the International Court of Justice.52 Finally, as a consequence of the recognition of areas excluded from compulsory jurisdiction and the need of using open formulas regarding the choice of fora, it is indispensable as well to: 1/define which areas will be closed to compulsory jurisdiction; decide whether all of them are automatically excluded from it or if they require an “opting out” declaration (forcing them to remain within the compulsory system in the absence of a statement); and further decide whether the compulsory system will be the rule or the exception, etc.; and 2/offer, as regards the fora for the settlement of disputes, open formulas for overcoming the reluctance of some States towards some of those means (by the time of the Third Conference, in particular, the reluctance towards the International Court of Justice was noteworthy). The result, in this respect, is a settlement system which appears extensive (more than 100 articles in a treaty of around 400), complex (in response to all those above mentioned questions, needs and problems) and, of course, sometimes ambiguous, confusing and inaccurate; but also flexible, open and actually “creative”, as it results from a number of innovations that have been introduced, like the following: a. b.

The insertion of settlement clauses in the text of the Convention as an integral part of it, thus abandoning the formula of the facultative protocol. The introduction of a system for compulsory settlement of disputes with numerous exceptions (automatic and optional)53 but also with true and

50 Part xv, Chapter 1, Section 2. 51 Articles 281.1 and 283. 52 Article 282. 53 Section 3 Part xv.

Principal Jurisdiction

c.

d. e.

35

significant room for compulsory procedures entailing binding decisions,54 which are the default procedures,55 thus leaving far behind the precedent set by the 1969 Vienna Convention on the Law of Treaties. The creation of a new international judicial organ with global geographical competence, whose contentious jurisdiction, clearly oriented to a specialization in law of the sea, overlaps with the more general competence of the International Court of Justice. The opening of that tribunal (itlos) to certain international organizations, in some situations,56 and even to private entities or persons, in some specific cases,57 exceeding the ratione personae jurisdiction of the icj.58 The use of open formulas, like that resulting from the “Montreux Com­ promise”, which allows a choice from among four different fora, although conferring residual jurisdiction on one of them (the Annex vii arbitration) in the event that a choice is not made or the choice is discordant.59

If we now focus on the 1982 Convention as a means of ante controversiam compulsory jurisdiction for the Hamburg Tribunal, its system for dispute settlement is basically composed of Part xv (arts. 279 to 299), Section 5 of Part xi (arts. 186 to 191), Annexes V on Conciliation (14 articles), vi containing the Statute of the International Tribunal for the Law of the Sea (41 articles), vii on Arbitration (13 articles) and viii on Special Arbitrations (5 articles); articles 74.2 for the exclusive economic zone, 83.2 for the continental shelf, both referring to Part xv for certain disputes concerning the said maritime spaces; article 264, on marine scientific research, referring to Sections 2 and 3 of the said Part xv for certain disputes related to the Part xiii of the Convention; articles 73, 220 and 226, in relation to article 292; and articles 59 and 265 unclos and 7 of Annex ix.60 Obviously, a great majority of the aforementioned provisions refer to disputes concerning the interpretation or application of the Convention itself up to the 54 55 56 57 58 59 60

Basically, those concerning the seabed Area, prompt release, the marine environment and the freedoms of navigation and overflight. Article 286. For example, the International Seabed Authority and the European Union. Article 187. Article 34.1 icj Statute. Article 287.3 and 5 unclos. These three last are quoted by Casado (Casado Raigón, R., “Règlement des différends”, in Vignes, D., Casado, R., Cataldi, G., Droit international de la peche maritime, Bruylant, Bruxelles, 2000, p. 322, note 15).

36

chapter 1

point that only a few provisions,61 which extend the jurisdiction of the fora listed in article 287 beyond disputes concerning unclos, implicitly support the extension of the system to disputes situated outside the scope of the Convention. Regarding disputes concerning the interpretation or application of the 1982 Convention, the keystone of the system is Section 1 of Part xv (articles 279 to 285), along with article 286. In this respect, we can deduce that, above anything else, the will of the parties prevails. They are free to exclude the application of the Convention’s settlement system and opt for one of their choosing, or to decide not to apply any system at all. In the absence of an agreement, the general rule is, in principle, the submission of the dispute to the compulsory procedures entailing binding decisions (art.286); however, qualitatively speaking, a significant number of the disputes that might fall under the compulsory settlement system are directly excluded from it (art. 297) and another remarkable number of disputes can be also excluded by means of a voluntary declaration (art. 298). Keeping all of that in mind, which disputes, among those concerning the interpretation or application of the 1982 Convention, could be considered to fall under the compulsory jurisdiction of the International Tribunal for the Law of the Sea? To answer this question, we should first determine the requirements that any dispute might fulfill to be compulsorily submitted to itlos. Those requirements could be listed as follows: a. b.

c.

61 62 63 64

In the first place, the dispute should be qualified properly as a dispute concerning the interpretation or application of the Convention. In the second place, the said dispute concerning the interpretation or application of the Convention should fall under the settlement of disputes system of the said treaty, because the parties, in exercising their freedom to choose the means for settling their dispute, may have decided a procedure other than that offered by unclos.62 In the third place, the dispute falling under the settlement system of unclos should particularly fall under its compulsory settlement system because not all disputes concerning the interpretation or application of the Convention and falling under its settlement system are submitted to its compulsory procedures entailing binding decisions; there are disputes  that can be either automatically63 or voluntary64 excluded from such procedures. To my knowledge, articles 288.2 unclos and 21 st. Articles 279 to 285. Article 297. Article 298.

Principal Jurisdiction

d.

37

Finally, in the fourth place, the disputes falling under the compulsory settlement system of unclos, should fulfill the requirements for being compulsorily submitted to itlos; there are many disputes submitted to the compulsory procedures entailing binding decisions which fall outside the scope of the compulsory jurisdiction of the Hamburg Tribunal.65

3.1.1.2 Disputes Concerning the Interpretation or Application of the Convention For a dispute concerning the Law of the Sea Convention to be compulsorily submitted to the International Tribunal for the Law of the Sea, what is required first of all is that a dispute between the parties exists and, in the second place, that the said dispute, in effect, concerns “the interpretation or application” of the Convention. As regards the existence of a dispute, the contentious jurisdiction of an international court or tribunal obviously does not cover every situation, every tension or conflict of interests that might arise between the parties, but only those which might be qualified properly (in procedural terms) as a dispute. In this respect, the classical definition offered by the Permanent Court of International Justice in the case concerning the Mavrommatis Palestine Concessions, contemporarily accepted and adapted by its successor, the International Court of Justice, has been fully assumed by itlos. An example surfaces in the Southern Bluefin Tuna cases, in which it was expressly affirmed that “in the view of the Tribunal, a dispute is a ‘disagreement on a point of law or fact, a conflict of legal views or of interests’ (Mavrommatis Palestine Concessions (…))”.66 Along the same lines, the Hamburg Tribunal also assumes a constant jurisprudence of the icj, according to which: “it is not sufficient for one party in a contentious case to assert that a dispute exists with the other party. A mere assertion is not sufficient to prove the existence of a dispute any more than a mere denial of the existence of the dispute proves its non-existence. Nor is it adequate to show that the interests of the two parties in such a case are in conflict”.67 In this respect, expressly quoting and applying the stated principle, itlos affirms that “it must be shown that the claim of one party is positively opposed by the other (South West Africa, Preliminary Objections, and Judgment (…))”.68 65 Articles 286 to 288, inter alia. 66 Respectively, itlos Order of 27 August 1999, para. 44 and pcij Judgment of 30 August 1924 (pcij Series A, n° 2, p. 11). 67 South West Africa cases, Preliminary Objections, Judgment of 21 December 1962 (icj Reports, 1962, page 328). 68 itlos Order of 27 August 1999 in the Tuna cases, paragraph 44. In the Tuna cases, the Respondent, Japan, alleged that the case involved “nothing more than a disagreement about a

38

chapter 1

As for the definition of disputes concerning the interpretation or application of the Convention, this expression is used in several articles in Part xv. It is a term frequently employed in the settlement provisions of all kind of treaties, prior and after unclos, bilateral or multilateral. It was even employed by the Institut de Droit International in its L’élaboration d’une clause modèle de compétence obligatoire de la Cour internationale de Justice, in which a number of those treaties were inspired. To a certain extent, it may be said that this clause has been standardized.69 Although technically speaking it has been claimed that it is possible to distinguish between disputes concerning the interpretation and disputes concerning the application of an international treaty,70 the inclusion of the disjunctive conjunction “or” between them, is in itself sufficient enough, for the controversy falling under the ambit of whichever part of the phrase to fulfill the requirement.71 Hence, at least regarding unclos, it is not necessary, for practical reasons, to establish a difference between one and the other. Accordingly, the chances for a dispute connected to the content of unclos to be deemed, for judicial purposes, as a dispute concerning the interpretation or application of the Convention are certainly broad; even taking the expression in its strictest literal meaning. Moreover, even in the case that the copulative conjunction “and” were used, the chances for a dispute connected to unclos being considered as a dispute “concerning the interpretation and application” of that treaty would still be great. As Judge Shahabudden stated, in the case of the Applicability of the Obligation to Arbitrate under Section  21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion of 26 April 1988, “since it is not possible to interpret a treaty save with reference to some factual field (even if taken hypothetically) and since it is not possible to apply matter of science”, adding that “The difference of views between Australia and New Zealand, on the one hand, and Japan, on the other, is about factual issues” (Statement in Response, paras. 44 and 47), to conclude that “the disputes are scientific rather than legal” (Order, cit., para. 42). However, The Hamburg Tribunal rejected such affirmation and stated that “in the view of the Tribunal, the differences between the parties also concern points of law” (Order, para. 43). 69 Regarding this topic before the Institut de Droit international, see its sessions of Siena (Report by P. Guggenheim ); Aix-en-Provence (Report by P. Guggenheim, Project Resolution and Discussion on the topic ) and Granada (Discussion and Resolution ). 70 See Judge Schwebel, Separate Opinion to the icj’s Advisory Opinion of 26 April 1988 in the case of the Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (cij Recueil, 1988, pp. 42 ss. ). 71 See Commentary, vol. v., 279.6.

Principal Jurisdiction

39

a treaty except on the basis of some interpretation of it, there is a detectable view that there is little practical, or even theoretical distinction between the two elements of the formula”.72 As the Judge recalls,73 the pcij warned that “it was not necessary to satisfy both elements of the phrase taken cumulatively, the word “and” falling to be read disjunctively”.74 Nevertheless, as we have seen, this has not been the case insofar as the authors of unclos opted for the broadest language. Moreover, both scholars and international jurisprudence frequently coincide in considering that the expression “dispute concerning the interpretation or application” of an international treaty must be interpreted, beyond its strict text, in a broad sense, covering, as Paul Guggenhein stated in his Report for the Institut de Droit international, “toute la gamme des différends juridiques possibles au sujet d’une Convention ou d’une Résolution”.75 As Judge Shahabudden himself pointed out in the afore-mentioned case, “it seems arguable that the two elements constitute a compendious term of art generally covering all disputes as to rights and duties having their source in the controlling treaty”.76 The aforesaid notwithstanding, no matter how much leeway the expression is given, it is still necessary to draw a dividing line between disputes concerning the interpretation or application of unclos and disputes that do not concern the interpretation or application of that international convention. As noted by Judge Shahabudden, this time in his Opinion on the icj Judgment of 12 December 1996 in the case concerning Oil Platforms (Preliminary Objections) in reference to a less extensive treaty than unclos: “reason says that there must equally be a limit beyond which it is not possible for a dispute as to the interpretation or application of a treaty to arise in relation to matters to which the treaty does not apply; beyond that limit, the compromissory clause no longer operates to confer jurisdiction. Where is that limit to be drawn?” In his opinion, “The location of the limit beyond which it is not possible for a dispute to arise as to the interpretation or application of a treaty within the meaning of its compromissory clause depends on the relationship between the claim and the treaty on which the claim is sought to be based”.77 The frequent use of the expression “dispute concerning the interpretation or application” in the jurisdictional clauses of a number of treaties of all kinds has led the icj to declare on various occasions what conditions a dispute must 72 Separate Opinion (cij Recueil, 1988, pp. 57 ss (p. 59)). 73 Cit., p. 59. 74 Case on Certain German Interests in the Polish Upper Silesia (cpji Series, A, n° 6, p. 14). 75 Session of Siena, cit., p. 461. 76 Separate Opinion, cit., p. 59. 77 icj Reports, 1996, pp. 822 ss.

40

chapter 1

comply with to be properly considered as such. From The Hague Court’s jurisprudence the following may be deduced: 1.

2.

On the one hand, there must be at least a connection or link between the dispute and the treaty on which it is based78; such a link must be substantial79 or, at least, “reasonable”,80 in the sense that “some genuine relationship between the complaint and the provisions invoked”81 may be established. In this respect, the tribunal must check whether “the arguments advanced by the Government in respect of the treaty provisions on which the (…) claim is said to be based, are of a sufficiently plausible character to warrant a conclusion that the claim is based on the treaty”; or, in other words, “that the Government is relying upon an arguable construction of the treaty, that is to say, a construction which can be defended whether or not it ultimately prevails”.82 On the other hand, the tribunal will lack jurisdiction and, therefore, it must declare itself non competent, when it reaches the conclusion that there is no link between the claim and the treaty at stake83 or that the said link “is merely an artificial connection”.84

A good example of this is offered by the recent practice of itlos in the M/V Louisa case, in which after considering the cataract of provisions invoked by the applicant (Saint Vincent and the Grenadines) as the basis of its jurisdiction85 and the objections raised by the respondent (Spain), the Hamburg Tribunal reached the conclusion that “no dispute concerning the interpretation or application of the Convention existed between the Parties at the time of the filing of the Application and that, therefore, it has no jurisdiction ratione materiae to entertain the present case”.86 78 79 80 81 82 83 84 85 86

pcij, Mavrommatis Palestine Concessions case, n° 2, cit. p. 29, a sensu contrario. Advisory Opinion of 23 October 1956, on the Judgments of the Administrative Tribunal of the ilo upon Complaints made against unesco, para. 89 (icj Reports, 1956). Case concerning Military and Paramilitary Activities in and against Nicaragua ( Jurisdiction and Admissibility), Judgment of 26 November 1984, para. 81 (icj Reports, 1984). Advisory Opinion on the Judgments of the Administrative Tribunal of the ilo, cit., para. 89. Emphasis added. Ambatielos case, Judgment 1 July 1952, para. 18 (icj Reports, 1952). Case of Mavrommatis, Jaffa claims, cit., p. 29. Advisory Opinion on the Judgments of the Administrative Tribunal of the ilo, cit., para. 89. Emphasis added. Articles 73, 87, 226, 227 and 303, alleged in time, plus article 303, alleged untimely after the closure of the written proceedings (Judgment of 28 May 2013, paras. 96 ss.). Judgment, paragraph 151 and operative paragraph (n. 160).

Principal Jurisdiction

41

Obviously, in order to carry out that jurisdictional test, to determine whether a dispute does or does not fall within the ambit of a treaty, some work on the interpretation of that treaty must be done, at least to set forth its scope for the purposes of specifying its link with the dispute. Nevertheless, in the jurisdictional phase, that is, to simply determine whether the tribunal is competent to deal with the case, whatever the solution on the merits be, it is enough to carry out a provisional interpretation, that is, a superficial one, which might be different from the final in-depth interpretation. Like the icj said in the Interhandel case “the interpretation of these terms is a question of international law which affects the merits of the dispute. At the present stage of the proceedings, it is sufficient for the Court to note that Article iv of the Washington Accord may be of relevance for the solution of the present dispute and that its interpretation relates to international law”.87 Two cases have caused objections to be raised about the idea that, by not falling solely under the scope of unclos but under that of another treaty as well, a dispute might actually be considered as a dispute concerning the interpretation or application of the latter treaty and, accordingly, be submitted to the settlement procedures regulated by that treaty instead of those set forth in the 1982 Convention. Can a dispute concerning the interpretation or application of unclos be at the same time a dispute concerning the interpretation or application of another treaty? Or vice versa: can a dispute on the interpretation or application of an international treaty be at the same time a dispute concerning the interpretation or application of unclos? The point was raised first in the Southern Bluefin Tuna cases (both before itlos, in the provisional measures stage, and before the Annex vii Arbitration, in the jurisdictional phase), and subsequently in the mox Plant case (also before itlos, in the phase of provisional measures, and before an Arbitral Tribunal constituted according to Annex vii unclos to deal with the case). In the Tuna cases, both before itlos and the Annex vii Arbitral Tribunal, the plaintiffs (Australia and New Zealand), in order to justify the application of the compulsory procedures entailing binding decisions of unclos and thus the jurisdiction of the aforementioned tribunals to deal with the provisional measures request and with the merits, respectively, claimed that Japan, by designing and putting into motion an experimental fishing program,88 had

87 88

Judgment of 21 March 1959, para. 24 (icj Reports, 1959). itlos, Order of 27 August 1999, para. 44. See also the Arbitral Award of 4 August 2000, para. 31, where it is noted the “Japan’s failure to conserve, and to cooperate in the conservation of the sbt stock, as manifested, inter alia, by its unilateral experimental fishing for sbt in 1998 and 1999.”

42

chapter 1

v­ iolated not only the 1993 Convention on the Conservation of the Bluefin Tuna (ccsbt) but also several provisions of unclos and the general international Law.89 For this reason, the applicants opined that the dispute, independent of being or not being a dispute on the interpretation or application of the said 1993 Convention, was, in any event, a dispute concerning the interpretation or application of the 1982 Law of the Sea Convention.90 Japan objected to this claim before both tribunals, arguing, inter alia, that the late invocation to the Law of the Sea Convention and general customary law by Australia and New Zealand was “an artifice to enable the Applicants to seek provisional measures from itlos and to evade the consensual requirements of article 16 of the 1993 Convention”.91 In this respect, Japan stated that in the original characterization of the dispute, the plaintiffs “protested in the context only of the ccsbt and made no mention of unclos”. Within this context Japan affirmed that “the dispute concerns the interpretation of the Convention of 1993 and does not concern the interpretation or application of the Convention on the Law of the Sea”.92 The second instance is centered on the mox Plant case. The applicant (Ireland) claimed that the respondent (the United Kingdom), by establishing and running a plant for producing the nuclear fuel mox (Mixed Oxide), it had violated several provisions of unclos. Accordingly, in the view of the plaintiff, the dispute “concerns the interpretation and application of certain provisions of the Convention, including, in particular, articles 123, 192 to 194, 197, 206, 207, 211 and 213 thereof”.93 For its part, the United Kingdom, without denying that the dispute concerned the interpretation or application of the 1982 Convention, objected that “the main elements of the dispute (…) are governed by the compulsory dispute settlement procedures of the ospar Convention or the ec Treaty or the Euratom Treaty”.94 Accordingly, in its view, by applying article 282 unclos, neither the Hamburg Tribunal nor the Annex vii Arbitral Tribunal were competent to entertain the case.95 The said objection, for its part, was countered by Ireland’s claim that “the rights and duties under the Convention, 89 90

91 92 93 94 95

Award, para. 27. In particular, during several moments of the proceedings, it was alleged that articles 64 and 116 to 119 unclos had been violated (itlos Order, paras. 45 and 48). Award, Request for Provisional Measures by Australia and New Zealand and oral interventions by Mansfield and Crawford as advocates of those States in the hearings before itlos. Award, para. 38a. itlos, Order of 27 August 1999, para. 46; Arbitral Award, paras. 34, 38a and 48. Emphasis added. itlos Order on provisional measures of 3 December 2001, para. 36. Order, cit., para. 43. Order, paras. 38 and 44.

Principal Jurisdiction

43

the ospar Convention, the ec Treaty and the Euratom Treaty are cumulative, and, as a State Party to all of them, it may rely on any or all of them as it chooses”;96 hence, “the dispute concerns the interpretation or application of the Convention and does not concern the interpretation or application of either the ospar Convention or the ec Treaty or the Euratom Treaty”.97 In each of these cases, the opinion of itlos and that of the Annex vii Arbitral Tribunal coincide in recognizing that the dispute submitted to them concerns the interpretation or application of unclos. However, there is a remarkable difference between itlos (in both, the Tuna cases and the mox Plant case) and the Arbitral Tribunal in the Tuna cases on one critical point: In the Tuna cases, after relying on the icj’s Judgment of 4 December 1998, in the Fisheries Jurisdiction case (Spain vs. Canada),98 by which the Hague Court invests itself with the power to determine the real dispute submitted to it,99 the Arbitral Tribunal reaches the conclusion that “the dispute between Australia and New Zealand, on the one hand, and Japan on the other (…), while centred in the 1993 Convention, also arises under the United Nations Convention on the Law of the Sea”.100 For its part, itlos, both in the Tuna and mox Plant cases, constrains itself to an identical position: it limits itself to confirm the existence of a dispute concerning the interpretation or application of the 1982 Convention regardless of whether or not the dispute concerns the interpretation or application of other international treaties simultaneously in force between the parties. Particularly, in the Tuna cases, the Hamburg Tribunal, after considering that the conduct of the parties in the Commission for the Conservation of the Southern Bluefin Tuna, which was established pursuant to the 1993 Convention, was relevant to evaluate “the extent to which the parties are in compliance with their obligations under the Convention on the Law of the Sea”,101 and after stating that the fact that the 1993 Convention applies between the parties “does not exclude their right to invoke the provisions of the Convention on the Law of the Sea in regard to the conservation and management of southern bluefin tuna”,102 it 96 97 98 99

Order, para. 47. Order, para. 45. Emphasis added. Arbitral Award, para. 48. icj Judgment, paras. 30 and 31. On the Spanish side, an extensive and critical analysis of the Judgment was the subject of a special issue of the Revista Española de Derecho Internacional (vol. li, 1999, 1), where some of the most relevant experts in the country gave their opinion on the matter. 100 Arbitral Award, para. 52. Emphasis added. 101 Order of 27 August 1999, para. 50. 102 Order, cit., para. 52.

44

chapter 1

reaches the conclusion that, “in the view of the Tribunal, the fact that the Convention of 1993 applies between the parties does not preclude recourse to the procedures in Part xv, Section  2, of the Convention on the Law of the Sea”.103 On the other hand, itlos appears somewhat clearer in the mox Plant case. Probably in view (and in response) to the findings of the Annex vii Arbitral Tribunal in the Tuna cases, the Hamburg Tribunal firmly states: 1/that the dispute settlement procedures of the ospar Convention, the ec Treaty and the euratom Treaty “deal with disputes concerning the interpretation or application of those agreements, and not with disputes arising under the Convention”;104 2/that “even if [the three mentioned treaties] contain rights and obligations similar to or identical with the rights or obligations set out in the Convention, the rights and obligations under those agreements have a separate existence from those under the Convention”;105 and 3/that “the Tribunal is of the opinion that, since the dispute before the Annex vii Arbitral Tribunal concerns the interpretation or application of the Convention and no other agreement, only the dispute settlement procedures under the Convention are relevant to that dispute”.106 Furthermore, the position of itlos, seemed to have been given support by the second Annex vii Arbitral Tribunal in history, which was constituted for the mox Plant case. In its Order n°3, of 24 June 2003, just before deciding the suspension of the proceedings, the Arbitral Tribunal, after analyzing, prima facie, its own jurisdiction, appeared to follow the same pattern as itlos by constraining itself to verifying that the dispute “concerns the interpretation and application of the Convention”,107 regardless of whether or not the dispute simultaneously concerns another international treaty.108 103 Order, para. 55. itlos reaches this conclusion even despite the fact that from the position of Australia and New Zealand it can be deduced that they implicitly admit, as did Japan, that a dispute on the interpretation and application of 1982 Convention and other treaty could occur at the same time. 104 Order, para. 49. Emphasis added. 105 Order, para. 50. 106 Order, para. 52. Emphasis added. 107 Order 3, para. 14. More emphatically, the Arbitral Tribunal affirms that the dispute “clearly concerns” such interpretation and application (cit.). 108 In this respect, the mox Plant Arbitral Tribunal states that “It is true that the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (the ospar Convention) is relevant to some at least of the questions in issue between the Parties, but the Tribunal does not consider that this alters the character of the dispute as one essentially involving the interpretation and application of the Convention” (sic) (Order 3, para. 18).

Principal Jurisdiction

45

In light of what has just been said, can a dispute concerning the interpretation or application of unclos be, simultaneously, a dispute concerning the interpretation or application of another international treaty, as the Arbitral Tribunal holds in the Tuna cases? Or, on the contrary, as affirmed by itlos, for the purpose of determining whether the dispute does or does not fall under the compulsory procedures entailing binding decisions of unclos, may one characterize the said dispute as simply concerning the interpretation or application of the 1982 Convention regardless of the fact that it might also concern the interpretation or application of another international treaty?109 The answer to this question is important, in my opinion, because it affects the interpretation of, among others, articles 280 to 282 and 286 unclos, that is, those determining the scope of the settlement of disputes system of unclos itself. If one considers that a dispute may simultaneously be qualified as a dispute that concerns the interpretation or application of the 1982 Convention and other international treaties as well, it opens up the possibility that the system of dispute settlement in other treaties could be employed, instead of that regulated by unclos, even if that occurrence does not ultimately lead to a compulsory procedure entailing a binding decision. However, if one considers that, for the purposes of submitting a dispute to the settlement system of a treaty (for example unclos), the primary issue is whether or not the said dispute concerns the interpretation or application of that treaty regardless of the fact that it might also concern the interpretation or application of another treaty (fitted with its own settlement system), then the chances of avoiding the settlement system of the treaty at issue (unclos, in our example) are clearly less. To sum up, the essential point is this: the scope of the system of dispute settlement under unclos is considerably limited if one accedes to the position followed by the Annex vii Arbitral Tribunal in the Tuna cases. Contrarily, such scope is far greater if one endorses the position of itlos. Limiting myself to the question posed above, it is my opinion that the bases upon which itlos relies for its arguments are more solid than the ones offered by the Annex vii Arbitral Tribunal in the Tuna cases. It is my humble opinion that, by adhering itself to the position held by the International Court of Justice on the Fisheries Jurisdictions case (Spain v. Canada), the Arbitral Tribunal in the Tuna cases110 put itself on shaky ground. In its Judgment of 4 December 1998, the icj empowers itself “[to] determine the

109 With regard to this, see the questions that the Annex vii Arbitral Tribunal raises in its Order, paragraphs 48 and 50. 110 See the Arbitral Award, para. 48.

46

chapter 1

real dispute that has been submitted to it”,111 for which “it will base itself not only on the Application and final submissions, but on diplomatic exchanges, public statements and other pertinent evidence”.112 In my view, this operation might exceed the jurisdictional powers of an international court or tribunal.113 As I see it, what the Arbitral Tribunal in the Tuna cases (following the lead of the icj) calls “the real dispute” is not actually such a “real dispute” but rather the “procedural” dispute that has been submitted to it by the parties involved. In general terms, the determination of the particular elements of such a procedural dispute is made initially by the applicant (or claimant), subsequently by the respondent and finally by the court or tribunal itself in light of the allegations of the parties. Assuming that a dispute is, as said above, a “disagreement on a point of law or fact, a conflict of legal views or of interests”,114 one must take into account that a court or tribunal does not know the reality of the conflict “as is” but the reality of the conflict “as is presented”. The parties involved submit pleas, both written and oral, offer their evidence and their perspectives, all of which absolutely condition the knowledge of the case gained by the court or tribunal. It is perfectly possible to draw a line of division between a real dispute, which is a dispute that globally confronts the parties, and what we are calling here a “procedural” dispute, which is a dispute submitted by the conflicting parties to the tribunal or court and must be dealt with and adjudged by it. In my opinion, what the Annex vii Arbitral Tribunal did in the Tuna cases, was get carried away by the clever defensive argument made by Japan that there existed but a unique, single dispute that concerned both the interpretation or application of unclos and the interpretation or application of another treaty. The strategy was to confuse a real dispute with a procedural dispute. This, of course, allowed the Arbitral Tribunal to reach the most comfortable solution from the political or diplomatic point of view,115 but not the most correct from the juridical perspective. 111 Judgment of icj in the Fisheries Jurisdiction case (Spain v. Canada), paras. 30 and 31. 112 Ibid. 113 See the Dissenting Opinion handed down by Judge Ad Hoc Torres Bernárdez. In the opinion of some Spanish scholars, the icj, in this case, runs contrary to a number of its own previous judgments. See, in this respect: Casado Raigón R., “¿España c. Canadá o España/ Canadá? El objeto de la controversia en la sentencia de la cij de 4 de diciembre de 1998”, redi, vol. li, 1999, 1, pp. 131 ss. 114 Mavrommatis Palestine Concessions, cpji 1924, Serie A, n° 2, p. 11. 115 Japan cleverly mentioned the dramatic complication that the support to the opposite position would bring with it. In particular, the Japanese delegation warned of the need for an extensive revision of all dispute settlement systems involving a great number of international treaties coinciding on matters with unclos, and the need to accommodate or coordinate them, to a significant extent, with the settlement system of the Convention.

Principal Jurisdiction

47

What can be gleaned from following the itlos reasoning, particularly in the mox Plant case, is that what concerns the judge is the dispute as submitted to the court by the parties involved, independent of the actual dispute from which it proceeds; this last, the real dispute, can also generate other disputes that might also be submitted to other courts or tribunals through other means for settlement. As stated by Judge K. Keith, in his Dissenting Opinion to the arbitral Award in the Tuna cases, “that the disputes may or may not also concern the interpretation or implementation of the ccsbt is beside the point”.116 As the Hamburg Tribunal observed in its Order on Provisional Measures in the mox Plant case (an Order that relied on the jurisprudence of the European Court of Human Rights and the then European Communities Court of Justice): “the application of international law rules on interpretation of treaties to identical or similar provisions of different treaties may not yield the same results, having regard to, inter alia, differences in the respective contexts, objects and purposes, subsequent practice of parties and travaux préparatoires”.117 As Judge Wolfrum notes, in his Separate Opinion on the Order: “There is frequently a parallelism of treaties, both in their substantive context and in their provisions for settlement of disputes arising thereunder. However, a dispute under one agreement, such as the ospar Convention, does not become a dispute under the Convention on the Law of the Sea by the mere fact that both instruments cover the issue”.118 Moreover, as Judge Jesus recognizes in his Separate Opinion on the same decision: “if, on the contrary, the Tribunal were to be convinced that we were before exactly the same dispute, arising under the two conventions, then the article 282 would have the ospar Convention procedure prevailing over the Law of the Sea Convention procedures”.119 116 Kennet Keith, Dissenting Opinion, para. 12. 117 Order, itlos, para. 51. The Law of the Sea Tribunal doesn’t mention the said decisions, which are quoted by Judges Wolfrum and Treves in their Separate Opinions. They are the Judgment of the echr on Preliminary Objections in the Loizidou case, of 25 February 1995, paras. 82 to 85, and the Judgment of the European Communities Court of Justice in the Hauptzollamt Mainz v. C.A. Kupferberg case, of 29 October 1982, para. 21. (In particular, in this second case, the ec Court states that “provisions in an international agreement and in the ec Treaty having the same object, nevertheless, have to be (…) considered and interpreted in their own context (…)”). 118 R.Wolfrum, Separate Opinion, p. 1. See also the Separate Opinion by Judge Treves in the same case. Against the implementation of the doctrine of treaty parallelism in the terms itlos employs it, see: Kwiatkowska, B., “The Ireland v. United Kingdom (mox Plant) Case: Applying the Doctrine of Treaty Parallelism”, ijmcl, vol. 18 (1), March 2003, pp. 1–58. 119 J.L. Jesús, Separate Opinion, para. 8. Emphasis added.

48

chapter 1

A different point is, obviously, the political consequences of that doctrine upheld by itlos. In this respect, the greater scope of the unclos disputes settlement system will also bring with it an extension of the situations where the said system will overlap the systems of other international treaties prior to the 1982 Convention. In turn, this will force those preferring to avoid unclos procedures, to expressly deal their exclusion for their mutual disputes. How far-reaching is this interpretation by itlos? At the moment, no further than what has already been presented here. Account must be taken of the fact that the Hamburg Tribunal’s position has been held in two cases of prima facie, non-final determination of its competence and the competence of another forum (an Annex vii Arbitral Tribunal to be constituted to deal with the dispute);120 on the other hand, in order to avoid any kind of apriorism, account must also be taken of the complex nature of the net of relations between unclos and other treaties and their respective systems for settlement. In this regard, it is evident that not all overlaps are identical: the 1982 Convention derogates prior regimes, codifies conventional and customary pre-existing law, serves as a framework or umbrella for prior, contemporary and even posterior law, and is the origin of new law that emerges from it even before it entered into force.121 3.1.1.3 Disputes Not Submitted to the Settlement System of unclos and Disputes Submitted to it A Approach

Assuming that a dispute is qualified as a dispute concerning the interpretation or application of the Convention, for it to fall under the compulsory jurisdiction of itlos in accordance with that treaty, it is necessary, in addition, that the said dispute fall under the settlement system of unclos. Although the system established by the Law of the Sea Convention refers to all disputes concerning its interpretation or application, not all of them are covered by its voluntary or compulsory procedures. It is possible that the parties, in the exercise of their freedom to choose the means for settling their dispute, have chosen or prefer to submit the dispute to another system instead of the one offered by unclos. Obviously, once they exclude the dispute from the settlement system of the 1982 Convention, nothing prevents them from 120 Article 290. 121 Another additional factor of complexity is the lapse of time between the adoption of the Convention (10 October 1982) and its entry into force, either general (16 November 1994) or particular, at the time of connecting that treaty with other treaties celebrated in the interim.

Principal Jurisdiction

49

choosing the option of compulsory submission to itlos;122 however, in such an event, the compulsory jurisdiction of the Hamburg Tribunal would come from that new agreement, not from unclos itself. On the other hand, the parties, likewise in the exercise of their freedom to choose, may, by mutual consent, limit themselves to simply making the decision that the dispute not be submitted to the settlement procedures of the Convention at all, and further deciding not to designate an alternative means for settlement; they may even decide to leave the dispute unresolved for the moment. In order to determine the common will of the litigants, it is obvious that any difficulties will be few when their decision is expressly put on record, and it refers ad hoc to a clearly identified, concrete dispute concerning the interpretation or application of the Convention. However, this is not very frequent. It is much more probable to encounter bordering situations for which the incumbent permanent or arbitral tribunal itself is called, in the exercise of its competence de la competence, to investigate whether or not there is a true common will among the parties that precludes the dispute from the settlement procedures of unclos. The possibilities, in this respect, are numerous. The set of conditioning factors that affected the drafting of unclos Part xv, as a result of the package deal spirit that inspired the entire Convention, makes the equation frequently complicated. Among those factors we can quote here, for example: 1/the need to ensure respect for the general principles of international law regarding dispute settlement, particularly the freedom to choose the means for settling the dispute; 2/the need to co-ordinate the coexistence of unclos (and its settlement system) with all prior and subsequent treaties with which it may overlap (as well as their respective settlement systems); 3/the need to coordinate the settlement systems of both unclos and other treaties with the optional clause system regulated by article 36.2 of the icj Statute; 4/the need to respect the philosophy of the compulsory settling of disputes, that would both prevail and inspire the entire system for settling disputes within unclos. All these variables, along with others, must be considered by the corresponding court or tribunal, on a case-by-case basis, to decide on its own jurisdiction. Obviously, it is not pertinent here to examine each and every hypothesis that may arise. Nonetheless, insofar as it affects the settlement system of the Law of the Sea Convention, among whose procedures appears itlos, I find it convenient, at least, to put “on the table” those questions of major interest and the factors to be taken into account when searching for a response to them.

122 For example, the parties agree that a dispute to which article 297 unclos refers to conciliation may be compulsorily submitted to itlos.

50

chapter 1

So as to the questions, I find the following particularly relevant: Firstly, would it be possible for the parties to have agreed to submit a dispute concerning the interpretation or application of the 1982 Convention to another procedure different to those established by the said treaty even before the ­celebration of the 1982 Convention? And if the answer is in the affirmative, how would one co-ordinate the co-existence of the settlement system under unclos with those established in such prior or “simultaneous” treaties that overlap it? The same question may be posed as regards the optional clause system of article 36.2 of the icj Statute. The second question involves the will of the parties to submit a dispute to another settlement system, that is, to procedures different from those set by unclos. Must it necessarily be expressly manifested or it is possible and admissible to deduce it from the agreement of the parties? Thirdly, what happens if the procedures agreed by the parties fail? If the dispute remains unresolved after using the agreed means, would it be possible to later submit the dispute to procedures set forth by unclos? Fourthly, may the common will of the parties exclude from the unclos procedures all kinds of disputes without limitation? In other words, is it possible that even disputes compulsorily submitted by the Law of the Sea Con­ ven­tion to the jurisdiction of the Seabed Disputes Chamber can be excluded from unclos procedures? The same may be questioned regarding the prompt release cases of article 292. In order to put forward the main factors to be taken into account at the time of answering the aforementioned questions, we will address first the regulation on the subject established by unclos and then the different views held by international jurisprudence in respect to some of those same questions. B Regulation

The main regulatory provisions found in unclos on the subject of dispute settlement are located in Section 1, Part xv,123 to which article 286 might be added. In those articles, general provisions on the settlement system are established together with a series of distribution rules by which, given a dispute concerning the interpretation or application of the Convention, it is possible to determine whether such a dispute falls under the procedures set up in that treaty or not. Before analysing their content, it is pertinent to recall, on the one hand, that we are referring here to unclos procedures in general, that is, not only to its compulsory proceedings entailing binding decisions. As will soon be seen, in this regard, the parties may agree to submit a dispute on the 123 Articles 279 to 285.

Principal Jurisdiction

51

interpretation or application of the Convention to a compulsory procedure entailing a binding decision which, under its disputes settlement system, would be submitted to a non-compulsory procedure or to a compulsory procedure not entailing a binding decision, and vice versa. On the other hand, it is obvious that the procedures outside the unclos system to which the parties may agree and those regulated by the said treaty are going to be the same on a number of occasions,124 though not all.125 However, even in the case that a dispute is submitted, outside the unclos system, exactly to the same procedure that would be the pertinent within the Convention system, the interest for identifying the applicable rules to that particular dispute would remain alive. a

General Provisions

The content of the “General Provisions” section mainly focuses on reiterating the major principles of international law pertaining to the settlement of disputes (arts. 279 and 280), the duty to exchange views regarding the settlement by negotiation or other means (art. 283) and the offering, at the parties’ disposal, of conciliation procedures (art. 284). Principles are mainly mentioned in articles 279 and 280. Those provisions basically reaffirm, respectively, the obligation to settle the dispute by peaceful means,126 and the freedom to choose the means for settlement, which may be done “at any time”.127 Respecting conciliation, any party in a dispute concerning the interpretation or the application of the Convention may invite its opposing party to submit their dispute either to the conciliation procedure provided in Annex v or to any other conciliation procedure of their choice. Nevertheless, when a dispute has been submitted to conciliation, only the agreed conciliation procedure may terminate the proceedings unless the parties otherwise agree.128 124 Judicial settlement, arbitration, conciliation. 125 1982 Convention does not regulate mediation, good offices or enquiry. 126 Article 279. Obligation to settle disputes by peaceful means. States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter. 127 Article 280. Settlement of disputes by any peaceful means chosen by the parties. Nothing in this Part impairs the right of any State Parties to agree at any time to settle a dispute between them concerning the interpretation or the application of this Convention by any peaceful means of their own choice. 128 Article 284. Conciliation. A State Party which is a party to a dispute concerning the interpretation or application of this Convention may invite the other party or parties to submit

52

chapter 1

Finally, as regards the obligation to exchange views, the parties shall expeditiously proceed to the said exchange regarding the settlement of the dispute by negotiation or other peaceful means of their choice, not only when a dispute arises between them, but also when a procedure has terminated without a settlement or even when a settlement has been reached and the circumstances require consultation on the way to put that settlement in practice.129 b

Distribution Rules

What we could call “distribution rules” are established in articles 281 and 282 unclos. The content of these two provisions reads as follows: Article 281. Procedure where no settlement has been reached by the parties 1. If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure. If the parties have also agreed on a time-limit, paragraph 1 applies only upon the expiration of that time-limit.

the dispute to conciliation in accordance with the procedure under Annex v, Section 1, or another conciliation procedure. 1. If the invitation is accepted and if the parties agree upon the conciliation procedure to be applied, any party may submit the dispute to that procedure. 2. If the invitation is not accepted or the parties do not agree upon the procedure, the conciliation proceedings shall be deemed to be terminated. 3. Unless the parties otherwise agree, when a dispute has been submitted to conciliation, the proceedings may be terminated only in accordance with the agreed conciliation procedure. 129 Article 283. Obligation to exchange views. When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement.

Principal Jurisdiction

53

Article 282. Obligations under general, regional or bilateral agreements If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree. As it may be seen, both provisions set forth points in common. Firstly, both article 281 and article 282 have as their central axis the concept of “dispute concerning the interpretation or application of this Convention”, to which we have been referring in the previous block. Secondly, it is essential in both provisions that the parties agree to settle their dispute through a means of their choice without the request of any particular form for such an agreement. Thirdly, and finally, the means chosen by the parties will apply in lieu of the procedures provided with by unclos: the dispute will thus remain outside the Convention settlement system. Notwithstanding the aforesaid, between both provisions some notable differences may also be observed. Firstly, as regards the means chosen by the parties, while article 281 constrains itself to request that such a means must be “a peaceful means of their own choice” without specifying whether it has to be a voluntary procedure, a compulsory procedure not entailing a binding decision130 or a compulsory procedure entailing a binding decision, article 282 unequivocally requests the procedure to be compulsory (“at the request of any party”) and entail a binding decision. The second difference concerns the result of those “agreed means”. According to article 281, for the unclos settlement procedures not to apply, it requires that those means have led to a solution (unclos procedures apply only “where no settlement has been reached by recourse to such means”), or, alternatively, that the agreement reached by the parties excludes any further procedure (unclos procedures apply only when, no settlement has been reached “and the agreement between the parties does not exclude any further procedure”). Article 282 says nothing in respect to this. Connecting articles 281 and 282 with article 280, there is no room for doubt that the agreement by the parties to submit the dispute to a procedure different than those offered by unclos may be reached “at any time”. In this respect, it is obvious that the doors of articles 281 and 282 are open for agreements reached by the parties after the 1982 Convention. However, might the parties 130 For example, the “compulsory” conciliation regulated in articles 297 and 298.

54

chapter 1

agree to a procedure to settle their dispute concerning the interpretation or application of the Convention before the adoption of this international treaty, thus before raising the own idea of “dispute concerning its interpretation or application”? In such a case, how would the settlement system of unclos be coordinated with settlement systems of treaties adopted prior to the Convention, and whose provisions they overlap, and with the optional clause system regulated in article 36.2 of the icj’s Statute? As a starting point, in jurisdictional terms the dispute would obviously need to be qualified, as a “dispute concerning the interpretation or application of the Convention”. As described in the previous block, there was a clear difference in points of view between itlos and the Arbitral Tribunal constituted to deal with the Southern Bluefin Tuna cases. Such a difference inevitably has, in my opinion, important consequences at the time of applying articles 281 and 282. If one looks at the posture of itlos, deciding to examine the question solely in terms of whether or not the dispute concerns the 1982 Convention regardless of whether it may or may not be about another treaty, then the possibility of agreeing before unclos that a dispute concerning its interpretation or application be submitted to a different settlement system will be constrained only to those cases where the agreement between the future litigants has foreseen, in one way or another, that the procedure agreed upon is applied to a category of disputes which also embraces those dealing with the interpretation or application of the Convention. This comprises, on the one hand, those cases where the parties have agreed on a settlement procedure for all disputes arising between them. It will also comprise even those cases in which there has been an agreement about a settlement procedure for types of disputes broad enough to embrace disputes on unclos as well; for example, all disputes that may arise concerning the law of the sea. However, this interpretation will not go much further than that. In this sense, article 282 of the Convention would apply only to the optional clause system of article 36.2 of the icj Statute, on the one hand, to a limited list of dispute settlement agreements of a general, regional or bilateral nature, on the other; and, perhaps, to certain bilateral agreements on friendship or cooperation between two States that later became States Parties of unclos.131 On the other hand, article 281 barely could serve as 131 As Judge Treves states, with well-chosen words, “The agreements to which article 282 refers are the general, regional or bilateral ones concerning disputes defined as encompassing disputes concerning the interpretation or application of the Convention, be they agreements for the settlement of disputes specifically mentioned as relating to the interpretation or application of the Convention, agreements for the settlement of disputes in general (including the acceptance, by both parties, without relevant reservations, of the optional clause of Article 36, paragraph 2, of the Statute of the International Court of Justice), and agreements

Principal Jurisdiction

55

an escape route for any agreement prior to unclos. The reason is that it would be really difficult to find a treaty referring to such broad disputes which, while being submitted to a non-binding procedure, would meet the conditions imposed by the said provision to elude the procedure of unclos and, in particular, that of excluding any further procedure. On the contrary, the chances of preventing the submission of the dispute to  the procedures of unclos are far greater if the position of the Arbitral Tribunal in the Tuna cases is followed. In this sense, if, as stated by the Arbitral Tribunal, a dispute may simultaneously concern the interpretation or application of the Montego Bay Convention and the interpretation or application of another treaty, then both article 282 and even article 281 would be applicable not only to the reduced number of cases mentioned above but also, in addition, to the whole variety of treaties over which unclos overlaps; their settlement procedures would apply instead of those provided with by the Law of the Sea Convention. Regarding the issue of the coexistence of the settlement system of unclos and the optional clause system regulated in article 36.2 of the icj Statute, the need to make them compatible with each other is going to bring with it, unavoidably, a number of problems: first of all, because of the intrinsic complexity of both systems; secondly, due to the fact that the icj is one of the fora in article 287; finally, because both systems are called upon to interact at the same time allowing one or other of the States to join or withdraw from the systems. In the case of article 36.2 of the icj Statute this choice is in respect to  the whole system and to determine which disputes will be submitted to compulsory jurisdiction; in the unclos system, it works both in the (partial) determination of the disputes submitted to the compulsory jurisdiction (art. 298), as well as in the determination of the competent forum to deal with all of them (art.287). In an attempt to anticipate the main problems that such coexistence between the two settlement systems might pose, let us next look at the questions that seem to be of greatest interest. The basic norm, as set out above, is article 282 unclos. From that provision it might be deduced that “unless the parties to the dispute otherwise agree”, the optional clause system “shall apply in lieu of the procedures provided for in for the settlement of categories of disputes defined so that they may include those concerning the interpretation or application of the Convention (such as, for instance, disputes concerning maritime navigation)”. (Separate Opinion to the Order by itlos of 3 December 2001 in the mox Plant case, Part 3). Concerning this, also see the Virginia Commentary, vol. v, Section 282.2, where some examples of treaties that might fill the factual element of article 282 unclos can be found.

56

chapter 1

(…) Part [xv of the Convention]”. However, to what extent does the optional clause system overlap or possibly overlap, and apply in lieu of, the voluntary and compulsory procedures of unclos? How far does the optional clause system overlap the voluntary proceedings (or the compulsory ones not entailing binding decisions) of the Montego Bay Convention? Could the exceptions or limitations to compulsory jurisdiction as established by the 1982 Convention be raised before the Court, when its jurisdiction is invoked via the optional clause? For example, let us look at two States, A and B, both of whom have unconditional declarations in force pursuant to article 36.2 of the icj Statute. In the event that A sues B concerning a dispute envisaged in article 298.1 of the Convention, and does it precisely in that way before the icj, can B oppose a declaration made by it pursuant to article 298 by which it excludes the compulsory jurisdiction precisely in respect to those disputes? If applicant B files an application against A, could A object, stating that B has made a declaration ex article 298 unclos which excludes just those kinds of disputes from the compulsory procedures entailing binding decisions? What about disputes directly excluded from those compulsory proceedings by article 297 unclos? If the unconditional declarations of A and B predate the 1982 Convention, could it be understood that the parties have subsequently agreed to the exclusion of certain types of disputes from the compulsory jurisdiction of the Court or, on the contrary, must they revise and modify their article 36.2 icj st declarations to expressly exclude those types of disputes? On the other hand, to what extent does the optional clause system overlap the provisions of the Montego Bay Convention concerning compulsory proceedings entailing binding decisions? Does such an overlap work, that is to say, does the optional clause system have preference even in respect to those areas more emphatically reserved by unclos for compulsory jurisdiction? For instance, given the aforementioned example, that is, two States A and B both with unconditional declarations in force made according to article 36.2 of the icj Statute, if A files an application against B in a dispute concerning the interpretation or application of the Part xi of the Convention before the Seabed Disputes Chamber of itlos, can B object by relying on the preference of the optional clause system according to articles 282 and 285 of unclos? And vice versa: if the application is submitted to the icj, may B oppose the preference of the 1982 Convention’s settlement system? Quid of prompt release cases? In the most probable situation, that is, that the application is submitted to itlos in this case, might B also oppose the preference of the optional clause system? Even assuming that the optional clause system does not have precedence over the procedure established in article 292 of the Convention, the existence of both unconditional declarations by those States submitting themselves to the

Principal Jurisdiction

57

International Court of Justice pursuant to its Statute, article 36.2, could be alleged as an agreement on the forum as allowed by article 292 unclos to deactivate the residual jurisdiction of itlos? The hypotheses that may be raised and which may be solved case-by-case are numerous. However, what is clear is that the optional clause system cannot overlap and impose itself on the settlement system of unclos in those matters in respect to which a State that has made a declaration in accordance with article 36.2 of the icj statute has included reservations. In such a case, the reservation would impede their ability to fulfil the requirements of article 282, which states that the dispute can be submitted “at the request of any party (…) to a procedure that entails a binding decision”. On the other hand, it is evident that in one way or another, the answer to the questions raised above must come from the common will of the parties involved in the dispute. Therefore, in our judgment, it is highly recommendable that it should be the States themselves who clarify, to whatever extent is possible and within the limits established for each system, which of them should be given preference. This determination should be done in their declarations made pursuant to article 36.2 icj st and articles 287 and 298 unclos. Declarations made by Djibouti,132 132 According to the Declaration by Djibouti of 2 September 2005: “(…) the Republic of Djibouti, in accordance with Article 36 (2) of the Statute of the International Court of Justice, hereby declares that it recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes concerning: (a) The interpretation of a treaty; (b) Any question of international law; (c) The existence of any fact which, if established, would constitute a breach of an international obligation; (d) The nature and extent of the reparation to be made for the breach of an international obligation; with the reservation, however, that this declaration shall not apply to: (…) 4. Disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or the Government of Djibouti specially agrees to jurisdiction of the Court; (…) 7. Disputes with the Republic of Djibouti concerning or relating to: (a) The status of its territory or the modification or delimitation of its frontiers or any other matter concerning boundaries; (b) The territorial sea, the continental shelf and the margins, the exclusive fishery zone, the exclusive economic zone and other zones of national maritime jurisdiction including for the regulation and control of marine pollution and the conduct of scientific research by foreign vessels;

58

chapter 1

Norway133 and Australia134 which conform to article 36.2 icj st, offer some complete or incomplete examples of such a determination.

(c) The condition and status of its islands, bays and gulfs; (d) The airspace superjacent to its land and maritime territory; and (e) The determination and delimitation of its maritime boundaries. This declaration is made for a period of five years, without prejudice to the right of denunciation and modification which attaches to any commitment undertaken by the State in its international relations. It shall take effect on the date of its receipt by the Secretary-General of the United Nations [that occurred on 2 September 2005]. Djibouti, 18 July 2005.” 133 According to the declaration by Norway, 25 June 1996: “Norway recognises as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is on condition of reciprocity, the jurisdiction of the International Court of Justice in conformity with Article 36, paragraph 2, of the Statute of the Court, for a period of five years as from 3 October 1976. This declaration shall thereafter be tacitly renewed for additional periods of five years, unless notice of termination is given not less than six months before the expiration of the current period; provided, however, that the limitations and exceptions relating to the settlement of disputes pursuant to the provisions of, and the Norwegian declarations applicable at any given time to, the United Nations Convention on the Law of the Sea of 10 December 1982 and the Agreement of 4 December 1995 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, shall apply to all disputes concerning the law of the sea.” 134 According to the declaration by Australia, 22 March 2002, presumably in view of the Award rendered by the Annex vii Arbitral Tribunal in the Tuna cases: “The Government of Australia declares that it recognises as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to the Secretary-General of the United Nations withdrawing this declaration. This declaration is effective immediately. This declaration does not apply to: (a) any dispute in regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement; (b) any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation; (c) any dispute in respect of which any other party to the dispute has accepted the compulsory jurisdiction of the Court only in relation to or for the purpose of the dispute; or where the acceptance of the Court’s compulsory jurisdiction on behalf of any other party to the dispute was deposited less than 12 months prior to the filing of the application bringing the dispute before the Court.”

Principal Jurisdiction

59

Similar problems and, perhaps, solutions, might result from the general, regional or bilateral agreements previous to the Law of the Sea Convention by which the parties had agreed that the dispute be submitted at the request of any of them, to a procedures entailing a binding decision; in this case with the advantage that the systems are very similar in nature, unlike the situation that occurs when the optional clause system comes into play. A major difficulty, at this point, to add to all the rest, may arise precisely at the time when determining which treaties can be properly qualified as general, regional or bilateral agreements pursuant to article 282; in other words, where is the division line between what is and what is not a treaty of the type required by that provision. In principle, it seems clear that those treaties establishing a compulsory adjudicative or arbitral settlement for any kind of disputes between the parties might be considered as such; that would be the case, for instance, at the regional level, of the American Treaty on Pacific Settlement of 30 April 1948, also known as the “Pact of Bogotá”;135 that would be also the case of some 135 According to art. xxxi of that treaty: “In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto, without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a juridical nature that arise among them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation.” See an extensive analysis of that provision in Casado Raigón: “La sentencia de la cij de 20 de diciembre de 1988 (competencia y admisibilidad de la demanda) en el asunto relativo a las acciones armadas fronterizas y transfronterizas (Nicaragua c. Honduras)”, redi¸vol. xli, 1989, n° 2, pp. 398 ss. As Espaliú notes, despite relying on art.36.2 icj st, art. xxxi of the Pact of Bogotá, is actually a compromissory clause, not a collective declaration pursuant to the optional clause system, thus empowering the Court by way of article 36.1 instead article 36.2. (Espaliú Berdud, C., Desarrollos jurisprudenciales y práctica reciente en la jurisdicción contenciosa de la Corte Internacional de Justicia, Dykinson, Madrid, 2000, pp. 237– 240). In this respect, it is worthwhile to recall the words of the icj in its judgment of 20 December 1988, in the case of the Border and Transborder Armed Actions (Nicaragua v. Honduras), where it stated: “Even if the Honduran reading of Article xxxi be adopted, and the Article be regarded as a collective declaration of acceptance of compulsory jurisdiction made in accordance with Article 36, paragraph 2, it should be observed that that declaration was incorporated in the Pact of Bogota as Article xxxi. Accordingly, it can only be modified in accordance with the rules provided for in the Pact itself. Article xxxi nowhere envisages that the undertaking entered into by the parties to the Pact might be

60

chapter 1

bilateral treaties concluded for the same purpose. Moreover, a certain number of treaties might be added to the former: 1/some treaties of friendship and cooperation, likewise concluded at a bilateral level, as far as they might cover practically the whole of the relations between their States Parties; 2/some treaties, which while not covering the entirety of the relations between the parties involved, submit certain types of disputes to compulsory settlement; by these, we mean types of disputes that are understood to be broad enough to also cover disputes concerning unclos.136 However, can it be understood that treaties dealing with particular aspects of the law of the sea, also covered by unclos, and concluded prior to the adoption or entry into force of the Montego Bay Convention, are in the same situation? As we have seen above, the answer to this question depends to a significant extent on what may be understood by a dispute concerning the interpretation or application of the Convention. If it is understood, as was the case with the Annex vii Arbitral Tribunal in the Tuna cases, that a dispute can concern the interpretation or application of the Law of the Sea Convention and another treaty at the same time, then the possibility may, at least hypothetically, be granted. Conversely, if it is understood – like itlos does in the Tuna and mox Plant cases – that a dispute – procedurally speaking – may or may not concern the 1982 Convention regardless of whether it may or may not also concern the interpretation or application of another international treaty, then, the treaty at stake may be qualified as a general, regional or bilateral agreement as per article 282 only to the extent that the terms of its clauses concerning dispute settlement may have established compulsory proceedings entailing binding decisions, not only for disputes about the interpretation or application of that particular treaty but also for those disputes concerning unclos itself, which, in principle, seems highly unlikely.137 Directly related to the question posed above is the one we raised at the beginning of this section: The consent of the parties whether or not to submit a dispute to another settlement system, that is, to settlement procedures other than those provided with by unclos, does necessarily need to be expressly stated by them or is it possible to deduce it from their agreement? amended by means of a unilateral declaration made subsequently under the Statute, and the reference to Article 36, paragraph 2, of the Statute is insufficient in itself to have that effect.” (icj Reports, 1998, p. 84, para. 34). 136 See, in this respect, Commentary, vol. v, 288.2. 137 Something different, regarding these types of treaties, is the right of the parties to submit the dispute concerning its interpretation or application to the compulsory proceedings entailing binding decisions regulated by unclos.

Principal Jurisdiction

61

As we have seen before, if the parties agree that the dispute be submitted to a compulsory procedure entailing a binding decision, then “that procedure shall apply in lieu of the procedures provided for in (…) Part [xv of the Convention]” (art. 282). That is to say, if the parties agree in settling their dispute through compulsory procedures entailing a binding decision, it seems unnecessary to expressly exclude the application of Part xv procedures because such exclusion is implicit in the agreement to settle the dispute by other compulsory procedures entailing a binding decision. And since ­article 282 merely refers to the procedures “provided for in this Part”, that is, Part xv of the Convention, without constraining itself solely to the “compulsory procedures entailing binding decisions” regulated in its Section 2, it seems clear that the compulsory procedures that entail binding decisions agreed upon in that manner, not only overlap the compulsory procedures entailing binding decisions of unclos but also on its voluntary procedures138 and its compulsory procedures entailing non-binding decisions.139 Outside of the cases above, that is, if the parties involved have agreed to resolve their dispute by a non-compulsory procedure or by a compulsory procedure not entailing a binding decision, article 281 seems to be somewhat more restrictive than article 282 in determining the non-application of procedures regulated by unclos (whether they are voluntary or compulsory). Such a non-application is conditioned on whether the “(…) settlement has been reached by recourse to such means” or on the condition that “the agreement between the parties (…) exclude any further procedure.” However, in the case of the final condition, it cannot be deduced from the imposition of article 281 either that the exclusion must be express or that it specifically refer to unclos procedures; its text only requires the exclusion of the possibility of applying “any further procedure” without other additional specifications. Can it be understood, in this respect, that also in the cases regulated by article 281 the exclusion of any further procedures may be implicit on the mere act of parties having agreed to settle their dispute by means of their own settlement procedures (or chain of procedures)? The answer to this question seems to me to be of major relevance as the greater or lesser extent of the settlement system under unclos, both in general terms and in regards to its compulsory procedures entailing binding decisions, depend on it. If, as it may be deduced from the Annex vii Arbitral Tribunal Award in the Tuna cases, the same dispute may not only fall under the scope of application of two treaties, but also, in procedural terms, may be simultaneously regarded 138 For example, the consensual conciliation regulated in general in art. 284. 139 For example, the compulsory conciliation regulated by art. 297.2 and 3.

62

chapter 1

as a dispute concerning the interpretation or application of those two treaties; and if, as what equally seems to follow from the said arbitration award, the parties’ excluding desire may be implicit in the fact that they agree to settle their disputes concerning the interpretation or application of this second treaty, even when they have opted for voluntary proceedings, then, the settlement system of unclos and, in particular, its compulsory settlement system, may be potentially threatened by a multitude of treaties, with whose contents it coincides, and which, in one way or the other, have been provided with some kind of procedural process for settling their disputes. And this does not only apply to treaties subsequent to unclos, as we shall see below.140 In this respect, for judicial purposes, if one were to trace back the pattern that proceeds from the arbitration in the Tuna cases, what prevents us, at least hypothetically, from admitting that a dispute may concern the interpretation or application of unclos and the interpretation or application of a treaty prior to that of Montego Bay? And, in this case, if it is admissible to elude the procedures of the 1982 Convention by the mere fact of agreeing to another settlement procedure – even though it were non-compulsory – are we not leaving the settlement system of unclos devoid of content? As we were asking ourselves in the previous block when dealing with the definition of a dispute concerning the interpretation or application of the Convention, would this not be tantamount to exploding a bomb at the waterline of the whole system? We will turn back to this question in the following block, when dealing with the jurisprudence on this topic. On the other hand, going on with the questions previously posed about the application of articles 281 and 282, what happens if the procedures agreed to by the parties fail? If the dispute remains unresolved throughout the nonunclos procedures, may it then be submitted to those provided by the Montego Bay Convention? As noted before, the consequences set forth in articles 281 and 282 for these situations are different. In the first, article 281 states that the procedures established in Part xv will apply when “no settlement has been reached” by the means agreed by the parties. Hence, in principle, if the agreement between the parties (by which they decided to submit the dispute to a procedure aside from the Convention) does not exclude the chance of applying any other procedure, and the dispute remains unresolved, nothing would prevent the application of the unclos settlement procedures. In contrast, article 282 says nothing about it, thus leaving undefined what could happen if the extra unclos process fails. Furthermore, it is even unclear at what point the procedure would be recognized as unsuccessful. It is precisely this 140 See Award, page 104.

Principal Jurisdiction

63

question which leads to others, which I will try to address in the following paragraphs. For these purposes, what is the relationship between articles 281 and 282 of the Convention? Can they be seen as “separated circles” that represent voluntary and compulsory proceedings? Or, on the contrary, can they be visualized as “concentric circles” with the outer circle representing article 281, that deals with every kind of dispute without exception; and the inner circle, article 282, that deals particularly with the compulsory procedures entailing binding decisions? In my view, both hypotheses are defensible and, accordingly, none of them must be rejected a priori. To begin with, both of them have support in the travaux préparatoires of the Convention. On the one hand, as to the “separated circles” hypothesis, in the first draft of the current article 281, which was the text of the Working Group on Dispute Settlement, the then article 4 was entitled “Clause Relating to Settlement Procedures Not Entailing a Binding Decision”.141 Similarly, the three variants which were offered as alternatives for discussion to the wg, expressly mentioned the submission of the dispute to a settlement procedure “not entailing a binding decision”.142 All these texts would contrast with the then article 3, germ of the current article 282, in which, under the title “Clause Relating to Other Obligations”, it was regulated the submission of the dispute by means of general, regional or special agreement, or any other instrument, to compulsory procedures entailing binding deci­ sions;143 and would contrast as well with the title of article 5, root of the current article 286, expressly titled, in contrast to article 4, “Obligation to Resort to a Means of Settlement Resulting in a Binding Decision”.144 On the other hand, in respect to the hypothesis of the “concentric circles”, the role of article 281 as outer circle, or closing clause, thus extendable also to the cases of article 282 not ending in the settlement of the dispute (for example, in cases of inadmissibility of the application145), finds support in the Convention’s travaux préparatoires too. In the first place, the original location of both provisions was, in the first drafts, the opposite to the current, placing the article relating to compulsory procedures first and then positioning the germ of the current

141 142 143 144 145

Doc. A/CONF.62/L.7, Of. Docs., vol. iii, p. 87. Alternatives A, B and C. Of. Docs., ibid. Ibid, p. 87. Ibid, pp. 87 and 88. Not in cases of lack of jurisdiction. If the tribunal finds that it is not competent to entertain the case, then the procedure is not one of the “compulsory procedures entailing binding decisions” of article 282.

64

chapter 1

article 281.146 It was only at a late stage of the iii Law of the Sea Conference sessions, after completion of the Convention’s first draft (document L.78147), when the order of both provisions was reversed to their current location, by recommendation of the Drafting Committee. In the second place, the reference in the previous texts of the current article 281 to “procedures not entailing a binding decision” was soon substituted by the broader “peaceful means of their own choice”148 and for the heading “Procedure when dispute is not settled by means chosen by the parties”149 which was transformed to the even more extensive phrasing of the current text: “Procedure when no settlement has been reached by the parties”.150 Furthermore, although it is usually understood that article 281 refers to nonbinding procedures, as far as I know, among scholars there is no express dismissal of the possibility of applying the said provision to certain “failed” binding procedures as well. In this respect, several authors focus their analysis on what generally will be the subject of article 281; but they do it without excluding what exceptionally may also become its subject. Regarding this, it may additionally be noted, as pointed out by the Virginia Commentary, that “the agreement to allow the parties to a dispute (…) to resort to means (…) outside of that Convention was based on the assumption that these other means would result in a settlement of the dispute. If however, such a settlement is not reached through the procedure chosen by the parties, article 281 makes it clear that in such a case Part xv will become applicable, and any party will be entitled to resort then to procedures specified in this Part”.151 Finally it is important to note that the application of article 281 also to these types of failed binding procedures would be more in line with what might be understood as one of the purposes of the settlement system of the Convention, namely, that the dispute be settled by whatever means might be chosen by the parties involved, but settled, in any case. Nevertheless, the failure of a compulsory procedure entailing a binding decision proceeding from article 282 might not necessarily result in a compulsory procedure entailing a binding decision in application of article 281. This

146 See docs. L.7, WP.9, and WP.9/Rev.1 (arts. 3 and 5), WP.9/Rev.2 (arts. 4 and 5), and WP.10, WP.10/Rev.1, WP.10/Rev.2 and WP.10/Rev.3 (arts. 282 and 283). 147 Doc. A/CONF.62 /L.78. Of. Docs., vol. xv. 148 WP.9, art.5 149 From WP.9/Rev.1 (art.5) to WP.10/Rev.3 (art.283). Emphasis added. 150 See also L.78, art. 281. Emphasis added. 151 Commentary, cit., 281.1.

Principal Jurisdiction

65

last provision only determines the submission to Part xv procedures in general, not to the compulsory procedures entailing binding decisions exclusively. Accordingly, the failure of the non-unclos binding procedure to which the parties had submitted pursuant to article 282, could result in a voluntary procedure or in a procedure not entailing a binding decision, as the case may be, when article 281 is applied. It might happen, for instance, that the failure of an application submitted to the International Court of Justice, by means of article 36.2 icj st in relation to article 282 unclos, result in application of article 281 in relation to article 297.2.b, both of unclos, in a compulsory conciliation.152 On the other hand, finally, the procedure that is chosen beyond that prescribed by the Convention might coincide with the one that stems from the application of Part xv. Thus it would be absurd for an applicant to again attempt, this time by way of article 281, to employ the same procedure that had already failed by way of article 282; surely this new application would be refused by the court or tribunal for procedural reasons.153 Turning to the last question posed at the beginning of this part, does the chance of excluding unclos Part xv procedures also extend to (or affect) the areas more emphatically reserved to the binding procedures under the Law of the Sea Convention? Stated more plainly: can the procedures that fall outside unclos, chosen by the parties via articles 281 and 282, be superimposed on those that concern both the Seabed Area154 and the prompt release procedures155? As regards disputes concerning the Seabed Area, there exists the possibility for the parties, by way of mutual agreement, to exclude the procedures provided within the 1982 Convention and, in particular, the competence of the Seabed Disputes Chamber. This is recognized in article 285, according to which: “This section [1 of Part xv] applies to any dispute which pursuant to Part xi, Section 5, is to be settled in accordance with procedures provided 152 Regarding the failure in particular of the way of the optional clause of article 36.2 icj st, it may be recalled that the hypothesis that we are taking as the most solid one is that of the inadmissibility of the application, not that of the lack of jurisdiction by the Court. In my view, in the example we are relying on, if the failure comes from the finding by the icj that it lacks of jurisdiction, then the dispute would submit to the compulsory conciliation not because the dispute is unsettled but for the reason that articles 281 and 282 are inapplicable because the parties have not agreed a settlement procedure beyond the margins of unclos. 153 In this situation, the only cases that would remain doubtful would be those submitted to arbitration in general by means of article 282 which afterwards fall within Annex vii arbitration in application of Part xv. 154 Section 5, Part xi. 155 Article 292 unclos.

66

chapter 1

for in this Part. If an entity other than a State Party is a party to such a dispute, this section applies mutatis mutandis”. Another issue altogether is that, by clearing a path to elude the jurisdiction of the sdc, a door has then also been opened on the loss of highly desirable uniformity in the jurisdiction called on to interpret a system so singular and universalized as the one regulating the Seabed Area. However, this must be assumed as something typical of the settlement of international disputes and, moreover, remains more on a theoretical plane than a practical one, insofar as it presupposes an agreement among the parties on a procedure that ordinarily is simply not going to occur. Regarding the prompt release procedures, the location of article 292 in Part xv, might open the doors to the application of articles 281 and 282; consequently bringing about the possibility that it may be excluded by procedures chosen by the parties involved. The common will of the parties to settle their disputes through a peaceful means of their choice must prevail over these procedures as well. Nonetheless, unlike other procedures reserved to compulsory jurisdiction, the prompt release procedure is one that is special, urgent and referenced to the interpretation or application of a few very specific provisions of the Convention, under very specific conditions, as well; for this reason, in my view, the excluding desire of the parties cannot be deduced or be implicitly understood in other agreements concluded by them outside of unclos. On the contrary, such agreement must be ad hoc for these types of disputes and has to be expressly stated.156 C Jurisprudence

In the Southern Bluefin Tuna cases, the first Annex vii Arbitral Tribunal in history opted for a very generous interpretation of the exclusion situations provided in article 281, thus opening a large breach through which to escape from the settlement procedures in Part xv. In that dispute, during the provisional measures proceedings, Japan objected to the jurisdiction of that arbitral body, and accordingly, to itlos itself. Its thesis (partially sustained by the arbitral tribunal) could be abstracted as follows: the dispute which confronts the parties is a dispute concerning the interpretation or application of the 1993 Convention for the Conservation of Southern Bluefin Tuna and not a dispute concerning the interpretation or application of unclos. However, if the dispute is considered also as concerning the 1982 Convention, then there would be a dispute concerning the interpretation or 156 This could perhaps be the situation of the agreement between Panamá and Yemen in the Chaisiri Reefer case, resulting in the early termination of the prompt release procedure initiated before itlos.

Principal Jurisdiction

67

application of that treaty and, at the same time, that of the 1993 Convention. Since the 1993 Convention is provided with its own settlement system, a­ rticle 281 unclos, which gives priority to that system, would apply. Thus it would be impossible to apply the settlement system under unclos as the conditions of article 281 are not met. In particular, it cannot be said that the dispute is unsettled because the procedures provided in article 16 of the 1993 Convention have not been exhausted157 and, besides, the requirement of an exchange of views imposed by article 283 unclos would not have been fulfilled. Finally, the procedure of article 16 excludes any other settlement procedure.158 In the first place, as seen before, by accepting the argument that a dispute concerning the interpretation or application of unclos may also be qualified, at the same time, for procedural purposes, as a dispute concerning the interpretation or application of another treaty in force between the parties, the Annex vii Arbitral Tribunal is considerably increasing the chances for the settlement system of this second treaty to apply in lieu of the settlement procedures provided with the Montego Bay Convention. Furthermore, this would happen not only when the treaty in question has been concluded after unclos entry into force (or even after its adoption, as in the aforementioned case159), but even in those cases in which such a treaty existed prior to the adoption of unclos.160 157 The text of article 16 of the 1993 Convention, reproduced by the Arbitral Award (p. 20) reads as follows: 1. If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. 2. Any dispute of this character not so resolved shall, with the consent in each case of all parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court of Justice or to arbitration shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above. 3. In cases where the dispute is referred to arbitration, the arbitral tribunal shall be constituted as provided in the Annex to this Convention. The Annex forms an integral part of this Convention. 158 The arguments of Japan come from its written and oral pleadings both before itlos and the Annex vii Arbitral Tribunal. They are available at www.itlos.org and https://icsid .worldbank.org (february 2015). 159 The Convention for the Conservation of the Southern Bluefin Tuna (ccsbt) was done in 1993, thus after the adoption (10 October 1982) but before the general entry into force of unclos (16 November 1994). 160 Precisely, in support of its thesis, Japan cited some treaties prior to unclos whose content should be revised if the Arbitral Tribunal assumed the theses of Australia and New Zealand (Award, para. 38).

68

chapter 1

In the second place, and above all, the Arbitral Tribunal remarkably relaxes the requirement that the agreement between the parties “exclude any further procedure” by accepting that such unwillingness may be understood as implicit in the agreement other than unclos by the mere fact that the parties have agreed on one or several settlement procedures for the disputes which might arise on the interpretation or application of the said treaty. Hence, in its order of 4 August 2000, the Annex vii Arbitral Tribunal, after considering that article 16 of the 1993 Convention “falls within the terms and intent of Article 281.1, as well as article 280” and that “the [Arbitral] Tribunal is satisfied about the fulfillment of condition (a) of article 281.1” (that is, that the means agreed by the parties have not settled the dispute), reaches the conclusion that, although “the terms of article 16 of the 1993 Convention do not expressly and in so many words exclude the applicability of any procedure, including the procedures of Section  2 of Part xv of unclos”,161 “in the view of the [Arbitral] Tribunal, the absence of an express exclusion of any procedure in article 16 is not decisive”,162 while the excluding intention may be deduced from the own article 16. In brief, my understanding of the arbitration’s opinion is that the excluding will of the parties follows, in the Arbitral Tribunal’s view: 1/from the first sentence in the text of article 16.2, by establishing that disputes (obviously those concerning the interpretation or application of that treaty) not settled in conformity with article 16.a be submitted to any of the procedures listed in the said provision “with the consent in each case of all parties to the dispute”;163 2/from the fact that, according to the second sentence article 16.2 itself, “failure to reach agreement on reference to the icj or to arbitration shall not absolve the parties (…) from (…) continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above” (the Arbitral Tribunal deduces from such obligation “that the intent of Article 16 is to remove proceedings under that article from the reach of the compulsory procedures of Section  2 of Part xv of unclos, that is, to exclude the application to a specific dispute of any procedure of dispute resolution that is not accepted by all the parties to the dispute”164); 3/from the fact that, according to article 16.3, in cases in which the dispute is submitted to arbitration, it must be constituted as set out in the 161 162 163 164

Award, para. 56. Award, cit. Emphasis added. Award, para. 57. Emphasis added in article 16.2. Award, cit. Emphasis added.

Principal Jurisdiction

69

Annex of the 1993 Convention, which is autonomous and different than the one provided in Section 2 of Part xv unclos.165 It seems that, according to the Arbitral Tribunal’s reasoning, this may be applied not only to post-unclos treaties but also to those previous to the Montego Bay Convention. On the one hand, to reach the conclusion that article 16 of the 1993 Convention “exclude[s] any further procedure”, the Annex vii arbitration expressly recalls that the text of article 16.1 and 2 is virtually identical to the one of article xi of the Antarctic Treaty, of 1 December 1959, stating that “In the view of the States that concluded [this treaty] it is obvious that these provisions are meant to exclude compulsory jurisdiction”.166 On the other hand, after insisting that “a significant number of international agreements with maritime elements, which came into force after the adoption of unclos, exclude with varying degrees of explicitness unilateral reference of a dispute to compulsory adjudicative or arbitral procedures”, the arbitral tribunal claims, adamantly, the following: “The [Arbitral] Tribunal is of the view that the existence of such a body of treaty practice – postdating as well as antedating the conclusion of unclos – tends to confirm the conclusion that States Parties to unclos may, by agreement, preclude subjection of their disputes to Section 2 procedures in accordance with Article 281.1. To hold that disputes implicating obligations under both unclos and an implementing treaty such as the 1993 Convention – as such disputes typically may – must be brought within the reach of Section 2 of Part xv of unclos would be effectively to deprive of substantial effect the dispute settlement provisions of those implementing agreements which prescribe dispute resolution by means of the parties’ choice”.167 For its part, the International Tribunal for the Law of the Sea clearly holds an opposite view to that from the first Annex vii Arbitral Tribunal in history. In its order of 27 August 1999 on provisional measures in the Southern Bluefin Tuna cases, obviously done before the Arbitral Award mentioned above, the Hamburg Tribunal, after noting that “the provisions of the Convention on the Law of the Sea invoked by Australia and New Zealand appear to afford a basis on which the jurisdiction of the arbitral tribunal might be founded”,168 states that “the fact that the Convention of 1993 applies between the parties does not preclude recourse to procedures in Part xv, Section  2, of the Convention on the Law of the Sea”.169 165 166 167 168 169

Award, para. 57. Award, para. 58. Award, para. 63. Emphasis added. Order, para. 52. Order, para. 55.

70

chapter 1

Far more explicit is itlos, in my opinion, in the mox Plant case. The United Kingdom, in its objections to the jurisdiction of the Arbitral Tribunal and, therefore, itlos itself, and explicitly invoking article 282, alleged that the topics subject to Ireland’s claims were regulated by regional ­agreements provided with alternative binding procedures for settling their disputes; in fact, according to the British claims, Ireland had already used those means or was in the process of doing so.170 In particular, according to the British claims, Ireland had submitted a dispute before an arbitral tribunal, pursuant to article 32 of the Convention for the Protection of the Marine Environment of the North-East Atlantic (ospar Convention) concerning article 9 of that treaty, in regard to access to information in relation to the economic justification of the proposed plant of mox.171 Furthermore, according to the defendant, Ireland had announced its intention to institute separate proceedings before the then European Communities Court of Justice in accordance with the European Community Treaty and the Euratom Treaty, in this instance related to the ­violations of those treaties allegedly committed by the United Kingdom. In its claims, especially in regard to these last treaties, the United Kingdom recalled that “certain aspects of the complaints of Ireland are governed by the Treaty establishing the European Community (ec Treaty) or the (…) Euratom Treaty,” as well as the directives issued thereunder. It added that the States Parties to those treaties had “agreed to invest the Court of Justice of the European Communities with exclusive jurisdiction to resolve disputes between them concerning alleged failures to comply with such Treaties and Directives”.172 For these reasons, by claiming that “the main elements of the dispute submitted to the Annex vii arbitral tribunal [were] governed by the compulsory dispute settlement procedures of the ospar Convention or the ec Treaty or the Euratom Treaty”, the United Kingdom objected to the jurisdiction both of the Arbitral Tribunal and of itlos itself.173 For its part, Ireland, opposing the British objections, replied that the dispute submitted to Annex vii arbitration concerned the interpretation or application of the Law of the Sea Convention “and does not concern the interpretation or application of either the ospar Convention or the ec Treaty or the Euratom Treaty”. It also alleged that neither the ospar arbitration nor the European Communities Court of Justice “would have jurisdiction that extends to all the matters in the dispute before the Annex vii arbitral tribunal” and that the rights and duties set out in unclos, the ospar Convention, the ec Treaty 170 171 172 173

Order of 3 December 2001, paras. 38 and 39. Order, cit., para. 40. Order, para. 41. Emphasis added. Order, paras. 43 and 44.

Principal Jurisdiction

71

and the Euratom Treaty “are cumulative”, therefore allowing the State party in all of them to “rely on any or all of them as it chooses”.174 In its Order of 3 December 2001, presumably in response not only to the British objections but also, indirectly, to the Award by the Annex vii Arbitral Tribunal in the Tuna cases, itlos recalled that article 282 refers to general, regional or bilateral agreements “which provide for the settlement of disputes concerning what the Convention refers to as ‘the interpretation or application of this Convention’”.175 Hence, the Hamburg Tribunal holds that the settlement procedures of the ospar Convention, the ec Treaty and the Euratom Treaty “deal with disputes concerning the interpretation or application of those agreements, and not with disputes arising under the Convention”.176 In this respect, the Tribunal states that even if the three aforementioned treaties contained rights or obligations similar or identical to the rights and obligations established in the Convention, “the rights and obligations under those agreements have a separate existence from those under the Convention”. According to itlos, it may occur that the application of international law rules on interpretation of treaties to provisions similar to or identical with those found in different treaties “may not yield the same results”, having regard to, inter alia, differences in respective contexts, objects and purposes, subsequent actions of the parties and the travaux préparatoires.177 For these reasons, considering that the dispute “before the Annex vii Arbitral Tribunal concerns the interpretation or application of the Convention and no other agreement”, and that “only the dispute settlement procedures under the Convention are relevant to that dispute”, itlos concludes by stating, for the purposes of determining whether the arbitral tribunal had prima facie jurisdiction or not to deal with the case, that “article 282 of the Convention is not applicable to the dispute submitted to the Annex vii Arbitral Tribunal”.178 Moreover, the Tribunal has expressed its view on a matter that affects both articles 281 and 282 (in the Tuna cases) as well as article 283 (in the Tuna cases and in the mox Plant case). In the Southern Bluefin Tuna cases, Japan claimed, to object to the jurisdiction of the Tribunal, in relation to article 281, that the requirements to apply the procedures set out in Section 2 of Part xv unclos were not fulfilled. In particular, in Japan’s view, it was not accomplished the condition of not having arrived 174 175 176 177 178

Order, paras. 45 to 47. Order, para. 48. Emphasis added. Order, para. 49. Emphasis added. Order, paras. 50 and 51. Order, paras. 52 and 53.

72

chapter 1

at a settlement through the means provided by the 1993 Convention because the possibilities for a settlement offered by that article were not exhausted. Furthermore, in the same sense, in relation to article 283, Japan held that Australia and New Zealand had not complied with their obligation to proceed to an exchange of views as imposed by that provision.179 The Japanese argument was rebutted by its opponents, both in respect to article 281 and article 283, by stating that there had been an intent to negotiate both in the ambit of the 1982 Convention and in that of the 1993 Convention as well; and that such intent had materialized, inter alia, in a fruitless exchange of letters.180 In addition, in the mox Plant case, the United Kingdom argued, in this case solely in relation to article 283, that Ireland had not even fulfilled the request for an exchange of views as imposed by that provision.181 As in the previous case, this position was also refuted by the plaintiff by pointing out its reiterated and unsuccessful attempts to reach a negotiation, which was supported as well by an abundant exchange of correspondence.182 In my view, the exchange of views of article 283 might be qualified as a condition to proceed, that is, a prerequisite for the proceedings to move forward, and whose non fulfillment would provoke the suspension of the said proceedings or, as the case may be, the inadmissibility of the application. However, the fact that this issue has been dealt with, in connection to article 281, as a condition to activate the Part xv procedures, makes it also acceptable as a matter of jurisdiction. This is the line followed by itlos. In this sense, the aforementioned provisions allow the Hamburg Tribunal to state that, once it is established that there has been either an intent for negotiation by the applicant or that the negotiations have been developed without success,183 a State Party is not obliged “to pursue procedures under Part xv, Section 1, of the Convention” (in respect to article 281) or “to continue with an exchange of views” (in respect to article 283) “when it concludes that the possibilities of settlement [reaching agreement] have been exhausted”.184 Furthermore, both New Zealand and Australia, in the Tuna cases, and Ireland, in the mox Plant, attempted to negotiate not only upon the basis of unclos but also of the remaining treaties in play.185 In fact, the 179 Order of 27 August 1999, paras. 53 and 56. 180 Order, paras. 57 to 59. 181 Order mox Plant, para. 54. 182 Order, cit., paras. 58 and 59. 183 Order in Tuna cases, paras. 56 to 59, and Order in mox Plant case, paras. 54 to 59. 184 Order Tuna, para. 60; Order mox Plant, para. 60. 185 In Tuna cases, 1993 Convention, and in mox Plant cases, the ec Treaty and the ospar Convention.

