The International Tribunal for the Law of the Sea and Marine Environmental Protection: Expanding the Horizons of International Oceans Governance

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  • 1. 1833 UNTS 396. 2. UNCLOS, Art. 279. 3. 1 UNTS xvi.

  • 4. See e.g., the 1978 Treaty between Australia and the independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, including the Area known as Torres Strait, and Related Matters [1985] ATS 4. 5. For a discussion of the CCAMLR area as an RFMO see E. J. Molenaar, "Southern Ocean Fisheries and the CCAMLR Regime," in A. G. Oude Elferink and D. R. Rothwell, eds., The Law of the Sea and Polar Maritime Delimitation and jurisdiction (The Hague: Kluwer Law International, 2001), pp. 293-315. 6. On how UNCLOS should be interpreted in the context of environmental disputes, see E. Hey, Reflections on an International Environmental Court (The Hague: Kluwer Law International, 2000), p. 5.

  • 7. See discussion in J. M. Pureza "International law and ocean governance: audacity and modesty," Review of European Community and International Environmental Lazu 8 (1999): 73-77; R. W. Knecht "A perspective on recent developments that could affect the nature of ocean governance regimes," Law of the Sea Institute Proceed- ings 21(1995): 177-90; W. T. Burke "State practice, new ocean uses, and ocean governance under UNCLOS," Law of the Sea Institute Proceedings 28 (1994): 219-34; L. K. Kriwoken et al., eds., Oceans Lazu and Policy in the Post-IINCED Era: Australian and Canadian Perspectives (London: Kluwer Law International, 1996). 8. Behring Sea Arbitration Award between Great Britain and the United States Given at Paris, 15 August 1893, 179 Consolidated Treaty Series 97. 9. For discussion see C. P. R. Romano, The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach (The Hague: Kluwer Law International, 2000), pp. 133-50. 10. International Court of Justice (ICJ),Corfu Channel Case (United Kingdom v. Albania). ICJ Reports 3. The Hague: ICJ, 1949, p. 3. 11. ICJ, Fisheriesjurisdiction Case (Merits) (United Kingdom v. Iceland). ICJ Re- ports 3. The Hague: ICJ, 1974, p. 3.

  • 12. Commission of Enquiry (Denmark - United Kingdom), The Red Crusader Inquiry, International Law Reports 35 (1967): 485. 13. While UNCLOS, Art. 15 is not expressed in such clear terms, it is self- evident that in the case of delimitation of the territorial sea, it is anticipated that coastal States will initially seek to reach agreement on their maritime boundaries. 14. 516 UNTS 205. 15. 499 UNTS 82. 16. UNCLOS, Arts. 74 (1), 83 (1). 17. See for example Australia's practice in maritime boundary delimitation, especially with Papua New Guinea, Indonesia and UNTAET/ East Timor; see further S. Kaye, Australia's Maritime Boundaries (Wollongong: Centre for Maritime Policy, University of Wollongong, 1995). 18. UNCLOS, Art 64.

  • 19. (1909) XI RIAA 147. 20. (1979) 18 ILM 397. 21. [1969] ICJ Reports 1. 22. The Court has been involved in maritime boundary dispute adjudication involving States from Europe, Africa, Australia, Asia, and North America. 23. ICJ, Nuclear Test Cases (Australia v. France; New Zealand v. France). ICJ Reports 253. The Hague: ICJ, 1974, p. 253. 24. See discussion in Romano (n. 9 above), pp. 279-306. 25. ICJ, Fisheriesjurisdiction Case (Spain v. Canada). ICJ Reports 87. The Hague: ICJ, 1995, p. 87; ICJ Fisheriesjurisdiction Case (Spain v. Canada). ICJ Reports 58. The Hague: ICJ, 1996, p. 58.

