XVI. PUBLIC INTERNATIONAL LAW

N. Law of the Sea

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

The International Tribunal for the Law of the Sea (ITLOS) is a specialized judicial body established under the United Nations Convention on the Law of the Sea (UNCLOS). It plays a critical role in the adjudication of disputes and the interpretation and application of the provisions of UNCLOS, which serves as the constitution of the world's oceans.

I. Legal Framework

UNCLOS: The primary legal framework that establishes ITLOS is UNCLOS, particularly Annex VI of the convention, which governs the Tribunal's composition, jurisdiction, and functions.
- UNCLOS was adopted in 1982 and entered into force on November 16, 1994.
- ITLOS was created to facilitate the peaceful settlement of disputes and ensure the uniform interpretation of the law of the sea.

II. Structure and Composition of ITLOS

Composition:
- ITLOS consists of 21 independent judges who are experts in international law, particularly the law of the sea.
- Judges serve for nine-year terms and may be re-elected.
- They are elected by State Parties to UNCLOS through a voting system, considering equitable geographic distribution and representation of various legal systems.
- No two judges may be nationals of the same state, ensuring diversity and neutrality in the Tribunal.
Chambers: ITLOS operates through several specialized chambers, enabling the Tribunal to efficiently handle specific categories of disputes:
- Seabed Disputes Chamber: Handles disputes related to activities in the International Seabed Area (also known as "the Area"). The Area is beyond national jurisdiction and managed under the common heritage of mankind principle.
- Chamber of Summary Procedure: Facilitates expedited procedures for urgent cases.
- Special Chambers: The Tribunal may create ad hoc chambers for specific disputes based on agreements between the disputing parties.

III. Jurisdiction of ITLOS

ITLOS holds jurisdiction over disputes and applications arising under the Law of the Sea Convention and other agreements that confer jurisdiction on the Tribunal. There are several categories of disputes:

Contentious Jurisdiction:
- This refers to ITLOS's power to hear disputes brought by States concerning the interpretation or application of UNCLOS.
- State Parties may submit disputes regarding issues such as:
  - Maritime boundary delimitation;
  - The breadth of the territorial sea, the contiguous zone, or the continental shelf;
  - The rights and obligations of coastal States;
  - Navigation rights, including the regime of innocent passage and transit passage through international straits;
  - Conservation and utilization of marine living resources, such as fisheries disputes.
Advisory Jurisdiction:
- ITLOS may also provide advisory opinions at the request of entities authorized by UNCLOS, such as the International Seabed Authority (ISA) or any UN body. These opinions are not binding but are influential in clarifying international law.
Special Jurisdiction over the International Seabed Area:
- The Seabed Disputes Chamber handles disputes related to activities in "the Area," which refers to the seabed, ocean floor, and subsoil beyond the limits of national jurisdiction. This area is managed by the International Seabed Authority (ISA), and disputes typically arise from exploration and exploitation of marine mineral resources.
- The Chamber may hear disputes between:
  - States and the ISA;
  - States and contractors engaging in seabed activities;
  - Contractors and the ISA or other contractors.
Prompt Release of Vessels and Crews:
- ITLOS also has a special function for the prompt release of vessels and crews. When a coastal State detains a foreign vessel for alleged violations of its laws (e.g., fishing violations), the flag State of the vessel can seek prompt release by ITLOS upon the payment of a bond or other financial security.
Provisional Measures:
- ITLOS can prescribe provisional measures to preserve the respective rights of the parties or prevent serious harm to the marine environment pending the final settlement of a dispute. This is an urgent measure similar to an injunction in domestic legal systems.
Compulsory Dispute Settlement:
- One of the hallmarks of UNCLOS is the compulsory dispute settlement mechanism. If parties cannot settle their disputes through negotiation or conciliation, they are obligated to submit their disputes to one of the dispute resolution bodies under UNCLOS:
  - ITLOS,
  - The International Court of Justice (ICJ),
  - Arbitral tribunals constituted under Annex VII of UNCLOS,
  - Special arbitral tribunals under Annex VIII of UNCLOS (for technical matters).
- Parties to a dispute may choose ITLOS over other forums for resolution.

IV. Key Cases and Jurisprudence

Over the years, ITLOS has built a significant body of jurisprudence in the law of the sea. Some landmark cases include:

M/V "Saiga" (No. 2) Case (Saint Vincent and the Grenadines v. Guinea) (1999):
- This case involved the prompt release of a vessel seized by Guinea for allegedly violating its customs laws. ITLOS held that Guinea had violated the right of freedom of navigation under UNCLOS, and Guinea was ordered to release the vessel and pay compensation.
Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore) (2003):
- Malaysia brought a case against Singapore, claiming that Singapore’s land reclamation activities were causing environmental harm. ITLOS ordered provisional measures to prevent serious harm to the marine environment and urged the parties to consult with one another.
Delimitation of the maritime boundary between Ghana and Côte d'Ivoire (2017):
- ITLOS established the maritime boundary between the two States in the Atlantic Ocean, providing clarity on issues related to overlapping oil concessions and maritime claims.
The Arctic Sunrise Case (Netherlands v. Russia) (2014):
- ITLOS ordered Russia to release a Dutch-flagged vessel seized during a protest against an oil platform in the Arctic. The Tribunal emphasized the right of peaceful protest and the requirement of prompt release of detained vessels.

V. Procedure Before ITLOS

The procedures of ITLOS are governed by its Statute and Rules of the Tribunal. The process typically involves:

Filing of a case: A State Party submits a dispute through an application.
Written submissions: The parties exchange written memorials and counter-memorials.
Oral hearings: Public hearings are held where the parties present their case before the judges.
Judgment: ITLOS delivers its judgment, which is final and binding on the parties.

VI. Enforcement of ITLOS Judgments

Judgments rendered by ITLOS are binding and final between the parties to the dispute. If a State fails to comply with a judgment, the matter may be referred to the United Nations Security Council, which can make recommendations or decide upon measures to enforce the judgment.

VII. Conclusion

ITLOS is a critical institution in the development and enforcement of the law of the sea, providing a forum for the peaceful settlement of disputes under UNCLOS. Its jurisprudence has significantly contributed to the interpretation of key principles such as freedom of navigation, maritime boundary delimitation, and environmental protection. As disputes over marine resources, boundary claims, and navigation rights continue to arise, ITLOS remains central to maintaining order and promoting the rule of law in the world’s oceans.