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.
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.
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.