Principal Jurisdiction

73

origin of such negotiations occurred in the framework of the dispute concerning the other treaties; and only later did it reference the Law of the Sea Convention. This was particularly apparent in the Tuna cases.186 In both cases the Hamburg Tribunal also seemed to bear these early negotiations in mind. Apparently, it might be understood as a flexibilization of the definition of a dispute concerning the interpretation or application of the Convention, in a similar approach to the position defended by Japan, the United Kingdom and, finally, the Annex vii Arbitral Tribunal in the Tuna cases. However, in my view, such a conclusion would be exaggerated, since in both cases the International Tribunal for the Law of the Sea took great care in noting that during negotiations, both Australia and New Zealand, in the Tuna cases, and Ireland, in the mox Plant case, expressly alleged that their dispute also concerned the 1982 Convention and that they would use its settlement procedures for seeking a resolution.187 Conclusions similar to those of itlos were reached by the second Annex vii arbitral tribunal in history, that is, the one constituted for the mox Plant case. The Arbitral Tribunal constrained itself to analyze its prima facie jurisdiction for the purpose of determining whether or not provisional measures should be adopted and, accordingly, aligned itself with the Order given by itlos in this regard while the constitution of the said Arbitral Tribunal was pending.188 The Arbitral Tribunal, nevertheless, decided to suspend the procedure for reasons connected to the distribution of the competences between the European Community and its two States Members confronting each other in this case (Ireland and the United Kingdom). It is well known that, in its Judgment of 30 May 2006, the then European Communities Court of Justice declared that Ireland had violated the ec Law by submitting its application to a forum other than the Luxemburg Tribunal itself.189 Accordingly, once the issue of the competence titular (the European Community or the States Parties to the dispute) was clarified in the ec ambit,190 Ireland ended up having to withdraw its claim against the United Kingdom for the entire case, that is, for both its request on provisional measures and its application on the merits, thus provoking the subsequent termination of the proceedings decided by the Annex vii Arbitral Tribunal in its Order n° 6, of 6 June 2008.191 Therefore, and unlike the Tuna 186 187 188 189 190 191

See the Tuna Order, para. 57. Tuna Order, para. 58; mox Plant Order, para. 61. Article 290 unclos. Case C 459/03. Order n° 3 of the Annex vii Arbitral Tribunal, 24 June 2003, paras.20 ss. This finale is analysed in the section of this book devoted to the ratione personae jurisdiction of itlos. See, in particular, Chapter 4.

74

chapter 1

Arbitral Tribunal, the mox Plant Arbitral Tribunal did not have the opportunity to make a final pronouncement itself on the question of the parallelism of treaties and its own competence in this complex matter of jurisdiction. Either way, the reasoning of the mox Plant Arbitral Tribunal, in relation to the objections to its competence raised by the United Kingdom, seemed to go along with the line of argument concerning the parallelism of treaties as followed by itlos. After recognizing that it did not find any reason to disagree with itlos when this tribunal found that the arbitral tribunal in question would prima facie have jurisdiction over the dispute, the mox Plant Arbitral Tribunal stated: “(…) it is apparent that Ireland has presented its claims on the basis of various provisions of the Convention; the Parties agree that there is a dispute concerning the mox plant; that dispute clearly concerns the interpretation and application of the Convention (in that the Parties have adopted different legal positions on that matter); and there is nothing which manifestly and in terms excludes the [arbitral] Tribunal’s jurisdiction”.192 Furthermore, after assuming, like itlos, that the condition imposed by article 283 had been fulfilled, the mox Plant Arbitral Tribunal added: “(…) It is true that the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (“the ospar Convention”) is relevant to some at least of the questions in issue between the Parties, but the Tribunal does not consider that this alters the character of the dispute as one essentially involving the interpretation and application of the Convention. Furthermore, the Tribunal is not persuaded that the ospar Convention substantially covers the field of the present ­dispute so as to trigger the application of articles 281 or 282 of the Convention”.193 Regarding in particular article 283 unclos, and looking at the Orders on provisional measures in the cases M/V Louisa and ara Libertad, it seems that, when the absence of an exchange of views in breach of article 283 is alleged in isolation, that is, without articles 281 and/or 282, it is examined by the International Tribunal for the Law of the Sea as a matter of admissibility.194 Either way, whatever its accurate location may be, the doctrine that “a State Party is not obliged to continue with an exchange of views when it concludes that the possibilities of reaching agreement have been exhausted” is consistently followed by itlos, as these two Orders respectively show.195 192 Order n° 3, cit., para. 14. Emphasis added. 193 Order n° 3, cit., para. 18. 194 See respectively Orders of 23 December 2010 (mv Louisa) (paras. 54 to 65) and 15 December 2012 (ara Libertad) (paras. 68 to 72). 195 See, in particular, paragraphs 63 (mv Louisa) and 71 (ara Libertad).

Principal Jurisdiction

75

Regarding the International Court of Justice, in the Land and Maritime Boundary dispute between Cameroon and Nigeria, the Court did not have the opportunity to take a stand on the relation between the optional clause and the procedures of Part xv of the Convention, particularly as to article 282. The application was submitted to the Court by Cameroon on the basis of ­article 36.2 of the icj Statute and the declarations made by both States pursuant to it. Both Cameroon (19 November 1985) and Nigeria (14 August 1986) ­ratified the Law of the Sea Convention before its general entry into force (16 November 1994) but they made no declarations ex article 298 unclos excluding the delimitations matters from the compulsory procedures entailing binding decisions. The application was filed the 29th of March 1994, but the Memorial by Cameroon was not filed until the 6th of March 1995 and the objections by Nigeria to the icj competence were not filed until December 1995.196 Since the application was filed with the icj directly by way of article 36.2 icj st, the question whether the declarations made by both countries according to the optional clause system would have helped Nigeria to avoid the  proceedings before an Annex vii arbitral tribunal or itlos remained unanswered. But, on the other hand, since neither Nigeria nor Cameroon had made declarations according to article 298 unclos excluding delimitation issues, the opportunity to learn what might have happened had such an objection been raised before The Hague Court remained equally unanswered. Nevertheless, the International Court of Justice has had the opportunity to take a position, in the same case, both in its jurisdictional phase and in its judgment on the merits, on the relation between articles 74 and 83 unclos and the optional clause system and, indirectly, on Part xv procedures. Both in its jurisdictional stage and in the merits one, Nigeria objected that neither the requirements of unclos articles 74.2 (delimitation of exclusive economic zones between States with opposite or adjacent coasts) nor 83.2 (delimitation of the continental shelves in the same cases) were met.197 According to both provisions, which are identical, “If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part xv”.198 Focusing ourselves in the jurisdictional phase, Nigeria stated, in respect to articles 74 and 83, that their “sub-clause 2 expressly allows reference to judicial settlement of disputes only if no agreement can be reached within a

196 Judgment 11 June 1998, para. 5 (icj Reports, 1998). 197 Preliminary objections, paragraphs 7.27 (in the judgment this argument is not reproduced) and 7.28. 198 Emphasis added.

76

chapter 1

reasonable period of time”.199 Since, in its opinion, Cameroon “has failed entirely to negotiate in good faith with a view to reaching agreement on the respective maritime zones of the parties beyond Point G”,200 Nigeria reached the conclusion that “the Court lacks jurisdiction in relation to the delimitation of the maritime zones of the parties beyond ‘Point G’”.201 However, the icj, after noting that “what is (…) in dispute between the Parties and what the Court must decide now is whether the alleged absence of sufficient effort at negotiation constitutes an impediment for the Court to accept Cameroon’s claim as admissible or not”, and accepting that “this matter is of a genuinely preliminary character”,202 stated that “in this case the Court has not been seised on the basis of article 36, paragraph 1, of the Statute, and, in pursuance of it, in accordance with Part xv of the United Nations Convention on the Law of the Sea relating to the settlement of disputes arising between the parties to the Convention with respect to its interpretation or application. It has been seised on the basis of declarations made under Article 36, paragraph 2, of the Statute, which declarations do not contain any condition relating to prior negotiations to be conducted within a reasonable time period”.203

199 200 201 202 203

Cit. Emphasis added. Preliminary objections, cit., paragraph 7.31. Preliminary objections, cit., paragraph 7.32. Judgment of 11 June 1998, para. 107 (icj Reports, 1998). Judgment, cit., para. 109. Emphasis added. In view of the rejection by the icj of Nigeria’s preliminary objections, in the merits phase, this country reproduced the nuclear part of its arguments, that is, the absence of a prior negotiation between the parties (with respect to one of the sections of the boundary), in this case on the basis of articles 74 and 83, first paragraph, not as a “procedural prerequisite” but as a “substantive rule.” In particular, as reproduced in the icj Judgment on the merits of 10 October 2002 (icj Reports, 2002), “(…) As to the question of the substantive law applicable to the dispute, Nigeria argues that Article 74, paragraph 1, and Article 83, paragraph 1, of the United Nations Convention on the Law of the Sea require that the parties to a dispute over maritime delimitation should first attempt to resolve their dispute by negotiation. According to Nigeria, these provisions lay down a substantive rule, not a procedural prerequisite. Negotiation is prescribed as the proper and primary way of achieving an equitable maritime delimitation, and the Court is not a forum for negotiations” (para. 240). In response to such allegations, the Court affirms that, “Articles 74 and 83 of the United Nations Law of the Sea Convention do not require that delimitation negotiations would be successful; like all similar obligations to negotiate in international law, the negotiations have to be conducted in good faith. The Court reaffirms its finding, in regard to the preliminary objections, that negotiations have indeed taken place (…)” (para. 244).

Principal Jurisdiction

77

3.1.1.4 Disputes Falling and Not Falling under the Compulsory Procedures Entailing Binding Decisions of unclos The general rule, as regards the disputes concerning the interpretation or application of the Convention submitted to its settlement system, is the binding principle. This is recognized in article 286, heading the section devoted to the compulsory procedures entailing binding decisions. However, the fact is that the Law of the Sea Convention, as anticipated by the said article, sets out a number of exceptions and limits to that rule. Not all disputes concerning the interpretation or application of the Convention, even under its settlement system, are submitted to the compulsory procedures entailing binding decisions of that treaty. As apparent since the beginning of the iii United Nations Conference on the Law of the Sea, there was a sharp conflict between the partisans of a compulsory settlement system for all disputes on the interpretation or application of the Convention, without exception, and the partisans of the projection of coastal State sovereignty over a vast new space covering up to 200 miles from the baselines (the then economic zone). This latter group was strongly opposed to any submission of disputes involving that zone to any jurisdiction other than that of the own coastal State.204 What resulted was ultimately the elaboration of a flexible system composed of matters directly excluded from the compulsory system, matters which States Parties can voluntarily exclude through an express declaration and matters directly falling under the compulsory procedures entailing binding decisions. Exclusions from the compulsory settlement system are set up and regulated in Section 3 of Part xv (articles 297 to 299) and may be divided in two major groups: limitations or “automatic” exceptions (article 297) and optional exceptions (article 298). There is a substantial difference between one and the other: the limitations are excluded at the very root of the compulsory settlement system. Therefore, a dispute on issues exempted under article 297 could only be submitted to the International Tribunal for the Law of the Sea by agreement between both parties in conflict; article 299 expressly accedes to this possibility, though perhaps unnecessarily. On the contrary, optional exceptions affect disputes that are included in the compulsory system with the particularity that they can be excluded through a declaration by the interested State. Unlike the automatic exceptions, the State in question is required to opt out. 204 As W.S. Amerasinghe, President of the iii Law of the Sea Conference pointed out, the question of including or excluding certain disputes relating to the economic zone from binding dispute settlement procedures was not merely a procedural or marginal issue but a substantive one (Memorandum by the President, WP.9/Add.1, para. 31. Of. Docs., vol. v, p. 135).

78

chapter 1

A Disputes Excluded from the Compulsory Settlement System (Limitations or “Automatic” Exceptions of Article 297)

As we have just seen, one of the most significant conflicts to occur during the Third Law of the Sea Conference was centered on the new area “gained” on the high seas by coastal States, that is, the exclusive economic zone (ezz). That new area represented the clashing point between the new rights claimed by coastal States (fishing, marine scientific research and environmental protection) and the traditional freedoms of the high seas that those States might guarantee to the rest of States in that area (navigation, overflight and laying submarine cables and pipelines). As for the settlement of disputes concerning the eez, the original extreme positions which demanded that all disputes be submitted to compulsory procedures, on the one hand, versus the extreme opposite of excluding all of them from such procedures, on the other hand, were both initially set forth as a conditio sine qua non for the acceptance of the new treaty. Over time these positions softened thanks to the so called “glgl”,205 and gave way to less extreme stances, which was far more in keeping with the “package deal” spirit that was essential in the creation of a treaty as complex as unclos. In this context, the coastal States got to exclude the most sensitive matters regarding the eez (fishing and scientific research) from the compulsory settlement system while the partisans of the compulsory settlement system still managed to have what they considered to be the most important freedoms recognized (navigation, overflight, etc.). The result of such a delicate rapprochement was, mainly, article 297, whose text is as follows: Article 297 Limitations on applicability of Section 2 1. Disputes concerning the interpretation or application of this Convention with regard to the exercise by a coastal State of its sovereign rights or jurisdiction provided for in this Convention shall be subject to the procedures provided for in Section 2 in the following cases: (a) when it is alleged that a coastal State has acted in contravention of the provisions of this Convention in regard to the freedoms and rights of navigation, overflight or the laying of submarine cables and pipelines, or in regard to other internationally lawful uses of the sea specified in article 58; (b) when it is alleged that a State in exercising the aforementioned freedoms, rights or uses has acted in contravention of this Convention 205 “Give a little, get a little”.

Principal Jurisdiction

79

or of laws or regulations adopted by the coastal State in conformity with this Convention and other rules of international law not incompatible with this Convention; or (c) when it is alleged that a coastal State has acted in contravention of specified international rules and standards for the protection and preservation of the marine environment which are applicable to the coastal State and which have been established by this Convention or through a competent international organization or diplomatic conference in accordance with this Convention. (…) 2. (a) Disputes concerning the interpretation or application of the provisions of this Convention with regard to marine scientific research shall be settled in accordance with Section 2, except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute arising out of: (i) the exercise by the coastal State of a right or discretion in accordance with article 246; or (ii) a decision by the coastal State to order suspension or cessation of a research project in accordance with article 253(…).206 3. (a) Disputes concerning the interpretation or application of the provisions of this Convention with regard to fisheries shall be settled in accordance with Section  2, except that the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the  allocation of surpluses to other States and the terms and conditions  established in its conservation and management laws and regulations.207 206 “(b) A dispute arising from an allegation by the researching State that with respect to a specific project the coastal State is not exercising its rights under articles 246 and 253 in a manner compatible with this Convention shall be submitted, at the request of either party, to conciliation under Annex v, Section 2, provided that the conciliation commission shall not call in question the exercise by the coastal State of its discretion to designate specific areas as referred to in article 246, paragraph 6, or of its discretion to withhold consent in accordance with article 246, paragraph 5.” 207 “(b) Where no settlement has been reached by recourse to Section 1 of this Part, a dispute shall be submitted to conciliation under Annex v, Section 2, at the request of any party to the dispute, when it is alleged that:

80

chapter 1

As it may be noticed, the reproduced provision, despite its complex text, reflects the aforementioned compromise on the eez, that is, in outline:208 1/the exclusion from the compulsory jurisdiction of disputes concerning fisheries and scientific research within that zone (297.2 and 3); and 2/submission to compulsory jurisdiction of disputes concerning the freedoms of navigation, overflight and laying of submarine cables and pipelines (and the operations linked to them), as well as the disputes concerning marine environmental protection, also located in that zone (297.1). As for disputes excluded from the binding procedures, article 297 sets out a general limitation in respect to the sovereign rights and jurisdiction of a coastal State in its eez (297.1) and two particular limitations concerning marine scientific research (297.2) and fisheries (297.3). Beginning with particular limitations in respect to the exception of the disputes concerning marine scientific research,209 this is not developed from a spatial perspective but rather as a general one in respect to every marine space where scientific research may be carried out. Formally, the rule is that all disputes concerning marine scientific research are submitted to the compulsory jurisdiction excepting those expressly excluded by article 297.2. These are disputes that arise from the exercise of a coastal State of a right or discretion in accordance with article 246 or a decision by a coastal State to order the suspension or cessation of a research project in accordance with article 253. The fact is, nonetheless, that a great deal of (i) a coastal State has manifestly failed to comply with its obligations to ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not seriously endangered; (ii) a coastal State has arbitrarily refused to determine, at the request of another State, the allowable catch and its capacity to harvest living resources with respect to stocks which that other State is interested in fishing; or (iii) a coastal State has arbitrarily refused to allocate to any State, under articles 62, 69 and 70 and under the terms and conditions established by the coastal State consistent with this Convention, the whole or part of the surplus it has declared to exist. (c) In no case shall the conciliation commission substitute its discretion for that of the coastal State. (d) The report of the conciliation commission shall be communicated to the appropriate international organizations. (e) In negotiating agreements pursuant to articles 69 and 70, States Parties, unless they otherwise agree, shall include a clause on measures which they shall take in order to minimize the possibility of a disagreement concerning the interpretation or application of the agreement, and on how they should proceed if a disagreement nevertheless arises.” 208 Regarding the structure and complexity of this article 297, see, inter alia, Treves, T., “The Jurisdiction of the International Tribunal for the Law of the Sea”, Indian Journal of International Law, vol. 37 (3), 1997, pp. 396–419. 209 On this matter, see: Lukaszuk, L., “Settlement of International Disputes concerning Marine Scientific Research”, Polish Yearbook of International Law, vol. xvi, 1987, pp. 39–56.

Principal Jurisdiction

81

marine scientific research and, accordingly, most of the potential disputes arising from it, are going to be focused on the eez and the continental shelf and fall within the scope of the two mentioned provisions, which are precisely those excluded from compulsory jurisdiction. Pursuant to article 246, coastal States, in the exercise of their jurisdiction, have the right to regulate, authorize and conduct marine scientific research in their exclusive economic zone and on their continental shelf (para.1). Those activities must be carried out with the consent (para. 2), that coastal States shall grant, in normal circumstances, for marine scientific research projects by other States or competent international organizations in their exclusive economic zone or on their continental shelf to be carried out in accordance with the Convention, exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind (para.3). However, coastal States may in their discretion withhold their consent (para. 5).210 On the other hand, by virtue of article 253,211 a coastal State may require either the 210 Those cases happen (para. 5) when the project: (a) is of direct significance for the exploration and exploitation of natural resources, whether living or non-living; (b) involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment; (c) involves the construction, operation or use of artificial islands, installations and structures referred to in articles 60 and 80; (d) contains information communicated pursuant to article 248 regarding the nature and objectives of the project which is inaccurate or if the researching State or competent international organization has outstanding obligations to the coastal State from a prior research project. Nevertheless, coastal States may not exercise their discretion to withhold consent under subparagraph (a) in respect of marine scientific research projects to be undertaken in accordance with the provisions of this Part on the continental shelf, beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, outside those specific areas which coastal States may at any time publicly designate as areas in which exploitation or detailed exploratory operations focused on those areas are occurring or will occur within a reasonable period of time. Coastal States shall give reasonable notice of the designation of such areas, as well as any modifications thereto, but shall not be obliged to give details of the operations therein (para. 6). 211 Article 253 Suspension or cessation of marine scientific research activities (1) A coastal State shall have the right to require the suspension of any marine scientific research activities in progress within its exclusive economic zone or on its continental shelf if: (a) the research activities are not being conducted in accordance with the information communicated as provided under article 248 upon which the consent of the coastal State was based; or (b) the State or competent international organization conducting the research activities fails to comply with the provisions of article 249 concerning the rights of the coastal State with respect to the marine scientific research project.

82

chapter 1

suspension or cessation of any marine scientific research in progress when any of the situations set out in that article, which are focused in the violation of conditions established by articles 248212 and 249,213 occurs.

(2) A coastal State shall have the right to require the cessation of any marine scientific research activities in case of any non-compliance with the provisions of article 248 which amounts to a major change in the research project or the research activities. (3) A coastal State may also require cessation of marine scientific research activities if any of the situations contemplated in paragraph 1 are not rectified within a reasonable period of time. (4) Following notification by the coastal State of its decision to order suspension or cessation, States or competent international organizations authorized to conduct marine scientific research activities shall terminate the research activities that are the subject of such a notification. (5) An order of suspension under paragraph 1 shall be lifted by the coastal State and the marine scientific research activities allowed to continue once the researching State or competent international organization has complied with the conditions required under articles 248 and 249. 212 Article 248 Duty to provide information to the coastal State States and competent international organizations which intend to undertake marine scientific research in the exclusive economic zone or on the continental shelf of a coastal State shall, not less than six months in advance of the expected starting date of the marine scientific research project, provide that State with a full description of: (a) the nature and objectives of the project; (b) the method and means to be used, including name, tonnage, type and class of vessels and a description of scientific equipment; (c) the precise geographical areas in which the project is to be conducted; (d) the expected date of first appearance and final departure of the research vessels, or deployment of the equipment and its removal, as appropriate; (e) t he name of the sponsoring institution, its director, and the person in charge of the project; and (f) t he extent to which it is considered that the coastal State should be able to participate or to be represented in the project. 213 Article 249 Duty to comply with certain conditions 1. States and competent international organizations when undertaking marine scientific research in the exclusive economic zone or on the continental shelf of a coastal State shall comply with the following conditions:  (a) ensure the right of the coastal State, if it so desires, to participate or be represented in the marine scientific research project, especially on board research vessels and other craft or scientific research installations, when practicable, without payment of any remuneration to the scientists of the coastal State and without obligation to contribute towards the costs of the project (b) provide the coastal State, at its request, with preliminary reports, as soon as ­practicable, and with the final results and conclusions after the completion of the research;

Principal Jurisdiction

83

In this sense, it might be understood that, by constraining the exclusion from compulsory jurisdiction to the discretionary powers of the coastal State, the compulsory procedures entailing binding decisions of unclos could have a certain field of operation in all cases where, at least in theory, the coastal State were obliged to grant its permit. However, the extent of the discretionary powers of the coastal State is, in reality, so wide that it is hard to imagine disputes concerning scientific research activities in the eez or the continental shelf not falling under such exception. A possible case for the binding procedures could be that of disputes where it is alleged that the coastal State is exercising its rights under articles 246 and 253 in a manner not compatible with the Convention, but it is precisely those cases which are explicitly submitted by way of article 297 to the Annex V conciliation at the request of any party.214 In respect to disputes concerning fisheries issues,215 what happens is something similar to that which occurs with issues regarding marine scientific research. Apparently, the rule, formally speaking, is the submission of all these (c) undertake to provide access for the coastal State, at its request, to all data and samples derived from the marine scientific research project and likewise to furnish it with data which may be copied and samples which may be divided without detriment to their scientific value; (d) if requested, provide the coastal State with an assessment of such data, samples and research results or provide assistance in their assessment or interpretation; (e) ensure, subject to paragraph 2, that the research results are made internationally available through appropriate national or international channels, as soon as practicable; (f) inform the coastal State immediately of any major change in the research programme; (g) unless otherwise agreed, remove the scientific research installations or equipment once the research is completed. 2. This article is without prejudice the conditions established by the laws and regulations of the coastal State for the exercise of its discretion to grant or withhold consent pursuant to article 246, paragraph 5, including the requirement of a prior agreement for making internationally available the research results of a project of direct significance for the exploration and exploitation of natural resources. 214 Article 297.2.b. 215 Regarding the settlement of disputes in fisheries issues in unclos, see, inter alia: Casado Raigón, R., “Règlement des différends”, in Vignes, D., Casado, R., Cataldi, G., Droit international de la peche maritime, Bruylant, Bruxelles, 2000, pp. 316–365; Meseguer, J.L., “La solución jurisdiccional obligatoria de las controversias en el nuevo Derecho del Mar: las excepciones en materia de recursos vivos”, redi, 38, 2, 1986, pp. 571–590; Mirbahavi, F., “Fishery disputes settlement and the Third United Nations Conference on the Law of the Sea”, Revue de droit international, de sciences diplomatiques et politiques, 57, 1979, pp. 45–58; Oda, S., “Fisheries under the United Nations Convention on the Law of the Sea”, ajil, vol. 77, n°4, Oct.1983, pp. 739–755; Rosenne, S., “Settlements of fisheries disputes in the exclusive economic zone”, ajil. vol. 73, 1979, pp. 89–104.

84

chapter 1

disputes to binding settlement procedures. However, the “punctual” limitation imposed by the said article leaves that general rule virtually devoid of content. Hence, while it is solemnly affirmed that the disputes concerning the interpretation or application of the Convention relating to fisheries “shall be settled in accordance with Section 2 [of Part xv]”, this statement is immediately qualified by the statement that a coastal State shall not be obliged to accept the submission to such settlement procedures of “any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise”. If we take into account that the vast majority of captures are made in that area, we will have a very accurate idea of what unclos reserves to compulsory procedures entailing binding decisions in fisheries matters. In view of the particular limitations in fisheries and marine scientific research to which we have just been referring, one may wonder as to the extent of the general limitation set out in article 297.1. As we have seen before, according to that provision the compulsory procedures entailing binding decisions do not apply to all disputes concerning the interpretation or application of the Convention with regard to the exercise by a coastal State of its sovereign rights or jurisdiction provided for in that treaty. The exceptions are: 1/disputes concerning the exercise of freedoms and rights of navigation, overflight, laying of submarine cables and pipelines or other internationally lawful uses of the sea specified in article 58 (that is, those associated with the operation of ships, aircrafts and submarine cables and pipelines), and 2/certain disputes concerning the protection and preservation of the marine environment. If we focus on the terms “sovereign rights” and “jurisdiction” of the coastal State, we will find that they are mentioned by unclos in the regulation concerning the eez and the continental shelf, but not in that concerning the inland waters, territorial sea, contiguous zone and the archipelagic waters. In particular, in relation to the eez, the Convention recognizes the coastal States: 1/sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil;216 2/jurisdiction (…) with regard to marine scientific research;217 3/jurisdiction (…) with regard to the protection and preservation of the marine environment;218 4/jurisdiction (…) with regard to the establishment and use of artificial islands, installations and structures,219 as well as the exclusive right to construct them and to authorize and regulate their construction, operation and

216 217 218 219

Article 56.1.a. Article 56.1.b.ii. See also article 246.1 and 2. Article 56.1.b.iii. Article 56.1.b.i.

Principal Jurisdiction

85

use,220 and exclusive jurisdiction over such artificial islands, installations and ­structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations.221 In addition, regarding the continental shelf, the Montego Bay Convention recognizes the coastal States: 1/sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources.;222 2/the application mutatis mutandis of article 60 to artificial islands, installations and structures on the continental shelf;223 3/the right to regulate, authorize and conduct, in the exercise of their jurisdiction, marine scientific research to be conducted by other States or international organizations.224 And to the contrary, in other marine spaces a coastal State is not granted – at least in these specific words – “sovereign rights” or “jurisdiction”. We find this, in particular, in dealing with firstly, both territorial seas225 and archipelagic waters226 where coastal States and archipelagic States are granted an extension of their sovereignty; and secondly with the contiguous zone in which the coastal State has the power to exercise the control necessary to prevent and punish the infringement of its customs, fiscal, immigration or sanitary laws and regulations committed within its territory or territorial seas;227 this power, as Cannone observes, extends also to what has been called “archaeological area”, in this case according to article 303.228 Insofar as article 297.1 does not use the word “sovereignty” but rather “sovereign rights” and “jurisdiction”, might it be interpreted that coastal States gained for their eezs and continental shelves a protection regime even stronger than the one protecting them in respect to their own territorial seas and archipelagic waters? In short, in view of article 297, regarding disputes concerning the interpretation or application of unclos in respect to the exercise of a coastal State’s sovereignty over its territorial sea (or archipelagic waters), should they be submitted to the procedures of Section 2 or, on the contrary, should they be excluded from the compulsory settlement procedures entailing binding decisions in the same way as those relating to the eez and continental shelf? G. Singh appears to favor the extension of the limitations over the territorial sea and the archipelagic waters, as provided in article 297.1. He bases his arguments on the greater strength of the rights sovereignty 220 221 222 223 224 225 226 227 228

Article 60.1. Article 60.2. Article 77.1. Article 80. Article 246.1 and 2. Article 2. Article 49. Article 33. Cannone, A., Il Tribunale Internazionale del Diritto del Mare, Cacucci, Bari, 1991, p. 82, note 2.

86

chapter 1

implies for a coastal State and thus found it necessitated stronger protection.229 For his part, Eiriksson, affirms that “it does not suffice to rely on the assessment that sovereign rights and jurisdiction may be seen as less inclusive than sovereignty; it remains clear that these concepts do differ from sovereignty and a need was expressed to treat them differently in the substantive provisions of the Convention and, accordingly, in the provisions on the settlement of disputes”.230 In my view, arguments can be posed pro or contra either position.231 However, the issue has a significance that is more apparent than real. Actually, the general rule is that the “user” State lacks rights relating to fishing and marine scientific research over the territorial sea or the archipelagic waters of the coastal State. Hence, unlike what happens in respect to the eez or the continental shelf, the “user” State does not have the chance to dispute the coastal State in regards to the extension of its sovereignty or the exercise of its rights related to fishing or marine research, as it would when dealing with the same topics when related to the exercise of sovereign rights and jurisdiction over the eez and the continental shelf. In principle, disputes regarding the sovereignty of a coastal State over its own territorial sea (or archipelagic waters) in respect to any issue, be it fishing or research, will be few and far between.232 It would be a different thing altogether if a “user” State initiated a claim against a coastal State in matters relating to the protection and preservation of the marine environment or in relation to the exercise of its rights of navigation, which any coastal State is obliged to respect even in its own territorial sea (or archipelagic waters);233 however, these are types of disputes explicitly submitted to the compulsory settlement system by article 297.1 itself. As it may be seen, if we set aside the jurisdiction and rights of the coastal State regarding the artificial islands, structures and installations either over the ezz or the continental shelf, we arrive at issues that fall into the category of “disputes concerning the interpretation or application of this Convention with regard to the exercise by a coastal State of its sovereign rights or jurisdiction provided for in this Convention” which basically cover types of disputes of a  particular nature that are specifically regulated in this same provision 229 Singh, G., United Nations Convention on the Law of the Sea. Dispute Settlement Mechanisms, Academic Pubs., Delhi, 1985, pp. 131 and 132. 230 Eiriksson, G., The International Tribunal for the Law of the Sea, Kluwer, The Hague, London, Boston, 2000, p. 138. 231 Account must be taken, in this point, of the fact that, notwithstanding the remarkable number of limitations and exceptions, the general rule in the unclos settlement system is the submission of disputes to binding procedures. 232 See, in this respect, Treves, T., Le controversie internazionali. Nuove tendenze, nuovi tribunali, Giuffrè, Milano, 1999, pp. 123 and 124. 233 Innocent passage and transit passage.

Principal Jurisdiction

87

(­ article 297). In one case, that concerning the protection and preservation of marine environment, they are submitted to the compulsory settlement system. In the other two, that is, those regarding fisheries and marine scientific research, they are expressly excluded from the compulsory procedures entailing binding decisions. Perhaps, for a better comprehension of article 297, it would have been advisable to delete the general sentence at the beginning of paragraph 1 of that article and regulate the types of disputes case-by-case with a general clause at the end referring to article 286 or to Section 2 for the disputes not covered by those cases. However, the current text in force must be read in the context of extraordinarily complicated balances, both political and juridical. B Disputes which Parties may except from the Compulsory Settlement System (Optional Exceptions in Article 298)

Along with the automatic exceptions, the system permits States to exclude, by means of a declaration, certain types of disputes. The regulation of these exceptions, a real paradigm of the settlement system flexibility, is laid down in article 298. We will refer first to the types of disputes that parties may except and then to the rules governing the declaration for opting out the binding procedures. So as to the types of disputes, article 298.1 states the following: Article 298 Optional exceptions to applicability of Section 2 1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under Section 1, declare in writing that it does not accept any one or more of the procedures provided for in Section 2 with respect to one or more of the following categories of disputes: (a) (i) disputes concerning the interpretation or application of a­ rticles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, Section  2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission; (ii) and (iii) (…);234 234 Sentences ii) and iii) say the following:

88

chapter 1

(b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3; (c) disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention. So as to the disputes on delimitation,235 they are those concerning the delimitation between States with opposing or adjacent coasts of their respective territorial seas (art.15), exclusive economic zones (art.74) or continental shelves (art.83). They do not include, therefore, either the delimitation of those spaces with the common spaces like the seabed area or the high seas, or the hypothetic delimitation of the contiguous zone, in this case even including States with adjacent or opposing coasts. All those disputes, in the event that they arise, fall under the compulsory settlement system. Regarding disputes concerning the interpretation or application of article 15 (delimitation of the territorial sea), they cover not only the cases where an agreement between the parties exists for the purpose of avoiding the criteria of the equidistant median line, but also those cases in which, in the absence of an agreement, it is necessary to delimit the territorial seas of the two States by an alternative method, due to the existence of historic titles or other special circumstances.236

“ii) after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in Section 2, unless the parties otherwise agree; iii) this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties.” 235 See, Manner, E.J., “Settlement of sea boundary delimitation disputes according to the provisions of the 1982 Law of the Sea Convention”, Essays in International Law in Honour of Judge Manfred Lachs, The Hague, Boston, Lancaster, 1984, pp. 625–643; Ossintsev, Y.V., “Peaceful Settlement of Disputes Concerning Maritime Boundary Delimitation”, Soviet Yearbook of Maritime Law, 1988, pp. 26–32. 236 In these cases, the dispute would also deal with the applicability (or not) of article 15.

Principal Jurisdiction

89

With regard to disputes concerning the interpretation or application of articles 74 and 83 (delimitation of the eez and the continental shelf), they are two identical provisions which require prior negotiation. Hence, the most probable iter for the dispute when it is excluded is somehow complex: first, the parties should attempt to reach an agreement for the settlement of the dispute and for this purpose they should proceed to an exchange of views according to article 283; in the absence of an agreement, the conciliation procedure of Annex v would apply, at the request of any party; once the conciliation commission has delivered its report, the parties should again negotiate an agreement – in this case, on the basis of that report; finally, if this second attempt fails, the parties, by mutual consent, would have recourse to procedures set out in Section  2 of Part xv, otherwise the dispute would remain unsettled. As for disputes involving historic bays or titles, both the Spanish text (“bahías o títulos históricos”) and the French one (“baies ou titres historiques”) are somewhat confusing insofar as it is not clear whether they refer to all types of bays or just to historic bays. However, this obscurity vanishes in light of the English text, where article 298.1 uses the expression “historic bays or titles”. The “non-historic” bays, therefore, cannot be excluded by declaration. A more considerable difficulty arises, in my view, from the fact that there is not a definition of historic bay in the 1982 Convention.237 Hence, a dispute (or a part of it) might arise as to whether a particular bay is or is not historic. On the other hand, if we shift our focus to historic titles, a difficulty similar to the one just mentioned surfaces. In unclos there are several references to the “historic”. However, there is no definition of “historic title” nor is it determined whether this alludes only to historic titles over a given marine area,238 which is what I believe, or if it refers to titles over any kind of thing, like, for instance, archaeological objects.239 For all the cases provided in article 298.1.a, unclos establishes the conciliation regulated in its Annex v, Section 2. Nevertheless, in my opinion, on this particular point the text of article 298 is likewise somewhat confusing and might cause difficulties. In the first place, the expression “provided that a 237 The expression “historic bay” is only employed in article 10 to exclude them from the regime set out for the remaining bays. 238 That would be the case, for example, with historic rights as referenced in article 15 when dealing with the delimitation of the territorial sea, on the one hand, or the waters and other features historically regarded as a part of an archipelago, as mentioned in article 46. 239 Articles 149 and 303.

90

chapter 1

State (…) accept (…)” as employed in the text (art.298.1.a.i) does not seem very fortunate. How and when shall such an acceptance be given? Would it be at the time of making the declaration pursuant to article 298? Or would it be when “no agreement within a reasonable period of time is reached in negotiations between the parties”? Might it be at the beginning of the procedure taking place before an Annex vii arbitral tribunal? Or perhaps it would occur at the beginning of an Annex v conciliation procedure as instituted by one of the parties. In my view it is clear that it is not actually a true acceptance. Acceptance is implicit when a declaration to opt out is made according to article 298. That declaration is already an acceptance. In my humble opinion, mention of that should be deleted and the dispute should be submitted straightaway to compulsory conciliation as happens in cases concerning article 297.2 and 3. In the second place, insofar as compulsory conciliation is reserved for disputes arising subsequent to the Convention taking effect – it is not specified whether the entry into force is general or particular – the determination of that critical moment – that is, the point at which the dispute arises, which in turn affects the competence of the conciliation commission to make its report – might prove problematic, especially when dealing with disputes that arose before that specific date but have remained active since. Thirdly, and finally, there is a reference that also seems to me quite problematic. It is a reference made to a type of what we call “mixed” disputes, i.e., disputes that “necessarily involve the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory”. In my view it is clear that these types of disputes – more precisely, the part relating to sovereignty or other rights over continental or insular land – was already excluded, not only from conciliation, but also from the entire settlement system of unclos.240

240 On the contrary, Judge Treves seems to adopt a more open view in a scholarly paper, insofar as he is willing to consider some relevant elements of the case, such as its prevailing aspects or whether the dispute as a whole can be seen as being about the interpretation or application of the Convention. Also he rejects the idea that jurisdiction in these situations should automatically be excluded (Treves, T., “What have the United Nations Convention and the International Tribunal for the Law of the Sea to offer as regards maritime delimitation disputes?”, in Lagoni, R., and Vignes, D.(Eds.), Maritime Delimitation, Nijhoff, 2006, pp. 63–78). In a similar position, see Wolfrum. R., Statement by H.E. Judge Rüdiger Wolfrum, President of the International Tribunal for the Law of the Sea, to the Informal Meeting of Legal Advisers of Ministries of Foreign Affairs, New York, 23 October, 2006, p. 6. See also, regarding mixed disputes: Buga, I., “Territorial sovereignty issues in maritime disputes: a jurisdictional dilemma for law of the sea tribunals”, ijmcl, vol. 27 (1), 2012, pp. 59– 95.

Principal Jurisdiction

91

The 1982 Convention refers to marine areas, not to land areas. Hence, the disputes relating to territories are not disputes concerning the interpretation or application of the Convention. Again it must be recalled that we are dealing here with the compulsory settlement system of unclos, that is, the extent of unclos compulsory procedures entailing binding decisions (including itlos). As explained in the pages dealing with the voluntary jurisdiction of itlos, in my view the jurisdiction of the Hamburg Tribunal is not closed to “mixed” disputes (like those involving sovereignty over islands and the marine spaces surrounding them) if the parties agree to submit them to that forum. But we are here analysing its compulsory jurisdiction, not the voluntary one. So as to the disputes concerning military activities, although the adjective “military” appears in several provisions of the Convention,241 the term “military activity” (or its plural “military activities”), as such, only appears in article 298 and it is not defined therein. This absence of a definition may cause problems of interpretation. The fact that express mention is made of “government vessels and aircraft engaged in non-commercial service” leads one to distinguish, as regards the effects of the optional exception, from among three hypothetical kinds of ­vessels: 1/warships and military aircrafts; 2/government vessels and aircraft engaged in non-commercial service; and 3/other vessels and aircraft. Beginning with the third category, among them one might include government vessels and aircraft engaged in commercial services (should they exist), and non-­ governmental vessels and aircraft, like merchant ships, oceanographic or fishing vessels and commercial aircraft. It is logical to consider them not to be covered by the optional exception. Otherwise, it would be nonsense to expressly mention government vessels and aircraft engaged in non-commercial service, in addition to doing so directly after the word “including”. In respect to government vessels and aircrafts engaged in non-commercial service, as mentioned several times in the Convention, without being defined,242 a distinction may be made between military and non-military activities.243 Military activities fall under the optional exception while non-military activities fall outside of its scope and, accordingly, would remain subject to the compulsory procedures entailing binding decisions, if applicable. However, that might 241 Article 19 (military devices); articles 107, 110, 111 and 224 (military aircraft). 242 In particular, apart from the titles of subsections B and C in Section 3 of Part ii of the Convention, articles 31, 32 and 102 refer to government vessels; and articles 39 (state aircraft) and 102 (government aircraft) refer to military aircraft. 243 For example, the transport of the President or a Minister of a State carried out in a nonmilitary aircraft.

92

chapter 1

leave certain activities outside the scope of this optional exception that should probably otherwise have been included. Regarding warships and military aircrafts (which are mentioned in several provisions of the Montego Bay Convention as well244), article 29 states that: “For the purposes of this Convention, “warship” means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.” There is no definition in kind for military aircraft. Thus, in the absence of an express provision, perhaps those qualities detailed above to warships might serve as a helpful reference. It may be asked, in respect to warships and military aircraft, whether it would be also possible to distinguish, for the purposes of article 298, between military and non-military activities, as happens with government vessels and aircraft, or, on the contrary, it should be understood that every activity carried out by a warship or a military aircraft should be regarded, by definition, as a military activity, thus susceptible to optional exception. Is it possible to speak, about the effects of article 298, on non-military activities developed by warships or military aircraft or, on the contrary, are all activities carried out on those vessels and aircraft to be considered, in this respect, as “military activities”? Summing up: must every activity carried out by a warship or military aircraft be characterized, in every instance, as a military activity for the purposes of article 298? If that were the case, for all States making a declaration excepting these disputes, and for those States engaged in a dispute with them, the extent of the binding settlement system of unclos would be considerably reduced. A significant part of law of the sea disputes have their origin in an act of force conducted from warships or military aircraft, e.g., arrests, attacks, boardings, inspections, etc. Might all these acts be considered exceptionable pursuant to article 298 by the mere fact that they are executed by warships or military aircraft? For example, might the arrest of a fishing vessel by a navy frigate of the detaining State,245 or the “notinnocent” passage of a warship through the territorial sea of a State different than the flag State,246 be considered as “military activities” and, accordingly, 244 In particular, warships are mentioned in articles 30 to 32, 95, 102, 107, 110, 111, 224 and 236, and the military aircrafts are mentioned in articles 107, 110, 111 and 224. 245 For example, the arrests executed by France leading to Camouco, Monte Confurco and Grand Prince cases were carried out by French navy frigates (Floréal and Nivoise ). 246 Article 19.2.

Principal Jurisdiction

93

exceptionable from the compulsory settlement system by a declaration made pursuant to article 298? In my opinion, it is evident the answer is negative. On the other hand, although article 298 is focused on the activities of ships and aircraft, one could also pose the question, by exclusion, of activities carried out by the military from the coast,247 islands or artificial installations, or from the continental shelf or the subsoil of the territorial sea.248 Would all of them be, in every case, susceptible to being characterized as “military activities” for the purposes of article 298? In my view, the answer to these hypotheses must equally be in the negative. In view of the foreseen, it is obvious that an interpretation widely extending the scope of the term “military activities” would lead to a significant reduction or even to an emptying of the compulsory settlement system of unclos. This would be contrary, in my view, to the object and purpose of this major treaty. It seems that the drafters’ intention in this respect was not conferring the exceptionable character to every military activity in general, but to protect a much more specific interest connected to the protection of secrets and the noninterference in military activities which might be considered “normal” (ordinary), such as exercises, manoeuvres, movements, weapons testing, etc. This would call for a more restrictive interpretation, closely related to the idea of the sovereign immunity that is characteristic of certain types of vessels and aircraft, precisely, warships, military aircraft and government vessels and aircraft engaged in non-commercial service.249 Either way, a case-by-case answer to this conundrum provided by international courts and tribunals will offer us a more precise picture of the scope of this optional exception. As for disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3, their incorporation to the catalogue of optional exceptions of article 298 is owed to the impulse of certain coastal States.250 However, this inclusion might have produced the opposite effect to that intended. In the absence of this optional exception, there would always have been a reasonable doubt as to whether or not these disputes (concerning 247 For example, an attack on vessels passing through a strait used for international navigation. 248 For example, the launching of a missile or the testing of certain weapons. 249 See, in this respect, Commentary, vol.v, 298.33 to 35; Janis, M., “Dispute Settlement in the Law of the Sea Convention: The Military Activities Exception”, odil, vol. 4, n° 1, 1977, pp. 51–65. 250 Commentary, cit., 298.36 to 38; Adede, A., The System for Settlement of Disputes of the United Nations Convention on the Law of the Sea. A Drafting History and a Commentary, Nijhoff, Dordrecht, Boston, Lancaster, 1987, p. 108.

94

chapter 1

the law enforcement activities just above mentioned) would fall under the scope of the automatic exception of article 297.2 and 3. In particular, since they are expressly mentioned among the optional exceptions, there is no room for doubt as regards their inclusion within the compulsory settlement system insofar as they are not subject to an express declaration of exclusion pursuant to article 298.251 In addition, this optional exception does not range either to law enforcement activities in regard to the exercise of whatever rights or jurisdiction which are not excluded from the jurisdiction of a court or tribunal under article 297.2 and 3, as itlos appropriately recalls in its Order on provisional measures of 22 November 2013, in the Arctic Sunrise case. As the Hamburg Tribunal affirms, “the declaration made by the Russian Federation with respect to law enforcement activities under article 298, paragraph 1 (b) of the Convention prima facie applies only to disputes excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 and 3, of the Convention” (para.45). So as to disputes with respect to which the Security Council exercises its functions, the origin of this exception is the desire to avoid any overlap between the work of this principal organ of the United Nations and that of the court or tribunal that might be dealing with a dispute.252 It sets forth in my view two particularities. In the first place, we could consider this exception “transversal” in the sense that it affects all kind of disputes and all types of interventions by the unsc, not only those regulated in the Chapter vii of the un Charter. Second, the modus operandi of this exception may be peculiar, as it leads one to consider up to what point it affects not properly the jurisdiction but the continuation of the proceedings, that is, its ability to continue and move forward to the next step and, eventually, to a final resolution. In this respect, the normal situation might be the following: once the dispute arises, the parties hold the initial exchange of views provided in article 283; then, in the absence of an agreement by the parties, the case might be brought either before the un Security Council or before a competent court or tribunal. If the dispute enters a tribunal’s docket before it is submitted to the unsc, the court or tribunal would be competent insofar as the Security Council does not begin to deal with the case. On the other hand, if the sc begins dealing with the case, the court or tribunal must cease its deliberations, though it may continue if, as stated in the provision, the Security Council “decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention.” How would one characterize the intermediate situation 251 Eiriksson, cit., p. 140. 252 Commentary, 298.39.

Principal Jurisdiction

95

when a tribunal or court is forced to stop a procedure before it? Would it be a case of lis pendens? That seems unlikely, because the unsc is not a judicial organ but a political one. Therefore, during that lapse of time, would the tribunal be “provisionally incompetent”? Or, contrarily, are we just dealing with a particular case of suspension that doesn’t affect the jurisdiction of a tribunal dealing with the case? In reference to the declarations’ regime, article 298.2 to 6 states the following: 2. A State Party which has made a declaration under paragraph 1 may at any time withdraw it, or agree to submit a dispute excluded by such declaration to any procedure specified in this Convention. 3. A State Party which has made a declaration under paragraph 1 shall not be entitled to submit any dispute falling within the excepted category of disputes to any procedure in this Convention as against another State Party, without the consent of that party. 4. If one of the States Parties has made a declaration under paragraph 1(a), any other State Party may submit any dispute falling within an excepted category against the declarant party to the procedure specified in such declaration. 5. A new declaration, or the withdrawal of a declaration, does not in any way affect proceedings pending before a court or tribunal in accordance with this article, unless the parties otherwise agree. 6. Declarations and notices of withdrawal of declarations under this article shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the States Parties. In respect to the place, time and form of the declaration: 1 Place

Declarations must be deposited with the un Secretary General, who shall transmit copies not only to the States Parties but also to the itlos itself in accordance with the Agreement on Cooperation and Relationship between the United Nations and the International Tribunal for the Law of the Sea of 18 December 1997.253 2 Time

Declarations, as seen above, can be done at any time, including the moment of signature, ratification, accession or any subsequent action. In respect to their 253 Article 4.1.a.

96

chapter 1

entry into force, in the absence of a provision expressly regulating this matter, it seems logical to understand that it occurs either at the time determined by the declarant or, in the absence of such determination, at the time the declaration is deposited into the hands of the unsg.254 In this latter situation, the solution would be in line with icj jurisprudence in respect to declarations under the optional clause system. From my point of view, this interpretation could be taken into account for those situations.255 Unlike article 287, article 298 does not refer to the expiration of a declaration. In my opinion it would be difficult to deny the power to set up a time-limit to Parties, who had the power to exclude the same dispute indefinitely from the binding settlement system. Moreover, article 298 allows States Parties to revoke their declaration “at any time”, although, unlike article 287, it does not state that the declaration would remain in force three months after its revocation. Hence, it should be understood that the expiration in the case of article 298 is immediate. Either way, similar to article 287, article 298 establishes that neither the renewal nor the withdrawal of a declaration in any way affect proceedings pending before a court or tribunal in accordance with the said article, unless the parties otherwise agree.256 3 Form

The declaration, the renewal, and the withdrawal must all be presented in writing, as resulting from paragraphs 1 and 6 of article 298. No additional formality is required. As to the declarations’ content, article 298 allows them to exclude any one or more of the procedures of Section 2, Part xv with respect to one or more of the categories of disputes listed in that article. Exclusion may be done by subtractive words, that is, by determining in negative the procedures to be excluded for particular categories of disputes identified therein.257 But declarations may also be done by inclusion, or positively, that is to say, stating that the disputes specified in the declaration can only be submitted to the procedures indicated therein, thus implicitly excluding the rest from compulsory jurisdiction.258 It is 254 Obviously with the exception of those declarations made upon signature whose entry into force was delayed to coincide with that of the Convention. 255 See Judgments of 26 November 1957 (Transit Passage over Indian Territory), p. 146 and 11 June 1998 (Land and Maritime Boundary between Cameroon and Nigeria), paras. 21 to 47. 256 Article 298.5. 257 See, for example, the declaration of Norway. 258 See the declaration of Nicaragua accepting only the icj for all categories of disputes set forth in article 298.1.

Principal Jurisdiction

97

obviously possible, and in fact it is frequent, to exclude not only one or two but all procedures of article 287 for all categories of disputes of article 298. This can be done by referring to the procedures as a whole or just mentioning the number of the paragraph instead of listing them one by one.259 Either way, for the declaration to have real utility, it is necessary that among the excluded fora there would be one competent to deal with the excluded type of dispute. Therefore, declarations such as those made by Cuba or Guinea Bissau, in which these countries limit themselves to rejecting the International Court of Justice for all disputes listed in article 298, are useless and have no other effect than to politically damage The Hague Court since this forum lacks the compulsory competence to address article 298 disputes in the absence of a declaration made pursuant to article 287 unclos. In a different vein, would it be possible to add clarifications or “reservations” to a declaration made pursuant to article 298? In my opinion, those who can make a declaration indefinitely excluding all categories of disputes in respect to all States Parties, in relation to all the fora provided in article 287, should be empowered, by virtue of the principle in plus stat minus (the greater includes the lesser) to reduce any of the ambits of its declaration, be they material (reservations ratione materiae) personal (ratione personae) temporal (ratione temporis) or even procedural (ratione “fori”?). On the other hand, they obviously cannot broaden the declaration because doing so would surpass the scope of article 298, and thus become less of a nuanced qualification and more of a genuine reservation, which is forbidden by article 309 unclos. Nevertheless, the strict terms of article 298.3 might pose a question on the possibility of adding certain “reservations” in respect to the forum (ratione “fori”) or the excluded entities (ratione personae). According to that provision, as seen above, a State Party which has made a declaration under article 298.1 shall not be entitled to submit any dispute falling within the excepted category of disputes to any procedure in the Convention, against any other State Party, without the consent of that party. Accordingly, should this provision be interpreted in its terms and those terms taken individually in their broadest sense, it might be understood that a declaration made by a State excluding one single procedure (the icj, for instance) in respect to one single category of the disputes listed in article 298 (for example, that regarding historic bays) in respect to one single State or group of States (for example, the States Parties in the Pact of Bogotá) would be sufficient to exclude all the procedures set out in article 287 (itlos, Annex vii arbitration and special arbitration, besides the icj) regarding all ­disputes mentioned in the same sentence (that is, article 298.1.a, 259 See the declarations by Chile, China, Ecuador, Portugal and the Republic of Korea.

98

chapter 1

including disputes concerning the delimitation of the territorial sea, the eez and the continental shelf between States with opposite or adjacent coasts as well as disputes referring to other historic titles if they exist). In my view, apart from putting paragraphs 1 and 3 of article 298 into direct contradiction, such an interpretation would be clearly opposed to the object and purpose of this provision. In practice, almost all States declaring pursuant to article 298 do not accept any of the procedures of Section  2. However, particular cases can be found, like that of Norway, in which a single procedure is rejected, in this case, Annex vii arbitration. So, should a dispute belonging to one of the categories excluded by the Norwegian declaration arise between that State (which has chosen the icj in its declaration pursuant to article 287) and another like, for example, the Netherlands, which has not made a declaration according to article 298 and has also chosen the icj in its declaration pursuant to article 287, the surprising result would be that the former, Norway, in that strict interpretation of the wording of article 298, paragraph 3, would not be empowered to submit the dispute to The Hague Court. It would be absurd.260 As Casado observes, it is clear that the common will of both parties (Norway and the Netherlands in our example) is to confer competence to the icj in respect to any dispute (with the exception of those listed in article 297) which arises between them concerning the interpretation or application of the Convention; and it is also clear that, given considerations concerning reciprocity, their common will is also to exclude the disputes excepted by one of them (Norway) in application of article 298.1 from Annex vii arbitration, but not to exclude those disputes from the jurisdiction of the International Court of Justice.261 To reconcile the wording of article 298.3 with its object and purpose, three factors should be taken into account: 1/the primary goal of such a provision is to assure the reciprocity between States, thus preventing one from taking advantage of the others; 2/following the reasoning of Casado, what is critical is the search for a common will among the parties in dispute, and such a mutual 260 See, in this respect: Casado Raigón, R., “Règlement des différends”, in Vignes, D., Casado, R., Cataldi, G., Droit international de la peche maritime, Bruylant, Bruxelles, 2000, pp. 349 ss. To see more paradoxical examples resulting from that rigid interpretation of the wording of article 298.3, confront, for example, the declarations of Norway and Nicaragua. The final result would be that, despite both having expressly chosen the icj by a declaration made pursuant to article 287, the Norwegian exception to arbitration vii in respect to the disputes set out in article 298 would prevent them from bringing the case to The Hague Court; precisely what they had explicitly chosen to do. 261 casado, cit.

Principal Jurisdiction

99

consent may converge on the binding nature of the procedure and on the same forum; 3/finally, and no less important, the spirit of the settlement system is to give priority to the compulsory settlement, which is the general rule, over the voluntary one, which is formulated as an exception to the former. Accordingly, in coherence with its nature of a general rule, interpretations leading to a reduction of the compulsory settlement system should be rejected when it is feasible to reach another more concordant with it. In this sense, in light of the wording of article 298.3, and of its object and purpose, the most coherent way to read this provision is to understand that the State which makes a declaration loses the opportunity of submitting the matter excepted in its declaration to compulsory procedures. Thus, the expression “any procedure” should be understood as “any procedure excepted by its declaration” and the expression “another State Party” should be read as “another State Party affected by its declaration”. Finally, regarding the interpretation of declarations, when a doubt is raised as to the real meaning that a declarant wants to give to their words, and particularly to the limits or “reservations” included therein, the jurisprudence of the International Court of Justice concerning the interpretation of declarations made pursuant to the optional clause system might be taken as a reference. In this respect, it is well known, icj gives priority to the will of the declarant without submitting the interpretation of such “reservations” to the rules on interpretation of treaties.262 However, in case of doubt as to the matters to be excepted, that is, to the meaning of the words in article 298.1, which lists the disputes that may be excluded, the interpretation must be in application of the rules of interpretation of treaties as codified by the Vienna Conventions.263 Therefore, to determine the scope of an obscure or doubtful declaration, what should firstly be delimited is the objective range, the real scope of exceptionable issues according to article 298.1, as interpreted in light of the rules regarding the interpretation of treaties. Then, once within the margins offered by the provision, one would pay attention to the preferences of the declarant taking into account, in the absence of its own jurisprudence, the path opened by the icj when interpreting declarations made pursuant to ­article 36.2 of its Statute. As for declarations made to date (28 February 2015), most could be considered as “pure” in the sense that they do not introduce “reservations” or limits to 262 Espaliú Berdud, C., Desarrollos jurisprudenciales y práctica reciente en la jurisprudencia contenciosa de la Corte Internacional de Justicia, Dykinson, Madrid, 2000, pp. 153 ss. 263 Arts. 31 to 33 of Vienna Conventions on the Law of Treaties of 23 May 1969 and 21 March 1986.

100

chapter 1

the designation of procedures and/or categories of disputes. Among those “pure” declarations, ten States have excluded all categories of disputes in article 298 with respect to any of the procedures provided for in article 287,264 one excludes the categories listed in paragraphs a and b,265 two exclude those provided for in paragraphs b and c,266 eleven exclude only those as enumerated in paragraph a,267 one excludes those provided for in paragraph b268 and three exclude only a part of the disputes provided for in one or more paragraphs of article 298.269 Regarding the Australian declaration, of 22 March 2002, Australia excepts all categories of disputes within article 298.1.a, with respect to any procedure set out in article 287. This declaration must be connected to the declaration made by the same State on the same date pursuant to the optional clause system of article 36.2 of the icj’s Statute, within which Australia, in turn, substitutes its declaration of 17 March 1975. This case constitutes, in my view, a positive intent to avoid collisions between declarations made according to one system and the other. Hence, in line with the declaration made according to article 298, by which disputes concerning delimitation are excluded, declaration ex article 36.2 icj st, excludes from the Court’s jurisdiction “(b) any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation”. This clarification effort has had a positive impact in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening) before the icj.270 264 Canada, Chile, China, Ecuador, France, Portugal, Republic of Korea, Russian Federation, Thailand and Tunisia. On the other hand, Argentina has modified its declaration by which it did not accept any of the categories of disputes provided for in article 298. In accordance with its declaration of 26 October 2012, “it withdraws with immediate effect the optional exception to military activities by government vessels and aircraft engaged in non-commercial service.” 265 Mexico. 266 Belarus and the United Kingdom. 267 Angola, Australia, Equatorial Guinea, Gabon, Ghana, Italy, Montenegro, Palau, Saudi Arabia, Spain and Trinidad & Tobago. 268 Cape Verde. 269 In particular, Iceland excludes only disputes in article 83 (paragraph a) and Uruguay only those relating to enforcement activities in connection to article 297.2 and .3 (paragraph b in fine). In addition, Ukraine excludes disputes in article 298.1a and .1b, first case (military activities). 270 See Judgment of 31 March 2014, paras. 30 to 41.

Principal Jurisdiction

101

As seen above declarations made by Cuba and Guinea Bissau lack utility because they exclude any category of dispute set out in article 298 with respect to an international court, the icj, which has no compulsory jurisdiction upon them. However, at the other end of the spectrum, the declaration by Nicaragua, which “accepts only recourse to the International Court of Justice as a means for the settlement of [all] categories of disputes” (as set forth in article 298), has a precise juridical meaning: disputes set forth in article 298 fall under the compulsory settlement system only if the competent forum is the icj, that is, when its opponent in a dispute enlisted in that provision has also chosen The Hague Court to settle it. In other cases, that is, those in which the opponent State to Nicaragua has chosen another forum (for example, itlos) or has not chosen one at all, the categories of disputes set forth in article 298 are then excepted, by means of the Nicaraguan declaration, from compulsory procedures entailing binding decisions. A similar effect could be expected, in my view, from declarations by both Norway and Denmark, insofar as these two countries have chosen the icj pursuant to article 287 and do not accept the Annex vii arbitration (the residual forum) for any of the categories of disputes mentioned in article 298. C

Disputes Submitted to the Compulsory Settlement System

As viewed in the two previous blocks, according to article 297 certain types of disputes are automatically excluded from the compulsory settlement system. Additionally, according to article 298, certain categories of disputes may be excluded as well by the States Parties in unclos by means of a declaration pursuant to this latter provision. Apart from these two instances, the fact is that the general rule is the submission of the dispute to the compulsory procedures entailing binding decisions. This is explicitly stated by article 286, according to which: “Subject to Section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to Section  1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section  [2  devoted to and entitled ‘Compulsory Procedures Entailing Binding Decisions’]”.271 Some categories of disputes are expressly and specifically submitted to a compulsory procedure entailing a binding decision by the Convention, like

271 Article 286 is completed, to these effects, by article 296.1 according to which “Any decision rendered by a court or tribunal having jurisdiction under this section [2] shall be final and shall be complied with by all the parties to the dispute.”

102

chapter 1

those listed in article 187, regarding the Seabed Area, and those found in article 292, concerning the prompt release of vessels and their crews. Both of them, as we will see below, are essential for itlos. In addition to these, as coming from the application of the general rule, the compulsory procedures entailing binding decisions of unclos also cover all those disputes not falling under the limitations of article 297 and those not reached by a declaration made pursuant to article 298. These will be addressed at the end of this block. a

Disputes Concerning the Seabed Area (Section 5, Part xi)

In principle, disputes concerning the interpretation or application of Part xi of the Convention and the so-called Agreement relating to the Implementation of Part xi of the United Nations Convention on the Law of the Sea, done in New York on 28 July 1994, “amending” the former, do not exhaust the potential disputes on the Seabed Area, declared by both customary and conventional international law as the common heritage of Mankind.272 In addition to these, one should at least take into account those disputes concerning the said maritime space and involving States that are parties neither to unclos nor to the 1994 Agreement.273 Nevertheless, the regulation of the settlement of disputes c­ oncerning Part xi of the Convention (as “amended” by the 1994 Agreement), established in unclos, enjoys an importance which is really difficult to ignore. A number of elements contributes to this: 1/the high level of participation in the 1982 Convention and the 1994 Agreement; 2/the customary nature of the proclamation of the Area as the common heritage of mankind, “the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States”;274 3/the undeniable fact that, despite its creation by treaty, the International Seabed Authority (isba) is the one which exclusively organizes and channels the exploration and exploitation of the Area without competitors or opponents to its administration; 4/the fact that some of the States non-Parties to the 1982 Convention have provisionally applied the 1994 Agreement, or have at least signed it,275 thus preventing themselves from acting against its object and purpose.276 The provisions regulating the settlement of disputes concerning the Seabed Area are mostly located outside of Part xv of the Convention. This is a 272 United Nations General Assembly Resolution 2749 (xxv) of 17 December 1970. See also article 136 unclos. 273 This is the case with the United States of America. 274 unclos Preamble, paragraph six. 275 This is the situation with the usa in both cases. 276 Article 18 of Vienna Conventions on the Law of Treaties of 1969 and 1986.

Principal Jurisdiction

103

consequence of the agreement reached during the iii United Nations Conference on the Law of the Sea. Its First Commission, who had been handling the Seabed Area provisions since the beginning, continued its mandate to deal with both substantive law and settlement of disputes, instead of passing the latter on to the Informal Plenary, by then with the mandate of dealing with the general settlement of disputes provisions that form the current Part xv. As a result of this, the settlement of disputes system for the Seabed Area was conceptually integrated into the general settlement system, but the nucleus of the provisions in question is located in Section 5 of Part xi though isolated provisions are found in Part xv to connect and help reconcile the two separated blocks. In addition, the then Sea-Bed Tribunal was itself integrated into what is now the International Tribunal for the Law of the Sea, as its current Seabed Disputes Chamber. Obviously, the provisions regulating the Statute of the Seabed Disputes Chamber are also integrated within the Statute of the whole International Tribunal for the Law of the Sea (Annex vi of unclos).277 One of the key pieces of the settlement system established for this part of the Convention is article 187. This provision can be divided into two parts: 1/As in other parts of the Convention, article 187 regulates the disputes between States Parties concerning the interpretation or application of Part xi, though in this case with the particularity that these disputes are submitted to compulsory jurisdiction; 2/unlike other parts of unclos, the said provision extends the settlement system of this treaty (in particular, the binding settlement system) to a series of disputes with a common element: at least one of the parties in the dispute might not be a State. The disputes listed in article 187 may be classified in different ways. SeebergElverfeldt, whose works have been partially taken into account in this chapter,278 distinguishes among four major categories of disputes: 1/disputes relative to the interpretation or application of Part xi, its Annexes and the 1994 Agreement; 2/actions claiming a violation of unclos; 3/disputes relating to deep seabed mining activities; and 4/claim for damages against the International 277 Article 14 and Section 4. In respect to these historic developments at the Third United Nations Conference on the Law of the Sea, regarding the settlement of disputes concerning the Seabed Area and the integration of the then Seabed Tribunal in the Law of the Sea Tribunal, see Garcia Garcia-Revillo, M., El Tribunal Internacional del Derecho del Mar. Origen, organización y competencia, Ministerio de Asuntos Exteriores y Cooperación y Servicio de Publicaciones de la Universidad Córdoba, Madrid-Córdoba, pp. 49–64. 278 Seeberg-Elverfeldt, N.-J, The settlement of disputes in deep seabed mining (Access, jurisdiction and procedure before the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea), Nomos Verlagsgesellschaft, Baden-Baden, 1998.

104

chapter 1

Seabed Authority. For their part, both Eiriksson279 and Cannone280 use the list and order of article 187 itself in their books. I will also follow the order of article 187, but organize its contents into three major groups: – Disputes between States concerning the interpretation or application of Part xi of the Convention and the Annexes relating thereto (paragraph a); – Disputes in which at least one of the litigants might be a non-State actor (paragraphs b to e); – Other disputes for which the jurisdiction of the Seabed Disputes Chamber is specifically provided in the Convention (paragraph f). 1. Regarding the disputes between States concerning the interpretation or application of Part xi of the Convention and the Annexes relating thereto (art. 187. a), unclos submits to compulsory jurisdiction of the sdc (or to an ad hoc chamber of the latter, or, at the request of all parties to the dispute, to a special chamber of itlos281) the disputes concerning the interpretation or application “of this Part [xi] and the Annexes relating thereto”, which are Annexes iii (Basic Conditions of Prospecting, Exploration and Exploitation) and iv (Statute of the Enterprise). Nevertheless, as Eiriksson observes, the reference to Part xi and Annexes “must be read in light of the Implementation Agreement”,282 insofar as its article 1.1 establishes that “The States Parties to this Agreement undertake to implement Part xi in accordance with this Agreement” and its article 2.1 clearly states that “The provisions of this Agreement and Part xi shall be interpreted and applied together as a single instrument. In the event of any inconsistency between this Agreement and Part xi, the provisions of this Agreement shall prevail”. 2. Regarding Disputes in which at least one of the litigants might be a non-State actor (art.187.b-e), the following categories can be listed:283 2.1. Disputes between the Authority and a State Party concerning acts or omissions of that State Party alleged to be in violation of Part xi or the Annexes thereto, or of rules, regulations and procedures of the Authority adopted in accordance therewith (187.b.i. first sentence); 279 Eiriksson, G., The International Tribunal for the Law of the Sea, Kluwer, The Hague, London, Boston, 2000, pp. 129 ss. 280 Cannone, A., Il Tribunale Internazionale del dirito del mare, Cacucci, Bari, 1991, pp. 162 ss. 281 Article 188.1. 282 Eiriksson, cit., p. 129. 283 As may be deduced from article 190, some of these disputes can become a dispute between States, but the common factor is that they are identified and catalogued precisely in attention to the fact that one of the litigants might be a non-State actor.

Principal Jurisdiction

105

2.2. Disputes between a State Party and the Authority concerning acts or omissions of the Authority alleged to be in violation of Part xi or the Annexes thereto, or of rules, regulations and procedures of the Authority adopted in accordance therewith (187.b.i. second sentence); 2.3. Disputes between a State Party and the Authority concerning acts of the Authority alleged to be in excess of jurisdiction or a misuse of power (187.b.ii); 2.4. Disputes between parties to a contract, being States Parties, the Authority or the Enterprise, state enterprises and natural or juridical persons referred to in article 153, paragraph 2(b), concerning the interpretation or application of a relevant contract or a plan of work (187.c.i); 2.5. Disputes between parties to a contract, being States Parties, the Authority or the Enterprise, state enterprises and natural or juridical persons referred to in article 153, paragraph 2(b), concerning acts or omissions of a party to the contract relating to activities in the Area and directed to the other party or directly affecting its legitimate interests (187.c.ii); 2.6. Disputes between the Authority and a prospective contractor who has been sponsored by a State as provided in article 153, paragraph 2(b), and has duly fulfilled the conditions referred to in Annex iii, article 4, paragraph 6, and article 13, paragraph 2, concerning the refusal of a contract or a legal issue arising in the negotiation of the contract (187.d); 2.7. Disputes between the Authority and a State Party, a state enterprise or a natural or juridical person sponsored by a State Party as provided for in article 153, paragraph 2(b), where it is alleged that the Authority has incurred liability as provided in Annex iii, article 22 (187.e). 2.1. As regards disputes between the Authority and a State Party concerning acts or omissions of that State Party alleged to be in violation of Part xi or the Annexes thereto, or of rules, regulations and procedures of the Authority adopted in accordance therewith (187.b.i. first sentence), firstly, we can include here, by following Seeberg-Elverfeldt,284 the action of the Authority against a State Party claiming a violation of its obligations imposed by articles 138285 and 139.286 284 Seeberg-Elverfeldt, cit., pp. 87 ss. 285 Article 138 states, in particular, the following: Article 138. General conduct of States in relation to the Area. The general conduct of States in relation to the Area shall be in accordance with the provisions of this Part, the principles embodied in the Charter of the United Nations and other rules of international law in the interests of maintaining peace and security and promoting international cooperation and mutual understanding. 286 Article 139 says the following: Article 139 Responsibility to ensure compliance and liability for damage. 1. States Parties shall have the responsibility to ensure that activities in the Area, whether

106

chapter 1

We can mention here, as hypothetic examples, the following: 1/claims by the Authority in relation to licenses issued or recognized pursuant to the Agreement of 3 August 1984, by which the United States and other States currently Parties of unclos agreed on a system for issuing or recognizing licenses for the exploration and exploitation of the Area outside the regime established by the 1982 Convention and related Annexes and Agreements;287 2/claims by the Authority based on non-transposition into the national laws of the referred rules and regulations of the Authority, when such transposition is necessary.288 Secondly, we can also include the case of article 182, mentioned by Cannone, concerning the privileges and immunities of persons related to the Authority.289 Thirdly, it also falls under this item, in my opinion, the case of suspension regulated in article 185. Seeberg-Elverfeldt instead places them in article 187.f290 while Cannone allocates it to the advisory competence of the Seabed Disputes Chamber.291



287

288 289 290 291

carried out by States Parties, or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, shall be carried out in conformity with this Part. The same responsibility applies to international organizations for activities in the Area carried out by such organizations. 2. Without prejudice to the rules of international law and Annex iii, article 22, damage caused by the failure of a State Party or international organization to carry out its responsibilities under this Part shall entail liability; States Parties or international organizations acting together shall bear joint and several liability. A State Party shall not however be liable for damage caused by any failure to comply with this Part by a person whom it has sponsored under article 153, paragraph 2(b), if the State Party has taken all necessary and appropriate measures to secure effective compliance under article 153, paragraph 4, and Annex iii, article 4, paragraph 4. 3. States Parties that are members of international organizations shall take appropriate measures to ensure the implementation of this article with respect to such organizations. Pursuant to the “Provisional Understanding regarding Deep Seabed Matters”, of 3 August 1984, the United States and other States then signatories (Belgium, France, Italy, Japan and the Netherlands) and not signatories of unclos (Germany and the United Kingdom) but all of them currently States Parties to this Convention, agreed, among other things, to their mutually recognized capacity to issue national licences for the exploration and exploitation of the seabed. In Seeberg-Elverfeldt’s opinion, that I share, this agreement could lead to a violation of the Montego Bay Convention and the 1994 Agreement on the part of several States Parties by virtue of their recognition and acceptance of third party rights (in particular, the United States) and for issuing national licences, all without the approval of the International Seabed Area, in violation of article 137.3 of the Convention (Seeberg-Elverfeldt, cit., pp. 89 and 90). Seeberg-Elverfeldt, cit., p. 91. This lack of transposition would violate article 139. Cannone, cit., p. 176. Seeberg-Elverfeldt, cit., p. 91 Cannone, cit.

Principal Jurisdiction

107

Turning in particular to article 185, this provision, partially inspired by articles 5 and 6 of the un Charter, whose elements combines,292 states the following: 1. 2.

A State Party which has grossly and persistently violated the provisions of this Part may be suspended from the exercise of the rights and privileges of membership by the Assembly upon the recommendation of the Council. No action may be taken under paragraph 1 until the Seabed Disputes Chamber has found that a State Party has grossly and persistently violated the provisions of this Part.

So as to the Council’s recommendation,293 it shall be taken by a reinforced majority of three fourths of the members present and voting, provided that such majority includes a majority of the members of the Council.294 Once the decision is adopted, the Council shall institute proceedings on behalf the Authority before the Seabed Disputes Chamber to request a resolution by this judicial organ declaring that a gross and persistent violation of Part xi provisions has been committed.295 Should the sdc declare such a violation, then, for the suspension to be imposed, it shall be necessary that the Assembly so agree by a majority of two thirds of the members present and voting, provided that such majority includes a majority of the members participating in the session.296 Whatever be its nature, I agree with Caflisch in a positive consideration of this provision insofar as it requests a prior judicial control that the un Charter does not request.297 As the quoted scholar states, “This judicial protection of ­ ­ membership rights against politically motivated abuses 292 Pursuant to the aforementioned articles of the un Charter: Article 5. A Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security Council. Article 6. A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council. 293 Article 162.2.t. 294 Article 161.8.c. 295 Article 122 of itlos Rules in connection with article 162.2.u. unclos. 296 Article 159.8. 297 This prior control is somehow similar in its procedural function to the preliminary exchange of views imposed by article 283 unclos.

108

chapter 1

undoubtedly ­represents a ­welcome contribution to the law of international organisations”.298 2.2. Regarding the disputes between a State Party and the Authority concerning acts or omissions of the Authority alleged to be in violation of Part xi or the Annexes thereto, or of rules, regulations and procedures of the Authority adopted in accordance therewith (187.b.i. second sentence), they have a limited scope. In the first place, article 189 does not allow the sdc to pronounce itself, in exercising its jurisdiction pursuant to article 187, on the question of whether any rules, regulations and procedures of the Authority are in conformity with unclos, nor declare invalid such rules, regulations and procedures. Second, the excess of jurisdiction and the misuse of power, notwithstanding their nature as particular cases of violation, are subjects to a special and separate paragraph. Finally, third, its scope does not encompass the violation of the Authority’s general policies, which is not mentioned in it;299 however, this omission was resolved by the 1994 Agreement and can be placed in the case of article 187.f. Accordingly, as Seeberg-Elverfeldt points out, this case of article 187.b.i, second sentence, is in reality reduced to a residual category.300 The typical case could be that indicated by article 189 itself, that is, to decide claims in which it is alleged that the application of any rules, regulations and procedures of the Authority in individual cases would be in conflict with the contractual obligations of the parties to the dispute or their obligations under this Convention, thus allowing indirect control of their legality.301 Such control would cover, of course, the acts and omissions302 carried out by any of the organs of the Authority,303 since its personality is unique (art. 176). However, as observed by Paolillo, one may wonder whether the acts of the Enterprise can be considered included in the term “acts of the Authority”304 in view of the 298 Caflisch, L., “The Settlement of Disputes Relating to Activities in the International Seabed Area”, in Rozakis, Ch.L., and Stephanou, C. (eds.), The New Law of the Sea, North Holland, Amsterdam, 1983, p. 307. 299 Paolillo, F., “Solución de controversias relacionadas con actos de organizaciones internacionales: el caso de la Autoridad Internacional de los Fondos marinos”, redi, vol. xxxiii, n° 2, 1981, p. 515. 300 Seeberg-Elverfeldt, cit., pp. 103 and 109. 301 Paolillo, cit., p. 503. 302 The omission did not appear in the initial drafts. It was later added by recommendation of the Group of Legal Experts. (Seeberg-Elverfeldt, cit., p. 101). 303 In the first drafts reference was made only to the Authority, the Council and one of its subsidiary organs. See Seeberg-Elverfeldt, cit., pp. 101 ss. 304 Paolillo, cit., p. 506.

Principal Jurisdiction

109

singularity of this institution. Either way, the relation between the Enterprise and the Authority, as well as the juridical nature of the former, are both ­questions which lie beyond the parameters of this book.305 2.3. In respect to disputes between a State Party and the Authority concerning acts of the Authority alleged to be in excess of jurisdiction or a misuse of power (187.b.ii), they are, as seen above, particular violations of unclos or the rules, regulations and procedures adopted in accordance therewith. So as to the excess of jurisdiction, this can occur, as Paolillo observes, not only in respect to the faculties or functions expressly conferred upon it but also regarding the accessory faculties, compatible with the Convention, implicit and necessary for the exercise of the said faculties and functions.306 Regarding the misuse of power, a concept taken from the droit administratif, it exists when an act, nonsusceptible to objection from a formal and substantial point of view, has been adopted by an organ with a purpose different of that for which the act might be legally adopted.307 In this case, as Paolillo notes, by conferring the sdc jurisdiction to settle disputes in which it is alleged that the Authority has misused its power, the wording of article 187.b.ii empowers it to investigate the motives which lead the organ to adopt a particular act. In this case the Seabed Disputes Chamber is called to verify the legality of the ends the Authority is pursuing, thus positioning the sdc to make a verification rather different to the type of verification it is asked to perform in other cases of illegality that require an evaluation that is objective by nature, in particular by confronting the contested action with the rules, substantial or formal, that are regulating it.308 2.4. As regards disputes between parties to a contract concerning the interpretation or application of a relevant contract or a plan of work (187.c.i), insofar as it is required that the parties in dispute are contractors, it is clear that they must be of a post-contractual nature, thus leaving the regulation of pre-contractual disputes, if applicable, in paragraph d. The distinction between contract and 305 Regarding this question, see Garcia-Revillo, cit., pp. 379 ss., Seeberg-Elverfeldt, cit., pp. 101 ss. and Paolillo, cit., pp. 506 ss. The Enterprise is not a principal organ of the Authority (art.158) but it is defined as “the organ of the Authority which shall carry out activities in the Area” (arts. 170.1 unclos and 1.1 of its Statute). On the other hand, the Enterprise is empowered with substantial autonomy and personality in respect to Seabed Authority (as regards its personality, see article 13.2 of Annex iv and, as regards autonomy, articles 2.1 to 2.3 and article 1.2, all of them in Annex iv, as well). 306 Paolillo, cit., p. 516. 307 De Laubadère, Traité de Droit Administratif, 7ème éd., vol. i, 1976, p. 558, as quoted by Paolillo, cit., p. 517 and note 42. 308 Paolillo, cit., p. 518. Regarding possible cases of misuse of power, see Seeberg-Elverfeldt, cit., pp. 106 and 107.

110

chapter 1

plan of work, which was subject to some controversy during the Third Conference,309 might be explained in the different language used for qualifying contractual relations depending on which entity is involved, whether the Authority or the Enterprise. According to article 153.3310 the plan of work approved by the Authority shall “be in the form of a contract.” On the contrary, the plans of work done with the Enterprise, even generating rights and obligations between the parties, are not qualified as contracts. Instead, they remain work plans as such. Inter alia, the scope of article 187.c.i covers disputes concerning the interpretation or application of the financial terms of a contract,311 which article 13.15 of Annex iii expressly, though perhaps unnecessarily, submits to the binding commercial arbitration of article 188.2, which may be sought at the request of either party.312 On the other hand, disputes concerning contractual obligations on transfer of technology, which were submitted by article 5.4 of Annex iii to compulsory settlement in accordance with Part xi (and to binding commercial arbitration, as the case may be), do not fall into this case insofar as the 1994 Agreement declares the said article 5 (Section 5 para.2) inapplicable. 2.5. As regards the disputes between parties to a contract concerning acts or omissions of a party to the contract relating to activities in the Area and directed to the other party or directly affecting its legitimate interests (187.c.ii), they are, like in the previous case, of a post-contractual nature as they affect contractors. Like Seeberg-Elverfeldt,313 in my view this category includes not only disputes for acts and omissions against a party to the contract or affecting a party directly, but also those committed against another investor, but directly affecting his legitimate interests as well. When joint ventures exist, it is my opinion that one might add cases in which the dispute involves a confrontation between the contractors and the Enterprise,314 including claims for the liability of the latter, insofar as these disputes cannot fall under the scope of the liability provided in article 187.e. In this precise instance concerning the cases of joint ventures, conflicts between the associates might be the only cases 309 See Doc. A/CONF.62/L.43, of 29 August 1979. Docs. Ofs., Vol. xii, pp. 83 ss. (in particular, see p. 105). 310 See also article 3.5 Annex iii. 311 Akl, J., “The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea”, Indian Journal of International Law, vol. 37 (3), 1997, pp. 435–451 (in particular, p. 444). 312 According to article 188.2, all cases of article 187.c.i are submitted to binding commercial arbitration. Therefore, it wouldn’t be necessary to expressly repeat it case by case. See Seeberg-Elverfeldt, cit., p. 124. 313 Seeberg-Elverfeldt, cit., pp. 127 ss. 314 Article 153.2 and 3 unclos.

Principal Jurisdiction

111

where the jurisdiction of itlos (that of the sdc, actually) could be open to disputes between individuals. We will treat this matter more extensively when dealing with the ratione personae jurisdiction of the Hamburg Tribunal.315 2.6. In respect to disputes between the Authority and a prospective contractor, concerning the refusal of a contract or a legal issue arising in the negotiation of the contract (187.d), these, unlike the previous disputes that have been discussed, are of a pre-contractual nature.316 As Seeberg-Elverfeldt pointedly observes,317 these types of controversies would not affect prospecting,318 since it is not included among the “activities in the Zone”. This solely encompasses the subsequent acts of exploration and exploitation.319 As far as prospecting is subject to control but not to the Authority’s official permission, this activity is usually carried out prior to any request for approval of a plan of work and hence, before the starting point of this category of disputes.320 The probable scenario of this type of dispute would be more in the line of a disagreement between the applicant and the Authority on whether or not they have complied with the conditions imposed by the latter for the approval, and the subsequent refusal, than in the dispute between the parties concerning the behaviour of each other in a negotiating process that does not exist as such. On the other hand, I agree with Seeberg-Elverfeldt when he finds equivalent to the refusal the situation of “administratif silence” (inaction) on the part of the Authority in respect to a duly fulfilled request even when this type of inaction is not regulated nor a deadline is established for considering the application as refused.321 2.7. Regarding disputes in which it is alleged that the Authority has incurred liability as provided in Annex iii, article 22 (187.e), pursuant to that provision, the isba shall have responsibility or liability for any damage arising out of wrongful acts in the exercise of its powers and functions, including violations under article 168.2. In this respect, any contributory acts or omissions by the contractor may be taken into account.322 315 316 317 318 319 320

See also Seeberg-Elverfeldt, cit., pp. 130 and 131. Vid. Cannone, cit., p. 201. Seeberg-Elverfeldt, cit., pp. 113 ss. Article 2, Annex iii. Article 1.3 unclos. In this sense, as the quoted author observes, while the State-Prospector might apply against the Authority by way of article 187.b, private prospectors lack any recourse against the control activities carried out by the organization employing their services. In Seeberg-Elverfeldt’s opinion, that lack of adequate protection under unclos constitutes a substantial shortcoming of the legal protection for private entities against actions of the isba (cit, p. 115). 321 Seeberg-Elverfeldt, cit., p. 120 ss. 322 According to article 168.2: “The Secretary-General and the staff shall have no financial interest in any activity relating to exploration and exploitation in the Area.

112

chapter 1

3. So as to disputes for which the jurisdiction of the Seabed Disputes Chamber is specifically provided in unclos (art.187.f ), Eiriksson includes, in view of the 1994 Agreement, Annex, Section 6, the following two: – (In respect to the activities in the Seabed Area) disputes concerning the provisions of the General Agreement on Tariffs and Trade (gatt), its relevant codes and successor or superseding agreements, where one or more of the States Parties in the dispute are not parties in such agreements and, accordingly, cannot use the settlement of disputes mechanisms provided by them (1994 Agreement, Annex, Section 6.1.f.ii in connection to Section 6.1.b). – Disputes concerning alleged breaches of the requirements of the 1994 Agreement with respect to the production policy of the International Seabed Authority which involve, in particular, the violation of the provisions of gatt or the prohibitions of both subsidization and discrimination (1994 Agreement, Annex, Section 6.4).323 Seeberg-Elverfeldt, as seen above, includes the disputes arising from situations set out in article 185 unclos,324 with those falling under article 187.f. However, I agree with Treves in considering them more correctly placed within those of article 187.b.325 For my part, to those disputes listed above, I would also add the following which also arise from the 1994 Implementation Agreement and which are, by means of this treaty, expressly submitted to the settlement procedures set up by the Convention: – Any dispute relating to the disapproval of a plan of work (Section  3, paragraph 12).326

323 324 325 326

Subject to their responsibilities to the Authority, they shall not disclose, even after the termination of their functions, any industrial secret, proprietary data which are transferred to the Authority in accordance with Annex iii, article 14, or any other confidential information coming to their knowledge by reason of their employment with the Authority.” Eiriksson, cit., p. 132. Treves, Indian JIL, vol. 37, 1997, cit., pp. 412 and 413. See also, Akl, cit., p. 445. Treves, cit., p. 412. See also the comment made in this book on the Advisory Jurisdiction of the Seabed Disputes Chamber. Account must be taken on the fact that article 187.c.i does not apply to this case because it refers only to the interpretation and application of a plan of work, not to its disapproval, and that article 187.d does not apply either, since it only encompasses contracts without mentioning plans of work.

