Law of the Sea

“The International Tribunal for the Law of the Sea – Commentary, Case-Law Digest and the Reference Guide (1994 - 2014), is an outcome of the teaching, research and consultation experience that has been gathered while working in the field of law of the sea and public international law in general. This work builds upon the academic and juristic work reflected in two volumes on the International Court of Justice, namely, the World Court Reference Guide 2002 and 2014 editions. This work will be helpful in learning the Tribunal’s decisive role in ascertaining, noting and developing the rules of law of the sea. The case-law digest will also be useful to understand and put in a proper perspective the on-going debate of fragmentation of international law due to, among others, creation and functioning of various international courts and tribunals. Although the Tribunal does not possess legislative powers or the power to codify international law, its pronouncements in the law of the sea in the last two decades, reflect a different orientation in the future. Advisory opinions rendered by the Tribunal particularly enable the readers to think of this emerging trend. Furthermore, the judicial activism which is largely seen in the domestic courts is slowly permeating through the Tribunal as well. One can see that the pronouncements extracted in form of case-law digest in this edition quite support this drift.

This edition is divided into four parts. The first part presents a concise assessment of the decision and explains the summary in the light of the Tribunal’s earlier jurisprudence and international law of the sea in general. Each commentary describes the facts of a particular case, the arguments of the parties involved and the decision of the Tribunal.The second part provides case-law digest of legal maxims and extracts from cases that have been dealt by the Tribunal since its inception till September 2014. The third part describes the evolution of the history of each of the case and advisory opinions that has been dealt by the Tribunal. The fourth part contains ITLOS Rules of Procedure and Declarations made by States under the UNCLOS.” 

"Professor Bimal N. Patel offers, in his book, a path to a further study of the jurisprudence of the International Tribunal for the Law of the Sea."

       - Brazilian Yearbook of International Law.

"Professor Patel has provided a ready insight into the jurisprudence of ITLOS and its contribution to international law and provided greater insights into the functioning of this dispute settlement institution. The work covers all the decisions of ITLOS from its inception to the " Ara Libertad" case in November 2012. "

         -  Canadian Yearbook of International Law.

"According to Malcolm Shaw, from a medium of communication to a vast reservoir of resources, the seas always performed important functions to the International Community. Through the years, this historical and actual relevance of the seas has stimulated the development of legal rules. In 1982, after almost ten years of intense work and negotiation, it was edited a fundamental legal framework to the codification of the Law of the Sea, the 1982 United Nations on the Law of the Sea (UNCLOS). As affirmed by Professor Igor V. Karaman, in the prologue of his book ‘Dispute Resolution in the Law of the Sea’, “The 1982 United Nations Convention on the Law of the Sea has been frequently referred to as the ‘constitution for the oceans’ and as the most important event in the history of modern international law after the adoption of the Charter of the United Nations in 1945”. The UNCLOS has expressly announced the principles of the Law of the Sea – most of them had already been recognized by international customs - and established the International Tribunal for the Law of the Sea (ITLOS).  And, it is in this major institution established by the 1982 United Nations Convention on the Law of the Sea that Professor Bimal N. Patel focuses his brilliant and educational book, ‘Law of the Sea. International Tribunal for the Law of the Sea Jurisprudence: Case Commentary, Case-Law Digest and Reference Guide (19942014)’. Professor Bimal N. Patel offers, in his book, a path to a further study of the jurisprudence of the International Tribunal for the Law of the Sea. This path is very well constructed through four, in fact five, main parts. The First Part presents a compilation with commentaries of the ITLOS’s decisions, highlighting the most relevant points, regarding the Law of the Sea and the Tribunal’s procedures that the judges addressed in each case. The Second Part provides case-law digest of the legal basis and sources of the Law of the Sea by the Tribunal’s point of view which is reveled by the judicial pronouncements in the jurisprudence constructed by it through the years. The Third Part, which is divided in two (Cases and Advisory Opinions), systematically describes the history of each case and advisory opinions that has been dealt by the Tribunal. Finally, Part Four presents the basic texts that guide the Tribunal’s work, e.g., the Statute of the International Tribunal for the Law of the Sea and the Rules of the International Tribunal for the Law of the Sea. "

