The international tribunal for the law of the Sea: five years of case law

• Author: John E Noyes
• Position: Professor of Law, California Western School of Law, San Diego, CA, USA
• Pages: 84-101

THE INTERNATIONAL TRIBUNAL

FOR THE LAW OF THE SEA:

FIVE

YEARS

OF CASE LAW

JOHNENOYES*

INTRODUCTION

In its few years of existence, the International Tribunal for the Law of the

Sea (ITLOS) has developed and used some innovative procedures, has decided

numerous cases, and has made significant substantive contributions to

international law. These remarks first provide a brief background about the

Tribunal. They then evaluate how

the

Tribunal's decisions have taken account

of some new developments in the law of the sea, and what the Tribunal's

decisions reveal about its relationships or interactions with other dispute

settlement mechanisms.

One of the institutions created by thel982 United Nations Convention

on the Law of the Sea was the International Tribunal for the Law of the Sea,

which is headquartered in Hamburg, Germany The Convention entered

into force in November 1994. In 1996 the Tribunal elected its 21 judges,

who as a whole represent the principal legal systems of the world and reflect

an equitable geographical distribution.1

* Professor of Law, California Western School of Law, San Diego, CA, USA. The substance of this

article was first delivered as a Paper at the Caribbean Regional Conference of the Internationa! Law

Association: Barbados, March 26-29,

2003;

paper revised, May 8,

2003-

The author may be

contacted at jnoyes@cwsl.edu.

1 See Law of the Sea Convention, Annex VI art 2.

The Tribunal has decided nine separately numbered cases, the first in

December 1997 and the last in December 2002.2 One other case was removed

from the Tribunals list of

cases,3

and one case on the list has been suspended,

pending negotiations between the parties.4 The Tribunal has ruled on

a

variety

of matters, including hot pursuit, the legality of the

use

of force at

sea,

questions

of international environmental law, and the nationality and registration of

vessels.

Under Part XI of the Law of the Sea Convention, which was modified by

the July 1994 Part XI Implementation Agreement, the Seabed Disputes

Chamber of the ITLOS is to play a primary role in seabed mining disputes.5

The complicated Part XI dispute settlement system, which provides access to

the Tribunal for the International Seabed Authority and private mining

companies as well as States Parties, has not yet been used in practice.

With respect to non-seabed mining disputes, Part XV, Section 2 of the

1982 Convention offers disputing States Parties a choice among third-party

forums. If the parties to a dispute do not settle it by informal means, the

parties may choose among different forums to render a binding decision. If

the parties do not select the same forum, then, according to Article 287 of

the Convention, any party may submit the dispute to an arbitral tribunal

constituted under Annex VII of the Convention - not to the ITLOS - in order

to obtain a final decision. The Convention thus provides for compulsory

procedures entailing binding decisions, except for the sensitive categories of

disputes that are subject to the limitations and optional exceptions in Articles

297 and 29$. The Convention alone does not, however, provide that the

ITLOS will have jurisdiction when only one party to

a

dispute submits a case

to the Tribunal seeking

a

final

decision in

a

non-seabed mining dispute. Rather,

the ITLOS will have Jurisdiction if both parties to a dispute have chosen the

2 The MV "Saiga" (St. Vincent and the Greadines v. Guinea), 1 ITLOS Rep 16 (1997). 110 LLR.

736,

37 I.LM. 360 (1998) (List of Cases No 1): The MIV "Saiga" (No 2) (St. Vincent and the

Grenadines v. Guinea), 117 I.L.R. 111, 37 I.LM. 1202 (1998) (Provisional Measures), and 120

LLR. 143, 38 I.L.M, 1323 (1999) (Merits) (list of Cases No 2); Southern Bluefin Tuna Cases

(Afc«r Zealand v.

JAPAN;

Australia v. Japan),

1

17 I.L.R. 149 (1999)

(LIST

of Cases Nos 3 and 4);

The Camouco (Panama v. France) (2000), 39 l.L.M. 666 (2000) (List of Cases No 5 ); The Monte

Confitrco (Seythelles v. France) (2000) (List of Cases No 6 ); The Grand Prince (Belize v. France)

(2001) (List of Cases No 8); MOX Plant Case (Ireland v. U.K.) (2001), 41 LL.M. 405 (2002)

(List of Cases No 10); The

Volga

(Russia v. Australia) (2002) (List of Cases No 11). All the cases

are available at http://www.itlos,org/stat2_enhtm1.

3 The Chaisiri Reefet 2 (Panama v Yemen) (List of Cases No 9) was settled and removed from the

Tribunal's list of cases in July 2001.

4

Conservation

and

Sustainable Exploitation

of

Sword fish

Stocks

in the

South-eastern Pacific

Ocean

(European Community/Chile) (Constution

of

Chambers),

Orders

of Dec, 20, 2000, and Mar.

16, 2001

(List

of

Cases

No 7 ).

5 See Law of the Sea Convention arts. 187-191 and Antics VI, arts 14, 35-40; Niels-J Seeberg-

Elvetfeldt, The Settlement of Disputes in Deep Sebed Mining (1998).