Principal Jurisdiction

113

– Disputes concerning the interpretation or application of the rules and regulations based on the principles that provide the basis for establishing rules, regulations and procedures for the financial terms of contracts (Section 8, paragraph 1, f).327 Limitation to the jurisdiction of the Seabed Disputes Chamber in respect to decisions of the Authority (art.189). Whatever the scope of article 187, the compulsory jurisdiction of the sdc is subject to limitations under article 189. In Paolillo’s opinion, these limitations intend to preserve the freedom of the Authority to act in areas where it has been granted discretionary powers, as well as assuring the stability of those instruments through which its regulatory activity is expressed, that is to say, the rules, regulations and procedures.328 In this sense, the sdc, which in fact is the only one that might have the competence to do this, firstly, lacks the jurisdiction in respect to the discretionary powers exercised by the Authority and, secondly, cannot invalidate the rules, regulations or procedures of that international organization, nor decide itself as to whether they are in conformity with the Convention. Regarding the limitation in respect to the discretional acts of the Authority, article 189 states that the Seabed Disputes Chamber “shall have no jurisdiction with regard to the exercise by the Authority of its discretionary powers in accordance with this Part”, and adds that “in no case shall it substitute its discretion for that of the Authority.” As Paolillo recalls, the notion of discretionality or discretional powers is mainly used in the droit administratif to describe the power of the Administration to act freely, since the action to be adopted is not determined beforehand by a juridical rule. Discretionality exists when an organ has freedom to determine the opportunity or convenience of the action to be adopted by it, and accordingly may choose between two options without encountering a norm prescribing the conduct to be followed beforehand.329 In this respect, although the absolute or total discretionary power does not exist (even the most general norms always impose limits on organ’s freedom of action), nor is it conceivable for any activity to be 100 % regulated (it is impossible that norms be formulated with such a degree of accuracy and foresight to regulate each and every situation that may be subject to action),330 the truth is that unclos, and even more the 1994 Agreement, do not expressly confer discretionary powers and additionally 327 328 329 330

Treves, cit., pp. 412 and 413. Paolillo, cit., p. 507. Id, p. 508. Ibid.

114

chapter 1

considerably reduce the chances of such discretionality in those areas more given to understanding that power as implicit. Therefore, as Seeberg-Elverfeldt points out, “the prohibition against the review of the discretionary decision of the isba (…) is, therefore, not quite as dramatic as it looks”.331 In regard to the prohibition that the sdc neither make a pronouncement on the conformity of the Authority’s rules, regulations and procedures with the Convention, nor declare them invalid,332 article 189 states that “Without prejudice to article 191, in exercising its jurisdiction pursuant to article 187, the Seabed Disputes Chamber shall not pronounce itself on the question of whether any rules, regulations and procedures of the Authority are in conformity with this Convention, nor declare invalid any such rules, regulations and procedures”. Accordingly, “Its jurisdiction in this regard shall be confined to deciding claims that the application of any rules, regulations and procedures of the Authority in individual cases would be in conflict with the contractual obligations of the parties to the dispute or their obligations under this Convention, claims concerning an excess of jurisdiction or misuse of power, and to claims for damages to be paid or other remedy to be given to the party concerned for the failure of the other party to comply with its contractual obligations or its obligations under this Convention.” These limitations have the effect that the legality of the rules, regulations and procedures of the Authority cannot be the subject of the dispute. Therefore, in the event that a State alleges before the Seabed Disputes Chamber that a given rule of the Authority violates the Convention, the sdc must declare itself without jurisdiction.333 In this respect, no element in the wording of unclos would lead to the consideration that the sdc, apart from being a judicial organ to settle disputes, is a constitutional or supreme court whose purpose is to assure that the Authority respect the law.334 b Disputes Concerning Prompt Release of Vessels and their Crews (Article 292)

As happens with disputes under article 187 on Seabed issues, the Law of the Sea Convention also expressly submits disputes concerning the prompt release of vessels and their crews referred to in article 292 to the compulsory 331 Seeberg-Elverfeldt, cit., p. 94. 332 According to Seeberg-Elverfeldt, cit., p. 97, that limitation does not affect those rules, regulations and procedures provisionally applicable. 333 Paolillo, cit., p. 511. A critical review of this provision is made by the quoted scholar in subsequent pages of his paper. 334 Ibid.

Principal Jurisdiction

115

settlement system. This gives itlos a prominent role to play as well. Even though the special process of article 292 of the United Nations Convention on the Law of the Sea is not the only procedural way to approach every single case dealing with the release of a vessel or its crew, it can be considered, however, as the only specific one and, doubtless, the most expeditious of all those available. It is not surprising, therefore, that, since the Convention entered into force, nearly all the requests for prompt release submitted to international adjudication have used this peculiar procedural channel.335 In this sense, it is clear that itlos is bound to play a particularly relevant role in these kinds of proceedings, as it is the only forum provided with compulsory residual jurisdiction and, probably, in the present times, the one which offers the best means to resolve these kinds of disputes rapidly. But it is also clear that the procedure of article 292 means a great deal to itlos. In this regard, suffice it to remember, that to date (28 February 2015) among the 23 cases submitted to the Tribunal, nine of them are cases of prompt release under the cited article: the Saiga case (or Saiga 1) (Saint Vincent and the Grenadines v. Guinea), decided by Judgment of 4th December 1997; the Camouco case (Panama v. France), decided by Judgment of 7th February 2000; the Monte Confurco case (Seychelles v. France), decided by Judgment of 18th December 2000; the Grand Prince case (Belize v. France), decided by Judgment of 20 April 2001; the Chaisiri Reefer 2 case (Panama v. Yemen) discontinued in 2001 by reason of agreement between the parties; the Volga case (Russia v. Australia), decided by Judgment of 23 December 2002; the Juno Trader case (Saint Vincent and the Grenadines v. Guinea-Bissau), decided by Judgment of 18 December 2004; and the Hoshinmaru and Tomimaru cases (Japan v. Russia) decided by Judgments of 6 August 2007. Such a degree of identification between prompt release, article 292 of the Convention, and itlos has brought about the following logical consequence: up to this moment, to talk about the release of vessels and their crews via article 292 under international jurisprudence is tantamount to speaking about such release under itlos jurisprudence. This justifies a separate treatment in this block. 335 Provisional measures proceedings and, even, an ordinary procedure, would also be available. In three cases before the Hamburg Tribunal, the prompt release of the vessel has been requested to itlos directly through provisional measures proceedings. In the first, the M/V Louisa case, the request by Saint Vincent and the Grenadines was rejected by Order of 23 December 2012 (paras.72 and 83), while in the second, the ara Libertad case, the immediate release of the Argentinean warship was prescribed by Order of 15 December 2012 (para. 108). In the third case, the Arctic Sunrise, the release of the Netherlander vessel arrested by Russia was prescribed by itlos in its Order of 22 November 2013.

116

chapter 1

According to article 292: Article 292 Prompt release of vessels and crews 1. Where the authorities of a State Party have detained a vessel flying the flag of another State Party and 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, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree. 2. The application for release may be made only by or on behalf of the flag State of the vessel. 3. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. The authorities of the detaining State remain competent to release the vessel or its crew at any time. 4. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining State shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew. Focusing ourselves on jurisdictional issues, there are several questions to pose: first, the requirements to activate the jurisdiction of the competent court or tribunal; second, the disputes to which article 292 refers; and third, the scope of the jurisdiction of the competent court or tribunal. itlos jurisprudence has addressed several of the most substantial issues, although it is obvious that there are other issues pending that have yet to be dealt with by the Hamburg Tribunal. We will refer to them here. Regarding the requirements needed to activate the jurisdiction of the competent court or tribunal, it comes from article 292.1 that two conditions need to be fulfilled. One is of a material or factual nature, more specifically, that “the authorities of a State Party have detained a vessel flying the flag of another State Party”; and the other is of a formal or procedural nature, namely that “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”. The Tribunal’s analysis as ­carried out in its two

Principal Jurisdiction

117

Judgments of 6 August 2007, on the Tomimaru336 and Hoshinmaru337 cases, reflects these formal and material requirements very well. Beginning with the material prerequisite, as to the definition of vessel, ­article 292.1 uses the word with two different meanings: the first refers to the economic unit as a whole, that is, not only to the vessel but also to its crew; the second refers only to the former. unclos does not provide either a definition of “vessel” or “crew”. None of these, accordingly, are at the judges and arbitrators disposal and, ultimately, they must be “defined” by them on a case-by-case basis.338 According to Walker, a “‘ship’ is defined as a human-made device, including a submersible vessel, capable of traversing the sea”.339 In my view, it is critical for considering a device a “vessel” (or “ship”, as both terms are used by unclos interchangeably340), that the device is self-propelled and capable of displacing itself at sea, without prejudice to its functions or particularities. On the other hand, regarding the definition of crew, it is clear in my opinion that it only encompasses those who professionally work aboard, whatever their post, non-inclusive of passengers, if any. As we will soon see, in view of the cases for which article 292 was designed, it is difficult (but not impossible) to envisage the presence of passengers on board.341 In another vein, regarding the prerequisite that the vessel flies the flag of another State Party, this condition must be fulfilled in the moment of detention. As Treves observes in his Separate Opinion to the Judgment of itlos in the Grand Prince case, the nationality of the ship is also considered in two sub336 Paragraphs 53 to 59. 337 Paragraphs 49 to 50. 338 Regarding the definition of a vessel and other aspects, see the complete analysis made by Marotta Rangel, V., “Navios em Direito Internacional: Questôes preliminares”, in Estudios de Derecho Internacional en homenaje al Profesor Ernesto J. Rey Caro (Drnas, Z., Coord.), Drnas-Lerner Editores, Córdoba, Argentina, 2002, pp. 469–479. See also: Lowe, V., “Ships”, in Boschiero, N. et. al. (eds.), International Courts and the Development of International Law. Essays in Honour of Tullio Treves, Asser Press (Springer), The Hague, 2013, pp. 291–298; Walker, G.K. (Gen. Ed.), Definitions for the Law of the Sea. Terms not Defined by the 1982 Convention, Nijhoff, Leiden-Boston, 2012. 339 Walker, cit., p. 300. 340 Id. 341 In fact, the reference to passengers, which appeared in the first drafts up to doc. A/ CONF.62/WP.9/Rev.1, art.15, of 6 May 1976, was deleted in the subsequent document … WP.9/Rev.2, art. 14 (Of. Docs. vol.v, p. 190 and vol vi, p. 147, respectively). Such a deletion had the purpose of connecting the prompt release special procedure even more specifically to the cases of articles 73.2, 220 and 226, that is, those associated with a bond (Adede, A., The System for Settlement of Disputes of the United Nations Convention on the Law of the Sea. A Drafting History and a Commentary, Nijhoff, Dordrecht, Boston, Lancaster, 1987, p. 139).

118

chapter 1

sequent moments for the State to have access to prompt release procedures and for the Tribunal to have jurisdiction ratione personae to entertain the case. Such moments include first, the time of the commission of the wrongful act which, “in a case submitted to the Tribunal for the prompt release of a vessel (…) is not (…) the arrest of the vessel. It is rather the non-compliance with a provision of the Convention for the prompt release of the detained vessel upon the posting of a reasonable bond or other financial security. Consequently, the relevant time is that at which it can be alleged that such breach of the Convention has occurred. This time comes on a date subsequent to the date on which the vessel was arrested”.342 In second place, the other critical moment for considering the nationality of the vessel is, as Treves also observes, “the time of the submission of the application”.343 As for “flying the flag”, the requirement encompasses not only the fact of having it raised and visible but also extends to situations in which the vessel has a legal flag even when, at the moment of the detention, it does not either physically fly it, or does not fly it correctly, or does not have it on board. Nonetheless, it would also be reasonable to think that it would exceed the object and purpose of the special procedure set down in article 292 to protect those vessels which, far from making their nationality evident and visible, make an effort to conceal it. In cases in which a vessel flies several flags, it might be thought, in principle, that any of the States in question might have a title to submit an application. However, this situation is clearly excluded by article 92.2 of the Convention, according to which: “A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.” On the other hand, in respect to the flags of convenience, according to article 91.1 in fine: “There must exist a genuine link between the State and the ship”, but the consequences of the lack of such a link are not specified, thus making it difficult for an objection to admissibility in a procedure of this nature to succeed.344 Either way, and particularly since the Grand Prince Judgment, 342 Separate Opinion, para. 1. As Treves recalls, “Such may be the date on which the detaining State has refused to release the vessel notwithstanding the posting of a reasonable bond, the date on which the offer of such bond has been refused, the date on which it can be claimed that release is not being done promptly, the date on which a bond is fixed and is deemed to be unreasonable and the dates on which other conceivable violations of rules such as article 73, paragraph 2, can be alleged to have occurred.” 343 Ibid. 344 In the Saiga 2 (Merits) case, Guinea raised an objection alleging the absence of a genuine link between the vessel and Saint Vincent and the Grenadines. That objection was rejected by itlos. (See Judgment of 1 July 1999, paras. 75 ss.). Something

Principal Jurisdiction

119

this matter may be appreciated ex officio by the Tribunal without requiring an allegation by the defendant.345 Finally, as concerns the requirement that the flag belong to a State Party, this special procedure is closed not only to vessels flying the flag of non-State Parties, whether signatories or not, but also to those flying flags of another kind, like those of the United Nations, its specialized agencies or the International Atomic Energy Agency.346 On the other hand, insofar as the European Union lacks its own flag as a State, this international organization, notwithstanding its participation in unclos as a “State Party”, cannot submit an application on its own to request the prompt release of a community vessel through this special procedure. As regards the detention, it occurs not only when it affects the economic unit formed by the vessel and its crew but also in situations when it affects only one of them, that is, when the vessel is in detention but the crew is released or when the crew, or a part of it, is detained but the ship remains at the owner’s disposal and may depart on his orders. This is consistent with the wording of article 292 itself in that it allows a party to apply separately for the release of the vessel “or” its crew instead of forcing the applicant to apply for both. Nevertheless, if this position is sound in respect to situations when the detainee is the vessel and the crew is free, I would have to point out that the opposite situation (detention only affecting the crew with the vessel free at the shipowner’s disposal) has its limits. It is true that the expression “vessel” in the first sentence of article 292.1, might be interpreted in a broad sense, as covering also the crew, but it is true as well that, if that word is interpreted in a strict sense, the detention or immobilization of the vessel would be a conditio sine qua non which would exclude the cases of total or partial detention of the crew without the simultaneous detention of the vessel. And in this situation, an argument so built could also be considered coherent with an interpretation according to which the mention of the vessel limits the situations in which such a special procedure would be applicable, insofar as those cases affecting only the crew would be excluded. It seems clear that the purpose of this provision is to confine itself to situations in which the reason for the detention is directly related to the vessel or its activity (pollution or fisheries), which the

similar occurred in the M/V Virginia G case, where Guinea-Bissau alleged the same both in its Counter-Memorial and its Counter-Claim. itlos also rejected them in its Judgment of 14 April 2014 (paras. 102–108 and 402–407). 345 That is so expressed by itlos in the said Judgment, paragraphs 77 and 79. 346 See article 93 unclos. See also, in this respect, Hinojo, M., “El pabellón de las organizaciones internacionales”, Anuario de Derecho Marítimo, vol. xxix, 2012, pp. 125–171.

120

chapter 1

crew cannot do by itself, and exclude those cases in which the activity is linked to the crew notwithstanding the vessel (piracy, slave or drug trafficking, smuggling, etc.) where the ship remains totally free347 or inevitably detained.348 On the other hand, the detention of the vessel occurs both in situations where its navigation is interrupted (whether it is immobilized or forcibly conducted to another location under the orders of the detaining State349), and in cases when the vessel is already motionless, at dock or in the sea, and the detaining States blocks its departure.350 With regard to the concept of the release of the crew, the Hamburg Tribunal has offered an interesting interpretation of article 292 in the Camouco and Monte Confurco cases. In both cases the detaining State alleged, in opposition to the applicants, that the respective captains were not really detained, since the procedure of “contrôle judiciaire”, to which they had been submitted, “est totalement distinct de la garde à vue qui précède la mise en exam”, adding that “ce contrôle judiciaire, auquel le capitaine a été assujetti, ne constitue nullement une sanction pénale et qu’il ne saurait être assimilé à une mise en détention”.351 The Tribunal, in both judgments (paragraphs 71 and 90, respectively), rejected the French arguments stating that, since the captain was “under court supervision, his passport had also been taken away from him by the French authorities, and, consequently, he was not in a position to leave Reunion, it was appropriate to order the release of the Master in accordance with article 292 (…).” In my opinion, given this interpretation, itlos has in fact implicitly defined the issue concerning the release of the crew in the sense that “release” exists only when the detainees have the absolute freedom to leave the country in which they are being detained. Accordingly, the Tribunal has defined “detention” in a broad sense insofar as the detention exists in all situations in which the detainee is not totally free.352 In my view, this line of thought 347 For example, when the vessel is completely absent from the criminal action as when committed by a part of the crew without the knowledge of other crew members, the ship owner, etc. 348 For example, when the vessel is a part of the evidence. 349 This has been the case of all vessels that have been subject to prompt release procedures before itlos so far. 350 This will be the most probable situation in cases where the detention is related to environmental protection. 351 Statement of France during the Camouco case hearings (itlos, PV.00/2, p. 17) (this time, I have preferred to reproduce the original in French; an English translation can be found at itlos, PV.00/2, p. 15). 352 In opposition, Judge Laing, in his Separate Opinion to the Camouco Judgment, considers that “it is therefore regrettable that the Tribunal has not made a categorical finding that

Principal Jurisdiction

121

is clearly confirmed in the Hoshinmaru Judgment of 6 August 2007 when, despite the respondent’s contentions, itlos expressly notes “that the master and the crew still remain in the Russian Federation”353 and orders them to “be free to leave without any conditions”.354 Turning our attention to the formal or procedural prerequisite, article 292 requires that 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. With respect to the “provisions” whose violation is “alleged”, the meaning of this sentence is equivocal, to the extent that it is difficult to know whether the object of the non-compliance is a norm which imposes the prompt release of the vessel or its crew with no other stipulation, or a norm which imposes the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security; or, what may equally be the case, if the bond, which is referred to in the aforementioned article 292, must be understood as part of the facts or as part of the norm whose incompliance is alleged. There is obviously no chance that it can be understood in both senses at the same time. In the first option, if what has become the object of non-compliance is a norm that imposes the prompt release without any further stipulation, i.e., without said liberation being subject to bond,355 then the scope of article 292 opens up considerably, in the sense that all the provisions that establish an obligation for release would fit within it, whatever kind of obligation it may be, conditioned or non-conditioned, express or implicit.356 But the procedure would remain entirely in the detaining State’s hands, because, if the bond specified in article 292 is not part of the enunciation of the norm whose incompliance is alleged, it could only be considered as part of the facts of the case, which would be the same as saying that article 292 could only be opened in those cases in which the aforesaid State had demanded, in fact, the posting of a bond, as the condition for releasing the vessel or its crew.

353 354 355 356

there has been a detention”, adding next that “without casting any aspersion whatever, this would have contributed to better understanding of article 292 and the development of the procedures for prompt release from detention” (p. 2). Paragraph 77. Paragraph 102.4. For example, because the detention is illegal, in which case release without bond would be appropriate. Referring to the latter, every norm that prohibits the detention of a vessel or its crew imposes, at the same time, implicitly, the obligation of setting them free immediately. In the same way, every rule that establishes freedom of navigation or passage implies, at the same time, the prohibition of arresting a vessel or crew exercising that freedom.

122

chapter 1

In the second option, if the violation is not related to any norm which imposes the prompt release of the vessel and crew but precisely, to a norm which imposes release upon the posting of a bond or other financial security, then the scope of article 292 would be reduced considerably, for only articles 73, 220 and 226 would fulfill this requirement. But the process would not remain exclusively in the detaining State’s hands, since the release could be urged even though, in fact, the provision of such bond had not been demanded by the detaining State.357 Of both afore mentioned interpretations, the first was claimed by Guinea in the Saiga case, alleging that, in fact, the bond had neither been demanded by the authorities of that country, nor had it been offered by Saint Vincent and the Grenadines. The second, however, is the one adopted by itlos since the Saiga case. In this respect, the Hamburg Tribunal declares, in opposition to Guinea’s allegations, that “According to article 292 of the Convention, the posting of the bond or security is a requirement of the provisions of the Convention whose infringement makes the procedure of article 292 applicable, and not a requirement for such applicability. In other words, in order to invoke article 292, the posting of the bond or other security may not have been effected in fact, even when provided for in the provision of the Convention the infringement of which is the basis for the application (…). There may be an infringement of article 73, paragraph 2, of the Convention even when no bond has been posted”.358 It was precisely in the Hoshinmaru case that both things subsequently happened because the application originally claimed that the bond had not been set by the detaining State (Russia), but as the bond was imposed by the said State during the proceedings,359 the original submission was changed (“clarified” in the wording of the Tribunal) to claim that the bond imposed was unreasonable and had not been set promptly.360 After consideration the Hamburg Tribunal found that “the nature of the dispute between the parties [had] not been changed” although the scope had been narrowed and the focus had turned to the reasonableness of the bond.361 In view of the foreseen, exactly what are the provisions of the Convention whose non-compliance would trigger the effects of article 292? An excessively 357 If a bond had not been set, the obligation to establish it would have been unfulfilled. And if it had been imposed in an amount or form that the flag State considers disproportionate or in any other way not in conformity with the circumstances of the case, the infringement would result in the obligation to set a reasonable bond. 358 Paragraphs 75 to 77. Emphasis added. See also, in the same Judgment, paragraphs 54 and 67. 359 In particular, the application was filed with the Registry on 6 July 2007 and the bond was set by Russia on 13 July of the same year, that is, just one week after (Judgment, paras. 1 and 62). 360 Paragraph 63. 361 Paragraph 66. According to itlos in this Judgment (para. 80) “the time for setting a bond should be reasonable”. Therefore, the unreasonable delay in so doing by the detaining State might also be subject to discussion in a prompt release proceedings.

Principal Jurisdiction

123

strict interpretation, solely limited to the wording of that provision and requiring a perfect equivalence between its content and the cases to which it refers, would lead to the inapplicability of that self-same article, because there isn’t an absolute identity between the wording of article 292, and the wording of those provisions of unclos to which it apparently refers, that is, articles 73, 220 and 226. Setting this aside, there have been interpretations more in accordance with the object and purpose of article 292, mainly stemming from academic works by various judges of itlos, such as Tullio Treves and David H. Anderson. In this respect, it seems clear that itlos finds the scope of article 292 constrained to just the cases envisaged in articles 73, 220 and 226. However, at the time of determining which cases in particular, among those provided in these provisions, are exactly those to which article 292 refers, the Hamburg Tribunal has avoided a categorical and definitive pronouncement. In this respect, in the Saiga Judgment, the Tribunal362 singles out article 73.2,363 article 220.6 and 7364 and, finally, “to a 362 363

Paragraph 52. Article 73 unclos establishes the following: Enforcement of laws and regulations of the coastal State 1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. 2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security. 3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment. 4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed. 364 Article 220 unclos establishes the following: Enforcement by coastal States 1. When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may, subject to Section 7, institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the exclusive economic zone of that State. 2. Where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has, during its passage therein, violated laws and regulations of that State adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels, that State, without prejudice to the application of the relevant provisions of Part ii, Section  3, may undertake physical inspection of the vessel relating to the violation and may, where the

124

chapter 1

certain extent”, article 226.1.c.365 But the truth is that when Saint Vincent and the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws, subject to the provisions of Section 7. 3. Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards, that State may require the vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred. 4. States shall adopt laws and regulations and take other measures so that vessels flying their flag comply with requests for information pursuant to paragraph 3. 5. Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a substantial discharge causing or threatening significant pollution of the marine environment, that State may undertake physical inspection of the vessel for matters relating to the violation if the vessel has refused to give information or if the information supplied by the vessel is manifestly at variance with the evident factual situation and if the circumstances of the case justify such inspection. 6. Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that State may, subject to Section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws. 7. Notwithstanding the provisions of paragraph 6, whenever appropriate procedures have been established, either through the competent international organization or as otherwise agreed, whereby compliance with requirements for bonding or other appropriate financial security has been assured, the coastal State if bound by such procedures shall allow the vessel to proceed. 8. The provisions of paragraphs 3, 4, 5, 6 and 7 also apply in respect of national laws and regulations adopted pursuant to article 211, paragraph 6. 365 Against, Brown (“The M/V Saiga case on prompt release of detained vessels: the first Judgment of the International Tribunal for the Law of the Sea”, Marine Policy, vol. 22, n. 4–5, 1998, pp. 307–326, p. 316) to whom I adhere in this respect, considers that the case of article 226.1.c is not among those opening the way to article 292. As this scholar recalls, in the quoted provision no mention is made to any bond or other financial security. Accordingly, the conditions to be met for opening the special procedure of article 292 do not concur. It is precisely the reference that this provision makes to Part xv in general, instead of article 292 in particular, that reinforces this argument. Article 226 of the Convention establishes the following:

Principal Jurisdiction

125

Grenadines proposed a broader interpretation, itlos just declared that “it is unnecessary for the Tribunal to adopt a position on (this) non-restrictive interpretation”.366 In opposition to this, Judges Vukas, Park, Nelson, Rao and Ndiaye, in their joint Dissenting Opinion, expressly rejected the Tribunal’s decision.367 Even recognizing that this is unstable territory, I agree with the stand taken by judges Treves and Anderson in two of their respective academic papers.368 In these works, they consider that the provisions fulfilling the requirements of article 292 are articles 73.2, 220.7 and 226.1.b, in an interpretation that I personally share by virtue of the fact that it is better adapted, not only to the text of article 292, but also to its context and history, as we will see below.369





366 367 368

369

Investigation of foreign vessels 1. (a) States shall not delay a foreign vessel longer than is essential for purposes of the investigations provided for in articles 216, 218 and 220. Any physical inspection of a foreign vessel shall be limited to an examination of such certificates, records or other documents as the vessel is required to carry by generally accepted international rules and standards or of any similar documents which it is carrying; further physical inspection of the vessel may be undertaken only after such an examination and only when: (i) there are clear grounds for believing that the condition of the vessel or its equipment does not correspond substantially with the particulars of those documents; (ii) the contents of such documents are not sufficient to confirm or verify a suspected violation; or (iii) the vessel is not carrying valid certificates and records. (b) If the investigation indicates a violation of applicable laws and regulations or international rules and standards for the protection and preservation of the marine environment, release shall be made promptly subject to reasonable procedures such as bonding or other appropriate financial security. (c) Without prejudice to applicable international rules and standards relating to the seaworthiness of vessels, the release of a vessel may, whenever it would present an unreasonable threat of damage to the marine environment, be refused or made conditional upon proceeding to the nearest appropriate repair yard. Where release has been refused or made conditional, the flag State of the vessel must be promptly notified, and may seek release of the vessel in accordance with Part xv. 2. States shall cooperate to develop procedures for the avoidance of unnecessary physical inspection of vessels at sea. Paragraph 73. Dissenting Opinion, paras.21 to 25. Treves, T., “The Jurisdiction of the International Tribunal for the Law of the Sea”, Indian Journal of International Law, vol. 37 (3), July-September 1997, pp. 396–419; Anderson, D.H., “Investigation, Detention and Release of Foreign Vessels under the un Convention on the Law of the Sea of 1982 and Other International Agreements”, ijmcl, Vol. 11 (2), 1996, pp. 165–177. Regarding the case of article 220.7 and its connection to several treaties celebrated under the auspices of the International Maritime Organization in which the release is linked to a bond or other financial security, see Brown, cit., p. 314.

126

chapter 1

So as to the allegation that the detaining State has not complied with the aforesaid provisions, in my opinion, it may be understood in two different senses: material (to attribute the violation of a norm to the detaining State); and formal (to express that violation in words). In my view it is necessary to fulfill both. It is not enough just generically to impute a State on the basis of an act of detention and a refusal to effect release. It is also required for an applicant to allege that such a refusal constitutes a violation of one of the three unclos provisions which oblige release of a vessel upon the posting of a reasonable bond or other financial security, even when the provision at stake is not mentioned by its number and paragraph, on the condition that the facts of the case unequivocally fit within the factual element of one of these provisions. In this respect, it may be convenient to underline that, in this special prompt release proceedings, because of its singularities, the division line between jurisdiction, admissibility and merits is extremely thin. In my opinion, from its privileged position, itlos has made two important contributions: (a) The conceptual distinction between jurisdiction, admissibility and merits in a technically complex proceedings such as these. This is a distinction which has even affected the structure and operative part of the Monte Confurco Judgment – more refined in this aspect than the preceding resolutions370 – for making it possible to examine and vote on the questions separately.371 370 As Judge Anderson points out in his Dissenting Opinion to this Judgment “the structure of the dispositif is much clearer than the dispositifs in the ‘M/V Saiga’ and ‘Camouco’ cases”. This lack of clarity in the precedent judgments -motivated to a certain extent, according to Anderson, by “the wider sense of the term ‘admissible’ as used in those previous cases, as well as in the pleadings of the parties in the present case, equates to ‘well-founded’, thereby mixing the question of admissibility with the merits”- had already been pointed out by Judge Treves in his Dissenting Opinion to the Camouco Judgment. This undoubtedly influenced the subsequent structuring of the Monte Confurco Judgment. After stating his “regret that the operative part does not reflect precisely enough the structure of the judgment”, goes on to point out how the Tribunal, having “in its mind the distinction between questions of jurisdiction, questions of admissibility and questions concerning the merits” does not establish, however, a clear distinction between questions of admissibility and questions concerning the merits. And this occurs neither in the reasoning (paragraph 72) nor in the operative part (paragraph 78), where the Judgment “jumps directly from the point in which the Tribunal finds that ‘the application for release is admissible’ to the point in which it orders that France promptly release the ship and its master (…)”. As they are different questions, adds Treves, it makes it, “possible, in principle, to give a negative answer to the second while having answered the first in affirmative.” 371 In particular, the operative part of the Monte Confurco Judgment (paragraph 98) devotes Section 1 to jurisdiction, sections 2 and 3 to admissibility, and sections 4 to 8 to the merits.

Principal Jurisdiction

127

(b) Clarification and distinction between the requirements for admissibility and success of the application. For the application to be admissible, according to the Saiga Judgment, “it is sufficient to note that non-compliance with article 73, paragraph 2 of the Convention has been ‘alleged’ and to conclude that the allegation is arguable or sufficiently plausible”,372 whilst “for the application for release to succeed”, adds the Camouco Judgment –according to article 113 of the Rules of the Tribunal-, “the allegation that the detaining State has not complied with the provisions of the Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond should be well founded”.373 In light of the above, one can conclude that the jurisdiction of the court or tribunal is determined by fulfilling a series of interlinking prerequisites: 1/for the court or tribunal to have jurisdiction it is required that an allegation of the violation of a provision imposing an obligation on the detaining State to release the vessel be made; the allegation must not refer to any norm whatsoever, but precisely to one of the aforementioned provisions (in general terms, arts.73, 220 and 226); 2/for there to be a violation of the “obligation to release” clause mentioned previously, it is obvious that this stated obligation exist; 3/then, for such an obligation to exist, it is fundamental that the detention be precisely among those which correspond to an obligation to release the vessel upon the posting of a reasonable bond or other financial security. In this respect, while the sequence detention-obligation to release as the triggering factor for the special procedure of article 292 is somewhat clear when we focus on the structure of article 73 (detention of art. 73.1 – duty to release of art. 73.2), the picture is far murkier in the cases of articles 220 and 226. In these provisions the obligation to release may be linked not only to one, but to several cases of detention which are difficult to determine in some situations.374 Only 372 Paragraph 59. 373 Paragraph 61. In both quotations, emphasis added. Article 113.1 of the Rules establishes that: “The Tribunal shall in its judgment determine in each case in accordance with article 292 of the Convention whether or not the allegation made by the applicant that the detaining State has not complied with a provision of the Convention for the prompt release of the vessel or the crew upon the posting of a reasonable bond or other financial security is well founded.” 374 In my view, the obligation to release in article 220.7 may be linked to the detention in article 220.6, but it can also be linked to the detentions made in the exercise of the powers that the coastal State has according to article 211.6, insofar as article 220.8 connects both provisions. On the other hand, the duty to release in article 226.1.b can be linked to the cases of detention mentioned before and, in addition, to the detention set out in article

128

chapter 1

when this matter is responded to in the affirmative, that is, in a manner that positively links a detention with one of those specific categories (for example, one from article 73.1 in relation to article 73.2) then the logical sequence leading to the jurisdiction of the court or tribunal is triggered. In our example: the detention as per article 73.1; the obligation to release the vessel as per article 73.2; the violation of such duty to release by the detaining State (due to its own refusal to release or by the imposition of an unreasonable bond or security); the allegation of such violation of that duty by the flag State; the jurisdiction of the court or tribunal. Despite the fact that the jurisdiction of the court or tribunal only requires the mere allegation of the aforesaid violation, this prerequisite is far from being just a formal one. It delimits the detention, constraining it to those cases in which this special procedure may be open, and excluding its application to any other not fulfilling the aforesaid final condition. I must insist: it is not sufficient that it be any kind of detention. It is necessary that the detention at stake brings with it the correlative obligation for release upon the posting of a reasonable bond or other financial security.375 Who determines the detention to be among the aforementioned cases? In my opinion, it is originally done by the parties and definitely carried out by the court or tribunal. The applicant qualifies the detention at the moment the application is filled out and it alleges therein the violation of a particular obligation to release. The respondent, for its part, does the same both when invoking its jurisdiction or rights to enforce that particular detention and when confirming or objecting the qualification made by the applicant. Finally, the court or tribunal definitely qualifies by deciding on its own jurisdiction in view of the allegations by the parties. Regarding the scope of the jurisdiction of the competent court or tribunal, article 292.3 states, on the one hand, that the court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. On the other hand, when analyzing its competence, the court or tribunal can assess the fact of the detention as the starting point for its own jurisdiction, by simply confirming its 220.2, to that in article 211.6 in relation to that same article 220.2, to detentions carried out in proceedings instituted in application of articles 216 and 218, and to detentions allegedly covered by article 220.1. 375 As Brown observes, after doing a complete study of other cases of detention to which article 292 does not apply, the use of provisional measures (article 290), given its expeditious and urgent character, might be the most appropriate option for requesting the release of the vessel in a majority of cases (Brown, cit., pp. 317 and 318).

Principal Jurisdiction

129

occurrence; it may also qualify such detention to determine whether it corresponds or not with its correlative obligation to release; however, it cannot pronounce itself, even for mere jurisdictional purposes, on the legality of the detention. In this respect, the Tribunal’s jurisprudence has expressly refused to deal with any submission related to the lawfulness of the detention insofar as this issue is beyond the scope of the prompt release proceedings to which we are addressing. As noted by the Tribunal, in the Saiga case, the judicial organ “is not called upon to decide whether the arrest of the M/V Saiga was legitimate. It is called upon to determine whether the detention consequent to the arrest is in violation of a provision of the Convention ‘for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security’.”376 This interpretation of the Hamburg Tribunal is coherent not only with the wording of article 292 but also with its own history and the understanding that, in view of its context, object and purpose, may be given to this provision. In particular, in reference to its history, it is worth noting that in the Third un Law of the Sea Conference it had already been proposed, and even recorded in the first drafts of the current article 292, that the procedure for prompt release had as subject “the question of the detention”.377 However, this expression did not pass into the text currently in force, in which the special procedure is focused on the “question of release” and nothing more. Furthermore, the interpretation above is the most coherent with the object and purpose of the said provision. Logically, if the detention were unlawful, it should bring with it the obligation to release the vessel freely, without a bond. On the other hand, if the detention were lawful, it shouldn’t bring with it, in principle, a correlative obligation to release. The singularity of article 292 is found precisely in the fact that it refers not to any type of detention but solely to some very specific cases in which the element in common is that the detention might be lawful and, despite this, brings with it a correlative obligation to release, although conditioned on the posting of a bond or other financial security. From my viewpoint, it is not only chance that these very particular cases of detention correspond to manifestations of the so called creeping jurisdiction, in which the obligation to release is one of the compensations to flag States in exchange for recognition to the coastal States of their jurisdiction regarding the conservation of living marine resources and environmental protection in their 376 Paragraph 62. 377 During the Third United Nations Conference on the Law of the Sea, the matter of the detention was the subject of these procedures until the appearance of doc.A/CONF.62/ WP.9/Rev.1 (Of. Docs. vol. v); then, the question of the release became the subject of the following draft doc.A/CONF.62/WP.9/Rev.2 (Of. Docs. vol. vi), and from that point on.

130

chapter 1

“recently gained” exclusive economic zones. As I noted in a previous work, in article 292 “rather than a common will, what can be seen are the opposed interests of those claiming a right to detain, in front of those claiming, in exchange for that right to detain, a reciprocal obligation to release. In that interplay of conflicting interests, the system of compulsory judicial settlement established in article 292 is the condition, and the compulsory residual jurisdiction, precisely of itlos, is the guarantee of effectiveness for both parties: the guarantee of release for the flag State, in exchange for the acknowledgement of the right to detain, and the guarantee of a bond for the detaining State, in exchange for the acknowledgement of its obligation to release”.378 This reference to the balance of interests in article 292 proceedings has been a constant in itlos jurisprudence. In this respect, it is worth mentioning that the aforementioned balance of interests is guaranteed by article 292 in connection with the three provisions for which this special procedure has been established. Such connection appears particularly clear in the Tomimaru Judgment, in which the Hamburg Tribunal, while taking “into account the object and purpose of the prompt release procedure”, and recalling the prior Monte Confurco Judgment,379 states that “article 73 of the Convention establishes a balance between the interests of the coastal State in taking appropriate measures as may be necessary to ensure compliance with the laws and regulations adopted by it on the one hand, and the interests of the flag State in securing prompt release of its vessels and their crew upon the posting of a bond or other security on the other”.380 In my view, the procedure of article 292 rests in a certain way on something very similar to a iuris et de iure presumption of the legality of the detention. It is iuris et de iure because it allows for no rebuttal evidence; it is a presumption of legality because if the detention were unlawful there would be no reason for a bond; and it is a legal presumption in the sense that the presumption solely exists for the purpose of implementing the procedure without definitively pre-judging the legality or illegality of the detention, which would be dealt with thereafter in a separate procedure.381 In this respect, the limitation of the jurisdiction of the court or tribunal, to which we are referring in this paragraph, apart from being 378 García García-Revillo, M., “The Release of Crew According to itlos’ Jurisprudence”, in Cataldi, G. (Ed.), La Méditerranée et le Droit de la mer à l’aube du 21e siècle, Actes du colloque inaugural de la Association Internationales du Droit de la Mer, Bruylant, Bruxelles, 2002, pp. 97–112. 379 Paragraph 70. 380 Tomimaru Judgment, paras. 73 to 75. 381 This is precisely what happened in the Saiga cases.

Principal Jurisdiction

131

coherent with the brevity and summary character of this special procedure, works in favor not only of the respondent, the detaining State, but also of the applicant, the flag State of the detained vessel. In favor of the latter, because such a limitation permits it to seek the release, even when the detention is lawful, without imposing on it any kind of acceptance of the legality of the detention whatsoever. In favor of the former, the detaining State, because it has no need to deal with the lawfulness or not of the detention in all situations, that is, even in those cases in which the detention is clearly unlawful, as occurred in the Saiga case.382 This is the reason why itlos rightly refuses such a judgment, even to determine the amount of the bond, in respect to which it prefers to take into account, more generally, “the particular circumstances of the case”.383 On this point, despite straying from issues regarding jurisdiction, one cannot resist reproducing here the complete summary made by itlos on its own jurisprudence as regards the elements to keep in mind when assessing the reasonableness of the bond. In particular, according to its Judgment of 6 August 2007 in the Hoshinmaru case, it states: 82. The Tribunal has expressed its views on the reasonableness of the bond in a number of its judgments. In the “Camouco” Case it stated: “the Tribunal considers that a number of factors are relevant in an assessment of the reasonableness of bonds or other financial security. They include the gravity of the alleged offences, the penalties imposed or imposable under the laws of the detaining State, the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form (itlos Reports 2000, p. 10, at p. 31, para. 67). In the “Monte Confurco” Case it added that: “This is by no means a complete list of factors. Nor does the Tribunal intend to lay down rigid rules as to the exact weight to be attached to each of them” (itlos Reports 2000, p. 86, at p. 109, para. 76). In the “Volga” Case it stated that: “In assessing the reasonableness of the bond or other security, due account must be taken of the terms of the bond or security set by the detaining State, having regard to all the circumstances of the particular case” (itlos Reports 2002, p. 10, at p. 32, para. 65). In the “Juno Trader” Case the Tribunal further declared that: “The assessment of the relevant factors must be an objective one, taking into account all information provided to the Tribunal by the parties (ITLOS Reports 2004, p. 17, at p. 41, para. 85).” 382 This is so recognized expressly by itlos in its Judgment of 1 July 1999 in the Saiga 2 (Merits) case, operative paragraph. 383 See Judgments Monte Confurco, para. 74, and Camouco, paras.67 to 70.

132

chapter 1

In light of the jurisdictional limitation mentioned above, for example, the Hamburg Tribunal refused to deal with submissions in which it was asked to declare the detention of a master illegal because of the violation of the prohibition to impose imprisonment penalties established by article 73.3. Both Panama, in the Camouco case, and the Seychelles, in the Monte Confurco case, presented submissions asking the Tribunal to declare that France had failed to comply with that provision by applying to the master criminal measures, which, de facto, constituted an unlawful detention.384 Leaving aside the fact that, in my opinion, the imprisonment paragraph 3 refers to, and the detention paragraph 1 contemplates are not exactly the same thing, I do agree with the Tribunal’s decision in situating these matters outside the orbit of article 292 proceedings.385 However, in my opinion it is not a question of admissibility but of competence. It is not that the Tribunal is competent to deal with issues related to the legality of the detention and the point concerns as to whether the allegation of the applicant is or is not plausible or even sufficiently arguable. It is that the Tribunal has no jurisdiction to deal with this question within the framework of this special procedural channel.386 Bearing in mind the considerations detailed in the paragraphs above, it is worth recalling that the relation between the limitation imposed by article 292 as regards the merits concerning the detention and the appreciation of the relevant factors of the case for setting a bond or assessing the reasonableness of the bond imposed by the detaining State is explained by itlos in the Hoshinmaru Judgment in light of the issue before the local courts. According to its paragraph 89: “The proceedings (…) can deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. Nevertheless, (…) the Tribunal is not prevented from examining the facts and circumstances of the case to the extent necessary for a proper appreciation of the reasonableness of the bond as set by the Respondent (‘Monte Confurco’, itlos Reports 2000, 384 Camouco Judgment, para. 25, and Monte Confurco Judgment, para 27. 385 Camouco Judgment, para. 59, and Monte Confurco Judgment, para. 61 to 63 and operative para. (96), Section 2. 386 This opinion was pointed out by France, in the Camouco case, when it stated that “Le Tribunal n’est pas davantage compétent pour connaître, dans le cadre de la présente procédure, du moyen tiré d’une prétendue violation de l’article 73, paragraphe 3, sur la non-imposition de sanctions d’emprisonnement dans des cas d’infractions en matière de pêche dans la zone économique exclusive”. However, both in the Camouco and the Monte Cofurco cases, instead of asking that the Tribunal declare itself not competent for this reason, France asked that the application be declared inadmissible, leading the Tribunal, in sense, to resolve the case in terms of admissibility and not of competence.

Principal Jurisdiction

133

p. 86, at pp. 108–109, para. 74). However, (…) in so doing [the Tribunal] is by no means acting as a court of appeal (‘Monte Confurco’, itlos Reports 2000, p. 86, at p. 108, para. 72).” In connection with the preceding paragraphs, the question of the confiscation of the vessel by the detaining State and its impact on prompt release proceedings is clear evidence of the complexities of these special cases surrounding article 292 unclos, firstly as regards the relationship between the powers of itlos (or other competent international tribunal) and the local courts, and secondly (in dealing with the boundary between jurisdiction and admissibility) as the main possible effect of the confiscation might be that the case becomes without object. The confiscation of the vessel by the detaining State has been a critical issue in several cases before itlos. Its placement, as an issue either of admissibility or of jurisdiction, has not been clearly established yet. A good example of this is the Tomimaru case, in which the detained Japanese vessel was confiscated by Russia. As Professor Oxman recalls, this case “represents the third time the Tribunal has encountered a situation in which the detaining State challenged the application on the grounds that the fishing vessel was confiscated. But it [was] the first time that the Tribunal faced that issue squarely. (…) In the Grand Prince case (…) the Tribunal never reached the issue because it found, proprio motu, that it lacked jurisdiction because the applicant, quite independently of any effect of the confiscation, had failed to establish that it was the flag state at the time the application (…) was made”.387 Finally, in the Juno Trader case, Oxman observes that Guinea-Bissau “raised that defense in challenging both jurisdiction and admissibility of the claim”, but the Tribunal “never reached that issue because it found that the Regional Court of Bissau, in suspending the application of the fine imposed to the vessel, removed the legal basis for the subsequent confiscation for non-payment of the fine”.388 In this case, the issue of the confiscation is mainly treated in the part of the Judgment devoted to jurisdiction though it is also mentioned as a question of admissibility, this time 387 Oxman, B.H., “The Tomimaru Case: Confiscation and Prompt Release”, in Hong, S-Y., and Van Dyke, J. (Eds.), Maritime Boundaries, Settlement Processes, and the Law of the Sea, Nijhoff, Leiden, Boston, 2009, pp. 277–286. See, in this respect, the Grand Prince Judgment of 20 April 2001, paras. 61, 77 and 93, and the Juno Trader Judgment of 18 December 2004, paras. 52, 53, 62, 63 and 68, as quoted by Oxman. In the Grand Prince case, the confiscation and its effects were alleged by France both in terms of producing the inadmissibility of the application and the lack of jurisdiction of the Tribunal (see para. 65). 388 Oxman, cit.

134

chapter 1

for rejecting it as a repetition of the question raised in respect to the said jurisdiction.389 Turning to the Tomimaru, the point of the confiscation and its effect of rendering the application without object is expressly included in the part of the Judgment devoted to jurisdiction. For purposes of verification, it is helpful to compare the structure of the Judgment in this prompt release dispute with its sister Judgment of the same date in the Hoshinmaru case. In treating the jurisdiction of itlos, paragraph 54 of the Hoshinmaru states that “The status of Japan as the flag State of the [vessel] is not disputed by the Respondent”. In the Tomimaru, paragraph 50 states the same, but there is an addition that continues: “However, the Respondent is of the opinion that the (…) confiscation renders the Application without object”. On the other hand, in the jurisdiction section of the Tomimaru Judgment, there is no paragraph similar to that of paragraph 59 in the Hoshinmaru in which the Hamburg Tribunal plainly asserts that “it has jurisdiction under article 292 of the Convention.” Neither is this statement found in the part of the Judgment devoted to admissibility.390 Despite the allegation of the detaining State that the confiscation of the vessel renders the application without object and that, “as a consequence, the Tribunal has no competence to examine an application for prompt release”,391 the fact is that, firstly, the Tribunal deals with this point in a separate section called “Effects of confiscation”,392 and, secondly, and above all, that the Tribunal both in its final conclusion on this point (para.81) and in the operative paragraph, 82, does not state that it lacks jurisdiction to deal with the case. It merely affirms, in this respect, that it “does not consider it necessary to pronounce expressly upon the several submissions of the parties (…) and considers that the Application is without object”; it finds, on the other hand, “that the Application of Japan no longer has any object and that the Tribunal is therefore not called upon to give a decision thereon”. It makes no mention, accordingly, of its lack of jurisdiction in this case. In view of the absence of definition, one may wonder whether these cases should, in fact, be classified as cases of anticipated termination.393 Account must be taken, in this respect, to the point 389 See Juno Trader Judgment, paras. 62 to 65 and 68. 390 Tomimaru Judgment, paras. 56 to 58. 391 Para. 59. 392 Paras. 59 to 81 (this means that the allegation of Russia referred to in the previous note is treated in this separate section). 393 This idea was offered to me by my mentor and friend Prof. Rafael Casado during a briefing in the Public International Law Department of the University of Cordoba.

Principal Jurisdiction

135

that in the Tomimaru case the confiscation of the vessel, finally confirmed during the proceedings, was not the only reason for rendering the case moot, nor was it the delay by Japan in filing the application for prompt release according to article 292, but the combination of both factors in the particular circumstances of this case.394 In addition to considerations made in this block to the time for filing an application for prompt release, we have to bear in mind that, as itlos states in this case, “confiscation of a fishing vessel must not be used in such a manner as to upset the balance of the interests of the flag States and of the coastal State established in the Convention (…). In particular, a confiscation decided in unjustified haste would jeopardize the operation of article 292 of the Convention”.395 Different from cases of confiscation, the moot nature of the case is clearly treated by the Tribunal as an issue of admissibility in the Hoshinmaru case, in which the basis for the claim by the respondent that the case was without object was the setting of the bond during the proceedings.396 Following the practice of the icj in this respect, the Hamburg Tribunal recognizes that events that occur during the proceedings “may render the application without object”. In this situation, itlos finds that, “while (…) in principle, the decisive date for determining the issues of admissibility is the date of the filing of the application, [the Tribunal] acknowledges that events subsequent to the filing of an application may render an application without object (…). However, in the present case, the Tribunal considers that the setting of the bond by the Respondent does not render the Application without object”.397 As anticipated at the beginning of this block, despite putting into motion the procedure of article 292, it is obvious that the Hamburg Tribunal has not resolved all the issues concerning the prompt release through this special way. First and foremost, all prompt release cases up to date have been cases of ­article 73.2. One may wonder whether the environmental provisions (articles 220.7 and 226.1.b) are more difficult to fit into these special summary proceedings or, on the contrary, it may only be a matter of time before arrests under those provisions provide itlos with some additional prompt release work. The jurisprudence of the Hamburg Tribunal, in this respect, is thus still pending. On the other hand, another quite interesting matter is that referring to the 394 See Tomimaru Judgment, paras. 71 to 80. See also the Declaration of Judge Yanai (para. 2) and the Separate Opinion of Judge Lucky (pages 5 and 13). 395 Tomimaru Judgment, paras. 75 and 76, respectively. 396 Hoshinmaru Judgment, paras. 62 to 66. 397 Hoshinmaru Judgment, paras. 64 and 65.

136

chapter 1

concurrence of causes of the detention, as mentioned by Lagoni.398 This situation happens when the detention may be qualified not only as one entailing a correlative obligation to release upon the posting of a bond, pursuant to ­articles 73, 220 and 226, but also as an arrest or detention which might be qualified as one alien to those provisions in view of the concurrent cause. Apparently, it occurred in the Saiga case, in which there was an alleged violation of the customs laws of Guinea, though this situation was not discussed as such. In my view, it is not possible to give an answer that might be applied as a general rule. There will be situations in which the concurrent cause clearly prevails to that of article 292399; but there will also be others in which the concurrent cause is used to avoid the procedure of article 292, as could happen in the Saiga. Is it possible to apply the article 292 UNCLOS to detentions carried out ­pursuant to the 1995 Implementation Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks? In Treves opinion, followed by McDorman, the answer must be in the affirmative, insofar as it would be absurd that the most expeditious procedure available to request the release of a vessel would be available for cases where the detention is permitted by the Convention (like those of articles 73, 220 and 226) and not for cases in which the detention is not allowed.400 However, as just foreseen, the most remarkable element of which to take note in this type of procedure is precisely its application to situations in which the detention may be lawful and, despite all, entail a correlative obligation to release upon the posting of a bond. In this respect, despite the reference article 30.1 of the Agreement makes to Part xv of the Convention in toto, the treatment this subject received in the Conference in which the 1995 Agreement was negotiated and the final text of this important treaty, seem to direct the answer in the opposite direction. As Treves recalls, during the New York Conference the express reference to article 292 that appeared in the first drafts of the Agreement was deleted. Moreover, as the former Judge of itlos recalled, 398 Lagoni, R., “The Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea: A Preparatory Report”, ijmcl, vol. 11 (2), 1996, p. 159. In a similar sense, Brown, cit., p. 318. 399 For example, concurring with drug trafficking, slavery or other crimes of similar gravity. 400 Treves, “The proceedings concerning prompt release of vessels and crews before the International Tribunal for the Law of the Sea”, ijmcl, vol. 11 (2) May 1996, pp. 179–200 (pp. 186 and 187) (Treves addresses other cases here, but in the following section of his paper, where he deals with the Straddling Stocks Agreement, he states that “on the same basis, it can be argued that the procedure of article 292 may also be resorted to under the Agreement”); McDorman, T., “The Dispute Settlement Regime of the Straddling and Highly Migratory Fish Stocks Convention”, The Canadian Yearbook of International Law, vol. xxxv, 1997, pp. 57–79.

Principal Jurisdiction

137

the reason given to suppress the said reference was that to include it would have meant conceding that article 21 permits detention of vessels and crews. In Treves’ opinion, “the deletion does not, however, entail that resort to article 292 is ruled out when detention is in violation of the provisions of article 21 of the Agreement”.401 I do not share professor Treves’ opinion in this point. Even in view of the wording of article 21 of the New York Agreement, which is actually the provision of this treaty closest to what could be deemed as a detention (it refers to the possibility for an inspecting State [other than the flag State] to bring the vessel to the nearest port under certain conditions) it cannot serve as the basis for a prompt release procedure of article 292 unclos. There are several reasons: firstly, because of the kind of detention that this provision would cover, and then most importantly, because the provision does not establish an obligation to release upon the posting of a bond as correlative to the detention, which is the door to open the special procedure found in article 292 unclos. Account must be taken, in this respect, to the fact that these detentions would be practiced in the framework of two States cooperating between themselves, not that of two confronting States.402 Obviously, all of this does not imply, that the flag State of an unduly detained vessel lacks any chance of defending its interests. Both, high seas fisheries, on the one side, and the freedom of navigation which might be affected by an arrest as carried out in abuse of the powers conferred upon the detaining State, on the other side, are matters subject to compulsory procedures entailing binding decisions of Part xv of the 1982 Convention to which the 1995 Agreement refers. The difference is this: for the detentions that take place under the 1995 Agreement, a flag State is not offered the option of using the more expeditious means provided in article 292, but can only use the slightly less expeditious way of provisional measures of article  290,403 which in turn are subject to the particularities established by 401 Doc.A/CONF.164/22/Rev.1, 11 April 1995, as mentioned by Treves, “The Proceedings concerning prompt release…”, cit., p. 187, note 11. In particular, article 21.1 established that “where action taken by a State other than the flag State includes detention of a vessel or its crew, the vessel or crew shall promptly be released upon posting of a reasonable bond or other financial security, and the provisions of artícle 292 of the Convention shall apply”. 402 Article 21 only admits to compulsory bringing of the vessel to the nearest appropriate port in cases where there are clear grounds for believing that a serious violation has been committed and the flag State has either failed to respond or to take action as required by the inspecting State. Even in these cases, the flag State shall be immediately informed of the name of the port (paragraph 8) and may, at any time, request the release of the vessel to pursue by itself with the investigation of the alleged offence (paragraph 12). 403 In such a situation the dispute on the merits would concern the legality of the detention while the request for provisional measures would deal with the release of the vessel,

138

chapter 1

­article 31.3 in respect to States not parties to unclos.404 A different matter altogether is that, probably in a number of cases, the detaining State, despite invoking the powers conferred upon it by the 1995 Agreement, actually imposes an abusive extension of the jurisdiction conferred by international law to coastal States in their exclusive economic zones (eez) over the high seas. In other words, it might happen that the detaining State invokes, as part of its rights pursuant to the 1995 Agreement, the exercise of jurisdictional rights that are only recognized by international law to the eez. In such a situation, the said unilateral extension of the eez powers by the coastal State to the high seas could place the detention within the orbit of article 73 of the Law of the Sea Convention and, accordingly, under the coverage of the special procedure of article 292 (if the other conditions are met). c Other Disputes Submitted to the Compulsory Settlement System: The General Rule of Article 286 as Applicable to Disputes Not Excepted from unclos Compulsory Procedures Entailing Binding Decisions

As we have previously stressed, in addition to the cases provided in articles 187 and 292, the general rule is that every dispute not expressly excluded by either article 297 nor a declaration made by a State Party in accordance with ­article 298 is submitted to the binding settlement system (art.286). It would be rather complex, if not impossible, to produce a complete list of each and every category of dispute that could arrive at the compulsory procedures entailing binding decisions of unclos; among other things, this is so because it is always possible to find those difficult borderline cases in which the gap between the boundaries of the disputes submitted to such binding procedures and those excluded from them is extremely narrow. Arbitral or permanent tribunals shall, in a case-by-case basis, determine the disputes forming one list or the other. What we shall, in all modesty, attempt to do here is to identify some categories of particular controversies which have been either unequivocally submitted by unclos to its own binding procedures, or those that with some degree of certainty may be understood to have been submitted because they respectively. In a sense, this happened in the Saiga 2 case. However, as the release of the vessel had been already decided in the prompt release Judgment of the Saiga 1 case, the request for provisional measures by Saint Vincent and the Grenadines just asked itlos to order Guinea to comply the prompt release Judgment. Finally, the release of the vessel was carried out by Guinea during the procedure on the merits. 404 According to this article: “A State Party to this Agreement which is not a Party to the Convention may declare that, notwithstanding article 290, paragraph 5, of the Convention, the International Tribunal for the Law of the Sea shall not be entitled to prescribe, modify or revoke provisional measures without the agreement of such State.”

Principal Jurisdiction

139

were not excluded from those procedures by the provisions that might otherwise have done so. This in turn should give us a better idea as to the real extent of this compulsory system. As we begin our examination in depth, the first disputes encountered are those which article 297.1 itself expressly submits to the compulsory procedures entailing binding decisions of Part xv. These are disputes, which, as we have seen previously, are related to the interpretation or application of unclos with regard to the exercise of sovereign rights or jurisdiction by a coastal State, as provided in the Convention (that is, basically, over its eez or its continental shelf), in the following cases: a)

when it is alleged that a coastal State has acted in contravention of the provisions of this Convention in regard to the freedoms and rights of navigation, overflight or the laying of submarine cables and pipelines, or in regard to other internationally lawful uses of the sea specified in article 58;405 b) when it is alleged that a State in exercising the aforementioned freedoms, rights or uses has acted in contravention of this Convention or of laws or regulations adopted by the coastal State in conformity with this Convention and other rules of international law not incompatible with this Convention; c) when it is alleged that a coastal State has acted in contravention of specified international rules and standards for the protection and preservation of the marine environment which are applicable to the coastal State and which have been established by this Convention or through a competent international organization or diplomatic conference in accordance with this Convention.406

405 Among those “other internationally lawful uses of the sea”, article 58 quotes, i.a. the “uses associated with the operation of ships, aircrafts and submarine cables and pipelines” on the condition that they are compatible with the other provisions of the Convention. 406 In relation to disputes regarding marine environment protection see, among others: Mensah, Th., “The International Tribunal and the Protection and Preservation of the Marine Environment”, Environmental Policy and Law, vol. 28 (1), Feb. 1998, pp. 216–219; Hargrove, J.L., “Settlement of Disputes under the Law of Ocean Use, with Particular Reference to Environmental Protection”, Georgia Journal of International and Comparative Law, vol. 6, 1976, pp. 181–196; Kindt, J.W., “Dispute Settlement in International Environmental Issues: The Model Provided by the 1982 Convention on the Law of the Sea”, Vanderbilt Journal of Transnational Law, vol. 22, 1989, pp. 1097–1118.

140

chapter 1

In the second place, for the more than one hundred and thirty States Parties which already have not made a declaration pursuant to article 298,407 1/­disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, 2/­disputes concerning military activities, including military activities by government vessels and aircrafts engaged in non-commercial service, as well as disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3, and 3/disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in the Convention; all of them are disputes falling under its compulsory procedures entailing binding decisions. The same is obviously applicable, in regard to those disputes not excluded by them, to States Parties making a declaration by which they exclude not all but certain disputes exceptionable according to article 298.408 A good example of a dispute on delimitation not covered by a declaration made pursuant to article 298 is the case concerning the Delimitation of the maritime boundary in the Bay of Bengal between Bangladesh and Myanmar. It was originally submitted by Bangladesh to an arbitral tribunal to be constituted according to Annex vii unclos, but was finally transferred to itlos by way of the declarations made by the parties in accordance with article 287. In this field of compulsory jurisdiction regarding marine delimitation, the Annex vii arbitration has taken the lead, quantitatively speaking. We can mention here, as examples, the cases between Barbados and Trinidad & Tobago (settled by Award of 11 April 2006) Guyana and Suriname (Award of 17 September 2007) and Bangladesh and India (Award of 7 July 2014). In addition to the disputes expressly submitted to the compulsory settlement system of unclos by articles 297 and 298 (with the latter read a sensu contrario), its compulsory procedures are also applicable to those disputes that are not affected by the limitations or exceptions of the aforementioned provisions. 407 As of 28 February 2015, of 166 States Parties to unclos, plus the European Union, only 35 States have made a declaration pursuant to article 298 (though the declarations made by Cuba and Guinea Bissau should most likely be discounted, as they are irrelevant as regards to article 298). 408 For example, for the 11 States excepting only disputes set out in paragraph 1.a (such as, inter alia, Australia, Equatorial Guinea and Spain), disputes detailed in paragraph 1.b and c fall under the compulsory procedures entailing binding decisions.

Principal Jurisdiction

141

For example, as we have seen in a previous section, the limitations of article 297 extend neither to marine scientific research activities carried out in the Seabed Area409 or in the high seas,410 nor to fisheries in this latter maritime space.411 In particular, in reaction to disputes concerning fisheries in the high seas, it is well worth following Casado’s considerations about different species subject to extraction in that specific maritime space. Generally, disputes concerning the conservation and management of straddling and highly migratory species in the eez are excepted from compulsory jurisdiction but when they concern the same species in the high seas, the pertinent court or tribunal according to ­article 287 should declare itself competent. Nothing in articles 63.2 and 64 indicates that the coastal States enjoy any sovereign right over those species in the high seas.412 A similar conclusion can be reached in respect to marine mammals and anadromous and catadromous species located beyond the 200 mile coastal boundary: the principle of compulsory jurisdiction is the rule. This is true even in cases in which some extension to the jurisdiction of a coastal State beyond its eez is envisaged, as occurs, for instance, in article 66.2 when dealing with anadromous species. As Professor Casado points out, the limitation of article 297.3 unclos refers only to the eez.413 On the other hand, disputes regarding the fishing of sedentary species,414 in the part of a continental shelf up to 200 miles from the coastal baseline would be excepted from compulsory settlement procedures since these disputes fall under the exception of article 297.3, but those relating to these activities on a shelf beyond the 200 mile limit would fall under compulsory procedures entailing binding decisions.415 Moreover, regarding the disputes concerning the protection of the marine environment and the exercise of the freedoms of navigation and overflight, we must recall that, although article 297.1 expressly declares that some particular categories of those disputes are submitted to compulsory procedures entailing binding decisions, particularly those related to the exercise of sovereign rights or jurisdiction, this does not mean that they are the only categories of disputes on marine environmental protection and freedom of navigation and overflight 409 410 411 412

Article 256. Article 257. Articles 87.1.e and 116 to 120. Casado Raigón, R., “Règlement des différends”, in Vignes, D., Cataldi, G., Casado, R., Le Droit international de la pêche maritime, Bruylant, Bruxelles, 2000, pp. 352 ss. 413 Ibid. 414 Article 77.4 identifies as “living organisms belonging to sedentary species” those “organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.” 415 casado, cit., pp. 353 and 354.

142

chapter 1

submitted to the compulsory settlement system. The application of the general rule of compulsory settlement in article 286 would also place other disputes concerning the protection of the marine environment and those relating to freedoms of navigation and overflight not covered by the said article 297.1 under compulsory procedures entailing binding decisions, in the absence of a clearly established exception. As Thomas Mensah recalls, in his examination of disputes concerning the protection of the marine environment in particular, these conflicts are not only limited to the provisions in Part xii of unclos, they extend to other parties of the Convention as well – for example, articles 19 and 21.2,416 which relate not to the exercise of sovereign rights or jurisdiction (art.297.1), but to sovereignty over the territorial sea (art.2). At the same time, a declaration made pursuant to article 298, by which the declarant excludes the disputes outlined in paragraph 1 of that provision, would not affect, for example, disputes relating to the delimitation of the territorial sea, the eez or the continental shelf with the high seas or the Seabed Area, which fall beyond the jurisdiction or sovereignty of any one State, nor to hypothetical disputes concerning the delimitation of the contiguous zone, which in this case even affect States with adjacent or opposing coasts. All of these would therefore fall under the compulsory jurisdiction of the competent forum to be determined according to article 287. In fact, because the compulsory settlement system by nature falls into the category of a general rule, gauging its true extent is just like looking at the negative of a photograph: every dispute that is not excepted from compulsory procedures entailing a binding decision is submitted to them.417 In this sense, even without attempting to elaborate a complete list of the disputes concerning the interpretation or application of unclos submitted to its pre-consented compulsory settlement system, we can observe here, more modestly, that among the primary “areas” which the drafters of unclos apparently wanted to reserve to compulsory jurisdiction, would chiefly appear the following: 1/disputes regarding the Seabed Area; 2/the prompt release procedures set out in article 292; 3/disputes regarding fisheries and marine scientific research in areas beyond the exclusive economic zone or the continental shelf; 4/disputes covered by article 298, including those concerning delimitation, inasmuch as a 416 mensah, cit., p. 217. 417 J.A.Roach, in examining the potential utility that the compulsory settlement system of unclos might have for the United States in case of accession, points out up to twelve issues which could be subject to binding procedures of 1982 Convention (“Dispute resolution mechanisms of the law of the sea regime: Dispute settlement in specific situations”, Georgetown International Environmental Law Review, 7(3), Summer 1995, pp. 775–789).

Principal Jurisdiction

143

declaration made pursuant to that article does not exclude them; 5/disputes regarding the protection of the marine environment in any maritime space; and 6/those concerning the exercise of the freedoms of navigation, overflight, laying of submarine pipelines and cables or regarding other internationally lawful uses of the sea recognized by the Convention, as well in any maritime space.418 Nevertheless, it is also possible to find “borderline disputes”, that is, disputes for which a connection can be established both with the exceptions or limitations of articles 297 and 298 and with categories of disputes that are generally submitted to compulsory jurisdiction. A good example of the difficulties to be encountered within this group, is offered by the Saiga and Saiga 2 cases, adjudicated precisely by itlos itself. The cases concerned the activity of refueling fishing vessels in the exclusive economic zone of another State, a matter which had remained unresolved by the Hamburg Tribunal for reasons detailed below. In light of article 73 of the Convention and the allegations of Saint Vincent and the Grenadines in the Saiga case on prompt release, itlos affirmed that: “the question to be considered can be stated as follows: is ‘bunkering’ (refueling) of a fishing vessel within the exclusive economic zone of a State to be considered as an activity the regulation of which falls within the scope of the exercise by the coastal State of its ‘sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone’?” If this is the case, continues the Tribunal, “violation of a coastal State’s rules concerning such bunkering would amount to a violation of the laws and regulations adopted for the regulation of fisheries and other activities concerning living resources in the exclusive economic zone (…)”.419 In this respect, itlos recognized that arguments could be found to support both the nature of this activity as one whose regulation could be assimilated to the regulation of the exercise by the coastal State of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone,420 as well as in support of the opposite view, that is to say, that bunkering at sea should be classified as an independent activity whose legal regime should be that of freedom of navigation (or perhaps – when conducted in the exclusive economic 418 Regarding the importance of disputes concerning freedom of navigation and overflight and marine environmental protection in the compulsory settlement system of unclos, see, in particular: Adede, A., The System for Settlement of Disputes under the Law of the Sea Convention: A Drafting History and a Commentary, Nijhoff, Dordretch, Boston, 1987, pp. 258 ss. 419 Judgment of 4 December 1997, para. 56. 420 Saiga 1, Judgment, para. 57.

144

chapter 1

zone – that mentioned in article 59 of the Convention).421 Nonetheless, in this regard, the Tribunal found that “it [was] not necessary (…) to come to a conclusion as to which of these two approaches is better founded in law”, insofar as “for the purpose of the admissibility of the application for prompt release of the M/V Saiga it is sufficient to note that non-compliance with article 73, paragraph 2, of the Convention has been ‘alleged’ and to conclude that the allegation is arguable or sufficiently plausible”.422 On the other hand, in the Saiga 2 case, at the provisional measures proceedings, both parties reprised their argument concerning the above-mentioned question, in this instance the plaintiff supporting the jurisdiction of the Tribunal based on article 297.1 and the defendant denying it on the basis of article 297.3.423 Again itlos left the question unresolved by stating that “before prescribing provisional measures the Tribunal need not finally satisfy itself that it has jurisdiction on the merits of the case and yet it may not prescribe such measures unless the provisions invoked by the Applicant appear prima facie to afford a basis on which the jurisdiction of the Tribunal might be founded”.424 Nevertheless, it recognized that “In the present case article 297, paragraph 1, of the Convention, invoked by the Applicant, appears prima facie to afford a basis for the jurisdiction of the Tribunal”.425 Furthermore, in the Saiga 2 (merits) case, itlos stated the following: The Tribunal notes that there is no specific provision on the subject in the Convention. Both parties appear to agree that, while the Convention attributes certain rights to coastal States and other States in the exclusive economic zone, it does not follow automatically that rights not expressly attributed to the coastal State belong to other States or, alternatively, that rights not specifically attributed to other States belong as of right to the coastal State. Saint Vincent and the Grenadines asks the Tribunal to adjudge and declare that bunkering in the exclusive economic zone by ships flying its flag constitutes the exercise of the freedom of navigation and other internationally lawful uses of the sea related to the freedom of navigation, as provided for in articles 56 and 58 of the Convention. On the other hand, Guinea maintains that “bunkering” is not an exercise of the freedom of navigation or any of the internationally lawful uses of the sea related to 421 422 423 424 425

Judgment, para. 58. Judgment, para. 59. Order of 11 March 1998, para. 27. Order, para. 29. Emphasis added. Order, para. 30.

Principal Jurisdiction

145

freedom of navigation, as provided for in the Convention, but a commercial activity. Guinea further maintains that bunkering in the exclusive economic zone may not have the same status in all cases and suggests that different considerations might apply, for example, to bunkering of ships operating in the zone, as opposed to the supply of oil to ships that are in transit. The Tribunal considers that the issue that needed to be decided was whether the actions taken by Guinea were consistent with the applicable provisions of the Convention. The Tribunal has reached a decision on that issue on the basis of the law applicable to the particular circumstances of the case, without having to address the broader question of the rights of coastal States and other States with regard to bunkering in the exclusive economic zone. Consequently, it does not make any findings on that question.426 Finally, fifteen years after, itlos decided this question in its Judgment of 14 April 2014, in the M/V Virginia G case (Panamá/Guinea-Bissau): 217. The Tribunal is of the view that the regulation by a coastal State of bunkering of foreign vessels fishing in its exclusive economic zone is among those measures which the coastal State may take in its exclusive economic zone to conserve and manage its living resources under ­article 56 of the Convention read together with article 62, paragraph 4, of the Convention. This view is also confirmed by State practice which has developed after the adoption of the Convention. (…) 222. (…) Such competence, as noted in paragraph 213, derives from the sovereign rights of coastal States to explore, exploit, conserve and manage natural resources. 223. The Tribunal emphasizes that the bunkering of foreign vessels engaged in fishing in the exclusive economic zone is an activity which may be regulated by the coastal State concerned. The coastal State, however, does not have such competence with regard to other bunkering activities, unless otherwise determined in accordance with the Convention. 3.1.1.5 The Position of itlos within the Dispute Settlement System of unclos: Disputes Falling under the Compulsory Jurisdiction of the International Tribunal for the Law of the Sea Once the scope of the compulsory procedures entailing binding decisions in unclos is delimited, the final goal of this section is to determine which 426 Judgment of 1 July 1999, paras.137 and 138.

146

chapter 1

disputes that fall in among those procedures, fall under the compulsory jurisdiction of the International Tribunal for the Law of the Sea. As pointed out in previous sections, itlos, by itself or through its Seabed Disputes Chamber, has been invested by the Convention with a preponderant role with respect to some types of disputes, namely, those regulated in article 187 regarding the Seabed Area and those defined by article 292 regarding prompt release on vessels and their crews. Accordingly, in dealing with these types of disputes, the general rule is submission to itlos and the exception is submission of the dispute to a different forum. But quite to the contrary, in dealing with the remaining disputes under the compulsory procedures entailing binding decisions, the general rule is submission to an arbitral tribunal as envisaged in Annex vii, insofar as that body has been invested with the compulsory residual jurisdiction, while the exception is submission to itlos (or one of the remaining fora of the “Montreux formula”). But this exception only holds if, before any dispute has arisen, both litigants have filed a declaration pursuant to article 287 in which they choose the same permanent or arbitral tribunal. A

Disputes Regarding the Seabed Area (Section 5, Part xi)

Every dispute mentioned in article 187 unclos, without exception, is submitted to compulsory jurisdiction. All but one must be submitted to the Seabed Disputes Chamber (sdc), unless the parties otherwise agree. The one exception to this is expressed as follows: “Disputes concerning the interpretation or application of a contract referred to in article 187, subparagraph (c)(i), shall be submitted, at the request of any party to the dispute, to binding commercial arbitration, unless the parties otherwise agree” (art.188.2.a).427 Moreover, even in this latter case involving commercial arbitration, the “commercial arbitral tribunal to which the dispute is submitted shall have no jurisdiction to decide any question of interpretation of this Convention”, to the point that “When the dispute also involves a question of the interpretation of Part xi and the Annexes relating thereto, with respect to activities in the Area, that question shall be referred to the Seabed Disputes Chamber for a ruling” (art.188.2.a, in fine).428 427 Article 188.2.c: “In the absence of a provision in the contract on the arbitration procedure to be applied in the dispute, the arbitration shall be conducted in accordance with the uncitral Arbitration Rules or such other arbitration rules as may be prescribed in the rules, regulations and procedures of the Authority, unless the parties to the dispute otherwise agree”. 428 Article 188.2. b: “If, at the commencement of or in the course of such arbitration, the arbitral tribunal determines, either at the request of any party to the dispute or proprio motu, that its decision depends upon a ruling of the Seabed Disputes Chamber, the arbitral tribunal shall refer such question to the Seabed Disputes Chamber for such ruling. The arbitral tribunal shall then proceed to render its award in conformity with the ruling of the Seabed Disputes Chamber”.

Principal Jurisdiction

147

Compulsory jurisdiction is given to the Seabed Disputes Chamber as a result of provisions contained in Part xv, in Section 5 of Part XI and in the Statute of the Tribunal. In particular, the conferring of jurisdiction to the Seabed Disputes Chamber to deal with these kinds of disputes is set out, in a somewhat “circular” manner429: first, in article 14 of the Statute, according to which, in respect to the said Chamber, “Its jurisdiction, powers and functions shall be as provided for in Part xi, Section 5”; next, article 186 itself declares that the sdc will be established and shall exercise jurisdiction as “governed by the provisions of this section, of Part xv and of Annex vi”; then, article 288.3, according to which the cited Chamber, or any other chamber or arbitral tribunal referred to in Section 5 of Part xi “shall have jurisdiction in any matter which is submitted to it in accordance therewith”; and, finally, article 187, according to which “The Seabed Disputes Chamber shall have jurisdiction under this Part and the Annexes relating thereto in disputes with respect to activities in the Area”, that is to say, activities falling within the categories established in that article. As regards compulsory jurisdiction conferred precisely upon the sdc, a distinction may be made among disputes between States and other types of disputes. As for the former, the compulsory nature of the jurisdiction granted to the Seabed Disputes Chamber comes, in my view, from article 287.3. While for the other disputes on the interpretation or application of the Convention, States Parties may opt from among four different courts or arbitral tribunals, no declaration made under paragraph 1 of the said article 287 shall affect or be affected “by the obligation of a State Party to accept the jurisdiction of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea to the extent and in the manner provided for in Part xi, Section 5.” As for the latter, those remaining disputes in which there are litigants involved that are not States, the compulsory nature of the sdc jurisdiction, with the sole exception of the aforementioned compulsory commercial arbitration of article 188.2, is based on a combination of several factors, namely: 1/that the access of those entities other than States to procedures of Part xv is open “only as specifically provided for in this Convention” (art.291.2); 2/that unclos only grants these parties access to itlos or its Seabed Disputes Chamber (arts. 20 and 37 st); and 3/that the competence for dealing with the only disputes where non-State 429 This is probably due to the fact that the drafting of unclos provisions regarding the settlement of disputes on the Area wasn’t carried out in the Informal Plenary, as was the case with the remaining parts of the Convention, but rather, in the First Commission; one other additional reason might be that, during some time in the iii Conference, there were two proposed tribunals under discussion, the current itlos and the Seabed Tribunal, which later became the current sdc.

148

chapter 1

actors are allowed to litigate, that is to say, those provided for in article 187, singularly corresponds to the sdc, as we have seen. Finally, the fact that the competence of the Seabed Disputes Chamber is compulsory unless the parties otherwise agree, generally speaking, proceeds from article 285 by establishing the application of provisions contained in Section 1 of Part xv “to any dispute which pursuant to Part xi, Section 5, is to be settled in accordance with procedures provided for in this Part”. According to that article, this applies even to disputes where one of the litigants is not a State insofar as Section 1 of Part xv applies to them “mutatis mutandis”. On the other hand, and referring particularly to disputes between States Parties on the interpretation or application of Part xi and the Annexes relating thereto (art.187.a), one of the “other things” on which the parties may agree is, pursuant to article 188.1.a, that the dispute is submitted, “at the request of the parties to the dispute, to a special chamber of the International Tribunal for the Law of the Sea to be formed in accordance with Annex vi, articles 15 and 17.” Taking the preceding paragraphs into account, I agree with Cannone,430 that the compulsory jurisdiction granted to the Seabed Disputes Chamber is not “exclusive”.431 As has been pointed out above, even when the parties involved are not States, they have the right to settle the dispute via an alternative forum of their choosing (art.285).432 However, this is so when “exclusive” jurisdiction is understood to mean that the sdc is the one and only court invested with jurisdiction to deal with the disputes listed in article 187. Should the adjective “exclusive” be understood in a more limited sense, to the point that, with the sole exception of compulsory commercial arbitration, the Seabed Disputes Chamber is the only forum that is empowered with compulsory jurisdiction to entertain the disputes enumerated in article 187; then, we can correctly affirm that, in dealing with disputes involving article 187, the 1982 Convention confers compulsory jurisdiction exclusively upon the sdc.433 This 430 Cannone, A., Il Tribunale Internazionale del dirito del mare, Cacucci, Bari, 1991, pp. 162 ss. 431 Against: Paolillo, F., “The Institutional Arrangements for the International Sea-Bed and their Impact on the Evolution of International Organizations”, rcadi, vol. 188, 1984, p. 276. See also Vukas, B., “The International Tribunal for the Law of the Sea: Some Features for the New International Judicial Institution”, Indian Journal of International Law, vol. 37 (3), 1997, pp. 372–387 (pp. 377 and 378). 432 See also, Fleischauer, C.A., “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.i, 1997, pp. 327–333. 433 In this sense, see Treves, T., “Conflictos de jurisdicción entre el Tribunal Internacional del Derecho del Mar y la Corte Internacional de Justicia” in Torres, S., Treves, T., and Valticos, N., Tres estudios sobre la Corte Internacional de Justicia, Instituto de Estudios Internacionales y Europeos Francisco de Vitoria, Madrid, 1999, p. 50.

Principal Jurisdiction

149

might be the line taken by the Chamber when it defines itself as “a separate judicial body within the Tribunal entrusted, through its advisory and contentious jurisdiction, with the exclusive function of interpreting Part xi of the Convention and the relevant annexes and regulations that are the legal basis for the organization and management of activities in the Area”.434 Either way, whatever may be the most precise interpretation of the jurisdiction of the Seabed Disputes Chamber, that jurisdiction, in practice, is going to operate in a very similar way to the residual jurisdiction of itlos in regard to prompt release procedures or to that of the Annex vii arbitral tribunals in respect to other disputes involving compulsory jurisdiction (article 287). B

Prompt Release Disputes (Article 292)

Moving on to disputes that pertain to prompt release of vessels and their crews, itlos has clearly been given the leading role since it is the only forum having residual compulsory jurisdiction: residual, because the Tribunal is the default forum should an alternative not be chosen, and compulsory, because the flag State of the detained vessel can itself bring the case before the Tribunal without the consent of the detaining State, in the absence of an agreement with its opponent on the choice of forum. In this respect, article 292.1 says that the question of release from detention “may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree.” Analysing that text, point by point, we find in respect to the court or tribunal agreed upon by the parties, that it could be any one of the group listed in article 287 (i.e. the International Court of Justice, the International Tribunal for the Law of the Sea, and arbitral tribunals regulated in Annexes vii and viii) or any other international forum agreed upon by the parties,435 for instance, an arbitral tribunal with a composition different from those mentioned above, or a regional judicial organ with competence for dealing with this type of dispute. In addition, such an agreement

434 Advisory Opinion of 1 February 2011 in the case concerning Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, paragraph 25. As it appears, it is not clear, in my view, whether this exclusivity could be even interpreted in a bi-directional way, that is, also with the meaning that the sdc can only (exclusively) deal with cases concerning the Area. 435 Lagoni, R., “The Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea: A Preparatory Report”, ijmcl, vol. 11 (2), 1996, p. 151.

150

chapter 1

might be reached, in my opinion, either prior to the dispute, on the condition that it specifically refers to it, or after the dispute, ad hoc, for a particular case of release that might have arisen. For a flag State to bring the case to a court or tribunal accepted by the detaining State under article 287, it is necessary for the detaining State to have made a genuine declaration according to the requirements of that provision. It is not enough, in my view, to have a simple understanding that consent exists, neither in respect to the icj, by deducing it from a declaration made pursuant to article 36.2 of the Court’s Statute, or in respect to the Annex vii Arbitral Tribunal, from the presumption established in paragraph 3 of article 287.436 In my opinion, it is necessary to explicitly mention either article 292, or the term “prompt release procedures”, or at least those elements that unequivocally identify this special procedure. In respect to this right of choice, several questions may arise. Firstly, article 292 alludes to the accepted court or tribunal, referring to it in the singular, and thus somehow taking it for granted that the detaining State has opted for only one, while article 287 allows opting for one or more. In this last instance, can the flag State opt for any of the courts or tribunals chosen by the detaining State? What might happen in the case that the detaining State has established a preference between its choices? In my view, when the declaration designates several fora without establishing an order of preference,437 the flag State may choose any of them. By contrast, in the event that the detaining State has indicated a preference, only the first choice could be selected by the flag State.438 Secondly, might it be possible for the flag State to submit the case to any of the fora listed by the detaining State even when these fora have not been selected expressly by the flag State in a declaration made pursuant to article 287 or when no declaration has been made at all? In my opinion, the answer must be in affirmative, since the text of article 292 is clear in extending this privilege to the flag State in this particular special procedure. This is so even in situations when the selected court is the International Court of Justice, which if selected, would find that its jurisdiction comes from article 36.1 of its Statute, in conjunction with article 292.1 itself, and not from either article 287 or the optional clause system. Nevertheless, insofar as this situation, if it ever arises, would most probably bring with it a preliminary objection to the jurisdiction of the Court, 436 According to article 287.3: “A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex vii.” 437 For example, the declaration of Spain (itlos/icj). 438 For example, Cape Verde (1st itlos, 2nd icj).

