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3. International Tribunal for the Law of the Sea (ITLOS)

3. International Tribunal for the Law of the Sea (ITLOS) ITLOS is a specialized international dispute settlement forum established pursuant to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). It is composed of twenty-one independent judges elected by the Meeting of States Parties to the convention, among specialists in the law of the sea, according to a method that intends to assure an equitable geographical representation. The composition of ITLOS is renewed by thirds every three years, the last elections being held in 2014. Regretfully, Judge Chapapuz de Medeiros, who had been elected in January 2016 to replace Judge Marotta Rangel, passed away just eight months later, in September. In addition, two other former judges, L. Dolliver and M. Nelson (who was president from 2002 until 2005), and Mohamed M. Marsit, who had been part of the original composition of ITLOS in 1996, also died in the past year. On the other hand, ITLOS celebrated its twentieth anniversary in 2016, for which an International Symposium on the Contribution of the Tribunal to the Rule of Law was organized, and a solemn ceremony in Hamburg City Hall in the presence of the Secretary-General of the United Nations, the president of the Federal Republic of Germany, the president and judges of the Tribunal, and more than 500 guests took place. ITLOS has both contentious and advisory jurisdiction. As to the contentious jurisdiction, ITLOS has a broad voluntary competence to deal with disputes submitted to it by the agreement of the parties. It also has compulsory jurisdiction for some specific types of disputes, such as those concerning the seabed area (assigned to its Seabed Disputes Chamber), those relating to the prompt release of arrested vessels and their crews according to the special procedure regulated by Article 292 of UNCLOS, and, in general, those disputes concerning the interpretation or application of the Convention (neither listed in the automatic exceptions of Article 297 nor opted out by the parties through a declaration made pursuant Article 298), in regard to which the confronting parties have made a declaration electing ITLOS in conformity with Article 287. Other significant international treaties, such as the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, also give some room for the compulsory jurisdiction of ITLOS. Regarding its advisory jurisdiction, it was expressly conferred by the Tribunal’s Statute (Annex VI of the Convention) only to its Seabed Disputes Chamber and only for questions concerning the seabed area. However, by means of its rules, ITLOS included an express mention to its general advisory jurisdiction, therefore not only constrained to seabed matters, to be exercised under certain conditions. According to its advisory opinion of 2 April 2015, the basis of this general advisory jurisdiction is Article 21 of its Statute. To date, twenty-five cases have been submitted to ITLOS. No new cases were presented to the Tribunal in 2016. Nevertheless, two cases are still pending: the Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire) and the case concerning the arrest and detention of the ‘M/V Norstar’ (Panama v Italy). (1) Case no. 23: Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire) This delimitation case was submitted in 2014, by way of a special agreement, to a special chamber of ITLOS composed of five judges. As occurred in other cases, such as the M/V Saiga 2 case (St Vincent and the Grenadines/Guinea), the case concerning the Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), and the M/V Virginia G Case (Panama/Guinea Bissau), the dispute was originally submitted to arbitration pursuant to Articles 287 and 288 and Annex VII of UNCLOS, but the parties eventually decided to transfer the case to ITLOS. During the past year, the parties completed the written proceedings. In particular, Ghana filed its memorial on 4 September 2015 and Côte d’Ivoire its counter-memorial on 4 April 2016, and, subsequently, Ghana filed its reply on 25 July 2016, and Côte d’Ivoire its rejoinder on 14 November 2016. After the oral proceedings, the case is currently under the deliberation of ITLOS. (2) Case no. 25: ‘M/V Norstar’ (Panama v Italy) This case concerns the arrest and detention of the M/V Norstar, a Panamanian oil tanker involved in supplying gas oil to mega yachts in waters beyond the territorial seas of Italy, France, and Spain from 1994 until 1998. The arrest took place in September 1998 by Spanish officials at the request of Italy, allegedly for having supplied oil to such mega yachts in contravention of Italian legislation. In its application, Panama claims compensation from Italy for damage caused by the arrest of the vessel. In March 2016, Italy filed preliminary objections both to the jurisdiction of ITLOS and to the admissibility of the Panamanian application. All of them were examined by ITLOS in its judgment of 4 November on preliminary objections. In regard to the objections to the jurisdiction, Italy alleged that there was no dispute between Panama and said country; that the dispute, in the case that it existed, did not concern the interpretation or application of UNCLOS; that Spain, as the state that executed the arrest (as ordered by the Italian judicial authorities), should be the respondent in the present case and was an indispensable party to this proceedings; and that Panama had failed to appropriately pursue the settlement of the dispute by negotiations or other peaceful means under Article 283 of UNCLOS. All of these objections were rejected by ITLOS by twenty-one votes to one. As for the objections to the admissibility of the application, Italy first contended that this case was one of diplomatic protection and that the requisites of the nationality of the claim and the exhaustion of the local remedies were not fulfilled by Panama. In addition, Italy also objected that, because of the time passing between the facts and the bringing of the case before ITLOS (eighteen years), the principles of acquiescence, estoppel, and extinctive prescription were applicable. On the contrary, ITLOS found in its judgment, by twenty votes to two, that none of them were applicable and, therefore, that the application was admissible. Accordingly, and relying on the declarations respectively made by Italy and Panama pursuant to Article 287 of UNCLOS, ITLOS decided to entertain the case and continue to the next procedural phase. In particular, time limits have been fixed on 11 April 2017 for the memorial of Panama and 11 October 2017 for the counter-memorial of Italy. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Yearbook of International Environmental Law Oxford University Press

