The International Tribunal on the Law of the Sea (“ITLOS”) was established as an independent body under the United Nations Convention on the Law of the Sea (“UNCLOS”). It is composed of twenty-one independent members, elected from among persons enjoying the highest reputation for fairness, integrity and of recognised competence in the field of the law of the sea. It has the competency to deal with disputes where a state is alleged to have wrongly interfered with or otherwise restrained the operation of a vessel when it is in a port of the state or within the territorial sea or exclusive economic zone (“EEZ”) of the said state.
ITLOS was initially tasked with cases requesting prompt release of their vessels from detention by another state, but gradually mustered the trust of the international community and has also dealt with voluntary delimitation of state maritime boundaries. This paper looks at the twenty-nine cases handled by ITLOS between 1997 and 2020, and tries to trace a pattern of how the tribunal deals with dispute to its jurisdiction over a dispute.
Sources of Jurisdiction at ITLOS
The UNCLOS, in Part XV contains the methods and processes of dispute resolution for the interpretation and enforcement of the UNCLOS. Part XV is divided into three sections. Section 2, ranging from Articles 286-296 seeks compulsory settlement of disputes that result in binding decisions. However, the state parties have leverage to choose one or more forums or give preference among forums identified under the UNCLOS.
Our main focus here shall be on the ITLOS. This tribunal has two kinds of jurisdictions, similar to the ICJ — contentious and advisory. The jurisdiction of the ITLOS to give an advisory opinion is still heavily debated in legal academia (though this should not be confused with the power of the Seabed Disputes Chamber to give an advisory opinion under Article 191, UNCLOS). The pronouncements by the ITLOS on contentious cases can be divided into three broad categories:
The first pronouncement of the tribunal came as a result of an application for prompt release by Saint Vincent and the Grenadines against the detention of a vessel flying its flag and the crew by Guinea in the M/V Saiga case. The tribunal was steadfast and strong footed to find jurisdiction to rule on this application, since both parties were also parties to the UNCLOS (¶ 39) and that they had not been able to come to an agreement within 10 days from the beginning time of the detention (¶ 40). At the time, the tribunal was considered to be following the lead where the international law was clear and treading lightly where it was not. This soon changed as the tribunal, in an overwhelming majority of its pronouncements has assumed prima facie jurisdiction, as we will see in the forthcoming section.
Article 288(4) of the UNCLOS reiterates the internationally recognised principle of kompetenz- kompetenz. This is one of the foremost reasons why the tribunal has been able to make its mark as an important contributor to the jurisprudence on the law of the sea. We will now look at each of the three categories of cases to see what and how the tribunal assumes jurisdiction in these cases.
Orders for Prompt Release
A large volume of the cases that were submitted before the ITLOS in its initial years of existence were for the prompt release of vessels and crews under Article 292. In M/V Saiga, it held that the tribunal could assume jurisdiction over a matter under Article 292, if both parties were state parties to the UNCLOS and had not agreed to any alternative forum of adjudication. Another central factor is the recognition of the flag state of a vessel, because an application for prompt release can only be made by or on behalf of the flag state of the vessel, under Article 292(2). It was held in the Camouco case (¶ 47) that where the complainant’s claim of being the flag state was uncontested, if it fulfilled other obligations as laid down in the M/V Saiga case, the tribunal would have jurisdiction. This was later reiterated in the Monte Confurco (¶¶ 59 & 60) pronouncement.
However, it held in the Grand Prince case that where there is a contention on the complainant being the flag state, the burden of proof was on the complainant to prove that it indeed was the flag state (¶ 67). In this case, the vessel was registered in Belize, however, the provisional patent of navigation issued by Belize had expired before the dispute arose and the application was submitted by Belize (¶ 89). Absent an agreement or appropriate dispensation of the burden of proof by the complainant, the tribunal held that jurisdiction should not be and was not found to exist and the application for prompt release was non-maintainable (¶ 95).
Whether confiscation of a vessel by a coastal state leads to a change in the effective flag state and precludes the previous flag state from making an application for prompt release has also been a contentious topic. The first such case was that of Juno Trader, where the tribunal side-stepped this question by observing that vessels are detained in order to ensure a financial “bail” amount can be reached and since the Regional Court of Guinea had suspended the fine, confiscation was no longer justified.
However, in the Tomimaru case, the court looked at the possible effect of the change of ownership of a vessel on its ‘nationality’ (¶ 74). It held that the mere decision to confiscate a vessel and institution of proceedings in the domestic court would not preclude the ITLOS from considering an application for the prompt release of such a vessel (¶ 78). The court recognised that Article 292(3) placed limits on its jurisdiction to not go into the merits of a case pending before a domestic court. However, in the given instance, since the complainant made no allegations of violations of rule of law or any international law standards, the decision made by the Supreme Court of Russia had to be respected. Since any order under Article 292 would lead to a violation of the Russian court’s order and encroach upon national competences, no such order could be made and the application was without object and unmaintainable. (¶ 80).
