Event Debrief: 'ITLOS at 20'

This report concerns a 23 May 2016 event convened in London by the London Centre of International Law Practice, entitled 'ITLOS at 20: Impacts of the International Tribunal for the Law of the Sea', previously announced on The Westphalian. The report was co-authored by event moderator Brian McGarry and University of Cambridge Ph.D. candidate Lan Nguyen. Photos of the event, along with a full transcript of President Golitsyn's remarks, will be made available here.

H.e. Judge Vladimir Golitsyn, President of the International Tribunal for the Law of the Sea.

H.e. Judge Vladimir Golitsyn, President of the International Tribunal for the Law of the Sea.

On 23 May 2016, the London Centre of International Law Practice (‘LCILP’) convened an invitational event at Gray’s Inn to reflect upon the 20th anniversary of the establishment of the International Tribunal for the Law of the Sea (‘ITLOS’). Featuring a diverse panel of experts and a keynote address by H.E. Judge Vladimir Golitsyn, President of ITLOS, the event attracted members of the London diplomatic community, representatives of international organisations, renowned academics, and law of the sea practitioners and technical experts.

In his keynote address, President Golitsyn observed that ITLOS, despite its relative youth, has established substantial jurisprudence relevant to the interpretation and application of the UN Convention on the Law of the Sea (‘the Convention’). His overview of the Tribunal’s case law demonstrated that it had moreover integrated a broad range of international legal topics into its decisions, including humanitarian norms and human rights (for example, in the M/V ‘Louisa’ case), as well as international environmental law (such as in the Advisory Opinion on Activities in the Area, rendered by the ITLOS Seabed Disputes Chamber).

In addition to these significant contributions of ITLOS to the development of international law, President Golitsyn discussed the critical function of the Tribunal in settling individual disputes. In this context, he recalled its prolific work in quickly resolving requests for provisional measures or prompt release of vessels and crew. President Golitsyn also highlighted notable successes in resolving delimitation disputes, such as in the Bay of Bengal case between Bangladesh and Myanmar. In that instance, the Tribunal was able to provide the parties with a swift and well-received Judgment to resolve a dispute which had persisted through decades of negotiations, enabling both States to undertake exploitation of natural resources.



In this manner, President Golitsyn concluded, ITLOS had lived up to the intention of States Parties to the Convention by promoting the use of the oceans in accordance with the rule of law. Following his keynote, it remained for the members of the evening’s expert panel to reflect on some of the specific and innovative ways in which the Tribunal had achieved this objective.

Professor Malgosia Fitzmaurice of Queen Mary University first discussed the contributions of ITLOS to international environmental law, beginning with its first provisional measures dispute, the Southern Bluefin Tuna cases. She observed that the Tribunal’s acknowledgement of the precautionary principle in that Order established a close link between general international law and environmental law, which it would further in subsequent decisions, such as its Order on provisional measures in the MOX Plant case and Straits of Johor. According to Prof. Fitzmaurice, the aforementioned Advisory Opinion of the Seabed Disputes Chamber—in which it clarified obligations erga omnes and implied the customary legal status of Principle 15 of the Rio Declaration—demonstrated that ITLOS stands at the forefront of the development of general international law and international environmental law.

Jill Barrett, Senior Research Fellow at the British Institute of International and Comparative Law, spoke on the Tribunal's impacts on the work of governments, and referred in particular to her experience as Deputy Agent for the United Kingdom in the MOX Plant case. She recalled that the Tribunal had played a very effective role in helping to resolving the parties' dispute, by prescribing a provisional measure which required the parties to co-operate and consult, and report to the Tribunal on their compliance. The Tribunal's provisional measure was adopted and extended by the Annex VII Tribunal established to hear this case, requiring the submission of further periodic reports which necessitated continuing consultation between the parties and identification of points of agreement. Ms. Barrett suggested that the Tribunal's prescription of a provisional measure that was directed at both parties (rather than the one requested by Ireland) illustrated its diplomatic function in resolving disputes between States—a theme borne out by the parties' subsequent agreement on a wide range of measures, and much improved bilateral co-operation on civil nuclear matters by the time the case was withdrawn by Ireland.

