Newsletter 2020/2

May 2020

Three months ago, I certainly did not think that I would be writing to you from the situation in which we all find ourselves today as a result of the COVID-19 pandemic. Since 19 March 2020, we have restricted visits to the Tribunal and migrated the majority of the Registry staff to working from home, leaving a small team of core staff in situ at the Tribunal. As of 18 May 2020, the Registry staff will have returned to the office, while observing the required health and safety measures.

February saw the Registry in full preparation for its Forty-ninth session and the Judges arrived in Hamburg in early March in preparation for the meeting. As the situation with the pandemic developed, we decided to shorten the session and to re-organize its programme of work to allow for the prompt adoption of essential decisions. In this regard, the Tribunal adopted several documents to be submitted to the Meeting of States Parties, such as the Tribunal’s annual report for 2019 and its budget proposals for 2021/2022.  Another important decision taken was that concerning the election of the Deputy Registrar, a position which has been vacant since September 2019. The Tribunal elected Mr Antoine Ollivier, a French national, who currently serves as Legal Officer at the International Court of Justice. We look forward to Mr Ollivier taking up his duties at the Tribunal in June.

Although a number of events connected with the session had to be cancelled owing to the spread of the COVID-19 virus, we did manage to celebrate the closing ceremony of the 2019/2020 ITLOS/Nippon Foundation capacity-building programme, on 17 March 2020. After nine intense months of lectures, research and visits to relevant institutions, the fellows presented and defended their research to the Judges before receiving their certificates. The group of fellows should certainly be proud of their achievements and return to their home countries with a solid knowledge of the dispute-settlement procedures available under the United Nations Convention on the Law of the Sea (“the Convention”), ready to advise their governments on the steps to be taken if faced with a law of the sea-related dispute. The deadline has now passed for the submission of applications for the next ITLOS/Nippon Foundation capacity-building programme and a record number of applications has been received. When all the applications have been stringently assessed and the selection process carried out, we will send out offers and look forward to welcoming the new fellows to the Tribunal, it is to be hoped, in the summer months. 

In early March, together with the lnternational Maritime Organization (“IMO”), we co-hosted at its headquarters in London a symposium on flag State responsibilities and the future of article 91 of the Convention. The symposium was attended by delegates from IMO Member States, representatives from international organizations, maritime lawyers and academics. In my opening remarks at the symposium, I welcomed the cross-institutional dialogue on the role of the flag State under the Convention, assuring the participants that the Tribunal seeks to engage with the shipping community in areas of concern in relation to the nationality of vessels. The symposium granted us a valuable opportunity to meet with representatives of States Parties to the Convention and flag States in particular, to inform them about the Tribunal’s work, its jurisprudence - which already provides important clarifications for States on issues concerning the registration of vessels - and its potential to assist them with further questions in this regard. 

The Tribunal constantly endeavours to clarify and explain its work and procedures to all stakeholders, either through outreach activities, such as the ITLOS/IMO symposium, or by publishing information material. One of the publications the Tribunal issues in this respect is The Guide to Proceedings before the International Tribunal for the Law of the Sea. The aim of the Guide is to provide practical information as to the manner in which cases are instituted and conducted before the Tribunal by setting out the principal features of contentious proceedings on the merits, incidental proceedings, prompt release applications, requests for the prescription of provisional measures and advisory proceedings. We have recently added to the Guide an addendum on contentious proceedings before the Seabed Disputes Chamber. The addendum is available on the website here.

While we are still waiting to hear in what shape and form the Meeting of States Parties will take place, I look forward to meeting delegates, hopefully in June, whether physically or virtually. The Meeting will not only review the budget of the Tribunal for the coming two years, it is also tasked with the election of seven members of the Tribunal. Pursuant to article 2, paragraph 1, of the Statute, the Tribunal “shall be composed of a body of 21 independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea”. The members are elected by the States Parties to the Convention from a list of persons nominated by the States Parties; each State Party may nominate not more than two persons. A call for nominations was issued to the States Parties by the Registrar on 13 December 2019, by which they were invited to submit within a period of two months ending on 5 March 2020 the names of the candidates they might wish to nominate for election to the Tribunal. The list of candidates nominated by States Parties has been made available on the Tribunal's website here.