Principal Jurisdiction

151

I understand the cautious position of Lagoni while considering that this question remains open.439 On the other hand, in respect to the fact that the aforementioned provisions apply unless the parties otherwise agree, the parties may, besides agreeing on the forum: 1/convene on the exclusion of article 292 in toto; or 2/agree on the relinquishment by the flag State to its right to opt for the forum accepted by the detaining State ex article 287 or for itlos; or 3/convene on the establishment of a deadline other than the ten day lapse to file before the competent court or tribunal; or 4/agree on the imposition of any other requirement in addition to or in substitution of the said deadline so that the forum is available to them;440 or 5/pre-empting other means of settlement, like mediation, compulsory conciliation, etc., to the procedures set out in article 292; or 6/agree between themselves as litigants on which cases would activate article 292, for instance, convening that for them the only case to activate this special prompt release procedure would be that of article 73 and not those contained in articles 220 and 226.441 In view of what we have detailed previously, it may be deduced that, for the compulsory residual jurisdiction of itlos to be activated, apart from fulfilling the conditions common to all fora (that is, that “the authorities of a State Party have detained a vessel flying the flag of another State Party” and that “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”), it would be necessary to fulfill an additional prerequisite, namely, that the parties have not reached an agreement on the forum, on the procedure, on the release, etc., within, at the latest, ten days from the time of the detention. 439 Lagoni, cit. p. 151. In his work, the German scholar quotes the opposing position of Prof. Louis Sohn (+) expressed in a letter addressed to him by 6 October 1995. In the said letter, Sohn claims that “a State that has not accepted the jurisdiction of the International Court of Justice, cannot unilaterally present a case to it, even if the detaining State has accepted it (…)”. 440 For example, the termination of the procedure or internal enquiry carried out by the detaining State. 441 In writing about the possibility for the parties to choose otherwise, Treves states that it “indicates that the paramount principle of settlement of international disputes, that of the pre-eminence of the agreement of the parties, applies also to this case”, further adding that the parties “can agree, for instance, to extend the time limit for negotiation, to utilize private arbitration and even not to use the prompt release procedure” (Treves, T., “The Proceedings concerning Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea”, ijmcl, Vol. 11 (2), May 1996, p. 188).

152

chapter 1

The expiration of the aforesaid 10-day term, as well as the precise date of the detention for the purpose of counting such period of time, as well as the absence of an agreement, all constitute objective facts whose verification or determination corresponds to the Tribunal in the exercise of its competence de la competence, in view of the allegations and evidence provided by both parties. As for the 10-day deadline (which, as Treves observes, seems to run independently of the knowledge of the detention by the flag State442), it may appear to be somewhat brief in view of the usual amount of time it takes for judicial and administrative domestic organs to function and given the complexity involved in calculating the bond or financial security, particularly in environmental cases. Moreover, in respect to the absence of an agreement, though the principle of acting in good faith is obviously a prerequisite, the truth is that, beyond the mandatory exchange of views as prescribed in article 283, (which is also applicable to these situations and which might be accomplished by merely ascertaining that the parties disagree, with the procedures, apart from the merits) no particular consequence for this absence is foreseen. Furthermore, though more a question of admissibility rather than jurisdiction stricto sensu, it is worth recalling here that, while article 292 lays down a minimum lapse of ten days, during which the Tribunal lacks competence, there is no maximum period of time in which to file the application, and beyond which it would become inadmissible. itlos confirms this in the Hoshinmaru case, stating that “article 292 of the Convention does not require the flag State to file the application at any particular time after the detention”.443 This omission of a maximum time limit is somewhat contradictory, to my understanding, and lacks coherence when contrasted both to the brevity of the 10-day limit for verifying the lack of an agreement and to the special nature of a procedure for “prompt” release, such as the one under examination. In my view, it doesn’t prevent the Tribunal from reaching the conclusion, on a case-by-case basis, that the action exercised by the applicant, due to the long period of time elapsed, is incompatible with the object and purpose of article 292. As the proceedings for prompt release are of an urgent and summary nature, the course of an excessive lapse of time might be significant. In this respect, as the Hamburg Tribunal emphasizes in the Tomimaru case, “considering the objective of article 292 of the Convention, it is incumbent upon the flag State to act 442 Treves, ijmcl, cit., p. 187. According to Treves, that is without prejudice of the obligations imposed on the detaining State to inform the flag State on the arrest (see arts. 73.4, 226.1.c and 231). 443 Hoshinmaru Judgment, 6 August 2007, para. 80. See also the Judgment of 7 February 2001 in the Camouco case, para. 54.

Principal Jurisdiction

153

in a timely manner”.444 Although in this particular case the late filing of the application was not the only element for not ordering the prompt release of the vessel, it served, undoubtedly, as an important factor in finding that the case was without object. In this respect, according to itlos in the cited dispute, the objective of article 292 “can only be achieved if the ship owner and the flag State take action within reasonable time either to have recourse to the national judicial system of the detaining State or to initiate the prompt release procedure under article 292 of the Convention”.445 In view of what has been said in the preceding paragraphs, it seems clear that itlos enjoys a privileged position with respect to any other court or arbitral tribunal. In the absence of an agreement, the detaining State can, as much, force the jurisdiction of the International Tribunal for the Law of the Sea either by choosing it via article 287 or by abstaining from delivering any kind of declaration, or even by withdrawing its declaration within ten days from the time of the detention. What, in my opinion, cannot be done is to avoid the residual jurisdiction of itlos, even by means of a declaration according to article 287, in which the State expressly rejects the Hamburg Tribunal as the entity to deal with this particular type of procedure, because in such a situation, the flag State would be deprived of its right to choose precisely what article 292 itself grants.446 The opposite can occur with this same lack of agreement, as the flag State can take advantage either of the declaration made by the detaining State pursuant to article 287, which would bring the case to the forum chosen by the latter State, or the residual compulsory jurisdiction of itlos, by directly filing its application before it. As is noted earlier, since the 1982 Convention entered into force, all the prompt release requests that have been filed by way of article 292 have been brought to itlos, which, thanks to its residual compulsory jurisdiction, has assumed total and exclusive protagonism in handling this special procedure. 444 Judgment of 6 August 2007, para. 77. 445 Ibid. From a critical perspective, Prof. Otani wonders about the evaluation of “un délay raissonable” (a reasonable time): “One week, ten days, fifteen days or better one month?” (Otani, Y., “Le procès de la prompte mainlevée de l’immobilisation d’un navire et de la prompte libération de son équipage devant le tidm – notamment en ce qui concerne les affaires entre le Japon et la Roussie en 2007”, in Casado, R., and Cataldi, G. (Dirs.), L’évolution et l’état actuel du droit international de la mer. Mélanges de droit offerts à Daniel Vignes, Bruylant, Bruxelles, 2009, pp. 709–726, translation added). In his paper he also underlines that prompt release proceedings virtually fall under the exercise of diplomatic protection by a State and, having that in mind, he poses the interesting question of the operation of the principle of exhaustion of the local remedies in these proceedings. 446 In the same sense, see Lagoni, cit., p. 152.

154

chapter 1

Hence, the Tribunal is, to date, the only forum that has had the occasion to adjudge and delimit its own competence and the only that has been invested with the chance to interpret article 292 unclos, both in its procedural and substantive aspects. In light of the origins and design of this Tribunal, this fact is in no way accidental.447 In theory, it might be possible for a different forum to deal with the dispute, however, in practice, it would be difficult for an applicant to choose a court or tribunal other than itlos itself, as is borne out by experience.448 As Treves emphasized prior to the inauguration of these procedures, “it seems hardly likely, in view of the urgent nature of these cases, that a flag state will submit such an application to an arbitral tribunal which would still have to be constituted”.449 On the other hand, the submission of the application before the International Court of Justice, which is only possible in those particular cases in which the defendant has made a declaration pursuant to article 287 and chosen precisely that forum, might bring more disadvantages than benefits for the applicant. In this sense, the “traditional” difficulties in establishing the jurisdiction of The Hague Court, which might escalate by virtue of the characteristic complexity of this special prompt release procedure, would probably end in a complicated debate centred on the Court’s jurisdiction. This, of course, does not even take into account the remarkable caseload this judicial body has experienced in recent times, all of which make the icj a less advisable option should a flag State hope to secure rapid release of its arrested vessel and crew. Moreover, despite the time that has elapsed since the 1982 Convention came into force, at the moment the icj still lacks a specific procedure for this particular type of prompt release application in its regulations. This means that, in the event of such an application, the Court should deal with it through its regular proceedings in contentious cases, unless the parties otherwise agree; and this adds complexity and time to that already produced by the aforementioned factors. In a sense, it seems like the icj has abandoned these procedures by admitting its own limitations and the advantages and privileges of itlos, whose path it has voluntarily cleared. Accordingly, having taken on this prominent role for itself, itlos is the only permanent court that has prepared itself to manage these types of disputes, guaranteeing the rapid dispatch and decision of the case by means of a summary procedure carried 447 See Garcia Garcia-Revillo, M., El Tribunal Internacional del Derecho del Mar. Origen, organización y competencia, Ministerio de Asuntos Exteriores y Cooperación y Servicio de Publicaciones de la Universidad Córdoba, Madrid-Córdoba, Part One. 448 In respect to this, see Treves, “Conflictos…”, in Torres, Treves, Valticos, cit., p. 50. 449 Treves, ijmcl, cit., p. 188.

Principal Jurisdiction

155

out in a relatively brief period of time compared with proceedings involving provisional measures.450 In light of the origins of itlos and for all of the reasons given above, it seems that the allocation of compulsory residual jurisdiction uniquely to this judicial organ should not be understood as a mere political concession, or as a way to ensure a certain volume of work for the new institution, thereby justifying its creation. It was also meant as guarantee for the effectiveness of the then recently agreed upon division of the seas as reflected by unclos. In short: the prompt release procedures regulated in article 292 meant the guarantee for both the flag and the coastal States in regard to the complicated balance of rights that the package deal spirit achieved in respect to critical maritime areas and powers such as the exclusive economic zone, the freedom of navigation and the exclusive jurisdiction of the flag State. The prompt release special procedure and its attribution by means of the residual jurisdiction precisely to itlos is not only a guarantee for the flag State that its vessels are not going to be subject to long time detentions because of their activities in the new maritime areas, but also a recognition of coastal States’ right to detain vessels in the critical (and recently gained to seas) exclusive economic zone and a guarantee for the bond to be imposed as a compensation to its duty to release. C Other Disputes under the Compulsory Jurisdiction of itlos: Declarations made Pursuant to Article 287

Setting aside disputes regulated in article 187 (seabed) and article 292 (prompt release), for the remainder of the disputes under the compulsory settlement system of Part xv unclos to fall under the compulsory jurisdiction of the International Tribunal for the Law of the Sea, it is necessary that both the applicant and the defendant have made a declaration in conformity with ­article 287, precisely choosing this judicial institution. The text of that provision reads as follows: Article 287 Choice of procedure 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:

450 In respect to this, see the deadlines established in articles 111 and 112 rt.

156

chapter 1

(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. 2. A declaration made under paragraph 1 shall not affect or be affected by the obligation of a State Party to accept the jurisdiction of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea to the extent and in the manner provided for in Part xi, Section 5. 3. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex vii. 4. If the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree. 5. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex vii, unless the parties otherwise agree. 6. A declaration made under paragraph 1 shall remain in force until three months after notice of revocation has been deposited with the SecretaryGeneral of the United Nations. 7. A new declaration, a notice of revocation or the expiry of a declaration  does not in any way affect proceedings pending before a court or tribunal having jurisdiction under this article, unless the parties otherwise agree. 8. Declarations and notices referred to in this article shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the States Parties. In a general view of the provision the core system vectors are, in my view: 1/the freedom to choose from among the four offered fora (itlos, icj and the two arbitral tribunals); 2/the absence of a precedence between them; 3/the establishment of a compulsory residual jurisdiction for all those cases where a declaration hasn’t been made or the chosen forum is not coincident, and 4/the appointment for that important commitment (the residual competence) of the arbitral tribunal regulated in Annex vii of the Convention (hereinafter arbitration vii).

Principal Jurisdiction

157

In respect to declarations,451 we will address first their place, time and form. Regarding the place, declarations must be deposited with the United Nations Secretary General (hereinafter unsg), who shall transmit copies thereof not only to States Parties but also to itlos itself, in compliance with the Agreement on Cooperation and Relationship between the United Nations and the International Tribunal for the Law of the Sea of 1997.452 As to time, a declaration may be submitted, according to unclos, at any moment, which includes the time of signature, ratification, accession or other subsequent process. Regarding its entry into force, which, for the interested State, is obviously conditioned by the entry into force of the Convention itself,453 I find it more logical that, in the absence of a provision expressly providing otherwise, it should occur on the date indicated by the declarant and, in the absence of that indication, at the moment of the deposit in the hands of United Nations Secretary General.454 On the other hand, dealing with its termination, since article 287.7 unclos envisages the possibility of a declaration 451 Regarding the nature of the declaration, Cannone defines it as “un atto giuridico internazionale di natura unilaterale” (Cannone, cit, p. 72). However, I find a more open position preferable. Departing partially from the icj Judgment of 4 December 1998, in the case of Fisheries Jurisdiction (Spain vs. Canada), Espaliu states that while a declaration is prepared, the unilateral element prevails; once it has been deposited with the un Secretary-General and up to its entry into force, the multilateral element comes to the fore and, finally, when a case arises between two States, the bilateral factor is decisive (Espaliú Berdud, C., Desarrollos jurisprudenciales y práctica reciente en la jurisdicción contenciosa de la Corte Internacional de Justicia, Dykinson, Madrid, 2000, pp. 151–153). See also Casado Raigón, R., La jurisdicción contenciosa de la Corte Internacional de Justicia. Estudio de las reglas de su competencia, Servicio de Publicaciones de la Universidad de Córdoba, 1987, pp. 145–147. 452 Article 4.1.a. According to this provision, the Secretary-General of the United Nations shall transmit to the Tribunal copies of communications received by him in his capacity of depositary of the Convention. 453 For example, declarations made during the lapse of time during which unclos was open for signature were delayed and came into operation only when this international treaty entered into force. 454 In this last case, in conformity with icj jurisprudence regarding declarations made under the optional clause system, which in my view might be applicable to this situation. See Judgments of 26 November 1957 in the case concerning the Right of passage over Indian Territory (Preliminary Objections) (icj Reports, 1957, p. 125 (at p. 146)); and 11 June 1998, in the case concerning Land and maritime boundary between Cameroon and Nigeria (Cameroon vs. Nigeria),(Preliminary Objections) (icj Reports, 1998, p. 275 (at paras. 21–47)). Contrarily, Cannone (cit., pp. 65 ss.) finds that the decisive moment is not that of the reception of the declaration by the unsg but the Secretary’s notification to the States Parties of the Convention.

158

chapter 1

being renewed, revoked or expiring, it is evident that this provision implicitly admits that declarations cannot only remain in force indefinitely but also for a period of time. In this respect, and according to the said article 287.7, the termination of a declaration either by its renewal, revocation or expiration does not “in any way” affect proceedings pending before a court or tribunal exercising jurisdiction on the grounds of the “terminating” declaration, unless the parties otherwise agree. In addition, in case of revocation, the declaration will remain in force up to three months after the deposit of the notice of revocation with the unsg.455 However, in case of renewal, does it enter into force immediately after being deposited with the un Secretary General, at the time the Secretary notifies the other States Parties to the Convention or, similarly, as in the event of revocation, three months after the deposit of the renewal with the unsg? Likewise, if the declaration was made for a period of time, should the termination be deemed to occur on the day of the deadline or, on the contrary, three months after that date? I agree with Cannone, that the termination occurs on the indicated date of expiration, should a declaration have a deadline,456 and in the cases of renewal, at the entry into force of the new declaration.457 As regards the form, the declaration, along with its renewal and revocation must, of necessity, be done in writing, pursuant to paragraphs 1, 7 and 8 of article 287; however, additional formalities are not required. In respect to the content of declarations, States may choose one or several of the listed fora; additionally, in the absence of an express prohibition, they also may set an order of preference whether or not it coincides with the order posted by article 287.1. In my opinion, it is also possible to make “reservations” to the declaration, though far more limited in their consequences than the “reservations” included in declarations in accordance with article 36.2 of the icj Statute, as we will see in a moment. Finally, it would be possible for a declaration to be made in the negative, as well. By that I mean rejecting one or several fora of article 287 to deal with all or with a set of disputes, but on the condition that at least one court or tribunal still remains to deal with the excluded disputes.458 Nonetheless, for such a negative declaration to be minimally useful, it is necessary that the arbitral tribunal of Annex vii appears 455 456 457 458

Article 287.6. Cannone, cit., p. 69. Cannone, cit., p. 71. In this respect, in my view it is not admissible to reject itlos, icj and arbitration vii for all and every case, insofar as special arbitration of Annex viii is limited to particular types of disputes and cannot deal with the remaining cases.

Principal Jurisdiction

159

among the excluded fora. Otherwise, in the absence of a positive designation of another forum, this arbitral tribunal would be the default selection by virtue of article 287.5. Let us observe, for instance, the declarations submitted by Algeria, Cuba and Guinea-Bissau. These States limit themselves to rejecting the International Court of Justice as the means for dealing with all or several types of disputes without selecting any other procedure. Insofar as they do not reject arbitration vii, this then becomes the competent forum. This is exactly what happens in the absence of a declaration. Moreover, the icj lacks jurisdiction when it is not expressly designated, thus making it unnecessary to do so for the purpose of excluding its jurisdiction. Since it does not have jurisdiction in the absence of a declaration, such declarations lack any utility and, as pointed out in a previous block, serve only to express antipathy against the icj. Regarding the election of one or more fora and the establishment of an order of preference, this is not problematic when the parties choose one single court or tribunal:459 if both have chosen the same forum, this will be the only one with competence unless agreed otherwise; however, should they choose different fora, competence falls to arbitration vii, again unless they agree otherwise. Nor would it be problematic in the case where one litigant in the dispute has designated several fora without establishing priorities460 and its opponent has also designated several fora without preferences or just one single forum. In this case, the coincident court or tribunal, or any of the coincident courts or tribunals shall have jurisdiction to entertain the dispute.461 On the other hand, the issue may be more problematic when the declaration of one or both litigants contains a preference order between the various chosen fora.462 In the assumption that one State has chosen itlos and the icj 459 This is the case of Angola, Bangladesh (for two specific disputes), Fiji, Greece, St. Vincent and the Grenadines, Switzerland, Tanzania and Uruguay (itlos), on the one hand, and Denmark, Honduras, Netherlands, Nicaragua, Norway, Sweden and United Kingdom (the icj), on the other. To those cases should be added Egypt and Slovenia, which have chosen arbitration vii as the unique forum. What happens here is that, since this is precisely the forum with compulsory residual jurisdiction, its explicit designation as the only forum is not actually necessary. 460 This is the case of Portugal and Timor-Leste (the four fora), México and Ecuador (itlos, the icj and special arbitration), Canada (itlos and arbitration vii), Belarus, Russian Federation and Ukraine (arbitration vii and special arbitration), and Australia, Belgium, Estonia, Finland, Italy, Latvia, Lithuania, Oman and Spain (itlos and the icj). 461 See also Cannone, cit., p. 55. 462 This is the case of Austria (1 itlos, 2 special arbitration and 3 the icj), Germany (1 itlos, 2 arbitration vii, 3 the icj), Hungary (1 itlos, 2 the icj, 3 special arbitration) Cape Verde, Croatia, Montenegro and Trinidad & Tobago (1 itlos, 2 the icj) Argentina and Chile (1 itlos, 2 special arbitration) and Tunisia (1 itlos, 2 arbitration vii).

160

chapter 1

without establishing preference, and its opponent has made precisely the same choice but with a preference order (1st itlos, 2nd the icj), would the first State be able to bring a case against the second State before the icj? Could the second State do the same against the first? That is to say, on the basis that the opponent has not set up a preference for one forum over the other, might this second State bring the case before the icj despite its own declaration expressing preference for itlos? Or what would be the competent forum between two States should one choose 1st itlos and 2nd the icj and the other 1st the icj and 2nd itlos? More complicated yet: what is the solution when the chosen fora comprise the three or four courts and tribunals enumerated in article 287? In my opinion, the answer to these questions mainly depends on what is to be understood by choosing “the same procedure” according to ­article 287.4 and 5. In respect to this question, Eiriksson observes that “if these declarations are taken literally, a State Party would only meet parties which have made the exact same choice of preferences, in which case the second and later preferences would be academic only”,463 but he doesn’t explicitly manifest which court or tribunal should be competent in his view. For his part, Cannone, after examining various scenarios in depth, considers in cases where one of the States has not set a preference among the designated fora (Example A: Spain choosing itlos and the icj with no preference, versus Cape Verde choosing 1st itlos and 2nd the icj) that: 1/the State that has not established a priority can only bring the dispute to whatever coincident forum has been chosen as the top priority by its opponent (in Example A: itlos); 2/contrarily, the State that establishes priorities can bring the case against the other before any of the coincident fora (in our Example A: the icj or itlos indistinctly).464 On the other hand, regarding situations where the two States have chosen the same fora but in reverse order of preference (Example B: Croatia choosing 1st itlos and 2nd the icj, versus a random State B choosing 1st the icj and 2nd itlos465), Cannone finds that since a situation exists in which the States in question have not accepted the same procedure as defined in article 287.5, the dispute must be submitted to arbitration vii in view of the impossibility of determining which of the chosen fora constitute the “same procedure” as accepted by the parties for the settlement of the dispute.466 I understand the reasoning of both scholars who have based their findings upon the text of article 287, yet I believe a different outcome is possible for 463 464 465 466

Eiriksson, G., The International Tribunal for the Law of the Sea, cit., p. 117. Cannone, cit., p. 57. To date, no declaration of this kind has been deposited with the unsg. Cannone, cit., p. 56.

Principal Jurisdiction

161

these situations. In my view, the aforementioned interpretation and understanding of declarations made pursuant article 287 is founded on the conceptual basis of interpreting and understanding declarations made according to the icj optional clause system. In a way, the reasoning, structure and patterns used to determine the State’s consent when it has made a declaration pursuant to article 36.2 of the icj Statute are transposed to determine the State’s consent in declarations ex article 287 unclos. This transpositional melding ultimately brings with it a restrictive interpretation of the declarant’s will, as well as a demand of absolute reciprocity. Neither Cannone nor Eiriksson state that their considerations arise from the optional clause system; however, I modestly find that this model is present to a certain extent. In my opinion, both systems have points in common, and accordingly, it is, on occasion, possible to find solutions for unresolved questions that emerge for the article 287 system in the optional clause system.467 However, the former remains a distinct system and exhibits a number of notes when viewed against the optional clause system that can help to prevent it from a merely mechanical transposition of one onto the other. One of these transpositions to be avoided is that concerning reciprocity. The reciprocity of the optional clause is not totally coincident with the reciprocity that may be deduced from the condition that both parties have chosen the same forum pursuant to article 287. The other to be avoided is the inference that, because the declarant State has set up an order of preference by way of a declaration made ex article 287, such order is exhibiting an intent toward restriction, as would be the case if reservations were introduced in a declaration made pursuant to the optional clause system. First, because the establishment of a priority among fora has no parallel in the optional clause system, since the latter refers only to a single forum. And above all, because such preference order is not designed to exclude, as are reservations made in declarations pursuant to article 36.2 of the icj Statute. States that establish priorities have no intention of depriving one of their chosen fora from exercising jurisdiction (if they did, they would merely have to abstain from choosing it in their declaration); on the contrary, they wish to confer jurisdiction upon each and every one of their choices. Thus in situations in which two or more fora may have competence, States are simply setting up a preference relative to each. In this respect, while in the optional clause system anything that is outside of a declaration must be deemed as outside of the Court’s jurisdiction, according to article 287 in the unclos system, anything not submitted to the court or tribunal

467 This is the case, for instance, of the entry into force of declarations, as seen above in previous paragraphs.

162

chapter 1

chosen by the declarant is not considered to be outside the compulsory settlement system but is compulsorily submitted to another forum: arbitration vii. In the system of article 36.2 of the icj Statute, the declaring State imposes submission to the Court’s jurisdiction upon itself. It is thus logical that this willing imposition must be interpreted somewhat restrictively in order not to take this self-imposed submission beyond the point actually intended by the declarant. On the other hand, for that same reason, it is also logical that in the optional clause system, in applying strict reciprocity, what is submitted to the compulsory jurisdiction of the icj is submitted only “in relation to any other State accepting the same obligation”. On the contrary, in the article 287 system, whatever is submitted to compulsory settlement procedures is not submitted because of the declaration made by the States, but because of the imposition of the said article 287 in connection to article 286. Hence, what is not submitted to the forum elected by the declaring State is not excluded from the compulsory procedures entailing binding decisions but just obligatorily submitted to a forum other than that chosen by the declarant, namely, the arbitral tribunal regulated in Annex vii. In this respect, it is logical that if a State has chosen a forum other than that available “by default” (arbitration vii), preference should be given, in case of doubt, to the former rather than the latter; in short: an extensive interpretation of a State’s consent should be favoured. In my humble opinion, it is from this perspective that one must address the demand that both litigants choose the same forum in a case when they have set out an order of preference. It is difficult to argue that a State which, for example, establishes a preference order between two fora trusts in both of them, even when, at the moment of decision, it is expressing a preference for one over the other. In this respect, it seems to me contrary to the object and purpose of article 287 (and to the whole settlement system of unclos) that two States who, for example, coincide in the election of itlos and icj, though in reverse order, should be obliged to settle their dispute by arbitration vii, merely because of their prioritization, when arbitration vii is precisely the forum that they have not selected, and are trying to avoid it by making their respective declarations. Assuming that the will of those who establish a preference order is cumulative rather than exclusive, I think that the most correct interpretation of article 287 favours solutions that are respectful of the will of the litigants, and those solutions should invariably lead the dispute to one of the courts or tribunals expressly chosen by the parties. If a solution is sought that is consistent both with object and purpose, one must take into account the fact that the order of preference has been established generally for situations in which the State that imposes it is going to be

Principal Jurisdiction

163

the defendant. In this respect, it seems nonsensical that a State intending to bring suit against another State would limit its own possibilities by self-imposing a preference order on the available fora; without such an order, all of them are at its disposal. The preferences of a State that has prioritized its choices must be respected by any State seeking to take legal action against it (whether the latter State has established a preference of its own or not). Nonetheless, it would be unacceptable in my view that the establishment of such an order become an advantage for the State imposing it over an opponent who has not. In my opinion, a State that stipulates an order of preference chiefly for situations when it is the defendant, cannot then avoid that order when the roles are reversed and it becomes the plaintiff in subsequent situations. This would allow it to take its case to the coincident forum of its convenience merely because the defendant in the case had not established a precedence for itself. In fairness, that same State must be coherent and abide by its chosen priority when it becomes plaintiff against those same States who may not have decided on their own preference. Of course, a State might submit a declaration with a double preference order, one for the cases in which it assumes the role of applicant and a different one for the cases in which it assumes the role of respondent. But, in lack of such distinction, as far as its declaration is unique, the preference order established therein must be taken into account in all situations. In view of all this, and despite the variety of hypotheses that arise when at least one of the litigants establishes an order of preference in its declaration ex article 287, my opinion is that the following double pattern might be applied to determine the competent forum: 1/The submission to the preference order set out by the defendant; 2/In the absence of such a precedence set out by the defendant, the submission of the plaintiff to its own order of preference. Turning to the original examples that were used earlier, the outcomes might be the following: 1)

2)

Example A – One State chooses itlos and the icj without setting a priority (in our example, Spain) and another selects itlos as 1st and the icj as 2nd (again in our example, Cape Verde). Spain, in this case, could sue Cape Verde in the forum preferred by the latter, that is, itlos, but not before the icj; while Cape Verde reciprocally, by respecting its own preference order, should bring its suit with Spain before itlos but not before the icj. Example B – One State chooses itlos as 1st and the icj as 2nd (for example, Croatia) and the other State (as there are no examples to date, this

164

3)

chapter 1

State shall hereinafter be referred to as X), opts for the same but in reverse order: icj as 1st and itlos as 2nd. In these examples, Croatia could bring the case to the forum preferred by State X, namely, the icj, but not before itlos, while the Second State, X, reciprocally, could bring suit against Croatia before the forum preferred by the latter, itlos, but not before the icj. Either way, what would be avoided is that the dispute eventually end in arbitration vii when both States have coincided in expressing trust both in the International Court of Justice and in the International Tribunal for the Law of the Sea. The same criteria would be applied in situations where more than two fora were chosen and with at least one of the States having established an order of preference.

Regarding the possibility of introducing “reservations” in a declaration made pursuant to article 287, I understand that, on the basis that the greater includes the lesser (in plus stat minus), it would be clearly admissible for a State to delimit its own election of forum from various points of view, material, temporal, etc., on the condition that such a reservation does not pervert the settlement system.468 In this respect, I find valid, for example, that a State: 1/limits its choice of court or tribunal to certain types of disputes, or elects it for all the disputes with the exception of the ones it pre-determines, or divides the types of disputes between two or more fora469 (reservations ratione materiae); 2/establishes that its choice of forum is limited to disputes that occur on/from a concrete date (ratione temporis); 3/limits the designation of a court or tribunal to particular disputes raised between themselves and particular States or even with all States with the exception of those identified in its declaration (ratione personae). In fact, the setting out of a preference order is, in itself, somewhat of a “reservation”. Although not numerous, there are some declarations that have introduced “reservations” of the types mentioned above. Examples would be the declaration by Bangladesh of 14 December 2009 (ratione materiae and ratione personae)470 and 468 See García, 2005, cit., pp. 438 ss. 469 In the same line, see Cannone, cit., pp. 59 ss. 470 Declaration relating to Article 287 with respect to India: “Pursuant to Article 287, paragraph 1 of the 1982 United Nations Convention on the Law of the Sea, the Government of the People’s Republic of Bangladesh declares that it accepts the jurisdiction of the International Tribunal for the Law of the Sea on the settlement of a dispute between the People’s Republic of Bangladesh and the Republic of India relating to the delimitation of their maritime boundary in the Bay of Bengal.” Declaration relating to Article 287 with respect to Myanmar: “Pursuant to Article 287, paragraph 1 of the 1982 United Nations Convention on the Law of the Sea, the Government of the

Principal Jurisdiction

165

the declaration by St. Vincent and the Grenadines of 22 November 2010 (ratione materiae).471 The International Tribunal for the Law of the Sea, in its Judgment of 28 May 2013 in the M/V Louisa case, clearly holds this position, and accordingly states: 79. (…) the Convention does not preclude a declaration limited to a particular category of disputes or the possibility of making a declaration immediately before filing a case. 80. The Tribunal observes that some States Parties to the Convention have limited the scope of their declarations under article 287 of the Convention. This is also the well-established practice of States under article 36, paragraph 2, of the Statute of the International Court of Justice (…). 81. In this connection, the Tribunal is of the view that, in cases where States Parties have made declarations of differing scope under article 287 of the Convention, its jurisdiction exists only to the extent to which the substance of the declarations of the two parties to a dispute coincides. (…). 82. Jurisdiction is conferred on the Tribunal only insofar as the dispute is covered by the more limited declaration. (…) [In] interpreting such a declaration, particular emphasis should be placed on the intention of the State having made it. Turning to the position of itlos in the compulsory system, the truth is that, whereas all the fora listed in article 287 are formally placed in absolute equality, despite the position they occupy on the list, that equality is more apparent than real. Firstly, while some fora, like itlos and arbitration vii, are ready, in principle, to deal with any kind of dispute, others, like the icj and special arbitration of Annex viii, are submitted to certain limitations. In particular, due to their shape, it seems that special arbitral tribunals are not designed to deal with People’s Republic of Bangladesh declares that it accepts the jurisdiction of the Inter­ national Tribunal for the Law of the Sea for the settlement of a dispute between the People’s Republic of Bangladesh and the Union of Myanmar relating to the delimitation of their maritime boundary in the Bay of Bengal.” 471 “In accordance with Article 287, of the 1982 United Nations Convention on the Law of the Sea of 10 December 1982, (…) the Government of Saint Vincent and the Grenadines declares that it chooses the International Tribunal for the Law of the Sea established in accordance with Annex vi, as the means of settlement of disputes concerning the arrest or detention of its vessels.”

166

chapter 1

disputes other than those established in article 1 Annex viii. On the other hand, given the limitations ratione personae imposed by the Statute of the icj,472 it is obvious that for the international organizations of Annex ix unclos (to date, the European Union), the fora offered for the making of a declaration pursuant to article 287,473 are actually three and not the four contained in the list, since these organizations cannot access the icj. Secondly, despite the absence of a precedence among them, the fact that one of these fora (arbitration vii) was invested with residual compulsory jurisdiction for cases where no declarations are made, places this forum, de facto and de iure, in a position of clear superiority over the rest. In this respect, ­article 287, as configured, does not seem to be designed to stimulate States to make declarations but, on the contrary, to dissuade them from such action. It does so, on the other hand, because by setting out one forum with residual compulsory jurisdiction, any absence of a declaration has a specific meaning: it implies a choice for arbitration vii. During iii los Conference, this was the forum preferred by most States. Accordingly, it is logical for that majority to “express” its preference by choosing to forego the process of making a declaration. In this sense, if the forum invested with residual compulsory jurisdiction had been, for example, the International Tribunal for the Law of the Sea (as proposed in the first drafts of Part xv), the preference of States for arbitration would have had the stimulus for making declarations ex article 287 (or at least to opt out of itlos by choosing arbitration vii). Furthermore, beyond its political meaning, the true scope of these declarations is, in my view, much more reduced than meets the eye. More than a true choice of forum, declarations actually offer a means to avoid arbitration vii as the mechanism for settling disputes between States that expressly prefer one of the other fora available via the system set up by the “Montreux Formula”. As far as that is concerned, if both litigants prefer a forum other than arbitration vii to settle their dispute, they are free to choose it, post controversiam, according to Section 1 of Part xv. It is no wonder that, as a system for “opting out” from Annex vii arbitration, the list of declarations is tellingly short, and will probably remain so for a long time to come. Hence, the reiterated calls by un Secretary-General and General Assembly inviting States to make such declarations have not been met with enthusiastic response since the omissive behaviour by States is expressive of a totally respectable preference: their preference for arbitration.474 472 Article 34.1 icj Statute. 473 Article 7.1 Annex ix. 474 Taking a contrary stance, Treves does not think that the lack of choice necessarily indicates a preference for arbitration, even though it is the consequence it entails; in his view,

Principal Jurisdiction

167

In view of what has been discussed and having analysed the declarations made by the States Parties pursuant to article 287, it seems clear that there is an overwhelming majority “choosing” the arbitral tribunal of Annex vii; which is to say, a large majority of States have not made a single declaration. As of 28 February 2015, among the 166 States Parties plus the European Union to the Law of the Sea Convention, 118 States (including the eu) have not made a declaration choosing any of the fora listed in article 287. Despite the low number of declarations (48) there is an interesting preference for the International Tribunal for the Law of the Sea. If we set aside the 3 “punitive” declarations against the International Court of Justice475 and the 2 declarations that chose only arbitration vii476 (all which add nothing to the absence of a declaration), among the 43 remaining declarations, 33 designate itlos,477 27 the icj, 11 special arbitration of Annex viii and 8 arbitration vii.478 Of the 33 declarations designating itlos, 9 choose it as the single forum,479 providing the Hamburg Tribunal with a slight advantage over the icj, which is only selected as the single

475 476 477

478 479

not making a declaration corresponds sometimes to a “wait and see” attitude consistent with normal “bureaucratic prudence”. (Treves, T., “Choice of Procedure for the Compulsory Settlement of Disputes under the Law of the Sea Convention”, in El Derecho internacional: normas, hechos y valores. Liber amicorum José Antonio Pastor Ridruejo (Caflish, L., et al, Coords.), Servicio de Publicaciones de la Facultad de Derecho, Universidad Complutense de Madrid, Madrid, 2005, pp. 447–453. Algeria, Cuba and Guinea-Bissau. Egypt and Slovenia. In addition to those 33, the declarations of Belarus, Russian Federation and Ukraine, which expressly mention the Hamburg Tribunal, might be counted. However, in these declarations the States concerned submit themselves to itlos “in respect of the prompt release of detained vessels or their crews. Such a submission is unnecessary because it works ipso iure by the application of article 292 unclos, as we have seen before. On the other hand, two more declarations mention the Hamburg Tribunal, but to justify its nonelection: 1/Honduras, “reserves the possibility of considering any other means of peaceful settlement, including the International Tribunal for the Law of the Sea, as agreed on a case-by-case basis, and 2/the United Kingdom, states that “The International Tribunal for the Law of the Sea is a new institution, which the United Kingdom hopes will make an important contribution to the peaceful settlement of disputes concerning the law of the sea. In addition to those cases where the Convention itself provides for the compulsory jurisdiction of the Tribunal, the United Kingdom remains ready to consider the submission of disputes to the Tribunal as may be agreed on a case-by-case basis.” Not counting Egypt and Slovenia. Angola, Bangladesh, Fiji, Greece, Madagascar, St. Vincent and the Grenadines, Switzerland, Tanzania and Uruguay.

168

chapter 1

forum in 7 instances.480 This means an inversion of the preferences expressed by October 2005, where the icj was “defeating” itlos 7 to 3. Additionally, in all the 7 cases where itlos and icj have been chosen in the same declaration and a preference order has been set out, the Hamburg Tribunal is preferred over The Hague Court.481 In fact, in all cases where a precedence has been established,482 the forum elected for the first place is the International Tribunal for the Law of the Sea. In view of everything we have looked at so far, and when we consider that one forum is also a first choice in those cases where it is designated without an order of preference, it seems clear that itlos enjoys a noticeable advantage over both the icj and special arbitration. Turning to some declarations in particular, it is worth mentioning, first, declarations in which special arbitration (Annex viii) is chosen within a preference order. This is the case, in particular, of Argentina and Chile (1 itlos and 2 special arbitration), Austria (1 itlos, 2 special arbitration and 3 the icj) and Hungary (1 itlos, 2 the icj and 3 special arbitration). Insofar as special arbitration is placed after another forum, the preference for this other forum would also extend to those types of disputes enumerated in article 1 of Annex viii, that is, disputes on fisheries, marine environment, marine scientific research and navigation (for example, itlos in the case of Argentina and Chile). However, when special arbitration is preferred over another forum (for example, the icj), it becomes clear that since Annex viii special arbitration is constituted solely for the cases listed in the article 1 of said Annex, all disputes not falling under the categories enumerated in that provision (for example, delimitation) would then be subject to the competence of the next forum on the priority list (in this case, the icj).483 As to the declarations of Austria, Belgium and Germany, the choice of forum is preceded by the phrase “In the absence of any other peaceful means to which it would give preference (…)”. This claim could lead us to believe that the selected fora are subordinate to any other means. Obviously, given the text of article 287, in connection with the whole system for compulsory settlement, this would not be possible. Accordingly, the phrase should be understood in the sense that preference would be given to any other forum agreed upon by

480 Honduras, Netherlands, Nicaragua, Norway, Sweden and the United Kingdom plus Denmark (which excludes arbitration vii for disputes on article 298 unclos). 481 Austria, Cape Verde, Croatia, Germany, Hungary, Montenegro and Trinidad and Tobago. 482 The former, plus Argentina, Chile and Tunisia. 483 In the case of Austria, both icj and Special Arbitration are preceded by itlos.

Principal Jurisdiction

169

both litigants. In this respect, the declaration of Cape Verde seems clearer, by designating several fora “in the absence of or failing any other peaceful means”. Either way, as in the prior case, those sentences are not strictly needed, since their content va de soi in the settlement system of unclos. Also worth mentioning are the declarations made by Chile and Uruguay. After designating itlos and special arbitration, the Chilean declaration sets down the following: b) In accordance with articles 280 to 282 of the Convention, the choice of means for the settlement of disputes indicated in the preceding paragraph shall in no way affect the obligations deriving from the general, regional or bilateral agreements to which the Republic of Chile is a party concerning the peaceful settlement of disputes or containing provisions for the settlement of disputes. In my view, what this paragraph intends to clarify is that, without prejudicing the designation of itlos and special arbitration, the will of the declaring State is to maintain the jurisdiction of the icj, whose competence this country has previously recognized in the so-called Pact of Bogotá, and in any other agreement conferring jurisdiction upon the International Court of Justice. All that being so, if Chile were a defendant before itlos involved in a dispute that fell under the ambit of the Pact of Bogotá, the Hamburg Tribunal might declare itself incompetent in favour of the International Court of Justice. The declaration of Uruguay may be understood in similar terms, according to which: (H) Pursuant to the provisions of article 287, Uruguay declares that it chooses the International Tribunal for the Law of the Sea for the settlement of such disputes relating to the interpretation or application of the Convention as are not subject to other procedures, without prejudice to its recognition of the jurisdiction of the International Court of Justice and of such agreements with other States as may provide for other means for peaceful settlement. Apart from the sentence that gives preference to any means agreed upon by the litigants, in line with the declarations made by Austria, Belgium and Germany, it seems clear that Uruguay, like Chile, expressly wishes to maintain its submission to The Hague Court. In this case Uruguay does so not only as agreed upon in the Pact of Bogotá but also via declaration ex article 36.2 of the icj Statute, which is to say, the optional clause system, by which this country accepts the competence of icj for all kind of disputes without reservations.

170

chapter 1

Also worth mentioning is the declaration by Portugal, which sets forth the following: 10. For the purposes of Article 287 of the Convention, Portugal declares that, in the absence of non-judicial means for the settlement of disputes arising out of the application of this Convention, it will choose one of the following means for the settlement of disputes: (a) the International Tribunal for the Law of the Sea, established in pursuance of 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; 11. In the absence of any other peaceful means for the settlement of disputes, Portugal will, in accordance with Annex viii to the Convention, choose the recourse to a special arbitral tribunal in so far as the application of the provisions of this Convention, or the interpretation thereof, to the matters relating to fisheries, protection and preservation of living marine resources and marine environment, scientific research, navigation and marine pollution are concerned. In my view, the declaration of paragraph 11 overlaps the choice of special arbitration in paragraph 10 (without a preference order), leading to some confusion as to whether it intends to place special arbitration ahead of any other procedure or, on the contrary, to keep it on a par with the others, as might be deduced from paragraph 10. In this respect, the withdrawal or modification of paragraph 11 could clarify the statement. In view of the above, what is the true range of the compulsory jurisdiction of itlos regarding disputes on the interpretation or application of the Law of the Sea Convention?484 What is the position of the Hamburg Tribunal within the compulsory settlement system of that particular international treaty? As we have seen in previous blocks, compulsory jurisdiction has a limited range in the 1982 Convention because of a number of automatic and/or facultative 484 A very complete and insightful cross-examination of the operative field of the entire settlement system as regards issues addressed by the law of the sea is done by Professor Rafael Casado in the book in honour of Judge and Professor Tullio Treves: Casado, R., “Procedures Entailing Binding Decisions and Disputes Concerning the Interpretation or Application of the Law of the Sea”, in Boschiero, N., International Courts and the Development of International Law. Essays in Honour of Tullio Treves, Asser Press (Springer), The Hague, 2013, pp. 249–254.

Principal Jurisdiction

171

exceptions (arts. 297 and 298). Nevertheless, compulsory procedures entailing binding decisions achieve, in this treaty, whatever its extent, the nature of a general rule (art.286). Among those types of disputes that could be considered as the great “areas” of the compulsory settlement system (seabed, prompt release, fisheries and scientific research beyond the eez, freedom of navigation and overflight, environmental protection and preservation and disputes listed in article 298 not excluded by a declaration) itlos has been designated by unclos as the preferred fora in two (seabed and prompt release) and it may also be chosen by the parties as the competent forum to deal with the rest by virtue of a declaration made pursuant article 287. Hence, it seems clear that the compulsory jurisdiction of the Hamburg Tribunal has a considerable reach and its position within the compulsory settlement system of unclos is significant. Nonetheless, the extent of the compulsory jurisdiction of itlos and its place within the unclos settlement system should not give rise to false expectations. The International Tribunal for the Law of the Sea is an important actor called on to play a secondary role. The leading player is somewhere else to be found. In the absence of a declaration ex article 287, and setting aside the disputes concerning the Area and the prompt release cases of article 292, the forum invested with residual compulsory jurisdiction is the arbitration regulated in Annex vii. It is here where we find the true protagonist of the compulsory settlement system, at least while the number of States declaring their submission to itlos is slim. Then, a question arises immediately: why create such a costly institution to play a secondary role?485 The answer is obviously in the States’ hands. An interesting picture of the operative field of compulsory jurisdiction in itlos and its role within the whole framework of compulsory jurisdiction in the settlement system of the Law of the Sea Convention is offered by the first twentythree cases submitted to the Hamburg Tribunal to date (28 February 2015). First of all, it is quite evident that the principal “customers” are, as mentioned above, cases of prompt release pursuant to article 292 (in connection 485 In support of giving itlos a prominent role are, among others, Andreas J. Jacovides (“Peaceful Settlement of Disputes in Ocean Conflicts: Does unclos iii Point The Way?”, Contemporary Issues in International Law. Essays in Honour of Louis B. Sohn (Buergenthal, T., ed.), N.P. Engel Publisher, Kehl, Strasbourg, Arlington, 1984, pp. 165–168) and Cesare Romano (“The Southern Bluefin Tuna Dispute: Hints of a World to Come… Like It or Not”, odil, vol. 32, n°. 4, 2001, pp. 313–348). In the opinion of these experts, that I share, one reason for supporting itlos rather than arbitration would be that, unlike arbitration, the Hamburg Tribunal, as a duly constituted permanent body, could be more efficient in guaranteeing permanence, uniformity and continuity in the interpretation of unclos.

172

chapter 1

with article 73.2 regarding fisheries issues, though not the environmental cases)486 and requests for provisional measures.487 Secondly, if we turn our attention to cases on the merits as dealt with by the Hamburg Tribunal, all but one have reached the docket of itlos as a result of an agreement by the parties to transfer the case originally instituted (or notified) as arbitration procedures in accordance with Annex vii unclos.488 The Bay of Bengal Delimitation case offers a slightly different perspective, as it was first brought to arbitration by Bangladesh but it eventually entered the itlos docket as a consequence of an agreement that materialised when the parties filed their respective declarations, made pursuant to ­article  287, choosing the International Tribunal for the Law of the Sea to finally settle their dispute. As article 287 exclusively involves compulsory jurisdiction, did this case come to itlos by way of compulsory jurisdiction or voluntary jurisdiction (via a special agreement)? Formally, itlos has treated this case as a special agreement. However, materially, as no declaration on this point appears in its Judgment of 14 March 2012, the question remains open. In the opinion of Judge Treves, the issue has been left unduly unresolved by the Tribunal.489 In that of Judge Ndiaye, we are here within the ambit of compulsory jurisdiction.490 We will examine this situation in more detail in the special agreements block of this chapter (3.2.1). One must recognize that, in light of the events that lead this case to be submitted to the Hamburg Tribunal, and the opinion of the both these judges, the question is challenging. Whether or not there are complexities involved, the five transferences as a whole show that itlos is playing a substitutive role as regards Annex vii arbitration and, accordingly, as regards cases which find their origins in the compulsory settlement system of unclos. The third and final element in this picture appears in the M/V Louisa case insofar as this dispute was submitted to the International Tribunal for the Law of the Sea purely as a compulsory jurisdiction case, as based on the declarations made by Saint Vincent and the Grenadines and its opponent, Spain, pursuant to article 287 unclos. Yet in the final decision of itlos, in its Judgment 486 In short, Saiga, Camouco, Monte Confurco, Grand Prince, Chaisiri Reefer 2, Volga, Juno Trader, Tomimaru and Hoshinmaru. 487 In short, Saiga 2, Tuna, mox Plant, Straits of Johor, M/V Louisa, ara Libertad and Arctic Sunrise. 488 In short, Saiga 2, Swordfish, Virginia G, Delimitation in the Bay of Bengal and Delimitation in the Atlantic Ocean (the latter still pending). 489 Declaration of Judge Treves, paras.5, 11 and 12. 490 Judge Ndiaye, Opinion Individuelle, heading of page 4, paras. 11 ss. and para. 52.

Principal Jurisdiction

173

of 28 May 2013, it found that it had no jurisdiction to entertain the application submitted to it by Saint Vincent.491 3.1.2 Other Treaties where itlos is Envisaged among the Means for Settlement Besides unclos, there are several treaties in which itlos is explicitly or implicitly envisaged as one of their settlement procedures. Firstly, we can enumerate two treaties expressly mentioning the Hamburg Tribunal, but without  conferring upon it compulsory jurisdiction: the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, of 24 November 1993 (article ix); and the Framework Agreement for the Conservation of the Living Marine Resources on the High Seas of the South-East Pacific, also known as the Galápagos Agreement, of 14 August 2000 (article 14). Secondly, among those which implicitly envisage itlos as a means for settlement, by referring to the settlement system of unclos, mention should be made of the Protocol to the 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, of 7 November 1996 (article 16), which does not confer compulsory jurisdiction on itlos either. And finally the third group includes several treaties that also implicitly envisage itlos as a settlement procedure by referring their settlement systems to the settlement system of unclos. However, in this third group, unlike the second, compulsory jurisdiction of itlos may be deduced for some situations. These treaties are: 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, adopted on 4 August 1995 (articles 30 and 32); the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, of 5 September 2000 (article 31); the Convention on the Conservation and management of Fishery Resources in the South-East Atlantic Ocean, of 20 April 2001 (article 24); the Convention on the Protection of the Underwater Cultural Heritage, of 2 November 2001 (article 25), the Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries, of 11 November 2004 (article 18 bis and neafc Recommendation by the Commission); the Southern Indian Ocean Fisheries Agreement of 7 July 2006 (article 20); and the Nairobi International Convention on the Removal of Wrecks, of 18 May 2007. The first treaty to be considered, the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the 491 Paragraph 60.

174

chapter 1

High Seas,492 adopted by the fao Conference on 24 November 1993 and in force since 24 April 2003, expressly mentions the International Tribunal for the Law of the Sea in its article ix on Settlement of Disputes. However, like the other fora alluded to in that provision (including the icj), their jurisdiction is subject to the consent “of all Parties to the Dispute”. Therefore, it constitutes more a rhetorical declaration than a true settlement clause.493 Next we encounter the Framework Agreement for the Conservation of the Living Marine Resources on the High Seas of the South-East Pacific, also known as the “Galápagos Agreement”, adopted on 14 August 2000 by Chile, Colombia, Ecuador and Perú. Though not yet in force, it also expressly mentions itlos. Nevertheless, like the 1993 fao fisheries treaty, it also subjects the jurisdiction for settling its disputes to the agreement of the litigants, and therefore appears more a rhetorical provision rather than an effective one. However, it differs from the 1993 fao treaty in setting forth compulsory arbitration for some cases.494 492 The text can be found at 33 ilm 969 (1994). 493 As Casado states, this provision barely gives little more than a reproduction of the general international law on the subject (Casado Raigón, R., “Règlement des différends”, in Vignes, D., Cataldi, G., Casado, R., Le Droit international de la pêche maritime, Bruylant, Bruxelles, 2000, p. 361). The full text of this provision is as follows: 1. Any Party may seek consultations with any other Party or Parties on any dispute with regard to the interpretation or application of the provisions of this Agreement with a view to reaching a mutually satisfactory solution as soon as possible. 2. In the event that the dispute is not resolved through these consultations within a reasonable period of time, the Parties in question shall consult among themselves as soon as possible with a view to having the dispute settled by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. 3. Any dispute of this character not so resolved shall, with the consent of all Parties to the dispute, be referred for settlement to the International Court of Justice, to the International Tribunal for the Law of the Sea upon entry into force of the 1982 United Nations Convention on the Law of the Sea or to arbitration. In the case of failure to reach agreement on referral to the International Court of Justice, to the International Tribunal for the Law of the Sea or to arbitration, the Parties shall continue to consult and cooperate with a view to reaching a settlement of the dispute in accordance with the rules of international law relating to the conservation of living marine resources. 494 Full text of article 14 of Galápagos Agreement (www.cpps-int.org) reads as follows: 1. Disagreements among the States Parties as to the interpretation or application of the provisions established in this Agreement, or in its complementary instruments, shall be resolved in the first instance through the dispute-settlement procedures set forth in Article 33 of the Charter of the United Nations, or in other international instruments in force for the States Parties. 2. If an agreement cannot be reached, disputes must be submitted either to a conciliation commission or to a technical arbitration body, unless both parties have agreed upon a different procedure.

Principal Jurisdiction

175

Concerning the 1996 Protocol to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, done under the aegis of the International Maritime Organization, on 7 November of that year, and in force since 24 March 2006, its article 16 sets out a compulsory arbitration procedure (regulated in Annex iii) for all disputes not settled in 20 months from the time that one of the contracting parties notifies the other as to the existence of the dispute. Nevertheless, States may exclude disputes concerning paragraphs 1 and 2 of article 3 from obligatory arbitration by means of a declaration they can submit at the moment they consent to be bound by the Protocol.495 Certainly, when instituting compulsory arbitration, article 16 imposes it “unless the parties to the dispute agree to use one of the procedures listed in paragraph 1 of Article 287 of the 1982 United Nations Convention on the Law of the Sea”. This might lead one to think that declarations made pursuant to article 287 unclos in the ambit of this treaty could also be taken into account for the 1996 Protocol. However, this hypothesis fades quickly once it is realized that Parties in the Protocol are allowed to reach such an agreement “whether or not they are also States Parties to the 1982 United Nations Convention on the Law of the Sea” and by further establishing that, if an agreement is reached, provisions of Part xv unclos regarding the chosen procedure will be applied mutatis mutandis. Accordingly, the said agreement on the

3. If the voluntary dispute-resolution measures are exhausted, or if agreement is not reached on recourse to other instances, such as the International Court of Justice or the International Tribunal for the Law of the Sea, either of the parties may solicit a binding arbitration procedure. 4. In no case, subject to the applicable provisions in conformity with international law, shall disputes concerning the exercise of the coastal States’ sovereign rights within their respective national jurisdiction zones be submitted to the procedures set forth in paragraph 3. 495 Pursuant to article 3.1 and 2: 1. In implementing this Protocol, Contracting Parties shall apply a precautionary approach to environmental protection from dumping of wastes or other matter whereby appropriate preventative measures are taken when there is reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove a causal relation between inputs and their effects. 2. Taking into account the approach that the polluter should, in principle, bear the cost of pollution, each Contracting Party shall endeavour to promote practices whereby those it has authorised to engage in dumping or incineration at sea bear the cost of meeting the pollution prevention and control requirements for the authorised activities, having due regard to the public interest.

176

chapter 1

forum is not conceived as resulting from declarations that States might make as Parties to the 1982 Convention.496 In respect to 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, done at the United Nations headquarters in New York, 4 August 1995, and in force since 11 December 2001, it is one of the most relevant treaties from which compulsory jurisdiction in itlos could come.497 According to its article 30, provisions relating to the settlement of disputes set out in

496 The text of this provision reads: Article 16. Settlement of Disputes. 1.- Any disputes regarding the interpretation or application of this Protocol shall be resolved in the first instance through negotiation, mediation or conciliation, or other peaceful means chosen by parties to the dispute. 2.- If no resolution is possible within twelve months after one Contracting Party has notified another that a dispute exists between them, the dispute shall be settled, at the request of a party to the dispute, by means of the Arbitral Procedure set forth in Annex 3, unless the parties to the dispute agree to use one of the procedures listed in paragraph 1 of Article 287 of the 1982 United Nations Convention on the Law of the Sea. The parties to the dispute may so agree, whether or not they are also States Parties to the 1982 United Nations Convention on the Law of the Sea. 3.- In the event an agreement to use one of the procedures listed in paragraph 1 of Article 287 of the 1982 United Nations Convention on the Law of the Sea is reached, the provisions set forth in Part xv of that Convention that are related to the chosen procedure would also apply, mutatis mutandis. 4.- The twelve month period referred to in paragraph 2 may be extended for another twelve months by mutual consent of the parties concerned. 5.- Notwithstanding paragraph 2, any State may, at the time it expresses its consent to be bound by this Protocol, notify the Secretary-General that, when it is a party to a dispute about the interpretation or application of article 3.1 or 3.2, its consent will be required before the dispute may be settled by means of the Arbitral Procedure set forth in Annex 3. 497 Regarding the system of dispute settlement in this treaty, see, inter alia: Casado Raigón, R., “Règlement des différends”, in Vignes, D., Casado, R., Cataldi, G., Droit international de la peche maritime, Bruylant, Bruxelles, 2000, pp. 316–365; Boyle, A.E., “Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks”, ijmcl, vol. 14 (1), March 1999, pp. 1–25; Mcdorman, T., “The Dispute Settlement Regime of the Straddling and Highly Migratory Fish Stocks Convention”, The Canadian Yearbook of International Law, volume xxxv, 1997, pp. 57–79; Örebech, P., Sigurjonsson, K., Mcdorman, T.L., “The United Nations Straddling and Highly Migratory Fish Stocks Agreement: Management, Enforcement and Dispute Settlement”, ijmcl, vol. 13 (2), May 1998, pp. 119–141.

Principal Jurisdiction

177

Part  xv of unclos apply mutatis mutandis to any dispute between States Parties to this treaty, whether or not they are also parties to the 1982 Convention. Therefore, States parties in 1995 Agreement can make a declaration pursuant to article 287 unclos specifically for the settlement of disputes concerning the interpretation or application of the said 1995 Agreement. However, when they are Parties both in this treaty and in the 1982 Convention, in lack of a declaration specifically made for disputes involving the 1995 Agreement, declarations made according to article 287 for the settlement of disputes on unclos may be taken to determine the competent forum in a dispute on the said 1995 Agreement.498 498 In particular, article 30 states: Article 30. Procedures for the Settlement of Disputes 1. The provisions relating to the settlement of disputes set out in Part xv of the Convention apply mutatis mutandis to any dispute between States Parties to this Agreement concerning the interpretation or application of this Agreement, whether or not they are also Parties to the Convention. 2. The provisions relating to the settlement of disputes set out in Part xv of the Convention apply mutatis mutandis to any dispute between States Parties to this Agreement concerning the interpretation or application of a subregional, regional or global fisheries agreement relating to straddling fish stocks or highly migratory fish stocks to which they are parties, including any dispute concerning the conservation and management of such stocks, whether or not they are also Parties to the Convention. 3. Any procedure accepted by a State Party to this Agreement and the Convention pursuant to article 287 of the Convention shall apply to the settlement of disputes under this Part, unless that State Party, when signing, ratifying or acceding to this Agreement, or at any time thereafter, has accepted another procedure pursuant to article 287 for the settlement of disputes under this Part. 4. A State Party to this Agreement which is not a Party to the Convention, when signing, ratifying or acceding to this Agreement, or at any time thereafter, shall be free to choose, by means of a written declaration, one or more of the means set out in article 287, paragraph 1, of the Convention for the settlement of disputes under this Part. Article 287 shall apply to such a declaration, as well as to any dispute to which such State is a party which is not covered by a declaration in force. For the purposes of conciliation and arbitration in accordance with Annexes v, vii and viii to the Convention, such State shall be entitled to nominate conciliators, arbitrators and experts to be included in the lists referred to in Annex v, article 2, Annex vii, article 2, and Annex viii, article 2, for the settlement of disputes under this Part. 5. Any court or tribunal to which a dispute has been submitted under this Part shall apply the relevant provisions of the Convention, of this Agreement and of any relevant subregional, regional or global fisheries agreement, as well as generally accepted standards for the conservation and management of living marine resources and other rules

178

chapter 1

So as to the reception of Part xv of the 1982 Convention, as Casado points out, it was completely logical insofar as this treaty states that its purpose is “for the implementation” of unclos provisions and its article 4 lays down that 1995 Agreement “shall be interpreted and applied in the context of and in a manner consistent with the Convention”. This obviously does not prevent the 1995 Agreement from assuming unclos provisions with some particularities,499 like those concerning provisional measures, which we will address in the chapter on incidental jurisdiction, or those that deal with the non-application of the special procedure for prompt release in article 292 unclos to this treaty. Either way, as Casado claims, by virtue of its article 30, the 1995 Agreement assumes Part xv of 1982 Convention, and not only in a limited manner, it is an assimilation “on a large scale”. It applies unclos settlement provisions mutatis mutandis not only to the settlement of disputes on the said Agreement of 1995 but also onto those disputes that face its States Parties as they deal with the interpretation or application of a subregional, regional or global fisheries agreement relating to straddling fish stocks or highly migratory fish stocks to which they are also parties.500 Concerning the determination of the competent forum and, particularly, declarations made pursuant to article 287 unclos, to date,501 of the 80 “States” Parties502 that have ratified both the 1982 Convention and the 1995 Agreement, only one, Canada, has made a specific declaration regarding the Straddling Stocks Agreement (however, it adds nothing new because it designates the default forum, arbitration vii).503 Furthermore, in considering the other 79, we find that, for the 28 States which have made declarations pursuant to article 287 for the settlement of disputes concerning the interpretation or application of unclos, those declarations would also be applied to the determination of the competent forum in respect to disputes on the

499 500 501 502 503

of international law not incompatible with the Convention, with a view to ensuring the conservation of the straddling fish stocks and highly migratory fish stocks concerned. Casado, “Règlement des différends”, cit, pp. 354 ss. Casado, cit. 28 February 2015. 79 States plus the European Union. In addition, in its 1995 Agreement declaration in accordance with article 298 unclos, Canada excludes all disputes listed in that provision from compulsory jurisdiction. Norway, which is also a Party both to unclos and to the 1995 Agreement, does not accept Annex vii arbitration for disputes of article 298.1.b, second sentence (“law enforcement activities…”) but it has not made a declaration choosing forum for disputes concerning such 1995 Agreement.

Principal Jurisdiction

179

interpretation or application of the 1995 Agreement.504 On the other hand, for the remaining 51 States which have made no declaration, the competent forum would be arbitration vii, as determined by article 287.3 unclos as invoked by 1995 Agreement. Further, among those 28 States who are Parties to both unclos and the 1995 Agreement, 22 States have chosen itlos as the single,505 preferred506 or alternative507 forum, while only 6 have chosen other fora different to the Hamburg Tribunal.508 Finally, in respect to the 2 States Parties in the 1995 Agreement that are not Parties in unclos, only one (the United States) has made a declaration pursuant to article 287 unclos for the 1995 Agreement disputes (it chooses special arbitration). The other State (Iran) will be therefore submitted to the default forum (arbitration vii). As described above, the 1995 Agreement expands its settlement system (and, accordingly, that of unclos) not only to disputes concerning its interpretation or application but also to disputes on the interpretation or application of other “subregional, regional or global fisheries agreement(s) relating to straddling fish stocks or highly migratory fish stocks” to which the States Parties to the 1995 Agreement are also parties, “including any dispute concerning the conservation and management of such stocks, whether or not they are also Parties to the Convention” (art.30.2). As Casado affirms, this provision is compatible with Part xv unclos and, particularly, with its article 288.2; therefore, since the 1995 Agreement makes (or intends to make) a generalization, ratione materiae and ratione personae, of the settlement system of the Law of the Sea Convention, it should be welcome. Nevertheless, by having effected a concurrence of different systems for settlement of disputes, this generalization, as Casado points out, may lead to a series of troubles that are

504 (Not counting Canada) Australia, Austria, Bangladesh, Belgium, Croatia, Denmark, Estonia, Fiji, Finland, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Netherlands, Norway, Oman, Portugal, Russia, St. Vincent & Grenadines, Slovenia, Spain, Sweden, Trinidad and Tobago, Ukraine, the United Kingdom and Uruguay. 505 Bangladesh (for two specific types of disputes) Fiji, Greece, St. Vincent & Grenadines (for a specific type of disputes) and Uruguay. Nevertheless, the selection of itlos by Bangladesh refers only to a particular delimitation case; its real operative field places it outside the Tribunal’s jurisdiction in relation to this treaty. 506 Austria, Croatia, Germany, Hungary and Trinidad & Tobago. 507 Australia, Belgium, Estonia, Finland, Italy, Latvia, Lithuania, Oman, Portugal and Spain, plus Russia and Ukraine, whose declarations concerning itlos are analysed above. 508 Denmark, Netherlands, Norway, Slovenia, Sweden and the United Kingdom.

180

chapter 1

difficult to resolve.509 In my view, the first and principal trouble is the legal characterisation of a treaty as a subregional, regional or global fisheries agreement relating to straddling fish stocks or highly migratory fish stocks. In particular, it may be difficult to determine, for example, whether or not an agreement regulating fisheries in general in a certain region, and containing provisions applicable to any or all species of this type, along with other provisions applicable to other different species, could be considered as belonging to such category. On the other hand, up to what point may the 1995 Agreement impose its settlement system on a more recent agreement when the latter is compatible with Section 1, Part xv unclos (even if it does not lead to the settlement of the dispute)? In such situations, which would or should be applied, the system of unclos itself or Part viii of the 1995 Agreement (i.e., Part xv unclos but with the particularities included by the Straddling Stocks Agreement)? Regarding the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean,510 done in Honolulu on 5 September 2000 and in force since 19 June 2004, it is, in my view, one of those “subregional, regional…” agreements to which article 30.2 of 1995 Agreement would export the unclos dispute settlement system mutatis mutandis. However, its article 31 makes this extension unnecessary by referring itself, not to Part xv unclos directly, but to Part viii of the 1995 Agreement (which, as seen above, refers also to Part xv unclos but with some particularities511). There are also a number of States Parties in this Convention simultaneously participating both/either in unclos and/or the 1995 Agreement. Since article 31 of the Honolulu Convention means a second referral, the question is whether or not declarations made by States pursuant to article 287 unclos for disputes concerning that 1982 Convention are applicable to States Parties also in the Honolulu Agreement, be they Parties in the 1995 Straddling Stocks Agreement (sans declaration) or not. In my view, the answer should be in the affirmative. In respect to the Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean (seafo512), done in Windhoek 509 Casado, cit. 510 See the website of the Western and Central Pacific Fisheries Commission (www.wcpfc .int). The text was also published in 40 ilm 278 (2001). 511 Article 31 of the Honolulu Convention says the following: “The provisions relating to the settlement of disputes set out in Part viii of the Agreement apply, mutatis mutandis, to any dispute between members of the Commission, whether or not they are also Parties to the Agreement.” 512 South Eastern Atlantic Fisheries Organization. The text of the Windhoek Convention is available (28 February 2015) at www.seafo.org.

Principal Jurisdiction

181

(Namibia) on 20 April 2001, in force since 13 April 2003, one may observe that its article 24, deeply inspired by Part viii of the 1995 Agreement, sets out a sort of division or distribution of references to the dispute settlement system of unclos and of the 1995 Agreement depending on the subject it addresses.513 In general, this seafo Convention refers to the settlement procedures of the Law of the Sea Convention. As an exception to that general rule, disputes on one or more straddling stocks will be ruled by Part viii of 1995 Agreement and, accordingly, by Part xv unclos but with the particularities of the New York Agreement. It is not clear, however, how far the reference extends when it states that the dispute “shall (…) be submitted for binding decision (…) in accordance with (…) procedures (…)” provided in Part xv unclos or Part viii of 1995 Agreement and which are “the relevant parts” of those treaties that “shall apply whether or not the parties to the dispute are also parties to these instruments” (art.24.4). For example, doubt may arise as to whether a declaration in which a forum is 513 According to article 24: 1. The Contracting Parties shall cooperate in order to prevent disputes. 2. If any dispute arises between two or more Contracting Parties concerning the interpretation or implementation of this Convention, those Contracting Parties shall consult among themselves with a view to resolving the dispute, or to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. 3. In cases where a dispute between two or more Contracting Parties is of a technical nature, and the Contracting Parties are unable to resolve the dispute among themselves, they may refer the dispute to an ad hoc expert panel established in accordance with procedures adopted by the Commission at its first meeting. The panel shall confer with the Contracting Parties concerned and shall endeavour to resolve the dispute expeditiously without recourse to binding procedures for the settlement of disputes. 4. Where a dispute is not referred for settlement within a reasonable time of the consultations referred to in paragraph 2, or where a dispute is not resolved by recourse to other means referred to in this article within a reasonable time, such dispute shall, at the request of any party to the dispute, be submitted for binding decision in accordance with procedures for the settlement of disputes provided in Part xv of the 1982 Convention or, where the dispute concerns one or more straddling stocks, by provisions set out in Part viii of the 1995 Agreement. The relevant part of the 1982 Convention and the 1995 Agreement shall apply whether or not the parties to the dispute are also Parties to these instruments. 5. A court, tribunal or panel to which any dispute has been submitted under this article shall apply the relevant provisions of this Convention, of the 1982 Convention, of the 1995 Agreement, as well as generally accepted standards for the conservation and management of living marine resources and other rules of international law, compatible with the 1982 Convention and the 1995 Agreement, with a view to ensuring the conservation of the fish stocks concerned.

182

chapter 1

selected, and which has been made in the framework of unclos for unclos disputes, as well as those that have been made pursuant to Part viii of the 1995 Agreement, for disputes concerning this treaty, are applicable to disputes arising from the 2001 seafo Convention when one of the opponents is a Party of those treaties and the other is not; particularly in the case when the second has made a declaration for the 2001 Convention, if admissible, designating the same forum. Despite the fact that the text of this treaty may seem similar to  others we have examined here, such as the 1996 Protocol to the London Convention on Dumping and the 1995 Agreement, one must take into account that this seafo Convention has no provision similar to that specified in article 30.3 of the latter, that is, a provision determining whether or not a declaration pursuant to unclos for disputes regarding the interpretation or application of the 1982 Law of the Sea Convention is even applicable. Concerning the unesco Convention on the Protection of the Underwater Cultural Heritage, of 2 November 2001, which entered into force on 2 January 2009,514 its article 25 is very much inspired by article 30 of the 1995 Agreement, with the exception of a previous optional mediation before unesco, if the parties in the dispute so agree. Put succinctly, this means an application, mutatis mutandis, of Part xv of unclos, though in this case without the particularities of the Straddling Stocks Agreement; it also means, accordingly, that declarations made pursuant to article 287 unclos for the disputes concerning the 1982 Convention can be used for this unesco 2001 Convention in the absence of an specific declaration made pursuant to the latter.515 514 www.unesco.org/new/en/culture/themes/underwater-cultural-heritage. 515 Article 25 of the 2001 Underwater Cultural Heritage Convention says: 1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention shall be subject to negotiations in good faith or other peaceful means of settlement of their own choice. 2. If those negotiations do not settle the dispute within a reasonable period of time, it may be submitted to unesco for mediation, by agreement between the States Parties concerned. If mediation is not undertaken or if there is no settlement by mediation, the provisions relating to the settlement of disputes set out in Part xv of the United Nations Convention on the Law of the Sea apply mutatis mutandis to any dispute between States Parties to this Convention concerning the interpretation or application of this Convention, whether or not they are also Parties to the United Nations Convention on the Law of the Sea. 4. Any procedure chosen by a State Party to this Convention and to the United Nations Convention on the Law of the Sea pursuant to Article 287 of the latter shall apply to the settlement of disputes under this Article, unless that State Party, when ratifying, accepting, approving or acceding to this Convention, or at any time thereafter,

Principal Jurisdiction

183

As to the Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries, of 18 November 1980, in force since 1982, the then European Community proposed in July 2003 an amendment consisting of a new article 18 bis, on settlement of disputes, whose text is the following: “The [North East Atlantic Fisheries] Commission shall make recommendations establishing procedures for the settlement of disputes arising under this Convention”. The draft text of article 18 bis, along with the draft of the envisaged Recommendation referred by the new article, were approved during the 23rd Annual Meeting of the North East Atlantic Fisheries Commission (neafc) on 11 November 2004. However, this amendment is not yet in force. Paragraphs 5 and 6 of the approved Recommendation state: 5. Where a dispute is not resolved by recourse to the means set out in paragraphs 2 and 3, one of the parties to the dispute may refer the dispute to compulsory procedures entailing binding decisions. Such procedures shall be governed mutatis mutandis by the provisions relating to the settlement of disputes set out in Part xv of the United Nations Convention on the Law of the Sea of 10 December 1982 (1982 un Convention) or, where the dispute concerns one or more straddling stocks, by the provisions set out in Part viii of 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 4 August 1995 (1995 Agreement). The relevant parts of the 1982 un Convention and the 1995 Agreement shall apply whether or not the parties to the dispute are also Parties to these instruments.

chooses another procedure pursuant to Article 287 for the purpose of the settlement of disputes arising out of this Convention. 5. A State Party to this Convention which is not a Party to the United Nations Convention on the Law of the Sea, when ratifying, accepting, approving or acceding to this Convention or at any time thereafter shall be free to choose, by means of a written declaration, one or more of the means set out in Article 287, paragraph 1, of the United Nations Convention on the Law of the Sea for the purpose of settlement of disputes under this Article. Article 287 shall apply to such a declaration, as well as to any dispute to which such State is party, which is not covered by a declaration in force. For the purpose of conciliation and arbitration, in accordance with Annexes v and vii of the United Nations Convention on the Law of the Sea, such State shall be entitled to nominate conciliators and arbitrators to be included in the lists referred to in Annex v, Article 2, and Annex vii, Article 2, for the settlement of disputes arising out of this Convention.

184

chapter 1

6. A panel or judicial body to which any dispute has been referred under this Article shall apply, as appropriate, the relevant provisions of the Convention, of the 1982 un Convention, of the 1995 Agreement, and other rules of international law compatible with the said instruments, as well as recommendations of the Commission which are applicable to the parties of the dispute, with a view to ensuring the conservation and optimum utilisation of the fish stocks concerned.516 As described above – while dealing with the in force 2001 seafo Convention – the new settlement of disputes system of this amended neafc Convention, clearly inspired in the former, sets out a distribution of procedures according to the subject of the dispute, referring either to the unclos system in general 516 Source: http://archive.neafc.org/reports/annual-meeting/index.htm (23rd Annual Meeting). See the organization website at www.neafc.org. The previous paragraphs of the Recommen­ dation say: neafc Recommendation establishing procedures for the settlement of disputes In accordance with Article 18 bis of the Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries, hereinafter referred to as “the Convention”, neafc recommends the establishment of the following procedures for the settlement of disputes: 1. Contracting Parties shall co-operate in order to prevent disputes referred to in paragraph 2 and 3. 2. If any dispute arises between two or more Contracting Parties concerning the interpretation or application of the Convention, those Contracting Parties shall expeditiously seek to resolve the dispute by consultation, negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. 3. Where a dispute concerns the application of the Convention or the interpretation or application of a recommendation adopted by the Commission, the parties to the dispute may refer the dispute to an ad hoc panel constituted in accordance with rules of procedure adopted by the Commission. The panel shall at the earliest possible opportunity confer with the Contracting Parties concerned and shall endeavour to resolve the dispute expeditiously. 4. Where the parties to a dispute have agreed to refer the dispute to the ad hoc panel procedure, they may agree at the same time to apply provisionally the relevant recommendation adopted by the Commission until the panel finalizes its work or the dispute is resolved by the parties to the dispute, whichever occurs first. Pending the settlement of a dispute in accordance with paragraph 5, the parties to the dispute shall apply provisionally any measure described by the panel. That provisional application shall cease when the parties to the dispute agree on arrangements of equivalent effect, when a judicial body to which the dispute has been referred in accordance with paragraph 5 has taken a provisional or definitive decision or, in any case, at the date of expiration of the recommendation of the Commission at issue.

Principal Jurisdiction

185

and to the 1995 Agreement for the disputes concerning one or more straddling stocks. Again, as in the seafo Convention, the accurate range of the referral expressions (in this treaty, by stating that the procedures entailing binding decisions “shall be governed mutatis mutandis” by the provisions of Part xv unclos or Part viii of the 1995 Agreement, on the one hand, and by repeating the formula that the “relevant parts” of unclos and 1995 Agreements “shall apply” whether or not the parties to the dispute are also parties to these instruments, on the other) may cause some doubt, particularly about the competent forum. Just as in the seafo treaty, one must be aware that in this treaty there is no provision similar to that of article 30.3 of the 1995 Agreement. Similar to the seafo and neafc Conventions, the Southern Indian Ocean Fisheries Agreement (siofa) of 7 July 2006, in force since 21 June 2012, establishes a double referral to either Part xv of unclos or to Part viii of 1995 Agreement, the latter when the dispute concerns one or more straddling stocks. What has been said regarding the former treaties can be applied here as well, with the exception that specific arbitration (according to the rules of the Permanent Court of Arbitration) is set forth to settle those disputes involving a fishing entity which has expressed its commitment to be bound by the terms of this 2006 Agreement (article 20).517 Last of all, the Nairobi International Convention on the Removal of Wrecks, of 18 May 2007, will enter into force on 14 April 2015. Its article 15 on the Settlement of disputes also refers to unclos Part xv, whose provisions shall apply mutatis mutandis as well, whether or not the States Parties to the dispute are also parties to the 1982 Law of the Sea Convention, if no settlement is possible within a reasonable period of time (which this Convention particularly establishes at 12 months). However, despite the seafo and similar conventions, this treaty (which refers solely to unclos settlement system) uses the formula of the 1995 Straddling Stocks Agreement, thus regulating the applicability or not of 517 www.fao.org/fishery/rfb/siofa. According to article 20: 1. Contracting Parties shall use their best endeavours to resolve their disputes by amicable means. At the request of any Contracting Party a dispute may be submitted for binding decision in accordance with the procedures for the settlement of disputes provided in Section ii of Part xv of the 1982 Convention or, where the dispute concerns one or more straddling stocks, the procedures set out in Part viii of the 1995 Agreement. The relevant part of the 1982 Convention and the 1995 Agreement shall apply whether or not the parties to the dispute are also parties to either of these instruments. 2. If a dispute involves a fishing entity which has expressed its commitment to be bound by the terms of this Agreement and cannot be settled by amicable means, the dispute shall, at the request of any party to the dispute, be submitted to final and binding arbitration in accordance with the relevant rules of the Permanent Court of Arbitration.

186

chapter 1

declarations made pursuant unclos and the possibility for the parties to make declarations specifically for the 2007 Convention. In particular, paragraphs 3 and 4 of article 15 state: 3. Any procedure chosen by a State Party to this Convention and to the United Nations Convention on the Law of the Sea, 1982, pursuant to Article 287 of the latter, shall apply to the settlement of disputes under this article, unless that State Party, when ratifying, accepting, approving or acceding to this Convention, or at any time thereafter, chooses another procedure pursuant to Article 287 for the purpose of the settlement of disputes arising out of this Convention. 4. A State Party to this Convention which is not a Party to the United Nations Convention on the Law of the Sea, 1982, when ratifying, accepting, approving or acceding to this Convention or at any time thereafter shall be free to choose, by means of a written declaration, one or more of the means set out in Article 287, paragraph 1, of the United Nations Convention on the Law of the Sea, 1982, for the purpose of settlement of disputes under this Article. Article 287 shall apply to such a declaration, as well as to any dispute to which such State is party, which is not covered by a declaration in force. For the purpose of conciliation and arbitration, in accordance with Annexes v and vii of the United Nations Convention on the Law of the Sea, 1982, such State shall be entitled to nominate conciliators and arbitrators to be included in the lists referred to in Annex v, Article 2, and Annex vii, Article 2, for the settlement of disputes arising out of this Convention. 3.2 Post Controversiam As seen in previous blocks, the consent to submit a dispute to the International Tribunal for the Law of the Sea can be expressed before the dispute arises (ante controversiam) or after it emerges (post controversiam). This can be so deduced, in respect to disputes concerning the interpretation or application of unclos, from article 21 of the itlos Statute and, more clearly, from Section 1 of Part xv unclos, where article 280 recognizes the right of the States Parties to agree to the means for settling their dispute “at any time”. It can be deduced as well, in regard to other disputes for which itlos might be also competent (be those disputes on international treaties or on other international law in force), from articles 21 st, 22 st and 288.2 unclos. It has also been said that compulsory jurisdiction of itlos (pre-consented jurisdiction to be accurate) can only come from a common will prior to the raising of the dispute. In particular, it only occurs when parties agree ante controversiam that the dispute may be

Principal Jurisdiction

187

brought before itlos by one of them without the renewed consent of the opposing litigant. On the contrary, by its nature, post controversiam ­jurisdiction is always voluntary. Even if the jurisdiction of the tribunal comes from an agreement prior to the emergence of the dispute, if this agreement allows the parties to bring the dispute to itlos only with the consent of the other, then, because a new agreement is required for the submission of the dispute to itlos, this new deal post controversiam is the genuine source of its competence. After a dispute emerges, mutual consent to submit it to itlos can be expressed ad hoc by means of a special agreement (or its French term compromis) or post hoc, that is, after the application has entered the Tribunal’s docket. This second case results from the principle of forum prorogatum, which can occur only after an application has been filed in the Tribunal. Although similar, there are some slight differences between them. First, they are employed at distinct chronological moments: while the special agreement takes place prior to the application, or substitutes it, the forum prorogatum, as we have noted, can only enter into play when the application has been submitted to the Tribunal. Second, while a special agreement may rely on subjects that either fall or do not fall under compulsory jurisdiction the forum prorogatum deals with issues which (at least in the estimation of both litigants) fall outside the margins.518 3.2.1 Special Agreement (Compromis) In addition to the aforementioned provisions allowing parties to submit a dispute, to the International Tribunal for the Law of the Sea, after it arises, ­article 24 of its Statute, expressly and explicitly, states: Article 24 Institution of proceedings 1. Disputes are submitted to the Tribunal, as the case may be, either by notification of a special agreement or by written application, addressed to the Registrar. In either case, the subject of the dispute and the parties shall be indicated. 518 This may be the reason why the parties are compelled to reach such an agreement. In my view, even when the special agreement covers a subject that would be submitted to compulsory jurisdiction per se, the competence of the tribunal remains consensual because the second agreement (compromis) overlaps and substitutes the previous. This point is more academic than practical in general terms but, occasionally, discrepancies may occur between the parties as to the actual range of the Tribunal’s jurisdiction and/or the procedures to be applied; in those situations, the special agreement should prevail unless the parties otherwise agree.

188

chapter 1

2. The Registrar shall forthwith notify the special agreement or the application to all concerned. 3. The Registrar shall also notify all States Parties.519 Instead of the wording “special agreement”, the Spanish and the French versions of unclos use the word compromise (“compromiso” in Spanish, “compromis” in French). However, no definition of special agreement can be found in the Law of the Sea Convention. In my view, it should be interpreted in a broad sense. Its reach should embrace not only special agreements stricto sensu, that is, agreements whose only subject matter is the submission of the dispute to the Tribunal, but also the compromisory clauses that are formulated in special agreements whose object is not only limited to regulating the submission of the dispute to the Tribunal but to rule the settlement of that dispute as a whole. Dealing with inter-State disputes, the agreement’s nature is that of an international treaty, thus submitted to general international law and to the Vienna Convention on the Law of Treaties of 1969.520 In this respect, as the icj recalled in its Judgment of 1 June 1994, in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) ( Jurisdiction and Admissibility), international agreements may take a number of forms and be given a diversity of names.521 On the other hand, as the icj did in its Judgment of 3 February 1994 in the case concerning the Territorial Dispute (Libya/Chad), the Tribunal must interpret the special agreement in accordance with customary international law, reflected in article 31 of the 1969 Vienna Convention on the Law of Treaties.522 The special agreement must provide the Tribunal with a title of competence, that is, a basis upon which the common will of the parties to submit the dispute precisely to itlos relies. It might also indicate the procedure for introducing the case before the Tribunal – e.g., by notifying the agreement to the Registrar or by the filing of an application by 519 Emphasis added. 520 See Casado Raigón, R., La jurisdicción contenciosa de la Corte Internacional de Justicia. Estudio de las reglas de su competencia, Servicio de Publicaciones de la Universidad de Córdoba, Córdoba, 1987, p. 35, note 1. As Casado points out in this regard, some special agreements submitted to the International Court of Justice have been subject to ratification, like those which led to the cases of Minquiers and Ecrehous (cij Recueil, 1953, pp. 49–50), Sovereigity over certain frontier land (cij Recueil, 1959, p. 211), and Continental Shelf TúnezLibia (cij Recueil, 1982, pp. 21 ss.); while some special agreements entered into force by their signature, like the North Sea Continental Shelf cases (cij Recueil, 1969, pp. 6–7). 521 icj Reports, 1994, p. 120, para. 23. 522 icj Reports, 1994, pp. 21–22, para. 41.

