ITLOS Newsletter 2020/1

February 2020



Introduction

Welcome to the Tribunal’s first quarterly newsletter of 2020. The Tribunal’s workload over the last three months is testament to the active and successful role it plays in the peaceful settlement of disputes. In this regard, a new case was submitted to the Tribunal by way of special agreement on 17 December 2019; it concerns the dispute between Switzerland and Nigeria relating to the arrest and detention of the Swiss-flagged M/T “San Padre Pio”. In addition, in the Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives), the Special Chamber of the Tribunal received an application for preliminary objections from the Republic of Maldives on 18 December 2019. At the same time, the Tribunal’s capacity-building efforts continue apace, and I have also had the opportunity to report on the work of the Tribunal in various fora, including at the United Nations General Assembly.

As far as capacity building is concerned, the fourteenth regional workshop for government experts working in the maritime field was held in Montevideo in November. In addition to addressing procedural issues relating to proceedings before the Tribunal, the 2019 regional workshop focussed on two substantive issues of particular relevance to Latin American States, namely maritime boundary delimitation and fisheries. I welcomed the opportunity to give lectures at this time to law students at the University of the Republic Law School in Montevideo and to students and graduates of ISEN (the Institute of National Foreign Service of Argentina) in Buenos Aires on the topic of “The rule of law in international relations and the role of international adjudication” and to meet with the Minister for Foreign Affairs of Uruguay, Mr Rodolfo Nin Novoa, in Montevideo, and with the Minister for Foreign Affairs of Argentina, Mr Jorge Faurie, in Buenos Aires.

The Tribunal and the United Nations share a special relationship and December 2019 presented several opportunities to reinforce this bond. On 9 December, I met with United Nations Secretary-General António Guterres as well as United Nations Legal Counsel Miguel de Serpa Soares. On 10 December I had the pleasure to address the General Assembly and to report on the Tribunal’s work. In my address, I highlighted the productive year the Tribunal had had (including one judgment on the merits, two cases on the prescription of provisional measures, and one case submitted to a special chamber of the Tribunal), and emphasized the importance of dispute settlement. As the only permanent judicial institution created by the Convention, I believe that the Tribunal is well placed to safeguard the legal order of the oceans, including emerging issues such as marine biological diversity. In this regard, I urged delegates involved in the drafting of the international legally binding instrument for the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction to consider what the most appropriate system for dispute settlement would be, in order to ensure a consistent and efficient interpretation and application of the new instrument. The Tribunal stands ready to deal with any further tasks with which the international community wishes to entrust it in the future.

The importance of the Tribunal’s work was reaffirmed by the adoption, on 20 December 2019, of United Nations Resolution 74/19 on “Oceans and the law of the sea”, which “[n]otes with satisfaction the continued and significant contribution of the Tribunal to the settlement of disputes by peaceful means in accordance with Part XV of the Convention, and underlines the important role and authority of the Tribunal concerning the interpretation or application of the Convention”.

Lastly, December presented a humbling occasion for me when the University of Hamburg awarded me an Honorary Doctorate. It was a particular privilege to address many young minds at the award ceremony on the importance of international law and the role that the next generation of international lawyers must play in safeguarding the rule of law. I believe that the rule of law is one of the most important achievements of the international community since the end of the Second World War and now constitutes one of the pillars sustaining international order in our time. We cannot afford for this pillar to be undermined and I urge all students of international law to seize the challenge of a career in this area: to work in the interests of your country, to work in the interests of the international community as a whole, and indeed in the interests of humanity.

I hope that you enjoy reading the newsletter.

With my warmest regards,

Jin-Hyun Paik
President


ITLOS Cases

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

On 18 December 2019, the Republic of Maldives 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 in the Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean. By Order of 19 December 2019, President Paik fixed 17 February 2020 for the filing by Mauritius of written observations and submissions on the preliminary objections filed by Maldives, and 17 April 2020 for Maldives to present its written observations and submissions in reply, pursuant to article 97, paragraph 3, of the Rules. In accordance with article 97 of the Rules of the Tribunal, proceedings on the merits have been suspended.

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

On 17 December 2019, the Swiss Confederation and the Federal Republic of Nigeria transmitted a special agreement and notification to submit to the Tribunal their dispute concerning the arrest and detention of the M/T “San Padre Pio”, its crew and cargo.