Before closing, I must mention with deep sorrow the passing away in early April of Thomas Mensah, one of the guiding lights of the Tribunal. He was greatly respected by all at the Tribunal, from the Judges to the Registry staff, for his intellect, his leadership and his ability to find compromise at times of heated debate. Not only have we lost a great friend but also a great mind and a true gentleman. Our thoughts and prayers are with his wife and his family in London and Accra.

I hope that you and your families are and remain healthy and that you enjoy reading the newsletter.

With my warmest regards,

Jin-Hyun Paik

Case No. 28: Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives)

Proceedings on the merits were suspended after the Republic of Maldives on 18 December 2019 filed preliminary objections to the jurisdiction of the Special Chamber of the Tribunal and to the admissibility of the claims submitted by the Republic of Mauritius. Pursuant to the Order of the Tribunal of 19 December 2019, written observations and submissions have been duly filed by Mauritius and Maldives within the time-limits prescribed in said Order. 

Information regarding the organization of the hearing in the preliminary objections phase will be announced shortly.

Case No. 29: The M/T “San Padre Pio” (No. 2) Case (Switzerland/Nigeria)  

The Memorial of Switzerland and the Counter-Memorial of Nigeria are due to be submitted to the Tribunal in accordance with the Order of the Tribunal of 7 January 2020.

You acted as Agent for India before the Tribunal in The "Enrica Lexie" Incident (Italy v. India), Provisional Measures. What are your thoughts on having experienced litigation from both sides of the courtroom, first as agent and now as a judge? 
My role as an agent was to liaise with counsel to make our arguments, both factual and legal, in a precise and focussed manner and present an effective case before the Tribunal. As judges, our role is to examine a competing narrative of facts and interpretation of law of parties to the dispute and arrive at a clear-cut account of facts and applicable law in order to decide objectively. I have enjoyed being an agent for my country, which was a matter of great honour and responsibility. I am equally grateful for the privilege and responsibility of serving as a judge of ITLOS.
The world is witnessing a strong movement in support of gender equality, including in climate, economic and immigration policies. As the first female judge from the Asian region to sit on the Tribunal’s bench, what are your thoughts on gender balance in the international judiciary?

There has been a positive movement in the last few years as women are now represented in international courts. The number of women judges, however, still remains very small. In the last twenty-four years since the first 21 ITLOS judges were elected and among the 46 judges elected so far, only three are women, and we are presently serving.  It shows that representation of women at the Tribunal is quite recent. Similarly, at the International Court of Justice (“ICJ”), out of 15 judges, only three are women, and in its seventy years of existence, of the 108 judges elected so far, only four have been women. The International Criminal Court does a little better: it has six women judges out of a total of 18. It is evident from these numbers that though the presence of women judges now at international courts and tribunals is encouraging, there is still a very long way to go before women are represented equally.