  • 26. UNCLOS, Art. 279. 27. See 1959 Antarctic Treaty 402 UNTS 71, Art XI, which merely restates the peaceful means of dispute settlement that the parties should utilize in resolving their disputes, including reference to the International Court of Justice. 28. UNCLOS, Art. 280. 29. Ibid, Art. 281.

  • 30. Ibid, Art. 282. 31. Ibid, Art. 283. 32. Ibid, Art. 284. 33. See discussion on this provision in R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd ed. (Manchester: Manchester University Press, 1999) pp. 455-59 34. See Table 5 listing the current Declarations made by State Parties to UN- CLOS reflecting an election of choice of procedures under UNCLOS, Art. 287 and Art 298 Optional exceptions. 35. UNCLOS, Art. 287 (3), (5). 36. Ibid, Art. 287 (4). 37. Ibid, Art. 287 (6), (7). For discussion on these opting procedures see Ro- mano (n. 9 above), pp. 95-97.

  • 38. G. Eiriksson, The International Tribunal for the Law of the Sea (The Hague: Martinus Nijhoff, 2000), p. 117. 39. Note the discussion inj. G. Merrills, International Dispute Settlement, 3rd ed. (Cambridge: Cambridge University Press, 1998), pp. 174-75. 40. UNCLOS, Art. 293 (1). 41. Ibid, Art. 293 (2). 42. Ibid, Art. 295.

  • 43. "The M/V 'Saigal' (Saint Vincent and the Grenadines v. Guinea) Provisional Measures Order of 11 March 1998," International Legal Materials (ILM) 37 (1998): 1202; see also discussion in Eiriksson (n. 38 above), pp. 163-64. 44. The Camouco Case (Panama v. France) Application for Prompt Release, Judgment, 7 February 2000. 45. See discussion in Eiriksson (n. 38 above), p. 164. 46. UNCLOS, Art. 296 (1). 47. Ibid, Art. 296 (2). 48. The ITLOS decision in the Southern Bluefin Tuna Cases (Australia v. Ja- pan, New Zealand v. Japan) Request for Provisional Measures (Cases No. 3 and No. 4) are seen as important in the development of the international law interpretation of the "precautionary approach / principle"; see the discussion in A. Trouwborst, Evolution and Status of the Precautionary Principle in International Law (The Hague: Kluwer Law International, 2002), pp. 169-74. 49. See the discussion in Merrills (n. 39 above), pp. 176-78; 193-96; Churchill and Lowe (n. 33 above), pp. 455-456; J. Collier and V. Lowe, The Settlement ofDisputes in International Law (Oxford: Oxford University Press, 1999), pp. 92-93.

  • 50. UNCLOS, Art. 298.

  • 51. Ibid, Art. 299. 52. Ibid, Art. 290 (1). 53. Ibid, Art. 290 (5). These issues arose in both the Southern Bluefin Tuna case and the MOX Plant case and are discussed further below. 54. Ibid, Art. 292 (4). 55. Ibid, Art. 289.

  • 56. For discussion on how the decisions of ITLOS may interact with the ICJ, see A. E. Boyle, "Dispute settlement and the Law of the Sea Convention: problem of fragmentation and jurisdiction," International and Comparative Law Quarterly 46 (1997): 37-54. 57. For an ongoing review of the work of the Tribunal, see a series of articles by S. Rosenne, "International Tribunal for the Law of the Sea: 1996-97 Survey," International Journal of Marine and Coastal Law 13 (1998): 48'7-514; "International Tribunal for the Law of the Sea: 1998 Survey," International Journal of Marine and Coastal Law 14 (1999): 453-65; "International Tribunal for the Law of the Sea: Sur- vey for 1999," International Jourrcal of Marine and Coastal Law 15 (2000): 443-74.

  • 58. UNCLOS, Art. 290. 59. The most recent election of ITLOS judges took place on 19 April 2002, at which seven judges were elected for a term of nine years commencing from 1 October 2002. 60. UNCLOS, Annex VI, Art. 12.