Principal Jurisdiction

189

one of the parties – and determine the number and order of the pleadings (unless the Tribunal, after ascertaining the views of the parties, decides otherwise).523 Regarding the particular range of the jurisdiction conferred upon itlos, as the icj stated in the Case concerning the Continental Shelf (Libya/Malta), the tribunal “must not exceed the jurisdiction conferred upon it by the Parties, but it must also exercise that jurisdiction to its full extent”.524 As for disputes that involve an international organization of Annex ix unclos, of which there is only one to date – the European Union – submission may be made to itlos also by a special agreement. Furthermore, since they access the 1982 Convention as “States Parties” (article 1.2 unclos),525 most of what has been said in the paragraph above regarding disputes between States may be applied to controversies involving this particular type of international organization. As explained in the section dealing with ratione personae jurisdiction,526 they must be deemed as States Parties to the Convention because several competences on matters governed by the Law of the Sea Convention have been transferred to them by their States Members, who would not exercise these competences to avoid an increase in representation. And accordingly, since Annex ix organizations do not act as additional persons, but rather instead of its own States Members, it is logical that the regime applicable to these States (including that concerning settlement of disputes) applies, as far as possible, also to this very special kind of international organizations of which they form a part. Obviously, the difference in their natures require some adaptations, particularly regarding the fact that the special agreement in this case is celebrated between one State and one international organization or, as the case may be in the future, even between two international organizations. Therefore, of the two Vienna Conventions on the Law of Treaties (1969 and 1986) the one applicable for these purposes is the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, of 21 March 1986, which reflects international customary law in force on the subject.527 The point is more complicated, on the other hand, when it comes to the remaining entities or individuals different to States and Annex ix international organizations to which the Law of the Sea Convention may grant access to the Hamburg Tribunal. Is the special agreement formula applicable to them? 523 524 525 526 527

Article 61 rt. See also article 46 rc. icj Reports, 1985, p. 23, para. 19. Emphasis added. See also article 305 unclos. See Section 2, Chapter 4 of this Part. The European Union is not a Party of this treaty (as of 28 February 2015).

190

chapter 1

In looking at disputes concerning the interpretation or application of unclos, it would seem that article 285 clears the path. It states that, “if an entity other than a State Party is a party (…) to any dispute which pursuant to Part xi, Section 5, is to be settled in accordance with procedures provided for in this Part [xv]”, then Section 1 of Part xv “applies mutatis mutandis”.528 While in theory the pathway is cleared for these entities or individuals to also use the special agreement – or a similar agreement if the nomen iuris “special agreement” is interpreted as a mechanism reserved only to international treaties – the truth is that the practical consequences might be slim. On the one hand, article 20.2 of the Tribunal’s Statute grants entities other than States Parties access to itlos “in any case expressly provided for in Part xi (…)”. In this respect, the list of entities or individuals granted access to the Tribunal and the types of disputes for which they have been recognized with ius standi before itlos are identified and enumerated in article 187; however, it is exactly in all these types of cases (the exception being disputes submitted to binding commercial arbitration529) that the jurisdiction for the settlement of the dispute involving non-State parties is compulsory and corresponds precisely to the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea. Therefore, in all cases excepting that of commercial arbitration, the real scope of application of such an ad hoc agreement would be more theoretical than practical. But on the other hand, as for the possibility of non-State entities using an ad hoc agreement to submit a dispute that falls outside the bounds of the 1982 Law of the Sea Convention to itlos, the answer needs to be cautious. In principle, hypothetically, such a possibility might be considered in view of the broad terms set out in article 20.2 st: “The Tribunal shall be open to entities other than States Parties (…) in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case”. However, for the reasons explained in the corresponding chapter,530 I believe that the wording “agreement” as utilized by this provision means no other thing than international treaty. Therefore, apart from the concrete entities or persons enumerated in Part xi (and just for the purpose of participating in the disputes listed therein), the ratione personae jurisdiction of itlos does not extend to other persons or entities than those entitled with 528 In this respect, the applicability of Section 1 Part xv to entities other than States Parties would allow them to convene, at any moment, to settle their dispute by any peaceful means of their choice (art.280 unclos). 529 Article 187.c, sentence i, in connection to Article 188.2. 530 See Section 2, Chapter 5 of this Part.

Principal Jurisdiction

191

ius tractatum, that is to say, States and international intergovernmental organizations. So if that limitation (ratione personae) is accepted, special agreements of the type detailed above would be constrained to disputes confronting one international organization against another international organization or against a State. For disputes between international organizations and individuals, as well as disputes between States and individuals, such special agreements as regulated by article 20 st would be inadmissible. To date, there have been five cases submitted to itlos by means of a special agreement: the M/V Saiga 2 (Merits), the Swordfish case, the Bay of Bengal Delimitation case, the M/V Virginia G case and the case concerning the Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean: In the M/V Saiga 2 (Merits) case, Saint Vincent and the Grenadines originally instituted Annex vii arbitration proceedings against Guinea. Pending the constitution of the arbitral tribunal, the plaintiff requested provisional measures to the International Tribunal for the Law of the Sea in keeping with powers this Tribunal enjoys according to article 290.5 unclos. During the provisional measures procedure, thanks in part to the good offices of the itlos President, Saint Vincent and the Grenadines and Guinea agreed on 20 February 1998, via an exchange of letters, to transfer the arbitral proceedings to itlos. The conditions of that treaty (the 1998 Agreement) were, inter alia, the following: – The dispute should be deemed to have been submitted to the Hamburg Tribunal on 22 December 1997, that is, the date of the notification by Saint Vincent and the Grenadines to Guinea regarding the institution of the arbitral proceedings. – The written and oral proceedings should comprise a single phase dealing, not only with all aspects of the merits, but also with the objection that Guinea raised, in its Statement in Response to the Request for Provisional Measures, to the prima facie jurisdiction of the Annex vii arbitral tribunal. – The Request for Provisional Measures filed by Saint Vincent and the Grenadines, The Statement in Response by Guinea, and all the subsequent documentation filed by the parties with the Tribunal, would be regarded by it as filed in conformity to article 290.1 unclos, that is, as submitted to the tribunal which is considered prima facie competent to deal with the case. – Guinea should submit the “Agreement by Exchange of Letters” to the President of the International Tribunal for the Law of the Sea immediately after its conclusion.531 531 Judgment in the Saiga 2 (Merits) case, 1 July 1999, paragraphs 4 and 40–45.

192

chapter 1

On 20 February 1998 – the same date as the 1998 Agreement and the same date that Guinea submitted the aforementioned agreement to the President of itlos – the Hamburg Tribunal decided: 1/that “the Notification submitted by Saint Vincent and the Grenadines on 22 December 1997 instituting proceedings against Guinea in respect of the M/V ‘Saiga’ shall be deemed to have been duly submitted to the Tribunal on that date”, and 2/that “the request for the prescription of provisional measures (…) be considered as having been duly submitted to the Tribunal under article 290, paragraph 1, of the Convention and article 89, paragraph 1, of the Rules of the Tribunal”. In that same Order, itlos decided that the dispute would enter the List of Cases as “The M/V Saiga” (n° 2) and would be dispatched pursuant to a timetable reflecting the agenda as originally established by the parties.532 In dealing with its own jurisdiction, the Tribunal followed the icj pattern, by noting first that “there [was] no disagreement between the parties regarding the jurisdiction of the Tribunal in the present case” but deciding afterwards that it “nevertheless, must satisfy itself that it [had] jurisdiction to deal with the case as submitted”.533 In this respect, repeating what it had declared in its Order of 20 February 1998, the Tribunal stated that “having regard to the 1998 Agreement and article 287 of the Convention, it was satisfied that Saint Vincent and the Grenadines and Guinea have agreed to submit the dispute to it”. In view of what is said below, when examining the Bangladesh/Myanmar Delimitation case, it is worth underscoring here, in the Saiga 2, that itlos expressly stated that it had reached the conclusion that “the basis of its jurisdiction in this case is the 1998 Agreement, which transferred the dispute to the Tribunal, together with articles 286, 287 and 288 of the Convention”.534 As regards the objection raised by Guinea in the provisional measures proceedings, this was not reiterated by this country in the merits proceedings. Accordingly, it remained unresolved by the Tribunal.535 However, Guinea did pose several objections to admissibility the consideration of which was opposed by Saint Vincent & Grenadines, who countered by stating that the 1998 Agreement “permits Guinea to raise only the objection to jurisdiction and precludes objections to admissibility” so that “reservation of the specific objection to jurisdiction implies that all other objections to jurisdiction or admissibility were ruled out by the parties”.536 itlos rejected this position stating: 532 533 534 535 536

Judgment Saiga 2, paras. 5 ss. Para. 40. Paras. 42 and 43. Emphasis added. Para. 40. Para. 48.

Principal Jurisdiction

193

In the view of the Tribunal, the object and purpose of the 1998 Agreement was to transfer to the Tribunal the same dispute that would have been the subject of the proceedings before the arbitral tribunal. Before the arbitral tribunal, each party would have retained the general right to present its contentions. The Tribunal considers that the parties have the same general right in the present proceedings, subject only to the restrictions that are clearly imposed by the terms of the 1998 Agreement and the Rules. In the present case, the Tribunal finds that the reservation of Guinea’s right in respect of the specific objection as to jurisdiction did not deprive it of its general right to raise objections to admissibility, provided that it did so in accordance with the Rules and consistently with the agreement between the parties that the proceedings be conducted in a single phase. The Tribunal, therefore, concludes that the 1998 Agreement does not preclude the raising of objections to admissibility by Guinea.537 As a consequence, itlos having entertained the objections to admissibility raised by Guinea, made its decision and rejected them.538 It should be noted, however, that the Hamburg Tribunal decided only on the objections to admissibility, not on the hypothesis of a new objection to its jurisdiction different than that agreed upon by Guinea as reflected in the 1998 Agreement.539 No less interesting than the special agreement on the Saiga 2 case was that reached by Chile and the European Community regarding the Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the Southern-Eastern Pacific Ocean, the first case in history where the special agreement to settle the dispute by a permanent international court with global geographical jurisdiction was not reached between two States, but between one State and one international intergovernmental organization. Again due to the good offices of the President of itlos taking place, the Chilean/European Community agreement was likewise reached through an exchange of letters dated 18 and 19 December 2000, by which their dispute on swordfish stocks was directly submitted to an ad hoc chamber (a “special chamber”) of the Hamburg Tribunal. The main conditions of this special agreement were as follows:

537 Para. 51. Emphasis added. 538 See paras. 55–109. 539 Regarding this question, see the Separate Opinion by Judge Nelson, according to which the special agreement did not cover new objections to jurisdiction (“the dispute has been transferred [to the Tribunal] but the faculty of making other objections has not been”). See also the Dissenting Opinion by Judge Ndiaye.

194

chapter 1

– The composition of the special chamber should be approved by the parties. – The points to be decided by the Tribunal (by its special chamber) would be those specified in the agreement.540 – The proceedings would be those set forth in sections A, B and C of Part iii of the Rules of the Tribunal. In particular, any preliminary objection should be 540 Pursuant to the clause 3 of the agreement: 3. The special chamber is requested to decide, on the basis of the Convention, the following issues to the extent that they are subject to compulsory procedures entailing binding decisions under Part xv of the Convention: On behalf of Chile: (a) whether the European Community has complied with its obligations under the Convention, especially articles 116 to 119 thereof, to ensure conservation of swordfish, in the fishing activities undertaken by vessels flying the flag of any of its member States in the high seas adjacent to Chile’s exclusive economic zone; (b) whether the European Community has complied with its obligations under the Convention, in particular article 64 thereof, to co-operate directly with Chile as a coastal State for the conservation of swordfish in the high seas adjacent to Chile’s exclusive economic zone as also to report its catches and other information relevant to this fishery to the competent international organization and to the coastal State; (c) in relation to the foregoing, whether the European Community has challenged the sovereign right and duty of Chile, as a coastal State, to prescribe measures within its national jurisdiction for the conservation of swordfish and to ensure their implementation in its ports, in a non-discriminatory manner, as well as the measures themselves, and whether such challenge would be compatible with the Convention; (d) whether the obligations arising under articles 300 and 297, paragraph 1 (b), of the Convention, as also the general thrust of the Convention in that regard, have been fulfilled in this case by the European Community. On behalf of the European Community: (e) whether the Chilean Decree 598 which purports to apply Chile’s unilateral conservation measures relating to swordfish on the high seas is in breach of, inter alia, articles 87, 89 and 116 to 119 of the Convention; (f) whether the “Galapagos Agreement” signed in Santiago de Chile on 14 August 2000 was negotiated into in keeping with the provisions of the Convention and whether its substantive provisions are in consonance with, inter alia, articles 64 and 116 to 119 of the Convention; (g) whether Chile’s actions concerning the conservation of swordfish are in conformity with article 300 of the Convention and whether Chile and the European Community remain under a duty to negotiate an agreement on cooperation under article 64 of the Convention; (h) whether the jurisdiction of the special chamber extends to the issue referred to in paragraph 3 (c) above.

Principal Jurisdiction

195

dealt with by the chamber in accordance with article 97, paragraphs 1 to 6, of the Rules. – The special agreement to submit the dispute to itlos should not amount, on the part of the European Community, to a declaration for the purposes of article 287.1 unclos. In this case, the dispute was entered in the itlos docket by means of a notification by the parties to the Registrar of the Hamburg Tribunal, made the same 19 December 2000, of their respective letters of 18 and 19 December. The Tribunal, for its part, proceeded to form the ad hoc chamber as requested by the parties and followed the composition proposed by them. As is widely known, the dispute was finally settled by an Understanding agreed upon by negotiators for both Parties on 16 October 2008. Hence, in accordance with the request of both parties, the Special Chamber issued an Order on 16 December 2009 deciding to remove the case from the List of cases. Either way, it is obvious that, despite the discontinuance of this procedure, it signifies a valuable first step in the history of both the European Union and the International Tribunal for the Law of the Sea. As seen in the block devoted to the compulsory jurisdiction of the International Tribunal of the Law of the Sea, the case concerning the Delimitation of the Maritime Boundary in the Bay of Bengal is formally treated by itlos as a case entered into by a special agreement insofar as it is so treated by the Order of its President of 28 January 2010,541 it is marked as “(Bangladesh/Myanmar)” both in the Docket and in “Citations”, and it is still appearing on the Tribunal’s website the “Special Agreement” by which Bangladesh introduces the dispute to the Hamburg Tribunal. However, the singularity of this particular case leads Judges Treves and Ndiaye to open the challenging matter of its true nature. Treves considers that itlos “leaves the question open”542 and Ndiaye explicitly finds that “we are here within the domain of compulsory jurisdiction, that is to say, of compulsory procedures entailing binding decisions”.543 In essence, the relevant facts for facing this conundrum can be summarized, as follows:544

541 6th Whereas. 542 Treves, Declaration, para. 5. 543 Ndiaye, Opinion Individuelle, heading of page 4, paragraphs 11 and following. The translation is mine. 544 Judge Ndiaye summarizes these main facts for the point in question in paragraphs 26 and following in his Opinion Individuelle.

196

chapter 1

1/Originally, Bangladesh instituted arbitral proceedings against Myanmar pursuant to Annex vii unclos (8 October 2009) (itlos Judgment of 14 March 2012, para.1); 2/in reply to this action, Myanmar made a declaration on 4 November 2009 pursuant to article 287 unclos, by which it accepted the jurisdiction of itlos (para.2) “for the settlement of dispute between the Union of Myanmar and the People’s Republic of Bangladesh relating to the delimitation of maritime boundary between the two countries in the Bay of Bengal” (para.3); 3/scarcely more than one month later, on 12 December 2009, and also according to article 287 unclos, Bangladesh made a declaration nearly identical to that of its opponent, likewise accepting the jurisdiction of the Hamburg Tribunal, “for the settlement of the dispute between the People’s Republic of Bangladesh and the Union of Myanmar relating to the delimitation of their maritime boundary in the Bay of Bengal” (para.4); 4/as a consequence of their declarations pursuant to article 287 unclos, on 14 December 2009 Bangladesh filed a letter with the Registry of itlos, dated the day before, according to which: “[g]iven Bangladesh’s and Myanmar’s mutual consent to the jurisdiction of itlos, and in accordance with the provisions of unclos Article 287(4), Bangladesh considers that your distinguished Tribunal is now the only forum for the resolution of the parties’ dispute” (para.2).545 5/during the proceedings, Myanmar withdrew its declaration pursuant to article 287 unclos (14 January 2010) (para.8); such withdrawal was rejected by Bangladesh (18 January 2010) who affirmed that such action did “not in any way affect proceedings regarding the dispute that have already commenced before itlos, or the jurisdiction of itlos with regard to such proceedings”; in this regard, Bangladesh referred to article 287, paragraphs 6 and 7 (para.9); nevertheless, Myanmar did not dispute that “as a matter of principle, the delimitation of the continental shelf, including the shelf beyond 200 nm, could fall within the jurisdiction of the Tribunal”; however, it submitted that in the present case “the Tribunal does not have jurisdiction with regard to the continental shelf beyond 200 nm” (para.45); in addition, as reflected by Judge Treves, Myanmar opted clearly for the view that the jurisdiction of the Tribunal was based “on a special agreement between Myanmar and Bangladesh, which 545 According to article 287.4 “If the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree.”

Principal Jurisdiction

197

a­ greement is reflected in their respective declarations dated 4 November 2009 and 12 December 2009”;546 6/the Hamburg Tribunal observed “that Myanmar and Bangladesh, by  their declarations under article 287, paragraph 1 (…) accepted the jurisdiction of the Tribunal (…) and that these declarations were in force at the time proceedings before the Tribunal were instituted on 14 December 2009” (para.47); moreover, it noted “that the Parties agree that the Tribunal has jurisdiction to adjudicate the dispute relating to the delimitation of the territorial sea, the exclusive economic zone and the continental shelf within 200 nm” (para.45). 7/the Tribunal concluded that it had jurisdiction to delimit the entire boundary described above (para.50), also including, as requested by Bangladesh, the delimitation of the continental shelf beyond 200  nm (para.394). In view of these elements, one finds the questions raised by the above-mentioned judges of major interest. As Treves acutely observes, both declarations submitted “under article 287 accept the jurisdiction of the Tribunal not in general terms (…) but with respect to a single specific dispute. The interpretative question that arises, and that the Tribunal has chosen not to address, is whether in so doing they concluded a special agreement (…) or whether the references to article 287 require that jurisdiction be considered as established unilaterally by Bangladesh’s letter of 13 December 2009”.547 The key point in this respect is, as underlined by the Italian Judge, the following: No issue has arisen in the present case that would make the determination of the basis of jurisdiction relevant for deciding a question submitted to the Tribunal (…) (S)uch a determination may be important in certain cases, the most relevant of which seems to concern the applicability to the dispute of the limitations and exceptions to jurisdiction set out in articles 297 and 298 of the Convention. These limitations and exceptions undoubtedly apply to disputes submitted to adjudication under Section 2 of Part xv of the Convention (…) as they are included in Section  3, entitled “Limitations and exceptions to applicability of Section 2”. They do not, however, apply to cases submitted by the agree546 Treves, cit., para. 4, and Counter-Memorial of Myanmar, para. 1.7, as quoted by Treves. 547 Declaration of Judge Treves, para. 11. In the opinion of Judge Ndiaye, this is the case. The application, in his view, was introduced “par voie de requête du Bangladesh” (para. 21). See also para. 52.

198

chapter 1

ment of the parties on the basis of Section 1.This difference alone seems to warrant close attention by the Tribunal in future cases.548 Another dispute that entered in itlos Docket by means of a special agreement was the M/V Virginia G case (Panama/Guinea Bissau). The case finished by Judgment of 14 April 2014. It stems from a 2012 incident in which Guinean authorities arrested an oil tanker flying the Panamanian flag, the M/V Virginia, on the allegation that it was supplying fuel to four fishing vessels in the Guinean exclusive economic zone in violation of the Guinean law. The vessel was released on 22 October 2012 without penalty, but Panama claimed for the damages suffered by the vessel during its 14 month detention period (16 months until the vessel was operational).549 The special agreement by the parties was concluded by an exchange of letters, dated 29 June and 4 July 2011, and the Tribunal was notified by letter dated 4 July 2011. One of the aspects of major interest in this case concerns precisely the extent of the special agreement, as utilized by the respondent, Guinea Bissau, for introducing a counter-claim which was not expressly provided for in the said agreement. The counter-claim was admitted by the Hamburg Tribunal despite the objections raised by Panama. Panama argued, among other things, that the counter-claim did not fall within the jurisdiction of the Tribunal as conferred upon it by both parties in the special agreement, which makes no mention of Guinea-Bissau submitting a counter-claim to the Tribunal nor does it contain any express reservation of right by Guinea-Bissau or an implied agreement between the parties for such jurisdiction.550 In particular, itlos responded by “considering that the agreement concluded between the Parties refers to ‘the dispute between them concerning the Virginia G’ and states that the proceedings before the Tribunal shall deal ‘with all aspects of the merits (including damages and costs)’ and that the Tribunal ‘shall address all claims for damages and costs’”, and found that “the counter-claim presented by Guinea-Bissau” (which alleges the violation by Panama of article 91 unclos by granting its nationality to a vessel without a genuine link to it, and claims for the damages and costs caused by the vessel to Guinea-Bissau) “meets the requirement of jurisdiction set out in article 98, paragraph 1, of the Rules of the Tribunal”.551 From my modest point of view, the special agreement between 548 Treves, cit. para. 12. 549 Source: Special agreement as it appears in the itlos website at January 2015, page 7 of the pdf document. 550 Order of 2 November 2012, paras. 29 and 30. 551 Order of 2 November 2012, paras. 35 and 36.

199

Principal Jurisdiction

Panama and Guinea-Bissau does not empower the Hamburg Tribunal to deal with a counter-claim which is not expressly mentioned in the terms of the agreement, even more so when this agreement is transferring the case from an Annex vii arbitration instituted by one party against the other. Certainly, the respondent might raise the question of a counter-claim in the arbitration procedure, but by the time the special agreement was reached to introduce the case and transfer it to another forum (itlos), the faculty of the respondent to make such a claim should already have been included in the document. Nevertheless, the special agreement is an international treaty between two States and the Tribunal to whom it has been submitted is the one body empowered to interpret it, and accordingly, to determine whether or not it can implicitly sustain the introduction of a counter-claim. The opinion of itlos on this particular point is, in fact, unanimous since Judge Treves’ Dissenting Opinion only refers to the requisite of having direct connection with the subject-matter of the claim of the applicant – not to the introduction itself. We will return to this interesting case in Chapter 2, block 4.4, when addressing the jurisdiction of itlos regarding counter-claims. At this moment in time, the last case in which two parties reached a special agreement to bring a dispute to the International Tribunal for the Law of the Sea, after having once again transferred it from an Annex vii arbitration that had already been instituted, is the dispute concerning the Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire). During consultations held by the President of the Tribunal with representatives of Ghana and Côte d’Ivoire in Hamburg on 2 and 3 December 2014, a Special Agreement and Notification (dated 3 December) was concluded between the two States.552 The parties agreed to transfer the arbitral proceedings instituted by Ghana in the dispute concerning the delimitation of the maritime boundary between these two States in the Atlantic Ocean to a special chamber of itlos, “it being understood between the parties that, if any objection to jurisdiction or admissibility were to be raised before the special chamber, it shall be dealt with together with the merits.”553 The Special Chamber was formed by itlos pursuant to the request of the parties.554 As of 28 February 2015, this case is still pending. .

552 itlos, Order of 12 January 2015, “whereas” 1. 553 Minutes of Consultations by the President of itlos with Representatives of Ghana and Côte d’Ivoire under article 3 of Annex vii unclos (para. 3) as reproduced by itlos Order, cit., “whereas” 3. 554 Order, cit., “whereas” 7 to 9 and operative paragraphs.

200

chapter 1

3.2.2 Forum Prorogatum In the same way that itlos jurisdiction may proceed from an ad hoc agreement (special agreement or compromis) it is also possible that, in certain cases, that competence is the result of a post hoc consent, producing the so-called forum prorogatum. By virtue of this, the defendant consents to the competence of a court after the application has been filed on the basis of an imperfect or nonexistent title to jurisdiction.555 Admitted by longstanding jurisprudence both in the Permanent Court of International Justice556 and the International Court of Justice,557 who included it in its Rules of 1978,558 the principle of forum prorogatum is based on the non-formalistic conception of consent. 559 As Casado points out, the consent may be shown not only expressly, like in the Corfu Channel case, but also through actes concluants from which that consent may be unequivocally deduced. An example of this might be responding to the application on the merits without any reservation as to the jurisdiction of the tribunal.560 As to its effects, issuance of the forum prorogatum, apart from providing the court with jurisdiction, prevents the defendant from subsequently retracting its content. This is all in keeping with another long-standing principle, that of estoppel.561 555 Espaliú Berdud, C., Desarrollos jurisprudenciales y práctica reciente en la jurisdicción contenciosa de la Corte Internacional de Justicia, Dykinson, Madrid, 2000, p. 129. 556 Case on the Right of Minorities in Upper Silesia (cpji, Series A, n° 15). 557 See, for example, the Judgments of icj in the cases on the Corfu Channel, Haya de la Torre and Anglo-Iranian, a sensu contrario, all of which are analysed by Casado (cit., pp. 31 ss). 558 Article 38, paragraphs 2 and 5: “2. The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based (…) 5. When the Applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case.” Emphasis added. 559 As the icj says in the Corfu Channel case, “alors que le consentement des parties confere juridiction a la Cour, ni le Statut ni le Réglement n’exigent que ce consentement s’exprime dans une forme determinée”. (cij Recueil, 1947–1948, p. 27). 560 Casado, cit., pp. 31 ss. That was the situation, for example, in the Haya de la Torre case, Judgment of 13 June 1951 (cij Recueil, 1951, p. 78). A contrario, in the Anglo Iranian case, the Goverment of Iran, although responding to different points on the merits rised by the plaintiff, “consistently denied the jurisdiction of the Court” (icj Reports, 1952, p. 114). Against the non-express version of the forum prorogatum, see the Disenting Opinion of Judge Max Huber in the Upper Silesia case before the pcij. 561 Upper Silesia case, p. 26, as quoted by Casado (cit. p. 34). See also the Judgment of the Court in the Corfu Channel case, p. 27, quoted by the same scholar. On the need of a

Principal Jurisdiction

201

Regarding the Hamburg Tribunal, article 38 of the icj Rules is replicated in article 54 paragraphs 2 and 5 of itlos Rules. It states: 2. The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Tribunal is said to be based; it shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based. (…) 5. When the applicant proposes to found the jurisdiction of the Tribunal upon a consent thereto yet to be given or manifested by the party against which the application is made, the application shall be transmitted to that party. It shall not however be entered in the List of cases, nor any action be taken in the proceedings, unless and until the party against which such application is made consents to the jurisdiction of the Tribunal for the purposes of the case. In dealing with disputes on the interpretation or application of unclos, it seems clear that the forum prorogatum principle might apply both to interState disputes and to those where one of the parties is an Annex ix international organization. Accordingly, for example, one State could invite another to use itlos to settle a dispute excluded from the compulsory settlement system either by article 297 or by a declaration made pursuant to article 298, as well as a dispute corresponding to Annex vii arbitration by reason of its residual compulsory jurisdiction.562 Conversely, entities or persons that figure in article 187, are all submitted to the compulsory jurisdiction of the Seabed Disputes Chamber, with the sole exception of the binding commercial arbitration of article 188. Hence, the application of the forum prorogatum principle, if admitted, would not seem to be particularly relevant in practice. Could this way be used to submit a dispute concerning binding commercial arbitration to the Seabed Dispute Chamber directly? If admitted, this is perhaps the only case in which forum prorogatum might be accessible to private entities or persons (individuals). However, matters become more complicated when a question of forum prorogatum comes before itlos when dealing with disputes outside of the scope of unclos. Clearly there are various hypotheses, given the types of disputes c­ onsent, the absence of formalism and the irrevokability of the consent already given, see Bedjaoui, M. and Ouguergouz, F., “Le forum prorogatum devant la Cour internationale de Justice: les ressources d’une institution ou la face cachée du consensualisme”, Annuaire Africain de Droit International, vol. 5, 1997, pp. 91–114. 562 Article 287. 3 and 5.

202

chapter 1

and the entities hypothetically opposing one another.563 In any case, even though it is itlos that obviously determines its own competence, case-bycase, account must be taken to the fact that its competence has an objective range, both in material and personal jurisdiction. Therefore, disputes surpassing the ratione materiae jurisdiction of the Tribunal, or raised between entities or persons without access to it, are not susceptible to that kind of agreement. 563 For example, a dispute between States on the interpretation or application of a treaty related to the purposes of the 1982 Convention is not the same as a dispute between a State and an individual on an agreement they have reached.

chapter 2

Incidental (Accessory) Jurisdiction 1 Introduction Having analyzed the principal jurisdiction of the Tribunal (mainline jurisdiction or jurisdiction on the merits) attention must now be paid to its incidental or accessory jurisdiction. By exclusion, this incidental competence covers issues other than the principal dispute, although directly or indirectly linked to it, and, as the case may be, susceptible to a specific decision, whether it be part of, or separated from, the judgment. Terminologically speaking, the adjectives “accessory” and “incidental” will be used as synonyms.1 In my opinion, it is possible to distinguish a slight difference between one and the other. In this respect, it is true that, in dealing with the jurisdiction of the International Court of Justice, the use of the word “incidental” is frequent,2 although the term “accessory” is also used. The word “incidental” is also found in the Rules of the International Tribunal for the Law of the Sea, in which its section dealing with the majority of these proceedings (arts. 89–106) is entitled “Incidental Proceedings.” Some judges of the Hamburg Tribunal also use this expression in their academic works3 while others use the alternate as well.4 Without putting into question the choice of the word “incidental” when referring to this type of jurisdiction, I find preferable the term “accessory” as being more accurate than the other. In my opinion, while the word “accessory” may univocally designate the whole of this jurisdiction, the term “incidental” seems to designate not only the whole but also, more precisely, a particular part of the competence which is defined by its own sub-set of characteristics. Thus, “incidental” jurisdiction, like “accessory,” may mean the competence to deal with all issues that 1 The online Oxford English Dictionary defines “accessory,” inter alia, as “(noun) a thing which can be added to something else in order to make it more useful, versatile or attractive (…), and (adjective) contributing to or aiding an activity or process in a minor way; subsidiary or supplementary.” 2 See, for example, Rosenne, S., The World Court, What is and How it Works, 5 ed., Nihjoff, Dordretch, Boston, London, 1995, p. 81; Pastor Ridruejo, J.A., Curso de Derecho Internacional Público y Organizaciones Internacionales, 9ª ed., Tecnos, Madrid, 2003, p. 713. 3 See, for example, Eiriksson, The International Tribunal for the Law of the Sea, Nijhoff, The Hague, London, Boston, 2000, p. 133. 4 See, for example, Treves, T., “The Jurisdiction of the International Tribunal for the Law of the Sea,” Indian Journal of International Law, vol. 37 (3), 1997, p. 402.

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004200999_004

204

chapter 2

are not a part of the principal or mainline dispute (or point, in advisory jurisdiction). However, the term “incidental” jurisdiction can also allude, in particular, to the competence to settle incidental issues through incidental proceedings. As we shall see below, the said incidental questions are endowed with distinct properties that make them different from the remaining issues that are settled by the Tribunal within the framework of its accessory jurisdiction. In this respect, not all questions decided by itlos in the exercise of its accessory competence may be regarded, strictly speaking, as incidental questions. The power of itlos to decide on its own competence when such competence is not questioned by the parties; or its power to ordinarily conduct the proceedings in the absence of disagreement about the particular step to be followed; or to clarify the content of a judgment, inter alia, these are all examples of its accessory jurisdiction without instituting (nor opening) incidental proceedings. On the other hand, there are other manifestations of its power, such as its jurisdiction to decide on a request for provisional measures, that must be dealt with in incidental proceedings. For this reason, the power of the Hamburg Tribunal to decide the latter will be called incidental jurisdiction stricto sensu in the paragraphs below. Whatever the name, different manifestations of accessory jurisdiction have the two following features in common. Firstly, unlike principal jurisdiction, which is associated with “direct” consent,5 accessory jurisdiction doesn’t need direct or explicit consent by the parties; the consent is implicit in the creation of the tribunal or court itself. In this respect, these powers are inherent to the judicial institution’s own existence to the point of constituting a real conditio sine qua non and thus, essential, for it to comply with the functions for which it was created. That is the reason why, despite the fact that those powers are often explicitly recognized, they correspond to the tribunal even when they don’t appear in any text. In second place, accessory jurisdiction, as its name suggests, helps or assists to principal jurisdiction, on which it depends and to which it is connected, carrying out a secondary function in respect to it. Nonetheless, that dependence, accessoriness, subsidiarity or “incidentallity” must be understood in accurate terms: it is not, strictly speaking, that accessory jurisdiction depends on the principal to the point that if the latter ­dis­appeared the former would cease to exist as well;6 it is, more accurately understood, that accessory jurisdiction makes sense only because principal  jurisdiction exists, as an auxiliary tool for implementation. The competence de la competence makes sense in determining whether the tribunal has 5 The term “direct” is used by Rosenne, cit., p. 81. 6 Eiriksson, cit., p. 133.

Incidental (accessory) Jurisdiction

205

jurisdiction to deal with the principal case, the competence for interpreting the judgment makes sense when attempting to clarify the outcome of the main case, etc. In fact, as Eiriksson admits, a significant part of accessory jurisdiction occurs prior to the onset of principle jurisdiction and is exercised to determine whether or not the Tribunal is competent to deal with the merits.7 In view of the above, the following may be considered as manifestations of the accessory jurisdiction of itlos: 1.

The competence to decide on its own jurisdiction (Competence de la competence). 2. The power to conduct and direct the proceedings. 3. The incidental jurisdiction stricto sensu, which encompasses: the jurisdiction in respect to provisional or precautionary measures; the competence to decide through preliminary proceedings whether or not the claim constitutes an abuse of legal process; the competence to decide on preliminary objections; the competence to decide whether or not the question posed through a counter-claim should be joined to the original proceedings; the competence to grant or refuse permission to intervene; and the competence to decide on the continuation of the proceedings in case of discontinuance. 4. The jurisdiction that could be called “subsequent to the judgment” because it is developed after the final decision on the case. It includes the Tribunal’s capacity to decide on: the request for interpreting the judgment, the request for its revision, and the adoption of measures concerning the execution of the judgment. It is worth noting here that, in addition to the pages that follow, several aspects of the incidental jurisdiction of itlos in prompt release proceedings, both in general and in particular cases, are treated in the previous chapter, given the special nature of these proceedings. 2

Competence de la Competence

One of the classic manifestations of the accessory jurisdiction of an inter­ national court or tribunal is the so-called competence de la competence. Some of its particular facets are referred to in several articles within unclos Convention, in the Tribunal’s Statute and in its Rules. In particular, article 7 Eiriksson, cit.

206

chapter 2

288.4, which follows article 36.6 of the icj Statute, asserts that: “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.” This provision was also specially introduced into the Rules of the International Tribunal for the Law of the Sea, article 58, thus covering a gap in the itlos Statute, where no mention is made of this.8 In the absence of the defendant, article 28 of the Statute, likewise following article 53 of the icj Statute, says: “When one of the parties does not appear before the Tribunal or fails to defend its case, the other party may request the Tribunal to continue the proceedings and make its decision. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its decision, the Tribunal must satisfy itself not only that it has jurisdiction over the dispute, but also that the claim is well founded in fact and law.”9 Finally, dealing with provisional measures, article 290.5 unclos, which is referred to in article 25 st, compels itlos to verify that, “prima facie the (arbitral) tribunal which is to be constituted would have jurisdiction [to entertain the case] (…).” In this event, accordingly, itlos not only verifies its own competence to prescribe the requested provisional measures, but additionally, although provisionally (prima facie), the jurisdiction of the arbitral tribunal which will finally deal with the case. Nonetheless, an argument that would support the competence de la competence of itlos based exclusively on the provisions reproduced above, particularly on article 288.4, would not be, in my view, entirely correct. The Convention, along with the Tribunal’s Statute and its Rules recognize very specific manifestations rather than the totality of its competence de la competence. Its extent clearly surpasses what is expressly regulated by those instruments. The general recognition of the competence de la competence of itlos, more than from the provisions above-mentioned, stems from general international customary law  where this legal figure, inherent to judicial functioning, relies on solid

8 Probably the omission comes from the understanding that article 288.4 serves that function. However, as explained in Chapter 1, block 2, this assumption is not correct in my view. The Tribunal’s Statute is defined in Annex vi of the Convention, not in article 288. This provision refers to four tribunals, two of them permanent and two of them arbitral. If it were to be understood that article 288 defines itlos jurisdiction as a whole, even in regard to this particular situation, it should likewise apply for the three remaining tribunals as well. It is evident in this respect that the competence de la competence of the International Court of Justice does not proceed from article 288 of the United Nations Convention on the Law of the Sea, but from its Statute and general international law. The same must be said in respect to itlos, in this case, despite the absence of a specific provision in its Statute, as has been pointed out. 9 Emphasis added.

Incidental (accessory) Jurisdiction

207

roots. It has been recognized several times by the icj, for example in the Nottebohm case, where it states: Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently accepted by general international law in the matter of international arbitration. Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction (…). This principle, which is accepted by general international law in the matter of arbitration, assumes particular force when the international tribunal is no longer an arbitral tribunal constituted by virtue of a special agreement between the parties for the purpose of adjudicating on a particular dispute, but is an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation, and is, in the present case, the principal judicial organ of the United Nations.10 To go beyond the contents of those particular provisions of the Convention means, in this sense, that the Tribunal will verify its own competence even when there is no objection by a party, be that party present or absent, and in reference to both personal and material jurisdiction. In the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, The Hague Court expressed itself on the issue in these clear terms: “The Court must, in each case submitted to it, verify whether it has jurisdiction to deal with the case and, if necessary, whether the application is admissible, and such objections as are raised by the Respondent may be useful to clarify the legal situation.”11 Obviously, the greatest difficulty in this respect is to determine the precise range of that power to verify jurisdiction and, in particular, the nuance implied in the phrase “(…) in the absence of any agreement to the contrary” to which the icj alluded in the Nottebohn Judgment. In this respect, can the parties agree that the chosen court or tribunal is not allowed to verify its own jurisdiction? On the other hand, is this power of verification compatible (and to what extent) with the principle of forum prorogatum? I agree with Espaliú when he maintains, while analyzing the icj, that the court is not bound either by the juridical qualifications made by the parties nor by the agreement they might 10 11

Judgment, 18 November 1953 (cij Recueil, 1953, p. 119). Judgment, 11 July 1996, para.46 (cij Recueil, 1996, p. 622).

208

chapter 2

reach if they surpass certain limits, for example, violating essential norms of international law, the Court’s Statute or its Rules. In such situations, the court (the Tribunal in our work), must decline its jurisdiction.12 The International Tribunal for the Law of the Sea clearly shares this broader conception of competence de la competence without prejudice that, in particular cases – and here I am referring to the Grand Prince – there may have been division in the voting as to the precise range of that power. To date, the unclos provision empowering the court or tribunal to decide on its own competence when there is a disagreement as to whether it has jurisdiction, has been constantly applied by itlos to almost every case on its docket with the logic exceptions of the Swordfish case and the Chaisiri Reefer 2, both subject to discontinuance. The cases Saiga, Camouco, Monte Confurco, Grand Prince, Juno Trader, Hoshinmaru and Tomimaru, among those involving prompt release, the cases of the Southern Bluefin Tuna, Saiga 2, mox Plant, Strait of Johor, ara Libertad and Arctic Sunrise, among those regarding provisional measures, and the M/V Louisa, both in its provisional measures phase and in its final judgment of 28 May 2013, are examples of this practice. An extensive discussion on the jurisdiction of itlos to deal with the dispute was held in the M/V Louisa case. However, in its Judgment of 28 May 2013, after considering the provisions invoked by the applicant (Saint Vincent and the Grenadines) as the basis of its competence13 and the objections raised by the respondent (Spain) to all of them, the Hamburg Tribunal concluded that “no dispute concerning the interpretation or application of the Convention existed between the Parties at the time of the filing of the Application and that, therefore, it has no jurisdiction ratione materiae to entertain the present case.”14 In line with this broader understanding of its competence de la competence, itlos has invariably followed the practice of verifying its own competence. It has done so in the absence of any objection – Volga case15 – in relying upon arguments different than those raised by the respondent in its objections – Grand Prince – and even in absentia, when the respondent refuses to participate in the proceedings before it – Arctic Sunrise. Furthermore, the power of the Hamburg Tribunal to verify its own jurisdiction has been exercised by itlos even when its jurisdiction comes from a special agreement (compromis). The Saiga 2 case and the Bangladesh/Myanmar Delimitation case are two good examples of this practice. 12 Espaliú, Desarrollos jurisprudenciales y práctica reciente..., cit., pp. 69 and 70. 13 Articles 73, 87, 226, 227 and 303, on the one hand, and article 300, untimely. 14 Paragraph 151 and operative paragraph (n. 160). This decision was taken by 19 votes to 2. 15 See Judgment, paras. 56 and 57.

Incidental (accessory) Jurisdiction

209

In the Saiga 2 case, Guinea and Saint Vincent & The Grenadines convened, by special agreement, to transfer their dispute from an arbitration vii to the International Tribunal for the Law of the Sea. The thing is that, despite having entered the case in itlos Docket by means of an express agreement, and despite the fact that Guinea – even having the right to do so – did not reaffirm its objection to the Tribunal’s competence that it had formulated under article 297.3 in the provisional measures proceeding, itlos, in its Judgment of 1 July 1999, expressly stated that: “Nevertheless, the Tribunal must satisfy itself that it has jurisdiction to deal with the case as submitted.”16 Accordingly, it found itself with jurisdiction to deal with the case on the basis of the aforementioned special agreement “together with articles 286, 287 and 288 of the Convention.”17 A similar line of reasoning is followed by the Hamburg Tribunal in its Judgment of 14 April 2014, in the M/V Virginia G case, also submitted to it by means of a special agreement.18 Furthermore, regarding the case on Delimitation on the Bay of Bengal (Bangladesh/Myanmar) the power of itlos as regards its competence de la competence was exercised broadly as it reviewed its own jurisdiction and the mutual consent by the parties19 and had to decide on its own jurisdiction for the delimitation of the continental shelf beyond 200 nautical miles in view of the objection raised by Myanmar.20 In this respect, one of the most significant examples regarding the competence de la competence of itlos is perhaps the Grand Prince dispute. In this case, the Hamburg Tribunal, examining its own jurisdiction ex officio, declared that it lacked jurisdiction to deal with the dispute, and to do so, it relied on reasons that were not alleged by the defendant, whose objections remained unanswered by the Tribunal. This decision divided the Tribunal. There were twelve judges (including the ad hoc judge appointed by France) ruling in the majority against a significant dissenting minority of nine judges. It is worth reproducing here its most relevant paragraphs assuming this broader view of the Tribunal’s powers in relation to competence de la competence: 76. The question arises as to whether the registration of the vessel in Belize continued following the expiry of the provisional patent of n ­ avigation 16 17 18 19 20

Para. 40. Para. 43. See paras. 85 to 92. Judgment of 14 March 2012, paras. 41 to 50. itlos finally found that it had jurisdiction also in this particular point (Judgment of 14 March 2012, paras. 341 to 394 and 506.2).

210

chapter 2

or, as the case may be, was revived following the de-registration of the vessel with effect from 4 January 2001. The Tribunal considers that the documents placed before it by the parties disclose on their face contradictions and inconsistencies in matters relating to expiration of the provisional patent of navigation, de-registration of the vessel and suspension of de-registration, all of which give rise to reasonable doubt as to the status of the vessel when the Application was made. This doubt has a bearing on the question of jurisdiction of the Tribunal. 77. According to the settled jurisprudence in international adjudication, a tribunal must at all times be satisfied that it has jurisdiction to entertain the case submitted to it. For this purpose, it has the power to examine proprio motu the basis of its jurisdiction. 78. This Tribunal observed in the M/V “saiga” (No. 2) Case that, even where there is no disagreement between the parties regarding the jurisdiction of the Tribunal, “the Tribunal must satisfy itself that it has jurisdiction to deal with the case as submitted” (Judgment of 1 July 1999, paragraph 40). Likewise, the International Court of Justice has observed: The Court must however always be satisfied that it has jurisdiction, and must if necessary go into the matter proprio motu. (Appeal Relating to the Jurisdiction of the icao Council, Judgment, i.c.j. Reports 1972, p. 46 at p. 52). 79. As a consequence, the Tribunal possesses the right to deal with all aspects of the question of jurisdiction, whether or not they have been expressly raised by the parties.21 As anticipated above, the international jurisprudence imposing the court or tribunal to verify, proprio motu, that it has jurisdiction to entertain the case submitted to it, has been also applied by itlos in the absence of a party to defend its position. It occurred in the Arctic Sunrise case, where the Russian Federation refused to participate in the provisional measures proceedings before itlos upon the argument that “it [did] not accept the arbitration procedure under Annex vii to the Convention initiated by the Netherlands.”22 Despite the refusal of the Russian Federation to participate in the case, the Hamburg Tribunal moved forward and decided on the provisional measures’ request, submitted by the Netherlands pending ­ the constitution of the Annex vii arbitral tribunal. But, again in line with 21 22

Judgment of 20 April 2001. Emphasis added. itlos, Order on Provisional Measures, 22 November 2013, para.9.

Incidental (accessory) Jurisdiction

211

the said jurisprudence, itlos recalled that “before prescribing provisional ­measures under article 290, paragraph 5, of the Convention, the Tribunal must satisfy itself that prima facie the Annex vii arbitral tribunal would have jurisdiction.”23 3

Conduct of Proceedings

Besides deciding on its own jurisdiction, the Tribunal is empowered, like any other international court, to conduct the case submitted to it in its different stages, thus steering its passage from one phase to the next, taking decisions on events that emerge during the course of the proceedings – for example, the practice of further formalities or the request for reports or clarifications from the parties – and accepting or rejecting, as the case may be, whatever petitions are made by the parties, like the proposal and practice of evidence, the extension of deadlines, determinations on the admission of experts, etc. Although the power to conduct proceedings as a whole and the empowerment of specific mechanisms or procedures derived from it are expressly recognized for the most part in the Statute, in the Rules and in other complementary norms adopted by the Tribunal itself, the fact is that they are powers inherent to the Tribunal’s activity, and would be so even if they were not explicitly set down in writing. Regardless of that, they reaffirm those powers for more clarity. The two most important provisions of the itlos Statute that recognize Hamburg Tribunal’s power to manage the proceedings are: Article 16. Rules of the Tribunal. The Tribunal shall frame rules for carrying out its functions. In particular, it shall lay down rules of procedure.24 Article 27. Conduct of case. The Tribunal shall make orders for the conduct of the case, decide the form and time in which each party must conclude its arguments, and make all arrangements connected with the taking of evidence.

23 24

Order, cit., para.58. See also paras. 59–71. There is a slight difference between the English and the Spanish text of article 16 st. While both texts use the word “Rules” (“Reglamento” in Spanish) in their titles, the body of the Spanish text when using the word “reglamento” again, lets it stand on its own, while the English text more precisely alludes to the “rules of procedure.”

212 4

chapter 2

Incidental Jurisdiction Stricto Sensu

By this expression we refer to the Tribunal’s power to entertain incidental questions through incidental proceedings. As mentioned before, incidental questions possess their own characteristics which differentiate them from all the other issues that may be subject to the accessory jurisdiction of the Tribunal; that is the reason why, in our view, they can be treated separately. In addressing this issue, Acosta, who bases his findings on Almagro, identifies the following as distinctive marks of an incidental question: (1) it is a disputed point that differs from the main or substantive point of the principal dispute (the point on the merits); (2) it is a point that is connected to that main or substantive point submitted to the tribunal or court; (3) it is an issue that must be settled specifically; (4) the settlement of the incidental issue must occur previous to or simultaneously with that of the principal point on the merits; and (5) the incidental issue has an autonomous procedural iter (the incidental proceedings).25 Taking into account the aforementioned characteristics, Acosta lists, as incidental issues in the ambit of itlos jurisdiction, the following: the intervention (arts. 31 and 32 st), the preliminary objections (art. 294.3 unclos), the preliminary proceedings (art. 294.1) and the provisional measures (art. 290).26 He excludes (apart from the prompt release procedures obviously27) counterclaims and discontinuance, which the Rules place alongside the first four under the title “incidental proceedings,” because he considers they are not actually incidental points nor are they dealt with by the Tribunal through incidental proceedings.28 For my part, I agree that, globally speaking, neither counter-claims nor discontinuance are incidental points. However, as we shall see below, some aspects of them constitute authentic incidental issues to be dealt with through incidental proceedings.29

25

Acosta Estévez, J.B., El Tribunal Internacional del Derecho del Mar, Asociación para las Naciones Unidas en España, Barcelona, 2002, p. 124; Almagro Nosete, J., Derecho procesal, vol. i, Tirant Lo Blanch, Valencia, 1988, p. 474. 26 Acosta, cit. 27 As itlos recalls in the Saiga 1 case, prompt release proceedings are “not incidental to proceedings on the merits as are the proceedings for interim measures set out in article 290 (…). They are separate, independent proceedings.” (Judgment of 4 December 1997, para. 50). 28 Acosta, cit., p. 125. 29 Also frequently mentioned here is the extra-judicial agreement, but in my view it is not properly an incidental point because the Tribunal decides nothing but the mere declaration that the proceedings are terminated.

Incidental (accessory) Jurisdiction

213

Jurisdiction on Provisional Measures (Articles 25 st, 290 unclos and 89 to 95 rt) 4.1.1 Provisional Measures in General One of the most typical characteristics of the incidental jurisdiction of an international court or tribunal such as the International Tribunal for the Law of the Sea is its power to prescribe provisional measures. Generally speaking, provisional measures are those that serve to neutralize any adverse effects that the length of time over which proceedings develop could have over the effectiveness of the judgment to be taken or the position of the litigants in respect to their situation previous to the beginning of the proceedings.30 As Casado affirms, they are characterized by the marks of provisionality, insofar as they are not final and may be changed by the outcome of the procedure; instrumentality, given the relation that they must keep with the final judgment in order to preserve the effectiveness of its content (and the rights of the parties thereto), and urgency (or perentority), that is, the existence of a particular danger for the subject of the dispute (periculum in mora).31 4.1

30

31

Provisional measures have also been defined as follows: “Technique juridique permettant de stériliser la situation entre deux parties et d’eviter une aggravation du litige” (Kdhir, M., Dictionaire juridique de la Cour internationale de Justice, Bruylant, Bruxelles, 2000, p. 229). In English, the word “Provisional Measures” focuses on their provisional nature, while in French, the wording “Mesures conservatoires” focuses on the preventive nature of the measures as they mostly intend to prevent the judgment from becoming useless because of a fact taking place during the proceedings; in Spanish, both terms “medidas provisionales” and “medidas cautelares” are often used as synonyms. Technically speaking, a slight difference exists between them: while all measures seeking to preserve the usefulness of the judgment are of a provisional nature not all provisional measures have necessarily such a preservative purpose. There are measures which, regardless of the result of the case, are prescribed to provisionally rule on a situation during the proceedings not to guarantee the content of the judgment. For example, this is the situation in domestic courts when dealing with the custody of children for the duration of the proceedings in cases of divorce. In such situations, their care is guaranteed either by their father or their mother and clearly no danger exists for the children. Therefore, the decision to be taken by the court in this regard is provisional by its nature, but its main purpose is not necessarily to ensure the effectiveness of the judgment but just to regulate a particular situation during the proceedings. Other examples of this kind in International Law may be found as well. For instance, this would be the case of a disputed object (for example, a painting masterpiece) whose conservation is not in danger because both parties in the dispute appreciate it and by no means intend to destroy it whatever the final decision be. Casado Raigón, La jurisdicción contenciosa de la Corte Internacional de Justicia. Estudio de las reglas de su competencia, Servicio de Publicaciones de la Universidad de Córdoba, Córdoba, 1987 p. 24. See also Acosta Estévez, J.B., El Tribunal Internacional del Derecho del Mar, Asociación para las Naciones Unidas en España, Barcelona, 2002, p. 146.

214

chapter 2

As a manifestation of its incidental jurisdiction, the power of an international tribunal to adopt provisional measures is inherent to its own existence, up to the point that even if there is not an expressly written recognition of such a power, the court or tribunal possesses it.32 The reason for conferring this power to courts and tribunals is mainly that, from the moment in which the parties submit the dispute and put the case in the court’s hands, until the conclusion of the procedure, the only body capable of deciding on any matter which might affect the object of the case (and, accordingly, the content of the judgment) while at the same moment guaranteeing the litigants’ rights, is the court or tribunal itself.33 In this respect, it is an inbuilt quality, an element intrinsic to the exercise of judicial function and absolutely necessary in attaining the ultimate goal for any court or tribunal: justice. This inherent ability to adopt provisional measures, that an international court or tribunal possesses, is one thing, and another issue altogether is the form in which this power should be exercised and its particular content. Yet, the creators of these judicial institutions are free to define, specify and shape the form and content of such jurisdiction to whatever extent is necessary. And this freedom is clearly exercised through their respective statutes and/or constitutive treaties. This is precisely what happened with the Statute of the International Tribunal for the Law of the Sea, analyzed below, just as it had previously occurred with the Statute of the International Court of Justice. As incidental, the jurisdiction of a court or tribunal to decide on provisional measures depends on its principal jurisdiction to deal with the merits. Nevertheless, this dependence is not total and absolute. It may happen that the court or tribunal, after considering that it prima facie has jurisdiction to entertain the case and after deciding provisional measures, finally finds that it 32

33

In this respect, see Abad Castelos, M., El Tribunal Internacional de Justicia y la Protección Cautelar de los Derechos de los Estados, Dykinson, Madrid, 2002, pp. 62 ss. Oellers-Frahm affirms that “(…) a State which voluntarily has accepted binding jurisdiction of an international court or tribunal has to accept, as equally binding, all those steps which the court or tribunal considers necessary in order to reach its judgment. This line of argument almost inevitably leads to the conclusion that international courts and tribunals have an implied power to indicate interim measures even in a case where their statutes do not explicitly provide for such a power” (Ollers-Frahm, K., in “Discussion,” Interim Measures of Indicated by International Courts (R. Bernhardt, ed.), Max Planck Institut für ausländisches öffentliches Recht und Volerrecht, Springer-Verlag, Heidelberg, 1994, pp. 119 ss (p. 146) [Quoted by Abad, cit., p. 69, note 23]). During the proceedings, the subject matter of the dispute remains somehow “frozen,” for jurisdictional purposes (perpetuatio jurisdictionis) and it is not possible to introduce substantial changes to it (prohibition of the mutatio libelli). See, in this respect, the Judgment of itlos in the M/V Louisa case, paras. 138 and following. See also para. 96.

Incidental (accessory) Jurisdiction

215

lacks jurisdiction to deal with the merits. In such a situation, its previous jurisdiction to indicate or prescribe provisional measures does not become invalid. Despite Judge Mozorov’s Dissenting Opinion on the icj Order of 11 September 1976 in the Aegean Sea Continental Shelf case,34 when the court is called upon to decide whether or not to adopt provisional measures, it is not necessary, to have already determined, a priori, and definitively, the jurisdiction of such a forum to deal with the merits of the case. As Casado recalls, to wait so long, would cause the measures at in question to lose their rationale.35 A different thing would be for the court or tribunal to completely ignore the jurisdiction on the merits. The practice of The Hague Court (on which itlos is based) is to examine provisionally, prima facie, its own jurisdiction without anticipating a final solution on it. In this respect, as the icj states: “on a request for provisional measures the Court need not, before indicating them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to act under Article 41 of the Statute [that is, to indicate such provisional measures] if the absence of jurisdiction on the merits is manifest.”36 Insofar as the competence of a court or tribunal to prescribe provisional measures finds the rationale for its own existence in the dispute on the merits, the former is then to some degree dependent on the latter. Nevertheless, it is one thing for the former to derive, depend on or be a consequence of the tribunal’s jurisdiction to settle the main dispute, upon which the court’s jurisdiction justifies its own existence, yet it is quite another for incidental jurisdiction to be so absolutely dependent on the jurisdiction on the merits that it may end up lacking any kind of autonomy. The jurisdiction regarding provisional measures depends on the jurisdiction regarding the merits because, without the latter, the former loses its purpose; this is the reason why it makes no sense to adopt those measures when the absence of jurisdiction on the merits is manifest. However, the jurisdiction on provisional measures is not totally dependent on the jurisdiction to entertain the case up to the point of absolutely lacking autonomy. If that were the case, a definitive pre-determination of jurisdiction on the merits would be mandatory for deciding on provisional measures, but during the lapse of time the court or tribunal need to take a decision in this respect, both the object of the case and the interim situations to be secured during the proceedings would then be in jeopardy. In this sense, by deciding prima facie on its jurisdiction on the merits, the court or tribunal can decide on the requested

34 icj Reports, 1976, pp. 22–23. 35 Casado, La jurisdicción contenciosa…, cit., pp. 25 and 26. 36 Order of 17 August 1972, Request for the Indication of Interim Measures of Protection, Fisheries Jurisdiction Case (United Kingdom v. Iceland) (icj Reports, 1972, p. 15, para. 15).

216

chapter 2

provisional measures even if it were to eventually decide at some later stage that it lacked jurisdiction to deal with the merits.37 4.1.2 Jurisdiction of the International Tribunal for the Law of the Sea to prescribe Provisional Measures Having analyzed the competence of international courts and tribunals in ­general to adopt provisional measures, we shall now turn specifically to the jurisdiction of the International Tribunal for the Law of the Sea. To this end, the analysis will be divided into three parts, each respectively dealing with the rules that govern it, the jurisdiction of itlos when it comes to prescribing provisional measures in disputes concerning the interpretation or appli­ cation  of the 1982 Convention, and the jurisdiction of itlos in prescribing ­provisional measures in respect to disputes concerning other international treaties. 4.1.2.1 Regulation Regulation is contained in article 25 of the Statute, according to which (reversing the order of its sentences): “the Tribunal and its Seabed Disputes Chamber shall have the power to prescribe provisional measures” “in accordance with article 290.” Pursuant to this provision: Article 290. Provisional measures 1. If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part xi, Section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision. 37

In fact, when a court or tribunal finally finds that it lacks jurisdiction to deal with the merits of a case, the measures are revoked ex nunc, not ex tunc; the last would be the logical solution if the tribunal adopted such measures lacking jurisdiction to adopt them. It is not rare that the tribunal which finds that it has jurisdiction to adopt provisional measures ends by finding that it finally has jurisdiction on the merits as well, but this does not always happen. On the other hand, the possibility for a respondent who objects to the jurisdiction of a court or tribunal, to request the adoption of provisional measures, ask in favour of the said minimum autonomy of the jurisdiction (see, for example, the case on  the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, icj Reports, 1993, pp. 341 and 342, para.34; see also in this respect, Espaliú Berdud, C., Desarrollos jurisprudenciales y práctica reciente en la jurisdicción contenciosa de la Corte Internacional de Justicia, Dykinson, Madrid, 2000, p. 314).

Incidental (accessory) Jurisdiction

217

2. Provisional measures may be modified or revoked as soon as the circumstances justifying them have changed or ceased to exist. 3. Provisional measures may be prescribed, modified or revoked under this article only at the request of a party to the dispute and after the parties have been given an opportunity to be heard. 4. The court or tribunal shall forthwith give notice to the parties to the dispute, and to such other States Parties as it considers appropriate, of the prescription, modification or revocation of provisional measures. 5. Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea or, with respect to activities in the Area, the Seabed Disputes Chamber, may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. Once constituted, the tribunal to which the dispute has been submitted may modify, revoke or affirm those provisional measures, acting in conformity with paragraphs 1 to 4. 6. The parties to the dispute shall comply promptly with any provisional measures prescribed under this article. The content of this provision refers not only to itlos but to any court or tribunal which might deal with a dispute concerning unclos. Although it is inspired by the regulation of the jurisdiction of the International Court of Justice, article 290 introduces a number of innovative differences in contrast to the latter. In the first place, the requirement that the court or tribunal considers that prima facie it has jurisdiction to entertain the case is now explicit, unlike the icj Statute, where it is not mentioned. Second, article 290 leaves no room for doubt as to whether the tribunal or court is obliged to answer requests about provisional measures, unlike the icj Statute and Rules whose respective texts leave the issue uncertain as to whether The Hague Court might discretionally refuse to answer. Third, it is also clear that, according to article 290, measures prescribed by the concerned court or tribunal are compulsory for the parties, who “shall comply promptly” with them. Accordingly, these terms overcome the ambiguity of the icj Statute in respect to the measures “indicated” by the Court (which remained unresolved until the icj Judgment in the La Grand case cleared the path38). Fourth, measures prescribed 38

As it is widely known, the icj in its Judgment of 27 June 2001, in the LaGrand case, literally stated: “In short, it is clear that none of the resources of interpretation referred to in the

218

chapter 2

in accordance with article 290 not only pursue a relative goal, to preserve the respective rights of the parties, but also, as the case may be, an absolute goal, erga omnes: to prevent serious harm to the marine environment. Fifth, provisional measures as mentioned in article 290 can only be prescribed, modified or revoked at the request of a party to the dispute. It is not possible, therefore, to be adopted ex officio as is allowed by the icj Rules.39 Finally, sixth, although article 290 refers equally to both international tribunals, its significance is rather different for each of them. In the case of the icj, its competence to dictate provisional measures in general is regulated in article 41 of its Statute, thus letting article 290 unclos, with its particularities, be applied only to disputes concerning the interpretation or application of said international treaty. Contrarily, in the case of itlos, article 25 of its Statute, with its reference to article 290 unclos, relies on this provision’s content to support the jurisdiction of the Hamburg Tribunal to prescribe provisional measures in general, and not only in relation to disputes concerning the interpretation or application of the 1982 Convention. 4.1.2.2 Disputes Concerning the Interpretation or Application of unclos Regarding the jurisdiction of itlos to prescribe provisional measures in disputes concerning the interpretation or application of the 1982 Convention, the three elements of provisionality, instrumentality and urgency mentioned above, along with article 290’s need for a request by one of the parties to the dispute, are clearly visible in the practice of itlos when dealing with provisional measures. To that end, the Law of the Sea Tribunal uses these rules to verify that there is a request, that such request is based upon a main procedure instituted before an arbitral tribunal or the own Hamburg Tribunal, the need for a preservation of the rights of the parties and the urgency of the situation (see, for example, the Order of 15 December of 2012, in the ara Libertad case, paras. 1 ss., 30 ss., 75 ss. and 81 ss., respectively). Let us next look separately to disputes submitted to itlos (art. 290.1) and disputes submitted to an arbitral tribunal pending its constitution (art. 290.5).

39

relevant articles of the Vienna Convention on the Law of Treaties, including the preparatory work, contradict the conclusions drawn from the terms of Article 41 read in their context and in the light of the object and purpose of the Statute. Thus, the Court has reached the conclusion that orders on provisional measures under Article 41 have binding effect” (para.109). See articles 41 icj st and 73 and 75 icj Rules. See also on this matter: Wolfrum, R., “Provisional Measures of the International Tribunal for the Law of the Sea,” Indian Journal of International Law, vol. 37 (3), 1997, pp. 420–434 (pp. 427 and 428); Gautier, Ph., “Mesures conservatoires, préjudice irréparable et protection de l’environnement,” in Liber amicorum Jean-Pierre Cot. Le procès international, Bruylant, Bruxelles, 2009, pp. 131–154.

Incidental (accessory) Jurisdiction

219

A. Concerning disputes submitted to itlos (art. 290.1), neither article 290 unclos nor the Rules of the Hamburg Tribunal define what should be understood by having “prima facie jurisdiction”; and just how, precisely, should the Tribunal carry out such a provisional jurisdictional test. It seems obvious, in this respect, that the prima facie consideration of its own jurisdiction is more superficial than the final consideration of that jurisdiction, that is to say, the consideration by the court or tribunal that it finally has (or has not) jurisdiction to deal with the merits of the case. But, on the other hand, it is deeper than the mere confirmation that the court or tribunal is the receiver of the application. In this regard, the Law of the Sea Convention has rightly preferred to leave the question open for the corresponding court or tribunal in handling particular considerations, case-by-case. In this respect, itlos seems to follow a standard slightly different in cases which are submitted to it (art. 290.1) compared with cases submitted to an arbitral tribunal whose constitution is pending (art. 290.5). To date, the practice of the Hamburg Tribunal in the cases submitted to it is limited to the Saiga 2 and the M/V Louisa cases. As regards the prima facie jurisdictional test, the Hamburg Tribunal, in its Order of 11 March 1998, on the request for provisional measures in the Saiga 2 case, expressly following the icj formulation, constrained itself to tracing out the minimum and maximum limits within which the referred jurisdictional test or verification must be situated. It states in this respect that: before prescribing provisional measures the Tribunal need not finally satisfy itself that it has jurisdiction on the merits of the case and yet it may not prescribe such measures unless the provisions invoked by the Applicant appear prima facie to afford a basis on which the jurisdiction of the Tribunal might be founded.40 As it is well known, in the Saiga 2 case Guinea objected to the jurisdiction of the Tribunal by alleging that the bunkering of fishing vessels constituted a situation that fell under the automatic exception of article 297.3. Its objection was responded to by Saint Vincent and the Grenadines which alleged that such an activity corresponded to the exercise of navigation and, accordingly, fell into the category of cases which should be submitted by article 297.1 to compulsory

40

Order of 11 March 1998, para. 29. See, for example, in the icj jurisprudence, the Order of 22 June 1973, in the Nuclear Tests case (Australia v. France), para. 13 (icj Reports, 1973, page 101).

220

chapter 2

procedures entailing binding decisions of the Convention.41 In so doing, a question which had been put forward in the previous Saiga case on prompt release was being re-introduced and would remain unresolved. The Tribunal considered it unnecessary to pronounce itself in this regard.42 In its Order on provisional measures, the Tribunal, again, refrained from ruling on the question, constraining itself to state that in that stage of the proceedings “it need not finally satisfy itself…” and concluded by saying that “in the present case article 297, paragraph 1, of the Convention, invoked by the Applicant, appears prima facie to afford a basis for the jurisdiction of the Tribunal.”43 As we have had occasion to discuss elsewhere in this work, Guinea did not repeat its objection in the jurisdictional discussion during the principal proceedings, even when it had reserved its right to do so. Accordingly, the Hamburg Tribunal considered, once more, that it was not necessary to pronounce itself on the matter. In its absence, we do not know what itlos considers the difference to be between the prima facie estimation of its jurisdiction during the provisional measures proceedings, and the final estimation of its competence at the time of deciding (or not) on the merits. Either way, what seems clear is that, at the time of determining its competence, prima facie, to prescribe provisional measures, the Tribunal, however much it is convinced that it has jurisdiction on the merits, does not appear willing to offer any more clues about its position than those strictly necessary, thereby avoiding any kind of pronouncement which could anticipate its final decision. Even less “informative” in this respect, is the second case in which the Hamburg Tribunal was called upon to decide on its prima facie jurisdiction in a dispute submitted to it: the M/V Louisa case. Despite the cataract of provisions alleged by the applicant, Saint Vincent and the Grenadines, who: 1/ claimed in its application that “the Tribunal has jurisdiction (…) pursuant to articles 73, 87, 226, 245, 290, 292 and 303,”44 2/ required itlos in its Request for provisional measures to declare that it “has jurisdiction under articles 287 and 290 of the Convention to hear the request for provisional measures concerning the detention (…) in breach of the Respondent’s obligations under various articles of the Convention, including 73 (…) 87 (…) 226 (…) 245 (…) and 303 41 Order of 11 March 1998, para. 27. 42 See itlos’ Judgment of 4 December 1997, in the Saiga case on prompt release, para. 50. As we have seen in block 3.1.1.4 of Chapter One, the question on the nature of bunkering (refueling) fishing vessels was finally resolved by itlos in its Judgment on the Virginia G case. 43 Order, cit., para.30. 44 Order of 23 December 2010, para.46.

Incidental (accessory) Jurisdiction

221

(…),”45 3/ maintained, during the hearings, that “prima facie jurisdiction could be established ‘on several grounds’,46 including articles 87, 245 and 303 of the Convention,”47 and 4/ requested itlos, in its final submissions for the provisional measures proceedings, to “declare that the Tribunal has jurisdiction under articles 287 and 290 of the Convention to hear the Request”48); itlos, in  a “somewhat succinct” reasoning,49 constrained itself, in its Order of 23 December 2010, to affirm that “it does not need to establish definitively the existence of the rights claimed by Saint Vincent and the Grenadines” and to repeat the formulation inaugurated in the Saiga 2 case that “before prescribing provisional measures the Tribunal need not finally satisfy itself that it has jurisdiction on the merits of the case and yet it may not prescribe such measures unless the provisions invoked by the Applicant appear prima facie to afford a basis on which the jurisdiction of the Tribunal might be founded.”50 It “jumps” directly to the conclusion: “for the above reasons, the Tribunal finds that it has prima facie jurisdiction over the dispute.”51 itlos is not very explicit either in its final Judgment on the case, of 28 May 2013, in which it limits itself to affirm that “the question of jurisdiction to deal with the merits of this case can be decided only after consideration of the written and oral proceedings and not on the basis of the decision it took on prima facie jurisdiction in connection with the Request for the prescription of provisional measures.”52 Accordingly, when a request for provisional measures is introduced for a dispute submitted to the International Tribunal for the Law of the Sea, the question as to the difference between the prima facie jurisdiction and the jurisdiction on the merits remains open and unanswered. In this respect, the path chosen by the Hamburg Tribunal in these two cases deserves some comments. Certainly, the almost complete absence of argument on the part of the Tribunal in this case is noteworthy, for example, if we compare it with the ­reasoning presented in its own Order on provisional measures in the ara Libertad case, to which we will return below. However, an overall view of itlos orders on provisional measures gives the impression that the Tribunal adjusts 45 46 47 48 49 50 51 52

Id., para.47. Emphasis added by the Tribunal. Order, cit., para.48. Id., para. 49. Dissenting Opinion of Judge Cot, para.19. Order, cit., para.69. See M/V saiga (n°. 2) (Saint Vincent and the Grenadines v. Guinea), Provisional Measures, Order of 11 March 1998, (itlos Reports, 1998, p. 24). Paragraph 70. Paragraph 92.

222

chapter 2

itself to the extent and intensity apparent in the respondent’s objections to admissibility and jurisdiction. In this respect, the Respondent in the M/V Louisa case focuses its objections on questions of admissibility, particularly regarding the absence of both the prior compulsory exchange of views imposed by article 283 and the exhaustion of local remedies referred to in article 295, but not, strictly speaking, on the issues of jurisdiction, as Ghana did in its objections in the ara Libertad case.53 As a consequence of this situation, the Hamburg Tribunal adjusts its focus on the Respondent’s position, thus constraining itself to consider (actually to note) that Spain maintained that its own arguments “point to the inexistence of prima facie jurisdiction of this Tribunal for the prescription of provisional measures,”54 but without entering into a further analysis of the provisions invoked by the Applicant as the basis of its jurisdiction to deal with the request. After pointing out that the Spanish silence does not mean acquiescence, Judge Wolfrum, in his Dissenting Opinion to the Order, underlines that “it is sufficient but also necessary [for the Tribunal] to establish that it has jurisdiction prima facie.”55 In addition, the German Judge remarks that “it is well established in the international jurisprudence of this Tribunal and of the icj that jurisdiction has to be established proprio motu. Even if the Respondent had not argued jurisdiction at all, it would have been for the Tribunal to establish that it has prima facie jurisdiction.”56 For his part, Judge Cot affirms in his Dissenting Opinion that he “would have expected the Tribunal to examine each of the provisions invoked by the Applicant in support of its claim. If there is no article of the Convention to be interpreted, there is no possible interpretation and no plausible right under the Convention.”57 Along this same line, Judge Golitsyn remarks: “It is not sufficient to make general claims regarding the alleged breach by the Respondent of its obligations ‘under ­various articles of the Convention’ or to make a statement that ‘the Respondent has breached its obligations under the Convention’ as a whole.”58 I share this criticism expressed by the aforementioned Judges in this paragraph. 53

54

55 56 57 58

In fact, in its Response, in the section entitled “Prima facie jurisdiction,” as regards the alleged violation of articles 73, 87, 226, 245 and 303 unclos, Spain states that it “could understand that – from an exclusively substantive perspective – the alleging of those provisions could constitute the basis for a prima facie jurisdiction of this Tribunal.” itlos locates this allegation by Spain solely “during the hearing” (Order, cit., para.51) but the allegation was made by the Respondent in its Written Response of 8 December 2010 (para.104). Paragraph 8. Paragraph 13. Paragraph 19. Page 3.

Incidental (accessory) Jurisdiction

223

Either way, whatever the reason, in these cases the International Tribunal for the Law of the Sea is not very explicit as to what should be understood about the prima facie estimation of its own jurisdiction. In my modest opinion, the practice of the International Court of Justice does not provide us with conclusive information either. If, in the past, it frequently happened that when the Court found that prima facie it had jurisdiction to indicate provisional measures it finally found that it had jurisdiction to deal with the merits as well,59 in the present times this does not always occur. For example, in the Case concerning Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation) (Preliminary Objections), after finding in its Order of 15 October 2008, that prima facie, it had jurisdiction under article 22 cerd to deal with the case to the extent it determined,60 the icj, in its Judgment of 1 April 2011, found that it did not have jurisdiction to entertain the Application filed by Georgia on 12 August 2008.61 The abovementioned Judgment of 28 May 2013, in the M/V Louisa case, by which itlos finds that it has no jurisdiction to deal with the dispute, provides us with another good example to reinforce the idea that this question remains open. Where in this process do we find the point between the mere receiving of a request and the final determination by the Tribunal on its own jurisdiction to deal with the merits of one case? As stated in the previous paragraphs, so far, we do not have much to go on from the two cases that exist. As Judge Wolfrum recalls, in the practice of the icj, “the notion of ‘plausibility’ (…) describes well the threshold for establishing prima facie jurisdiction.”62 As the German Judge underlines, since the Icelandic Fisheries cases63 the icj “uses a standard ­formula, namely, that the instrument invoked by the parties as conferring jurisdiction appears, prima facie, to afford a possible basis on which the jurisdiction of the Court might be founded.”64 In addition, the long standing experience of 59

60 61 62

63 64

In respect to this, see Jiménez De Aréchaga, E., El Derecho Internacional Contemporáneo, Tecnos, Madrid, 1980, p. 193, and Espaliú, cit., p. 309. In the period analysed by Espaliú (1986–1999), only in one case, that of the Anglo Iranian Oil Co., the icj, after finding that it had prima facie jurisdiction and after indicating provisional measures, found that it did not have jurisdiction to deal with the merits. Paragraph 117. Paragraph 187. Dissenting Opinion to itlos Order of 23 December 2010 in the M/V Louisa case, Provisional Measures, para.26. In support of his statement, Judge Wolfrum refers to the icj Order of 28 May 2009, in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), paragraph 60. icj Reports 1972, p. 16 (para.17). Dissenting Opinion, cit., para.10.

224

chapter 2

The Hague Court offers us some clues as regards this issue. As Judge Wolfrum again observes: On the basis of the jurisprudence of the icj it may be summarized that – for an international court or tribunal to assume prima facie jurisdiction – it is not sufficient that an applicant merely invokes provisions which, read in an abstract way, may provide theoretically a basis for the jurisdiction of the court or tribunal in question. On the contrary, it is necessary for the adjudicative body to take into account the facts which are known to it at the moment of deciding on provisional measures and to consider whether on this basis, together with legal basis invoked by the applicant, prima facie jurisdiction on the merits may be established. Such considerations cannot be left to the merits phase.65 Nevertheless, as Judge Paik states in his Separate Opinion to the above-mentioned Order in the M/V Louisa case, it seems that: The threshold of prima facie jurisdiction is rather low in the sense that all that is needed, at this stage, is to establish that the Tribunal “might” have jurisdiction over the merits. As long as the Tribunal finds that the Applicant has made an arguable or plausible case for jurisdiction on the merits, the requirement of prima facie jurisdiction should be considered to have been met.66 B. So as to disputes submitted to an arbitral tribunal (art. 290.5), an innovation has been introduced allowing a forum different than the one which is going to deal with the case to prescribe, modify or revoke provisional measures, pending the constitution of the said arbitral tribunal, if the urgency of the situation so requires. In this respect, itlos has been placed in a privileged position, insofar as it is the forum empowered with residual jurisdiction when the agreement of the parties on another court or tribunal fails within two weeks from the date of the request for provisional measures. This privileged position is clearly reflected in the list of cases of the Hamburg Tribunal, in which both the prompt release procedures and the requests for provisional measures are numerous.67 In general terms, the prescription, modification or revocation of 65 66 67

Dissenting Opinion, cit., para.12. Separate Opinion, para.7. Nine prompt release cases (Saiga, Camouco, Monte Confurco, Grand Prince, Chaisiri Reefer 2, Volga, Juno Trader, Hoshinmaru and Tomimaru) and seven provisional measures

Incidental (accessory) Jurisdiction

225

provisional measures pending the constitution of an arbitral tribunal is to be carried out, pursuant to article 290.5, “in accordance with this article.” However, the Tribunal has also managed to shape the way it deals with issues surrounding the estimation prima facie of the jurisdiction (of the arbitral tribunal) and the appreciation of the urgency. Concerning the consideration prima facie that “the tribunal which is to be constituted would have jurisdiction,” the Hamburg Tribunal, from its privileged position, has got the opportunity to make its own pronouncement on several cases to date: the Tuna cases, the mox Plant, the Straits of Johor, the ara Libertad and the Arctic Sunrise. In this respect, it does not seem that itlos deviates to any great extent from the criteria followed in the earlier Saiga 2 case when dealing prima facie with its own jurisdiction. Nevertheless, since the Law of the Sea Tribunal is, in these cases, considering prima facie the jurisdiction of another tribunal, that is, the arbitral tribunal whose constitution is pending, it is logical to think that the former holds a more flexible and open position (in short, a greater tendency to consider both itself and the future arbitral tribunal prima facie with jurisdiction to respectively entertain the measures request and the merits of the case). The reason is that the consequences of declaring a lack of competence are different in each case: if itlos finds prima facie that the arbitral tribunal to be constituted is not competent to deal with the case, its  negative finding has a different repercussion than the one regarding its own jurisdiction in dealing with the case on the merits. In this respect, it seems logical that itlos takes a cautious stand, and is more prone to defer the issue of its competence to the arbitral tribunal as soon as a minimum plausible basis to support its prima facie jurisdiction exists, even when this attitude finds itself in the uncomfortable situation of passing prima facie jurisdictions that are not confirmed by the corresponding arbitral tribunal afterwards. A good example of this broad approach seems to be offered in the Order of 15 December 2012 delivered in the ara Libertad case, if we connect paragraphs 60 and 65 to 67 with paragraph 106, in which itlos states that its Order “in no  way prejudges the question of the jurisdiction of the Annex vii arbitral ­tribunal to deal with the merits of the case, or any questions relating to the merits themselves, and leaves unaffected the rights of Argentina and Ghana to submit arguments in respect of those questions (see M/V “Louisa” (Saint

requests, counting the Tuna cases as one (Saiga 2, Tuna, mox Plant, Straits of Johor, mv Louisa, ara Libertad and Arctic Sunrise). As previously seen, of these seven requests only two (Saiga 2 and mv Louisa) correspond to cases submitted to itlos while the others were submitted to Annex vii arbitrations.

226

chapter 2

Vincent and the Grenadines v. Kingdom of Spain), Provisional Measures, Order of 23 December 2010, itlos Reports 2008–2010, p. 58, at p. 70, para.80).”68 As Judges Wolfrum and Cot affirm in their joint Separate Opinion to the Order in the ara Libertad case, “Out of respect for the other court or tribunal [in reference to article 290.5] the Tribunal has to exercise some restraint in questioning prima facie jurisdiction of such other court or tribunal (…). The Tribunal still has to develop a jurisprudence to specify the applicable threshold more clearly.”69 In this particular case, the ara Libertad, the threshold set by itlos relies on the fact that “a difference of opinions exists between [the Parties] as to the applicability of article 32 and thus the Tribunal is of the view that a dispute appears to exist between the Parties concerning the interpretation or application of the Convention.”70 A similar standard seems to have been applied in the Arctic Sunrise case.71 As is well known, the prima facie consideration of the arbitral tribunal’s jurisdiction made by itlos through its provisional measures orders was viewed differently in the two cases to date in which the arbitral tribunal had the opportunity to confirm or revoke the prima facie estimation of its jurisdiction and the requested measures.72 In the Tuna cases, the first Arbitral Tribunal of Annex vii in history declared itself without jurisdiction to entertain the case.73 In the mox Plant, the Arbitral Tribunal, likewise constituted according to Annex vii unclos, confirmed itlos estimation of its prima 68 Order ara Libertad, para. 106. See also the icj Case concerning questions relating to the obligation to prosecute or extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, para.74, as quoted by itlos in the M/V Louisa Order, para.80. In my view, and in light of some dissenting and separate opinions regarding both orders, the Tribunal was far from firmly convinced that it had jurisdiction to deal with the merits for the M/V Louisa case, as its final Judgment of 28 May 2013 evidenced. It seems that the Plenary wanted to make it clear that this was just a superficial conviction for a temporary purpose, that is, to decide on a provisional measures request. 69 Joint Separate Opinion, para.5. 70 Order of 15 November 2012, para.65. 71 Order of 22 November 2013, paras. 58 and 68–71. 72 In its Award on Jurisdiction, of 26 November 2014, in the Arctic Sunrise case, the Arbitral Tribunal “unanimously decides that the Declaration of Russia upon ratification of the Convention (…) does not exclude the dispute from the jurisdiction of the [Arbitral] Tribunal.” However, the Arbitral Tribunal assumes that the question on jurisdiction is not finished: “All issues not decided in this Award on Jurisdiction, including all issues relating to jurisdiction, admissibility, and merits, are reserved for further consideration” (para. 79.1 and 2). Emphasis added. 73 Arbitral Award, 4 August 2000, para. 72.1.

Incidental (accessory) Jurisdiction

227

facie jurisdiction as well as the measures prescribed by the latter;74 in this respect, the Arbitral Tribunal rejected the objections to its competence posed by the United Kingdom in the proceedings before itlos.75 Furthermore, it also considered itself to hold prima facie jurisdiction in dealing with the additional measures requested by Ireland, in this case, obviously, as per article 290.1.76 C. As regards the requirement of urgency, it is consubstantial to the institution of provisional measures since the rationale for those measures is found, precisely, in preventing a danger to the disputed object during the proceedings (periculum in mora). Despite the fact that the word “urgency” does not expressly appear in article 290.1 (it does in paragraph 5 of the same article), its requirement can be deduced from the wording of the provision when it demands that the measures being taken have as their goal the preservation of the rights of the parties or the prevention of serious harm to the marine environment “pending the final decision.” On the other hand, although urgency has a temporal or chronological dimension, it should primarily be understood from the perspective of necessity, as it relates to the danger that results from the fact that proceedings transpire over the course of time, be it short or long. As the icj says in its Order of 29 July 1991, in the case of the Gran Belt (Finland v. Denmark)77 and reiterates in other latter resolutions, such as the Order of 5 February 2003 in the Avena case:78 (…) provisional measures under Article 41 of the Statute are indicated ‘pending the final decision’ of the Court on the merits of the case, and are therefore only justified if there is urgency in the sense that action 74 75 76 77 78

Order n° 3, 24 June 2003, operative paragraph, point 2. Order n° 3, cit. Order, cit. icj Reports, 1991, p. 17, para. 23. Paragraph 50. See also Orders of 15 March 1996 in the case on the Land and Maritime Boundary between Cameroon and Nigeria (icj Reports, 1996) 14 April 1992, in the Lockerbie case (icj Reports, 1992) and 18 July 2011 in the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (icj Reports, 2011, para.47). In this latter Order of 2011, by slightly changing the formula, the icj uses the ideas of imminence and irreparability: “the power of the Court to indicate provisional measures will be exercised only if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice may be caused to the rights in dispute before the Court has given its final decision (see, for example, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, para. 64).”