The issues of diversity and equal representation in international courts needs to be paid greater attention by the Member States so that these institutions can truly be representative of the international community as a whole.
Asia is the largest geographically represented region and has actively participated in the development of international law, including important contributions it has made to international law of the sea. What are your thoughts on the willingness of Asian States to refer their disputes to the UNCLOS dispute-settlement mechanisms and how could such willingness potentially be improved? 
The increased options for peaceful dispute settlement are a positive development for the rule of law in international relations, particularly for developing countries.  However, in Asia we see that there is still a reluctance to commit to the compulsory jurisdiction of international dispute-resolution mechanisms. Though Asian States have initiated contentious proceedings and contributed to advisory opinions, the general trend is against accepting compulsory jurisdiction and opting out or not opting in under the optional treaty provisions that grant compulsory jurisdiction to the ICJ or ITLOS. This reluctance perhaps can be traced back to the loss of sovereignty and subjugation in the past to colonial powers. This is still considered by some as one of the material factors that prompts many States in Asia to guard their sovereign space and not accept compulsory jurisdiction of international courts and tribunals.  
However, there are many cases where Asian States have approached these fora and demonstrated their commitment to dispute settlement through international courts and tribunals. As regards cases before ITLOS, we may recall that the first maritime delimitation case before the Tribunal came from Bangladesh. The Hoshinmaru and Tomimaru prompt release cases (Japan v. Russian Federation) and Straits of Johor case (Malaysia v. Singapore) were initiated by Asian States. The Southern Bluefin Tuna cases and the case concerning the Enrica Lexie incident also involved Asian States (Japan and India) as respondents. All the respondent States in these cases accepted the jurisdiction of the Tribunal and complied with its orders. The recent maritime delimitation case submitted to the Special Chamber of the Tribunal between Mauritius and Maldives also involves an Asian State.
However, I agree that there is a need to further promote the work of the Tribunal in Asia. To that end, outreach activities can be increased to further enhance the awareness among member States about the significant jurisprudence of the Tribunal, its unique role in provisional measures proceedings and prompt release cases, the role of its various Chambers and other advantages of bringing disputes to the Tribunal under the law of the sea convention.
In your view what are the fundamental challenges for the law of the sea and what contribution can the Tribunal make to meeting those challenges?
The resources and uses of oceans are fundamental to human well-being and development and the world continues to look to the oceans to ensure food security, jobs, energy and economic growth. It therefore needs to be emphasized that the long-term sustainability of oceans is critical and any change that alters the state of the oceans can have serious legal and socio-economic consequences. 
The oceans are exposed to various deleterious human activities that go well beyond illegal, unreported and unregulated fishing, overfishing, transport of invasive species, or oil pollution from ships. The most immediate and pressing risk to the oceans arises from climate change. Sea level rise is expected to be one of the most serious consequence of climate change - posing a risk to all coastal States. Ocean warming and acidification associated with global warming are projected to have an adverse impact on a wide range of marine organisms and ecosystems.
It has been reported that biodiversity is now declining faster than at any time in human history. The new BBNJ treaty currently being negotiated proposes to address issues relating to the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction to protect and preserve the marine environment and strengthen the existing governance framework of the law of the sea convention.
The renewed interest in the potential for commercial exploitation of marine minerals from both States and private players also raises concerns for protection of the marine environment. There are still gaps in our knowledge about the impacts of such activities on marine ecosystems. It would be extremely important to ensure that seabed mining is guided by best environment management practices. The proposed Exploitation Regulations, currently under discussion, need to ensure that exploitation activities, when feasible, are carried out in an environmentally sustainable manner. 
Some of the novel challenges to the law of the sea outlined above involve complex legal issues. Therefore the Tribunal as a whole and its individual Chambers, including its Seabed Disputes Chamber, would conceivably have an important role to play, not only in dispute settlement but also in rendering advisory opinions on these legal issues as mandated under the Convention and other related instruments.

It was with great sadness that I learned that Thomas Mensah, our first President, had passed away in London in early April. Judge Mensah was a prominent member of the Tribunal's bench; he was one of the first 21 judges to convene in Hamburg in October 1996 and was elected President for the first three years of its existence. His role as the first president of a brand new institution was of great importance in the founding years, in establishing the Tribunal’s organizational setting, directing the first administrative and legal sessions and the judges’ drafting of the Rules of Procedure, as well as presiding over the first prompt release and provisional measures cases under article 290, paragraph 5, of the Convention, and the M/V “SAIGA” (No.2) case. Outside the Tribunal, Judge Mensah also inaugurated the Tribunal’s relations with the host country and the City of Hamburg, the Meeting of States Parties, international organizations and other stakeholders. Judge Mensah left the Tribunal in 2005 but maintained close ties with the institution and his colleagues on the bench. He was nominated to serve as judge ad hoc in three cases before the Tribunal and so returned for the Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/ Myanmar), The "ARA Libertad" Case (Argentina v. Ghana), Provisional Measures, and the Dispute concerning delimitation of the maritime boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire). He also continued to play an important role in the capacity-building programmes at the Tribunal, as the regular opening lecturer of the Summer Academy of the International Foundation for the Law of the Sea over a number of years, and as a frequent guest lecturer for the ITLOS/Nippon Foundation programme.

Not only did Judge Mensah demonstrate his intrinsic talent for leadership and guidance and a unique way of finding compromise during deliberations and discussions at the Tribunal, he was also a noble figure of steadfastness, gentility, patience and understanding. He developed his vast experience in the law of the sea and maritime law over the course of an illustrious career in these fields and in particular in dispute settlement. His contribution to these fields will be long remembered. 