Lan Nguyen speaks to the Panel during Q&A.

Lan Nguyen speaks to the Panel during Q&A.

Coalter Lathrop, President of Sovereign Geographic and Editor of International Maritime Boundaries, spoke on the Tribunal’s contributions to the delimitation of the extended continental shelf in the aforementioned Judgment in the Bay of Bengal case (in which he served as Counsel). He observed that this case followed over two decades of conflicting decisions from ad hoc arbitral tribunals and the International Court of Justice (‘ICJ’) as to the relationship between continental shelf delimitation and entitlement, as well as the functional link between these bodies and the Commission on the Limits of the Continental Shelf. Mr. Lathrop suggested that the ICJ’s Judgment of 17 March 2016—in which it appears to follow the case-by-case approach to this issue that ITLOS advanced in Bay of Bengal—suggests the wisdom and influence of the Tribunal’s holding in that case.

Finally, Pierre-Emmanuel Dupont, Director of LCILP’s Centre on International Land and Maritime Boundaries, spoke on the impacts of the Tribunal’s function under the Convention in respect of provisional measures. He observed that systemic differences exist between ITLOS and the ICJ in light of these bodies’ operative Statutes and organic frameworks, as well as the broader mandate of ITLOS to not only preserve parties’ rights but also prevent serious harm to the marine environment. Mr. Dupont suggested that cross-fertilisation between the jurisprudence of these bodies had nevertheless tended to mitigate risks of legal fragmentation in this area, and highlighted in this respect the 2015 Order of the ITLOS Special Chamber in Ghana/Côte d'Ivoire, which sent a strong signal to States that neither judicial body will grant provisional measures unless satisfied that a plausible case exists on the merits.

The event concluded with a series of questions and answers between attendees and the speakers, including President Golitsyn. The successful gathering follows from other recent events convened by LCILP, such as its Conference on Energy Arbitration & Dispute Resolution in the Middle East & Africa, which took place in London in March 2016.

Pres. Golitsyn Addresses LCILP

On the evening of 23 May, the London Centre of International Law Practice, in partnership with Queen Mary University, will commemorate the 20th anniversary of the International Tribunal for the Law of the Sea by welcoming the President of the Tribunal, H.E. Judge Vladimir Golitsyn, as he delivers a keynote address and engages with an expert panel consisting of:

Prof. Malgosia Fitzmaurice (Queen Mary University)
Jill Barrett (British Institute of International and Comparative Law)
Coalter Lathrop (Sovereign Geographic; International Maritime Boundaries)
Pierre-Emmanuel Dupont (London Centre of International Law Practice)

I will have the privilege and pleasure of moderating the event, which is intended for an audience of London-area diplomats, practitioners, and academics engaged in the law of the sea and international dispute settlement.

For further information on the event, please click on the flyer.

For further discussion of the ITLOS anniversary, see Pierre-Emmanuel's earlier reflection in The Westphalian

'Small States' & Long Disputes

On 19-20 May, the British Institute of International and Comparative Law, Queen Mary University, and The Open University, in partnership with WilmerHale, will present a conference on the particular issues which States with a population of less than 1.5m face in regard to international dispute resolution and regional integration. I will speak on models of cost-efficiency in binding dispute settlement proceedings between States. Further details are available by clicking on the event flyer.

My colleague and fellow correspondent, Pierre-Emmanuel Dupont, recently spoke as well on the settlement of longstanding disputes between States. In March 2016, he appeared at a panel event at the University of Kent to discuss Dr. Gbenga Oduntan's recent treatise, 'International Boundary Disputes in Africa', which masterfully critiques the content and application of contemporary international law to territorial issues on the African continent: https://www.routledge.com/International-Law-and-Boundary-Disputes-in-Africa/Oduntan/p/book/9780415838924

Conference on Middle Eastern & African Energy

1st Annual Conference on
Energy Arbitration and Dispute Resolution in the Middle East & Africa

7-9 March 2016, International Centre for Dispute Resolution

Next week, the London Centre of International Law Practice will ring in an annual series of conferences devoted to the settlement of energy disputes in the MENA region and Sub-Saharan Africa.