The M/T “San Padre Pio” is a Swiss-flagged motor tanker, which was arrested by Nigerian authorities while it was allegedly engaged in ship-to-ship transfers of gasoil in Nigeria’s exclusive economic zone. Arbitral proceedings under Annex VII to the Convention were instituted by Switzerland against Nigeria on 6 May 2019. Pending the constitution of the arbitral tribunal, a request for the prescription of provisional measures under article 290, paragraph 5, of the Convention was submitted to the Tribunal by Switzerland on 21 May 2019. The Tribunal prescribed provisional measures by Order of 6 July 2019, releasing the vessel. During consultations with President Paik, held at the Tribunal on 2 and 3 December 2019, the Parties agreed to transfer the dispute to the Tribunal and the case was filed on 17 December 2019. The date for the submission of the memorial by Switzerland has been set as 6 July 2020, while the date for the filing of the counter-memorial by Nigeria has been set as 6 January 2021.


Interview with Judge Lucky (Trinidad and Tobago)

How do you see the development of the Tribunal over your time on the bench and where do you see its position in the new decade?

A review of the judgments and advisory opinions of the Tribunal demonstrates its ability to deal effectively with the cases submitted and to resolve issues relating to fishery disputes, maritime delimitation, freedom of navigation, protection of the marine environment, and the arrest and detention of ships and their crews. The Tribunal’s decisions have been acknowledged by the parties to the litigation and the orders and judgments have been accepted and implemented by those parties. Consequently, the Tribunal in its judicial role has a vital part to play in the new decade, in which States will seek protection and guarantees of their rights and obligations. 

What advice do you have for scholars, especially Caribbean scholars, who are thinking about a career in the law of the sea?

With almost 17 years’ experience on the Tribunal’s bench. I have had the opportunity to work and interact with colleagues who enjoy the highest reputation for fairness, honesty and integrity, and exhibit competence in the field of the law of the sea. I would advise Caribbean scholars who are thinking of a career in the law of the sea to pursue studies in the law of the sea at the institutions in the Caribbean, for example the Institute of International Relations at the University of the West Indies and the Institute of Marine Affairs at the University of Trinidad and Tobago. It would be very useful to study the judgments of the international courts, especially those of the Tribunal, where a scholar would recognize the manner in which the judges consider and determine matters and how issues are resolved; it would be a valuable experience. I recommend the advice of a distinguished Caribbean jurist who said “the more you read and study the law, the more the law reveals itself to you”. 

The Convention was opened for signature in Montego Bay in 1982 and the law of the sea has an undeniable connection with the Caribbean. In your opinion, what will the role of the region be in further developing the interpretation and application of the Convention in the future?

The Caribbean region comprises a chain of islands that border the Caribbean Sea and the Atlantic Ocean, and two South American mainland States (Guyana and Belize), with vast marine resources and overlapping territorial seas, exclusive economic zones and continental shelves. The States will have a vital and most interesting role to play in the further development of the Convention, because the interpretation and application of relevant articles by international courts and the Tribunal will be significant. However, all of this cannot be achieved unless the legal advisors of the States concerned seek clarification and resolutions by submitting cases to the Tribunal and requesting advisory opinions. 

Given the large number of States in the Caribbean, how important is the Convention in the area in balancing competing interests for resources and ocean space and strengthening the blue economy?

According to the World Bank, the blue economy is the “sustainable use of ocean resources for economic growth, improved livelihoods, and jobs while preserving the health of ocean ecosystem”, while the European Commission defines the blue economy as “[a]ll economic activities related to oceans, seas and coasts”. In the light of these definitions, it is accepted that the sustainability of the ocean resources is a matter of deep concern to all Caribbean States. Apart from Belize and Guyana, all other Caribbean States are islands; therefore, the sustainability of the surrounding seas and oceans is crucial, especially where economic activities relate directly and indirectly to them. Any competing interests must be resolved and the relevant institution for resolving such issues ought to be the Tribunal.

Climate change, ocean acidification and sea-level rise are some of the topics of enormous concern to all Small Island Developing States. What role do you think the Tribunal could play in assisting the international community in tackling such issues?

The effect of climate change, acidification and rising sea-levels are matters that must be addressed urgently because the Caribbean States depend on the fishing, oil and natural gas industries, tourism, protection of the environment and the biodiversity therein. There is a school of thought that proposes that certain Caribbean States should apply for advisory opinions on the rights of fisher folk, pollution of the marine environment by ships and tankers, as well as the passage by ships with nuclear waste through the Caribbean Sea on their way to the Panama Canal. Vessels have to navigate through the EEZ of Caribbean States. Therefore, the Tribunal could play a vital role by assisting not only the Caribbean region but also the international community as a whole.

Noting the role, set out above, that the Tribunal could play in not only assisting the Small Island Developing States in the Caribbean region but also the international community, I think the time has come for positive action. The Tribunal would be willing to oblige but it cannot act on its own. Consequently, States should submit cases and claims to the Tribunal for positive and urgent resolution.