     - Ana Clara Abrantes Simoes             

"In a time of increasing resort by states to international dispute settlement, the International Tribunal for the Law of the Sea (ITLOS) has become one of the preeminent institutions providing for the settlement of disputes between states. With a jurisdiction and jurisprudence extending from “prompt release” cases to provisional measures and maritime boundary delimitation as well as international fisheries and the international seabed, the Tribunal is having an important impact in the development of the law of the sea. The jurisprudence of the Tribunal has increased steadily and as in the case of all new judicial institutions, keeping track of decisions, categorizing them and putting them within a framework for further study and analysis is a challenge. In this regard, Professor Bimal Patel, an eminent international legal scholar at Gujurat National Law School, has provided a great service to the international law community with his Case Commentary, Case-Law Digest and Reference Guide to the jurisprudence of ITLOS.

The work, which covers all of the decisions of ITLOS from its inception to the “Ara Libertad” case in November 2012, is divided into four Parts.

Part I is a commentary on each of the cases, which gives an account of the facts and highlights the key legal contributions of the case.

Part II, which constitutes the major part of the work, provides a Digest of the Cases, fitting them into their subject areas and noting the legal principles discussed in the case in each area. From this one can obtain an insight into the diverse contribution to the development of the law of the sea made by the Tribunal.

Part III, which is the reference guide, is divided in two: A, deals with the cases before ITLOS, and B, deals with Advisory Opinions. This Part reviews the decisions already commented on in Part I, but in terms of their more formal aspects. For each case information is provided on the institution of proceedings, what is claimed, the number of hearings, the orders made, the date of any judgments, the operative part of the judgment, the legal instruments referred to, a list of declarations made by judges, and of concurring and dissenting opinions, and a list of the representatives of the parties.

Part IV provides the basic texts of the Tribunal, its Statute, its Rules and their amendments, the Tribunal’s resolution on its internal practice and it’s Guidelines on the preparation and presentation of cases and the posting of bonds.

Professor Patel is no stranger to the production of case digests of this kind. As former ICJ President Judge Peter Tomka points out in his Foreword, Professor Patel had already produced reference guides for the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ). He has obviously given much thought to how to structure the material in the way it will be of use to students, scholars and practitioners.

The work provides an opportunity to reflect on the contribution of the Tribunal. Unlike a court of general jurisdiction, ITLOS has a jurisdiction that is quite specific in certain areas, in particular in relation to the “prompt release” of vessels. This is a relatively new concept that came into being with the 1982 United Nations Convention on the Law of the Sea. Professor Patel uses the now common abbreviation for the Convention of UNCLOS, a term that in the past was applied to the United Nations Conference on the Law of the Sea. Since the notion of “prompt release” was new, ITLOS had to elaborate its own jurisprudence on prompt release, including the posting of bonds on which the Tribunal has issued guidelines for states. The application of these rules by ITLOS has not been without controversy and there have been a significant number of dissents and separate opinions.

The Digest gives a useful insight into the range of issues dealt with by ITLOS in dealing with prompt release cases both specific to the prompt release issue and of more general application, such as the extent of the rights of a coastal state within its EEZ and the right of the flag state to bring claims on behalf of non-nationals who are on board their vessels. Indeed, when one looks at the categories and sub categories of international law set out in the Digest, which include the high seas, nationality of ships, conservation and management of marine living resources, principles governing the “Area”, and of course, maritime boundary delimitation, one sees the diversity of the contribution of the Tribunal. And within each area there are sub-categories, such as immunity of warships and the right of hot pursuit. In short, the work of ITLOS, rather than narrowly focused has become a significant part of the corpus of modern day public international law.

What is interesting is that “prompt release”, which in its early years was the bread and butter of the Tribunal’s work, is not listed in the Digest as a separate category. Instead it is treated as the principal topic under the headings of the High Seas, and Freedom of Navigation. No doubt some of the Tribunal members in those early years were somewhat frustrated at having to deal with such matters as the setting of bonds, and the proceeds from the sale of vessels and their catch, topics that did not fall within the purview of international lawyers in the past, but, as Professor Patel’s work illustrates, in dealing with these topics the Tribunal was making an important contribution not only to the interpretation and application of specific provisions of the Convention, but also to international law more generally.