228

chapter 2

­ rejudicial to the rights of either party is likely to be taken before such p final decision is given. There is also room for another question related to urgency, namely the incidence that the precautionary approach might have when trying to assess this very requirement, particularly in relation to the prevention of serious harm to the marine environment. According to this principle, as classically formulated in the Rio Declaration of 1992: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”79 Considering its content, the precautionary approach might be taken into account, in theory, at the time of assessing the urgency for determining the existence of danger (in case of doubt, there must be presumption that a threat exists) and for estimating the urgency itself (in case of doubt, there must be a presumption that the threat is urgent). Obviously, in both cases, the doubt must rely, at least, upon a minimum of evidence. On the other hand, the impact of this principle or approach would be greater if it were recognized as general customary law. In the Southern Bluefin Tuna cases, the mox Plant case, and in the case concerning the Land Reclamation by Singapore in and around the Straits of Johor, the parties demanding provisional measures expressly mentioned the precautionary approach in their respective requests. In the Tuna cases, both Australia and New Zealand, by claiming that the precautionary principle is part of general international law,80 expressly requested itlos to prescribe “that the parties act consistently with the precautionary principle in fishing for the southern bluefin tuna pending a final statement of the dispute.”81 Furthermore, they found this measure as “essential.”82 In Japan’s opinion, the requested measures had no specific content and, accordingly, they were unable to comply.83 On the other hand, in the mox Plant case, Ireland affirmed that the “precautionary principle is now recognized as a rule of customary international law”;84 that the said principle “means that the United Kingdom must apply 79

80 81 82 83 84

Principle 15. The Rio Declaration on Environment and Development was proclaimed during the United Nations Conference on Environment and Development, held in Rio de Janeiro from 3 to 14 June 1992. Requests, paras.1. Requests, paras.8. Requests, paras.14. Response, para.88. Request, para. 97.

Incidental (accessory) Jurisdiction

229

caution, and take preventive measures even where there is no conclusive evidence of a causal relationship between the inputs and the effects”;85 that the said principle “places the burden on the United Kingdom to demonstrate that no harm would arise from discharges and other consequences of the operation of the mox plant, should it proceed”;86 and finally that “the precautionary principle also informs the conditions under which the International Tribunal should approach the question of urgency (…).”87 These allegations were countered by the United Kingdom which stated that, considering the facts of the case, “the precautionary principle is not applicable.”88 Finally, in the Straits of Johor case, Malaysia mentioned the precautionary principle as the directing principle for States Parties in the application and implementation of the obligations set up by the list of unclos articles that Singapore had allegedly violated in relation to the maintenance of the marine and coastal environment and the preservation of the Malaysian rights of maritime access to the coastline of the country, in particular via the eastern entrance of the Straits of Johor.89 Singapore objected claiming that such principle had “no application in circumstances where studies indicate that no serious harm is foreseeable” and that the said precautionary principle “must operate within the exceptional nature of provisional measures” and could not be invoked to overrule that exceptional character.90 itlos has considered the invocation of this principle with extreme caution. At the outset, in none of the aforementioned cases does the Tribunal use the term “precautionary principle” or “precautionary approach” unless reproducing the parties’ allegations. On the other hand, like other international tribunals, the Hamburg Tribunal has avoided making its own pronouncements about whether the precautionary principle is or is not part of general international law, unlike other environmental principles such as cooperation.91 In this respect itlos has had no trouble in clearly affirming 85 86 87 88 89 90 91

Request, para. 101. Order of 3 December 2001, para.71. Request, para. 101. See also itlos’ Order, para.71. Order, para. 75. Request, para. 18. Response, paras. 138–141. This is so stated by Judge Laing in his Separate Opinion to the itlos Order in the Tuna cases: “it is not possible, on the basis of the materials available and arguments presented on this application for provisional measures, to determine whether, as the Applicant contends, customary international law recognizes a precautionary principle” (para.16). For his part, Judge Treves in the same case affirms the following: “I fully understand the ­reluctance of the Tribunal in taking a position as to whether the precautionary approach

230

chapter 2

that cooperation “is a fundamental principle in the prevention of pollution of the marine environment under Part xii of the Convention and general international law (…).”92 Either way, although the recognition of the customary nature of the precautionary principle would considerably reinforce its influence, the fact that it is still not admitted as part of general international law cannot, as Treves observes,93 prevent it from being taken into account, in one way or the other, at the time of evaluating urgency. In this sense, the Tribunal has also expressly avoided pronouncements on the relation between the precautionary principle and the requirement of urgency both in assessing the existence of a danger and to appreciate the urgency itself. However, as several judges of the Tribunal recognize in their respective opinions, the precautionary approach or principle, in one way or the other, has been present at the time of the adoption of measures by this judicial institution in the above mentioned cases. In the Tuna cases, on the one hand, after recalling that the conservation of the marine living resources is an element of the protection and preservation of the marine environment and that the parties were in agreement about tuna stocks having suffered a dramatic decrease and were at their lowest historic levels, thereby causing serious concern,94 itlos states that “the parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna.”95 However, after declaring even more explicitly that “there is scientific uncertainty regarding measures to be taken to conserve the stock of southern bluefin tuna (…),”96 the Hamburg Tribunal affirms that “although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve

is a binding principle of customary international law. Other courts and tribunals recently confronted with this question, have avoided to give an answer” (para.9). In the same line, Judge Wolfrum, in the mox Plant case, stated that: “It is still a matter of discussion whether the precautionary approach in international environmental law has become part of international customary law” (para. 15). 92 Order in the mox Plant case, para.82. See also the Order in the Straits of Johor case, para.92. 93 Treves, Separate Opinion to the Tuna case Order, para.9. 94 Order, paras. 70 and 71. 95 Id., para.77. 96 Id., para.79.

Incidental (accessory) Jurisdiction

231

the rights of the parties and to avert further deterioration of the southern bluefin tuna stock.”97 In the mox Plant case, after Ireland invoked the precautionary principle98 and the United Kingdom raised an objection,99 itlos considered both positions and ultimately rejected the measures requested by the former.100 How­ ever, by recalling its power to prescribe measures different, in whole or in part, from those requested by the parties,101 itlos affirmed that: “in the view of the  Tribunal, prudence and caution require that Ireland and the United Kingdom cooperate in exchanging information concerning risks or effects of the operation of the mox plant and in devising ways to deal with them, as

97

Id., para. 80. Emphasis added. In this sense, the opinion of several judges is clear. According to Laing: “It becomes evident that the Tribunal has adopted the precautionary approach for the purposes of provisional measures in such a case as the present” (para.19); Treves: “There is no controversy that such deterioration has been going on for years. However, as there is scientific uncertainty as to whether the situation of the stock has recently improved, the Tribunal must assess the urgency of the prescription of its measures in the light of prudence and caution. This approach, which may be called precautionary, is hinted at in the Order, in particular in paragraph 77. However, that paragraph refers it to the future conduct of the parties. While, of course, a precautionary approach by the parties in their future conduct is necessary, such precautionary approach, in my opinion, is necessary also in the assessment by the Tribunal of the urgency of the measures it might take. In the present case, it would seem to me that the requirement of urgency is satisfied only in the light of such precautionary approach. I regret that this is not stated explicitly in the Order” (para.8). “(…) In my opinion, in order to resort to the precautionary approach for assessing the urgency of the measures to be prescribed in the present case, it is not necessary to hold the view that this approach be dictated by a rule of customary international law. The precautionary approach can be seen as a logical consequence of the need to ensure that, when the arbitral tribunal decides on the merits, the factual situation has not changed. In other words, a precautionary approach seems to me inherent in the very notion of provisional measures. It is not by chance that in some languages the very concept of “caution” can be found in the terms used to designate provisional measures: for instance, in Italian, misure cautelari, in Portuguese, medidas cautelares, in Spanish, medidas cautelares or medidas precautorias.” (para.9); and Shearer: “The Tribunal has not found it necessary to enter into a discussion of the precautionary principle/approach. However, I believe that the measures ordered by the Tribunal are rightly based upon considerations deriving from a precautionary approach” (p. 6). 98 Order of 3 December 2001, para. 71. 99 Order, para. 75. 100 Order, para. 81. 101 Order, para. 83. Article 89.5 of itlos Rules.

232

chapter 2

appropriate.”102 The same idea and structure is present in the Straits of Johor case, in which the  precautionary principle was invoked by Malaysia and objected to by Singapore,103 as noted previously, and received the same response from itlos.104 In my opinion, the prudence of itlos is fully justified. Firstly, because of the procedural rules that limit the complete knowledge of the case and the assessment of the evidence. Secondly, because its “enthusiastic” acceptance could lead the Tribunal to a constant and indiscriminate invasion of the faculties of the court or tribunal competent to deal with the merits of the case, even when that tribunal is the Hamburg Tribunal itself. In this sense, I believe it is worth recalling the observations made by judge Wolfrum in his Separate Opinion to the itlos Order in the mox Plant case: Ireland could not, for several reasons, rely on the precautionary principle or approach in this case even if it were to be accepted that it is part of international customary law. If the Tribunal would have prescribed provisional measures for the preservation of the marine environment under the jurisdiction of Ireland it could have done so only after a summary assessment (…). This, however, is an issue to be dealt with under the merits by the Annex vii arbitral tribunal. It should not be forgotten that provisional measures should not anticipate a judgment on the merits. (…) Such limitation cannot be overruled by invoking the precautionary principle. Apart from that, the approach advanced by Ireland would have for result that the granting of provisional measures becomes automatic when an applicant argues with some plausibility that its rights may be prejudiced or that there was serious risk to the marine environment. This cannot be the function of provisional measures in particular since their prescription has to take into consideration the rights of all parties to the dispute.105 D. Regarding the requirement that the provisional measures can only be prescribed (modified or revoked) “at the request of a party to the dispute,” it is an exigency that does not appear in the icj Statute and, therefore, it only affects the jurisdiction of The Hague Court in relation to provisional measures requested in disputes concerning the interpretation or application of the Law 102 Order, para. 84. A strong criticism is offered by Judge ad hoc Székely in his Separate Opinion to the Tribunal’s Order (paras. 22–24). 103 Order of 8 October 2003, paras. 74 and 75. 104 Order, para. 99. 105 Page 3. Emphasis added.

Incidental (accessory) Jurisdiction

233

of the Sea Convention. On the contrary, regarding itlos, since article 25 of its Statute refers to article 290 of the Convention, its power to prescribe provisional measures is submitted to the fulfillment of this condition in all types of disputes. Another issue altogether, as we will see below, is that once provisional measures are requested by the parties, the Tribunal may take advantage of the proceedings to adopt measures different to those solicited by the litigants. E. As regards the content of the measures to be taken, the great variety of topics and situations that may arise during the proceedings, along with the actions that might be adopted in respect to them, seem to recommend a choice of open formulations that allow the tribunal to make the most appropriate choice on a case-by-case basis. This is what article 290 does when it says that the court or tribunal “may prescribe any provisional measures which it considers appropriate under the circumstances (…).”106 The Tribunal accordingly enjoys significant discretion in this area,107 insofar it is not constrained to a pre-established catalogue of measures. In any event, despite the latitude, any measures taken must pursue one of the goals (or both of them) that article 290.1 alternatively poses, that is: “To preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment.” So as to the goal of preserving the rights of the parties to the dispute, this stems from article 41 of the icj Statute which instructs the Court “to preserve the respective rights of either party.” It should be understood in a broad sense, that is, not just as referring to a particular, identifiable and separate right (though it may occasionally surface) but to the neutralization of the adverse effects that the proceedings might produce either on the position of the parties or on the effectiveness of the judgment. As the icj states in its Order in the La Grand case and restates later in the Avena and other Mexican Nationals: the power of the Court to indicate provisional measures under Article 41 of its Statute is intended to preserve the respective rights of the parties pending its decision, and presupposes that irreparable prejudice shall not be caused to rights which are the subject of a dispute in judicial proceedings.108 Additionally, the requirement of preventing serious harm to the marine environment represents a genuine innovation. At the outset, despite the disjunctive “or,” 106 Emphasis added. 107 See, in this respect, Acosta, cit., pp. 147 and 148. 108 La Grand, Provisional Measures, Order of 3 March 1999 (icj Reports, 1999, p.9) para. 22. See also Order of 5 February 2003, (icj Reports, 2003, p.77) para. 49.

234

chapter 2

it would seem possible to cumulatively adopt measures that pursue the preservation of the rights of the parties “and” prevent a serious harm to marine environment. Moreover, insofar as the preservation of the marine environment may also affect the individual interests of either of the litigants, it could, on occasion, appear to be covered by the preservation of the rights of the parties. Nevertheless, in my view, the most interesting point in this respect is that the preservation of the marine environment can be pursued in isolation and, further, not only in the particular interest of either party but also in the general interest. So far, the aim of preserving the marine environment has been invoked by the parties (cases of the Tuna, mox Plant, and Straits of Johor) in a general sense but with the clear intention of reinforcing their particular claims. However, the text of article 290 is written in language broad enough to allow the prescription of measures that are not merely aimed at satisfying the individual interests of the parties but the general interest as a whole. This possibility would certainly pose some intriguing questions. In principle, provisional measures are requested by the parties and itlos cannot prescribe them ex officio. However the Tribunal, by means of its Rules, partially inspired by those of the icj,109 has empowered itself with the capacity to prescribe measures partially or totally different from those requested by the litigants.110 On the other hand, one may wonder whether a measure prescribed by the Tribunal, motu proprio, with the goal of preserving the marine environment in the general interest, might impose an obligation on States (or entities) other than those who are parties in the proceedings. To date, the provisional measures requested by the parties reflect the great variety mentioned above.111 In the Saiga 2 case, Saint Vincent and the Grenadines requested the following: the release of the detained vessel, still pending at that time, which actually meant compliance with the prompt release Judgment as previously delivered by the Tribunal in 1997; that Guinea suspend the application and effect of both 109 I’m referring in particular to article 75 of the Rules of the icj, according to which: 1. The Court may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties. 2. When a request for provisional measures has been made, the Court may indicate measures that are in whole or in part other than those requested, or that ought to be taken or complied with by the party which has itself made the request. 3. The rejection of a request for the indication of provisional measures shall not prevent the party which made it from making a fresh request in the same case based on new facts. 110 Article 89.5 rt. 111 Requests also use to include submissions asking the Tribunal to declare that it has jurisdiction to deal with the case, that the application is admissible and that the Respondent shall pay the costs and other fees generated by the procedure.

Incidental (accessory) Jurisdiction

235

judgments rendered by its local courts against the vessel and its crew; that the said country cease and desist from applying, enforcing or otherwise giving effect to its laws on or related to customs and contraband within the Guinean eez or at any place beyond that zone against vessels registered in Saint Vincent and the Grenadines and engaged in bunkering activities in the waters around Guinea outside its 12-mile territorial waters; that Guinea likewise cease and desist from interfering with the rights of Saint Vincent’s vessels, including those engaged in bunkering activities, to enjoy freedom of navigation and/or other internationally lawful uses of the sea as set forth inter alia in articles 56.2 and 58 of the Convention; finally, to cease and desist from undertaking hot pursuit of Saint Vincent’s vessels except in accordance with the conditions set forth in article 111 unclos.112 In the Tuna cases, on the other hand, Australia and New Zealand requested, in short, the following measures: that Japan immediately cease its “unilateral experimental fishing” for southern bluefin tuna; that the said country restrict its catch to its national allocation as agreed in its last agreement with the Commission for the Conservation of the Southern Bluefin Tuna (ccsbt); that the parties act consistently with the precautionary principle in fishing for the southern bluefin tuna pending a final settlement of the dispute; that the parties ensure that no action would be taken which might aggravate, extend or render more difficult the solution of the dispute submitted to the Annex vii Arbitral Tribunal; and that the parties likewise refrain from taking any action which might prejudice their respective rights in respect to the carrying out of any decision on the merits that the Arbitral Tribunal might render. Japan, for its part, aside from asking the Tribunal to deny the measures intended by Australia and New Zealand, requested itlos to prescribe that these countries urgently and in good faith recommenced negotiations with it for a period of six months in order to reach a consensus on the outstanding issues between both sides; additionally it requested the issue be referred to a panel of independent scientists for their resolution should the parties not reach consensus within that period of time.113 In the mox Plant case, Ireland requested the following measures: “1/ that the United Kingdom immediately suspend the authorization of the mox plant dated 3 October 2001, alternatively take such other measures as are necessary to prevent with immediate effect the operation of the mox plant; 2/ that the United Kingdom immediately ensure that there are no movements into or out of the waters over which it has sovereignty or exercises sovereign rights of any 112 See Order, para. 23. Guinea, in its Response, limited itself to requesting that itlos deny the measures proposed by Saint Vincent and to pay the costs of the procedure (Order, para.24). 113 See Order, paras. 34 and 35, respectively.

236

chapter 2

radioactive substances or materials or wastes which are associated with the operation of, or activities preparatory to the operation of, the mox plant; 3/ that the United Kingdom ensure that no action of any kind is taken which might aggravate, extend or render more difficult of solution the dispute submitted to the Annex vii tribunal (Ireland hereby agreeing itself to act so as not to aggravate, extend or render more difficult of solution that dispute); and 4/ that the United Kingdom ensure that no action is taken which might prejudice the rights of Ireland in respect of the carrying out of any decision on the merits that the Annex vii tribunal may render (Ireland likewise will take no action of that kind in relation to the United Kingdom).”114 In the Straits of Johor case, Malaysia requested: that Singapore suspend all the then current land reclamation activities in the vicinity of the maritime boundary between the two States and the areas claimed as territorial waters by Malaysia; that Malaysia be provided with full information as to the then current and projected works; that the said requesting country be afforded a full opportunity to comment upon the works and their potential impacts having regard, inter alia, to the information provided; and that [Singapore] agreed to negotiate with Malaysia concerning any remaining unresolved issues.115 In the M/V Louisa case, Saint Vincent and the Grenadines requested the Tribunal, in its final submissions, to “order the Respondent to release the vessel Louisa and its tender, the Gemini iii (…) without bond or other further economic hardship; (…) to order the return of scientific research, information, and property held since 2006 (…)” and to “prescribe such other [measures] as may be appropriate such as issuing an order requiring the Spanish Agent to meet with the Applicant’s Agent or representatives to resolve the matter; or other important measures.”116

114 See Order, para. 27. In its Response, the United Kingdom requested the Tribunal to reject the Irish application for provisional measures and to order Ireland to bear its opponent’s costs in the proceedings (para.28). 115 Order, para.23. In its Response, Singapore limited itself to requesting that the Tribunal dismiss Malaysia’s request and order the country to bear the costs incurred by Singapore in the proceedings (Order, para. 24). 116 Order, cit., para.33. The original request is surprising too, as the Applicant requests the Tribunal to “declare that the Respondent has violated Articles 73,87,226,245 and 303 of the Convention [and] declare that the detention of any crew member was unlawful” (Order, para.32). In short, these two submissions are submissions on the merits that the Tribunal cannot take at this stage of the proceedings. In response to the Applicant’s requests, the Respondent, Spain, requested itlos to reject the prescription of provisional measures asked by Saint Vincent and the Grenadines (Order, paras. 34 and 35).

Incidental (accessory) Jurisdiction

237

In the ara Libertad case, the Applicant, Argentina, requested itlos to prescribe that Ghana unconditionally enable the Argentine warship Frigate ara Libertad to leave the Tema port and the jurisdictional waters of Ghana and to be resupplied to that end.117 For its part, in the Arctic Sunrise case, the Applicant, the Netherlands, requested itlos “to order (…) the Russian Federation: (d) to immediately enable the ‘Arctic Sunrise’ to be resupplied, to leave its place of detention and the maritime areas under the jurisdiction of the Russian Federation and to exercise the freedom of navigation; (e) to immediately release the crew members of the ‘Arctic Sunrise’, and allow them to leave the territory and maritime areas under the jurisdiction of the Russian Federation; (f) to suspend all judicial and administrative proceedings, and refrain from initiating any further proceedings, in connection with the incidents leading to the dispute concerning the ‘Arctic Sunrise’, and refrain from taking or enforcing any judicial or administrative measures against the ‘Arctic Sunrise’, its crew members, its owners and its operators; and (g) to ensure that no other action is taken which might aggravate or extend the dispute.”118 It is well known that Russia refused to participate in the proceedings on the allegation that neither the arbitral to be constituted nor itlos were competent to deal with the case.119 In reply to the parties’ requests, with the exception of the M/V Louisa case, in which itlos decided not to prescribe any measure, the International Tribunal for the Law of the Sea so far has prescribed measures that substantially coincide, in whole or in part, with the submissions it has received. However, it has also invoked its power, in conformity with article 89.6 of its  Rules, to adopt measures different from those requested. Therefore, the question of its capacity to adopt either ultra or extra petita measures remains open. Regarding the measures requested by the parties, in the Saiga 2 case, itlos partially granted the submissions of Saint Vincent and the Grenadines in its Order of 11 March 1998, deciding that “Guinea shall refrain from taking or enforcing any judicial or administrative measure against the M/V Saiga, its Master and the other members of the crew, its owners or operators, in connection with the incidents leading to the arrest and detention of the vessel on 28  October 1997 and to the subsequent prosecution and conviction of the Master.”120 117 Order, paras. 27 and 28. Ghana limited itself to asking the Tribunal to reject the request filed by Argentina (Order, cit., para.29). 118 Order, para.35. 119 Order, para.9. 120 Order, para. 52.1.

238

chapter 2

On the other hand, in the Tuna cases, in its Order of 27 August 1999, the Hamburg Tribunal, also partially granted the requests of Australia and New Zealand, prescribing that “Australia, Japan and New Zealand shall ensure, unless they agree otherwise, that their annual catches do not exceed the annual national allocations at the levels last agreed by the parties of 5,265 tons, 6,065 tons and 420 tons, respectively; in calculating the annual catches for 1999 and 2000, and without prejudice to any decision of the arbitral tribunal, account shall be taken of the catch during 1999 as part of an experimental fishing program.”121 It also granted the Japanese submissions in part by ordering that the three conflicting States “should resume negotiations without delay with a view to reaching agreement on measures for the conservation and management of southern bluefin tuna.”122 On the other hand, responding to the Applicants’ petition related to the non-aggravation of the dispute, itlos prescribed that the parties ensure that no action would be taken which might either aggravate or extend the disputes submitted to the arbitral tribunal nor prejudice the carrying out of any decision on the merits that the arbitral tribunal might render.123 121 Order, para. 90.1.c. To complete this part, the Hamburg Tribunal also prescribed that “Australia, Japan and New Zealand shall each refrain from conducting an experimental fishing programme involving the taking of a catch of southern bluefin tuna, except with the agreement of the other parties or unless the experimental catch is counted against its annual national allocation as prescribed in subparagraph (c)” (para.90.1.d). 122 Order, para. 90.1.e. 123 Order, para. 90.1.a and b. In respect to the latter, it is mainly a rhetorical reminder of the essence of the institution of provisional measures itself. It is interesting to reproduce here the comment of the then Judge Eiriksson, in his Dissenting Opinion to the Tribunal’s Order in the Tuna cases: I did so, not because I disagree with the general proposition that parties to a dispute should take measures to avoid aggravating the dispute pending its settlement by judicial means. Indeed, this should be recognized as a general policy guiding States in their international relations. Rather, I oppose laying down a measure, binding in international law, with the consequential remedies for its breach, which is of so general a nature that a party cannot be entirely clear when contemplating any given action whether or not it falls within its scope. I would have preferred that the Tribunal confine itself to prescribing measures which have clear and specific objectives, such as those prescribed in paragraph 90(1)(c) to (f), with which I agree (para.2). Concerning the adoption of this type of measure, which for the icj is usual in the practice, itlos has been following a cautious position. In the Saiga 2 case, insofar as it was not requested, itlos did not prescribe it. Nevertheless, the Hamburg Tribunal did not resist the temptation to “recommend” identical conduct for the parties (para.52.2). In the Tuna cases, as just noted, the measure was requested by the Applicants and prescribed by the

Incidental (accessory) Jurisdiction

239

In the ara Libertad case, the International Tribunal for the Law of the Sea prescribed the measure requested by the Applicant, Argentina, thereby unanimously ordering, that “Ghana (shall) forthwith and unconditionally release the frigate ara Libertad, shall ensure that the frigate (…) its Commander and crew are able to leave the port of Tema and the maritime areas under the jurisdiction of Ghana, and shall ensure that the frigate ara Libertad is resupplied to that end.”124 Finally, in the Arctic Sunrise case, itlos also granted in part the requests of the Netherlands in its Order of 22 November 2013, prescribing “the immediate release of the vessel Arctic Sunrise and all persons who [had] been detained” and that Russia should “ensure that the vessel Arctic Sunrise and all persons who [had] been detained [be] allowed to leave the territory and maritime areas under the jurisdiction of the Russian Federation.”125 However, and departing from what was requested by the Applicant, the Hamburg Tribunal conditioned such release to the posting of a bond or other financial security.126 F. Setting aside the measures requested by the parties, the question on whether the Tribunal is empowered or not to adopt measures ultra or extra petita is of critical interest. As seen above, provisional measures may only be prescribed, modified or revoked “at the request of a party to the dispute and after the parties have been given an opportunity to be heard” (art. 290.3). However, according to article 89.5 of the Rules, “When a request for provisional measures has been made, the Tribunal may prescribe measures different in whole or in part from those requested and indicate the parties which are to take or to comply with each measure.” Upon this basis, itlos, in the mox Plant case, by expressly invoking said article 89.5, unanimously adopted the following measure, which had not been requested by the parties: Ireland and the United Kingdom shall cooperate and shall, for this ­ urpose, enter into consultations forthwith in order to: (a) exchange furp ther information with regard to possible consequences for the Irish Sea arising out of the commissioning of the mox plant; (b) monitor risks or the effects of the operation of the mox plant for the Irish Sea; (c) devise,

Tribunal in general terms (para. 90.1.a and b). In the mox Plant case, itlos did not prescribe any measure in this respect, despite the request by Ireland, as we have seen above. 124 Order of 15 December 2012, para.108.1. 125 Order, para.105.1 126 Ibid.

240

chapter 2

as appropriate, measures to prevent pollution of the marine environment which might result from the operation of the mox plant.127 By relying on the same basis, the Hamburg Tribunal, likewise adopted measures which were not requested by the parties in the Straits of Johor case.128 In particular, in this case, it ordered the parties to establish a group of independent experts with the mandate, inter alia, to conduct a study to determine the effects of the land reclamation and to propose, as appropriate, measures to deal with any adverse effects of such activity; and it “Directs (sic) Singapore not to conduct its land reclamation in ways that might cause irreparable prejudice to the rights of Malaysia or serious harm to the marine environment, taking especially into account the reports of the group of independent experts.”129 Obviously, as they were adopted unanimously, neither the judges of itlos nor the judges ad hoc Széckely (Ireland), Hossain (Singapore) and Oxman (Malaysia) put into question the power of the Tribunal to prescribe such measures. However, this point was raised by judge ad hoc Shearer in the Tuna cases, although merely at a theoretical level, by considering that the Tribunal did not exceed the powers that article 290 confers upon it. Nonetheless, in my opinion, it might be understood that the measure compelling the parties to make further efforts to reach an agreement with other States and fishing entities to ensure the conservation of the species in dispute was taken extra petita.130 In posing the question as to whether the power, that article 89.5RT grants the Tribunal, can be exercised in a way that allows a response completely apart from what had been requested by the parties, Judge Shearer reaches the conclusion that, despite the fact that this provision is based on article 75 of the icj Rules, the situation of itlos is remarkably different insofar as the powers of the Hamburg Tribunal, unlike those of the Hague Court, are conditioned by article 290 unclos. In particular, in Shearer’s opinion, while paragraph 1 “would appear, if it stood alone, to give the Tribunal a free hand” to the point that, “In the present case, considerations of the environment alone, and ­separately from the rights of the parties, might be held to justify provisional 127 128 129 130

Order, para. 89.1. Order, para. 101. Order, para. 106.1.a and 2. In my opinion, the measure does not correspond to the submissions by the parties. Literally, it says: “Australia, Japan and New Zealand should make further efforts to reach agreement with other States and fishing entities engaged in fishing for southern bluefin tuna, with a view to ensuring conservation and promoting the objective of optimum utilization of the stock” (Order, para.90.1.f).

Incidental (accessory) Jurisdiction

241

measures of the Tribunal’s own design,” paragraph 3, on the contrary, establishes that such measures only can be prescribed at the request of a party to the dispute and after the parties have been given the opportunity to be heard. Upon this basis, Shearer states: I conclude therefore that the Tribunal has no power to order provisional measures without a request for such measures by a party, and without giving the parties an opportunity to be heard on those proposed measures. If article 89, paragraph 5, of the Rules of the Tribunal truly purports to give a power to the Tribunal to act beyond the bounds of what has been requested (ultra petita), then in my opinion that rule is not authorized by the Convention (ultra vires) and is thus invalid. If, on the other hand, it is properly to be interpreted as meaning only that the Tribunal may, in addition to the alternatives of acceding completely to, or rejecting completely, the requested measures, prescribe measures that represent a partial grant or a modified version of the requested measures, then the rule would be within power.131 I respectfully disagree in part with Judge Shearer. At the outset, account must be taken of the fact that, unlike in other instances, the current wording of article 89.5 of itlos Rules was proposed by the Preparatory Commission, not by the Tribunal itself. The latter merely took it on.132 In my view, article 290 is somehow contradictory. On the one hand, it calls for a request from a party to the dispute. On the other hand, by using the disjunctive “or,” it concedes the possibility that the measures have the exclusive objective of preventing serious harm to the marine environment. If the Tribunal is bound, in any case, to act at the request of a party, then it only can prescribe measures to preserve the marine environment in deference to particular interests, not in the general interest, which in my view is contradictory to the object and purpose of the provision.133 Insofar as the aggregation of the reference to the prevention of 131 Opinion, penultimate paragraph. 132 See article 83.3 of the Draft Rules of itlos as written by the Preparatory Commission. Final Draft Rules of the Tribunal enclosed in the Report of the Preparatory Commission LOS/PCN.152, 28 April 1995. 133 Since the earlier stages of the iii Conference, insofar as the Convention was going to recognize the binding nature of the “prescribed” measures, States were interested in counterbalancing the power that they were giving the competent court or tribunal with the obligation that such measures be requested by a party and only after having heard them all. However, it is also a fact that the States wanted measures to be adopted in accordance with the Convention were not limited to pursuing mere individual interests. In this sense,

242

chapter 2

harm to the marine environment clearly pursues the objective of facilitating the adoption of measures whose goal is in the general interest, it is essential for the tribunal in question to enjoy some margin. However, that margin is only acceptable if it precisely pursues the said general interest and not just simply any measure in any circumstance. Due to the reference article 25 of the itlos Statute makes to article 290 unclos, it is clear that this judicial institution has not been invested with the same powers as the icj. Its powers are, in this respect, more limited. In view of what has just been discussed, the construction that may better compatibilize the pursuit of both objectives would be, in my opinion, the following: insofar as it is imposed by the Statute, the adoption of any measure demands a request from one of the parties to a dispute.134 However, the measures content is another matter. While, dealing with measures that pursue the preservation of the parties’ rights, itlos is bound by their request (and, accordingly, it cannot bestow more or other than that which has been requested), when the measures being handled intend to preserve the marine environment, in the general interest, in order to prevent serious harm, the Tribunal can maneuver within the margins afforded by article 89.5 of its own Rules and, accordingly, it can prescribe measures that exceed the limits of what was requested by the parties or even prescribe those which were never included in their request. Whether the Hamburg Tribunal intends to follow this line of reasoning in its current or future jurisprudence, is beyond our knowledge. However, the fact that the main goal of the extra petita measures prescribed up to date specifically pursue the conservation of the bluefin tuna stocks and the preservation of the marine environment in the Irish Sea and the Straits of Johor, respectively, leads us to

the Virginia Commentary somehow reflects this situation: “The informal working group which prepared the 1975 working paper in Geneva decided to depart from the wording of the Statute of the International Court of Justice because it considered: (…) (d) that provisional measures should not be prescribed by a tribunal motu proprio, but (…) only upon the request of a party to the dispute, and only after giving the parties (…) an opportunity to be heard; (e) That the provisional measures should not only preserve the respective rights of the parties, but also minimize damage to any party pending final adjudication.” (Commentary, 290.3). Emphasis added. 134 Article 290.3. It was also proposed, in this respect, that the competent court might adopt measures without a prior request “especially should there be a danger to the marine environment,” but this proposal was clearly refused (Vid. Commentary, 290.5.b).

Incidental (accessory) Jurisdiction

243

think that, at least for the moment, the practice of itlos does not refute such a construction.135 G. On the other hand, regarding the effectiveness of the measures, their binding nature is unanimously recognized. For some authors the binding character of the measures substantially comes from the word “prescribe” used in article 290.1 (in French “prescrire,” in Spanish “decretar”) instead of “indicate,” which is used in the icj Statute. In this line, Judge Laing, in his Separate Opinion to the Tribunal’s Order in the Saiga 2 case says: “provisional measures under unclos are prescribed, not indicated, and therefore are binding, arguably unlike measures under article 41 of the icj Statute.”136 In the same sense, Wolfrum, after noting likewise the different terminology used by article 290 in comparison with the Statute of the Court, affirms that “one cannot but conclude that by the different choice of wording in article 290 unclos the drafters of that provision wanted to improve the powers of courts and tribunals having jurisdiction over law of the sea disputes. Their provisional measures have a binding effect upon the parties to the dispute.”137 The opinions we have just read obviously had in mind the lengthy discussions about the binding or non-binding nature of the provisional measures of the icj, in which the partisans of its non-binding character frequently relied upon the use of the verb “indicate” by the Court’s Statute. Assuming that the drafters of unclos changed the verb “indicate” for “prescribe” with the intention of excluding the position described above concerning the non-binding nature of the measures, it is my opinion that the obligatory character of the measures is much more clearly expressed in paragraph 6 of article 290, which states: “The parties to the dispute shall comply promptly with any provisional measures prescribed under this article.” This provision, according to the Virginia Commentary, was introduced precisely to that end.138 In addition, after the Judgment of 27 June 2001 given by the icj in the La Grand case, the measures “indicated” by the Court pursuant to article 41 of its Statute are 135 In my opinion, this construction is not refuted either by the measure adopted by itlos in its Order in the Arctic Sunrise case. Certainly, the Hamburg Tribunal imposes a bond (or other financial security) which was not requested by the parties. However, in my view, this just means a modified version of the requested measure, not a measure ultra or extra petita. 136 Separate Opinion, para.4. 137 Wolfrum, “Provisional Measures…,” cit., p. 433. 138 Commentary, 290.5: As far as the binding character of the decision was concerned, it was agreed to adopt the formula that “any provisional measures…shall be promptly complied with by the parties to the dispute.”

244

chapter 2

binding; thus, as this position seems to have opened up a consistent line in the recent jurisprudence of the icj, the distinction between “indicate” and “prescribe” has become irrelevant in this respect. To contribute to the effectiveness of the measures, article 95 of the itlos Rules obliges the parties to inform the Tribunal as to their compliance with the prescribed provisional measures. To this end, each party shall submit an initial report upon the steps it has taken or proposes to take in order to ensure prompt compliance with the measures prescribed and may be requested by itlos to provide it with further information connected with their implementation. Save for the M/V Louisa, for obvious reasons, the Tribunal has used this power in all its other cases, thus requesting the parties to provide it with the initial report and authorizing the President to request subsequent reports when appropriate.139 H. On the other hand, provisional measures have a limited duration. In general, they begin to take effect while the proceedings are unfolding or, as article 290.1 in fine says, “pending the final decision.” This has been the situation, for example, with the measures prescribed in the Saiga 2 case, which ceased being in effect from the moment itlos gave its Judgment on the merits, 1 July 1999, and with the measures adopted in the Tuna cases, which were expressly revoked by the Arbitral Tribunal in its Award of 4 August 2000.140 However, their termination does not only depend of the proceeding’s duration. Measures also may be modified or revoked as soon as the circumstances justifying them have changed or ceased to exist (art. 290.2) on the condition that a request of a party to the dispute has been made and that the parties has been given the opportunity to be heard (art. 290.3). On the other hand, article 290.5 sets forth that the tribunal “may prescribe (…) provisional measures (…) if it considers (…) that the urgency of the situation so requires.” In this respect, the urgency to which this paragraph refers must be understood in a different way than the urgency which is implicitly required in paragraph 1 of the same article. Although the situation of danger or risk should be equally understood in both cases, the lapse of time in which or for which such a situation would be considered is substantially shorter in the situation of paragraph 5. 139 Order Saiga 2, para.52.3; Order Tuna, para. 90.2; Order mox Plant, para.89.2; Order Straits of Johor, para. 103, Order ara Libertad, para.108.2, Order Arctic Sunrise, para. 105.2. As Judge Vukas observes, the Rules of itlos, by imposing this initial Report, is slightly separating from article 78 of the Rules of the icj, which leaves in the Court’s hands the possibility of requesting such an information (Vukas, B., “Règlement du Tribunal international du droit de la mer,” Coll. erm., n° 12, 1998, pp. 15–23). See also, Treves, “The Procedure…,” cit., p. 582. 140 Paragraph 72.2.

Incidental (accessory) Jurisdiction

245

In its Order of 27 August 1999 on the Tuna cases, itlos, after recalling the requirement of article 290.5 as regards urgency,141 points out that “the Tribunal must decide whether provisional measures are required pending the constitution of the arbitral tribunal.”142 Accordingly, a difference is laid out: in the situation in paragraph 1, the Tribunal is directed to decide whether measures are appropriate “pending the final decision.” In that of paragraph 5, the lapse of time is remarkably shorter: the tribunal is instructed to decide whether the adoption of measures is appropriate “pending the constitution of the arbitral tribunal.”143 As Treves says in his Separate Opinion to the Order in question: “The requirement of urgency is stricter when provisional measures are requested under paragraph 5 than it is when they are requested under paragraph 1 of article 290 as regards the moment in which the measures may be prescribed. In particular, there is no “urgency” under paragraph 5 if the measures requested could, without prejudice to the rights to be protected, be granted by the Arbitral Tribunal once constituted.”144 As Laing states, and reiterates in his Separate Opinion to the aforesaid Order: “The Tribunal is then authorized to prescribe such measures as evidently cannot await the establishment of the arbitral tribunal to handle the merits of the dispute.”145 The Tribunal had the chance to emphasize this same idea in the mox Plant dispute, but in a far more explicit way: (…) according to article 290, paragraph 5, of the Convention, provisional measures may be prescribed pending the constitution of the Annex vii arbitral tribunal if the Tribunal considers that the urgency of the situation so requires in the sense that action prejudicial to the rights of either party or causing serious harm to the marine environment is likely to be taken before the constitution of the Annex vii arbitral tribunal.146 141 Order, para. 63. 142 Order, para. 64. Emphasis added. 143 In both citations, emphasis added. 144 Treves, Separate Opinion, para. 4. 145 Laing, Separate Opinion, para. 6. 146 Order, para. 64. In respect to this, Mensah, in his Separate Opinion to the cited Order, says the following: “In such a situation it is important for the Tribunal to appreciate at all times that it is not for it to determine whether or not there is a potential for prejudice of rights or harm to the marine environment in the abstract, but rather whether there is evidence that potential prejudice or harm might occur in the period covered by its competence, that is to say, in the period pending the constitution of the Annex vii arbitral tribunal. (…) The implication is that the Tribunal is required not only to conclude that there is the possibility of “irreparable prejudice” to the rights of one or other of the parties (or serious

246

chapter 2

Nevertheless, as it was affirmed by the Hamburg Tribunal in its Order of 8 October 2003, in the Straits of Johor case, and reaffirmed in its Order of 22 November 2013, in the Arctic Sunrise case, while “under article 290, paragraph 5, of the Convention, the Tribunal is competent to prescribe provisional measures prior to the constitution of the Annex vii arbitral tribunal, (…) there is nothing in article 290 of the Convention to suggest that the measures prescribed by the Tribunal must be confined to that period.”147 In this respect, as stated by the Tribunal, “the said period [in which the constitution of the arbitral tribunal is pending] is not necessarily determinative for the assessment of the urgency of the situation (…)” and “the urgency of the situation must be assessed taking into account the period during which the Annex vii arbitral tribunal is not yet in a position to ‘modify, revoke or affirm those provisional measures’.”148 In the ara Libertad case, the itlos Order of 15 December 2012 does not refer expressly to this “extra-urgency” factor, but it is evident that urgency plays a critical role in the Tribunal’s decision and it is, accordingly, implicit in the extensive development of nearly 20 paragraphs in which it plays a decisive role in the analysis of the facts.149 In this respect, when considering the attempts by the Ghanaian authorities to board the warship and move it to another berth,

damage to the marine environment), but also that this possibility might occur in the period “pending the constitution of the [Annex vii] arbitral tribunal.” Thus the Tribunal may find that it is not appropriate to prescribe provisional measures even where there is evidence that some prejudice of rights or harm might occur in the future. This would be so if it concludes that the prejudice or harm is unlikely to materialise prior to the constitution of the arbitral tribunal. (…). This does not, of course, mean that prejudice or harm to be prevented must be one whose full effect would necessarily be felt before the constitution of the arbitral tribunal. Far from it. The Tribunal is competent, and indeed is required, to act to prevent prejudice of rights or harm that can reasonably be foreseen, even if the full effects would occur after the constitution of the arbitral tribunal. In any event, it must be made clear that a finding by the Tribunal that the evidence before it does not convince it that irreparable prejudice of rights or harm might occur before the constitution of the arbitral tribunal does not in any way imply that the Tribunal is saying or even suggesting that such prejudice or harm might not occur at any time during the pendency of the dispute. It certainly does not mean that the Tribunal has found that such damage will not occur. It merely means that enough evidence has not been presented to satisfy the Tribunal that it is appropriate to exercise what is universally accepted to be an exceptional and discretionary power (…).” 147 Order, Straits of Johor, para.67. See also Order, Arctic Sunrise, para.84. 148 Order, Straits of Johor, para. 68. See also Order, Arctic Sunrise, para.85. 149 Order, paras. 81 to 99.

Incidental (accessory) Jurisdiction

247

along with the possibility that such actions might be repeated, itlos reaches the conclusion that the Ghanaian behavior “demonstrate(s) the gravity of the situation and underline(s) the urgent need for measures pending the constitution of the Annex vii Arbitral Tribunal”150 and that “under the circumstances of the present case, pursuant to article 290, paragraph 5, of the Convention, the urgency of the situation requires the prescription by the Tribunal of provisional measures (…).”151 I. Measures prescribed by itlos pending the constitution of the arbitral tribunal may be confirmed, modified or revoked by the latter when constituted (art. 290.5) on the condition, for modification and revocation, that they are decided upon the request of any of the parties of the dispute (art. 290.3). In the Tuna cases, it was paradoxical that the arbitral tribunal, after considering that it lacked the jurisdiction to deal with the merits of the case, decided to revoke the measures prescribed by itlos, thus evidencing the relative autonomy of incidental jurisdiction from jurisdiction on the merits, to which we referred at the beginning of this chapter. On the other hand, in the mox Plant case, the Arbitral Tribunal, in its Order n° 3, of 24 June 2003, after noting that it didn’t see any reason to disagree with itlos in its finding that prima facie it had jurisdiction,152 decided to confirm the provisional measure prescribed by the Hamburg Tribunal in its Order of 3 December 2001.153 4.1.2.3 Disputes Concerning the Interpretation or Application of other International Treaties Regarding the jurisdiction of itlos to prescribe provisional measures in respect to disputes submitted to it concerning the interpretation or application of other international treaties, a distinction can be made between: disputes concerning treaties which refer to the settlement system of unclos, which are submitted, obviously, to the said regime as described above; disputes concerning treaties in which there is nothing said in this respect, which are submitted, likewise, to the aforementioned regime since article 25 of the itlos Statute expressly refers to article 290 unclos; and disputes concerning other treaties in which particular provisions or specific rules separating them from the general regime are set forth. This last is the case, so far, concerning the 1995 New York Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks 150 151 152 153

Paragraph 99. Paragraph 100. Order, para. 14. Order, para. 64. Ireland requested new measures, not the revocation or modification of those prescribed by itlos.

248

chapter 2

and the treaties referring their disputes to the settlement system of this Agreement. Among these latter we can list, as noted in other places in this book, the  Convention on the Conservation and Management of Highly Migratory Fish  Stocks in the Western and Central Pacific Ocean, of 5 September 2000, which refers to the settlement system of the 1995 Agreement in its article 31, and the Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean, of 21 April 2001, whose article 24 likewise refers the disputes concerning this treaty to the settlement system of the 1995 Agreement, although only as regards disputes concerning one or more straddling species. In respect to this, the referral that the 1995 Agreement makes, for its part, to the settlement system of unclos should be understood, as regards provisional measures, with the particularity introduced by article 31.2 and 3. According to its paragraph 2: “Without prejudice to article 290 of the Convention, the court or tribunal to which the dispute has been submitted under this Part154 may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent damage to the stock in question, as well as in the circumstances referred to in article 7, paragraph 5,155 and article 16, paragraph 2.”156 In regard to this, as Treves observes in his Separate Opinion to the Tribunal’s Order in the Tuna cases: “the standard set by the Straddling Fish Stocks Agreement is even lower than that of “serious harm” set out in article 290, paragraph 1, of the Law of the Sea Convention. Moreover, the Agreement adopts and develops in detail 154 It alludes to Part viii of the Agreement, regulating the settlement of disputes. 155 Emphasis added. Article 7.5: “Pending agreement on compatible conservation and management measures, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature. In the event that they are unable to agree on such arrangements, any of the States concerned may, for the purpose of obtaining provisional measures, submit the dispute to a court or tribunal in accordance with the procedures for the settlement of disputes provided for in Part viii.” 156 Article 16.2: “Pursuant to article 8, States shall act in good faith and make every effort to agree without delay on conservation and management measures to be applied in the carrying out of fishing operations in the area referred to in paragraph 1. If, within a reasonable period of time, the fishing States concerned and the coastal State are unable to agree on such measures, they shall, having regard to paragraph 1, apply article 7, paragraphs 4, 5 and 6, relating to provisional arrangements or measures. Pending the establishment of such provisional arrangements or measures, the States concerned shall take measures in respect of vessels flying their flag in order that they not engage in fisheries which could undermine the stocks concerned.”

Incidental (accessory) Jurisdiction

249

the precautionary approach.” In particular, as the Italian Judge concludes, article 6.2 prescribes, among other things, that the “absence of adequate scientific information shall not be used as a reason for postponing of failing to take conservation and management measures.”157 For its part, paragraph 3 of article 31 of the Agreement sets forth that: “A State Party to this Agreement which is not a Party to the Convention may declare that, notwithstanding article 290, paragraph 5, of the Convention, the International Tribunal for the Law of the Sea shall not be entitled to prescribe, modify or revoke provisional measures without the agreement of such State.” For the moment, no State Party in the Agreement, not being a Party to the Law of the Sea Convention,158 has made such a declaration. In my opinion, should such an exclusion to the compulsory residual jurisdiction of itlos to prescribe provisional measures occur, the other States parties in the Agreement, which are parties to the dispute, might reciprocally raise the same limitation against any other State making such an exclusion. To conclude this analysis on provisional measures, some considerations on procedural issues are pertinent. It is clear that the Convention not only intends to foster the role of provisional measures in the different aspects to which we have been referring above, but it has also established effective mechanisms to guarantee their prompt dispatch procedurally: in the first place, by conferring jurisdiction to a different forum to deal with the requested measures pending the constitution of an arbitral tribunal (art. 290.5); in the second place, by designating a forum with residual compulsory jurisdiction, for the same cases, when the parties to the dispute are unable to reach an agreement as to the forum in the brief space of 15 days; in the third place, the choice of itlos as such a forum in contrast to the icj, which would be the other permanent alternative tribunal;159 and in fourth place, by conferring jurisdiction to deal with the requested measures, either for situations when the Tribunal is not in session or the number of available judges is not sufficient to constitute the required quorum, to the Chamber of Summary Procedure, while ensuring the measures prescribed by this Chamber (and this is, as Wolfrum observes, a remarkable innovation160) are subject to review or revision by the Tribunal. Also for this case, provisional measures may be adopted at the request of any 157 Treves, Separate Opinion, para.11. 158 United States and Iran. 159 In this respect, it also worths mentioning that, according to their urgent nature, the Rules of itlos establish that these procedures are given priority over all other proceedings before the Tribunal (art. 90.1). 160 Wolfrum, “Provisional Measures…,” cit., p. 432.

250

chapter 2

of the parties to the dispute, without being conditioned by the terms of article 15.4 of the Statute.161 Jurisdiction to Decide through a Preliminary Proceeding on the Allegation of Abuse of Legal Process (Article 294.1 in Relation to Article 297 of the Convention and Article 96 of the Rules)162 Besides its competence to decide on preliminary objections, to which we will refer in the following block, itlos, like the rest of the “Montreux formula” fora, also has jurisdiction to decide, likewise in a preliminary proceeding, on the allegation that the claim based upon article 297 constitutes an abuse of legal process or is prima facie unfounded. According to article 294:

4.2

Article 294. Preliminary proceedings. 1. A court or tribunal provided for in article 287 to which an application is made in respect of a dispute referred to in article 297 shall determine at the request of a party, or may determine proprio motu, whether the claim constitutes an abuse of legal process or whether prima facie it is well founded. If the court or tribunal determines that the claim constitutes an abuse of legal process or is prima facie unfounded, it shall take no further action in the case. 2. Upon receipt of the application, the court or tribunal shall immediately notify the other party or parties of the application, and shall fix a reasonable time-limit within which they may request it to make a determination in accordance with paragraph 1. 3. Nothing in this article affects the right of any party to a dispute to make preliminary objections in accordance with the applicable rules of procedure. As to the proceedings, article 96 of itlos Rules, with no correspondence in icj Rules, states that, when transmitting an application to the respondent, the Registrar shall notify him of the time-limit fixed by the President of the Tribunal for requesting a determination of such nature according to article 294 161 Article 25.2 st. According to article 15.4 st: “Disputes shall be heard and determined by the chambers provided for in this article [including obviously the Chamber of Summary Procedure] if the parties so request.” Emphasis added. 162 On this question, see in particular the study made by Treves, T., “Preliminary Proceedings in the Settlement of Disputes under the United Nations Law of the Sea Convention: Some Observations,” in Ando, N., Mcwhinney, R., Wolfrum, R., (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 749–761.

Incidental (accessory) Jurisdiction

251

unclos. The request shall be in writing and shall indicate the grounds for a determination by the Tribunal that the application is made in respect to a dispute referred to in article 297 unclos and, further, that the claim constitutes an abuse of legal process or is prima facie unfounded. The preliminary proceedings may also be opened proprio motu by itlos itself in the space of two months from the date of the application. In both cases, once the question is raised, the Tribunal, or the President, if the Tribunal is not sitting, shall fix a time-limit not exceeding 60 days within which the parties may present their written observations and submissions. The proceedings on the merits shall be suspended and further proceedings to entertain this incidental question shall be oral unless the Tribunal decides otherwise. Finally, itlos shall make its determination in the form of a judgment. I agree with Eiriksson when he says that these types of proceedings, which are, as he describes them, a kind of “preliminary screening” of the disputes listed in article 297, may pose several problems.163 One of them, as evidenced by the former judge of itlos, would be the complexity of article 297 as such.164 Another might be the legal qualification of the dispute as a dispute related to article 297, which must originally be made by the Tribunal to proceed with the notification as provided in article 294.2, or to initiate the proceedings proprio motu.165 Doing this would signify an anticipated recognition of something of which the Tribunal must be convinced. In the first case, how can a determination be made as to whether there is an abuse of legal process without entering into the case in depth to make the decision? In second place, the Tribunal must take no further action in the case if it finds that the claim “is prima facie unfounded.” However, in my opinion, the determination as to whether a claim is founded or unfounded requires dealing with the merits of the case. Furthermore, the fact that the request for these preliminary proceedings must be filed at times that partially coincide with those allotted to the parties for making preliminary objections,166 might create complications derived from the overlap between them, as each suspends the proceedings on the merits. In this regard, the Tribunal might be compelled to deal with issues concerning 163 Eiriksson, The International Tribunal for the Law of the Sea, Kluwer, The Hague, London, Boston, 2000, p. 231. 164 Eiriksson, cit. 165 On this issue, see the various alternatives proposed by Treves dealing with the difficulty of such qualification (Treves, “Preliminary Proceedings…,” cit., p. 751). 166 See articles 96 and 97 rt.

252

chapter 2

the merits of the case when it eventually could find that it lacks jurisdiction or that the application is not admissible. One other observation worth noting is that originally, article 294.1, which had been included within the current article 297, was proposed by coastal States. Their purpose was to prevent “the harassment of the coastal State by submission of disputes that were frivolous or vexatious, or were without any prima facie basis”167 under the assumption that “their sovereign rights and discretions could not be effectively exercised if they were to be harassed by an abuse of legal process and a proliferation of applications to dispute settlement procedures.”168 However, in my view, article 294 is unable to fulfill that purpose for both technical and practical reasons. From a technical point of view, the use of words such as “application,” “claim” or “abuse of legal process” implies, almost necessarily, that the dispute is unilaterally submitted by one of the parties against the other’s will or, at least, without counting on its assent; this, in turn, places the dispute in the ambit of compulsory jurisdiction (compulsory procedures entailing binding decisions).169 If we combine compulsory jurisdiction with both article 297 and the powers of the coastal State which are excluded from said jurisdiction, the result, in principle, would not leave much room for the application of article 294. From a practical point of view, moreover, article 294 may have little utility. Among other reasons, it would be very risky for the Tribunal, without having dealt with the merits, or at least with its own jurisdiction in depth, to reach the conclusion that the very act of bringing the dispute to their own court was an abuse, or even worse, to determine that the claim itself was unfounded in principle (“prima facie”). Perhaps it would be advisable to suppress this article 294 in the future. Jurisdiction to Decide on the Allegation of Preliminary Objections (Articles 294.3 unclos and 97 rt) Apart from the jurisdiction conferred upon it by paragraph 1 of article 294, itlos is also empowered to decide, likewise in a preliminary way, on any objection to its jurisdiction or to the admissibility of the application. This is so expressed by article 294.3 unclos, according to which: “Nothing in this article affects the right of any party to a dispute to make preliminary objections in accordance with the applicable rules of procedure.” 4.3

167 Commentary, vol. v, 297.12. 168 Commentary, cit., 297.14. 169 In this respect, it is obvious that the request cannot be raised for “a party,” like article 294 says, but only by that party to the dispute which assumes the position of the respondent or against which the action is exercised.

Incidental (accessory) Jurisdiction

253

Based on article 79 of the Rules of the icj, Article 97 of the itlos Rules has several things in common with its inspiration. Both lead to preliminary special proceedings previous to dealing with the merits of the case (as the case may be), both entail suspension of the proceedings on the merits (until the preliminary proceedings are decided) and both are settled in the form of a judgment. The said judgment may have one of the three possible outcomes: 1/ to uphold the objection to the Tribunal’s jurisdiction (declaring itself noncompetent), or to uphold the objection to the admissibility of the application (declaring the application inadmissible); 2/ to reject the objection, thus fixing time limits for the further proceedings; or 3/ to declare that given the circumstances of the case, the objection does not possess an exclusively preliminary character, likewise to order the fixing of time limits for continuing with the proceedings and deciding on these objections in the judgment, prior to entering into the decision on the merits (as the case may be).170 However, unlike the Rules of The Hague Court, itlos Rules shorten and simplify the proceedings by merging certain stages and fixing or reducing time limits.171 To date, itlos has not dealt with preliminary objections to its jurisdiction or to the admissibility of the application in this preliminary way. In prompt release proceedings, provided with their own regulation, the matters of jurisdiction, admissibility and merits are treated in a concentrated fashion, occurring as they do within the short time frame given to the proceedings by the Rules. Accordingly, they are decided jointly in the final judgment. Something similar occurs with provisional measures, also subject to summary treatment, as questions concerning admissibility and jurisdiction are treated and decided together with the decision on the measures requested. Furthermore, in the provisional measures proceedings, the Tribunal’s decision on its jurisdiction is prima facie, not final, since this definite analysis and decision corresponds to the principal proceedings. In this respect, some preliminary objections have been put forward in arbitral procedures, for example, in the Southern Bluefin Tuna cases and the mox Plant, as seen above. 170 According to article 97.7 rt, the Tribunal shall give effect to any agreement between the parties that an objection submitted under paragraph 1 be heard and determined within the framework of the merits. 171 In particular: a/ the objections to jurisdiction and to admissibility are treated together while in the icj Rules separate treatment is allowed; b/ the time limit of 90 days for submitting objections begins from the institution of proceedings unlike the icj, where the time allotted begins with the delivery of the Memorial; and c/ a time limit of 60 days is established for the other party to present its written observations and submissions while the Hague Court Rules do not specify any time-limit.

254

chapter 2

On the other hand, in the Saiga 2 case, despite having the opportunity to raise their objections as afforded in the special agreement by the parties in question, the respondent put forward its objections in its Counter Memorial, thus far surpassing the 90-day time limit allowed by the Rules; and they were obviously not dealt with in a preliminary way.172 Jurisdiction to Decide on the Admission or not of a Counter-claim (Article 98 rt) A counter-claim is a claim exercised by the respondent against the applicant taking advantage of the claim presented by the latter against the former. Its regulation is established in article 98 of the Rules of the Tribunal (without a corresponding provision in the Convention) according to which:

4.4

1. A party may present a counter-claim provided that it is directly connected with the subject-matter of the claim of the other party and that it comes within the jurisdiction of the Tribunal. 2. A counter-claim shall be made in the counter-memorial of the party presenting it and shall appear as part of the submissions of that party. 3. In the event of doubt as to the connection between the question presented by way of counter-claim and the subject-matter of the claim of the other party the Tribunal shall, after hearing the parties, decide whether or not the question thus presented shall be joined to the original proceedings. If the counter-claim is admitted, addressing its content belongs to the main or principal jurisdiction of the Tribunal. However, the decision concerning the admission of the question thusly presented being joined to the original proceedings is part of its incidental jurisdiction. In this respect, the incidental issue arises in the event there is doubt as to the connection between the question presented as a counter-claim and the subject-matter of the original claim and/or in case of doubt as to the jurisdiction of the Tribunal to entertain such a claim. On the other hand, as regards the incidental proceedings, the Tribunal has to decide whether or not it should join the issue in question presented in the counter-claim to the main object as presented by the applicant. In theory, the Tribunal could directly join them if there is no doubt as to the connection between the question raised in the counter-claim and the claim in the original proceedings. This can be done in the exercise of its powers to conduct the case. Nevertheless, should a doubt be alleged by the applicant or raised ex officio by 172 Judgment, paragraphs 51 to 74 and operative part, paragraph 183, part 2.

Incidental (accessory) Jurisdiction

255

the Tribunal itself, the most probable scenario is that the question would have to be decided after the parties have been heard. As regards the procedural treatment of counter-claims, article 98 rt finds its inspiration in article 80 rc. However, a reference has been omitted, namely: “the right of the other party to present its views in writing on the counterclaim, in an additional pleading” which “shall be preserved irrespective of any decision of the Court (…) concerning the filing of further written pleadings.” It seems, in this respect, that the itlos Rules have left open the possibility of such a proceeding being joined to the rest of the claims. This would be dangerous in my view, insofar as it might leave the applicant at a disadvantage. The counter-claim is, in any event, a true claim and as such requires that the opponent enjoy the chance to present a true response or Counter-Memorial, in a separate pleading if necessary, as The Hague Court Rules allow.173 It may be deduced from the itlos Order in the Virginia G case174 and its Rules (art. 98) that the counter-claim must fulfill three conditions to be admissible, the first of which is of a formal or procedural nature and the other two of a material nature: 1/ that the counter-claim is made in the counter-memorial of the party presenting it and appears as part of its submissions; 2/ that the counter-claim falls within the jurisdiction of the Tribunal; and 3/ that it is directly connected to the subject-matter of the claim of the other party.175 As is well known, the admissibility of the Counter-claim raised by the Respondent, Guinea-Bissau, by way of its Counter-Memorial, when such Counter-claim was not expressly mentioned in the special agreement with the Applicant, Panama, was the subject of a heated debate before the Hamburg Tribunal, which finally acquiesced to its admission. This case is also treated in Chapter 1, in the block devoted to special agreements. Nevertheless, it seems somehow strange to me that itlos, in its Judgment of 14 April 2014, does not verify whether it has jurisdiction to deal with the

173 On this issue, and particularly regarding the efforts of the icj in maintaining the balance between the parties, see: Salerno, F., “La demande reconventionnelle dans la procédure de la Cour Internationale de Justice,” rgdip, tome 103, 1999–2, pp. 329–378 (in particular, pp. 374 ss.). 174 Order of 2 November 2012. 175 According to itlos Order (para.37), quoting the icj, “it is for the Tribunal “to assess whether the counter-claim is sufficiently connected to the principal claim, taking account of the particular aspects of each case; and whereas, as a general rule, the degree of connection between the claims must be assessed both in fact and in law” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Counter-claims, Order of 17 December 1997, i.c.j. Reports 1997, paragraph 33).”

256

chapter 2

­ ounter-claim.176 In my opinion, one thing is the preliminary verification which C the court or tribunal does in the incidental proceedings regarding the admission of the counter-claim,177 precisely to decide on such admission, and a different issue altogether is the verification that every court or tribunal must do in respect to its own jurisdiction to deal with the merits of the case. In my view, the requirement that the counter-claim “comes within the jurisdiction of the Tribunal” is not fulfilled just with such preliminary verification. Insofar as a counter-claim, when it is admitted, introduces a new dispute in the case, the court or tribunal must verify whether it has jurisdiction to deal with it on equal footing as it does in respect to the original dispute. Jurisdiction to Decide on a Request for Intervention (Articles 31 and 32 st, and Articles 99 and 100 rt) Another manifestation of the incidental jurisdiction of itlos is its power to decide on questions regarding the intervention of third States (or entities with access to it) to the proceedings.178 As Rudolf Bernhardt observed in his report on the Judicial and arbitral settlement of disputes involving more than two States, prepared for the Berlin Session of the Institute of International Law, 1998,179 provisions on intervention are to be found for numerous courts or tribunals. Those provisions (and, accordingly, the corresponding interventions) may be of three types: (a) intervention where the interpretation of a multilateral treaty is at stake as a right for those States that are parties to the convention; (b) intervention of third States that have a legal interest that might be affected by

4.5

176 See paras. 85 to 92 (iv. Jurisdiction) and 402 to 407 (x. Counter-Claim). 177 In the Virginia G case this operation was done in Order of 2 November 2012 (paras. 32 to 36). 178 Regarding the intervention in general and before the International Court of Justice see, inter alia, the following works: Institute of International Law, Judicial and arbitral settlement of international disputes involving more than two States, iil Yearbook, Session of Berlin, 1998, pp. 57–249; Casado Raigón, R., La jurisdicción contenciosa de la Corte Internacional de Justicia. Estudio de las reglas de su competencia, Servicio de Publicaciones de la Universidad de Córdoba, Córdoba, 1987; Espaliú Berdud, C., Desarrollos jurisprudenciales y práctica reciente en la jurisdicción contenciosa de la Corte Internacional de Justicia, Dykinson, Madrid, 2000; Riquelme, R., La intervención de terceros Estados en el proceso internacional, Tecnos, Madrid, 1993; Torres Bernárdez, S., “L’intervention dans la procedure de la Cour internationale de Justice,” rcadi, vol. 256, 1955. 179 iil Yearbook, Session of Berlin, 1998, cit.

Incidental (accessory) Jurisdiction

257

the decision; and (c) intervention to support the submissions of one of the parties to the case.180 The Statute of the International Tribunal for the Law of the Sea, like that of the International Court of Justice, has only ruled on the two first types. On the one hand, according to its article 31: Article 31. Request to intervene. 1. Should a State Party consider that it has an interest of a legal nature which may be affected by the decision in any dispute, it may submit a request to the Tribunal to be permitted to intervene. 2. It shall be for the Tribunal to decide upon this request. 3. If a request to intervene is granted, the decision of the Tribunal in respect of the dispute shall be binding upon the intervening State Party in so far as it relates to matters in respect of which that State Party intervened. In contrast to the icj Statute (art. 62), the Law of the Sea Convention has introduced here an important innovation in paragraph 3, which has no equivalent in the icj Statute.181 On the other hand, according to article 32 st: Article 32. Right to intervene in cases of interpretation or application. 1. Whenever the interpretation or application of this Convention is in question, the Registrar shall notify all States Parties forthwith. 2. Whenever pursuant to article 21 or 22 of this Annex the interpretation or application of an international agreement is in question, the Registrar shall notify all the parties to the agreement. 3. Every party referred to in paragraphs 1 and 2 has the right to intervene in the proceedings; if it uses this right, the interpretation given by the judgment will be equally binding upon it. 180 iil Yearbook, Session of Berlin, 1998, cit., pp. 65 to 67, notes 12 to 15 and Annex i containing a list of the said provisions. 181 Unlike for itlos, the question has been subject to discussion for the icj. In this respect, mention should be made to the Judgment of the Hague Court on the merits of the case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening), where it concludes that “the judgment is not res judicata for Nicaragua” (Judgment of 11 September 1992, icj Reports, 1992, p. 610, para.424). Against, and therefore in support of the binding nature of the icj judgment for the intervener, may be mentioned here Torres Bernárdez (ibid. pp. 730–731).

258

chapter 2

Likewise, in this case the itlos Statute introduces some changes in comparison to its model, article 63 of the Statute of the icj. On the one hand, although merely a question of form, the itlos Statute splits the possible scenarios into two parts: one that deals with the Law of the Sea Convention and the other that concerns the rest of treaties from which the jurisdiction of the Tribunal might result. On the other hand, article 32 not only opens the door to intervention in cases where the “interpretation” of the treaty in question is dealt with but also to those situations in which the “application” is dealt with too. Finally, and again in contrast to the icj, itlos Statute has replaced the reference to States with that of “parties,” in its second and third paragraphs, since the jurisdiction ratione personae of itlos is not limited to States. Obviously, as regards the first paragraph of article 32 st, the mention to States Parties also comprises the international organizations of Annex ix.182 In respect to the procedural stages necessary when carrying out one type of intervention or the other, the Rules of the Tribunal are clearly inspired in those of The Hague Court. Nevertheless, as in their respective Statutes, some remarkable innovations have been introduced. In particular, as regards article 31 st, the Rules make the non-exigency of a jurisdictional link visible: a/ firstly, by making it unnecessary for the entity applying for intervention to specify “any basis of jurisdiction which is claimed to exist as between the State applying to intervene and the parties to the case,” which is requested in the Rules of the icj;183 and b/ secondly, by expressly stating that “Permission to intervene under the terms of article 31 of the Statute may be granted irrespective of the choice made by the applicant under article 287 of the Convention.” On the other hand, some elements remain unchanged: in both cases of article 31 and article 32, the intervening party cannot choose a judge ad hoc nor to object to an agreement to discontinue the proceedings, thereby putting an early end to the dispute, pursuant to article 105.1 rt.184 Nevertheless, despite the attempt that itlos provisions make to enhance, clarify and adapt those that regulate the icj, and by which the former are inspired, in my opinion, they have not been able to avoid dragging along some of the problems inherent to them, all of which derive from the complexity of this institution itself. Summing them up and simply highlighting the main issues.185 First, as it has been pointed out regarding icj, the notion of “interest of 182 See Part 1, Section 2, Chapter 4, of this book, devoted to the ratione personae jurisdiction of itlos regarding the European Union. 183 See article 99.2 rt, in comparison to article 81.2.c rc. 184 Articles 103.4 and 104.3 rt. 185 For a more extent analysis of these troubles, see my previous work: García, El Tribunal Internacional del Derecho del Mar. Origen, organización y competencia, cit., pp. 518 to 526.

Incidental (accessory) Jurisdiction

259

a legal nature” is quite imprecise. As Bernhardt affirmed, the settlement of disputes “is not conceived for deciding upon legal interests but rather concerns rights or obligations of States.”186 Second, also problematic is the status of the intervening entity or State, falling midway between the mere amicus curiae and the parties. Third, the relation between the two cases of intervention regulated in the Tribunal’s Statute, in particular, whether they are two different cases or if the case of intervention detailed in article 32 is a special type from that provided for in article 31, may be a rather complex one. Fourthly, and finally, in respect to the binding nature of the decision, although the itlos Statute means a step forward when specifying, as does article 31, that the decision shall be binding upon the intervening State Party “in so far as it relates to matters in respect of which that State Party intervened” (clarification which is not added to article 32) the determination of the particular scope of that binding nature might become likewise problematic. In respect to this, the inclusion of the decision’s binding nature in the case of article 31 st as well, discourages, in my view, the submission of applications for intervening in this particular way. It is safer to assume the position of an “indispensable party”187 and remain outside of the proceedings, which would thus force the Tribunal to reject any decision which might directly affect its rights, by virtue of the “Monetary Gold” principle.188 Jurisdiction to Decide on the Discontinuance of the Proceedings as requested by the Applicant (article 106 rt) Articles 105 and 106 of the Rules of the Tribunal, under the generic title of “discontinuance” (“desistimiento” in Spanish), regulate several procedural activities 4.6

186 Bernhardt, cit., pp. 84 and 85. Emphasis added. 187 The case of the “indispensable party” is defined by Bernhardt as follows: “The practice of the Court is that only where the decision on legal rights or interests of a third State not party to the case is a conditio sine qua non for the decision of the pending case, the indispensable party objection debars it from taking a decision.” (Bernhardt, cit., pp. 100 ss., in particular, p. 109). 188 The so-called principle of the Monetary Gold departs precisely from the Judgment of the International Court of Justice in the Case of the Monetary Gold Removed from Rome in 1943 (Judgment of 15 June 1954, icj Reports, 1954, pp. 19 ss.). Since the icj, like itlos, cannot force a State to appear before it, and taking into account that its judgments have no binding force except for the parties to the dispute before it (arts. 59 and 33 of their respective Statutes) “proceedings may not be continued where the interests of the third State form the very subject-matter of the case in contrast to a situation where the interests of a third State are merely affected (without forming the very subject-matter of the case)” (Bernhardt, cit., p. 101. See the complete analysis of this principle and the indispensable party in pp. 98 ss.).

260

chapter 2

of the parties to the dispute with the common denominator that they imply the anticipated termination of the proceedings, either partially or totally. Article 105, which is identical to article 88 of the Rules of the icj, regulates cases that we might call “transactionals,” in which the parties agree to advance the termination of the proceedings. According to this provision, “If at any time before the final judgment on the merits has been delivered, the parties, either jointly or separately, notify the Tribunal in writing that they have agreed to discontinue the proceedings, the Tribunal shall make an order recording the discontinuance and directing the Registrar to remove the case from the List of cases.” (para.1). Conversely, “If the parties have agreed to discontinue the proceedings in consequence of having reached a settlement of the dispute and if they so desire, the Tribunal shall record this fact in the order for the removal of the case from the List, or indicate in, or annex to, the order the terms of the settlement” (para.2). On its part, article 106 rt regulates proper cases of discontinuance, in terms of incidental jurisdiction. In these cases it is the applicant, unilaterally, who expresses the desire to discontinue the proceedings instituted by itself: “If, in the course of proceedings instituted by means of an application, the applicant informs the Tribunal in writing that it is not going on with the proceedings, and if, at the date on which this communication is received by the Registry, the respondent has not yet taken any step in the proceedings, the Tribunal shall make an order officially recording the discontinuance of the proceedings and directing the removal of the case from the List of cases” (para.1). And conversely, “If, at the time when the notice of discontinuance is received, the respondent has already taken some step in the proceedings, the Tribunal shall fix a time-limit within which the respondent may state whether it opposes the discontinuance of the proceedings. If no objection is made to the discontinuance before the expiration of the time-limit, acquiescence will be presumed and the Tribunal shall make an order recording the discontinuance of the proceedings and directing the Registrar to remove the case from the List of cases. If objection is made, the proceedings shall continue” (para. 2). In the practice of the International Tribunal for the Law of the Sea an instance of this discontinuance occurred in the Chaisiri Reefer 2 case (Panama v. Yemen) on prompt release. In this case, after an application for prompt release was filed with itlos according to article 292 unclos, and the case was entered on the List as number 9, the parties reached an agreement which meant the release of the vessel with its cargo and its crew from the port of Mukalla where it was arrested. The discontinuance by agreement of the Parties, according to article 105.2 of the Rules, was placed on record by Order of the

Incidental (accessory) Jurisdiction

261

President of itlos, of 13 July 2001.189 Likewise, something similar occurred in the previous case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Union).190 After being suspended and postponed several times, the case was finally discontinued and removed from the List in consequence of an “Understanding” agreed by the parties for the settlement of the dispute. In this case, the Special Chamber, also pursuant to article 105.2 rt, delivered a more detailed Order on 16 December 2009, for recording the discontinuance, in which the essentials of the agreement of the Parties were reproduced.191 5

Jurisdiction after the Judgment or the Final Decision

Although the purpose of itlos is the settlement of disputes submitted to it, after the final decision (whether on the merits or declaring that it has no jurisdiction to deal with the case), some questions requiring its participation may arise. Since the principal proceedings are finished, these questions may only be dealt with within the framework of the accessory or incidental jurisdiction of the Tribunal. The first question that may emerge after the final decision is, precisely, that concerning the interpretation of its own decision.192 In this respect, article 33.3 st, taken from article 60 sc, states the following: “In the event of dispute as to the meaning or scope of the decision, the Tribunal shall construe it upon the request of any party.” Unlike the International Court of Justice, no request for interpretation has, to this date, been filed with the Registry of the International Tribunal for the Law of the Sea.193 189 Order, page 2. 190 As it is well known, the case began with the European Community and finished with the European Union as the latter succeeded the former. This was a consequence of the Lisbon Treaty of 1 December 2009, as the Commission informed the President of the Special Chamber (Order 16 December 2009, paras. 9 and 10). 191 See Order, cit., para.12. 192 On the origin and nature of interpretation and revision before the International Court of Justice, see: Torres Bernárdez, S., “A propos de l’interpretation et de la revision des arrêts de la Cour internationale de justice,” in Le Droit international a l’heure de sa codification, Etudes en l’honneur de Roberto Ago, vol. iii, Giuffré, Milano, 1987, pp. 443–496. 193 According to Eiriksson, Saint Vincent and the Grenadines contemplated submitting a request for the interpretation of the Judgment in the Saiga prompt release case to the Tribunal (Eiriksson, cit., p. 276). This has not been very frequent either in the practice of the pcij and the icj. As regards the first, two cases may be quoted: the Interpretation of the

262

chapter 2

In addition to its capacity to interpret its own decisions, itlos also has the power to revise them in exceptional situations in which a specific cause would justify this action. Unlike the icj, whose Statute recognizes this power,194 the Statute of itlos does not expressly recognize the Hamburg Tribunal as having such competence to revise its judgments. This lacuna, in my opinion, does not hinder the Tribunal from exercising this power as an innate function and a manifestation of its accessory or incidental jurisdiction.195 Nevertheless, by accepting the proposal formulated by the Preparatory Commission,196 itlos incorporated the express recognition of that faculty in its Rules, in particular by taking the regulation set out for the icj as a model.197 According to article 127.1 of the Rules: “A request for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Tribunal and also to the party requesting revision, always provided that such ignorance was not due to negligence. Such request must be made at the latest within six months of the discovery of the new fact and

194 195

196 197

Judgment n° 3, in the dispute concerning the Interpretation of paragraph 4 of the Annex following Article 179 of the Treaty of Neuilly (pcij, Series A, n° 4, 1925) and the Interpretation of Judgments 7 and 8 in the case concerning the Factory at Chorzów (pcij, Series A, n° 13, 1927). As regards the icj, the requests for interpretation have been more in number; some examples are: the Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), which was partially admitted by the icj as regards the interpretation (though rejected as regards the revision) by Judgment of 10 December 1985 and the Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Preliminary Objections), declared inadmissible by Judgment of 25 March 1999, the Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) rejected by Judgment of 19 January 2009, among others. Finally, in its Judgment of 11 November 2013, in the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), the icj found that there was a need for the interpretation of part of the operative paragraph of the Judgment of 1962 and made its interpretation (paras. 53 to 107). Article 61. For this, see the icj explanations in its Advisory Opinion of 13 July 1954 on the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (icj Reports, 1954, p. 55). Articles 115 to 117 of the Draft Rules of itlos, Doc. LOS/PCN/SCN.4/WP.16/Add.1, as incorporated in the Final Report of the Prep. Com. Doc. LOS/PCN.152, 28 April 1995. Contrarily, as it is stated by Gurdip Singh, “It is therefore desirable to insert a provision in the Statute of the International Tribunal for the Law of the Sea providing for the revision of the Tribunal’s judgment (…).” (Singh, G., United Nations Convention on the Law of the Sea. Dispute Settlement Mechanisms, Academic Publications, Delhi, p. 215).

Incidental (accessory) Jurisdiction

263

before the lapse of ten years from the date of the judgment.”198 In this regard, as manifested by the icj, there is no room for revision, either when the fact in question occurs after the judgment,199 or, if it had occurred prior to the judgment, when the party making the application for revision would have had the opportunity to know and introduce the corresponding information during the original proceedings. On the other hand, as the icj has also pointed out, as the fact that is discovered must be “of such a nature as to be a decisive factor,” revision is not admissible when the decision would not have altered even after consideration of the new fact.200 Similar to what we have pointed out in the paragraphs dealing with the power for interpretation, no application for revision has been made so far before the Hamburg Tribunal.201 Finally, in addition to the power to interpret and revise a judgment, itlos also has the power to decide on the vicissitudes concerning its compliance. As with the icj, this power refers to the vicissitudes of compliance, not to compliance itself, as the latter corresponds to the parties to the dispute (or to a concrete party determined by the court or tribunal). As we have seen in the other manifestations of its incidental or accessory jurisdiction, for the Hamburg Tribunal this power is inherent to its own existence and necessary for fulfilling its functions, regardless of whether or not it is given express recognition by its Statute or its Rules. In this respect, as Cannone recalls202 the arbitral tribunals, both of Annex vii and Annex viii unclos, have been expressly invested with 198 As Eiriksson observes, the negligence referred to in the Rules in due to the party introducing the fact, not to the Tribunal. (Eiriksson, cit., p. 277). 199 This is the reason why the request was rejected by the icj in its Judgment of 3 February 2003 in the Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections. 200 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment of 10 December 1985 (paras. 11 to 40). 201 On the other hand, as an exceptional means, it has been seldom used in the practice of the icj and was never used in that of the pcij. In the practice of the icj, some examples are the aforementioned Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), rejected as regards the revision by Judgment of 10 December 1985; the Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, rejected by the icj in its Judgment of 3 February 2003, and the Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua), found inadmissible by Judgment of 18 December 2003. 202 Cannone, Il Tribunale Internazionale del dirito del mare, Cacucci, Bari, 1991, p. 159.

264

chapter 2

the power to decide “Any controversy which may arise between the parties to the dispute as regards (…) the manner of implementation of the award,” and that such controversy might even be submitted to itlos by agreement of all the said parties to the dispute.203 It would not be very logical, in this respect, to empower itlos to deal with the controversies between the parties that concern the implementation of an arbitral award delivered by a body other than itself, without having empowered the Hamburg Tribunal to do the same in regard to its own decisions. On the other hand, in lack of a general recognition, the said faculty is present in some concrete provisions of its Rules, like those requesting the parties to inform and submit reports to the Tribunal as to the compliance with the provisional measures prescribed by it204 or those referring to the posting of the bond or other financial security in prompt release procedures,205 insofar as controversy might arise between the parties as to the manner of implementing the decision. The only occasion on which the parties had a difference on this point before itlos was during the release of the Saiga, when the parties argued as to whether Guinea had complied with the Judgment delivered by the Hamburg Tribunal in the prompt release proceedings. Neither the parties nor the Tribunal treated the question as incidental after the judgment or final decision. In particular, in the Saiga 2 case (both in the provisional measures and merits proceedings) Saint Vincent and the Grenadines requested the Hamburg Tribunal to find that Guinea had failed to comply with the Judgment of the Tribunal of 4 December 1997; in response to that request, itlos did not find such failure in view of the fact that the vessel was released with some delay due to a number of factors, not all of them being caused by the detaining State.206 In my view, the use of this particular means in this particular case is not incompatible with the use of alternative means in other cases, as the Tribunal has not expressed anything to the contrary.207 203 204 205 206 207

Articles 12.2 Annex vii and 4 Annex viii. Article 95 rt. Articles 113 and 114 rt. See in particular, in the itlos Judgment in the Saiga 2 case, the paragraphs 163 to 166. As is widely known, article 94.2 of the un Charter, regulating the icj, says: “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” In this situation, it is obvious that there is no need to open new proceedings on the merits to verify the failure.

As indicated in the Introduction to this book, along with ratione materiae jurisdiction, the competence of the International Tribunal for the Law of the Sea may be also analyzed from a personal perspective. Both types of jurisdiction are directly connected in such a way that they both represent two sides of the same coin. However, insofar as a tribunal may be competent from the material perspective and non-competent from the personal one, and vice versa, it is worth maintaining a division that, conversely, has the advantage of more clearly presenting certain issues where the personal element outweighs the material or where the material element outweighs the personal. In this respect, the examination of the jurisdiction ratione personae of itlos not only permits the identification of entities and persons with ius standi before it, but also allows us to tackle two cardinal issues, namely, the ability of the international organizations regulated in Annex ix to access it (to date, the European Union) and whether or not itlos is capable of dealing with disputes among private entities or persons (individuals).208 208 The terms “private entities or persons” and “individuals” are used as synonyms in this Section.

section 2 

Ratione Personae

∵

chapter 3

Regulation The competence ratione personae of the Hamburg Tribunal is regulated, in general terms, in article 20 of its Statute, according to which: Article 20. Access to the Tribunal 1. The Tribunal shall be open to States Parties. 2. The Tribunal shall be open to entities other than States Parties in any case expressly provided for in Part xi or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case. In addition, access to the Seabed Disputes Chamber is regulated, in particular, in article 37 of the said Statute: Article 37 Access The Chamber shall be open to the States Parties, the Authority and the other entities referred to in Part xi, Section 5. Finally, dealing in particular with disputes on the interpretation or application of the Convention, article 291 says: Article 291 Access 1. All the dispute settlement procedures specified in this Part shall be open to States Parties. 2. The dispute settlement procedures specified in this Part shall be open to entities other than States Parties only as specifically provided for in this Convention.

