Newsletter 2021/4

After the many landmark ocean-related conferences and events that have been held this year, I must say that recognition of the importance of our oceans and of the need to protect and preserve the marine environment and to ensure the sustainable use of its resources has never been more apparent. Both during the recent General Assembly debate and at the 6^th Law of the Sea Conference in Incheon, Republic of Korea, it was evident that the oceans and seas have rightly made their way onto the global agenda. As the General Assembly acknowledges in its newly-adopted resolution A/RES/76/72 on “Oceans and the law of the sea”, the ocean is facing a myriad of unprecedented challenges. The resolution recognizes the contribution of the United Nations Convention on the Law of the Sea (“the Convention”) to the “strengthening of peace, security, cooperation and friendly relations among all nations” and reaffirms that the Convention “sets out the legal framework within which all activities in the oceans and seas must be carried out and is of strategic importance as the basis for national, regional and global action and cooperation in the marine sector”. I am pleased to note in this context that the resolution reaffirms 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 and the Part XI Agreement”.

In my address to the General Assembly a few weeks ago, I declared my confidence that the question as to whether the now nearly 40-year-old Convention is still fit for purpose in the contemporary era can be answered in the affirmative. The drafters of the Convention could not predict all future uses of the ocean or ocean-specific risks. Nonetheless, the resilient quality of the Convention and its characteristic as a “framework convention” allows it to stay up to date in accordance with evolving international standards while maintaining its status as the central legal framework for ocean governance.

One way in which the Tribunal can contribute to ensuring that new challenges are addressed within the legal framework of the Convention is by clarifying the law and by providing legal guidance through its advisory jurisdiction. To provide a concrete example from the Tribunal’s jurisprudence, in its Advisory Opinion concerning issues relating to illegal, unregulated and unreported fishing (“IUU fishing”), the Tribunal clarified that a flag State is under a due diligence obligation to take necessary measures to ensure compliance and prevent IUU fishing by vessels flying its flag, and that the flag State can be held liable if it fails to comply with its due diligence obligations concerning IUU fishing activities. By clarifying the legal obligations of flag States, the Tribunal’s advisory opinion has provided greater understanding and certainty as to what is required of States in combatting IUU fishing.

As I stated in Incheon, I do not think it is naïve to consider that we are at a turning point in terms of State action on climate change, and I am confident that the Tribunal can play a role by addressing and clarifying some of the key issues involved.

Looking at our activities in the three months since the last newsletter, I am pleased to report that we were able to convene nearly all of the judges for the administrative session in September. This provided us with the opportunity to commemorate the Tribunal’s twenty-fifth anniversary during a low-key event at the premises of the Tribunal in  the presence of the First Mayor of the Free and Hanseatic City of Hamburg and members of the Diplomatic and Consular Corps.

In terms of capacity building, an area whose importance was underscored once again by the General Assembly resolution and in which the Tribunal invests much energy, there have also been new developments. In addition to the long-standing internship programme and the ITLOS-Nippon capacity-building and training programme on dispute settlement under UNCLOS, we have recently launched a new programme for Junior Professional Officers which will enable young professionals to serve in either the Legal Office or in other departments of the Registry. Junior Professional Officers will be recruited under memoranda of understanding concluded between the Tribunal and participating States and I trust that this will allow the Tribunal to impart the knowledge and skills to young representatives of those States where law of the sea expertise is currently needed most. Unfortunately, prevailing restrictions meant that we had to postpone the first ITLOS Workshop for Legal Advisers (sponsored by the Republic of Korea), at which the legal advisers of States from South East Asia and the Pacific Small Island Developing States would have participated in a week-long programme dedicated to the procedures for the peaceful settlement of disputes related to the law of the sea at the Tribunal in November. We are grateful for the continued support of the Republic of Korea in the organization of this workshop and look forward to holding it in the coming year as soon as the situation allows.

I hope that you enjoy reading the newsletter.

With my warmest regards,

Albert Hoffmann

President

The International Tribunal for the Law of the Sea and considerations of humanity

The International Tribunal for the Law of the Sea has consistently held that “[c]onsiderations of humanity must apply in the law of the sea, as they do in other areas of international law” and applied this principle whenever possible. Although the Tribunal is not a specialized international human rights court such as the European Court of Human Rights, it should, pursuant to article 293, paragraph 1, of the 1982 United Nations Convention on the Law of the Sea, apply the provisions of the Convention “and other rules of international law not incompatible with this Convention”.

Thus, the Tribunal has the potential to exercise contentious or advisory jurisdiction on – to cite two examples – the current controversy as regards irregular migration at sea that involves the interpretation of the duty to render assistance under article 98 of the Convention, and the human right to a clean marine environment under Part XII (see also article 297, paragraph 1(c), of the Convention).