The inaugural event has attracted an impressive mix of speakers and participants, including regional State officials, industry executives, senior practitioners, renowned professors, and directors for organisations such as the Energy Charter Treaty Secretariat, International Chamber of Commerce, and Organisation for Economic Co-operation and Development. Panels and workshops will address a range of topics spanning regional economic security, law and policy considerations, and energy industry practices. 

Further information is available at the conference website: http://lcilpconference.org/.

In Memoriam Boutros Boutros-Ghali

Boutros Boutros-Ghali, as UN Secretary-general.   Credit: UN Photo,  http://www.unmultimedia.org/photo/gallery.jsp?query=boutros-ghali .

Boutros Boutros-Ghali, as UN Secretary-general. Credit: UN Photo, http://www.unmultimedia.org/photo/gallery.jsp?query=boutros-ghali.

International lawyers mourn the loss of Boutros Boutros-Ghali, who died on 16 February 2016. The former Secretary-General of the United Nations was indeed not only a diplomat, but a prominent expert in public international law, demonstrating a constant commitment to the rule of law and for justice in international relations. He was a Professor of international law (and international relations) at Cairo University for decades, and a Visiting Professor at various universities including the Faculty of Law at Paris University from 1967 to 1968. He lectured at the Hague Academy of International Law and was a member of the Curatorium of the Academy since 1982, serving as its President from 2002 until his death. As the Hague Academy recalled in a statement, it was upon Boutros-Ghali’s initiative that the famous External Programme of the Academy was created approximately fifty years ago, and he had been a tireless promoter of its Centre for Studies and Research.

Boutros Boutros-Ghali and the author, at a february 2013 conference on international sanctions.

Boutros Boutros-Ghali and the author, at a february 2013 conference on international sanctions.

On a more personal note, I remember having had a chance to chair a panel at a conference on international sanctions in Paris in 2013 where the former Secretary-General delivered a keynote speech on ‘sanctions in a divided world’, where he noted the increasing use of unilateral sanctions and questioned this practice against the background of the collective security system of the UN Charter. He spoke with much clarity and accuracy, referring to his own experience as Secretary-General of the United Nations (1992-1996). He noted that he had endeavoured so as to clarify aspects relating to the implementation and application of international sanctions, including in his report entitled ‘Supplement to Agenda for Peace’ in 1995. He also stressed:

[P]rudence is needed in the taking and the implementation of sanctions to avoid giving the impression that they are taken in a spirit of revenge, as a punishment, rather than aiming at a modification of illicit political behavior endangering international peace and security or to compel a State to abide by its international obligations.

Boutros Boutros-Ghali recalled in his keynote that priority should be given to the peaceful settlement of disputes by all means of negotiation and mediation, and that sanctions should only be imposed as a last resort when all pacific measures have proven useless, and only in a balanced and proportionate way. Describing them as a ‘blunt tool’, he stressed:

[Sanctions] raise the ethical question whether the suffering inflicted on vulnerable groups in a targeted country is a legitimate means to exercise pressure on the political elite of the said country. The question is whether these measures really affect the political rulers or if they use the civilian population as an hostage to compel the rulers by turning public opinion against them. The experience has demonstrated, in that respect, that sanctions have unpredicted and unintended effects.

Secretary-general boutros boutros-ghali and chairman tommy koh at the historic earth summit in 1992.   CREDIT: UN PHOTO,  HTTP://WWW.UNMULTIMEDIA.ORG/PHOTO/GALLERY.JSP?QUERY=BOUTROS-GHALI .

Secretary-general boutros boutros-ghali and chairman tommy koh at the historic earth summit in 1992. CREDIT: UN PHOTO, HTTP://WWW.UNMULTIMEDIA.ORG/PHOTO/GALLERY.JSP?QUERY=BOUTROS-GHALI.