Newsletter 2020/2

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

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.