The Tribunal has not yet been called upon to deal with such issues, nor has it had occasion to pronounce on human rights. Following the Judgment on Preliminary Objections in M/V “Norstar”, Panama presented a claim concerning violations by Italy of internationally recognized human rights, in particular procedural rights and the due process of law, but the fact that Panama did not include this claim in its final submissions meant that the Tribunal was not required to address those claims.

At the time of writing, the Tribunal has been seized of 29 cases, nine of which are requests for prompt release of arrested vessels and their crews pursuant to article 292 and all of them concern alleged violation of article 73, paragraph 2, by the respondents, who are required to promptly release arrested vessels and their crews upon the posting of a reasonable bond or other security. This provision is held by the Tribunal in “Juno Trader” to include “elementary considerations of humanity and due process of law”.

It is paragraph 3 of article 73 that has been widely breached. This provision prohibits coastal States from imposing penalties for violations of fisheries laws and regulations in the EEZ that include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment. No State has ever concluded an agreement with another State to allow the latter to imprison nationals, or crews on board vessels flying the flag, of the former State in such cases.

In “Camouco” and “Monte Confurco”, the Tribunal rules that article 292 proceedings are not available in other cases concerning allegations that a coastal State has violated obligations regarding fisheries enforcement, such as the prohibition on imprisonment for fisheries offences under article 73, paragraph 3, or the requirement to notify the flag State under article 73, paragraph 4. In M/V “Virginia G” (Judgment), the Tribunal held that the principle of reasonableness applies generally to enforcement measures implemented by the coastal State in its exclusive economic zone under article 73 of the Convention, and concluded from the facts of the case at bar that there was no penalty of imprisonment imposed on members of the crew of the M/V “Virginia G”, and that Guinea-Bissau therefore had not violated article 73, paragraph 3. Nevertheless, by failing to notify Panama as the flag State of the detention and arrest of the M/V “Virginia G” and subsequent actions taken against the vessel and its cargo, Guinea-Bissau had violated the requirements of article 73, paragraph 4, for the arresting/detaining coastal State to promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed, and had thus deprived Panama of its right as a flag State to intervene at the initial stages of actions taken against the M/V “Virginia G” and during the subsequent proceedings.

Around the world fishers have been imprisoned for unauthorized fishing in the EEZ of the imprisoning State. It may be asked why such violations of article 73, paragraph 3, have not been brought before the Tribunal against these States despite the fact that the Tribunal has compulsory jurisdiction over disputes as regards violations of that article. Probably, fishers lack bargaining power to persuade the flag State, through their fishing vessel owners or charterers, to pursue justice on their behalf.

States are the primary entities having the capacity to bring international claims and exercise diplomatic protection on behalf of their nationals as well as bearing responsibility for every internationally wrongful act which is attributable to each of the States under international law and which constitutes a breach of an international obligation of the State. In M/V “Virginia G” (Judgment on the Merits, paragraph 128) and M/V “Norstar” (Judgment on Preliminary Objections, paragraph 230), the Tribunal reasons that the Convention considers a ship as a unit as regards the obligations of the flag State with respect to the ship and the right of the flag State to seek reparation for loss or damage caused to the ship amounting to a direct injury to the flag State itself by acts of another State irrespective of the nationalities of the persons on board the ship. Such a right of the flag State under international law is different from the exercise of diplomatic protection by a State in respect of its nationals. Therefore, it may be deduced from the Tribunal’s aforesaid jurisprudence that the State of nationality of fishers who are imprisoned may exercise the right of diplomatic protection in respect of those fishers who are their nationals, provided that the State of nationality does not seek reparation or damage for the direct injury caused to the flag State. It is important to raise general awareness about this matter so that disputes relating to article 73, paragraph 3, may be brought before the Tribunal.

The 6^th International Conference on the Law of the Sea took place from 30 November to 1 December in Incheon, Republic of Korea, with the participation of President Hoffmann, Judges Paik, Kolodkin, Infante Caffi, Caracciolo, and Kamga, and Registrar Hinrichs. The conference was entitled “Law of the Sea for the Next Generation” and focused on major challenges in ocean governance, including environmental crises and those deriving from new technologies.

The first ITLOS Workshop for Legal Advisers (sponsored by the Republic of Korea), organized for the legal advisers of States from South East Asia and the Pacific Small Island Developing States, has been postponed owing to the current health-related and travel restrictions. It is planned to hold the week-long programme, during which participants will attend a number of lectures and discussion rounds with judges, academics and practitioners, as soon as possible in 2022.

