Welcome to the Tribunal’s first newsletter for 2021, looking back at the last three months of our work. This began with some good news back in December when the Tribunal’s 2021-2022 budget was approved by the thirtieth Meeting of States Parties. You may remember that this meeting mainly took place in virtual format, with one in-person meeting held in August for the election of the judges but other meetings taking place online. Discussions on the budget were conducted both in writing and during a number of virtual meetings but the final approval of the budget came at an in-person plenary meeting on 9 December 2020, which the Registrar and I attended remotely. The approval of the budget has now allowed the Tribunal to inform the States Parties of their exact contributions for this period, and to prepare for judicial and organizational meetings for the coming two years.
Turning to judicial news, on 4 January 2021 Nigeria requested an extension of the time-limit for the submission of its Counter-Memorial in The M/T “San Padre Pio” (No. 2) Case (Switzerland/Nigeria), referring to the emergence and spread of the COVID-19 pandemic as justification for this request. After consulting with Switzerland, which had no objection to Nigeria’s request, the date for submission of the Counter-Memorial was extended to 6 April 2021 by Order of the President of 5 January 2021.
In the meantime, the final round of the deliberations of the Special Chamber in the Mauritius/Maldives case was held in January, with the Special Chamber delivering its Judgment on 28 January 2021. The Special Chamber found that it had jurisdiction to adjudicate upon the dispute concerning the delimitation of the maritime boundary between the two States and that Mauritius' claim in this regard was admissible. The Special Chamber may now proceed to examine the merits of the maritime delimitation dispute. By Order of 3 February 2021, the President of the Special Chamber set the time-limits for the submission of the Memorial of Mauritius and the Counter-Memorial of Maldives as 25 May 2021 and 25 November 2021, respectively.
As the constraints imposed by the COVID-19 pandemic continue, the need for hybrid meetings of the Tribunal is clearly ongoing: the deliberations of the Special Chamber as well as the reading of its Judgment took place with physical and remote participation of the Members of the Chamber, with delegations and a wide audience joining remotely for the delivery of the decision at the end of January. The upcoming administrative session of the Tribunal in March will also be held in hybrid format. I am pleased that the Tribunal has managed to pursue its agenda and complete its work in accordance with its usual expeditious time-frame despite the current circumstances. While we certainly miss the opportunity for face-to-face discussion and deliberation with our colleagues, we have found alternative working methods to ensure that international adjudication can follow its normal trajectory and does not need to be put on hold even at such challenging times. It is essential that we do everything in our power to allow international adjudication to continue its course and to avoid any disruption: justice delayed is justice denied.
That being said, I very much hope that during the course of this year we may be able to return to a way of work at the Tribunal which is closer to our usual methods. I am sure that both my colleagues on the bench and indeed counsel appearing before it will agree with me, oral proceedings and deliberations are certainly easier when conducted face-to-face rather than behind the interface of multiple screens.
As with the judicial meetings, so our capacity-building programmes have been proceeding in hybrid format. We are, however, very pleased that now all but one of the Nippon fellows have made it to Hamburg for the final stage of the ITLOS - Nippon Foundation capacity-building and training programme and await the presentation of their respective research papers to the Judges during the upcoming session in March. Looking ahead, applications for the 2021-2022 programme are now open and we are grateful for the continued support of the Nippon Foundation for this programme, a stellar opportunity for a select group of young government officials and researchers to deepen their knowledge of the dispute-settlement regime established by UNCLOS and follow lectures and training sessions on a wide range of topics related to the law of the sea, from delimitation to fisheries, seabed mining to genetic resources, climate change to human rights at sea. We look forward to receiving many applications for the programme.
Finally I am happy to inform you that the Tribunal’s website has been redesigned with a fresh look and an improved navigation system. The site, which provides a variety of resources for government representatives, counsel, academics, researchers, students, media representatives and the general public, aims to be informative, user-friendly and inclusive. The website may be accessed at the usual web address: www.itlos.org
I hope that you enjoy reading the newsletter.
With my warmest regards,
Case No. 28: Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives)
The Special Chamber delivered its Judgment on 28 January 2021, finding that it has jurisdiction to adjudicate upon the dispute concerning the delimitation of the maritime boundary and that Mauritius' claim in this regard is admissible.
By Order of 3 February 2021, new time- limits were set for the submission of the Memorial of Mauritius (25 May 2021) and the Counter-Memorial of Maldives (25 November 2021).