The involvement of ITLOS in deciding maritime boundary disputes was eagerly awaited. Would the Tribunal simply follow the jurisprudence that had been developed by the ICJ and arbitral tribunals or would it undertake a critical analysis of that jurisprudence and set its own path? ITLOS chose the former course largely endorsing the existing jurisprudence although making additional contributions to areas not yet dealt with by the ICJ. In particular it has made an important contribution on the delimitation of the continental shelf beyond 200 nautical miles and the “grey area” problem.

The Tribunal has endorsed the articulation of the ICJ in the Black Sea Case2 of the so-called “equidistance-relevant circumstances” method of delimitation, which entails a “three-stage” approach of first the drawing of an equidistance line; second, seeing if that line should be adjusted in the light of “relevant circumstances”; and third the determination of whether result is disproportionate – the “disproportionality” test. In doing so, the Tribunal simply adopted and maintained the intellectual and practical contradictions of this method, in particular the overlap in the application of the first and second stages – drawing a provisional equidistance line and then adapting it to reflect relevant circumstances.. It may be hoped that as the Tribunal deals with further maritime boundary cases it will give additional thought to coherency in the application of this method.

Any new international dispute settlement body is confronted by issues that are to a certain extent procedural in nature but are necessary preconditions to dealing with the substantive claims – is there a “dispute”, is there jurisdiction, are the claims admissible, has there been an exhaustion of local remedies? ITLOS has engaged on all of these questions and a significant section of the Digest is devoted to them. The Tribunal has also had to deal with non-appearance of a party and the challenges this gives rise to ensuring equality between the parties.

An important part of the Tribunal’s jurisdiction is considering applications for provisional measures, which raises its own questions of jurisdiction, as well as questions of harm and environmental impact, and the Digest identifies them all. The fact that ITLOS decides on provisional measures in respect of cases that are dealt with on the merits by an Annex 7 tribunal leaves open the possibility of inconsistency between the two dispute settlement bodies, illustrated in the Southern Bluefin Tuna cases.

Modelled on the Statute of the ICJ, the Statute of ITLOS also contains the power to give advisory opinions and the Tribunal has done so on two occasions – one by the Seabed Chamber in respect of the responsibility of states in sponsoring activities in the Area, and one by the Tribunal on the obligations of states in respect of illegal, unreported and unregulated (IUU) fishing. Unfortunately the Opinion of the Tribunal in respect of the latter request was delivered after the completion of the Digest. As a result, the Digest focuses on the Advisory Opinion of the Seabed Chamber.

A final chapter of the Digest is headed “General”, which deals with issues for which Professor Patel presumably could not find appropriate categories or would have resulted in a series of single category listings. This contains, however, some important sub-categories concerning the legal contributions of ITLOS. These include both procedural and substantive issues relating to treaties and their interpretation, obligations relating to due diligence and the precautionary approach, the relationship of treaties to domestic law and the concept of estoppel.

A digest is, of course, no substitute for reading the cases that are digested, but it does give guidance on where to look and what to look for. And, it provides a quick way of finding what has been said by the Tribunal in particular areas, and details such as who were the dissenting judges, or what were the claims and who were the counsel in a particular case, matters that would otherwise require more extensive research. A user can readily find what a case is all about and thus whether it should be considered further in researching a particular topic.

But, the Digest is more than this. Professor Patel has provided a ready insight into the jurisprudence of ITLOS and its contribution to international law and provided greater insight into the functioning of this dispute settlement institution. One appreciates from Professor Patel’s work how much ITLOS has adopted and endorsed the jurisprudence of the ICJ throughout its decisions and not just in respect of maritime boundary delimitation. In this way, the Tribunal has contributed to avoiding fragmentation in key areas of international law, one of the matters on which Professor Patel hoped his work would throw light.5 More generally this volume gives clear evidence that in its relatively short existence ITLO|S has established itself as an institution that has gained credibility and respect in international law and relations. 

The Digest is well produced and carefully presented. It is a work of value to students, scholars and practitioners. It is easy to use and the categories generally can be followed and understood with facility. Perhaps the only lack is that of an index, which would greatly facilitate searching the Digest.

