Newsletter 2023/2

Case No. 31: Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (Request for Advisory Opinion submitted to the Tribunal)

The public hearing concluded on 25 September 2023 and the Tribunal is currently deliberating on the case. All written statements, verbatim records and the archive of webcasts are available on the website.

See the case page

The thirty-third Meeting of States Parties to the United Nations Convention on the Law of the Sea held elections for seven judges on 14 June 2023. Judge Heidar (Iceland) was re-elected by the States Parties, and six new judges were elected: Ms Frida María Armas Pfirter of Argentina, Mr Hidehisa Horinouchi of Japan, Mr Thembile Elphus Joyini of South Africa, Mr Osman Keh Kamara of Sierra Leone, Mr Konrad Jan Marciniak of Poland and Mr Zha Hyoung Rhee of the Republic of Korea. The new judges were sworn in on 2 October 2023 and will serve until 2032.

You have been a member of the Tribunal since 2014. What do you consider to be the highlights of the past nine years?

In my view, the Tribunal has been constantly growing in relevance, as can be seen by the importance and diversity of cases brought before it in recent years. For example, the Tribunal has now dealt with three maritime delimitation cases and is currently engaged with the third request for an advisory opinion. 

The main role of the Tribunal under the Law of the Sea Convention is obviously to settle disputes between States concerning the interpretation or application of the Convention. However, in many cases, the Tribunal is required to clarify provisions of the Convention, which benefits not only the parties to the relevant dispute but also the international community as a whole. Consequently, the contribution made by the Tribunal in this regard is particularly important.

Let me mention a few recent examples where the Tribunal has clarified, and thus developed, the law of the sea and related international law through its jurisprudence. The Tribunal’s judgment in The M/V “Norstar” Case (Panama v. Italy) offered a rare opportunity to clarify the freedom of navigation under article 87 of the Convention. In particular, the Tribunal focused on the question of what acts could constitute a breach of the freedom of navigation. In its order in the Case concerning the detention of three Ukrainian naval vessels, Provisional Measures, between Ukraine and the Russian Federation, the Tribunal addressed the interpretation of the term “disputes concerning military activities”, which is undefined in the Convention. Such disputes may be exempted from compulsory dispute settlement under article 298(1)(b) of the Convention. In its judgment of 28 April this year in the Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean, the Special Chamber of the Tribunal made several contributions to the jurisprudence of international courts and tribunals. To start, this was the first maritime delimitation case between two archipelagic States, and the Special Chamber was presented with a unique opportunity to elucidate various features of the legal regime of archipelagic States. Further, the judgment treated a low-tide elevation, in casu Blenheim Reef, as a relevant circumstance in the second stage of applying the equidistance/relevant circumstances method. Lastly, when addressing the delimitation of the continental shelf beyond 200 nautical miles, the Special Chamber meticulously applied the standard of significant uncertainty first developed by the Tribunal in the landmark Bangladesh/Myanmar case and explained the underlying rationale for its use. The final example from the recent jurisprudence in Hamburg is from the first phase of the Mauritius/Maldives case, devoted to the preliminary objections raised by the Maldives, and relates to a legal clarification that goes beyond the law of the sea and concerns the legal effect of advisory opinions of the International Court of Justice.

These are all recent examples of the Tribunal’s contribution to clarifying the law of the sea and related international law through the application of its contentious jurisdiction but, in my view, advisory proceedings are particularly suitable in this respect. In this context, let me note that the Tribunal is currently deliberating on the Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law and will deliver its advisory opinion in due course.

You are the tenth President of the Tribunal. In your view, what are the current fundamental challenges for the law of the sea and what contribution can the Tribunal make to meeting those challenges?

In the current geopolitical situation, international courts and tribunals have, in my view, a particularly important role to play in promoting and upholding the rule of law in international relations. This obviously applies to the Tribunal in the field of the law of the sea. There are a number of unsettled disputes between States in this field, with many concerning maritime delimitation. If the parties to such a dispute are unable to settle it through negotiation, the Tribunal stands ready to assist them.

The Tribunal has a unique status as a specialized law of the sea adjudicatory body. As the guardian of the Law of the Sea Convention, the Tribunal has an important role to play in ensuring that the Convention is a living instrument and can cope with new developments in ocean affairs and the law of the sea. A relevant recent development in this field is the adoption of the Agreement under the Convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, also known as the “BBNJ Agreement”. I am confident that the Tribunal, given its expertise and extensive track record in the area of marine environmental protection, is a valuable option for the sound and efficient resolution of BBNJ-related disputes. I also wish to point out that the Agreement greatly enhances the role of the Tribunal through its conferral of advisory jurisdiction. Other new challenges in the law of the sea, in which the Tribunal is well suited to play a role, include climate change, deep seabed mining and new ocean technology, such as autonomous ships.

