Category: International Tribunal for the Law of the Sea (ITLOS)

By: Sondre Torp Helmersen

PDF Version: S T Helmersen Blog post

Matter commented on: teachings by the ITLOS

This blog post is based on an article in (2020) 11 Journal of International Dispute Settlement p. 20-46, which can be accessed through the following link: https://academic.oup.com/jids/article-abstract/11/1/20/5715401

I. Introduction and methodology

How international judges use academic texts is a topic that attracts a small but steady degree of attention from the international legal academy. This blog post and the related article look at the International Tribunal for the Law of the Sea (ITLOS), an institution that has not yet been the subject of such analysis.

This blog post and the related article focus on the role of teachings in answering specific legal questions that come before an international tribunal. Teachings also have other functions in international law. They help systematise the law and can present broader criticisms and reflections on the law’s history and future development. Examining these functions of teachings would require a methodology different from the one used here.

By: Alex Oude Elferink

PDF version: https://site.uit.no/jclos/files/2019/07/JCLOS-Blog-8.7.2019-Settlement-of-the-Dispute-concerning-the-Arctic-Sunrise_Elferink.pdf

Document commented upon: Joint statement of the Russian Federation and the Kingdom of the Netherlands on scientific cooperation in the Russian Arctic region and the settlement of a dispute (Joint statement)

In the fall of 2013, the detention of the vessel Arctic Sunrise and its crew by Russian security forces was breaking news. The detention followed a protest action of Greenpeace activists against the rig Prirazlomnaia, which planned to begin the commercial production of oil in the Pechora Sea in the exclusive economic zone of the Russian Federation. The Russian Federation accused the activists of engaging among others in piracy and hooliganism. The activists faced criminal charges entailing long-term prison terms. The detention of the vessel and its crew prompted the Netherlands, the flag State of the Arctic Sunrise, to start arbitral proceedings against the Russian Federation under the United Nations Convention on the Law of the Sea (Convention), to which both States are parties. The Russian Federation immediately rejected that the arbitral tribunal had the jurisdiction to deal with this dispute and abstained from participating in the proceedings. However, the non-participation of the Russian Federation did not stop the arbitral procedure. Prior to the constitution of the arbitral tribunal, the International Tribunal for the Law of the Sea (ITLOS), in an order indicating provisional measures to protect the rights of the Netherlands, had already ordered the Russian Federation to release the Arctic Sunrise and its crew. Although the Russian Federation did not comply with the order of the ITLOS, it did release the crew of the Arctic Sunrise as part of an amnesty in connection with the 20th anniversary of the Russian constitution in December 2013. The bill introduced in the State Duma was amended at the last moment to include the charges that had been brought against the crew members. This probably did much to defuse media attention for the Arctic Sunrise incident in the Western press. The Arctic Sunrise itself was eventually allowed to leave the Russian port of Murmansk in June of 2014.

By: Arron N. Honniball

Pdf version: https://site.uit.no/jclos/files/2019/06/JCLOS-Blog_4.6.2019_Honniball_Norstar_Freedom_of_Navigation.pdf

Case commented on: The International Tribunal for the Law of the Sea, Judgement in the M/V “Norstar” Case Between Panama and Italy, 10 April 2019.

Introduction

The International Tribunal for the Law of the Sea (ITLOS) delivered its Judgement in the M/V “Norstar” Case (Panama v. Italy) on 10 April 2019: The M/V “Norstar” Case (Panama v. Italy) Judgement. The Tribunal found that Italy violated Article 87(1) of the United Nations Convention on the Law of the Sea (UNCLOS), but did not violate Article 300 of UNCLOS.  Article 87(2) of UNCLOS was found to be inapplicable (“Norstar” Judgement, para 469).

The factual background in brief is that the M/V “Norstar” was an oil tanker flying the Panamanian flag. According to Italy, an investigation into the activities of M/V “Norstar” and the “bunkering brokers” registered in Italy (Rossmare International S.A.S.) “revealed ‘that the M/V Norstar was involved in the business of selling the fuel purchased in Italy in exemption of tax duties to a clientele of Italian and other EU leisure boats in the international waters [high seas] off the coasts of the Italian city of Sanremo’” (“Norstar” Judgement, paras 69-70). Italy initiated criminal proceedings against the individuals involved and also issued a decree of seizure against the M/V “Norstar” as the corpus delicti of the alleged crimes. Spain enforced the decree of seizure when the M/V “Norstar” was within Spanish internal waters (“Norstar” Judgement, paras 70-75). An Italian court eventually ordered that the M/V “Norstar” be released and returned to its owners following the acquittal of the persons involved; but M/V Norstar’s owners never took possession and the vessel was auctioned off by the Spanish port authority (“Norstar” Judgement, paras 80-86).

This post analyses the doctrinal contributions of the “Norstar” Judgement to both freedom of navigation (Article 87(1)(a) of UNCLOS) and exclusive flag state jurisdiction (Article 92(1) of UNCLOS). The post concludes with a brief discussion as to if and why the Tribunal may wish to clarify its position on these issues in any forthcoming M/T “San Padre Pio” Case (Switzerland v. Nigeria), Order.

