Appunti di Ocean Resources Law and Policy

ITLOS

Before going before an international organ the art. 295 shows some exhaustion of local remedies: "Any dispute between States Parties concerning the interpretation or application of this Convention may be submitted to the procedures provided for in this section only after local remedies have been exhausted where this is required by international law."

States have courts and diplomatic systems in place so they may try to resolve the dispute using these methods. (This is a general rule, not only in the maritime topic).

Art 290 Provisional measures ("misure cautelari")

"1. If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision."

(reference to marine environmental protection! In this article we have the consideration of the marine environmental protection, especially when disputes are regarding the exploitation of natural resources)

1. Provisional measures may be modified or revoked as soon as the circumstances justifying them have changed or ceased to exist.
2. Provisional measures may be prescribed, modified or revoked under this article only at the request of a party to the dispute and after the parties have been given an opportunity to be heard.
3. The court or tribunal shall forthwith give notice to the parties to the dispute, and to such other States Parties as it considers appropriate, of the prescription, modification or revocation of provisional measures.
4. Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the

1. The International Tribunal for the Law of the Sea, or the Seabed Disputes Chamber in the case of activities in the Area, may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires.
2. Once constituted, the tribunal to which the dispute has been submitted may modify, revoke or affirm those provisional measures, acting in conformity with paragraphs 1 to 4. (Provisional measures need to be instituted within few time. For this reason even if the arbitral tribunal is still not constituent the ITLOS may institute these measures)
3. The parties to the dispute shall comply promptly with any provisional measures prescribed under this article.

Conditions for provisional measures:

1. Provisional measures may be prescribed only at the request of a party to the dispute and after the parties have been given an opportunity to be heard no proprio

motu (no proprio motu means “not by its own initiative”).

2. It is necessary that the court or tribunal seized of a request for provisional measures has, prima facie, i.e., presumptively, jurisdiction under Part XV or Part XI, Section 53. Provisional measures may be prescribed “if the urgency of the situation so requires”.

4. There must be an interlinkage between provisional measures and the application made: i.e., provisional measures must be ancillary to the main claim. Provisional measures may be modified and they can be different from the one requested by the States. The provisional measures are binding.

Third party intervention: when 2 States are in a dispute and a third State intervenes before the tribunal. There are 2 types:

• Request to intervene (interest in a legal way that can be affected by the disputes). In this case, it submits a request to intervene. If it is granted, the decision is binding upon the intervening state.
• Art. 32 of Annex VI deals with

“Rights to intervene in cases of interpretation or application”. Whenever the application or the interpretation of an international agreement is in question, the registrar notifies all the parties. Every party has the right of intervention if it sues the right, the decision of the State is legally binding also upon the intervening state. (The State has to consider this!)

Judgement: all questions shall be decided by a majority of the members of ITLOS who are present. In the event of an equality of votes, the President or the member of ITLOS who acts in his place shall have a casting vote. The judgment shall state the reasons on which it is based. It shall contain the names of the members of ITLOS who have taken part in the decision. As within the ICJ, any member shall be entitled to deliver a separate opinion. The judgment is signed by the President and by the Registrar. It is read in open court, due notice having been given to the parties to the dispute.

The decision of ITLOS is final.

and binding upon all the parties to the dispute. It shall have no binding force except between the parties in respect of that particular dispute.

A separate opinion and dissenting opinions are 2 different types of written down reasons by judges: the latter refers to opinions written by those judges that were against the decision, the former instead is an opinion written by a judge that has voted in favor but for a different reason than the one of the majority of the judges.

There are no possibilities to appeal because the decision is final.

If the 2 States enter into another dispute, the first dispute doesn't have to be considered. Even if there is no possibility for an appeal, there is the possibility for a revision if there are new facts discovered, a fact that, at the time of the judgment, was unknown to ITLOS and also to the party requesting revision, always provided that such ignorance was not due to negligence.

Such a request must be made at the latest within six months of the discovery.

1. Ignorance due to negligence is not excused and the facts had to be truly unknown by the court and the parties.
2. The presentation of the new facts has to be made until 10 years from the judgement.
3. There are also advisory proceedings: it is exercised by the SDC or by the ITLOS full court (no judgements, they are not binding!).
4. Article 191 recalls the advisory jurisdiction of the SDC: "The Seabed Disputes Chamber shall give advisory opinions at the request of the Assembly or the Council on legal questions arising within the scope of their activities. Such opinions shall be given as a matter of urgency".
5. The only advisory opinion was made in 2011 by the SDC.
6. In case of advisory opinions made by the full court, they are made if an international agreement related to the purposes of the Convention specifically provides for the submission to ITLOS of a request for such an opinion.
7. An example is an agreement regarding...

fishery and that included in the first part that the Parties may submit a request for an advisory opinion to ITLOS. Parties to that agreement may request the tribunal to clarify certain topics concerning the interpretation or application of that agreement. An example is in 2015, the request for an advisory Opinion submitted by the sub-regional fisheries commission (SRFC). It was an opinion that related to the actual obligation of international organization (like EU) in case of breach, violations by States that are parties to the agreement and members of the EU. If the States violate the obligation of the sub regional agreement is the EU responsible? That was a very interesting question (EU in fact maintains an exclusive competence on the matter of fishery and shared competence on the protection of the marine environment. So in this advisory ITLOS stated that EU is certainly in the position of being entrusted with factual obligation concerning the control of the behavior of the member States).

Everything that concerns the policy of fishing is decided by the EU, with consultation with member States but no member States can decide to regulate fishing activities in a different manner from the one decided by the EU. Different is the situation regarding the protection of the marine environment, because in that case it is shared.

If a vessel is arrested and the crew is brought in jail by the coastal State we have the art 292 dealing with the prompt release of vessels and crews:

Art 292

Prompt release of vessels and crews

1. Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from

1. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. The authorities of the detaining State remain competent to release the vessel or its crew at any time.
2. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining State shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew.

What is needed to complete the proceedings?

Substantive requirements:

• alleged violations on the prompt release of a vessel or its crew;
• detention

Procedural requirements:

• Parties have failed to agree on submitting the case to a court or tribunal within 10 days from detention,
• The flag State has not decided (registries or open registries?) of the flag State of the vessel.

To submit the application of prompt release to such “court or tribunal”