Ximena Hinrichs

ITLOS/IMO seminar, 5 March 2020

On 5 March 2020, the International Tribunal for the Law of the Sea and the International Maritime Organization co-hosted a symposium on flag State responsibilities and the future of article 91 of the Convention. Held at IMO headquarters, the symposium was organized by the International Maritime Law Institute and the World Maritime University and was attended by delegates from IMO member States, representatives from international organizations, maritime lawyers and academics. Opening remarks were given by Mr Kitack Lim, Secretary-General of the IMO, and President Paik and Vice-President Attard. Presentations were given by Judges Kateka and Heidar on issues concerning “Nationality and registration of ships in the jurisprudence of the Tribunal” and “The right of the flag State to make claims in respect of its vessels”, respectively. Other presentations examined future challenges related to ship registration; the role of the Tribunal in the interpretation and application of article 91; the impact of fraudulent registries (including an update on the work of the IMO on measures to prevent unlawful practices associated with fraudulent registration); and the changing dynamics between governments and ship registries.

ITLOS workshop for legal advisors (sponsored by the Republic of Korea)

The Tribunal is happy to announce that it will be hosting a new capacity-building programme for legal advisors at the Tribunal, organized with the financial support of the Government of the Republic of Korea. The first “ITLOS legal advisers’ workshop” will offer a one-week programme of presentations and discussions relating to international dispute settlement in matters pertaining to the law of the sea. Approximately 25 to 30 high-level professionals from the Asian region will be invited to attend the first programme, which will be held after travel restrictions relating to the current pandemic have been lifted.

ITLOS-Nippon capacity-building and training programme on dispute settlement under UNCLOS

Fellows and interns visiting the Federal Institute for Geosciences and Natural Resources on 4 February 2020

We congratulate Mr Nayef Alshaikh (Bahrain), Ms Paula Balmaceda (Chile), Mr Joshua Benn (Guyana), Mr Meles Esmel (Côte d’Ivoire) and Ms Deima Savukynaite (Lithuania) on the successful completion of the 13th ITLOS-Nippon capacity-building and training programme on dispute settlement under UNCLOS!Each year, the programme culminates in the presentation of the fellows’ research to the Judges. This year presentations were given on “Ocean acidification as a form of marine pollution”; “Les incidences juridiques de l’élévation du niveau de la mer”; “Legal consequences for Lithuania of the laying of the Nord Stream 2 pipeline”; “Issues arising between Bahrain and Qatar in relation to navigational rights”; and “Jurisdiction over mixed disputes – A possibility for ITLOS and Annex VII tribunals”.

The call for applications for the 2020/2021 programme was announced at the beginning of February, with the deadline for submissions set for early April. All applications are currently under review and the successful candidates will be featured in the next newsletter.

Internship programme

Our four interns with the Legal Office, Mr Shams Al Din Al Hajjaji (Egypt), Mr Hafez Abou Alchamat (Syrian Arab Republic), Ms Lucia Bonetto (Italy) and Ms Julia Weston (Brazil) had an unfortunately abrupt end to their three-month internship owing to the pandemic, submitting their research papers to the Legal Office rather than giving an oral presentation. Their research concerned “Mare nostrum: The revival of the maritime boundary conflict in the Eastern Region of the Mediterranean Sea”; “The indispensable third party principle: time and change”; “Vigilante or villain, EU sanctions and the law of the sea”; and “The possibility of litigation on the liability of flag States in the case of oil spills: where we currently stand in the law of the sea”.

Those interns due to participate in the programme this spring have been offered the chance to postpone their internships until later in the year.

IFLOS Summer Academy

In April, the International Foundation for the Law of the Sea decided with regret to cancel the 2020 Summer Academy, owing to the COVID-19 pandemic.

Capacity building further afield

On 24 and 25 February 2020, Registrar Hinrichs gave a lecture to the students at IMLI in Malta on the settlement of disputes under the Convention, the Tribunal’s organization and jurisprudence, and how to submit a case before the Tribunal.

