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Home EJIL Analysis The International Tribunal for the Law of the Sea Gets Busier

The International Tribunal for the Law of the Sea Gets Busier

Published on August 2, 2011        Author: 

Last summer, I wrote a piece on this blog noting that the International Tribunal for the Law of the Sea (ITLOS), which had been underutilised for some years, was finally getting some substative cases to decide. Although ITLOS had decided a number of cases dealing with provisional release of vessels, and had handled requests for provisional measures in cases where the merits had been submitted to an arbitral tribunal, ITLOS had only decided one case on the merits before 2010. But in a 6 month period before the summer of 2010, 2 cases were submitted to ITLOS: one a maritime delimitation case between Bangladesh and Myanmar  and the other a request for an advisory opinion. Not a lot of activity but nonethess signifcant. Nearly one year on, the Court has had two further cases submitted to it!! Last month, Panama and Guinea Bissau agreed to submit a dispute to ITLOS relating to the detention of a vessel (see press release). In November last year, Saint Vincent and the Grenadines initiated a case against Spain at ITLOS also relating to detention of a vessel. Neither of these cases are provisional release cases (see here). That means four new cases in just over 18 months!

It is worth taking a moment to reflect on this new found confidence in ITLOS. In two of the new cases (the Bangladesh/Myanmar and the Panama/Guinea Bissau cases), the parties have agreed to refer to ITLOS, disputes which ordinarily were within the jurisdiction of arbitral tribunals under the dispute settlement system of the United Nations Convention on the Law of the Sea. In other words, rather than going to an arbitral tribunal with compulsory jurisdiction over the dispute, the parties have instead agreed to go to ITLOS.  This raises questions as to whyStates might choose a standing court over an arbitral tribunal and why the new found confidence in ITLOS (since the ICJ would also have been an option for these States). One might argue that there are a number of advantages of arbitration over judicial proceedings. For example, the parties have more influence over the composition of the tribunal, the tribunal will be much smaller – usually 5 arbitrators – than ITLOS which has 21 judges. Both these points perhaps make ITLOS’ decisions less predictable for parties. But are there advantages to resorting to ITLOS (or other standing judicial bodies) over arbitration? Clearly these four State think so.  I can think of two possible advantages. Decisions of judicial bodies may be regarded as carrying greater (political rather than legal) authority than that of arbitral tribunals. While this may be true of the ICJ, I wonder about ITLOS. Also, developing countries may get financial assistance for using ITLOS. Are there other advantages?  Also, are there advantages of using ITLOS over the ICJ? I would be interested in readers’ comments on these issues.

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5 Responses

  1. Jonathan van Blaaderen

    Interesting piece. Perhaps the claims of rim states around the Arctic might generate some work for ITLOS in the coming years. I rather have the court decide these matters on the basis of international law than politicians on the basis of geopolitical power and weight or even through skirmishes.

  2. Sebastian

    How long does it take before one gets a ruling from the ICJ nowadays? Maybe the shorter(?) time between bringing the case in front of the tribunal and geeting a ruling also speaks in favour of the ITLOS.

  3. André Tschumi

    Are there advantages of using ITLOS over the ICJ?
    Despite of the fact that ITLOS is much “younger” than ICJ, it is an specific court about Law of the Sea while ICJ is a general court about anything concerning international public law. So, maybe a decision from a specific court may have more legitimacy than from a general court.

  4. Wojciech Kornacki

    Generally speaking, arbitration is less transparent and more arbitrary. Judicial proceedings place greater weight on due process and transparency. Once arbitration experts decide on a particular case, both parties are bound by it. While there is no appeal from ITLOS decisions, ITLOS may interpret or revise its decisions, when requested. Perhaps the states choosing ITLOS had bad experiences in arbitration before. After all, it may be better to have 21 experts consider the controversy, than 5.

  5. Kibrom Tesfagabir

    The fact that the tribunal is a specialized judicial body places it in a better position to decide cases that demand special expertise. Notable examples are fisheries, marine environment and marine research. Furthermore, the tribunal’s jurisdiction is limited to decide on the interpretation and application of the UNCLOS means it has the advantage to decide a case expeditiously than the ICJ which may be requested to decide on several questions besides one that has to do with law of the sea. In fact, I would say, the tribunal has built a reputation for its expeditious handling of cases.

    Compared to arbitration ITLOS presents a permanent platform especially in cases that require urgent judicial action. It would be unpragmatic, for example, to resort to arbitration in a case that involves provisional measures or prompt release. In fact the tribunal has managed to develop good jurisprudence in relation to prompt release and this, arguably, may place confidence on the tribunal by States. Regarding delimitation I think the Bay of Bengal case is both an opportunity and a challenge to the tribunal. The future activity of the tribunal, at least in delimitation – where it has tough competition with ICJ, will depend on how fast and convincingly it decides the case.