  • 61. See the list in Table 2. 62. See e.g., M. D. Evans, "Bonded reason: the Camouco," Lloyd's Maritime and Commercial Law Quarterly (2000): 315-22; B. H. Oxman and V. P. Bantz, "The 'Ca- mouco' (Panama v. France) (Judgment) ITLOS Case No. 5, available online: . International Tribunal for the Law of the Sea, February 7, 2000," American Jourrcal of International Law94 (2000): 713-21; V. Lowe, "The M/V Saiga: The first case in the International Tribunal for the Law of the Sea," International and Comparative Law Quarterly 48 (1999): 187-99. 63. For some commentary, however, see V. Lowe, "The International Tribunal for the Law of the Sea: survey for 2000," Interrcational Jourrcal of Marine and Coastal Law 16 (2001): 549-70; R. O'Keefe, "ITLOS flags its intent," Cambridge Law journal 59 (2000): 428-31; B. Chigara, "The International Tribunal for the Law of the Sea and customary international law," Loyola of Los Angeles International and Comparative Law Journal 22 (2000): 433-52.

  • 64. See for example T. Stephens, "A paper umbrella which dissolves in the rain? Implications of the Southern Bluefin Tuna Case for the compulsory resolution of disputes concerning the marine environment under the 1982 LOS Convention," Asia Pacific Journal of Environmental Law 6 (2001): 297-318; B. Kwiatkowska, "The Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan) Cases," Interrea- tionalJournal of Marine and Coastal Law 15 (2000): 1-36; M. Hayashi, "The Southern Bluefin Tuna Cases: Prescription of provisional measures by the International Tribu- nal for the Law of the Sea," Tulane Environmental Law Journal 13 (Summer 2000): 361-85; S. Marr, "The Southern Bluefin Tuna Cases: The precautionary approach and conservation and management of fish resources," European,Journal of Interna- tional Law 11 (2000): 815-31; L. Sturtz, "Southern Bluefin Tuna Case: Australia and New Zealand v. Japan," Ecology Law Quarterly 28 (2001): 455-86; B. Kwiatkowska, "The Australia and New Zealand v. Japan Southern Bluefin Tuna (Jurisdiction and Admissibility) Award of the First Law of the Sea Convention Annex VII Arbitral Tribunal," International Journal of Marine and Coastal Law 16 (2001): 239-93. 65. [1994] Australian Treaty Series No. 16. 66. CCSBT, Art. 3. 67. For background on the CCSBT, see A. Bergin and M. Haward, "Southern Bluefin Tuna Fishery: recent developments in international management," Marine Policy 18 (1994): 47.

  • 68. CCSBT, Art. 18. 69. At the most recent meeting of the CCSBT it was agreed that "pressure should be applied" by the CCSBT for Indonesia to also accede: Commission for the Conservation of Southern Bluefin Tuna Report of the Eighth Meeting ( 15-19 October, 2001, Miyako, Japan), para. 14. 70. CCSBT, Art. 16 provides as follows: If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Con- vention, those Parties shall consult among themselves with a view to having the dis- pute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. Any dispute of this charac- ter not so resolved shall, with the consent in each case of all parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court of Justice or to arbitration shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above. In cases where the dispute is referred to arbitration, the arbitral tribunal shall be constituted as provided in the Annex to this Convention. The Annex forms an integral part of this Convention. 71. As neither A/NZ had a national acting as an ITLOS Judge, they were enti- tled to nominate a judge ad hoc: UNCLOS, Annex VI, Art. 17 (2). Professor I. Shearer of the Faculty of Law, University of Sydney, was jointly nominated as the Judge ad hoc in this instance.