Case No. 29: The M/T “San Padre Pio” (No. 2) Case (Switzerland/Nigeria)
By Order of 5 January 2021, the time-limit for the submission of the Counter-Memorial of Nigeria has been extended to 6 April 2021.
1. You have been a judge at the Tribunal for more than 15 years now and have been involved in a number of important decisions. What would you consider are some of the highlights of your time on the bench?
It is true that as a judge I have had the great privilege to serve on the bench of the Tribunal for more than 15 years, representing Poland and the Eastern European group. I have worked actively on all 14 cases submitted to the Tribunal during that period, starting with the “Hoshinmaru” case and continuing until now, where we are dealing with disputes between Switzerland and Nigeria and between Mauritius and Maldives. In my view the most important highlights in my time on the bench are connected with the broadening of the Tribunal’s adjudication from proceedings which required mainly urgent actions for prompt release of arrested vessels and crews under article 292 of the Convention and the prescription of provisional measures pending the constitution of an arbitral tribunal, to more complicated cases.
Among those cases, I would highlight Case No. 16, the Dispute concerning the delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal, Case No. 18, The M/V “Louisa” Case between Saint Vincent and Grenadines and the Kingdom of Spain, and Case No. 26, the Case concerning the detention of three Ukrainian naval vessels by the Russian Federation. Further highlights involve the two advisory opinions: the first related to the clarification by the Tribunal’s Seabed Disputes Chamber of the responsibilities and obligations of sponsoring States in respect of activities in the Area, and the second relating to IUU fishing. At this point I would like to add that, while on the bench, I always tried to achieve unanimity in the Tribunal’s decisions because I, like many of my colleagues, consider that the Tribunal is a collective international judicial body and should work as a unit. I would also draw attention to the fact that the role of the Tribunal is not only to peacefully settle disputes concerning the interpretation and application of the Convention but also to clarify and develop relevant norms of international law. In some cases I supported and initiated notions which reflected the Tribunal’s concern for preserving the human rights of arrested or detained persons in cases submitted to the Tribunal. The Tribunal has also made important contributions to the development of international environmental law in this time, taking a rather broad view of the scope of the marine environment, in accordance with which protecting and preserving the marine environment is not merely confined to Part XII of the Convention; the Convention (and here I am referring to article 192 in particular) also imposes on all States Parties the requirement to protect and preserve the marine environment. I would add that besides my functions as judge on the Tribunal's bench, I was also nominated in 2013 by the then President, Shunji Yanai, to sit on the arbitral tribunal in the Philippines/China arbitration which, after three years of intensive work, rendered an important award in July 2016, clarifying, among others, questions concerning China’s claims to historic rights in the South China Sea and the status of features in that sea.
2. You acted as President of the Chamber for Marine Environment Disputes from 2017 to 2020, are currently President of the Chamber for Fisheries Disputes and a Member of the Special Chamber formed to deal with the Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives). In light of this experience, do you see the relevance and use of both standing and ad hoc chambers of the Tribunal increasing in the future? As President of the Chamber for Fisheries Disputes what kind of cases do you think could be brought before the Chamber in the coming years?
I am grateful to my colleagues for entrusting me with these important functions, which I have tried to exercise in two ways: first by fulfilling the mandatory duties of presiding over these Chambers and second by deliberating on new ideas and problems, based on updated reports both prepared by the Registry and taken from other sources. As the newly-elected President of the Chamber for Fisheries Disputes I will continue the work of my predecessors and carefully study problems concerning fisheries all over the world and fisheries disputes which may be submitted to the Tribunal as a whole or to our Chamber. I hope that sooner or later States facing problems with distant fishing fleets from foreign countries will turn to our Tribunal to solve their disputes. Such problems exist in particular in South East Asia, the western coast of Africa and around South and Central America. I think that we should increase efforts to encourage States from those regions to submit more cases to our Tribunal. So far, the Chamber for Fisheries Dispute has been closely following international undertakings to fight IUU fishing and all efforts to protect the marine environment as well as to conserve and manage marine living resources.
3. Before becoming a judge, you represented Poland in a number of different functions, including as an ambassador and as Permanent Representative of Poland to the United Nations. You were a member of the International Law Commission and have published extensively as a scholar of international law. What advice do you have for young scholars, especially Eastern European scholars, who are considering a career in the law of the sea?