By: Natalia Ermolina

PDF Version: Some comments on Ghana’s alleged violation of provisional measure (a) as prescribed by the ITLOS Special Chamber in its Order of 25 April 2015.

Proceedings commented on: Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean, ITLOS Case No. 23.

Background of the dispute and the current post

The dispute between Ghana and Côte d’Ivoire over the delimitation of their maritime boundary was submitted by way of a special agreement to a special chamber of the ITLOS. On 27 February 2015, Côte d’Ivoire submitted a request for the prescription of provisional measures under article 290 (1) of the United Nations Convention on the Law of the Sea (LOSC). The Chamber delivered its Order on 25 April 2015 (Order). The Chamber unanimously prescribed the following provisional measures (para. 108 (1)):

(a) Ghana shall take all necessary steps to ensure that no new drilling either by Ghana or under its control takes place in the disputed area as defined in paragraph 60;

(b) Ghana shall take all necessary steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Côte d’Ivoire;

(c) Ghana shall carry out strict and continuous monitoring of all activities undertaken by Ghana or with its authorization in the disputed area with a view to ensuring the prevention of serious harm to the marine environment;

(d) The Parties shall take all necessary steps to prevent serious harm to the marine environment, including the continental shelf and its superjacent waters, in the disputed area and shall cooperate to that end;

(e) The Parties shall pursue cooperation and refrain from any unilateral action that might lead to aggravating the dispute.

Professor Nigel Bankes, in his post of 12 May 2015, summarized the conditions to be met in order to trigger the power of courts and tribunals to prescribe provisional measures and commented on the scope of the provisional measures prescribed by the Order of 25 April 2015. This post addresses the subsequent developments in the dispute between Ghana and Côte d’Ivoire.

By: Eva Romée van der Marel 

PDF Version: The due diligence obligations of the flag state with respect to its fishing vessels and the environment

Decision commented on: The Matter of the South China Sea Arbitration, Between the Republic of Philippines and The People’s Republic of China, Award on the Merits (SCSA) of 12 July 2016 (Registry, the Permanent Court of Arbitration).

Pursuant to Articles 286, 287 and Article 1 of Annex VII of the Convention on the Law of the Sea (LOSC), the Republic of Philippines instituted arbitral proceedings on 22 January 2013 concerning the legal basis of maritime rights and entitlements in the South China Sea, the status of certain geographical features in the South China Sea, and the lawfulness of certain actions taken by China in the South China Sea.

The Philippines made fifteen submissions to the Tribunal, some of which are discussed in earlier posts on this Award. This post focuses on submission no. 9, and submissions no. 11 and no. 12B, in so far as they concern the due diligence obligations of the flag state with respect to its fishing vessels in relation to environmental obligations. The post first examines submission no. 9. In this part of the Award, the Tribunal confirms the obligation of China, as the flag state, to exercise due diligence with respect to Chinese vessels fishing in the Philippines’ exclusive economic zone (EEZ). This consolidates some of the ITLOS’ recent observations in its Advisory Opinion to the SRFC (SRFC) on the standard of responsibility expected from the flag state. It does not shed any light on what can constitute due diligence. The Tribunal considered the standard of due diligence in some more detail as part of submissions no. 11 and no. 12B, dealing specifically with the standard of due diligence required from China, as the flag state, with respect to Chinese vessels carrying out harmful fishing practices. This constitutes the second part of this post. The post concludes with some observations.

By: Nigel Bankes

PDF Version: The Annex VII Tribunal in The “Enrica Lexie” Incident Makes New Provisional Measures Order

Decision commented on: Annex VII Arbitral Tribunal, Order on Prescription of Provisional Measures in the “Enrica Lexie” Incident, Registry of the Permanent Court of Arbitration, 29 April 2016

The “Enrica Lexie” incident has already been the subject of an earlier post here in relation to the provisional measures order made by the International Tribunal for the Law of the Sea (ITLOS) pending the establishment of the Annex VII Tribunal in the matter. The facts of the matter and the unusual nature of ITLOS’s jurisdiction in cases of this sort are canvassed in that earlier post. The characterization of the dispute as summarized by the Annex Tribunal VII is as follows (at para 5):

By: Nigel Bankes

PDF Version: ITLOS, the Enrica Lexie Incident and the prescription of provisional measures, saying that there is urgency does not make it so

Decision commented on: ITLOS, The Enrica Lexie Incident: Order in respect of request for the prescription of provisional measures, Italy v India, 24 August 2015.

Article 290 of the Law of the Sea Convention of 1982 (LOSC) accords the International Tribunal of the Law of Sea (ITLOS) the authority to prescribe provisional measures in two different circumstances. Paragraph one authorizes ITLOS (along with the International Court of Justice, and any relevant international tribunal properly seized with an application) “to 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” provided that ITLOS, the Court or an arbitral tribunal (as the case may be) has prima facie jurisdiction, to consider the matter.