ITLOS conferences and events

UN Photo/Evan Schneider

President Paik addressed the United Nations General Assembly on 10 December 2019, emphasizing the Tribunal’s increasing attraction for States seeking to settle disputes arising under the Convention.

Statement

President Paik was awarded an honorary doctorate (law) by the University of Hamburg on the occasion of the 100th anniversary of the University on 4 December 2019.

Statement


Capacity building

The Tribunal welcomes approximately 60 interns, fellows and Summer Academy participants each year to its premises in Hamburg, offering courses, lectures, workshops, research and study opportunities to students, graduates and young government officials from all over the world. A new film on the capacity-building programmes available at the Tribunal can be viewed on the Tribunal’s website at https://www.itlos.org/press-media/video-gallery/.

Regional workshop in Montevideo

On 13 November 2019, the Tribunal’s fourteenth regional workshop was opened by President Paik and Dr Carlos Mata Prates, Director of International Law of the Ministry of Foreign Affairs of Uruguay, in Montevideo. The workshop, entitled “The role of the International Tribunal for the Law of the Sea in the settlement of disputes relating to the law of the sea”, welcomed participants from Argentina, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Uruguay and Venezuela. On the fringes of the workshop, President Paik gave lectures on the work of the Tribunal to law students at the University of the Republic Law School in Montevideo and to the students and graduates of ISEN (the Institute of National Foreign Service of Argentina) in Buenos Aires on “The rule of law in international relations and the role of international adjudication”.

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

In the past three months, the current fellows have visited the Directorate-General of the European Commission for Maritime Affairs and Fisheries/DG Mare in Brussels and undertaken training courses at the Max Planck Foundation for International Peace and the Rule of Law (Heidelberg) on conflict resolution, and on international procedural law at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law . A one-week training course with Professor Alan Boyle on international environmental law complemented the regular series of lectures held at the Tribunal on topics such as bringing a case to the Tribunal, the jurisprudence of the Tribunal, maritime law, Convention institutions and other relevant organizations, and current issues in the law of the sea. The fellows are currently in the process of completing their research papers and preparing for their upcoming presentations to the Judges at the closing ceremony of the 2019/2020 programme.

The Tribunal is pleased to announce the launch of its 2020-2021 capacity-building and training programme on dispute settlement under the United Nations Convention on the Law of the Sea, which is organized with the support of the Nippon Foundation. The programme is aimed at junior to mid-level government officials and researchers who are currently working on issues related to the law of the sea, maritime law or dispute settlement. The 2020/2021 programme will run from 13 July 2020 to 31 March 2021.

Applications for the 2020/2021 Nippon programme can now be submitted at: https://www.itlos.org/the-registry/training/itlos-nippon-foundation-capacity-building-and-training-programme/ The deadline for the submission of applications is 3 April 2020.

Internship programme

The outgoing interns, Mr Maximilian Blasek, Ms Wendy Okun, Ms Anita Rayegani and Mr Wenlan Yang ended their three-month stay at the Tribunal in December. The legal office interns presented their research topics “The 2018 CAOF Agreement: Overview, future and the Canadian perspective”, “Achieving a balance between the duty to protect the marine environment under international law and protecting the rights of indigenous coastal communities in Kenya; an analysis of the Kisite Mpunguti marine reserve” and “Investment in protection of submarine cables against third-party damage”. At the beginning of January, the Tribunal welcomed Mr Shams Al Din Al Hajjaji (Egypt), Mr Hafez Abou Alchamat (Syrian Arab Republic), Ms Lucia Bonetto (Italy) and Ms Julia Weston (Brazil) to the Tribunal, where they will all be working in the Legal Office.

IFLOS Summer Academy

The International Foundation for the Law of the Sea will hold its 14th Summer Academy, “Promoting ocean governance and peaceful settlement of disputes”, at the seat of the Tribunal in Hamburg from 9 August to 4 September 2020. Applications are welcome at: https://www.iflos.org/summer-academy/overview/latest-status/

 

 

 

Alumni network

The Tribunal is keen to welcome its alumni back to Hamburg for the ITLOS alumni presentation series, enabling former interns and fellows to present their research or tasks on which they are working to the current group of interns and fellows. On 29 January 2020, Dr Buba Bojang, fellow in 2012/13, gave a presentation to the current fellows and interns on his work for the Legal Office of the Food and Agriculture Organization of the United Nations (“FAO”). After completing the ITLOS-Nippon Foundation programme, Buba was awarded his PhD at the University of Aberdeen. He then worked as the Nippon Foundation lecturer on ocean governance at IMLI and is now Legal Officer at the FAO.


