7 ITLOS’s Jurisprudential Contributions: Present and Future

This chapter explores the present and future contributions of the International Tribunal for the Law of the Sea (ITLOS). Presently, ITLOS has made substantial contributions to the peaceful solution of ongoing maritime disputes and to international efforts against illegal, unreported, and unregulated fishing. It has also provided guidance on the responsibility and liability regarding activities in the deep seabed area for the benefits of humankind as well as developed procedural rules and substantive law in international adjudication. Human rights at sea, marine environment protection and preservation, and delimitation of the continental shelf beyond 200 nautical miles are some of the areas of the law of the sea elucidated by ITLOS’s rulings. Future challenges include legal issues pertaining to sea-level rise, dispute settlement as regards biological diversity of areas beyond national jurisdiction, and potential contentious cases before the Seabed Disputes Chamber arising from exploitation of mineral resources in the deep seabed.

1 ITLOS and the Dispute Settlement System under UNCLOS

This chapter discusses the dispute settlement system under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The dispute settlement system under UNCLOS was drafted with the main purpose of achieving the uniform and effective interpretation and application of UNCLOS, as the compromises it embodied would otherwise be vulnerable to unilateral interpretation. UNCLOS sets up two international organizations: the International Seabed Authority (Authority) and the International Tribunal for the Law of the Sea (ITLOS). The Authority is the organization through which States Parties to UNCLOS organize and control activities in the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (the Area), particularly with a view to administering the resources of the Area. ITLOS, the dispute settlement mechanism specifically created by UNCLOS, allows urgent issues to be tackled swiftly through seeking provisional measures of protection from a court or tribunal as well as a functional approach. The chapter then considers ITLOS's place within the dispute settlement regime under UNCLOS; entities with access to ITLOS; other international agreements besides UNCLOS that confer jurisdiction on ITLOS; ITLOS's relationship and interaction with the other principal choices of dispute settlement mechanisms; and the pros and cons of using ITLOS instead of other forums.

6 Applications for Provisional Measures

This chapter assesses applications for provisional measures of protection under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). At the Third UN Conference on the Law of the Sea, the need for courts or tribunals having jurisdiction under UNCLOS to have the power to prescribe provisional measures was beyond dispute although there was considerable debate concerning the details of the regime associated with such measures. The finally adopted Article 290 of UNCLOS, under the heading ‘Provisional measures’, represents the best possible compromise. Provisional measures are divided into provisional measures prescribed by the International Tribunal for the Law of the Sea (ITLOS) under Article 290(1) pending ITLOS’ judgment on the merits of the dispute, on the one hand, and provisional measures prescribed by ITLOS under Article 290(5) pending the constitution of an arbitral tribunal to which a dispute is being submitted, on the other hand. The request for the prescription of provisional measures shall be in writing and specify the measures requested, the reasons therefor, and the possible consequences, if the request is not granted, for the preservation of the respective rights of the parties or for the prevention of serious harm to the marine environment.

5 Applications for Prompt Release of Vessels and Crews

This chapter looks at applications for prompt release of vessels and crews detained after violating laws and regulations of a coastal State. Pursuant to Article 292(1) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the International Tribunal for the Law of the Sea (ITLOS) has default jurisdiction over prompt release applications, unless the parties otherwise agree. The parties must be States Parties to UNCLOS and have not agreed to submit the question of release from detention to any other court or tribunal within ten days from the time of detention. Article 112 of the ITLOS Rules adds, inter alia, that ITLOS shall give priority to applications for release of vessels or crews over all other proceedings before ITLOS. In its judgment, ITLOS must determine in each case whether or not the allegation made by the applicant that the detaining State has not complied with a provision of UNCLOS for the prompt release of the vessel or the crew upon the posting of a reasonable bond or other financial security is well founded. If ITLOS decides the allegation is well founded, it shall determine the amount, nature, and form of the bond or financial security to be posted for the release of the vessel or the crew.

3 Contentious Cases before ITLOS and the Seabed Disputes Chamber

This chapter examines what constitutes a dispute under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The International Tribunal for the Law of the Sea (ITLOS) concurs with the International Court of Justice that a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other, which need not necessarily be stated expressis verbis, and that, in the determination of the existence of a dispute, the position or the attitude of a party can be established by inference, whatever the professed view of that party. When there is a dispute between the parties at the time of the institution of proceedings, the dispute must be one over which ITLOS has jurisdiction. To determine whether a dispute between the disputing parties in a particular case concerns the interpretation or application of UNCLOS, ITLOS must establish a link between the facts advanced by the applicant and the provisions of UNCLOS referred to by it and show that such provisions can sustain the claims submitted by the applicant. In contentious cases, the Seabed Disputes Chamber shall be open to States Parties to UNCLOS, the International Seabed Authority, the Enterprise, State enterprises, and State-sponsored natural legal persons carrying out activities in the Area.

4 Advisory Opinions by ITLOS

This chapter focuses on advisory opinions by the International Tribunal for the Law of the Sea (ITLOS). Like the International Court of Justice, ITLOS may render and has rendered advisory opinions on legal questions within its areas of competence. The 1982 United Nations Convention on the Law of the Sea (UNCLOS) expressly provides for the advisory jurisdiction of the Seabed Disputes Chamber of ITLOS, but not the full bench of ITLOS itself. According to Article 191 of UNCLOS, the Seabed Disputes Chamber shall give advisory opinions at the request of the Assembly or the Council of the International Seabed Authority on legal questions arising within the scope of their activities, and such opinions shall be given as a matter of urgency. The full bench of ITLOS has held that the substantive legal basis of the full-bench ITLOS’ advisory jurisdiction is Article 21 of its Statute stipulating that ITLOS’ jurisdiction comprises all disputes and all applications submitted to it in accordance with UNCLOS and all matters specifically provided for in any other agreement which confers jurisdiction on ITLOS. The ITLOS Rules elaborate the procedure in this respect.

2 Overview of ITLOS’s Composition, Organization, Structure, and Rules of Procedure

This chapter provides an overview of the composition, organization, structure, and rules of procedure of the International Tribunal for the Law of the Sea (ITLOS). ITLOS is composed of 21 judges elected by secret ballot by the States Parties to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) from among persons nominated by States Parties who enjoy the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea. The United Nations recognizes ITLOS as an autonomous international judicial body with jurisdiction as provided for in the relevant provisions of UNCLOS and its Statute (which is Annex VI to UNCLOS). The UN and ITLOS each undertakes to respect the status and mandate of the other and to establish cooperative working relations pursuant to the provisions of the Agreement on Cooperation and Relationship between the UN and ITLOS. With a view to facilitating the effective attainment of their objectives and the coordination of their activities, they shall consult and cooperate, whenever appropriate, on matters of mutual concern, and pursue, whenever appropriate, initiatives to coordinate their activities. Moreover, ITLOS's Registrar transmits to the UN information and documentation relating to ITLOS's work, including documentation relating to applications, pleadings, oral proceedings, orders, judgments, and other communications and documentation before ITLOS.