My advice to young scholars and officials interested in international law and in particular in the law of the sea is very simple: first of all aim to acquire a broad knowledge of the field by studying the relevant treaties, agreements and conventions which regulate contemporary relations between States together with relevant literature and jurisprudence. Second, try to get involved in governmental activities related to the negotiations of various agreements and in the work of international organizations. Third, use every opportunity to gain access to internship programmes and courses which will deepen your knowledge and understanding of the law of the sea and other areas of international law. Fourth, study and develop the work of your predecessors in the field of the law of the sea and in other areas of international law and international jurisprudence. I have to add that for me and other senior colleagues in the Tribunal, sharing our knowledge and experience with young scholars and officials (and here I refer to students from all over the world, not only those from Eastern Europe) is a highly rewarding experience.
4. The Tribunal will celebrate its twenty-fifth anniversary this year and has clearly demonstrated its relevance in settling international disputes concerning the interpretation and application of the Convention. What opportunities and challenges do you see for the Tribunal in the next 25 years?
In 25 years of activity, the Tribunal has not only demonstrated its relevance in the resolution of international disputes concerning the interpretation and application of the Convention but has also shaped and formed the higher standards of solving contentious disputes and rendered important advisory opinions.
Looking at the opportunities and challenges for the Tribunal in the next 25 years, I have to start by indicating some of the Tribunal’s achievements up to now. It should be remembered that the Tribunal in its first 25 years of activity has received more cases than most of the other fora covered by article 287 of the Convention. Over time the Tribunal has built up a reputation and credibility as an effective judicial body. It has offered parties not only its plenary structure but also the possibility to establish special chambers. Such chambers were established to deal with the case between Chile and the European Union concerning the conservation and sustainable exploitation of swordfish, the dispute concerning delimitation of the maritime boundary between Ghana and Côte d’Ivoire as well as the newest case, relating to the delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean. On the basis of its achievements and practice, the Tribunal is facing new opportunities and challenges: first, continued efforts must be made to encourage the submission of disputes relating in particular to the delimitation of maritime boundaries and fisheries. Second, the emerging challenges facing the ocean today will require further efforts on the part of the Tribunal to adapt the Convention through the interpretation of its provisions and their application to rapid changes in many areas of law and new realities of the world. In particular, this will involve questions relating to the development of international environmental law, as mentioned earlier, an area in which the Tribunal has already made a great contribution and where it has great potential to act further.
ITLOS-Nippon capacity-building and training programme on dispute settlement under UNCLOS
Nippon fellowship lecture with Sir Michael Wood
While it has not been possible to arrange excursions for the group of fellows, the programme of lectures and research work has been ongoing, with online training sessions run by the Max Planck Foundation for International Peace and the Rule of Law in Heidelberg on conflict resolution and the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law in Luxembourg on international procedural law being some of the highlights of the last few months. The fellows are now completing their research papers on the following topics:
- “South China Sea disputes: Malaysia’s perspectives and approaches”;
- “The extension of the continental shelf in the Atlantic Ocean: a critical analysis of the potential for disputes between Sierra Leone and Liberia based on their submissions to the Commission on the Limits of the Continental Shelf in accordance with article 76 of UNCLOS”;
- “Limitation on the right of innocent passage over the shipment of nuclear and radioactive waste through the Caribbean Sea”;
- “L’exploration et exploitation du plateau continental au-delà de 200 M en l’absence de recommandations de la Commission des limites du plateau continental”;
- “Civil and criminal jurisdiction of coastal states for environmental pollution in the EEZ and jurisdiction of ITLOS”;
- “The nexus between hydrocarbons and maritime delimitation: a case study of the Kenya/Somalia maritime boundary dispute”; and
- “The protection of the rights and interests of third States in maritime delimitation cases”.
The fellows will present their research to the Judges during the session in March.
We are now welcoming applications for the ITLOS-Nippon Foundation capacity-building and training programme on dispute settlement under UNCLOS to be held from July 2021 to March 2022 at the Tribunal in Hamburg. The application deadline is 5 April 2021.
For more information see the flyer and website.
The internships of four legal interns, Zeynep Karacaoğlu (Turkey), Aurelia Pyneeandée (France), Johanna Romero Loayza (Peru) and Anh Vo (Viet Nam), ended in December with an impressive set of online presentations on: “Prevention, reduction and control of marine pollution of the Black Sea: Interactions between the Danube River and Black Sea regimes”; “Autonomous ships vs unmanned ships – The legal challenges”; “The enactment of national legislation for the exploration and exploitation of resources in the Area: The Seabed Disputes Chamber’s 2011 Advisory Opinion”; and “The distinction between military activities and law-enforcement activities under UNCLOS: Implications from the South China Sea arbitration and Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation)”.