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004200999_005

chapter 4

States Parties: Special Reference to the European Union As can be seen, the three provisions reproduced above coincide in their recognition that access to the Tribunal is favored for States Parties to the Convention. For the purposes of the Law of the Sea Convention, the expression ‘States Parties’ is not only reserved for “States which have consented to be bound by [the] Convention and for which [the] Convention is in force” (art. 1.2.1) but also for “the entities referred to in article 305, paragraph l (b), (c), (d), (e) and (f), which become Parties to this Convention in accordance with the conditions relevant to each.” To these entities of subparagraphs b to f, “the Convention applies mutatis mutandis” and, to that extent, the term “States Parties” refers also to them (art. 1.2.2). According to article 305.1.b to f, the Convention shall be open for signature by: b. Namibia, represented by the United Nations Council for Namibia; c. all self-governing associated States which have chosen that status in an act of self-determination supervised and approved by the United Nations in accordance with General Assembly resolution 1514 (xv) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters; d. all self-governing associated States which, in accordance with their respective instruments of association, have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters; e. all territories which enjoy full internal self-government, recognized as such by the United Nations, but have not attained full independence in accordance with General Assembly resolution 1514(xv) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters; f. international organizations, in accordance with Annex ix. According to article 306, unclos is subject to ratification by States and the other entities referred to in article 305.1 subparagraphs b to e, and to formal confirmation, in accordance with Annex ix, by entities referred to in subparagraph f of the same provision. Additionally, according to article 307, the Convention is also open for accession by the aforementioned States and © koninklijke brill nv, leiden, ���� | doi 10.1163/9789004200999_006

States Parties: Special Reference To The European Union

269

entities, including those mentioned in subparagraph f. Namibia became independent on 19901 and ratified unclos in 1983.2 Also the majority of the selfgoverning associated States for which subparagraphs c (Cook Islands and Niue) and d (the then Trust Territory of the Pacific Islands)3 were written, have ratified the 1982 Convention.4 On the other hand, in respect to the international organizations referred to in subparagraph f, it is worth mentioning and examining in particular the access to itlos by the European Union (eu) (originally, the European Community, ec), to date the only intergovernmental organization of Annex ix which is a Party to the Convention.5

1 Source: United Nations website on Decolonization: www.un.org/en/decolonization, at February 2015. 2 Source: Doalos website, at February 2015. 3 Commentary, vol. v, 305.10. 4 In particular, Cook Islands and Niue, which have been States in free association with New Zealand since 1965 and 1974 respectively, ratified the Law of the Sea Convention on 15 February 1995 and 11 October 2006, respectively. Similarly, the majority of States that emerged from the Trust Territory of the Pacific Islands have likewise followed the same path. In particular, The Federated States of Micronesia, independent since 3 November 1986, acceded to unclos on 29 April 1991; Marshall Islands, independent since 21 October 1986, acceded on 9 August 1991; and Palau, independent since 1 October 1994, acceded the Convention on 30 November 1996. Sources: Doalos website, un website on Decolonization; Governmental portals of the mentioned States and The World Factbook (www.cia.gov/cia/publications/factbook). 5 On this question, see, among others: Hoffmeister, F., “Litigating against the European Union and Its Member States – Who Responds under the ilc’s Draft Articles on International Responsibility of International Organizations?” ejil (2010) vols. 21–23, pp. 723–747; Rey Aneiros, A., “Le réglement des différends internationaux en matière de droit de la pêche: le rôle de la Communauté européenne,” in La Mediterranée et le droit de la mer à l’aube du 21eme siècle (Actes du colloque inaugural de la Association Internationale du Droit de la Mer) (Cataldi, G., ed.), Bruylant, Bruxelles, 2002, p. 459; Treves, T., “The European Community and the Settlement of Disputes Under the Law of the Sea Convention,” in Estudios de Derecho Internacional en Homenaje al profesor Ernesto J. Rey Caro (Drnas, Z., ed.), Drnas-Lerner Editores, Córdoba (Argentina), 2002, pp. 355–362; and Wolff, A., “The European Community at the International Tribunal for the Law of the Sea,” manuscript, 2001. See also: Allo, A.-P., “L’entrée en vigueur à l’ègard de la Communauté européenne de la Convention des NationsUnies sur le Droit de la Mer du 10 décembre 1982 et l’Accord du 28 juilet 1994 relatif à l’application de la partie xi de la Convention,” Espaces et Ressources Maritimes, 1997, no. 11, pp. 11–33; Commission Pour L’Etude Des Communautes Europeennes, La Communauté européenne et la mer (Colloque de Brest), octobre 1988, Paris, Economica, 1990; Nordman, C., “Regional Organizations: The European Community and the Law of the Sea Convention,” in Vidas, D. and Ostreng, W. (Eds.), Order for the Oceans at the Turn of the Century, Fridtjof

270

chapter 4

First of all, the European Community and its current successor, the European Union, have enjoyed a permanent relationship with the International Tribunal for the Law of the Sea. The European Community was present since the first moment in the process of creating the International Tribunal for the Law of the Sea. In particular, the ec participated as an observer in the Third United Nations Conference on the Law of the Sea;6 it signed the Convention on 7 December 1984 and, as signatory, it joined the Preparatory Commission for the International Seabed Authority and the International Tribunal for the Law of the Sea.7 It also attended as an observer the first Meetings of States Parties to the Law of the Sea Convention in which, following the recommendations made by the Preparatory Commission, practical arrangements were made for putting into motion what is now known as itlos. In addition, the ec, currently the eu, is a Party to the 1982 Convention, after its formal confirmation on 1 April 1998, and, as such, it contributes to the budget of the Hamburg Tribunal in its assigned amount.8 A note in passing is that the budget is also calculated in euros.9 The said relationship has not been limited to organizational aspects10 but also to jurisdictional ones. The European Community was a party to one dispute before the International Tribunal for the Law of the Sea, the case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the



Nansen Institute, Norway, Kluwer, The Hague, London, Boston, 1999, pp. 355–364; Simmonds, K.R., “The European Economic Community and the New Law of the Sea,” rcadi, 1989 (iv), vol. 218; Sobrino Heredia, J.M., “L’Union européenne face aux transformations du Droit de la Mer,” in La Mediterranée et le droit de la mer à l’aube du 21eme siècle (Actes du colloque inaugural de la Association Internationale du Droit de la Mer) (Cataldi, G., ed.), Bruylant, Bruxelles, 2002, pp. 53–84. 6 See article 64 of the iii Conference, as adopted in the plenary session of 27 August 1974, reproduced by Simmonds, K.R., cit., pp. 110 and 111. 7 Resolution i of the iii Conference, para. 2. 8 See, among others, docs. splos 31, paras. 31 and 32, and splos 217, para. 4. 9 The Budget of itlos is prepared both in us dollars and euros according to the “split currency system” originally proposed by Germany and the European Union. See docs. splos 60, para. 37 and splos 91, paras. 48 and 49. 10 García García-Revillo, M., “La Comunidad Europea y el Tribunal Internacional del Derecho del Mar,” Noticias de la Unión Europea, n. 227, dic. 2003, pp. 15–32; El Tribunal Internacional del Derecho del Mar. Origen, organización y competencia, Ministerio de Asuntos Exteriores y Cooperación y Servicio de Publicaciones de la Universidad de Córdoba, Córdoba, 2005; “España y la jurisdicción del Tribunal Internacional del Derecho del Mar: la declaración de 19 de julio de 2002,” redi, vol. lviii, num. 1, enero-junio, pp. 289–308.

States Parties: Special Reference To The European Union

271

South-Eastern Pacific Ocean (Chile/European Community). Apart from that, it has been also present (although not directly), in the mox Plant case, in which it had a decisive impact in a dispute confronting two of its Member States (Ireland and the United Kingdom). Furthermore, these two are not the only cases in which the direct or indirect interests of the eu has been dealt with; there have also been some cases where the Community interest were also at stake in one way or the another – for example, the cases concerning fisheries issues in which the activity was carried out by nationals of a State Member of the eu (Spain) embarked on vessels of third countries (Panama, Seychelles and Belize) applying against another Community State (France) in prompt release procedures (cases Camouco, Monte Confurco and Grand Prince). In addition, several of the Judges of the Tribunal are nationals from States Members of the European Union and the seat of this international judicial institution is located in the territory of one Member State: The Federal Republic of Germany (art. 1.2 st). Whatever the point of view, the importance that each of these two institutions (itlos and eu) has for the other is evident. From the perspective of itlos, the European Union is a “client” of the highest relevance, given its considerable political weight, but also because of its nature as an international intergovernmental organization. Though it cannot access the International Court of Justice it nevertheless enjoys ius standi before the International Tribunal for the Law of the Sea. This access, similar to that enjoyed by the International Seabed Authority, another international organization, somehow contributes to justify the existence of the Hamburg Tribunal. From the perspective of the European Union, its access to the International Tribunal for the Law of the Sea reinforces the international juridical personality and the entity of the European Union because it provides eu with access to a settlement of disputes procedure where it can defend its interests directly, without the mediation of its Member States, unlike the icj, for example in the case concerning the Fisheries Jurisdiction (Spain v. Canada). This direct access occurs in critical areas for the European Union, such as fisheries, navigation or marine environmental protection, among others. Connecting the jurisdiction of itlos in abstract terms (both compulsory and voluntary) with the competence system of the European Union creates a rather uncertain profile upon which the jurisdiction of itlos must depend when adjudging the European Union and all matters related to it. In general terms, the compulsory jurisdiction of the Tribunal is exercised in three major areas: issues relating to the Seabed Area (arts. 187 ss. unclos), prompt release procedures (art. 292) and other disputes in which the parties coincide in electing the Hamburg Tribunal as the competent forum through a declaration made

272

chapter 4

pursuant article 287. In this last case, obviously, the compulsory nature of the system is conditioned on the fact that the dispute is not excluded from such binding nature by article 297 (automatic exceptions) or by virtue of a declaration made pursuant to article 298 (optional exceptions). On the other hand, in relation to incidental jurisdiction, unclos confer incidental jurisdiction on itlos, including that of prescribing provisional measures pending the constitution of the arbitral tribunal to which the dispute is being submitted (art. 290.5). Insofar as the European Union has not made a declaration pursuant to article 287 in connection to Annex ix, article 7, unclos, its activity and implication in the Seabed Area issues is minimal for the moment, and it cannot be considered as a flag State for the purposes of the prompt release procedures in relation to the vessels of its Member States, the fact is that the compulsory jurisdiction of itlos over this regional organization is currently very slight.11 On the contrary, the potential voluntary jurisdiction of itlos as regards the European Union is far greater, as it may deal, potentially speaking, with any dispute concerning the interpretation or application of the Law of the Sea Convention, or any other agreement related to its purposes, or even relating to international customary law of the sea, in all cases, on the condition that the eu and its opponent agree to submit the dispute to the Hamburg Tribunal (arts. 21 and 22 st). Nevertheless, determining the real scope of the voluntary jurisdiction of itlos as regards the eu is considerably complicated because of its complex system of competences attribution. From the perspective of the ratione personae jurisdiction of itlos in dealing with cases in which the eu is a party, there are some authors who find that access relies on articles 20.2 of its Statute and 291.2 unclos.12 In my view it would somehow be better to construct a more solid foundation by basing the locus standi of this international regional organization to the Hamburg Tribunal upon a combination of the following articles: articles 1.2.2 and 305.1.f unclos, on the one hand; article 1 of its Annex ix, on the other hand; and articles 20.1 st and 291.1 unclos, on the other hand. This is so because the eu accesses the Tribunal not as a distinct entity apart from that of a State Party, but to the extent the term “State Party” refers to it pursuant to unclos. In addition, this interpretation is, in my view, more consistent with 11

12

The same can be said in respect to the settlement systems of other international agreements like the 1995 Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, or the 2001 seafo Agreement, in respect to which the eu has not made any declaration either. See, for example, allo, cit., p. 19.

States Parties: Special Reference To The European Union

273

the wording of article 37 st, which deals with access to the Seabed Disputes Chamber of itlos. Apart from the States Parties, the provision mentions only the International Seabed Authority and the remaining entities or persons referred to in Part xi, Section 5. It is clear that, among those entities, the international organizations regulated in Annex ix unclos (like the eu) are not included.13 Either way, whichever be the most accurate construction, the access of the European Union to itlos encounters some limitations. The purpose of the ius standi of the Annex ix organizations to itlos is not to create new or additional actors to its roster of Member States, but rather to ensure that when a dispute involving matters corresponding to competences that have been transferred by them to the organization, appropriate action in dealing with these corresponding matters can be undertaken directly before the competent forum by the entitled entity (organization) instead of being done indirectly and dispersedly by those who transferred the competence (Member States); and thus access to the Hamburg Tribunal by the European Union will be exclusively allowed for the defense of its interests in those matters which has been transferred to it by its Member States (art. 4 Annex ix). Therefore, if the dispute concerns a matter whose competence corresponds to the Member States and not to the European Union, it could be objected to not only for the lack of jurisdiction ratione materiae of itlos but also for its lack of jurisdiction ratione personae; likewise, if a member of the European Union intends to bring a dispute before the Tribunal on a matter whose competence has been transferred by it to the eu, it could also be objected to for its lack of ius standi before the Hamburg Tribunal. States Members of the European Union have transferred competences to this intergovernmental organization in matters regulated by the United Nations Convention on the Law of the Sea. In those matters, the eu exercises the rights and performs the obligations corresponding to those matters. The Members States, as is clearly set out by the Convention, “shall not exercise competence which they have transferred to it.”14 The exercise of rights and fulfilment of obligations corresponding to matters transferred to the eu by its Member States obviously includes their defense in the settlement procedures provided in the Convention or other related agreements or that are generally available to the parties. In the absence of a provision expressly affirming this, the 1982 Convention assumes it implicitly by regulating

13 14

In respect to this, see article 187 unclos. Article 4.3 Annex ix unclos.

274

chapter 4

several aspects of the access by this type of international organization to the settlement procedures that it provides.15 The locus standi thus corresponds to the European Union, and not to its Member States, when dealing with disputes regarding matters transferred to it (the international organization) by its own members. Any situation to the contrary, that is, when Member States might be empowered to litigate alone or together with the eu on disputes concerning transferred matters, would mean an increase in representation which is prohibited by the Law of the Sea Convention.16 For this reason, it is clear in my view that neither the Hamburg Tribunal nor any other court or tribunal – permanent or arbitral – have jurisdiction ratione personae to adjudge an eu Member State in a dispute concerning a matter transferred by it to the eu, whatever the role of such State, be it applicant or defendant, in the corresponding procedure.17 In this respect, the determination of jurisdiction is subject to a couple of  sizable problems: 1/ the difficulty in determining when a matter corresponds to the competence of the European Union or to that of its States Members, and 2/ the impact that the monopoly the Court of Justice of the European Union holds on the interpretation of European Union law may have on the disputes concerning the interpretation or application of the Law of the Sea Convention or other treaties related to its purposes, such as the 1995 New York Agreement.18 Regarding the first, it will indeed be difficult in a number of instances, given the nature of the Community system of competences, characterized by its remarkable complexity and dynamism, to determine whether a matter regulated by unclos corresponds to the eu or to its Member States.19 In respect 15 See article 7, Annex ix unclos. 16 Article 4.4 Annex ix unclos. 17 The eu could confer its representation to a State Member but in this case, the procedural party would still be the same eu, not the State itself. 18 See, in this respect, inter alia, Long, R., J., “The Inexorable Rise of the United Nations Convention on the Law of the Sea within the European Legal Order,” in Lodge, M.V., and Nordquist, M.H. (Eds.), Peaceful Order in the World’s Oceans: Essays in Honor of Satya N. Nandan, Nijhoff, Leiden, 2014, pp. 157–185; Boelaert-Suominen, S., “The European Community, the European Court of Justice and the Law of the Sea,” ijmcl, 23, 2008, pp. 643–713. 19 Regarding the competence system of the eu, see, among others: Liñán Nogueras, D. (Dir.) and López Jurado, C. (Coord.), La reforma de la delimitación competencial en la futura Unión Europea, Editorial Universidad de Granada, Granada, 2003. (In particular, in this book, see: Constantinesco, V., “Breves apuntes sobre el reparto de las competencias como clave de la futura Constitución Europea,” pp. 13–25; Díez Hochleitner, J., “El sistema

States Parties: Special Reference To The European Union

275

to this, professor Roldán Barbero affirms, that unclos, as a mixed treaty, is an excellent laboratory and observatory for the difficulties associated with the coexistence, in a single juridical frame, of the European Union with one or the whole of its Member States.20 To this end, a set of rules in Annex ix was set down with the intention of mitigating as far as possible the problem of the complexity and indeterminacy of the eu competence system, and particularly of avoiding prejudice to third States (non-Member States of the European Union but Parties to the Law of the Sea Convention). According to these rules, either at the time of their respective formal confirmation or accession (in the case of the eu) and ratification or accession (in the case of its member States),21 both the international organization and its member States shall make a declaration specifying the matters governed by the Convention with respect to which competence has been transferred to the organization by its Member States that are also Parties to that treaty; further, they must state the nature and extent on the competence transferred; they shall also promptly notify the depositary (the un Secretary General) of any changes to the distribution of competence, including new transfers as specified in their respective declarations.22 Aside from this, any State Party may request the international organization and its Member States which are Parties to unclos to provide information as to which of them, the organization or its Member States, has competence in respect to any specific question which has arisen23 or to which of them has responsibility in respect to it.24 In any case, States Members of the eu that are Parties of unclos shall be presumed to have competence over all matters governed by this treaty in relation to which transfers of competence to the organization have not been specifically declared, notified or communicated by those States.25 Nevertheless, the efforts made by the unclos drafters

20 21

22 23 24 25

competencial comunitario ante la cig’04: los trabajos de la Convención,” pp. 27–81; Roldán Barbero, F.J., “La delimitación de competencias en las relaciones exteriores de la Unión Europea,” pp. 115–131.) Martín y Pérez de Nanclares, J., “La delimitación de competencias entre la Unión Europea y los Estados miembros: sobre el difícil equilibrio entre la flexibilidad, la eficacia y la transparencia,” Revista de Derecho Comunitario Europeo, n. 12, 2002, pp. 343–391. Roldán, cit., p. 123. Member States of the eu could also make this declaration at the time when the eu deposited its instrument of formal confirmation or accession if such instrument is deposited later than their own ratification or accession (art. 5.2 Annex ix). Article 5, paragraphs 1, 2, 4 and 6 of Annex ix. Article 5.5 Annex ix. Article 6.2 Annex ix. Article 5.3 Annex ix.

276

chapter 4

to solve these problems may not yield the desired results: the a priori strict and accurate determination of the entity entitled with competence, whether Member State or international organization, does not fit comfortably with the complexity and the evolutionary and flexible nature of the eu competence system, whose characteristics make it very difficult, if not impossible, to accomplish a distribution as precise as that required by unclos because it has no other choice.26 This problem appears particularly intense when the dispute is a hybrid, that is to say, when issues involving eu competence and issues involving Member State competence overlap on the same dispute.27 On the other hand, the zeal of the Court of Justice of the European Union (cjeu) in keeping intact its monopoly on the interpretation of the European Union law, brings about a 26

27

The formulas set out to make up for the shortcomings in the declarations made pursuant to Annex ix have their own deficiencies. The prior consult (to whom? how? when?) leaves the question, finally, in the hands of the European Union itself and its States Members. Moreover, the presumption of State entitlement for matters not identified in the declaration as transferred to the eu, suffers the same uncertainty that the nature of the competence system imposes on its own declaration. In addition, it is probably of a little utility for a third State to apply against an eu Member State for a matter that is actually within the competence of the European Union, even when it does not appear in the declaration. It is not easy to connect article 5.5 Annex ix with article 6.2 of the same Annex. At first sight, it seems that there are two types of requirements as regards the determination of who holds the competence and the responsibility. In article 6, the failure to provide information as to who has responsibility in respect to any specific matter results in the joint and several liability of the eu and its State Member concerned; on the contrary, in view of article 5.5, the failure to provide information as to which has competence on an specific matter (the eu or the State Member concerned) has no consequence. In some situations, it is possible to dissociate the Community part from the non-­ Community part of the dispute. In others, it is not possible or it is not convenient for the parties to make such division. For these situations in which the Community part and the non-Community part concur in the dispute, unclos offers only rules concerning the determination of the competent forum in the instance that the organization and one or more of its Member States are joint parties to the dispute, or parties in the same interest: “the organization shall be deemed to have accepted the same procedures for the settlement of disputes as the member States,” excepting the case when a Member State has chosen only the International Court of Justice, in which “the organization and the member State concerned shall be deemed to have accepted arbitration in accordance with Annex vii, unless the parties to the dispute otherwise agree” (art. 7.3 Annex ix). Nevertheless, this litisconsortium is not imposed on the eu and its Members States (as it probably should be in the defense of third States) nor is “parties in the same interest” defined, nor are the consequences clearly determined.

States Parties: Special Reference To The European Union

277

dramatic increase in the intrinsic difficulty of the eu competence system, as we will see below. A paradigmatic case that exemplifies this quandary is, undoubtedly, the mox Plant dispute. Ireland’s opposition to the construction and operation of a plant to produce the nuclear fuel called “mox” (Mixed Oxide Fuel) by the United Kingdom in Sellafield, in the western region of Cumbria, in view of its possible adverse effects on the Irish Sea, meant the starting point of the notorious mox Plant dispute. This case, in its different facets, went to four different international tribunals and finished with dissimilar results:28 1/ before the International Tribunal for the Law of the Sea, which found itself with prima facie jurisdiction to decide on the requested provisional measures;29 2/ before an ospar Tribunal, that is, an arbitral tribunal constituted pursuant to article 32 of the Convention for the Protection of the Marine Environment of the North-East Atlantic, of 22 September 1992, which found itself with jurisdiction to deal with the merits of the dispute submitted to it, concerning article 9 of the said treaty;30 3/ before an Arbitral Tribunal of Annex vii unclos, which estimated that it had prima facie jurisdiction to decide on the provisional measures prescribed by itlos (which were confirmed with modifications) and on the request for new measures submitted by Ireland;31 however, this tribunal

28

29

30

31

In particular, in respect to the violation of unclos, Ireland alleged that, in the first place, the United Kingdom had violated article 206 by failing in its obligation to carry out a proper assessment of the environmental impact of all activities associated with the mox plant on the marine environment of the Irish Sea; secondly, articles 123 and 197 of the Convention by failing in its obligation to cooperate with Ireland in order to protect the marine environment of the Irish Sea, a sea which is semi-enclosed; and finally, articles 192, 193 and/or 194 and/or 207, 211 and 213 of the Convention by failing to take the measures necessary to prevent, reduce and control pollution of the marine environment of the Irish Sea (cjeu, Judgment of 30 May 2006, para. 89). Relying on the doctrine of treaty parallelism, the Hamburg Tribunal, in its Order of 3 December 2001, found that it had jurisdiction prima facie to deal with the request for provisional measures submitted by Ireland. According to itlos, relying in turn on the jurisprudence of other international tribunals, “the application of international law rules on interpretation of treaties to identical or similar provisions of different treaties may not yield the same results, having regard to, inter alia, differences in the respective contexts, objects and purposes, subsequent practice of parties and travaux préparatoires” (Order, para. 51). Relying likewise on the cited doctrine of treaty parallelism applied by itlos, the ospar arbitral tribunal declared itself competent to deal with the merits of the case, and rejected the submissions of Ireland (Award of 2 July 2003). Order of 24 June 2003, extended by Order of 14 November of the same year.

278

chapter 4

decided to suspend the principal proceedings until a decision could be taken, in the European Union ambit, on some critical issues: first, on the entitled entity, that is, whether the competence for the matters in dispute corresponded to the then European Community or to its Member States litigating before it; second, on the question as to whether, according to article 282 unclos, the jurisdiction to deal with the merits of the case, for all or for part of the dispute, might correspond to the European Communities Court of Justice; and 4/ finally, before the ec Court of Justice itself, which, by means of its Judgment of 30 May 2006,32 upholding three of the four complains submitted by the European Commission, declared that Ireland had failed to fulfill its obligations under the eu Law33 by instituting proceedings before itlos and the Annex vii arbitration.34 Turning to the key point of the case, the Annex vii Arbitral Tribunal, despite anticipating a possible preference for the “parallelism of treaties” (para. 5), decided to suspend the proceedings based upon the following line of reasoning: There is (…) a real possibility that the European Court of Justice may be seized of the question whether the provisions of the 1982 Convention on which Ireland relies are matters relating to which competence has been transferred to the ec, and indeed that issues concerning the interpretation and application of the provisions of the Convention are as such matters of ec law. In these circumstances, whether, and if so to what extent, all or any of the provisions of the 1982 Convention fall within the competence of the ec or its Member States would fall to be decided by the European Court of Justice (…) (para. 8). To decide on the jurisdictional issues raised by the United Kingdom in relation to the European Community law, this Tribunal would need to determine, inter alia, whether the European Community or its Member States have competence in respect of all or some of the matters raised in the provisions invoked in this case. In other words the Tribunal must decide if, and to what extent, the rights and obligations arising under the provisions are exercisable by the European Community or by its Member States (para. 9).35 32 33 34

35

Case C-459/03. Articles 10 and 292 tec and 192 and 193 teaec. The Court of Justice did not decide on the submission of the dispute to the ospar arbitration because this behaviour was not submitted to it in the Application for failure to fulfil obligations according to the European Union Law (para. 33); see also the Opinion of the Advocate General (paragraph 5 and note 3). Declaration by the President, on behalf the Arbitral Tribunal, of 13 June 2003.

States Parties: Special Reference To The European Union

279

As seen above, the European Court of Justice eventually declared that Ireland had failed to comply with the European Union law, in its Judgment of 30 May 2006. The relevance of this judicial decision is worth a more extensive commentary. Regarding the first of the three violations declared by the Luxembourg Tribunal,36 it is based on the claim by the European Commission that the Court declared that Ireland had failed to comply with the eu law “for failing to respect the exclusive jurisdiction of the Court by bringing before the Arbitral Tribunal a dispute between it and another Member State concerning the interpretation and application of provisions of the Convention involving obligations assumed by the Community in the exercise of its external competence in regard to protection of the environment, and for thereby breaching Article 292 ec.”37 After examining and upholding the said submission, the cjec affirmed that unclos, which had been signed by the Community and subsequently approved by Decision 98/392, now formed an integral part of the Community legal order,38 and was concluded by the Community and all of its Member States on the basis of shared competence.39 In addition, the European Court stated that, as a “mixed agreement,”40 unclos “has the same status in the

36

37 38

39 40

As regards the second of the submissions of the European Commission, the European Court considers that, by invoking provisions of the European Communities secondary law (essentially, in regard to the ec Treaty, Directives 85/337 and 90/313 and, in regard to the eaec Treaty, Directives 80/836, 92/3 and 96/29 (para. 147)) not only as relevant for the purpose of clarifying the meaning of the general provisions of the Convention in issue in the dispute but also as rules of international law to be applied by the Arbitral Tribunal pursuant to Article 293 of the Convention (para. 149), Ireland submitted instruments of Community law to the Arbitral Tribunal for purposes of their interpretation and application (para. 151) at variance with the obligation imposed on Member States by Articles 292 ec and 193 ea to respect the exclusive nature of the Court’s jurisdiction to resolve disputes concerning the interpretation and application of provisions of Community law (para. 152). Finally, by upholding the fourth submission of the European Commission, the Court of Luxembourg states that, by bringing proceedings under the dispute-settlement system set out in the Convention, without having first informed and consulted the competent Community institutions, Ireland has failed to comply with its duty of cooperation under Articles 10 ec and 192 ea (para. 182). Paragraph 80. Paragraph 82. The said decision was published in ojeu L-179, p. 1. The Court of Justice quotes also, in this respect, the Judgment of 10 January 2006, Case C-344/04 iata and elfaa [2006] ecr i-0000, paragraph 36. Paragraph 83. Paragraph 86.

280

chapter 4

Community legal order as purely Community agreements, as these are provisions coming within the scope of Community competence.”41 In this sense, setting aside article 123 unclos (semi-enclosed seas),42 and focusing on the other provisions of the Convention alleged by Ireland, all of which belong to Part xii regarding the preservation and protection of the marine environment, the Luxembourg Court considered that, by becoming a party to the Convention, the ec was electing to exercise its external competence in matters of environmental protection.43 In view of these precedents, the Court of Luxembourg affirms: on the one hand, “that the matters covered by the provisions of the Convention relied on by Ireland before the Arbitral Tribunal are very largely regulated by Community measures, several of which are mentioned expressly in the appendix to the ec declaration”;44 on the other hand, it also states “that the Convention provisions on the prevention of marine pollution relied on by Ireland, which clearly cover a significant part of the dispute relating to the mox plant, come within the scope of Community competence which the Community has elected to exercise by becoming a party to the Convention.”45 In this respect, the European Court of Justice states: 121 It follows that the provisions of the Convention relied on by Ireland in the dispute relating to the mox plant and submitted to the Arbitral Tribunal are rules which form part of the Community legal order. The Court therefore has jurisdiction to deal with disputes relating to the interpretation and application of those provisions and to assess a Member State’s compliance with them (see, in that connection, Case

41 42

43 44 45

Paragraph 84. The European Court relies in this case on the Judgment of 19 March 2002, Case C-13/00 Commission v Ireland, paragraph 14. As the General Advocate Poiares Maduro recalls in his Opinion, it is not necessary to establish whether the mox-plant dispute falls wholly within the jurisdiction of the Court. It suffices to verify whether at least part of the subject-matter of the dispute is governed by Community law. If that is so then, in his view, a breach of Article 292 ec – or Article 193 ea, as the case may be – is established. (Opinion, 18 January 2006, para. 13.) See also, in the same line, paragraph 135 of the above commented Judgment. On the other hand, in the same paragraph, the Luxembourg Court states that “It is for the Court, should the need arise, to identify the elements of the dispute which relate to provisions of the international agreement in question which fall outside its jurisdiction.” Paragraphs 96 and 97. See also paragraphs 104 to 108. Paragraph 110. Paragraph 120.

States Parties: Special Reference To The European Union

281

C-13/00 Commission v Ireland, paragraph 20, and Case C-239/03 Com­ mission v France, paragraph 31). Moreover, the European Court reaches the conclusion that its jurisdiction, in  this particular case, is exclusive. Its reasoning can be summarized as follows: 123 The Court has already pointed out that an international agreement cannot affect the allocation of responsibilities defined in the Treaties and, consequently, the autonomy of the Community legal system, compliance with which the Court ensures under Article 220 ec. That exclusive jurisdiction of the Court is confirmed by Article 292 ec, by which Member States undertake not to submit a dispute concerning the interpretation or application of the ec Treaty to any method of settlement other than those provided for therein (see, to that effect, Opinion 1/91 [1991] ecr I-6079, paragraph 35, and Opinion 1/00 [2002] ecr I-3493, paragraphs 11 and 12). 124 (…) (T)he Convention precisely makes it possible to avoid such a breach of the Court’s exclusive jurisdiction (…). 125 It follows from Article 282 of the Convention that, as it provides for procedures resulting in binding decisions in respect of the resolution of disputes between Member States, the system for the resolution of disputes set out in the ec Treaty must in principle take precedence over that contained in Part xv of the Convention. 126 It has been established that the provisions of the Convention in issue in the dispute concerning the mox plant come within the scope of Community competence which the Community exercised by acceding to the Convention, with the result that those provisions form an integral part of the Community legal order. 127 Consequently, the dispute in this case is indeed a dispute concerning the interpretation or application of the ec Treaty, within the terms of Article 292 ec. 128 Furthermore, as it is between two Member States in regard to an alleged failure to comply with Community-law obligations resulting from those provisions of the Convention, this dispute is clearly covered by one of the methods of dispute settlement established by the ec Treaty within the terms of Article 292 ec, namely the procedure set out in Article 227 ec. (…) 132 As has been pointed out in paragraph 123 of the present judgment, an  international agreement such as the Convention cannot

282

chapter 4

affect the exclusive jurisdiction of the Court in regard to the resolution of disputes between Member States concerning the interpretation and application of Community law. Furthermore, as indicated in paragraphs 124 and 125 of the present judgment, Article 282 of the Convention precisely makes it possible to avoid such a breach occurring, in such a way as to preserve the autonomy of the Community legal system. With all due respect, I would like to offer a minimal critical observation. If “the provisions of the Convention in issue in the dispute concerning the mox Plant come within the scope of the Community competence (…)” in the extent that the European Court explains,46 then, in application of articles 4 and 5 of unclos, Annex ix, only the European Community (now the European Union) can litigate for disputes concerning such matters. No State member of this international organization can bring a case before any of the procedures provided with the Law of the Sea Convention, nor can it litigate for disputes concerning such matters. Neither itlos, nor the icj, nor arbitral tribunals, have jurisdiction ratione personae to entertain such a case if the applicant, the defendant, or both parties to the dispute are State Members of the eu. Therefore, in my opinion, contrary to what is affirmed by the Luxembourg Court, and likewise by the Annex vii Arbitral Tribunal when it suspends the procedure that had been initiated before it,47 article 282 unclos is not applicable: the procedure agreed upon in the regional agreement, that is, the procedure before the Court of Justice of the European Union, does not apply in place of that provided by Part xv of the Law of the Sea Convention, that is, the Annex vii arbitration (in this case) because the latter lacks jurisdiction ratione personae to adjudge a Member State of the European Union (then Community) for matters which are the competence of the said international organization of  integration. The contrary, that is, to allow States members to litigate against  any other State or between themselves for matters belonging to the 46 47

Paragraphs 126 and 83 ss. Order of 24 June 2003, paragraphs 22 to 28. A criticism to the position adopted by the Annex vii Arbitral Tribunal in the mox Plant case may be also found in Kwiatkowska, Barbara, “The Ireland v. United Kingdom (mox Plant) Case: Applying the Doctrine of Treaty Parallelism.” The International Journal of Marine and Coastal Law, vol. 18, no. 1, March, 2003, pp. 1–58; Röben, V., “The Order of the unclos Annex vii Arbitral Tribunal to Suspend Proceedings in the Case of the mox Plant at Sellafield: How Much Jurisdictional Subsidiarity?” Nordic Journal of International Law, no. 73, 2004, pp. 223–245.

States Parties: Special Reference To The European Union

283

competence of the eu would mean an increase of the representation in violation of article 4 unclos Annex ix.48 In view of the above, and keeping the experience of Ireland in mind, it seems that the scenario for both the eu and its States Members in litigating before any of the procedures provided with the Law of the Sea Convention, appears really complicated when the issue might be connected to matters which have been (or might have been) transferred to that international organization. Note that after four international procedures, before four different international tribunals, Ireland would have had no other choice, should it have persisted in its attempt to settle the mox Plant dispute, except that of initiating a fifth procedure before the Court of Justice of the European Union against the United Kingdom for breaching those provisions of the Law of the Sea Convention which might be considered a part of eu law. It would also have meant keeping part of the dispute before the Annex vii Arbitral Tribunal for its non-­ Community issues. Given the experience, it would seem highly unadvisable in the future for any State Member of the eu to engage in litigation against another State Member without previously establishing – in concert with the European Commission and its opponent – which part of the dispute may be settled through a procedure other than the Court of Justice of the European Union and which part must necessarily be settled in the eu judicial forum. This last point is particularly critical if we take into account, on the one hand, that the European Commission categorically holds that “a Member State cannot unilaterally bring dispute-settlement proceedings within the framework of a mixed agreement without having first informed and consulted the competent Community institutions,”49 and, on the other, that the parties are always able to submit the whole dispute to the eu Court by mutual consent, choosing a solution which the Advocate General Poiares Maduro considered “preferable”50 and which, in my view, is in keeping with the provisions of Section 1 of Part xv unclos. 48

49 50

This seems to be the stand of the European Commission when it claims, as one of the reasons which justify its first head of complaint, that “by instituting dispute-settlement proceedings within the framework of the Convention on the basis of provisions of that Convention falling within the competence of the Community, Ireland exercised a competence which belongs to the Community,” adding that “An act of this kind is liable to create confusion in non-member countries which are parties to the Convention with regard to the external representation and internal cohesion of the Community as a contracting party, and is highly damaging to the effectiveness and coherence of the Community’s external action.” (Judgment, paragraphs 159 and 160). Paragraph 161. Opinion, paragraph 14, note 9.

284

chapter 4

The Judgment of the cjec might have repercussions for Member States of the eu not only when they contend against each other, but also in their disputes against third States. In my opinion, the elements described above, display a profile which is problematic for the eu Member States planning to file an application against a third State for a dispute concerning the interpretation or application of the United Nations Convention on the Law of the Sea without previously verifying, in the European Union ambit, that the competence definitely belongs to it and not to the eu for the purposes of Annex ix of unclos. Otherwise, the third State against which the application is filed might raise a reasonable doubt on the authentic titular of the competence and call into question the ratione personae jurisdiction of the forum itself before which the case has been submitted for dispute settlement. In such a situation, the said forum, whether itlos, the icj, an Annex vii Arbitral Tribunal or any other judicial body, may decide on its own jurisdiction and would also determine which part of the dispute might be considered to correspond to the Member State’s competence, and accordingly, might be settled by it.51 This might be the stand by the icj, which historically has not been keen on leaving its own jurisdiction in another tribunal’s hands, and may also reflect the position of itlos, in view of its position in the mox Plant case. But further, it might also prefer that the entitlement of competence be decided in the ambit of the international organization itself. This last seems to be the stand of the Annex vii Arbitral Tribunal in the mox Plant case. Either way, the situation for the eu Member States becomes problematic: if the unclos tribunal or court decides on its own jurisdiction in the affirmative, the Member State is clearly at risk of having the European Commission and the own Court of Justice of the European Union respectively applying against it and condemning such Member State for exercising competences to which it is not entitled and which belong to the eu. On the contrary, if the unclos forum decides to suspend the proceedings, the European Union Member State would likely see its claim paralyzed, waiting for a decision by the eu institutions in regards the titular of the competence to whom jurisdiction belongs. Similar inconveniences would arise in a situation in which the applicant against a third State Party in unclos were the European Union itself. In such a situation the respondent could also raise a reasonable doubt concerning the titular holder of the competence and, similarly, the forum to which the dispute is submitted could opt for one of the two above-mentioned alternatives: to decide on its own jurisdiction or to suspend the proceedings until the question 51

Article 288.4 unclos.

States Parties: Special Reference To The European Union

285

is decided in the ambit of the European Union. Certainly, in this case, a statement by the European Commission affirming that the matter in dispute is the competence of the eu, might have more power to move the court than one coming from a Member State in the hypothesis explained above. However, is the Commission empowered to make such an affirmation? The declaration by which the distribution of competence between the European Union and its Member States is determined for the purposes of article 5 of Annex ix unclos was approved on behalf the then European Community by Decision 98/392/ ec of 23 March 1998 of the ec Council.52 On the other hand, unlike other declarations provided for in the body of unclos53 and in its Annex ix,54 the aforesaid is not an optional declaration, but a compulsory one that has repercussions for third States Parties in the Law of the Sea Convention which are non-Members of the European Union or similar international organizations. In view of these circumstances, and in the face of a reasonable doubt raised by a respondent State claiming that, in view of the declaration made and deposited by the eu, the matter that is subject to the procedure might not correspond to the said international organization but rather to its Member States, and even additionally claiming that, according to the eu’s law, the interpretation of that declaration does not correspond to the institution which has submitted it (the Commission) but to its author (the Council), or even to the Court of Justice of the European Union. As Long, quoting Churchill and Scott, recalls, “it is important to keep in mind that the Court of Justice of the European Union is the only European institutional body that can make an authoritative determination about the attribution of eu competence in relation to matters covered by the losc.”55 In view of these circumstances, could it be solemnly affirmed that the permanent or arbitral tribunal dealing with the case, itlos, for example, would decide to forego interpreting the declaration itself by simply accepting the interpretation of the declaration’s ambiguities provided by one of the parties in the dispute? Moreover, if either of those developments occurred, then one or more States Members of the eu might consider that, by acting in the said procedure, the European Union would be assuming a competence which corresponded to them, and might consequently decide to bring the question of the competence to the Court of Justice of the European Union 52 53 54 55

oj 1998 L 179, p. 1. Emphasis added. The ‘Declaration of Community competence’ is contained in article 1 (3) of the Decision 98/392. Articles 287, 298 and 310. Article 7. Long, cit. See also Churchill, R., and Scott, J., “The mox Plant Litigation: the First Half Life,” iclq, 53 (2004), pp. 643–676 (at 664–665), as quoted by Long.

286

chapter 4

in Luxembourg. And, similarly, the Council could issue a complaint against the Commission, likewise in the eu ambit, for exceeding its powers by interpreting a declaration of the eu which had not been made by the Commission but by the Council itself, ex Annex ix.56 Finally, the situation is also problematic for a third State Party in unclos that is willing to apply against the European Union or one or more of its Member States. In this situation, the applicant State might certainly request the tribunal to apply the current declaration and interpret its ambiguities and/ or obscurities contra proferentem. However, what purpose would it serve for a State to get a judicial resolution against the eu for a matter which was the competence of its Member States or vice versa? Of course one of the things that has done absolutely nothing to alleviate the problems noted above, is that neither the declaration of the European Community (now the European Union),57 nor that of several of its member States, have been updated since they were first delivered, at least in view of the accession of 13 new members58 to this international organization.59 It is indeed striking to observe that, according to the declaration of the European Union, this Annex ix international organization is still composed of 15 Member States and not 28; it is governed by the Maastricht Treaty of 1992 with no mention made to the Treaties of Amsterdam (1997), Nice (2001) and Lisbon (2007), all of them in force in their respective times. Finally, it is far from edifying to observe the incongruity between the declaration of the European Union 56

57

58

59

See, for example, the Action brought on 10 February 2014 (Council of the European Union v. European Commission) (Case C-73/14), in which the Council of the eu claims that the European Court of Justice “should annul” the Commission’s decision of 29 November 2013 to submit a Written Statement on behalf the eu precisely to itlos in case 21 (Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (srfc)). oj., 23 July 1998 (L-179/130). In the Declaration the reference is done in respect to the 15 States which were members of the European Community at the time of the formal confirmation, at 1 April 1998. Treaties of Accession of 16 April 2003 (in force since the First of May 2004), for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, of 25 April 2005 (in force since the First of January 2007) for Bulgaria and Romania, and of 9 December 2011 (in force since the First of July 2013) for Croatia. See for example the declarations by Slovenia (16 June 1995 and 11 October 2001), Lithuania (12 November 2003), and Hungary (5 February 2002), yet not updated, and that of Latvia (31 August 2005), subsequent to the entry into force of the Accession Treaty. Malta, on the contrary, warned of its then future accession to the eu in its declaration of 20 May 2003 and Estonia fulfils its obligation as regard the said information in its declaration of 26 August 2005.

States Parties: Special Reference To The European Union

287

as currently written and those of its Member States, among which 8 of them (Bulgaria, Croatia, Hungary, Latvia, Lithuania, Romania, Slovakia and Slovenia) have not even manifested their condition as Member States of the European Union (as is their obligation). This is simply unacceptable for an organization whose institutions are so exacting in demanding compliance with and respect for its law by its Member States. The perfect example in this respect was the Irish experience in the mox Plant case. In addition, it also means an open breach of the obligations assumed by the European Union pursuant to Annex ix unclos. While it is true that the preparation of an extensive and complete declaration that clearly sets out competences is not an easy task, in view of the complex nature of the eu system of competences,60 at least one should expect the incorporation of certain minimum contents, such as an up-to-date listing of current States Members and a basic distribution of competences as set out by the Lisbon Treaty in articles 2 to 6 of the current Treaty on the Functioning of the European Union. Anything less is inexcusable and the problem remains urgent.

60

In respect to these complex issues, see Long, cit., pp. 159 ss., and Boelaert-Suominen, cit., pp. 671 ss.

chapter 5

Entities Other Than States Parties: Is the International Tribunal for the Law of the Sea Competent to Deal with Disputes between Private Entities or Persons? Regarding “entities other than the States Parties,” article 20.2 of the Statute allows them to access to the Tribunal in two cases: “in any case expressly provided for in Part xi or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case.” At first sight, the phrase entities or persons other than States Parties might include the States not-Parties (whether signatories or not of the Convention), the entities assimilated to the States Parties by article 305.1, subparagraphs c to f, as long as they do not consent to be bound by the Convention,1 the international intergovernmental organizations and, finally, private entities or persons (individuals), be they natural or juridical. The cases expressly provided for in Part xi are those listed in article 187. As we have seen before, apart from regulating disputes between States on the interpretation or application of Part xi, the provision also allows certain entities or persons of a different nature access to the Seabed Disputes Chamber for certain categories of disputes. In particular, such entities other than States Parties, depending on the cases in question, include the International Seabed Authority (art. 187, paragraphs b to e), the Enterprise (paragraph c), as well as the State enterprises and natural or juridical persons referred to in article 153.2.b (art. 187, paragraphs c to e). So, apart from the cases mentioned here in this paragraph, for other entities or persons other than States Parties, there is no access to ITLOS pursuant to Part xi of the Convention. The same would be true, in respect to the sdc, as set out in article 37 st, which references Section 5 Part xi. On the other hand, what is the precise meaning of the expression “any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to the dispute”? Does it refer only to those agreements that may be 1 See also articles 306 and 307.

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004200999_007

Entities Other Than States Parties

289

qualified as international treaties or, on the contrary, would its meaning also encompass other agreements of a different nature? Obviously, if the expression ‘any other agreement’ exclusively equates to international treaties, only those entities empowered by international law with ius tractatum (that is, States, entities of article 305.1, subparagraphs c to f, and international intergovernmental organizations) have access to itlos; private entities or persons are not among them. On the contrary, if the expression ‘any other agreement’ does not refer only to international treaties, the chance for individuals to access to the Hamburg Tribunal, even through a private deal or contract, would be unobstructed. The Virginia Commentary, when analyzing article 20.2 of the Statute, says that “There is no limit on such entities, provided they are specified in the agreement by which all the parties to a case have accepted the jurisdiction of the Tribunal. Such entities would include (…) State enterprises and natural or juridical persons”; although, “under article 288, paragraph 2, of the Convention, any such “agreement” must be related to the purposes of the Convention.” To the latter, the Commentary adds, subsequently, that: “It is to be noted that the word ‘agreement’ in articles 20 and 21 of this Annex [vi] is broader than the phrase ‘international agreement’ in article 288, paragraph 2 of the Convention”; and that “in view of the specific provision in article 20, paragraph 2, the procedures available under Part xi and Annex vi are thus available to other entities to the extent accepted by all the parties to the agreement (…), and the restrictions in other Parts of the Convention applicable to the disputes relating to the interpretation or application of the Convention are not applicable to disputes under such separate agreements.” Finally, further on in the text, the said publication states that “the reference to ‘public or private’ international agreements was deleted, but deletion of the word ‘international’ before ‘agreement’ implied that the particular definitions of ‘treaty’ in the Vienna Convention on the Law of Treaties of 1969 (…) would not be applicable to the agreements envisaged by article 20.”2 Along the same lines, one might place the position of Vukas and Nelson, inter alia. In Vukas’ opinion, “On the basis of such agreements the Tribunal may be open to an even wider range of entities than the one envisaged in article 305 of the Convention, including, for example, other inter-governmental organizations than those referred to in article 305, paragraph 1 (f) or even nongovernmental organizations active and competent in the field of the law of the 2 Commentary, vol.v, A.vi. 115 to 117.

290

chapter 5

sea.”3 In a similar position, one could also place the opinion of Basedow, according to which: “It would be possible under certain preconditions to be specified by the Tribunal that private parties to a shipping contract or to a time or voyage charter agree on the jurisdiction of the Tribunal for all disputes arising from those contracts. It is equally possible that claims arising from collisions at sea or from rescue operations are submitted to the Tribunal.”4 In opposition to this stand, other scholars, who also were, at that time, sitting judges of itlos, seem to call for a more restrictive interpretation, although they do avoid making an express pronouncement on the issue. In particular, Eiriksson considers that, despite the fact that article 20.2 of the Statute opens up the possibility of a large category of potential parties, the interplay of articles 288.2 and 305 among others, would limit the possible entities to those with a capacity to conclude international agreements. Nevertheless, he states in this regard that the question remains to be addressed by the Tribunal.5 On the other hand, Treves, on the question whether the omission of the word ‘international’ in articles 20 and 21 st is to be read as encompassing private agreements, namely contracts, as result of a literal a contrario sensu interpretation, is of the following opinion. After first making a cautious assumption: “It does not seem appropriate for me to take a stand as to whether such interpretation is the correct one,” he later concludes, however, that: “I would just observe that some arguments could be brought against it,” referring subsequently to issues we will address below.6 3 Vukas, B., “The International Tribunal for the Law of the Sea: Some Features of the International Judicial Institution,” Indian Journal of International Law, vol. 37 (3), 1997, pp. 372–387 (p. 380). Emphasis added. Nelson, D., “The International Tribunal for the Law of the Sea: Some Issues,” Indian Journal of International Law, vol. 37 (3), 1997, pp. 388–395 (p. 395). See also Noyes, J.E., “El Tribunal Internacional del Derecho del Mar,” Boletín Mexicano de Derecho Comparado, n. 81, Sept.–Dec. 1994, pp. 713–732 (p. 728); Noyes, J.E., “Judicial and Arbitral Proceedings and the Outer Limits of the Continental Shelf,” Vanderbilt Journal of Transnational Law, vol. 42 (4), Oct. 2009, pp. 1211–1264 (see note 126 at p. 1238 and note 241 at p. 1259). 4 Basedow, J., “The Law Applicable to Substance of Private Litigation before the International Tribunal for the Law of the Sea,” Rabels Zeitschrift für ausländisches und internationales Privatrecht, 63, Jahrgang, 1999, pp. 360–367 (p. 362). 5 Eiriksson, The International Tribunal for the Law of the Sea, Kluwer, The Hague, London, Boston, 2000, p. 115. 6 Treves, T., “Private Maritime Law Litigation and the International Tribunal for the Law of the Sea,” Rabels Zeitschrift für ausländisches und internationales Privatrecht, 63, Jahrgang, 1999, pp. 350–360 (pp. 353 and 354). In a similar stand, see Rao, P.Ch., “The International Tribunal for the Law of the Sea: An Evaluation,” in Ando, N., McWhinney, R., Wolfrum, R., (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 667–681 (pp. 674 and 675).

Entities Other Than States Parties

291

In my opinion, despite the fact that the text of article 20.2 st clearly points out that itlos is open to entities other than States, even for cases falling outside the bounds of Part xi of the Convention, the correct interpretation of this provision may lead to the conclusion that the expression ‘any other agreement’ refers only to those susceptible to be qualified as international treaties. For this reason, from my perspective, apart from the entities or persons mentioned in Part xi, the jurisdiction ratione personae of the Hamburg Tribunal does not extend to any entities other than those empowered to conclude international treaties. The reasons are the following: In first place, and considering the time when articles 20 st and 305 unclos were drafted, it seems that the amplitude given to the words used in the former is far from the intent of extending openly and expressly the ratione personae jurisdiction of the Tribunal to any kind of person or entity. In my perspective, the drafters of article 20 st were just trying to avoid closing or impeding a priori the access of certain entities to a future Tribunal whose profiles were not yet completely defined. As the Virginia Commentary recognizes,7 the drafting of article 20 st occurred prior to that of article 305 unclos, which was closed at a much later stage of the Third Conference; hence, in that moment, it would have been logical to avoid overly-strict formulas in the wording of article 20 st. On the other hand, it is true that a genuine will to provide the dispute settlement system of unclos with an innovative character was present in the Third Conference. However, the opening up of an international court like the then projected Law of the Sea Tribunal to one or several international inter-governmental organizations, as well as other entities or even certain individuals, in the cases provided for in Part xi, would fully satisfy such aspiration.8 Secondly, if we connect articles 20, 21 and 22 of the Statute one to each other, the expression ‘any other agreement’ may be understood as equivalent to an international agreement. In article 21 st, ‘any other agreement’ clearly alludes, in my opinion, to a type of agreement similar to the one mentioned before in the same sentence, the Law of the Sea Convention to be precise, which is to say

7 Commentary, vol. v, A.vi.116. 8 Adede, for example, in his chronicle of the Third Law of the Sea Conference, recalls the said innovative will and the opening of the settlement proceedings to entities other than States, including those related in Annex ix, but does not expressly affirm its indiscriminate extension to include individuals (Adede, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea. A Drafting History and a Commentary, Nijhoff, Dordrecht, Boston, Lancaster, pp. 236 and 237).

292

chapter 5

an international treaty.9 This would likewise be the case of article 20 st, when using the same expression in relation to Part xi of the same treaty. On the other hand, the word ‘agreement’ (sans adjectives) is clearly used as synonymous with ‘treaty’ in article 22 st. Thirdly, if we connect articles 20 and 37 st (“The [Seabed Disputes] Chamber shall be open to States Parties, the Authority and the other entities referred to in Part xi, Section v”) with article 291.2 unclos (“The dispute settlement procedures specified in this Part [xv] shall be open to entities other than States Parties only as specifically provided for in this Convention”), it would not seem at all logical that for disputes concerning the interpretation or application of the Convention, access to the International Tribunal for the Law of the Sea should be restricted to a limited list of entities and persons for a limited list of disputes (art. 187), while by contrast, for disputes alien to unclos, access to this forum would be open indiscriminately to persons and disputes. In the fourth place, the opening of the Tribunal’s jurisdiction to agreements with or between individuals might raise problems as to the applicable law. According to article 23 st: “The Tribunal shall decide all disputes and applications in accordance with article 293.” On the other hand, article 293.1 unclos establishes that: “A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.” Finally, only the sdc, pursuant to article 38 of the Statute, would be empowered to apply rules other than those referred to in article 293, in particular, “the rules, regulations and procedures” adopted by the Authority, and “the terms of contracts concerning activities in the Area in matters relating to those contracts.” Therefore it does not seem that the Tribunal is empowered, even by its own Statute, to become an interpreter of private or internal norms. Furthermore, an indiscriminate opening up of the Tribunal’s jurisdiction to individuals could mean an invasion of the competences of the States, whether coastal or flag States, particularly in relation to the jurisdiction of local courts. Finally, in the fifth place, the opening of itlos to any private entities or persons apart from those expressly mentioned in Part xi, might alter the nature of the Hamburg Tribunal as an international court. In my view, it is one thing 9 Against, Vukas (cit., p. 383) affirms that “the drafters of this provision avoided use of the term ‘international agreements’ employed elsewhere in respect to the jurisdiction of the courts and tribunals (e.g. art. 288 para. 2). This means that the agreements referred to may not be ‘international’, i.e., they may be agreements concluded between entities which are not subjects of international law (…).”

Entities Other Than States Parties

293

for the jurisdiction of itlos to be exceptionally open, by the States that created it, to limited cases, by means of an international treaty, and quite a different one altogether is, for such jurisdiction, to be open indiscriminately, as a general rule, to any entity or person, outside the control of the said States. In this sense, when dealing with disputes between individuals, it seems clear that it would fit more securely into the profile of arbitral tribunals. In fact, they are frequently utilized precisely for the purpose of settling disputes related to international commerce. In this respect, when considering entities other than States, one must clearly keep in mind that both Annex vii and viii have been written, in very broad terms.10 In view of the above, is it possible that disputes between individuals could be brought before itlos? In my opinion, for the reasons explained above, such a hypothesis, if conceivably possible, would remain circumscribed exclusively to the ambit of Part xi unclos and, in particular, only in very specific cases of joint ventures in which several and various individuals that are partners, are involved in a dispute amongst themselves. Focusing in on Part xi, one will notice that individuals are only mentioned in the cases of article 187. c, d and e. However, in general terms, in the cases that have been referenced, individuals do not dispute among themselves, but against the International Seabed Authority. On the other hand, article 190 tries to avoid precisely these types disputes between individuals and States, when it sets out the following: Article 190 Participation and appearance of sponsoring States Parties in proceedings 1. If a natural or juridical person is a party to a dispute referred to in article 187, the sponsoring State shall be given notice thereof and shall have the right to participate in the proceedings by submitting written or oral statements. 2. If an action is brought against a State Party by a natural or juridical person sponsored by another State Party in a dispute referred to in article 187, subparagraph (c), the respondent State may request the State sponsoring that person to appear in the proceedings on behalf of that person. Failing such appearance, the respondent State may arrange to be represented by a juridical person of its nationality.

10

See articles 13 of Annex vii and 4 of Annex viii.

294

chapter 5

Therefore, interpreting it a sensu contrario, article 190 admits, at least implicitly, the possibility for two individuals to confront one another in a dispute. In my opinion, the case in which such a situation might arise would be, precisely, the above-mentioned that deals with joint ventures involving several participants and the Enterprise when they are mutually leveling accusations against each other over various actions or omissions.11 In this case, my opinion is that the general rule would be the submission of the dispute to binding commercial arbitration because it would be a dispute between contractors concerning their contract, and would fall under article 187.c.ii. This provision would cover mostly accusations against the Seabed Authority itself. However, an agreement between the parties, for example, in order to refrain from raising objections to the jurisdiction of the Authority or to pass directly to the sdc, would be covered under articles 187 and 285 unclos and 20.2 st.12

11 12

This possibility seems to be admitted in article 11.3 of Annex iii and would not be contrary to article 153.2 and 3 in fine. On the access of private entities or persons to the sdc, see also Seeberg-Elverfeldt, N.-J, The settlement of disputes in deep seabed mining..., cit., p. 111.

part 2 

Advisory Jurisdiction

∵

chapter 6

Difficulty in Defining the Advisory Jurisdiction of itlos Having examined the contentious jurisdiction of the International Tribunal for the Law of the Sea, we must turn now, to conclude this analysis on its competence, to its advisory jurisdiction. The mention to the ‘advisory’ appears in the 1982 Law of the Sea Convention in some isolated provisions not related to the plenary but to the Seabed Disputes Chamber of itlos. In particular, article 40 of the Statute alludes to the “functions relating to the advisory opinions” and articles 159 and 191 of the Convention confer to the sdc the assignment of giving “advisory opinions.” However, neither those provisions nor any other in unclos offer a definition of what should be understood by those functions and opinions. It is not easy, in this sense, to give a generally acceptable definition of the advisory jurisdiction. It has varied greatly from one tribunal to another and from one period of time to the next. Originally, in the Permanent Court of International Justice and in the early days of its successor, the International Court of Justice, advisory jurisdiction referred to a very concrete activity and the scope of its ratione materiae and ratione personae jurisdiction was very specific. In short, it referred to the power to render opinions, on certain questions, without binding force. However, as time passed, its original limits were dramatically surpassed, eventually extending the current advisory jurisdiction to a heterogeneous set of faculties which are rather incapable of being summarized in a single idea.1 With the arrival of the Permanent Court of International Justice, came the first instance in history of an international tribunal being empowered with advisory jurisdiction. It was invested with such a power, by article 14 of the League of Nations Pact, and designed for a very specific task: to give advisory opinions “upon any dispute or question referred to it by the Council or by the Assembly.” Afterwards, the International Court of Justice was also empowered with that jurisdiction but in an augmented version both ratione personae and ratione materiae. So, according to article 96 of the un Charter, in relation to article 65 of the icj Statute, not only may the General Assembly and the 1 Regarding the advisory jurisdiction of the icj (and pcij), see, inter alia, Hinojo Rojas, M., A propósito de la jurisdicción consultiva de la Corte Internacional de Justicia, Servicio de Publicaciones de la Universidad de Córdoba, Córdoba, 1997, and Esposito Masicci, C., La jurisdicción consultiva de la Corte Internacional de Justicia, Mc Graw Hill, Madrid, 1996.

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004200999_008

298

chapter 6

Council request the International Court of Justice to give an advisory opinion “on any legal question.” Additionally, the “other organs of the United nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.” During the years following the adoption of the Charter, the original limits of the advisory jurisdiction of the icj were clearly surpassed. In particular, it was allowed that, by means of a special agreement, questions quite different from those originally set forth in the Charter were proposed to the un principal judicial organ, whose opinion was invested of binding force. In particular, through this regime, that Hinojo calls “special” or “extraordinary” (in contraposition to the “ordinary” regime originally defined by the Charter), the use of the advisory jurisdiction of the Court has been allowed to render binding opinions on two matters that, as the said scholar claims, have little or nothing to do with the original contents of 1945 Charter.2 It should be noted firstly that the Statute of the Administrative Tribunal of the International Labour Organization3 allows, and until recently an earlier version of the Statute of the now extinct United Nations Administrative Tribunal4 allowed, some of the resolutions rendered by those respective Tribunals to be challenged before the icj and conferring to the Hague Court’s advisory opinion binding force. Secondly, both the Convention on the Privileges and Immunities of the United Nations, of 13 February 1946,5 and the Convention on the Privileges and Immunities of the Specialized Agencies, of 21 November 1947,6 along with the Vienna Convention on the Law of Treaties between States and International Organizations and

2 Hinojo, cit., p. 72. 3 According to article xii of the ilo Administrative Statute (2009 version): 1. In any case in which the Governing Body of the International Labour Office or the Administrative Board of the Pensions Fund challenges a decision of the Tribunal confirming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed, the question of the validity of the decision given by the Tribunal shall be submitted by the Governing Body, for an advisory opinion, to the International Court of Justice. 2. The opinion given by the Court shall be binding. 4 The original text of article 11 of the unat Statute was changed in its last version. The United Nations Administrative Tribunal has been replaced by the two body new administrative structure of the un, composed of the United Nations Dispute Tribunal and the United Nations Appeals Tribunal (unga Res. 63/253, 24 December 2008). 5 unga Res. 22 (i) 13 February 1946 (Article viii, Section 30). 6 unga Res. 179 (ii) 21 November 1947 (Article ix, Section 32).

Difficulty In Defining The Advisory Jurisdiction Of Itlos

299

between International Organizations, of 21 March 1986,7 under certain conditions also permit submission of disputes raised between international organizations and States or between international organizations among themselves, all of whom are parties to the treaties, and also confer binding force on the icj’s advisory opinion. The advisory jurisdiction of itlos, likewise considerably extended in comparison to its original limits, exhibits a profile that closely resembles that of the icj. Article 191 of the Convention, in whose ambit article 159.10 might be included, is clearly inspired by article 96.1 of the un Charter. Further, article 138 of the Rules of itlos is reminiscent of article 96.2 of the Charter in respect to the icj.8 And finally, as we will see below, it would also be possible to find some resemblance to an “extraordinary” regime. Nevertheless, the advisory jurisdiction of itlos also offers particularities that make it different from its model. The ratione personae contentious jurisdiction of the Tribunal is not limited to States, as is that of the icj. Therefore, at least in respect to the subjects it can reach – subjects beyond the range of the icj – it is not necessary to use advisory jurisdiction as a subterfuge for dealing with certain disputes. On the other hand, the case of article 185 of the Convention, which Cannone places within the advisory jurisdiction of the sdc,9 does not have an equivalent in the icj. Therefore, despite resemblances, it is not possible to create a perfect alignment between the advisory jurisdiction of one tribunal and that of the other. In view of their respective regulations and scope, it seems clear that advisory jurisdiction is neither the same in the pcij, the icj nor, certainly, in itlos. On the other hand, when dealing particularly with the latter two, the transformation they have experienced in their respective advisory jurisdictions compared to their original configuration has resulted in the extreme difficulty, if not to say the impossibility, of reducing their essence into a phrase that can define them. For this reason I have preferred to avoid defining the advisory jurisdiction of itlos and proceed directly to describe what the norm considers as such. 7 Article 66.2.b to f. In this case, disputes must refer to the interpretation or application of article 53 or 64 of the 1986 Convention (norms of ius cogens). 8 Treves, “The Jurisdiction of the International Tribunal for the Law of the Sea,” Indian Journal of International Law, vol. 37 (3), 1997, p. 397. 9 Cannone, Il Tribunale Internazionale dil Diritto del Mare, Cacucci, Bari, 1991, p. 241.

chapter 7

Regulation Strictly attending to the text of the Convention, it is evident that the portion dedicated to the advisory jurisdiction of the Hamburg Tribunal is much smaller than that of contentious jurisdiction, both quantitatively and qualitatively. From a quantitative point of view, the fact is that in the face of the more than fifty articles which in one way or the other may be seen to be connected to contentious jurisdiction,1 the number of those relating to advisory jurisdiction is considerably lower.2 And, from the qualitative point of view, its ambit, ratione materiae and ratione personae, is also much more limited. In this sense, strictly following the wording as such, the result is that the advisory jurisdiction of itlos is exclusively confined to the Seabed Disputes Chamber, and deals with certain questions exclusively related to the Seabed Area and solely when they are formulated by certain organs of the same international organization: the International Seabed Authority. Nevertheless, the fact is that the advisory jurisdiction of itlos has been considerably extended in comparison to its original design in the United Nations Convention on the Law of the Sea. The Tribunal, motu proprio, by means of its Rules, has extended its own advisory jurisdiction ratione personae and ratione materiae at a level far beyond than that expressly conferred upon it by the Convention. All of this has occurred with the acquiescence, or at least the silence, of the States. In this respect, since the approval of the itlos Rules, it is not possible to constrain the analysis of such jurisdiction to the Law of the Sea Convention. To date (28 February 2015), one advisory opinion has been requested of the Seabed Disputes Chamber, in the case of the Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area, decided by the sdc in its Opinion of 1 February 2011. Additionally, a second advisory opinion was requested of the Plenary of itlos. This is the Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (srfc), whose resolution is still pending.

1 We refer here to articles 186 to 190 and 279 to 299 of the Convention and articles 20 and following of its Statute. 2 We basically refer to articles 159.10 and 191 unclos and 14 and 40 st.

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004200999_009

chapter 8

The Advisory Jurisdiction Expressly Conferred on itlos by the Law of the Sea Convention: The Advisory Jurisdiction of the Seabed Disputes Chamber Article 14 of the Tribunal’s Statute, regarding the Seabed Disputes Chamber, states that “Its jurisdiction, powers and functions shall be as provided for in Part xi, Section  5.” Basically, two provisions of the Law of the Sea Convention, articles 191 and 159.10, refer to such advisory jurisdiction. According to them: Article 191. Advisory opinions The Seabed Disputes Chamber shall give advisory opinions at the request of the Assembly or the Council on legal questions arising within the scope of their activities. Such opinions shall be given as a matter of urgency. Article 159.10 Upon a written request addressed to the President and sponsored by at least one fourth of the members of the Authority for an advisory opinion on the conformity with this Convention of a proposal before the Assembly on any matter, the Assembly shall request the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea to give an advisory opinion thereon and shall defer voting on that proposal pending receipt of the advisory opinion by the Chamber. If the advisory opinion is not received before the final week of the session in which it is requested, the Assembly shall decide when it will meet to vote upon the deferred proposal. As to the relation between the two provisions reproduced above, it is evident that there are points of contact between them. Accordingly, even when it is sometimes said that they are exemplars of “two cases,” such a term shouldn’t be understood in the sense that these two provisions exist as two separated circles.1 Both Seeberg-Elverfeldt and Sola seem to consider that, in respect to 1 The expression “two cases” is employed, for example, by Eiriksson, The International Tribunal for the Law of the Sea, Kluwer, The Hague, London, Boston, 2000, p. 143; Treves, “The jurisdiction

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004200999_010

302

chapter 8

the Assembly, the factual element of article 159.10 would completely cover that of article 191; hence, for the purposes of that isba organ, both should be understood as referring to the same thing. One can infer this from Seeberg-Elverfeldt’s position, since he considers the support of one-fourth of the Authority members alluded to in article 159.102 sufficient to fulfill the requirements of article 191; as for Sola, I believe one can deduce this from his making a distinction between “advisory jurisdiction,” in reference to article 191, and “advisory procedure” when mentioning article 159.10.3 Both Cannone4 and Vukas5 seem to reach a different conclusion by mentioning the case of article 159.10 as a special extension of article 191, which would thus function as a general case in respect to the former. This second view would appear to situate the contents of article 159.10 squarely within those of article 191 but, unlike the first two scholars mentioned above, not occupying the space of this provision in its entirety. This issue might be important. If the case of article 159.10 exhausts that of article 191, then, as Seeberg-Elverfeldt states, the support of one quarter of the Assembly’s members would be sufficient to request an advisory opinion that conforms to article 191. However, the only “legal questions” that could be put before the sdc would concern “the conformity with this Convention of a proposal” before the said Assembly (“on any matter”). However, should the case of article 159.10 be included within the ambit of article 191 but not exhausting its contents, that is, if, like Vukas states, article 159.10 establishes a “special procedure” in respect to the “general provision” represented by article 191, then the Assembly is not constrained to questions regarding a proposal’s conformity with the Convention, but the sponsorship by one fourth of the Authority’s members would not be sufficient for questions that might exceed the limits of article 159.10. I share this point of view. In my opinion, the case of article 191 is not completely covered by that of article 159.10, which operates as a special case in respect to the former. It is evident that the conformity with unclos of a proposal before the Assembly of isba on any matter (art. 159.10) is a legal question within the scope of the of…,” cit., p. 397; Akl, J., “The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea,” Indian Journal of International Law, vol. 37 (3), 1997, pp. 435–451 (p. 447). In my view, it is clear that none of the cited authors intends to treat both provisions as totally disconnected. 2 Seeberg-Elverfeldt, N.-J., The Settlement of Disputes in Deep seabed Mining, Nomos Verlagsgesellschaft, Baden Baden, 1998, p. 137. 3 Sola, The International Tribunal for the Law of the Sea, Institut universitaire de hautes etudes internationales, Geneva, 1986, p. 94. 4 Cannone, Il Tribunale Internazionale dil Diritto del Mare, Cacucci, Bari, 1991, p. 240. 5 Vukas, B., “The International Tribunal for the Law of the Sea: Some Features of the New International Judicial Institution,” Indian Journal of International Law, vol. 37 (3), 1997, p. 381.

THE ADVISORY JURISDICTION OF SDC

303

activities of that organ (art. 191). Accordingly, the case of article 159.10 is, certainly, a case of article 191. Moreover, this reasoning is consistent with article 189, when in respect to the contentious jurisdiction of the sdc it states, that: “Without prejudice to article 191, in exercising its jurisdiction pursuant to article 187, the Seabed Disputes Chamber shall not pronounce itself on the question of whether any rules, regulations and procedures of the Authority are in conformity with this Convention (…).” It seems clear, in this regard, that article 189 places the case of article 159.10 within that of article 191. On the other hand, it is clear as well that the conformity with unclos of a proposal before the Assembly is not the only legal question which may be raised within the scope of its activities. For example, a joint request for an advisory opinion made by the Assembly and the Council about which of these two organs is competent in a certain matter does not have to be a question on the conformity with the Convention. However, it clearly is a legal question within the scope of activities of these organs. Hence, the case of article 159.10 does not exhaust the contents of article 191. As we have anticipated above, this has a consequence. While for the Council to request an advisory opinion according to article 191 it is always necessary to obtain the support of a majority of two-thirds of its members present and voting, provided that such majority includes the majority of its members (art. 161.8.b), not all requests to be submitted by the Assembly should be approved with the sponsorship of one fourth of its members. In particular, while for the special case of article 159.10 the support by one fourth of its members is sufficient, for the cases of article 191 not included in article 159.10 the necessary support is that which is ordinarily required for adopting decisions in this organ. In particular, as they are (in my view) questions of substance, the decision should be taken by a majority of two-thirds of the members present and voting provided that such majority includes a majority of the members participating in the session (art. 159.8). This conclusion seems to me the most consistent with what could be the object and purpose of the provisions analyzed in these paragraphs. It is clear, in this respect, that the issue of whether or not a proposal put before the Authority conforms to the Convention is not just any legal question, but clearly a highly qualified one, a genuine question of “constitutionality.” So it would seem logical that for this very special case, the bar has been set lower than that for adopting decisions in general. This allows the minority to preventively control possible illegal decisions supported by the majority.6 6 See in this respect, Caflisch, L., “The Settlement of Disputes Relating to Activities in the International Seabed Area,” in Rozakis, Ch.L., and Stephanou, C. (eds.), The new Law of the Sea, North Holland, Amsterdam, 1983, pp. 303–344 (p. 315).

304

chapter 8

The Advisory Opinion of the Seabed Disputes Chamber, of 1 February 2011, in the Responsibilities case, seems to confirm that articles 191 and 159.10 are different, insofar as the Chamber considers that: According to article 159, paragraph 10, and article 191 of the Convention, the advisory function of the Chamber concerns legal questions submitted by the Assembly and by the Council. Advisory opinions requested under article 159, paragraph 10, of the Convention serve to assist the Assembly during its decision-making process. The Chamber’s advisory jurisdiction under article 191 of the Convention concerns “legal questions arising within the scope” of the activities of either the Assembly or the Council.7 Regarding the content of article 191, only the Assembly and the Council are authorized to request an advisory opinion pursuant to this provision. As seen above, the first requires the majority of two-thirds of those members present and voting provided that such majority includes a majority of the members participating in the session (art. 159.8), and the second needs a similar majority of two-thirds of the members present and voting provided that such majority includes a majority of the members of the Council (art. 161.8).8 Accordingly, neither the Secretariat, nor the subsidiary organs constituted by the Assembly,9 nor the organs of the Council,10 nor the entities or persons with access to the sdc in contentious cases, as mentioned in article 187, that is, States, Enterprises and certain individuals, can request an advisory opinion. A different issue altogether is that the procedure might be open to potential entities with interest in the request, whoever they are. In this respect, itlos Rules refer to this possibility in several provisions. In particular, article 133.1 and 2 state that the Registrar shall forthwith give notice of the request for an advisory opinion to all States Parties as well as the intergovernmental organizations which are likely to be able to furnish information on the question. Further, paragraphs 3 and 4 of the same article establish that both States and such international intergovernmental organizations shall be invited to present written statements on the question 7 8

9 10

Advisory Opinion, para. 27. In the Responsibilities advisory opinion, the decision of the isba Council was adopted on 6 May 2010 “without a vote” and “without objection” (Decision ISBA/16/C/13, Advisory opinion, para. 4 in fine). See article 158.3. These are the Economic Planning Commission and the Legal and Technical Commission (art. 163.1).

THE ADVISORY JURISDICTION OF SDC

305

and to make oral statements should oral proceedings be open. This occurred in the Responsibilities advisory proceedings of 2011.11 Moreover, pursuant to article 130.2 rt, if the sdc considers that the request “relates to a legal question pending between two or more parties,” article 17 of the Statute (and corresponding provisions of the Rules) shall be applied and, accordingly, a judge ad hoc may be appointed. As seen in preceding paragraphs, the request must deal with legal questions arising within the scope of the activities of those organs. Three conditions are to be met accordingly, which the sdc sets out in the Responsibilities case “as regards the present proceedings,” but which in my view might be applicable to all cases: “(a) that there is a request from the Council [or the Assembly]; (b) that the request concerns legal questions; and (c) that these legal questions have arisen within the scope of the Council’s activities [or those of the Assembly].”12 The expression “legal questions” includes, in my opinion, not only the question on the conformity with the Convention of any proposal (in this case, before the Council) but others as well. Among them, for instance, one might easily find those relating to the interpretation or application of the Common Heritage Principle (art. 136 unclos), or a request for an opinion as to which particular competence mentioned above corresponds to which organ of the Authority. In this respect, it seems that the Seabed Disputes Chamber opts for a non-restrictive interpretation of the concept as it does not constrain it to questions regarding the Law of the Sea Convention. In its first Advisory Opinion, in the Responsibilities case, the Chamber, in verifying that the advisory opinion requested of it must concern “legal questions within the meaning of article 191 of the Convention”: (1) affirms that the questions put to it by the Council (relating inter alia “to ‘the legal responsibilities and obligations of States Parties to the Convention with respect to the sponsorship of activities in the Area’; ‘the extent of liability of a State Party for any failure to comply with the provisions of the Convention (…) by an entity whom it has sponsored’; and the ‘measures that a sponsoring State must take in order to fulfill its responsibility under the Convention’”) “concern the interpretation of the Convention and raise issues of general international law,” and (2) reaches the conclusion that these questions “are of a legal nature.”13 Whatever its extent, the question has to fall “within the scope of [the] acti­ vities” of the authorized organ. Therefore, it excludes the chance of requesting an advisory opinion on matters beyond its reach. Nevertheless, the word 11 12 13

See, Advisory Opinion, paras. 5 to 7 and 11 ss. Advisory Opinion, cit., para. 32. Advisory Opinion, paras. 37 to 40. Emphasis added.

306

chapter 8

“activities” may be understood in a broader sense than the term “competences,” and would allow, among other things, that the matter of the question be precisely whether the organ making such request is or not the one empowered with the competence under discussion. Nevertheless, in its Advisory Opinion in the Responsibilities case, the sdc considers that, for making such a determination, “it is pertinent to examine the provisions of the Convention and of the 1994 Agreement that define the Council’s competence.” In so doing, the sdc affirms that “they relate to the exercise of its powers and functions, including its power to approve plans of work” and, accordingly, reaches the conclusion that they fall within the scope of activities of the Council.14 Finally, to conclude the analysis of article 191, we would like to underline two additional matters. In the first place, using the imperative “shall give” leaves no doubt that the sdc is obliged to give its advisory opinion. This formula overcomes the ambiguity in article 65 of the icj’s Statute, which in its time made it uncertain as to whether the Court was obliged to render an advisory opinion or whether it had the discretional power to decline.15 This particular issue was avoided by the sdc in the Responsibilities Advisory Opinion of 1 February 2011 by stating that, despite its awareness of the difference between the wording of article 191 unclos and article 65 of the icj Statute, the Chamber “does not consider it necessary to pronounce on the consequences of that difference with respect of the admissibility in the present case.”16 In the second place, while article 191 states that the advisory opinions of the sdc “shall be given [that is, always] as a matter of urgency,” article 132 of the itlos Rules seem to have mitigated that assertiveness to some degree, by establishing that the Chamber shall only need to take the appropriate steps to accelerate the procedure “if the request for an advisory opinion states that the question necessitates an urgent answer.” As to the mandatory nature of an opinion, in my view it is clear that both in the case of article 191 and in that of article 159.10, the advisory opinion of the Seabed Disputes Chamber, by its own nature, is not compulsory. Nevertheless, as Hinojo observed regarding The Hague Court, the opinion has an unquestionable juridical, political and moral value.17 Even further, in dealing in 14 15 16 17

Advisory Opinion, paras. 41 and 44. Cannone, cit., p. 240. Advisory Opinion, cit., para. 48 (see paras. 46 to 49). Hinojo, M., cit., p. 138. In this sense, as Hambro states, “if all the conditions are fulfilled, it does not matter much if the Opinion is characterised as ‘binding’ or not. It will be clothed with the full authority of the Law and will signify an important contribution to the

THE ADVISORY JURISDICTION OF SDC

307

­ articular with article 159.10, we find that the advisory opinion is additionally p provided with a force that is difficult to ignore, resulting as it does from the fact that the vote is paralyzed until an opinion is rendered and that the request may be sponsored by just one fourth of the members of the Authority. In such a situation, it seems hard to believe that a proposal contrary to the Convention as stated by the sdc, would nevertheless be passed by the Assembly or even maintained by its sponsors. Along with articles 191 and 159.10, one may wonder whether the case of article 185 belongs within the advisory jurisdiction of the Seabed Disputes Chamber as well.18 According to this provision: Article 185 Suspension of exercise of rights and privileges of membership 1. A State Party which has grossly and persistently violated the provisions of this Part may be suspended from the exercise of the rights and privileges of membership by the Assembly upon the recommendation of the Council. 2. No action may be taken under paragraph 1 until the Seabed Disputes Chamber has found that a State Party has grossly and persistently violated the provisions of this Part. As seen in another place in this book,19 regarding the Council’s Recom­ mendation,20 it shall be taken by a reinforced majority of three-fourths of the members present and voting, provided that such majority includes a majority of the members of the Council.21 Once the decision is adopted, the Council shall institute proceedings on behalf the Authority before the Seabed Disputes Chamber to request a resolution by this judicial organ declaring that a gross and persistent violation of Part xi provisions has been committed.22 Should the sdc declare such a violation, then, for the suspension to be imposed, it shall

18

19 20 21 22

d­ evelopment of the law of nations” (Hambro, E., “The Authority of the Advisory Opinions of the International Court of Justice,” ICLQ, vol. 3, 1954, pp. 2–22, as quoted by Hinojo in the same page). See, for example, Cannone, cit., p. 241. Nevertheless, this scholar, despite locating the case of article 185 within the advisory jurisdiction, assumes that “sembra indubbio che l’accertamento da parte della predetta Camera debba avvenire sotto forma di parere consultivo e che anche in tale ipotesi si tratti di un parere obbligatorio.” See Part 1, Section 1, Chapter 1, block 3.1.1.4 (C). Article 162.2.t unclos. Article 161.8.c. Article 122 of itlos Rules and article 162.2.u. unclos.

308

chapter 8

be necessary that the Assembly so agree by a majority of two thirds of the members present and voting, provided that such majority includes a majority of the members participating in the session.23 In principle, the advisory nature of these proceedings could rely on a set of reasons: the proponent organ (the Council) is empowered to request an advisory opinion pursuant to article 191. On the other hand, the possibility for the interested State to participate in these proceedings would not contradict the advisory nature of the opinion itself because proceedings of this nature are also open to those interested in the matter, as noted before. Finally, and above all, the opinion by the sdc in these proceedings would be relatively obligatory but not absolutely so. The decision by the Chamber is of course a conditio sine qua non in taking the action to suspend the accused State. However, the finding by the Chamber that a State Party has grossly and persistently violated the provisions of Part xi is a condition necessary but not sufficient for the suspension to be decided: necessary, because without such a determination suspension is not possible; not sufficient, insofar as even after the Chamber finds that a gross and persistent violation has been committed, the Assembly may decide to refrain itself from deciding the suspension of the accused State. This is definitely a political decision which may be not taken for political reasons: there is no rule that sets up the automatic suspension of a State. Since the Chamber determines the existence of a violation but not its consequences, it might be reasonably thought that, perhaps, the case of article 185 could be better placed within the advisory jurisdiction of the sdc than in the contentious one: at least, the decision of the Chamber, even when in the affirmative, is not binding. However, the truth is that these said characteristics also allow placing the case of article 185 in the contentious jurisdiction of the Seabed Disputes Chamber with similarly correct reasoning: it would be a contentious procedure between the Authority and a State Party, thus falling within the disputes provided for either in article 187.b or in 187.f. In this construction, the matter of the case would not be the suspension on its own, but the determination as to whether a gross and persistent violation of Part xi has been committed by the accused State. The action in this case would be principal, not incidental, as it would not be connected to any other matter; it would be merely declarative, as it is not the final stage for deciding suspension; and it would be binding, like every decision within the realm of contentious jurisdiction. In this respect, being a contentious procedure, the rights of the involved State would be better preserved since it is contending against the Authority from a position of 23

Article 159.8.

THE ADVISORY JURISDICTION OF SDC

309

equality, unlike that of the advisory procedure. This last appears to be the position adopted by itlos, having placed the case of article 185 within the contentious procedures before the Seabed Disputes Chamber, by stating in article 122 of its Rules that: Proceedings by the Council on behalf of the Authority under article 185, paragraph 2, of the Convention shall be instituted by means of an application in accordance with article 162, paragraph 2 (u), of the Convention. The application shall be accompanied by a certified copy of the decision or resolution of the Council upon which it is based and the full records of all discussions within the Authority on the matter.

chapter 9

Extending the Advisory Jurisdiction of the International Tribunal for the Law of the Sea by Means of Its Own Rules: The Advisory Jurisdiction of itlos Itself As discussed previously, the United Nations Convention on the Law of the Sea, when referring to advisory jurisdiction, only mentions the Seabed Disputes Chamber, not the Hamburg Tribunal on its own. Articles 40.2 of the Tribunal’s Statute, as well as articles 191 and 159.10 of the Convention, in this respect, refer only to the advisory competence of the sdc without mentioning the advisory jurisdiction of itlos. Originally, this omission was understood in a negative sense, that is, in the sense that the plenary (the Law of the Sea Tribunal on its own) lacks advisory jurisdiction. Adede, for example, in his chronicle on the treatment of the issue of the settlement of disputes in the Third United Nations Conference on the Law of the Sea, concludes that “Only the Seabed Disputes Chamber is authorized to render advisory opinions. The Law of the Sea Tribunal itself has no advisory jurisdiction.”1 Even, some of the judges who composed the first Hamburg Tribunal in its initial stages noted in their schol­ arly works on the topic, that they likewise considered that such omission meant that only the Seabed Disputes Chamber, not the Tribunal itself, had advisory jurisdiction.2 Despite all this, the Tribunal, by means of its Rules, managed to extend its advisory jurisdiction also to the plenary, thereby attrib­ uting to itself the capacity to render advisory opinions on legal questions. In particular, article 138, and last, of its Rules, lays down the following: 1. The Tribunal may give an advisory opinion on a legal question if an international agreement related to the purposes of the Convention spe­ cifically provides for the submission to the Tribunal of a request for such an opinion.

1 Adede, A., The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea: a Drafting History and a Commentary, Nijhoff, Dordretch, Boston, 1987, p. 196. 2 See, in this respect, Treves, T., “The Jurisdiction…,” cit.; Vukas, B., “The International Tri­ bunal…,” cit.