Tilo Wallrabenstein (Germany), ITLOS intern 2005-2006. Senior Legal Counsel at the German Shipowners’ Association, Managing Director of the German Shipping Foundation and IFLOS Board Member

I have very fond memories of my ITLOS internship (as part of my German legal traineeship/Referendariat) back in late 2005 and early 2006. I first came into contact with the Tribunal in 2002 when I started to work at the Law of the Sea and Maritime Law Institute of the University of Hamburg as Research and Teaching Assistant to Professor Rainer Lagoni. There was a close connection with the Tribunal since the law of the sea institute was, inter alia, closely engaged in the work of the International Foundation for the Law of the Sea (IFLOS), which organized symposia and workshops at the Tribunal on topics such as worldwide terrorism and maritime delimitation. We also visited the Tribunal with students, to attend hearings and had the privilege to organize seminars at the premises of the Tribunal. So when I started my internship I already knew quite a lot about the important role and work of ITLOS; I also knew some of the staff members. Being able to experience how an international institution such as ITLOS functions in practice is not only very beneficial but also truly stimulating: so many people from different countries, with such different backgrounds, religions and cultures working together on a common project, with a common focus and vision – in this case, promoting the peaceful settlement of disputes and the rule of law and more specifically solving disputes concerning the interpretation or application of UNCLOS. I think my internship helped me to better understand that the role played by United Nations institutions in the implementation of conventions cannot be underestimated. It is vital that the international community supports the work of international institutions such as ITLOS in an appropriate and consistent manner. Despite all the challenges in practice, international issues and disputes can only be resolved by international cooperation, which is very much dependent on the existence and work of international institutions. 

After passing my second State Examination in Law (bar exam), I kept in touch with the Tribunal, especially owing to my ongoing involvement with IFLOS: I was responsible for the organization of the first IFLOS Summer Academy at ITLOS back in 2007 (and I was also involved in setting up the first ITLOS/Nippon training programme in the same year, something which was really exciting). Serving as an IFLOS board member since 2008, I had the privilege to experience how the IFLOS Summer Academy prospered over the years and grew into a huge global alumni community, thanks to the fantastic teamwork of Jo König and Manfred Lohmann, who were responsible for managing the Summer Academy for more than a decade, putting tremendous effort into this unique project. It was with a heavy heart that IFLOS had to cancel this year’s Summer Academy, owing to Covid-19, but I very much hope that the success story will continue from 2021 onwards.

Since 2008 my professional focus shifted more to the commercial aspects of shipping, when I started to work at a ship-financing bank. Since 2010 I have been working as Senior Legal Counsel for the German Shipowners’ Association (VDR) and, since the end of 2012, also as managing director for the German Shipping Foundation (which was founded by VDR and supports training, education and qualification of seafarers). At VDR, I am responsible for legal and taxation matters specifically and give advice to our members on a wide range of shipping-related issues. We are also constantly involved in legal topics at international level and shipping-related law-making. I regularly take part in the meetings of the IMO Legal Committee, usually as member of the delegation of the International Chamber of Shipping (ICS). My time and experience at ITLOS have helped me greatly to understand how international institutions function. In that respect, I am very grateful for my internship as this not only assisted with my career development but continues to be of great importance for my work (also in international shipping organizations such as the ICS and ECSA). Law of the sea matters are highly relevant even for a maritime lawyer principally concerned with commercial aspects – after all, freedom of navigation is the basis for commercial shipping. In practice, hot topics such as piracy and migration at sea as well as law-making to further improve the protection of the marine environmental, issues with regard to flag State responsibilities and port State competences etc. have a huge impact on my work. An understanding of UNCLOS and important institutions such as ITLOS is not only helpful but often essential. The Tribunal’s role in safeguarding UNCLOS principles crucial for commercial shipping and shipowners should not be underestimated: I have experienced several difficult cases involving the arrest of vessels and crews where a reference to ITLOS and potential proceedings which might be initiated by a flag State have made an impact and helped a solution to be reached. In this respect I very much hope that the Tribunal will continue to expand its position for the sake of the rule of law in maritime matters and enlarge the impressive network of lawyers involved in the law of the sea established over the last decades by its great capacity-building and training programmes.

The dates of the hearing in the Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives) will be announced in due course. ​