Two interns are currently working in the Legal Office: Ms Chiara Pavesi (Italy) and Mr Kohji Hayakawa (Japan).
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 1 to 27 August 2021. Further information may be found here.
Inês Aguiar Branco (Portugal), Nippon Fellow 2016-2017. Legal Adviser to the Secretary of State for Fisheries, Ministry of the Sea, Government of Portugal
ITLOS has been instrumental in the development of my knowledge of and passion for the law of the sea as well as in the creation of my vast contact network in the field.
I first came to the Tribunal in 2014, a year after graduating from my LLM in public international law, as a participant in the International Foundation for the Law of the Sea (IFLOS) Summer Academy. I felt right at home there. Even though law of the sea was part of the syllabus of my LLM, it was only during the Summer Academy that I really became enamoured of this field of law. The Academy was very rich in terms of legal content, covering all relevant parts of UNCLOS, with lectures and practical classes given by distinguished scholars, practitioners and ITLOS judges. The Academy was also very rich in terms of participant selection covering most regions of the world and targeting young talented professionals. Little did I know that I would continue to encounter alumni from this time throughout my professional career.
I returned to Portugal committed to contributing to this field of law in my own country, and I started collaborating with the Ministry of Agriculture and the Ministry of the Sea. My experience and knowledge of UNCLOS were greatly valued at the time and I was always encouraged to expand my knowledge in this rather young field of law. I was therefore selected as an intern at the Division for Ocean Affairs and Law of the Sea of the United Nations. It was during this time that I came to understand the high standards of knowledge with which IFLOS had provided me during the Academy, as I was familiar with every subject I encountered during those exciting times, including one that was being negotiated by United Nations member States: The conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction.
Finding this topic fascinating, I decided to dedicate some of my time to developing my academic knowledge of it. I therefore decided to apply to the ITLOS-Nippon Foundation capacity-building programme. The programme is extremely well developed, since not only does it include the IFLOS Summer Academy, providing fellows with a general overview of both law of the sea and maritime law, but it also allows fellows to attend hearings and discuss specific parts of UNCLOS directly with judges in very small classes. The programme comprises visits to some of the most renowned institutions and organizations dealing with ocean research and governance, and it even covers a UNITAR course of the fellow’s choice and a special training course with the computer software used by some States for maritime boundary delimitation. The programme is enjoyable and diverse, allowing the fellows to increase their knowledge in the field extensively, whilst giving them the opportunity to work on what may be their first published academic article. This was what happened in my case: my first academic publication was a developed version of the work I had begun when I was a Nippon fellow at the Tribunal.
After the fellowship, I returned to Portugal, where I advised the Minister for the Sea in matters concerning ocean governance. The knowledge I had acquired at the Tribunal was vital in such a high-ranking position, particularly in matters concerning the extension of Portugal’s continental shelf and the development of its position on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. In addition, the contacts I had established at ITLOS proved to be invaluable for the organization of and participation in ocean-related events at national and international level.
In search of a greater purpose, I decided to accept a new challenge in April 2019 by joining the Secretariat for the High Level Panel for a Sustainable Ocean Economy at the World Resources Institute (WRI). Here I used the knowledge acquired during my past experiences at ITLOS to monitor and analyse ocean-related trends and developments, identify new scientific research and relevant policy developments, whilst closely following political, governance and regulatory progress in priority countries and regions. I was also responsible for engaging with ocean initiatives and assisting in finding strategic synergies to galvanize widespread collaboration for the achievement of the High Level Panel’s overarching aim. In that capacity, I saw the great benefits from all the networking which ITLOS had provided, both during the Summer Academy and the Nippon fellowship.
It was during my time at the WRI that I was able to finish the revisions and updates to the research I had engaged in when I was a Nippon fellow. All those efforts culminated in my first scientific publication on “Solving a potential conflict: High seas marine protected areas and sovereign rights over the continental shelf beyond 200 nautical miles”, part of the publication “Global Challenges and the Law of the Sea” (Springer Verlag).
The COVID pandemic allowed me time to reflect upon where my contribution to this field of law could be more useful, and so I decided to return to my home country and previous position at the Ministry of the Sea. I now act as legal adviser to the Secretary of State for Fisheries and I am thrilled to be able to contribute to the definition of the priorities of the Portuguese presidency of the Council of the European Union on ocean issues as well as the Brexit negotiations concerning fisheries.
If the ocean started with a drop, then ITLOS was the drop that started my love of the ocean. I shall always be grateful for the opportunities, knowledge and experiences that have made me the law of the sea professional that I am today.