Meet the ITLOS alumni

Mr Nigel Browne (Trinidad and Tobago), ITLOS-Nippon Foundation capacity-building programme fellow, 2017-2018

 

Whilst I was at the IMO International Maritime Law Institute (“IMLI”) in Malta, reading for my Master of Laws in International Maritime Law, we were visited by the then Registrar of the Tribunal, Mr Philippe Gautier, who delivered a very insightful lecture on the function of ITLOS. We thus learned about the ITLOS-Nippon Foundation capacity-building programme and were encouraged to apply. Hailing from Trinidad and Tobago, which has been the subject of maritime boundary and fisheries disputes in the past, I felt it was very necessary for me to broaden my understanding of the way disputes are settled under UNCLOS. I was highly motivated to gain more experience and obtain training on dispute settlement under UNCLOS. I imagined that this fellowship would provide me with that opportunity. I must confess that my hunger for such experience, knowledge and training was more than satisfied at the end of the capacity-building programme.

Without a shadow of a doubt there is no other programme like the ITLOS-Nippon Foundation capacity-building programme. It is unique in that it allows junior to mid-level government officials and researchers to receive lectures consistent with those of any reputable master’s programme, and it also provided me with actual on-the-job training experience, through training sessions and mock cases which were arranged on a regular basis. These training sessions were geared towards enhancing both our practical and our professional skills. We were also taken on several group visits, which complemented the knowledge gained and training given on topics related to the law of the sea. 

Moreover, my time at ITLOS was absolutely beneficial to my career. Whilst at ITLOS, I was required to research illegal, unreported and unregulated fishing in the waters of Trinidad and Tobago. On returning to my home country, I resumed work as a legal officer attached to the Maritime Services Division (“MSD”), Ministry of Works and Transport. The findings of my research were compiled as a report and submitted to the Director of that Division. The MSD serves both as the regulator of maritime law, law of the sea and IMO conventions, codes and instruments and as advisor to the Government of Trinidad and Tobago in terms of matters of maritime and sea transportation policy and I was often called upon to provide legal opinions on very complex legal issues concerning law of the sea matters. The capacity-building programme empowered me with the tools to make a meaningful contribution to the organization.

At present I am an attorney at law attached to a private firm where my main focus is on maritime law, shipping law and laws and policies related to the marine environment. In addition, Trinidad and Tobago is in the process of drafting comprehensive enabling legislation that should give effect to several maritime pollution conventions. I also provide consultancy services to the Government of Trinidad and Tobago in the area of marine environmental protection. 

In conclusion, the capacity-building programme has allowed me to develop my legal skills while deepening my practical knowledge on law of the sea matters. I can safely say that the opportunities that were graciously granted to me both at IMLI and through the ITLOS-Nippon Foundation capacity-building programme have allowed me to build an unbreakable network with Judges, professionals, scholars and many researchers with common interests. I will strongly recommend this programme to anyone who has a passion for law of the sea matters as it has been the key to my present and future success.

 


Upcoming events

Flag State responsibilities and the future of article 91 of UNCLOS

The Tribunal will hold a joint symposium with the IMO and IMLI at the IMO in London on 5 March 2020. The symposium, entitled “Flag State responsibilities and the future of article 91 of UNCLOS”, will look at the development and interpretation of article 91 of the Convention, the right of the flag State to make claims in respect of its vessels and nationality and registration of ships in the jurisprudence of the Tribunal. Current and future challenges regarding the implementation of article 91 by flag States will be addressed by President Paik, Vice-President Attard and Judges Kateka and Heidar.

ITLOS – Nippon Foundation capacity-building and training programme on dispute settlement under the United Nations Convention on the Law of the Sea

The Tribunal is pleased to announce the launch of its 2020-2021 capacity-building and training programme on dispute settlement under the United Nations Convention on the Law of the Sea, which is organized with the support of the Nippon Foundation. The programme is aimed at junior to mid-level government officials and researchers who are currently working on issues related to the law of the sea, maritime law or dispute settlement. The 2020/2021 programme will run from 13 July 2020 to 31 March 2021.

Applications for the 2020/2021 Nippon programme can now be submitted at: https://www.itlos.org/the-registry/training/itlos-nippon-foundation-capacity-building-and-training-programme/ The deadline for the submission of applications is 3 April 2020.

IFLOS Summer Academy

The International Foundation for the Law of the Sea will hold its 14th Summer Academy, “Promoting ocean governance and peaceful settlement of disputes”, at the seat of the Tribunal in Hamburg from 9 August to 4 September 2020. Applications are welcome at: https://www.iflos.org/summer-academy/overview/latest-status/