International Tribunal for the Law of the Sea at 20

Reflecting on the progress of Hamburg's highly specialised body.

A Courtroom scene at the opening of the tribunal's most recent hearing (The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, 10 August 2015). Credit: Itlos, https://www.itlos.org/cases/list-of-cases/case-no-24/.

A Courtroom scene at the opening of the tribunal's most recent hearing (The “Enrica Lexie” Incident (Italy v. India), Provisional Measures, 10 August 2015). Credit: Itlos, https://www.itlos.org/cases/list-of-cases/case-no-24/.

This year marks the 20th anniversary of the establishment of the International Tribunal for the Law of the Sea (ITLOS), which was officially inaugurated on 18 October 1996 in Hamburg. In his statement before the 70th Session of the UN General Assembly on 8 December 2015, the current president of ITLOS, H.E. Judge Vladimir Golitsyn, announced that the Tribunal intends to commemorate this anniversary with a number of events, the main being a ceremony to be held on 5 October 2016.[1] This will be followed by a symposium entitled UNCLOS and the Tribunal’s Contribution to International Dispute Settlement, to be held on 6 and 7 October 2015. In addition, a side event will be held during the Meeting of States Parties of the UN Convention on the Law of the Sea (UNCLOS) in June 2016.

President Golitsyn noted that these events

will be an occasion to review the development of the work of the Tribunal since its early days and will also set the scene for the Tribunal’s way into the future. A more detailed programme of the anniversary celebrations is currently being prepared. Invitations will of course be addressed to all States Parties to the Convention.

Our affiliated capacity-building programmes at the London Centre of International Law Practice (the Centre for International Land and Maritime Boundaries and the Centre for International Diplomacy and Security) intend to take part in this anniversary in various ways, including through participation in these official events.

A vital work in progress

This anniversary shall also be an opportunity to reflect on the achievements of ITLOS, as well as on the challenges it faces.

While the early doubts voiced by some commentators regarding the mere utility of establishing an international tribunal devoted to law of the sea issues were probably overstated, it remains that ITLOS has been (and is still) underused.

As to achievements, one may refer to the Tribunal’s proven capacity to deal with new cases expeditiously, but most of all to its concern for (and ability to ensure) consistency in the jurisprudence on maritime delimitation vis-à-vis the International Court of Justice and arbitral tribunals constituted under Annex VII of UNCLOS. This is particularly apparent in the Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), where ITLOS followed the now well-established three-stage approach used by other international courts and tribunals for the delimitation of the territorial sea, the exclusive economic zone, and the continental shelf. The contribution of ITLOS to the development of other aspects of the law of the sea is also noteworthy, for example as regards the environmental obligations of States.

That being recalled, it is probably fair to say that ITLOS displays a mixed record. While the early doubts voiced by some commentators regarding the mere utility of establishing an international tribunal devoted to law of the sea issues were probably overstated, it remains that ITLOS has been (and is still) underused.[2] In particular, it has failed to become the venue of choice for the resolution of disputes over maritime zones—not least, of course, because States parties to (potential) maritime disputes have often not made the same, or any, choice of forum for the settlement of disputes under Article 287 of UNCLOS. The number of States Parties to UNCLOS having made a declaration of acceptance of UNCLOS remains very limited.

The ITLOS Special Chamber in the pending case between ghana and Côte d'Ivoire. l to r: Mr. gautier (registrar), judge paik (south korea), icj president abraham (appointed by Côte d'Ivoire), special tribunal president bouguetala (algeria), judge Wolfrum (germany), former itlos president mensah (appointed by ghana). CREDIT: ITLOS, https://www.itlos.org/cases/list-of-cases/case-no-23/case-no-23-provisional-measures/.

The ITLOS Special Chamber in the pending case between ghana and Côte d'Ivoire. l to r: Mr. gautier (registrar), judge paik (south korea), icj president abraham (appointed by Côte d'Ivoire), special tribunal president bouguetala (algeria), judge Wolfrum (germany), former itlos president mensah (appointed by ghana). CREDIT: ITLOS, https://www.itlos.org/cases/list-of-cases/case-no-23/case-no-23-provisional-measures/.

Nevertheless, the recent ongoing case regarding the Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire), which was initially submitted to an Annex VII arbitral tribunal before being transferred to a Special Chamber of ITLOS, may contribute to renewed interest in Hamburg. This is especially true in light of the recent ITLOS Order granting Côte d’Ivoire's request for provisional measures to freeze drilling activities in the disputed areaan element of relevance to many other ongoing and prospective disputes.   


Additional resources:

For those unfamiliar with ITLOS, a short film presenting the jurisdiction and role of the Tribunal in the settlement of disputes under UNCLOS was launched at the 25th Meeting of UNCLOS States Parties on 12 June 2015 in New York. It is available in English and French.

[1] The webcast of the statement of ITLOS President is available at 52:00 of the 69th plenary meeting of the 70th session of the General Assembly at http://webtv.un.org/meetings-events/watch/general-assembly-69th-meeting-70th-session/4653963161001.

[2] For a similar assertion of a chronic ‘underuse’ of ITLOS, and a discussion of its causes, see e.g. Ruth Mackenzie, Cesare P.R. Romano, Yuval Shany & Philippe Sands, Manual on International Courts and Tribunals (Oxford University Press 2010), at 67.