3. International Tribunal for the Law of the Sea (ITLOS)

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Publisher
Oxford University Press
Copyright
© The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected]
ISSN
0965-1721
eISSN
2045-0052
DOI
10.1093/yiel/yvx077
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Abstract

ITLOS is a specialized international dispute settlement forum established pursuant to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). It is composed of twenty-one independent judges elected by the Meeting of States Parties to the convention, among specialists in the law of the sea, according to a method that intends to assure an equitable geographical representation. The composition of ITLOS is renewed by thirds every three years, the last elections being held in 2014. Regretfully, Judge Chapapuz de Medeiros, who had been elected in January 2016 to replace Judge Marotta Rangel, passed away just eight months later, in September. In addition, two other former judges, L. Dolliver and M. Nelson (who was president from 2002 until 2005), and Mohamed M. Marsit, who had been part of the original composition of ITLOS in 1996, also died in the past year. On the other hand, ITLOS celebrated its twentieth anniversary in 2016, for which an International Symposium on the Contribution of the Tribunal to the Rule of Law was organized, and a solemn ceremony in Hamburg City Hall in the presence of the Secretary-General of the United Nations, the president of the Federal Republic of Germany, the president and judges of the Tribunal, and more than 500 guests took place. ITLOS has both contentious and advisory jurisdiction. As to the contentious jurisdiction, ITLOS has a broad voluntary competence to deal with disputes submitted to it by the agreement of the parties. It also has compulsory jurisdiction for some specific types of disputes, such as those concerning the seabed area (assigned to its Seabed Disputes Chamber), those relating to the prompt release of arrested vessels and their crews according to the special procedure regulated by Article 292 of UNCLOS, and, in general, those disputes concerning the interpretation or application of the Convention (neither listed in the automatic exceptions of Article 297 nor opted out by the parties through a declaration made pursuant Article 298), in regard to which the confronting parties have made a declaration electing ITLOS in conformity with Article 287. Other significant international treaties, such as the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, also give some room for the compulsory jurisdiction of ITLOS. Regarding its advisory jurisdiction, it was expressly conferred by the Tribunal’s Statute (Annex VI of the Convention) only to its Seabed Disputes Chamber and only for questions concerning the seabed area. However, by means of its rules, ITLOS included an express mention to its general advisory jurisdiction, therefore not only constrained to seabed matters, to be exercised under certain conditions. According to its advisory opinion of 2 April 2015, the basis of this general advisory jurisdiction is Article 21 of its Statute. To date, twenty-five cases have been submitted to ITLOS. No new cases were presented to the Tribunal in 2016. Nevertheless, two cases are still pending: the Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire) and the case concerning the arrest and detention of the ‘M/V Norstar’ (Panama v Italy). (1) Case no. 23: Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire) This delimitation case was submitted in 2014, by way of a special agreement, to a special chamber of ITLOS composed of five judges. As occurred in other cases, such as the M/V Saiga 2 case (St Vincent and the Grenadines/Guinea), the case concerning the Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), and the M/V Virginia G Case (Panama/Guinea Bissau), the dispute was originally submitted to arbitration pursuant to Articles 287 and 288 and Annex VII of UNCLOS, but the parties eventually decided to transfer the case to ITLOS. During the past year, the parties completed the written proceedings. In particular, Ghana filed its memorial on 4 September 2015 and Côte d’Ivoire its counter-memorial on 4 April 2016, and, subsequently, Ghana filed its reply on 25 July 2016, and Côte d’Ivoire its rejoinder on 14 November 2016. After the oral proceedings, the case is currently under the deliberation of ITLOS. (2) Case no. 25: ‘M/V Norstar’ (Panama v Italy) This case concerns the arrest and detention of the M/V Norstar, a Panamanian oil tanker involved in supplying gas oil to mega yachts in waters beyond the territorial seas of Italy, France, and Spain from 1994 until 1998. The arrest took place in September 1998 by Spanish officials at the request of Italy, allegedly for having supplied oil to such mega yachts in contravention of Italian legislation. In its application, Panama claims compensation from Italy for damage caused by the arrest of the vessel. In March 2016, Italy filed preliminary objections both to the jurisdiction of ITLOS and to the admissibility of the Panamanian application. All of them were examined by ITLOS in its judgment of 4 November on preliminary objections. In regard to the objections to the jurisdiction, Italy alleged that there was no dispute between Panama and said country; that the dispute, in the case that it existed, did not concern the interpretation or application of UNCLOS; that Spain, as the state that executed the arrest (as ordered by the Italian judicial authorities), should be the respondent in the present case and was an indispensable party to this proceedings; and that Panama had failed to appropriately pursue the settlement of the dispute by negotiations or other peaceful means under Article 283 of UNCLOS. All of these objections were rejected by ITLOS by twenty-one votes to one. As for the objections to the admissibility of the application, Italy first contended that this case was one of diplomatic protection and that the requisites of the nationality of the claim and the exhaustion of the local remedies were not fulfilled by Panama. In addition, Italy also objected that, because of the time passing between the facts and the bringing of the case before ITLOS (eighteen years), the principles of acquiescence, estoppel, and extinctive prescription were applicable. On the contrary, ITLOS found in its judgment, by twenty votes to two, that none of them were applicable and, therefore, that the application was admissible. Accordingly, and relying on the declarations respectively made by Italy and Panama pursuant to Article 287 of UNCLOS, ITLOS decided to entertain the case and continue to the next procedural phase. In particular, time limits have been fixed on 11 April 2017 for the memorial of Panama and 11 October 2017 for the counter-memorial of Italy. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected]

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Yearbook of International Environmental Law – Oxford University Press

Published: Dec 28, 2017

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