At the most recent administrative session of the judges in September, the Tribunal established a Junior Professional Officer programme for young professionals. The programme is governed by the “Guidelines concerning the Junior Professional Officer Programme of the International Tribunal for the Law of the Sea”, as adopted by the Tribunal on 30 September 2021. Junior Professional Officers will be recruited under memoranda of understanding concluded between the Tribunal and participating States. A model memorandum of understanding between the Tribunal and a participating State can be found here.

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

The 15^th ITLOS-Nippon Capacity-Building and Training Programme on dispute settlement under UNCLOS is ongoing in Hamburg. In addition to their regular lectures on topics such as “Law of the sea in multilateral diplomacy” with Natalie Morris-Sharma, Director of the International Legal Division in Singapore's Ministry of Law, the fellows have enjoyed a study visit and training on conflict resolution at the Max Planck Foundation for International Peace and the Rule of Law in Heidelberg, and a legal writing and oral advocacy workshop with Penelope Nevill of Twenty Essex Chambers.

Internship programme

Since the last newsletter, the interns Sabrina Devereaux (USA), Olesia Gorbun (Ukraine) and Ke Song (China) completed their internships with the Legal Office and four further interns – Maria Alarcon (Ecuador),  Beáta Bolyova (Slovakia),  Tefesehet Hailu (Ethiopia) and Ioanna Sarantopoulou (Greece) – joined the Legal Office, where they will serve until the end of the year. They are dedicating their respective research papers to the litigation of erga omnes environmental obligations under UNCLOS, the primary purpose of oral hearings before the Tribunal, dispute settlement under the draft BBNJ agreement, and maritime boundary delimitation between Greece and Turkey.

Alumni network

The alumni network series of events continued during the past three months with presentations on “Possible legal effects of sea-level rise on the baselines and outer limits of maritime zones, on maritime delimitations and on the status of maritime features” by Cristina Pichel (Spain/Mexico) and “The Indian legal framework on tackling Illegal, Unreported and Unregulated (IUU) fishing” by Sindhura Polepalli (India) and alumni conversations with Ticy Thomas (India), Mike Belecky (Canada) and Mitchell Lennan (UK), who discussed their work at MODEC International, the World Wide Fund for Nature Tigers Alive Initiative and the One Ocean Hub in relation to COP26, respectively.

Mr Egor Fedorov (Russian Federation), Senior Expert on Public International Law at the International and Comparative Law Research Center, Moscow, intern in 2018 and ITLOS-Nippon Fellow following the current 2021/2022 programme

ITLOS alumni of either the internship or the ITLOS/Nippon fellowship programmes would likely say that ITLOS changed their lives. Unsurprisingly, the Tribunal has done the same for me.

As a recent graduate, I was eager to better understand international law in practice and the internship programme provided me with the chance not only to improve my research skills but also to see how international law operates from the inside. It was also a unique opportunity to be introduced to the members of the Tribunal, who were open to discussion on a number of legal questions. The ITLOS internship also brought me to where I am now, practising at the International and Comparative Law Research Center (ICLRC).

The ICLRC is a Moscow-based non-governmental and non-commercial “think-tank” providing expertise and analytical support on various issues of public and private international and comparative law. In my role as a senior expert on public international law, I deal with general issues of public international law, legal questions arising in the Arctic context, the law of the sea, and the role of international law in times of the COVID-19 pandemic. As part of my duties, I prepare research reports, supervise and coordinate expert groups working on research projects, and participate in sessions of the International Seabed Authority – advising the Russian delegation on issues related to the Mining Code. In addition, I assist with establishing cooperative arrangements between Russian and foreign education and research institutions and administer projects aimed at the promotion of studies in international law, including the Summer School on Public International Law. My role also involves coordinating and supervising the publication of ICLRC research material.

In an effort to deepen my understanding and knowledge of the law of the sea, I decided to apply for the Nippon Fellowship. I am grateful that the Registry, with the support of the Nippon Foundation, was able to bring together in Hamburg seven fellows from different geographic locations and different backgrounds. Through meetings with well-known experts, numerous lectures, and practical seminars on legal writing and advocacy the programme allows us to dive into the law of the sea and fosters an extensive knowledge of basic as well as very specific and pertinent law of the sea issues. The atmosphere of common learning interests and open discussions makes the programme even more valuable. I sincerely value the opportunity to meet and learn from international law experts, including judges, representatives of international organizations, State authorities and academia, as well as those having first-hand experience in representing States before international courts and tribunals. In this light, I consider the Nippon fellowship programme as another important step in enhancing my specialty in the field.

To conclude, I would definitely advocate for young researchers and practitioners to participate in the Tribunal’s internship and Nippon fellowship programmes. It is great to see the ITLOS alumni group growing and, if I may say so, to witness the group maturing into a well-established network of law of the sea professionals.