  • ITLOS Provisional Measures The A/NZ request for provisional measures against Japan to halt the EFP for southern bluefin tuna was granted by ITLOS on 27 August 1999. In doing so, ITLOS sought to exercise jurisdiction under UNCLOS, Article 290 (5) by which the measures were issued pending the constitution of an Annex VII Arbitral Tribunal which A/NZ had both indicated was their eventual intention. By a majority, ITLOS agreed that the prima facie jurisdiction of the Annex VII Tribunal was established, and accordingly under Article 290 (5) ITLOS had a capacity to issue provisional measures. This was an impor- tant decision given the context of the dispute, which was one that had pri- marily arisen under the CCSBT and not UNCLOS, though clearly important principles of oceans governance under UNCLOS were at stake. The decision to issue provisional measures had particular ramifications given that Part XV of UNCLOS acknowledges in Article 282 that in the case

  • 72. See the discussion in the judgments by Judge ad hoc Shearer. 73. See the discussion in the judgments by Judge Vukas and Judge Treves, and comment by Kwiatkowska (2000) (n. 64 above), pp. 21-23. 74. The majority members were Judge Schwebel (President), Judge Feliciano, Judge Tresselt, and Judge Yamada; Judge Keith was in dissent.

  • 75. CCSBT, Art. 16 (2). 76. See the comment by Judge ad hoc Shearer, Southern Bluefin Tuna Case. 77. Annex VII, para. 70. 78. CCSBT VIII, Attachment N-1 (Australia), Attachment N-4 (New Zealand). 79. Ibid, Attachment N-2 (Japan) ; Korea at Attachment N-3 noted "Regarding the failure to reach consensus, it believes more time is required to reach full cooper- ation in the Commission."

  • 80.Independent, 25 November, 2001; Guardian, 26 November, 2001. 81. "MOX plant dispute," Environmental Policy and Law 32 (2002): 25-26. 82. (1993) 32 ILM 1068. 83. 298 UNTS 167.

  • 84. The MOX Plant Case (Ireland v. United Kingdom) Request for Provisional Measures (Case No. 10) (3 December 2001), para. 50. 85. Ibid, para. 53-62; Ireland had founded its claim on UNCLOS, Arts. 192, 193, 194, 207, 211, 213. 86. UNCLOS, Art. 290 (5). 87. MOX Plant Case, para. 81. 88. Ibid, para. 82-88. 89. Ibid, para. 89. 90. "MOX Plant Dispute" (n. 81 above).

  • 91. See A. E. Boyle, "UNCLOS, the Marine Environment and the Settlement of Disputes," in Competing Norms in the Law of Marine Environmental Protection, ed. H. Ringbom (London: Kluwer Law International, 1997), pp. 241-56; and generally D. R. Rothwell, "Reassessing international environmental dispute resolution," Asia Pa- cificjournal of Environmental Law 6 (2001): 201-14.

  • 92. That framework has been further enhanced by the 1992 Rio Declaration (1992) 31 ILM 818, and Agenda 21, especially Chapter 17. 93. For an assessment of the author's views on these developments in the Asia Pacific, see B. Boer, R. Ramsay and D. R. Rothwell, International Environmental Law in the Asia Pacific (The Hague: Kluwer Law International, 1998), 133-44. 94. This point is reinforced by Boyle (n. 91 above), pp. 241-56. 95. ITLOS Resolution on the Chamber for Marine Environmental Disputes (8 October 1999), reproduced in Eiriksson (n. 38 above), p. 366.

  • 96. T. A. Mensah, "The International Tribunal for the Law of the Sea and the protection and preservation of the marine environment," Review of European Community and International Environmental Law 8 (1999): 1 at 5. 97. (1992) 31 ILM 818. 98. P. Birnie and A. Boyle, InternationalLawand theEnvironment, 2nd ed. (Oxford: Oxford University Press, 2002), p. 588 note of the effect of Art. 22 that "[t]his raises interesting possibilities concerning application of the Law of the Sea Convention's provisions on enforcement, compliance and dispute settlement to biodiversity issues. " 99. Convention on Biological Diversity, Art. 27. 100. Birnie and Boyle (n. 98 above), p. 589.

  • 101. For general comments, see Birnie and Boyle, ibid, pp. 390-91.

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