You have been involved in many of the capacity-building programmes organized by the Tribunal over the last years. The workshops held in Hamburg for legal advisers as well as regional workshops held around the world supplement the internship, fellowship and summer academy programmes. How important do you think it is for the Tribunal to run such training programmes?

The Tribunal has, from the outset, been committed to the advancement of the peaceful settlement of disputes related to the law of the sea, not only through its contentious or advisory jurisdiction but also through the dissemination of information and the organization of capacity-building programmes for current and future generations. In my opinion, these programmes are of great importance. Participants learn, inter alia, about the dispute-settlement mechanism of the Law of the Sea Convention, the role of the Tribunal and its procedures and jurisprudence. I have participated in a number of regional workshops and workshops for legal advisers and, in my view, they have been very useful. As an example, they have served to correct the common misunderstanding that, if a State Party does not make a written declaration choosing one or more of the means for compulsory dispute settlement under article 287 of the Convention, then another State Party may not or is less likely to submit a dispute with the former to a court or tribunal. The fact of the matter is, however, that a State Party, which has not made a choice, will be deemed to have accepted Annex VII arbitration, which is the default compulsory mechanism. I should also like to add that the high staff turnover in State administrations has made it all the more relevant for the Tribunal to continue conducting these workshops.

The Tribunal’s programmes for government representatives continued this year with the sixteenth regional workshop dedicated to “The Role of the International Tribunal for the Law of the Sea in the Settlement of Disputes relating to the Law of the Sea”, held in Nice, France, in June and the second ITLOS Workshop for Legal Advisers (sponsored by the Republic of Korea) in July, which welcomed to the Tribunal participants from Angola, Botswana, Cameroon, Comoros, Congo, the Democratic Republic of the Congo, Equatorial Guinea, Eswatini, Gabon, Kenya, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, the United Republic of Tanzania, Zambia and Zimbabwe.

We are halfway through the seventeenth edition of the ITLOS-Nippon capacity-building and training programme on dispute settlement under UNCLOS, with fellows from Malawi, Mauritius, Mexico, Peru, the Solomon Islands and Türkiye. After completing the IFLOS Summer Academy, the fellows participated in an intensive series of lectures, workshops and visits, and have just visited the Max Planck Foundation for International Peace and the Rule of Law in Heidelberg where they received specialized training on conflict resolution.

As for the internship programme, interns from Albania, Japan, Lebanon, Mauritius, Panama, Spain and the United States of America have joined the Legal and Press Offices in the last few months, working on tasks relevant to their respective departments but also conducting research of their own choice on topics as diverse as “The Balance of Fairness and Legal Certainty in Maritime Boundary Delimitation” and “Marine Debris Management: Solving the Anthropogenic Issue Based on UNCLOS 1982”.

Lydia Ngugi, Head of the Maritime Technology Cooperation Centre for Africa, Kenya

After graduating with a Master of Laws degree from the IMO International Maritime Law Institute in Malta in 2014, I had the honour of being selected to be a part of the ITLOS Internship Programme in 2015. While in Hamburg, I had the opportunity to understand practical aspects of the law of the sea by observing disputes relating to the delimitation of maritime boundaries and marine environmental protection and appreciating the detailed research carried out by the respective States. A couple of months after completing the internship, I received the opportunity to work at a university that supports the training of marine engineers in Kenya. Thanks to the knowledge acquired during the internship, coupled with the hands-on experience I had already gained as a marine compliance manager at a shipbuilding and ownership company in Kenya, I was put in charge of delivering lectures to marine engineering students on key aspects of IMO conventions. I also had the opportunity to provide consultancy to the IMO and other international organizations at this time. Fast forward to early 2020, when I joined the Maritime Technology Cooperation Centre for Africa in the capacity of Head of the Organization. MTCC Africa is one of four centres set up by the IMO in Africa, the Caribbean, the Pacific and Asia, with the aim of building capacity for climate change mitigation in the shipping and maritime industries. At MTCC Africa, I am tasked with ensuring that the African Member States of IMO have the necessary understanding of Marpol Annex VI, which focuses on the mitigation of air pollution, while also appraising the region on the ratification and domestication of this annex. MTCC Africa and the IMO work closely together to implement strategic pilot projects such as the enhancement of energy efficiency in port infrastructure in support of decarbonization, in alignment with the IMO GHG Strategy. The training that I received at ITLOS has of course enabled me to connect legal research to practical avenues of application, but not only that – the global maritime interconnectivity of ITLOS alumni is invaluable and it is always a pleasure to interact with like-minded individuals who have benefited from the ITLOS training programmes.