Orders for Provisional Measures
Article 290 of the UNCLOS provides the power to order provisional measures pending the final disposal of the matter, if the tribunal finds prima facie jurisdiction. One of the main advantages of the ITLOS is the independence and expertise of the tribunal. This inherent trust is one of the reasons why many contentious cases are brought before the tribunal by mutual acquiescence of the jurisdiction of ITLOS and generally a special agreement between the parties like in M/V Saiga or MT San Padre Pio Case. Unfortunately, in a majority of cases, state parties do not confer jurisdiction over the tribunal, entirely voluntarily. In these cases too, the ITLOS has been very active in conferring on itself the jurisdiction to deal with the dispute.
This proclivity of the tribunal was first inferred from its holding in the Southern Bluefin Tuna Case. The tribunal was quick to dismiss Japan’s challenge to its jurisdiction because the dispute also included a dispute on the interpretation of the 1993 International Covenant on Maritime Liens and Mortgages. It held that the fact that the 1993 Convention applies between the parties does not exclude their right to invoke UNCLOS provisions in regard to the conservation and management of Southern Bluefin Tuna (¶ 51). It also dismissed the challenge to its jurisdiction merely because the 1993 Convention had a separate dispute resolution mechanism which hadn’t been exhausted (¶ 53).
The tribunal in MOX Plant also denied that any regional treaty could oust its jurisdiction over the interpretation of UNCLOS. In yet another case, the ITLOS held that it would not lose jurisdiction if one of the parties refuses to participate, after being given the opportunity to present its observations on the subject. This is an important observation considering that the basis of the jurisdiction of most international forums, especially arbitration, is party autonomy, and such a finding could imply that the ITLOS has more common elements with a judicial court than an arbitral tribunal. In Enrica Lexie it opined that the exhaustion of local remedies need not be addressed in the provisional measures phase of adjudication and that Article 290 applies independently of any domestic procedures. This finding is contrary to the general international law principle of exhaustion of domestic remedies before an international remedy can be sought.
Article 283(1) recommends parties to expeditiously exchange views regarding settlement by negotiation or other peaceful manners. However, this requirement has increasingly been understood as merely directive. The ITLOS has always dismissed any challenge to its jurisdiction because of non-compliance with Article 283. In the case of Land Reclamation in and around Straits of Johor, when the jurisdiction of the tribunal was challenged because of the non-fulfilment of the above-mentioned condition, the tribunal held that where the state party believes that any exchange of views will not yield a positive result, it doesn’t necessarily have to go through with it, and the burden to do the same shall be assumed to have been dispensed with.(¶ 48) This is indeed, yet another example of the active assumption of jurisdiction by the ITLOS.
Judgments on Merits
In all ITLOS judgments on merits, the tribunal has established more than mere prima facie jurisdiction and more often than not achieved a special agreement between the parties like in the M/V Virginia G case (¶ 91). ITLOS has uniquely been able to garner the trust of the states even in cases where the jurisdiction was initially contested. For instance, in the most recent case of MT San Pedro Pio, the ITLOS found that it had jurisdiction even where the subject-matter of the dispute overlapped with ICCPR obligations. However, after provisional measures were granted, the state parties signed a special agreement conferring jurisdiction.
In Delimitation of Maritime Boundaries between Bangladesh and Myanmar, the dispute had three facets, delimitation of the territorial sea, delimitation of EEZ and continental shelf within 200 nautical miles and delimitation of continental shelf beyond 200 nautical meals. While both parties agreed that ITLOS had jurisdiction over the first two, Myanmar challenged the jurisdiction over the third. The tribunal held that it had jurisdiction over the delimitation of the entirety of the continental shelf because the words of Articles 76,77 and 83 which talk about continental shelf do not make a distinction between that within and beyond 200 nautical miles, thereby extending the ambit of its jurisdiction (¶¶ 361 & 363).
The jurisprudence of the ITLOS on the UNCLOS is limited and its docket is very sparsely occupied. However, it would not be incorrect to infer that the ITLOS has established itself as an active court which is not hesitant to take up new, contentious and complex cases. The tribunal has actively assumed jurisdiction in a vast majority of cases that have come before it. It has side-stepped tricky situations by finding alternate ways to establish jurisdiction and has also not been disturbed by small and technical omissions like a formal exchange of views under Article 283. It is safe to assume that the court will not change its conduct in future cases too and will actively take up jurisdiction of matters submitted before it. Considering that not only is it constituted of experts of the specialised field of law of the sea, but is also truly representative, cost effective and autonomous, it will continue to rise as the most preferred mechanism for dispute settlement in maritime disputes.
Sahibnoor Singh Sidhu is a final year law student at Jindal Global Law School. He is also a Contributing Editor at the Jindal Forum for International and Economic Laws.
Image: ITLOS.ORG (modified by Mahima Balaji)