© koninklijke brill nv, leiden, ���� | doi 10.1163/9789004200999_011

The Advisory Jurisdiction of Itlos Itself

311

2. A request for an advisory opinion shall be transmitted to the Tribunal by whatever body is authorized by or in accordance with the agreement to make the request to the Tribunal. 3. The Tribunal shall apply mutatis mutandis articles 130 to 137. This extension was done by the Tribunal motu proprio. As one examines the Draft of the Rules, as carried out by the Preparatory Commission of the International Seabed Authority and the International Tribunal for the Law of the Sea, there is no such text either identical or bearing any similarity therein.3 Furthermore, such absence is also evidenced by the Reports of the Meetings of States Parties to the Convention: no discussion, no proposal dealing with this issue figures in them either. Hence, one may begin to wonder about the admis­ sibility of this, at least, audacious initiative on the part of the Tribunal, and secondly, about the scope of such an amplification. As for admissibility, if one were to conclude that article 138 of the Rules is contrary to the Convention or to the Statute of itlos, it is obvious that such provision and its extension would clearly be invalid and inapplicable. However, in my opinion, the extension carried out by the Tribunal has not been done “against” the Convention but “beyond” its contents. On the other hand, argu­ ments might be found that favor admissibility. First of all, neither the Statute nor the body of the Convention prohibit the advisory jurisdiction of the Tribunal as such. Certainly, they limit themselves to setting up the cases for which they expressly confer such jurisdiction in regard to the matters relating to the Seabed Area but without specifying anything else in respect to other maritime spaces or situations. Secondly, as Vukas points out (and this is prob­ ably the juridical basis upon which the Tribunal supports its construction) article 21 of the Statute might have opened the door on this extension to the degree that the jurisdiction of the Tribunal not only comprises “all disputes and all applications” submitted to it in accordance with unclos but also “all matters specifically provided for in any other agreement which confers juris­ diction on the Tribunal.” In this respect, as the Croatian judge observed, “The last quoted phrase is so broad that it does not exclude advisory opinions requested by any State or other entity for the Tribunal itself or its chambers.”4 Thirdly, another fact that advocates admissibility of the extension is that it is used by the Tribunal to integrate a lacuna of unclos. As Treves pointed out: “One may express the regret that the power to request advisory opinions has

3 See.doc. LOS/PCN/SCN.4/WP.2. 4 Vukas, cit., p. 381.

312

chapter 9

not been given to other organizations which are entrusted with particular functions under the Convention. It seems questionable, for instance, that a United Nations specialized agency such as the International Maritime Organi­ zation should be entitled to request the International Court of Justice for an advisory opinion on whether it is the ‘competent international organization’ mentioned in various provisions of the Law of the Sea Convention, while, on such a question arising within the scope of its activities, and so intimately con­ nected with the interpretation of the Convention, it cannot request the opin­ ion of the International Tribunal for the Law of the Sea.”5 Whether admissible or not, the situation is that this extension, this amplifi­ cation of the scope of its advisory jurisdiction by means of its Rules, as carried out by the Tribunal, has been de facto admitted by the States Parties to unclos. The Rules, drafted by the Tribunal in accordance with the project submitted by the Preparatory Commission, were approved sans objection to this amplifica­ tion by the Meeting of States Parties. Even further, it is undeniable that the Rules of the Tribunal, as a document, are public and very well-known, as is the information on the jurisdiction and other aspects of the Tribunal prepared by the Registry and offered both via its website and the Yearbook of the Tribunal. On the other hand, it seems clear that the Tribunal opted for a cautious solu­ tion as regards the scope of the text of article 138 since the possibilities of exer­ cising its extended advisory jurisdiction are limited to a very particular ambit ratione materiae and ratione personae. In my view, the expression “interna­ tional agreement” should be interpreted as equivalent to an international treaty, not just to any kind of agreement, thus limiting a request for advisory opinions to international subjects empowered with ius tractatum, that is, States and international intergovernmental organizations. In addition, not all treaties are suitable for such a petition, only those “related to the purposes of the Convention.” From my point of view, this means that the Tribunal exer­ cised a preference for keeping itself within the limits of article 288 unclos instead of opting for the broader terms available in its Statute. Finally, any pos­ sibility of requesting an advisory opinion from itlos must be specifically pro­ vided for in the treaty. Accordingly, it is not possible to deduce it from the text or agree on it by means of an instrument of secondary law, as the case may be. Nonetheless, it would be possible, and advisable in my opinion, to specify more the contents of article 138 rt regarding its scope ratione personae and ratione materiae. In particular, in respect to the ratione personae jurisdiction, I

5 Treves, cit., p. 397. See also Nelson, D., “The International Tribunal for the Law of the Sea: Some Issues,” Indian Journal of International Law, vol. 37 (3), 1997, pp. 388–395 (p. 394).

The Advisory Jurisdiction of Itlos Itself

313

think that the provision, as it is now, could permit a State, on its own, to submit a request for an advisory opinion to the Hamburg Tribunal if an international treaty related to the purposes of the Convention allowed it to do so; for exam­ ple, a bilateral treaty regarding fisheries or environmental protection. On the other hand, as regards the ratione materiae jurisdiction, article 138 requires that the treaty must be related to the purposes of the Convention, but does not state that the question also must be related to such purposes. In this respect, perhaps it would be advisable to require that the question refers to those pur­ poses too. On 28 March 2013, itlos received a Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (srfc), located in Western-Africa, pursuant to article 138 of the Rules of the Tribunal. In particular, according to article 33 of the Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources within the Maritime Areas under Jurisdiction of the Member States of the Sub-Regional Fisheries Com­ mission (srfc), the Conference of Ministers of the srfc authorized its Permanent Secretary to bring before itlos the following questions: 1. What are the obligations of the flag State in cases where illegal, unre­ ported and unregulated (iuu) fishing activities are conducted within the Exclusive Economic Zones of third party States? 2. To what extent shall the flag State be held liable for iuu fishing activi­ ties conducted by vessels sailing under its flag? 3. Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the vio­ lation of the fisheries legislation of the coastal State by the vessel in question? 4. What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common inter­ est, especially the small pelagic species and tuna? During oral and written proceedings, an intense debate has taken place pre­ cisely on whether or not the full Tribunal has been invested with this extended advisory jurisdiction.6 As of 28 February 2015, the case is still pending.

6 See, inter alia, the Written Statements of Germany, New Zealand, China, Somalia, fs Micronesia and Chile (in favor of jurisdiction), on the one hand, and Ireland, Australia, the United Kingdom and France (against), on the other.

Bibliography Abad Castelos, M., El Tribunal Internacional de Justicia y la Protección Cautelar de los Derechos de los Estados, Dykinson, Madrid, 2002. Abi-Saab, G., “Fragmentation or Unification: Some Concluding Remarks,” NYU Journal of International Law and Politics, vol. 31 (4), Summer 1999 (Symp Issue: “The Proliferation of International Tribunals: Piecing Together the Puzzle”), pp. 919–933. Acosta Estévez, J.B., El proceso ante el Tribunal Internacional de Justicia, José María Bosch Editor SA, Barcelona, 1995. ———, El Tribunal Internacional del Derecho del Mar, Asociación para las Naciones Unidas en España, Barcelona, 2002. Adede, A., “Settlement of Arising under the Law of the Sea Convention,” AJIL, vol. 69 (4), 1975, pp. 798–818. ———, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea: A Drafting History and a Commentary, Nijhoff, Dordretch, Boston, 1987. Akl, J., “The Sea-Bed Disputes Chamber of the International Tribunal for the Law of the Sea,” Indian Journal of International Law, vol. 37, 1997, pp. 435–451. ———, “La procédure de prompte mainlevée du navire ou prompte libération de son équipage devant le Tribunal international du droit de la mer,” Annuaire du Droit de la mer (INDEMER), tome VI, 2001, pp. 219–246. Allo, A-P., “L’entrée en vigueur à l’ègard de la Communauté européenne de la Convention des Nations-Unies sur le Droit de la Mer du 10 décembre 1982 et l’Accord du 28 juilet 1994 relatif à l’application de la partie XI de la Convention,” Espaces et Ressources Maritimes, 1997 (11), pp. 11–33. Almagro Nosete, J., Derecho Procesal, vol. I, Tirant lo Blanch, Valencia, 1988. Anand, R.P., “The Settlement of Disputes and the Law of the Sea Convention,” in Van Dyke, J.M. (ed.), Consensus and Confrontations: The United States and the Law of the Sea Convention, Law of the Sea Institute, Honolulu, 1985, pp. 483–487. Anderson, D.H., “Investigation, Detention and Release of Foreign Vessels under the United Nations Convention on the Law of the Sea of 1982 and Other International Arrangements,” IJMCL, vol 11 (2), May 1996, pp. 165–177. ———, “The International Judicial Practice of the International Tribunal for the Law of the Sea,” Indian Journal of International Law, vol. 38 (3–4), July–December 1998a, pp. 410–428. ———, “The International Tribunal for the Law of the Sea,” in Evans, M. (ed.), Remedies in International Law: The Institutional Dilema, Hart Publishing, Oxford, 1998b, pp. 71–83. ———, “Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/ Myanmar). International Tribunal for the Law of the Sea Judgment delimiting the

316

Bibliography

territorial sea, exclusive economic zone and the continental shelf within and beyond 200 miles.” AJIL, vol. 106 (4), 2012, pp. 817–882. Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002. Arenas Meza, M., “El Tribunal Internacional del Derecho del Mar ante la pesca ilegal, no declarada y no reglamentada,” in Urbina, J.J., and Ponte, M.T. (coords.), Protección de intereses colectivos en el Derecho del mar y cooperación internacional, Iustel, 2012, pp. 213–256. Armas, F., “El Caso ‘Grand Prince’ ante el International Tribunal for the Law of the Sea,” in Drnas, Z (coord.), Estudios de Derecho Internacional en Homenaje al Profesor Ernesto J. Rey Caro, Drnas-Lerner Editores, Córdoba, Argentina, 2002, pp. 399–418. Aznar, M., “El Tribunal Internacional del Derecho del Mar,” in Vazquez Gomez et al. (Coords.), El arreglo pacífico de las controversias internacionales, Tirant lo Blanch, Valencia, 2013, pp. 371–412. Basedow, J., “The Law Applicable to the Substance of Private Litigation before the International Tribunal for the Law of the Sea,” Rabels Zeitschrift für ausländisches und internationales Privatrecht, 63, Jan. 1999, pp. 361–367. Bedjaoui, M., and Ouguergouz, F., “Le forum prorogatum devant la Cour internationale de Justice: les ressources d’une institution ou la face cachée du consensualisme,” Annuaire Africain de Droit International, vol. 5, 1997, pp. 91–114. Bergin, A., “The Politics of Prepcom. Australia’s Role,” Marine Policy, vol. 11 (4), 1987, pp. 299–312. Bernhardt, J.P., “Compulsory Dispute Settlement in the Law of the Sea Negotiations: A Reassessment,” Virginia Journal of International Law, vol. 19, 1979–1980, pp. 69–105. Bialek, D., “Australia & New Zealand v. Japan: Southern Bluefin Tuna Case,” Melbourne Journal of International Law, vol. 1 (1), Dec. 2000, pp. 153–161. Birnie, P.W., “Dispute Settlements Procedures in the 1982 UNCLOS,” in Butler, W.E. (ed.), The Law of the Sea and International Shipping: Anglo-Soviet post UNCLOS Perspectives, Oceana Publications, Dobbs Ferry, New York, 1985, pp. 39–68. Boelaert-Suominen, S., “The European Community, the European Court of Justice and the Law of the Sea,” IJMCL, 23, 2008, pp. 643–713. Boldemann, K.M., The International Tribunal for the Law of the Sea: New Chances for International Dispute Settlement? Nottingham, 1998. Boyle, A.E., “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction,” ICLQ, vol. 46 (1), January 1997, pp. 37–54. ———, “Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks,” IJMCL, vol. 14 (1), March 1999, pp. 1–25. ———, “The Environmental Jurisprudence of the International Tribunal for the Law of the Sea,” IJMCL, vol. 22 (3), 2007, pp. 369–381. Breen, J.H., “The 1982 Dispute Resolving Agreement: The First Step Toward Unilateral Mining Outside the Law of the Sea Convention,” ODIL, vol. 14 (2), 1984, pp. 201–233.

Bibliography

317

Brown, Ch., “International Tribunal for the Law of the Sea-Provisional Measures before the ITLOS: The MOX Plant Case,” IJMCL, vol. 17 (2), Jun. 2002, pp. 267–288. ———, “The Inherent Powers of International Courts and Tribunals,” British Yearbook of International Law, vol. 76 (1), 2005, pp. 195–244. Brown, E.D., “Dispute Settlement and the Law of the Sea: UN Convention Regime,” Marine Policy, vol. 21 (1), 1997, pp. 17–44. ———, “The M/V ‘Saiga’ Case on Prompt Release of Detained Vessels: The First Judgment of the International Tribunal for the Law of the Sea,” Marine Policy, vol. 22 (4 and 5), 1998, pp. 307–326. ———, “Dispute Settlement,” Marine Policy, vol. 5, 1981, pp. 282–286. Buergenthal, T., “Proliferation of International Courts and Tribunals: Is It Good or Bad?” Leiden Journal of International Law, vol. 14 (2), 2001, pp. 267–275. Buga, I., “Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals,” IJMCL, vol. 27 (1), 2012, pp. 59–95. Caflisch, L., “The Settlement of Disputes Relating to Activities in the International Seabed Area,” in Rozakis, Ch.L., and Stephanou, C.A. (eds.), The New Law of the Sea, North Holland, Amsterdam, 1983, pp. 303–344. Caminos, H., “The Creation of Specialised Courts: The Case of the International Tribunal for the Law of the Sea,” in Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 569–574. Cannone, A., Il Tribunale Internazionale del diritto del mare, Cacucci, Bari, 1991. Carnegie, A.R., “The Law of the Sea Tribunal,” ICLQ, vol. 28, 1979, pp. 669–684. Carrillo Salcedo, J.A., El Derecho Internacional en perspectiva histórica, Tecnos, Madrid, 1991. ———, “Droit international et souveraneté des Etats. Cours géneral de droit international public,” RCADI, vol. 257, 1996, pp. 35–222. ———, Curso de Derecho Internacional Público, Tecnos, Madrid, 1999. Casado Raigón, R., La jurisdicción contenciosa de la Corte Internacional de Justicia. Estudio de las reglas de su competencia, Servicio de publicaciones de la Universidad de Córdoba, Córdoba, 1987. ———, “La sentencia de la CIJ de 20 de diciembre de 1988 (competencia y admisibilidad de la demanda) en el asunto relativo a las acciones armadas fronterizas y transfronterizas (Nicaragua c. Honduras),” REDI, vol. XLI (2), 1989, pp. 398 ss. ———, “¿España c. Canadá o España/Canadá? El objeto de la controversia en la sentencia de la CIJ de 4 de diciembre de 1998,” REDI, vol. LI (1), 1999, pp. 131 ss. ———, “Règlement des différends,” in Vignes, D., Casado, R., and Cataldi, G. (eds.), Le Droit international de la pêche maritime, Bruylant, Bruxelles, 2000, pp. 316–365. ———, “Réflexion générale sur le règlement des différends concernant le droit de la mer,” in Cataldi, G. (ed.), La Méditerranée et le Droit de la Mer à l’aube du 21e siècle, colloque inaugural de la Association Internationale du Droit de la Mer, Bruylant, Bruxelles, 2002, pp. 45–51.

318

Bibliography

———, “Algunas consideraciones en torno al anunciado y no constituido Tribunal Internacional del Derecho del Mar,” Anuario de Derecho Marítimo, vol. VI, 1998, pp. 259 ss. ———, “Procedures Entailing Binding Decisions and Disputes Concerning the Interpretation or Application of the Law of the Sea,” in Boschiero, N. et al. (eds.), International Courts and the Development of International Law. Essays in Honour of Tullio Treves, Asser Press (Springer), The Hague, 2013, pp. 245–256. Charney, J.I., “The Implications of Expanding: International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea,” AJIL, vol. 90 (1), 1996, pp. 69–75. Churchill, R., “The Jurisprudence of the International Tribunal for the Law of the Sea Relating to Fisheries: Is There Much in the Net?” IJMCL, vol. 22 (3) 2007, pp. 383–424. Colliard, C.A., “Problèmes et solutions en matière de règlement des différends,” in Colloque de Rouen. Perspectives du droit de la mer à l’issue de la troisème Conférence des Nations Unies, Pedone, Paris, 1984, pp. 174–189. Collins, L., “Provisional and Protective Measures in International Litigation,” RCADI, vol. 228, 1992, pp. 9–238. Colson, D., and Hoyle, P., “Satisfying the Procedural Prerequisites to the Compulsory Dispute Settlement Mechanisms of the 1982 Law of the Sea Convention: Did the Southern Bluefin Tuna Tribunal Get It Right?” ODIL, vol. 34 (1), 2003, pp. 59–82. Coquia, J.R., “Settlement of Disputes in the UN Convention on the Law of the Sea: New Directions in the Settlement of International Disputes,” Indian Journal of International Law, 25, 1985, pp. 171–190. Cot, J.P., “Appearing ‘for’ or ‘on behalf’ a State: The Role of Private Counsel before International Tribunals,” in Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 835–847. De La Fayette, L., “The M/V Saiga (No. 2) Case: (St. Vincent and the Grenadines v. Guinea), Judgment,” ICLQ, vol. 49 (2), April 2000a, pp. 467–476. ———, “ITLOS and the Saga of the Saiga,” IJMCL, vol. 15 (3), 2000b, pp. 355–392. De Mestral, A.L.C., “Compulsory Dispute Settlement in the Third UN Convention on the Law of the Sea: A Canadian Perspective,” in Sohn, L.B., and Buergenthal, T. (eds.), Contemporary Issues in International Law. Essays in Honour of Louis B. Sohn, Kehl, Strasbourg, Arlington, 1984, pp. 169–188. Del Vecchio, A., “I Tribunali internazionali nell’evoluzione della comunità internazionale” Studi in onore di Francesco Capotorti, I, Giuffrè, 1999, pp. 147–166. ———, International Courts and Tribunals between Globalisation and Localism, Eleven Int. Publishing, The Hague, 2013. Devine, D.J., “Compulsory Dispute Settlement in UNCLOS Undermined? Southern Bluefin Tuna Case: Australia and New Zealand v. Japan 4 August 2000,” South African Yearbook of International Law, vol. 25, 2000, pp. 97–112.

Bibliography

319

Drel, M.I., “The United Nations Convention on the Law of the Sea: New Trends in the Settlement of Disputes,” Soviet Yearbook of Maritime Law, 1988, pp. 17–26. Dupuy, P.M., “The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice,” NYU Journal of International Law and Politics, vol. 31 (4), Summer 1999 (Symp Issue: “The Proliferation of International Tribunals: Piecing Together the Puzzle”), 1999, pp. 791–807. Dupuy, R.J (ed.), Le règlement des différends sur le nouvelles resources naturelles. The settlement of disputes on the new natural resources, Colloque (La Haye, 8–10 nov., 1982), Nijhoff, La Haye, 1983. Dupuy, R.J., and Vignes, D., A Handbook on the New Law of the Sea, Nijhoff, Dordretch, Boston, Lancaster, 1991. Eiriksson, G., “The Role of the International Tribunal for the Law of the Sea in Peaceful Settlement of Disputes,” Indian Journal of International Law, vol. 37, 1997, pp. 347–355. ———, “The Special Chambers of the International Tribunal for the Law of the Sea,” Indian Journal of International Law, vol. 38 (3–4), July–December 1998, pp. 429–446. ———, The International Tribunal for the Law of the Sea, Martinus Nijhoff, The Hague, 2000a. ———, “Prompt Release of Vessels and Crews in accordance with Article 292 on the United Nations Convention on the Law of the Sea,” Cuadernos de Derecho Pesquero, 1, Servicio de Publicaciones de la Fundación Pedro Barrié de la Maza, La Coruña, 2000, pp. 21–34. Eisemann, P.M., “L’environnement antre terre et mer. Observations sur l’instrumentalisation tactique du Tribunal de Hambourg,” La Mer et son Droit. Melanges offerts à Laurent Lucchini et Jean Quéneudec, Pedone, Paris, 2003, pp. 221–238. Eitel, T., “The Law of the Sea Tribunal: Its Status and Scope of Jurisdiction after November 16, 1994,” ZAO RV, 55 (2), 1995, pp. 452–456. Espaliú Berdud, C., Desarrollos jurisprudenciales y práctica reciente en la jurisdicción contenciosa de la Corte Internacional de Justicia, Dykinson, Madrid, 2000. Espósito Massicci, C., La jurisdicción consultiva de la Corte Internacional de Justicia, Mc Graw Hill, Madrid, 1996. Eyffynger, A., The International Court of Justice 1946–1996, Kluwer, The Hague, London, Boston, 1996. Fernández De Casadevante, C., “Los silencios y las tergiversaciones del TIJ en el asunto de la Competencia en materia de pesquerías (España c. Canadá),” REDI, vol. LI (1), 1999, pp. 155 ss. Fernández Tomás, A., “La compatibilidad de las reservas con el estatuto de la Corte Internacional de Justicia y el Derecho Internacional general, en el sistema de la cláusula facultativa,” REDI, vol. LI (1), 1999, pp. 91 ss.

320

Bibliography

Fleischauer, C.A., “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, pp. 327–333. Freestone, D., “Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area Seabed Disputes Chamber of the International Tribunal for the Law of the Sea advisory opinion on the responsibility of sponsoring states for deep-seabed mining operations,” AJIL, vol. 105 (4), 2011, pp. 755–760. Gaertner, M.P., “The Dispute Settlement Provisions of the Convention on the Law of the Sea: Critique and Alternatives to the International Tribunal for the Law of the Sea,” San Diego Law Review, 19, 1982, pp. 577–597. Gamble, J.K. Jr, “The Law of the Sea Conference: Dispute Settlement in Perspective,” Vanderbilt Journal of Transnational Law, 9, 1987, pp. 171–184. ———, “The 1982 UN Convention on the Law of the Sea: Binding Dispute Settlement?” Boston University International Law Journal, 9 (1), 1991, pp. 39–58. García García-Revillo, M., “The Release of Crew according to ITLOS Jurisprudence,” in La Méditerranée et le Dorit de la mer à l’aube du 21e siècle, Actes du colloque inaugural de la Association Internationales du Droit de la Mer, Bruylant, Bruxelles, 2002, pp. 97–112. ———, “La liberación de la tripulación en la jurisprudencia del Tribunal Internacional del Derecho del Mar, Cuadernos de Derecho Pesquero, n. 2, 2003, pp. 35–47. ———, “La Comunidad Europea y el Tribunal Internacional del Derecho del Mar,” Noticias de la Unión Europea, no. 227, dic. 2003, pp. 15–32. ———, El Tribunal Internacional del Derecho del Mar. Origen, organización y competencia, Ministerio de Asuntos Exteriores y Cooperación y Servicio de Publicaciones de la Universidad de Córdoba, Madrid, Córdoba, 2005. ———, “España y la jurisdicción del Tribunal Internacional del Derecho del Mar. La declaración de 19 de julio de 2002,” REDI, vol. LVIII (I), 2006, pp. 289–308. ———, “International Tribunal for the Law of the Sea: Year in Review – 2011,” Yearbook on International Environmental Law, OUP, 2012. ———, “La Unión Europea y el Tribunal Internacional del Derecho del Mar,” in Vazquez Gomez et al. (Coords.), El arreglo pacífico de las controversias internacionales, Tirant lo Blanch, Valencia, 2013, pp. 413–442. Gautier, Ph., “La procédure devant le Tribunal international du droit de la mer,” Espaces et ressources maritimes, vol. 12, 1998, pp. 24–43. ———, “Mesures conservatoires, préjudice irréparable et protection de l’environnement,” in Liber amicorum Jean-Pierre Cot. Le procès international, Bruylant, Bruxelles, 2009a, pp. 131–154. ———, “Urgent proceedings before the International Tribunal for the Law of the Sea” (Issues in Legal Scholarship) Frontier Issues in Ocean Law: Marine Resources, Maritime Boundaries, and the Law of the Sea, Berkeley University Press, 2009b, pp. 1–20.

Bibliography

321

———, “Le rôle du Tribunal International du Droit de la Mer face a la violence en mer,” in Sobrino, J.M (Dir.), Maritime Security and Violence at Sea, Bruylant, Bruxelles, 2011, pp. 483–492. Giorgi, M.C., “Le Tribunal international du droit de la mer,” Coll. ERM., no. 2, 1987, pp. 171–184. Goy, R., “Les premières décisions du Tribunal International du Droit de la Mer, Coll. ERM, no. 11, 1997, pp. 135–156. Guggenheim, P., “Les mesures conservatures dans le procédure arbitrale et judiciaire,” RCADI, vol. 40, 1932, pp. 645–764. Guillaume, G., “The Future of International Judicial Institutions,” ICLQ, vol. 44 (4), Oct. 1995, pp. 848–862. Hamamoto, S., “La procédure de prompte mainlevée préjuge-t-elle le fond de la procédure interne de l’état côtier? L’évolution de la jurisprudence du Tribunal international du droit de la mer sur la prompte mainlevée,” RGDIP, vol. 113, 2009, pp. 851–871. Hargrove, J.L., “Settlement of Disputes under the Law of Ocean Use, with Particular Reference to Environmental Protection, Georgia Journal of International and Comparative Law, 6, 1976, pp. 181–196. Haubert, W.H., “Toward Peaceful Settlement of Ocean Space disputes: a working paper,” San Diego Law Review, 11, 1974, pp. 733–756. Higgins, R., “The ICJ, the ECJ, and the Integrity of International Law,” ICLQ, vol. 52 (1), Jan. 2003, pp. 1–20. Hinojo Rojas, M., A propósito de la jurisdicción consultiva de la Corte Internacional de Justicia, Servicio de Publicaciones de la Universidad de Córdoba, Córdoba, 1997. ———, “El pabellón de las organizaciones internacionales,” Anuario de Derecho Marítimo, vol. XXIX, 2012, pp. 125–171. ———, “La insuficiente regulación de la cuestión del pabellón en la Convención de las Naciones Unidas sobre el Derecho del Mar de 1982,” in Sobrino Heredia, J.M. (Dir.), La contribution de la Convention des Nations Unies sur le droit de la mer. A la bonne gouvernance des mers et des oceans, vol. 1, Editoriale Scientifica, 2014, pp. 79–97. Infante, M.T., and Gorostegui, J.J., “Current Developments on State Responsibility and Liability in the Area,” manuscript. Institut De Droit International, “Etude des amendements à apporter au Statut de la Cour internationale de Justice” (Rapp. Max Huber), Ann. IDI, vol. 45, (Session d’Aixen-Provence), avril/mai 1954, tome I, pp. 407 ss. Institut De Droit International, “Le réglement judiciaire et arbitral des différends internationaux impliquant plus de deux Etats,” Ann. IDI, vol 68, tomo I. (Session de Berlin, 1998, premier partie), pp. 57–249. Jacovides, A., “Peaceful Settlement of Disputes in Ocean Conflicts: Does UNCLOS III Point the Way?” in Sohn, L.B., and Buergenthal, T. (eds.), Contemporary issues in International Law. Essay in honour of Louis B. Sohn, Arlington, Strasbourg, 1984, pp. 165–168.

322

Bibliography

———, “International Tribunals: Do They Really Work for Small States?” New York University Journal of International Law and Politics, vol. 34, 2001, pp. 253–261. Jaenicke, G., “Dispute Settlement under the Convention on the Law of the Sea,” Zaö RV, 43 (4), 1983, pp. 813–827. ———, “Prompt Release of Vessels-The M/V ‘Saiga’ Case,” Max Planck Yearbook of United Nations Law, vol. 2, 1998, pp. 387–407. ———, “The Interpretation of the Law of the Sea Convention in the Jurisprudence of the International Tribunal for the Law of the Sea,” in Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 683–695. Janis, M.W. (ed.), International Courts for the 21st Century, Nijhoff, Dordretch, 1992. ———, “Dispute Settlement in the Law of the Sea Convention: The Military Activities Exception,” ODIL, vol. 4 (1), 1977, pp. 51–65. ———, “The Law of the Sea Tribunal and the International Court of Justice. Some notions about utility,” Marine Policy. The international Journal of ocean affairs, 16, 1992–2, Oxford, pp. 102–106. Jennings, R.Y., “The Judiciary, International and National, and the Development of International Law,” ICLQ, vol. 45 (1), January 1996, pp. 1–12. Jiménez De Aréchaga, E., El Derecho Internacional Contemporáneo, Tecnos, Madrid, 1980. Jiménez García, F., “Los criterios interpretativos en el sistema de la cláusula facultativa y el automatismo interpretativo de la reserva material canadiense en la sentencia sobre la Jurisdicción en materia de pesquerías, Competencia (España c. Canadá),” REDI, vol. LI (1), 1999a, pp. 115 ss. ———, La Jurisdicción obligatoria unilateral del Tribunal Internacional de Justicia. Sus efectos para España, Dykinson, Madrid, 1999b. Jiménez Piernas, C., “La ratificación por España de la Convención de 1982 sobre el Derecho del mar y del Acuerdo de 1994 sobre la aplicación de la Parte XI: nuevos riesgos de la codificación del Derecho internacional,” REDI, vol. LIII (1), 2001, pp. 105–124. Juste Ruiz, J., “La sentencia del TIJ en el asunto de la Competencia en materia de pesquerías (España c. Canadá), de 4 de dicembre de 1998. ¿Ocasión frustrada o punto de inflexión?” REDI, vol. LI (1), 1999, pp. 141 ss. Kdhir, M., Dictionaire juridique de la Cour internationale de Justice, Bruylant, Bruxelles, 2000. Keyuan, Z., “The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands,” IJMCL, vol. 14 (1) 1999, pp. 27–55. Kiehne, G., “Investigation, Detention and Release of Ships under the Paris Memorandum of Understanding on Port State Control: A View from Practice,” IJMCL, vol. 11 (2), 1996, pp. 217–231.

Bibliography

323

Kindt, J.W., “Dispute Settlement in International Environmental Issues: The Model Provided by the 1982 Convention on the Law of the Sea,” Vanderbilt Journal of Transnational Law, 22 (5), 1989, pp. 1097–1118. Klein, N., Dispute Settlement in the UN Convention on the Law of the Sea, Cambridge University Press, Cambridge, 2005. Kostantinidis, I., “Dispute Settlement in the Law of the Sea, the Extended Continental Shelf in the Bay of Bengal and the CLCS: Some Preliminary Observations on the Basis of the Case Bangladesh/Myanmar before the International Tribunal for the Law of the Sea,” Aegean Review of the Law of the Sea, 2010, pp. 267–285. Koskenniemi, M., and Leino, P., “Fragmentation of International Law? Postmodern Anxieties,” Leiden Journal of International Law, vol 15 (3), 2002, pp. 553–579. Kwiatkowska, B., “The Saint Vincent and The Grenadines v. Guinea M/V Saiga Cases,” Leiden Journal of International Law, vol. 11, 1998, pp. 547–564. ———, “Inauguration of the ITLOS Jurisprudence: The Saint Vincent and the Grenadines v. Guinea M/V Saiga Cases,” ODIL, vol. 30 (1), 1999, pp. 43–78. ———, “Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Order on Provisional Measures (ITLOS Cases nos. 3 and 4),” AJIL, vol 94 (1), 2000a, pp. 150–155. ———, “The Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) Cases,” IJMCL, vol. 15 (1), 2000b, pp. 1–36. ———, “The Saint Vincent and the Grenadines v. Guinea M/V Saiga Cases before the International Tribunal for the Law of the Sea,” in Rothwell, D.R., and Bateman, S. (eds.), Navigational Rights and Freedoms and the New Law of the Sea, Nijhoff, The Hague, London, Boston, 2000c, 275–292. ———, “The Australia and New Zealand v. Japan Southern Buefin Tuna (Jurisdiction and Admissibility) Award of the First LOSC Annex VII Arbitral Tribunal,” IJMCL, vol. 16 (2), Jun. 2001a, pp. 239–293. ———, “The Australia and New Zealand v. Japan Southern Buefin Tuna (Jurisdiction and Admissibility) Award of the First LOSC Annex VII Arbitral Tribunal,” NILOS Online Papers, IJMCL, vol. 16, 2001b, pp. 239–294, as revised and updated 27 March 2003, http://www.law.uu.nl/nilos, sep. 2003. ———, Decisions of the World Court Relevant to the UN Convention on the Law of the Sea. A Reference Guide, Nijhoff, The Hague-London-New York, 2002a. ———, “The Southern Bluefin Tuna Award (Jurisdiction and Admissibility),” in Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002b, pp. 697–730. ———, “The Ireland v. United Kingdom (Mox Plant) Case: Applying the Doctrine of Treaty Parallelism,” IJMCL, vol. 18 (1), Mar. 2003, pp. 1–58. Lagoni, R., “The Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea: A preparatory report,” IJMCL, vol. 11 (2), May 1996, pp. 147–164.

324

Bibliography

Laing, E., “Automation of an International Judicial Organ: A Preliminary Analysis,” Indian Journal of International Law, vol. 37, 1997, pp. 452–465. ———, “A Perspective on Provisional Measures under UNCLOS,” Netherlands Yearbook of International Law, vol. XXIX, 1998, pp. 45–70. Lauterpacht, E., “The First Decision of the International Tribunal for the Law of the Sea: The M/V Saiga,” in Liber Amicorum Prof. Ignaz Seidl-Hohenveldern, Kluwer, The Hague, London, Boston, 1998, pp. 395–418. Lauterpatch, E., Aspects of the Administration of International Justice, Grotius, Cambridge, 1991. Lehoux, G., “La troiseme conference sur le droit de la mer et le reglement obligatoire des differends,” Canadian Yearbook of Intenrnational Law, 18, 1980, pp. 31–90. Levy, J.P., “Un novel instrument de developpment progressif du droit de la Mer: La Commission Preparatoire de L’Autorité Internationale des fonds marins et du Tribunal International du Droit de la Mer,” AFDI, 34, 1988, pp. 735–763. See also the series prepared by this author for the Coll. ERM (1986–1995). Lodge, M.W., “Some Reflections on the First Request to the Seabed Disputes Chamber for an Advisory Opinion,” The Law of the Sea Convention, Us Accession and Globalization, Nijhoff, 2012, pp. 165–172. Lowe, V., “The M/V Saiga: The First Case in the International Tribunal for the Law of the Sea,” ICLQ, vol. 48 (1), January 1999, pp. 187–199. ———, “The International Tribunal for the Law of the Sea: Survey for 2001…,” IJMCL, vol. 16 (4), Dec. 2001, pp. 549–569. See also the series of ITLOS “Surveys” prepared for this scholar for the same publication since this one. Lukaszuk, L., “Settlement of International Disputes Concerning Marine Scientific Research,” Polish Yearbook of International Law, vol. XVI, 1987, pp. 39–56. Magnússon, B.M., “Judgement in the Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (14 March 2012),” IJMCL, vol. 27 (3), 2012, pp. 623–633. Malia, G.A., “Dispute Resolution Mechanisms of the Law of the Sea Regime: The New ‘International Tribunal for the Law of the Sea’: Prospects for Dispute Resolution at the Sea Court,” Georgetown International Environmental Law Review, 7 (3), Summer 1995, pp. 791–795. Manner, E.J., “Settlement of Sea Boundary Delimitation Disputes according to the Provisions of the 1982 Law of the Sea Convention,” Essays in International Law in Honour of Judge Manfred Lachs, The Hague, Boston, Lancaster, 1984, pp. 625–643. Mansfield, B., “The Southern Buefin Tuna Arbitration: Comments on Professor Barbra Kwiatkowska’s Article,” IJMCL, vol. 16 (2), Jun. 2001, pp. 361–366. Marín López, A., “La solución de controversias en el Convenio del Derecho del Mar de 1982,” Pensamiento Jurídico y Sociedad Internacional. Libro Homenaje al profesor D. Antonio Truyol y Serra, vol. I/II, Madrid, 1986, pp. 749–772.

Bibliography

325

Marotta-Rangel, V., “Navios em Direito internacional: Questoes preliminares,” in Drnas, Z. (coord.), Estudios de Derecho Internacional en Homenaje al Profesor Ernesto J. Rey Caro, DRNAS-LERNER Editores, Córdoba, Argentina, 2002, pp. 469–479. ———, “Tribunal International du Droit de la Mer: Procédures incidentes,” in Casado, R., and Cataldi, G. (dirs.), L’évolution et l’état actuel du droit international de la mer. Mélanges de droit offerts à Daniel Vignes, Bruylant, Bruxelles, 2009, pp. 587–603. Marr, S., “The Southern Bluefin Tuna Cases: The Precautionary Approach and Conservation and Management of Fish Resources,” EJIL, 11, 2000, pp. 815–831. Marsit, M.M., “Le réglement du tribunal international du droit de la mer,” Annuaire du droit de la mer (Indemer), 1997, tome II, pp. 309–331. ———, Le Tribunal du Droit de la Mer. (Présentation et textes officiels), Pedone, París, 1999. ———, “Cinquiéme anniversaire du Tribunal international du droit de la mer,” in La Mer et son Droit. Melanges offerts à Laurent Lucchini et Jean Quéneudec, Pedone, Paris, 2003, pp. 421–436. Mcdorman, T., “The Dispute Settlement Regime of the Straddling and Highly Migratory Fish Stocks Convention,” The Canadian Yearbook of International Law, vol. XXXV, 1997, pp. 57–79. Meeson, N.K., “A Prompt but Controversial Decision for prompt release (The Saiga),” Lloyds Maritime and Commercial Law Quarterly, 1998, pp. 485–489. Mensah, T., “The Place of the International Tribunal for the Law of the Sea in the International System for the Peaceful Settlement of Disputes,” Indian Journal of International Law, vol. 37, 1997a, pp. 466–477. ———, “The International Tribunal for the Law of the Sea: Its Role for the Settlement of the Law of the Sea Disputes,” African Yearbook of International Law, vol. 5, 1997b, pp. 227–242. ———, “El Tribunal Internacional del Derecho del Mar y la Protección y Preservación del Medio Ambiente Marino,” Boletín de la UICN, Mayo-Septiembre 1998a, p. 2. ———, “The International Tribunal and the Protection and Presevation of the Marine Environment,” Environmental Policy and Law, vol. 28 (5), 1998b, pp. 216–219. ———, “The Dispute Settlement Regime of the 1982 United Nations Convention on the Law of the Sea,” Max Planck Yearbook of United Nations Law, volume 2, 1998c, pp. 307–323. ———, “The International Tribunal for the Law of the Sea,” Leiden Journal of International Law, vol. 11, 1998d, pp. 527–546. ———, “The Tribunal and the Prompt Release of Vessels,” IJMCL, vol. 22 (3) 2007, pp. 425–449. Merrils, J.G., International Dispute Settlement, Cambridge University Press, Cambridge, 2011. ———, “Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice,” ICLQ, vol. 44 (1), January 1995, pp. 90–146.

326

Bibliography

Meseguer, J.L., “La solución jurisdiccional obligatoria de las controversias en el nuevo Derecho del Mar: las excepciones en materia de recursos vivos,” REDI, vol. XXXVIII (2), 1986, pp. 571–590. Miller, N., “An International Jurisprudence? The Operation of ‘Precedent’ Across International Tribunals,” Leiden Journal of International Law, vol. 15 (3), 2002, pp. 483–526. Mirbahavi, F., “Fishery Disputes Settlement and the Third United Nations Conference on the Law of the Sea,” Revue de droit international, de sciences diplomatiques et politiques, vol. 57, 1979, pp. 45–58. Mubiala, M., “Le système du règlement pacifique des différends dans la Convention de 1982 sur le droit de la mer,” Coll. ERM, vol. 7, 1993, pp. 323–336. Ndiaye, T.M., “Les procédures contentieuses devant le Tribunal International du Droit de la Mer,” in Casado, R., and Cataldi, G. (dirs.), L’évolution et l’état actuel du droit international de la mer. Mélanges de droit offerts à Daniel Vignes, Bruylant, Bruxelles, 2009, pp. 645–690. Nelson, L.D.M., “The International Tribunal for the Law of the Sea: Some Issues,” Indian Journal of International Law, vol. 37, 1997, pp. 388–395. ———, “The Settlement of Disputes Arising from Conflicting Outer Continental Shelf Claims,” IJMCL, vol. 24 (2) 2009, pp. 409–422. Nordman, C., “Regional Organizations: The European Community and the Law of the Sea Convention,” in Vidas, D., and Ostreng, W. (eds.), Order for the Oceans at the Turn of the Century, Fridtjof Nansen Institute, Norway, Kluwer, The Hague, London, Boston, 1999, pp. 355–364. Nordquist, M. (ed. in chief), Nandan, S., and Rosenne, S. (gen. eds.), UN Convention on the Law of the Sea 1982: A Commentary, Tomes I to VII, Nijhoff and Univ. Virginia, Dordretch, Boston, London, 1989–2010. Noyes, J., “El Tribunal Internacional del Derecho del Mar,” Boletín Mexicano de Derecho Comparado, 1994, pp. 713–732. ———, “The International Tribunal for the Law of the Sea,” Cornell International Law Journal, vol. 32 (1), 1998, pp. 109–182. ———, “Judicial and Arbitral Proceedings and the Outer Limits of the Continental Shelf,” Vanderbilt Journal of Transnational Law, vol. 42 (4), Oct. 2009, pp. 1211–1264. Obata, K., “The Relevance of Jurisdiction to Deal with the Merits to the Power to Indicate Interim Measures: A Critique of the Recent Practice of The International Court of Justice,” in Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 451–462. Oda, S., The Law of the Sea in Our Time. New Developments 1966–1975, Sijthoff, Leyden, 1977. ———, The International Law of the Ocean Development, Sijthoff, Alphen, 1979. ———, “Fisheries under the United Nations Convention on the Law of the Sea,” AJIL, vol. 77 (4), 1983, pp. 739–755.

Bibliography

327

———, “Some Reflections on the Dispute Settlement Clauses in the UN Convention on the Law of the Sea,” in Makarczyk, Jerzy (ed.), Essays in International Law in Honour of Judge Manfred Lachs, Nijhoff, The Hague, Boston, Lancaster, 1984, pp. 645–655. ———, “The International Court of Justice Viewed from the Bench (1976–1993),” RCADI, vol. 244, 1993, pp. 9–190. ———, “Dispute Settlement Prospects in the Law of the Sea,” ICLQ, vol. 44 (4), Oct. 1995, pp. 863–872. ———, “Provisional Measures. The Practice of the International Court of Justice,” Lowe, v., and Fitzmaurice, M., (eds.), Fifty Years of the International Court of Justice, Essays in Honour of Sir Robert Jennings, Grotius Publications, Cambridge University Press, 1996, pp. 541–556. ———, “The Compulsory Jurisdiction of the International Court of Justice: A Myth?” ICLQ, vol. 49 (2), April 2000, pp. 251–277. Oellers-Frahm, K., “Arbitration: A Promising Alternative of Dispute Settlement under the Law of the Sea Convention?” ZAO RV, vol. 55 (2), 1995, pp. 457–478. Örebech, P., Sigurjonsson, K., and McDorman, T.L., “The United Nations Straddling and Highly Migratory Fish Stocks Agreement: Management, Enforcement and Dispute Settlement,” IJMCL, vol. 13 (2), May 1998, pp. 119–141. Orellana, M., “The EU and Chile Suspend the Swordfish Case proceedings at the WTO and the International Tribunal for the Law of the Sea,” ASIL Insights, February 2001. ———, “The Swordfish Dispute between the EU and Chile at the ITLOS and the WTO,” Nordic Journal of International Law, vol. 71 (1), 2002, pp. 55–81. Orrego Vicuña, F., “L’affaire Saiga et l’interprétation judiciaire des droits et devoirs des États dans la Z.E.E,” Coll. ERM, 13, 1999–2000, pp. 43–59. ———, “The International Tribunal for the Law of the Sea and Provisional Measures: Settled Issues and Pending Problems,” IJMCL, vol. 22 (3) 2007, pp. 451–462. Ossintsev, Y.V., “Peaceful Settlement of Disputes Concerning Maritime Boundary Delimitation,” Soviet Yearbook of Maritime Law, 1988, pp. 26–32. Ostrihansky, R., “Chambers of the International Court of Justice,” ICLQ, vol. 37 (1), January 1988, pp. 30–52. Otani, Y., “Quelques réflexions sur la jurisdiction et la recevabilité vis-à-vis de l’Affaire du thon à nageoire bleue,” in Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 731–742. ———, “Le procès de la prompte mainlevée de l’immobilisation d’un navire et de la prompte libération de son équipage devant le TIDM – notamment en ce qui concerne les affaires entre le Japon et la Roussie en 2007,” in Casado, R., and Cataldi, G. (Dirs.), L’évolution et l’état actuel du droit international de la mer. Mélanges de droit offerts à Daniel Vignes, Bruylant, Bruxelles, 2009, pp. 709–726.

328

Bibliography

Oxman, B.H., and Bantz, V.P., “The M/V ‘Saiga’ (no. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment (ITLOS Case no. 2),” AJIL, vol. 94 (1), 2000a, pp. 140–150. ———, “The ‘Camouco’ (Panama vs France),” AJIL, vol. 94 (4), 2000b, pp. 713–721. Oxman, B.H., “The M/V Saiga,” AJIL, vol. 92 (2), 1998, pp. 278–282. ———, “Observations on Vessel Release under the United Nations Convention on the Law of the Sea,” IJMCL, vol. 11 (2), May 1996, pp. 201–215. ———, “Complementary Agreements and Compulsory Jurisdiction,” AJIL, vol. 95 (2), 2001, pp. 277–312. ———, “The Tomimaru (Japan v. Russian Federation), ITLOS Judgment Regarding Effect of Confiscation on Duty of Prompt Release of Fishing Vessel Arrested in Exclusive Economic Zone,” AJIL vol. 102 (2), 2008, pp. 316–322. ———, “The Tomimaru Case: Confiscation and Prompt Release,” in Hong, S.-Y., and Van Dyke, J. (eds.), Maritime Boundaries, Settlement Processes, and the Law of the Sea, Nijhoff, Leiden, Boston, 2009, pp. 277–286. Paolillo, F., “Solución de controversias relacionadas con actos de organizaciones internacionales: El caso de la Autoridad Internacional de los Fondos Marinos,” REDI, vol. XXXIII (2), 1981–1982, pp. 491–521. ———, “Notes sur les procedures de règlement des differends relatifs aux ressources des fonds marines internationaux (La Zone),” in Dupuy, R.J. (ed.), Le règlement des différends sur le nouvelles ressources naturelles, Nijhoff, La Haye, 1983, pp. 39–51. ———, “The Institutional Arrangements for the International Sea-Bed and Their Impact on the Evolution of International Organizations,” RCADI, vol. 188, 1984, pp. 137–337. Pastor Ridruejo, J.A., “La solución de controversias en la III Conferencia de las Naciones Unidas sobre el Derecho del Mar,” REDI, vol. XXX (1), 1977, pp. 11–32. ———, Curso de Derecho Internacional Público y Organizaciones Internacionales, 9ª ed., Tecnos, Madrid, 2003. Petersmann, E.-U., “Proposals for Strengthening the UN Dispute Settlement SystemLessons from International Economic Law,” Max Planck Yearbook of United Nations Law, vol. 3, 1999, pp. 105–156. Pierce, G.A., “Dispute Settlement Mechanisms in the Draft Convention on the Law of the Sea,” Denver Journal of International Law and Policy, 10, 1981, pp. 331–354. Pitlarge, D., “The Judgment of the UNCLOS Tribunal in Saint Vincent and the Granedines v. Guinea: m/v ‘Saiga’,” International Maritime Law, 1998–2 (March), pp. 35–38. Platzöder, R., “The Establishment of the International Tribunal for the Law of the Sea,” in Soons, A. (ed.), Implementation of the Law of the Sea Convention through International Institutions (Proceedings of the 23rd Annual Conf. of the Law of the Sea Institute, Noordwijk aan Zee, Netherlands, June, 1989), 1990, pp. 626–647. ———, III UNCLOS Documents, Oceana Publications, Dobs Ferry, New York, 1982–1888.

Bibliography

329

———, The Law of the Sea Documents: 1983–1991 Preparatory Commission for the International Seabed Authority and for the International Tribunal for the Law of the Sea, Oceana, Dobs Ferry, New York, 1994. Polacheck, T., “Experimental Catches and the Precautionary Approach: The Southern Bluefin Tuna Dispute,” Marine Policy, vol. 26, 2002, pp. 283–294. Quel López, F.J. “La interpretación de la reserva contenida en el parágrafo 2-d de la declaración canadiense de aceptación de la jurisdicción del TIJ en el asunto de la competencia en materia de pesquerías,” REDI, vol. LI (1), 1999, pp. 101 ss. Queneudec, J.P., “Coup d’oeil rétrospectif sur les origines du Tribunal International du Droit de la Mer,” in Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 621–632. ———, “The Role of the International Court of Justice and other Tribunals in the Development of the Law of the Sea,” in Soons, A. (ed.), Implementation of the Law of the Sea Convention through International Institutions (Proceedings of the 23rd Annual Conf. of the Law of the Sea Institute, Noordwijk aan Zee, Netherlands, June, 1989), 1990 pp. 574–600. Ranjeva, R., “Settlement of Disputes,” in Dupuy, R-J., and Vignes, D. (eds.), A Handbook on the New Law of the Sea, Nijhoff, Dordretch, Boston, Lancaster, 1991, pp. 1333–1401. Rao, P.Ch., “The ITLOS and Its Guidelines,” Indian Journal of International Law, vol. 38 (3–4), 1998, pp. 371–380. ———, “The International Tribunal for the Law of the Sea: An Evaluation,” in Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 667–681. Rao, P.Ch. and Gautier, Ph., The Rules of The International Tribunal Fort the Law of the Sea: A Commentary, Nijhoff, Leiden, Boston, 2006. Rashbrooke, G., “The International Tribunal for the Law of the Sea: A Forum for the Development of Principles of International Environmental Law?” IJMCL, vol. 19 (4), 2004, pp. 515–536. Remiro Brotóns, A., et al., Derecho Internacional, Mc Graw Hill, Madrid, 1997. Rey Aneiros, A., “La constitución del Tribunal Internacional del Derecho del Mar: avances en el sistema de solución de controversias en el ordenamiento jurídico internacional,” Anuario de la Facultad de Derecho de la Universidad de la Coruña, no. 1, 1997, pp. 429–442. ———, “La liberación inmediata de buques y sus tripulaciones (art. 292 de la UNCLOS). La inauguración de la jurisprudencia del Tribunal Internacional del Derecho del Mar,” Anuario de la Facultad de Derecho de la Universidad de la Coruña, n.3, 1999, pp. 679–690. ———, “Le réglement des différends internationaux en matière de droit de la pêche: le rôle de la Communauté européenne,” in Cataldi, G., ed., La Mediterranée et le droit de la mer à l’aube du 21eme siècle (Actes du colloque inaugural de la Association Internationale du Droit de la Mer), Bruylant, Bruxelles, 2002, p. 459.

330

Bibliography

Richardson, E.L., “Dispute Settlement under the Convention on the Law of the Sea: A Flexible and Comprehensive Extension of the Rule of the Law to Ocean Space,” Contemporary Issues in International Law. Essay in Honour of Louis B. Sohn, Kehl, Strasbourg, Arlington, 1984, pp. 149–163. Riphagen, W., “Dispute Settlement in the 1982 UN Convention on the Law of the Sea,” in Rozakis, C.L., and Stephanou, C.A. (eds.), The New Law of the Sea, Athens and Amsterdam, 1983, pp. 281–302. Riquelme Cortado, R., La intervención de terceros Estados en el proceso internacional, Tecnos, Madrid, 1993. Roach, J.A., “Dispute Resolution Mechanisms of the Law of the Sea Regime: Dispute Settlement in Specific Situations,” Georgetown International Environmental Law Review, vol. 7 (3), Summer 1995, pp. 775–789. Roberts, K., “The International Tribunal for the Law of the Sea: Some Comments on the M/V Saiga Case (Saint Vincent and the Granedines v. Guinea),” African Journal of International and Comparative Law, vol. 10, 1998, pp. 407–422. Rodríguez Carrión, A., Lecciones de Derecho Internacional Público, 5ª ed., Tecnos, Madrid, 2002. Romano, C., “The Southern Bluefin Tuna Dispute: Hints of a World to Come…Like It or Not,” ODIL, vol. 32 (4), 2001, pp. 313–348. ———, “Commission of the European Communities v. Ireland: European Court of Justice Judgment Regarding Irish Submission of MOX Plant Dispute with United Kingdom to Arbitration under the UN Convention on the Law of the Sea,” AJIL vol. 101 (1), 2007, pp. 171–178. Ros, N., “La France, le ITLOS et les légines: Acte III. A propos de l’arrêt rendu le 20 avril dans l’Affaire du Grand Prince,” Annuaire du Droit de la mer (INDEMER), tome V, 2000a, pp. 245–283. Rosenne, S., “Settlements of Fisheries Disputes in the Exclusive Economic Zone,” AJIL. 73 (1), 1979, pp. 89–104. ———, The International Court of Justice: How is and How It works? (5ª ed.), Nijhoff, Dordretch, Boston, London, 1995. ———, Essays on the Law of the Sea and on the International Tribunal for the Law of the Sea, for private circulation, not for sale, 1996. ———, “International Tribunal for the Law of the Sea: 1998 Survey,” IJMCL, vol. 14 (4), 1999, pp. 453–465. ———, “Un bilan de la première activité du Tribunal international du droit de la mer,” AFDI, vol. XLVI, 2000a, pp. 496–523. ———, “The International Tribunal for the Law of the Sea: Survey for 1999,” IJMCL, vol. 15 (4), 2000b, pp. 443–474. ———, “Provisional Measures and Prima Facie Jurisdiction Revisited,” in Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 515–544.

Bibliography

331

———, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea, Oxford University Press, Oxford, 2005. Rothwell, D.R., “The Contribution of ITLOS to Oceans Governance through Marine Environmental Dispute Resolution,” in Ndiaye, T.M., and Wolfrum, R. (eds.), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah, Nijhoff, Leiden, Boston, 2007, pp. 1107–1024. Salerno, F., “La demande reconventionnelle dans la procédure de la Cour Internationale de Justice,” RGDIP, Tome 103,1999–2, pp. 329–378. Salinas, S., and Tirado, C., Adaptabilidad y fragmentación del Derecho Internacional: la Crisis de la Sectorialización, Real Instituto de Estudios Europeos, Zaragoza, 1999. Sands, P., Mackenzie, R., and Shany, Y., Manual on International Courts and Tribunals, Butterworths, London, 1999. Sarin, M.L., “Observations on the Mechanisms of Settlement of Disputes under the United Nations Convention on the Law of the Sea, 1982,” in L’adaptation des structures et methodes des Nations Unies, Colloque, La Haye, 4–6 Novembre 1985, Nijhoff, Dordretch, Boston, 1986, pp. 107–133. Schwebel, S., “The Southern Bluefin Tuna Case,” in Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 743–748. Seeberg-Elverfeldt, N.-J., The Settlement of Disputes in Deep seabed Mining, Nomos Verlagsgesellschaft, Baden Baden, 1998. Sharma, S.P., “Framework of Likely Disputes under the Law of the Sea ConventionSome Thoughts,” Zaö RV, 45 (3),1985, pp. 465–496. Shearer, I.A., “The International Tribunal for the Law of the Sea and its Potential for Resolving Navigation Disputes,” in Rothwell, D.R., and Bateman, S. (eds.), Navigational Rights and Freedoms and the New Law of the Sea, Nijhoff, The Hague, London, Boston, 2000, 263–274. Shinkaretskaia, G., “The International Court of Justice and the Development of the Law of the Sea,” Marine Policy, vol. 12 (3), 1988, pp. 201–210. Singh, G., United Nations Convention on the Law of the Sea: Dispute Settlement Mechanism, Academic Publication, New Delhi, 1985. Simmonds, K.R., “The European Economic Community and the New Law of the Sea,” RCADI, vol. 218, 1989, pp. 9–166. Sobrino Heredia, J.M., “Los procedimientos de solución de diferencias previstos en los acuerdos celebrados por la Comunidad Europea,” in Hacia un nuevo orden internacional y europeo (Estudios en homenaje al Profesor Diez de Velasco), Tecnos, Madrid, 1993, pp. 1221–1240. ———, “L’Union européenne face aux transformations du Droit de la Mer,” in La Mediterranée et le droit de la mer à l’aube du 21eme siècle (Actes du colloque inaugural

332

Bibliography

de la Association Internationale du Droit de la Mer) (Cataldi, G, ed.), Bruylant, Bruxelles, 2002, pp. 53–84. Sohn, L.B., “The Role of Dispute Settlement in Ocean Governance,” in Mensah, T. (ed.), Ocean Governance: Stategies and Approaches for the 21st Century (Proceedings of the 28th annual Conf. of the Law of the Sea Institute, Honolulu, Hawaii, July, 1994), 1996, pp. 235–245. ———, “A Tribunal for the Sea-Bed or the Oceans,” Zäo RV, 32 (2–4,) Dez 1972, pp. 253–264. ———, “Settlement of Disputes Relating to the Interpretation and Application of Treaties,” RCADI, vol. 150, 1976, pp. 195–294. ———, “Peaceful Settlement of Disputes in Ocean Conflicts: Does UNCLOS III Point the Way?” Law and Contemporary Problems, 46, 1983, pp. 195–200. ———, “Settlement of Law of the Sea Disputes,” IJMCL, vol. 10 (2), May, 1995, pp. 205–217. Sola, J.V., The International Tribunal for the Law of the Sea, Institut universitaire de hautes etudes internationales, Geneva, 1986. Soons, A. (ed.), Implementation of the Law of the Sea Convention through International Institutions, Proceedings of the 23rd Annual Conference of the Law of the Sea Institute, Noordwijk aan Zee, Netherlands, June, 1989 (Panel VI: Settlement of Disputes, and Panel VII, Workshop VI: Settlement of Disputes), 1989, pp. 571–665 and 701–706. Soroeta, J., Jurisprudencia del Tribunal Internacional del Derecho del Mar 1997–2005, Dilex, Madrid, 2005. Stephens, T., “A Paper Umbrella Which Dissolves in the Rain? Implications of the Southern Bluefin Tuna Case for the Compulsory Resolution of Disputes Concerning the Marine Environment Under the 1982 LOS Convention,” Asia Pacific Journal Of Environmental Law, vol. 6 (3 and 4), pp. 297–318. “The Jurisprudence of the International Tribunal for the Law of the Sea: Some Observations,” in Ndiaye, T.M., and Wolfrum, R. (eds.), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah, Nijhoff, Leiden, Boston, 2007, pp. 967–988. Torres Bernárdez, S., “A propos de l’interpretation et de la Revision des Arrets de la Cour internationale de justice,” in Le Droit international a ‘lheure de sa codification. Etudes en l’honneur de Roberto Ago, Tome III, Giuffrè, Milano, 1987, pp. 443–496. ———, “L’intervention dans la procedure de la Cour internationale de Justice,” RCADI, vol. 256, 1995, pp. 193–458. Torres Bernárdez, S., Treves, T., and Valticos, N., Tres estudios sobre la Corte Internacional de Justicia, Instituto de Estudios Internacionales y Europeos Francisco de Vitoria, Madrid, 1999. Treves, T., “The Law of the Sea Tribunal: Its Status and Scope of Jurisdiction after November 16, 1994,” ZAO RV, vol. 55 (2), 1995, pp. 421–451.

Bibliography

333

———, “Le Tribunal international du droit de la mer. Debut et perspectives,” Annuaire du droit de la mer (INDEMER), 1996a, Tome I, pp. 27–46. ———, “The Proceedings Concerning Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea,” IJMCL, vol. 11 (2), May 1996b, pp. 179–200. ———, “Le règlement du Tribunal international du droit de la Mer entre tradition et innovation,” AFDI, XLIII, 1997a, pp. 341–367. ———, “The Jurisdiction of the International Tribunal for the Law of the Sea,” Indian Journal of International Law, vol. 37, 1997b, pp. 396–419. ———, “Recent trends in the settlement of international disputes,” Cursos Euromediterráneos Bancaja de Derecho Internacional (CEBDI), vol. I, 1997, Aranzadi, Pamplona, 1997c, pp. 395–436. ———, “The Procedure before the International Tribunal for the Law of the Sea: The Rules of the Tribunal and Related Documents,” Leiden Journal of International Law, vol. 11, 1998a, pp. 565–594. ———, “The Rules of the International Tribunal for the Law of the Sea,” Indian Journal of International Law, vol. 38 (3–4), July–December 1998b, pp. 381–409. ———, “The Law of the Sea ‘System’ of Institutions,” Max Planck Yearbook of United Nations Law, vol. 2, 1998c, pp. 325–340. ———, “Private Maritime Law Litigation and the International Tribunal for the Law of the Sea,” Rabels Zeitschrift für ausländisches und internationales Privatrecht, 63, Jah. 1999a, pp. 350–360. ———, “Conflicts between the International Tribunal for the Law of the Sea and the International Court of Justice,” N.Y. Univ. J. Int Law Politics, vol. 31 (4), Summer 1999 (Symp Issue: The Proliferation of Int Tribunals: Piecing Together the Puzzle), 1999b, pp. 809–821. ———, Le Controversie Internazionali. Nuovi tendenze, nuovi tribunali, Giuffrè, Milano, 1999c. ———, “Conflictos de jurisdicción entre el Tribunal Internacional del Derecho del Mar y la Corte Internacional de Justicia” in Torres, S., Treves, T., and Valticos, N., Tres estudios sobre la Corte Internacional de Justicia, Instituto de Estudios Internacionales y Europeos Francisco de Vitoria, Madrid, 1999d. ———, “Advisory Opinions of the International Court of Justice on Questions raised by Other International Tribunals,” Max Planck Yearbook of United Nations Law, vol. 4, 2000, pp. 215–231. ———, “The European Community and the Settlement of Disputes under the UN Law of the Sea Convention,” in Drnas, Z. (coord.), Estudios de Derecho Internacional en Homenaje al Profesor Ernesto J. Rey Caro, Drnas-Lerner Editores, Córdoba, Argentina, 2002a, pp. 355–362. ———, “Preliminary Proceedings in the Settlement of Disputes under the United Nations Law of the Sea Convention: Some Observations,” in Ando, N., McWhinney, E.,

334

Bibliography

and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002b, pp. 749–761. ———, “What have the United Nations Convention and the International Tribunal for the Law of the Sea to Offer as Regards Maritime Delimitation Disputes?” in Lagoni, R., and Vignes, D.(eds.), Maritime Delimitation, Nijhoff, 2006, pp. 63–78. Triggs, G., and Bialek, D., “Australia Withdraws Maritime Disputes from the Compulsory Jurisdiction of the International Court of Justice and the International Tribunal for the Law of the Sea,” IJMCL, vol. 17 (3), Sep. 2002, pp. 423–430. Tuerk, H., “The contribution of the International Tribunal for the Law of the Sea to International Law,” in Hong, S-Y, and Van Dyke, J. (eds.), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, Nijhoff, Leiden, 2009, pp. 253–275. Tyagi, Y.K., “The System of Settlement of Disputes under the Law of the Sea Convention: An Overview,” Indian Journal of International Law, 25, 1985, pp. 191–209. Urbina, J.J., Controverias Marítimas, Intereses Estatales y Derecho del Mar, Dilex, Madrid, 2005. Vanheule, B., “Arrest of Seagoing Vessels and the LOS Convention: Does the New International Tribunal for the Law of the Sea Offer New Prospects?” International Maritime Law, 1998 (4), pp. 106–115. Vázquez Gómez, E., Las Organizaciones Internacionales de Ordenación Pesquera (La Cooperación para la Conservación y Gestión de los Recursos Vivos del Alta Mar), Consejería de Agricultura y Pesca de la Junta de Andalucía, Sevilla, 2002. Vignes, D., Casado Raigón, R., and Cataldi, G., Le Droit international de la pêche maritime, Bruylant, Bruxelles, 2000. Virzo, R., Il regolamento delle controversie nel diritto del mare: raporti tra procedimienti, CEDAM, Verona, 2008. Vukas, B., “The International Tribunal for the Law of the Sea: Some Features of the International Judicial Institution,” Indian Journal of International Law, vol. 37, 1997, pp. 372–387. ———, “Règlement du Tribunal international du droit de la mer,” Coll ERM, no. 12, 1998, pp. 15–23. ———, “Possible Role of the International Tribunal for the Law of the Sea in Interpretation and Progressive Development of the Law of the Sea,” in Vidas, D., and Ostreng, W. (eds.), Order for the Oceans at the Turn of the Century, The Fridtjof Nansen Institute, Kluwer, The Hague, London, Boston, 1999, pp. 95–104. Walker, G.K. (gen. ed.), Definitions for the Law of the Sea. Terms not Defined by the 1982 Convention, Nijhoff, Leiden-Boston, 2012. Weckel, Ph., “Les premières applications de l’article 290 de la Convention sur le droit de la mer relative à la prescription de measures conservatoires,” RGDIP, Tome. 109, 2005, pp. 829–858.

Bibliography

335

Wegelein, F.H., “The Rules of the Tribunal in the Light of Prompt Release of Vessels,” ODIL, vol. 30 (3), 1999, pp. 255–296. White, M., “Prompt release cases in ITLOS,” in Ndiaye, T.M., and Wolfrum, R. (eds.), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah, Nijhoff, Leiden, Boston, 2007, pp. 1025–1052. Wolfrum, R., “Provisional Measures of the International Tribunal for the Law of the Sea,” Indian Journal of International Law, vol. 37, 1997, pp. 420–434. Wood, M., “The International Tribunal for the Law of the Sea and General International Law,” IJMCL, vol. 22 (3), 2007, pp. 351–367. Yamada, Ch., “Priority Application of Successive Treaties Relating to the Same Subject Matter: The Southern Bluefin Tuna Case,” in Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 763–771. Yankov, A., “The International Tribunal for the Law of the Sea: Its Place within the Dispute Settlement System of the UN Law of the Sea Convention,” Indian Journal of International Law, vol. 37, 1997, pp. 356–371. ———, “Irregularities in Fishing Activities and the Role of the International Tribunal for the Law of the Sea,” in Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 773–789. You, K.-J., “Advisory Opinions of the International Tribunal for the Law of the Sea: Article 138 of the Rules of the Tribunal, Revisited,” ODIL vol. 39 (4), 2008, pp. 360–371. Yturriaga Barberán, J.A., “The ICJ’s Judgment on the Fisheries Jurisdiction Case,” in Ando, N., McWhinney, E., and Wolfrum, R. (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, The Hague, London, New York, 2002, pp. 323–334.

Index Access to itlos 5, 118, 147, 189, 190, 202, 205, 256, 266–269, 271–274, 282, 288–289, 291–292 Ad hoc agreement. See Special agreement Ad hoc chamber 104, 193, 195 Admissibility and inadmissibility 34, 40, 63, 65, 72, 74, 118, 126, 127, 132–135, 144, 152, 188, 192, 193, 199, 222, 226, 252, 253, 255, 306 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, adopted on 4 August 1995 4, 58, 136–138, 173, 176–185,        247, 248, 272, 274 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, signed in New York, 28 July 1994 102–104,        106, 108, 110, 112, 113, 306 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas of 1993 173–174 Akl, J. (itlos Judge) 110, 112, 302 American Treaty on Pacific Settlement of 30 April 1948 (Pact of Bogota) 59, 97, 169 Anderson, D.H. (itlos Judge) 123, 125, 126 Arrest of vessels 92, 115, 118, 121, 123, 129, 154, 165, 198, 237, 260 Bond or other financial security 116, 118, 121, 122, 124–129, 131, 137, 151, 152, 239, 243, 264 Bunkering of vessels 143–145, 219, 220, 235 Cases before icj Aegean Sea Continental Shelf 215 Application of Int. Conv. on Racial Discrimination 223 Avena 227, 233 Continental Shelf (Libya/Malta) 189 Fisheries Jurisdiction case (Spain v. Canada) 43, 45, 46, 157, 271

Grant Belt 227 Icelandic Fisheries 223 Interhandel 41 La Grand 217, 233, 243 Land and Maritime Boundary dispute between Cameroon and Nigeria 28, 75,        96, 157, 227, 262 Maritime Delimitation (Qatar v. Bahrain) 188 Nottebohn 207 Oil Platforms 39 South West Africa 37 Territorial Dispute (Libya/Chad) 188 Whaling in the Antarctic 100 Cases before itlos ARA Libertad 22, 74, 115, 172, 208, 218, 221, 222, 225, 226, 237, 239, 244, 246 Arctic Sunrise 94, 115, 172, 208, 210, 225, 226, 237, 239, 243, 244, 246 Camouco 92, 115, 120, 126, 127, 131, 132, 152, 172, 208, 224, 271 Chaisiri Reefer 2, 115, 172, 208, 224, 260 Delimitation (Bangladesh/Myanmar) 5, 140, 192, 208, 209 Delimitation (Ghana/Côte d’Ivoire) 1, 191 Grand Prince 92, 115, 117, 118, 133, 172, 208, 209, 224, 271 Hoshinmaru 115, 117, 121, 122, 131, 132, 134, 135, 152, 172, 208, 224 Juno Trader 115, 131, 133, 134, 208, 224 Louisa 1, 40, 74, 115, 165, 172, 208, 214, 219, 220, 222–226, 236, 237, 244 Monte Confurco 92, 115, 120, 126, 130–133, 172, 208, 224, 271 MOX Plant 41–44, 47, 55, 60, 70–74, 172, 208, 225, 226, 228–232, 234–236, 239, 240, 244, 245, 247, 253, 271, 277, 280–285, 287 Request for an advisory opinion submitted by the Sub-regional Fisheries Commission 1, 286, 300, 313 Responsibilities of Sponsoring States (request for advisory opinion to sdc) 305 Saiga 2 (merits) 118, 131, 138, 144, 191, 192, 219, 221, 225, 238, 244, 264

Index Saiga (prompt release) 115, 122–124, 126, 127, 129, 136, 143, 144, 208, 212, 220, 224, 261, 264 Southern Bluefin Tuna 33, 37, 41, 43, 54, 66, 67, 69, 71, 171, 208, 228, 230, 231, 235, 238, 240, 253 Straits of Johor 172, 225, 228–230, 232, 234, 236, 240, 242, 244, 246 Swordfish (Chile/eu) 191, 208 Tomimaru 115, 117, 130, 133–135, 152, 172, 208, 224 Virginia G 119, 145, 172, 191, 198, 209, 220, 255, 256 Volga 115, 131, 172, 208, 224 Chamber of Summary Procedure 249, 250 Charter of the United Nations 51, 88, 94, 105, 107, 140, 174, 264, 297–299 cjec. See Court of Justice of the European Communities (cjec) cjeu. See Court of Justice of the European Union (cjeu) Commercial arbitration 110, 146–148, 190, 201, 294 Commission of the European Union  278–286 Compulsory Conciliation 53, 61, 65, 90, 151 Compulsory procedures entailing binding decisions 4, 20, 32, 34–37, 41, 45, 50, 51, 53, 56, 60, 61, 63–65, 75, 77, 83, 84, 87, 91, 101, 102, 137–142, 145, 146, 162, 171, 181, 183, 194, 195, 252 Conciliation 35, 49, 51–53, 61, 65, 67, 79, 80, 83, 87–90, 151, 174, 176, 177, 181, 183, 184, 186. See also Compulsory conciliation Continental shelf 1, 35, 57, 58, 75, 81–86, 88, 89, 93, 98, 100, 139, 141, 142, 188, 189, 196, 197, 209, 215, 262, 263, 290 Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries, of 1980 173, 183, 184 Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean (seafo) of 2001 173, 180, 248 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, of 2000 180, 248

337 Convention on the Protection of the Underwater Cultural Heritage, of 2001 173, 182 Cot, J.-P. (itlos Judge) 22, 218, 221, 222, 226 Court of Justice of the European Communities (cjec) 47, 70, 73, 278–282 Court of Justice of the European Union (cjeu) 274, 276, 277, 282–286 Customary (international) law 15, 22, 25–28, 42, 48, 102, 188, 189, 206, 228–232, 272 Declarations under Article 287 unclos 57, 97, 146, 147, 150, 153–172, 175–180, 182, 183, 186, 195–197, 271, 272 Declarations under Article 298 unclos 29, 36, 56, 57, 75, 87, 89, 90, 92–102, 138, 140, 142, 143, 168, 178, 201, 226, 272 Delimitation 29, 57, 58, 75, 76, 87–90, 98, 100, 140, 142–143, 164, 165, 168, 179, 196, 197, 199, 209 EEZ. See Exclusive economic zone (eez) Eiriksson, G. (itlos Judge) 16, 18, 86, 94, 104, 112, 160, 161, 203–205, 238, 251, 261, 263, 290, 301 eu. See European Union (eu) European Commission. See Commission of the European Union European Community (ec) 47, 70, 73, 183, 193–195, 261, 269–271, 274, 278, 279, 282, 285, 286 European Union (eu) 5, 13, 35, 119, 140, 166, 167, 178, 189, 195, 258, 261, 266, 268–287 Exclusive economic zone (eez) 35, 57, 58, 75, 78–86, 88, 89, 98, 100, 123, 124, 130, 138, 139, 141–145, 155, 171, 194, 197, 198, 235, 313 Fisheries 79, 80, 83, 84, 87, 119, 123, 137, 141–143, 168, 170–172, 174, 177–180, 271, 313 Flag State 92, 116, 122, 123, 125, 128–131, 133–135, 137, 149–155, 272, 292, 313 Forum prorogatum 5, 30, 187, 200–202, 207 Framework Agreement for the Conservation of the Living Marine Resources on the High Seas of the South-East Pacific of 2000 (Galapagos Agreement) 173, 174

338 General Agreement on Tariffs and Trade (gatt) 112 Genuine link 118, 198 Golitsyn, V.V. (itlos Judge) 222 Guillaume, G. (icj Judge) 33 High seas 78, 88, 137, 138, 141, 142, 194 Historic bays or titles 87, 89, 140 Hossain, K. (itlos Judge Ad Hoc) 240 Land and Maritime Boundary dispute between Cameroon and Nigeria 28, 75, 96, 157,        227, 262 icj. See International Court of Justice, (icj) Individuals. See Private entites or persons International Convention on the Removal of Wrecks, of 2007 173, 185 International Court of Justice, (icj) Access 35, 166, 271, 282 advisory jurisdiction 2, 298, 299 contentious jurisdiction 4, 23, 24, 28 disputes concerning the interpretation or application of a treaty 39–41 election of icj. See Declarations under Article 287 unclos jurisprudence 96 optional clause system 4, 12, 49, 50, 54–58, 65, 66, 75, 76, 96, 99, 100, 150, 157, 158, 161, 162, 169 prompt release procedures 135, 150, 154 provisional measures 215, 217–219, 222, 223, 232, 233, 242–244, 249 ratione personae jurisdiction. see Access requests for interpretation 261 requests for revision 262, 263 International Maritime Organization 125, 175, 312 International Seabed Authority (isba) 1, 5, 13, 35, 102, 111, 112, 114, 270, 271, 273, 300, 302, 304 Islands 26, 28–29, 58, 81, 84–86, 91, 93, 257, 263, 269 Jesús, J.L. (itlos Judge) 47 Keith, K. (Tuna Arbitrator) 47 Laing, E.A. (itlos Judge) 120, 229, 231, 243, 245 Land reclamation. See Straits of Johor

Index Law enforcement activities 88, 93, 94, 140, 178 Locus standi, ius standi. See Access to itlos Lucky, J.A. (itlos Judge) 135 Marine environment 35, 44, 70, 74, 79–81, 84, 86, 87, 124, 125, 139, 141–143, 168, 170, 175, 216, 218, 227, 228, 230, 232–234, 240–242, 245, 246, 271, 277, 280 Marine scientific research 35, 78–87, 141, 142, 168 Marotta-Rangel, V. (itlos Judge) 117 Mavrommatis Palestine Concessions case (pcij) 2, 37, 40, 46 Mensah, T. (itlos Judge) 16, 139, 142, 245 Military activities 88, 91–93, 100, 140 Mixed disputes 26–29, 90, 91 “Monetary Gold” principle 259 “Montreux formula,” 20, 35, 146, 166, 250 Mozorov (icj Judge) 215 Navigation 35, 55, 78, 80, 84, 86, 93, 120, 121, 137, 139, 141–145, 155, 168, 170, 171, 209, 210, 219, 235, 237, 271 Ndiaye, T.M. (itlos Judge) 125, 172, 193, 195, 197 Nelson, L.D. (itlos Judge) 16, 17, 125, 193, 289, 290, 312 Non-State entities. See Private entities or persons OSPAR arbitral tribunal 70, 277 arbitration 70 Convention 42–44, 47, 70, 71, 74 Oxman, B. (itlos Judge Ad hoc) 133, 240 Pact of Bogotá. See American Treaty on Pacific Settlement of 30 April 1948 Paik, J-H. (itlos Judge)  224 Park, C.-H. (itlos Judge) 125 Precautionary principle or approach 175, 228–232, 235, 248–249 Preparatory Commission for the International Seabed Authority and the International Tribunal for the Law of the Sea 241, 262, 270, 311, 312 Prima facie jurisdiction 44, 71, 73, 74, 144, 191, 206, 211, 214–217, 219–227, 247, 250, 277 Private entities or persons 5, 13, 30, 35, 111, 189–191, 201, 266, 288–294, 304

Index Protocol to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, of 1996 173, 175 Provisional measures ultra and extra petita 237, 239, 242 Rao, P.Ch (itlos Judge) 125, 290 Rules of icj (rc) Article 38 201 Article 75 240 Article 80 255 Article 88 260 Rules of itlos (rt) Article 16 211 Article 27 211 Article 54 201 Article 58 206 Article 89 192, 203, 213, 237, 239–242 Article 95 213, 244 Article 96 250 Article 97 195, 252, 253 Article 98 198, 254, 255 Article 99 256 Article 100 256 Article 105 258–261 Article 106 203, 259, 260 Article 122 309 Article 113 127 Article 127 262 Article 130 305, 311 Article 132 306 Article 133 304 Article 137 311 Article 138 299, 310, 312, 313 Schwebel, S. (ICJ Judge) 38 Seabed area 5, 35, 65, 66, 88, 102, 103, 106, 108, 112, 142, 146, 271, 272, 300, 303, 311 Seabed Disputes Chamber (sdc) 6, 56, 66, 103, 104, 106–114, 146–149, 156, 190, 216, 217, 267, 291, 292, 294, 297, 299–310 Security Council of the United Nations 88, 94, 95, 140 Shahabudden (icj Jugde) 38, 39 Shearer, I. (itlos Judge Ad Hoc) 231, 240, 241 Southern Indian Ocean Fisheries Agreement (siofa) of 2006 173, 185

339 Special Agreement 4–5, 57–59, 63, 172, 187–191, 193, 195–200, 207–209, 254, 255, 298 Statute of ICJ (sc) Article 36.1 23, 76, 150 Article 36.2 24, 34, 49, 50, 54–58, 65, 75, 76, 99, 100, 150, 158, 161, 162, 165, 169 Article 36.6 206, 207 Article 41 215, 218, 227, 233, 243 Article 53 206 Article 60 261 Article 62 257 Article 63 258 Article 65 297, 306 Article 79 253 Statute of itlos (st) (Annex vi of unclos) Article 1 23, 25 Article 14 147, 301 Article 15 148, 250 Article 17 148, 305 Article 20 147, 190, 191, 267, 272, 288–292, 294 Article 21 3, 10, 14–21, 23–25, 27, 186, 257, 272, 289–291, 311 Article 22 14, 15, 26, 186, 257, 272, 291, 292 Article 23 292 Article 24 187 Article 25 206, 213, 216, 218, 233, 242, 247 Article 28 206 Article 31 212, 256–259 Article 32 212, 256–259 Article 33 261 Article 37 147, 267, 273, 288, 292 Article 38 292 Article 40 297, 310 Székely, A. (itlos Judge Ad Hoc) 232, 240 Territorial sea 57, 58, 81, 84–86, 88, 89, 92, 93, 98, 100, 123, 124, 142, 197 The Hague Court. See International Court of Justice (icj) Torres Bernardez, S. (icj Judge ad hoc) 46 Treaty parallelism 47, 277, 282 Treves, T. (itlos Judge) 16, 29, 47, 54, 80, 86, 90, 112, 113, 117, 118, 123, 125, 126, 136, 137, 148, 151, 152, 154, 166, 167, 170, 172, 195–199, 203, 229–231, 244, 245, 248–251, 269, 290, 299, 301, 310–312

340 un Charter. See Charter of the United Nations unclos. See United Nations Convention on the Law of the Sea, of 1982 United Nations 1, 16, 22, 23, 29, 31, 32, 38, 43, 51, 58, 76, 77, 83, 86, 88, 90, 93–95, 102, 103, 105, 107, 115, 117, 119, 129, 140, 148, 156, 157, 164, 165, 173–176, 182, 183, 186, 206, 207, 228, 250, 262, 268–270, 273, 274, 284, 291, 298, 300, 310, 312 United Nations Convention on the Law of the Sea, of 1982 (unclos) Annex II 1 Annex III 105, 110, 111 Annex V  51, 83, 87, 89, 90, 186 Annex VI See Statute of ITLOS Annex VII 35, 41–46, 48, 60, 61, 66–71, 73, 75, 90, 97, 98, 101, 140, 146, 149, 150, 156, 158, 162, 166, 167, 170–172, 186, 191, 196, 199, 201,210, 211, 225, 226, 232, 235, 236, 245–247, 263, 277, 278, 282–284, 293 Annex VIII 18, 156, 165, 166, 168, 170, 263, 293 Annex IX 1, 13, 35, 166, 189, 201, 258, 266, 268, 269, 272, 273, 275, 282–287 Article 1 189, 268, 271, 272 Article 2 142 Article 15 87, 88, 140 Article 19 142 Article 21 142 Article 29 92 Article 32 226 Article 56 144, 145, 235 Article 58 78, 84, 139, 144, 235 Article 59 35, 144 Article 60 85 Article 62 145 Article 63 141 Article 64 141 Article 66 141 Article 73 35, 122, 123, 125, 127, 128, 130, 132, 135, 136, 138, 143, 144, 151, 172, 220 Article 74 35, 75, 87, 88, 89, 140 Article 76 1 Article 83 75, 87, 88, 89, 140 Article 87 220, 221 Article 91 118, 198

Index Article 92 118 Article 111 235 Article 123 42, 280 Article 136 305 Article 138 105 Article 139 105 Article 153 105, 110, 288 Article 156 1 Article 157 1 Article 159 297, 299, 301–304, 306, 307, 310 Article 161 303, 304 Article 162 309 Article 168 111 Article 176 108 Article 182 106 Article 185 106, 107, 112, 299, 305, 307–309 Article 186 35, 147 Article 187 102–104, 106, 108–110, 112–114, 138, 146–148, 155, 190, 201, 271, 288, 292–294, 303, 304, 309 Article 188 110, 146, 148, 201 Article 189 108, 113, 114, 303 Article 190 293, 294 Article 191 35, 114, 297, 299, 301–308, 310 Article 192 42 Article 194 42 Article 197 42 Article 206 42 Article 207 42 Article 211 42 Article 213 42 Article 220 35, 122, 123, 125–127, 135, 136, 151 Article 226 35, 122–125, 127, 135, 136, 151, 220 Article 245 220, 221 Article 246 79, 80, 81, 83 Article 248 82 Article 249 82 Article 253 79, 80, 81, 83 Article 264 35 Article 265 35 Article 279 35, 51 Article 280 45, 51, 53, 68, 169, 186 Article 281 52–55, 61–69, 71, 72, 74 Article 282 42, 45, 47, 52–57, 59–66, 70, 71, 74, 75, 169, 278, 281, 282

341

Index Article 283 51, 67, 71, 72, 74, 89, 94, 152, 222 Article 284 51 Article 285 56, 65, 148, 190, 294 Article 286 36, 45, 50, 63, 77, 87, 101, 138, 142, 162, 171, 192, 209 Article 287 1, 4, 36, 55, 57, 96–98, 100, 101, 116, 140–142, 146, 149–151, 153–155, 157–172, 175, 177–180, 182, 186, 192, 195–197, 209, 220, 221, 250, 258, 272 Article 288  3, 10, 14–26, 28, 29, 147, 179, 192, 206, 209, 289, 290, 312 Article 290  137, 191, 192, 206, 211–213, 216–221, 224–227, 233, 234, 239–249, 290 Article 291  147, 267, 272, 292 Article 292 35, 50, 56, 57, 66, 102, 114–123, 125, 127–130, 132–138, 142, 146, 149–155, 171, 178, 220, 260, 271, 279 Article 293  292 Article 294  212, 250–252 Article 295  222 Article 297  4, 36, 56, 65, 77, 78, 80, 83–88, 90, 93, 94, 98, 101, 102,

138–144, 171, 197, 201, 209, 219, 220, 250–252, 272 Article 298  4, 36, 55–57, 75, 77, 87, 89–102, 138, 140, 142, 143, 171, 197, 201, 272 Article 299  35, 77 Article 303  85, 220, 221 Article 305  268, 272, 288–291 Article 306  268 Article 307  268 Article 309  97 Urgency 213, 217, 218, 224, 225, 227–231, 244–247, 301, 306 Vessel, ship 91–93, 117–120, 153, 236 Vienna Convention on the Law of Treaties 25, 35, 99, 102, 188, 189, 218, 289, 298 Vukas, B. (itlos Judge) 16, 125, 148, 244, 289, 290, 292, 302, 310, 311 Wolfrum, R. (itlos Judge) 22, 27, 47, 90, 218, 222–224, 226, 230, 232, 243, 249, 250, 290 Yanai, S. (itlos Judge) 135