A final thought. A work of this nature needs continuous updating and another edition would be welcome before too long. Indeed Professor Patel describes this as a first edition. Where continuous updating is needed then an electronic form of this work would make considerable sense. Thus, an enterprising publisher would make it possible for Professor Patel to provide a searchable online publication of this work that could be updated regularly and would take Professor Patel’s remarkable achievement with this book an important further step."

                                                                                                                                                                                                                           - Prof. Donald McRae            

Table of Cases

Introduction & Acknowledgments

Part I

ITLOS CASE COMMENTARY

1. The M/V “Saiga” case (Saint Vincent and the Grenadines v. Guinea)

2. Southern Bluefin Tuna cases (New Zealand v. Japan; Australia v. Japan)

3. The “Camouco” case (Panama v. France)

4. The “Monte Confurco” case (Seychelles v. France)

5. Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean Chile v. European Union

6. The “Grand Prince” case (Belize v. France)

7. The “Chaisiri Reefer 2” case (Panama v. Yemen)

8. The Mox Plant case (Ireland v. United Kingdom)

9. The “Volga” case (Russian Federation v. Australia)

10. Case Concerning Land Reclamation case (Malaysia v. Singapore)

11. The “Juno Trader” case (Saint Vincent and the Grenadines v. Guinea-Bissau)

12. The “Hoshinmaru” case (Japan v. Russian Federation)

13. The “Tomimaru” case (Japan v. Russian Federation)

14. Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar)

15. The M/V “Louisa” case (Saint Vincent and the Grenadines v. Kingdom of Spain)

16. The M/V “Virginia” case (Panama v. Guinea-Bissau)

17. The “Arctic Sunrise” case (Netherlands v. Russian Federation)

18. The “Ara Libertad” case (Argentina v. Ghana Provisional Measures)

Part II

ITLOS CASE-LAW DIGEST

1. High Seas—Freedom of the High Seas — Right of Navigation

2. Nationality of Ships — Status of Ships — Duties of the Flag State — Immunity of Warship on the High Seas — Right of Hot Pursuit

3. Conservation and Management of the Living Resources of the High Seas — Marine Environment

4. Principles Governing the Area

5. Maritime Delimitation

6. Settlement of Disputes and Advisory Opinions

7. General

Part III-A

ITLOS REFERENCE GUIDE: CASES

1. The M/V “Saiga” case (St. Vincent and Grenadines v. Guinea-Bissau)

2. The M/V “Saiga” case (St. Vincent and Grenadines v. Guinea-Bissau)

3. Southern Bluefin Tuna cases (New Zealand v. Japan; Australia v. Japan)

4. The “Camouco” case (Panama v. France)

5. The “Monte Confurco” case (Seychelles v. France)

6. Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean: (Chile v. European Community)

7. The “Grand Prince” case (Belize v. France)

8. The “Chaisiri Reefer 2” case (Panama v. Yemen)

9. The Mox Plant case (Ireland v. United Kingdom)

10. The “Volga” case (Russian Federation v. Australia)

11. Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore)

12. The “Juno Trader” case (St. Vincent and Grenadines v. Guinea-Bissau)

13. The “Hoshinmaru” case (Japan v. Russian Federation)

14. The “Tomimaru” case (Japan v. Russian Federation)

15. Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v. Myanmar)

16. The M/V “Louisa” case (St. Vincent and Grenadines v. Kingdom of Spain)

17. The M/V “Virginia G” case (Panama v. Guinea-Bissau)

18. The “Ara Libertad” case (Argentina v. Ghana)

19. The “Arctic Sunrise” case (Netherlands v. Russian Federation)

Part III-B

ITLOS REFERENCE GUIDE: ADVISORY OPINIONS

20. Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect

to Activities in the Area

21. Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC)

Part IV

BASIC TEXTS

1. Statute of the International Tribunal for the Law of the Sea

2. Rules of the International Tribunal for the Law of the Sea

3. Amendments to the Rules of the International Tribunal for the Law of the Sea (15 March 2001)

4. Amendment to the Rules of the International Tribunal for the Law of the Sea (21 September 2001)

5. Amendments to the Rules of the International Tribunal for the Law of the Sea (17 March 2009)

6. Resolution on the Internal Judicial Practice of the Tribunal

7. Guidelines Concerning the Preparation and Presentation of Cases Before the Tribunal

8. Guidelines Concerning the Posting of a Bond or Other Financial Security with the Registrar