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REVUE BELGE DE DROIT INTERNATIONAL
2016/2 Editions BRUYLANT, Bruxelles
20 YEARS OF THE INTERNATIONAL

TRIBUNAL FOR THE LAW OF THE SEA
(ITLOS): AN OVERVIEW
BY
Helmut TUERK*
ABSTRACT
In October 2016 the International Tribunal for the Law of the Sea (ITLOS), the
specialized international judicial body established by the United Nations Conven-
tion on the Law of the Sea (UNCLOS), celebrated its twentieth anniversary. The
Tribunal has so far dealt with 25 cases which concerned: the prompt release of
vessels and crews, provisional measures pending the constitution of an arbitral
tribunal, cases relating to the merits, and two requests for an advisory opinion.
It has established a reputation for an expeditious, efficient and cost-effective
management of cases. ITLOS has not only applied, but also interpreted and
developed the current law of the sea thereby making substantial contributions
to the development of international law, especially environmental law. Over the
past 20 years the Tribunal has undoubtedly become "an efficient instrument for
the expansion of the rule of law on the oceans".
RESUME
En octobre 2016, le Tribunal international du droit de lamer (TIDM), lorgane

international judiciaire sp6cialis6 6tabli par la Convention des Nations Unies sur
le droit de la mer (CNUDM), a c6l6br6 son vingtieme anniversaire. Jusqu'a pr6-
sent, le Tribunal a trait6 25 affaires qui ont concern6: la prompte mainlev6e des
navires et la prompte lib6ration de leurs 6quipages, des mesures conservatoires en
attendant la constitution d'un tribunal arbitral, des affaires sur le fond et deux
demandes pour un avis consultatif. Le TIDM a 6tabli une r6putation pour traiter
les affaires d'une maniere exp6ditive, efficace et 6conomique. I1 n'a pas seulement
appliqu6 mais aussi interprt6 et d~velopp6 le droit de la mer en vigueur et a ainsi
apport6 des contributions substantielles au d6veloppement du droit internatio-
nal, surtout du droit de lenvironnement. Au cours des vingt dernieres ann6es le
Tribunal est sans doute devenu ( un instrument efficace pour l'expansion de la
regle de droit sur le oc6ans #.
* The author is a former Judge and Vice-President of ITLOS. This article is based on H. TUERK,
Reflections on the Contemporary Law of the Sea, Chapter VII, Leiden/Boston, Martinus Nijhoff,
123-137 (2012). Opinions expressed in the article are personal.
HELMUT TUERK
INTRODUCTION
In October 2016 the International Tribunal for the Law of the Sea (ITLOS)
celebrated its twentieth anniversary at its seat in Hamburg. Twenty years
after the Tribunal began its work seems an appropriate time to review its
functioning and to give an overview of its jurisprudence.
ITLOS is the specialized international judicial body, established by the
United Nations Convention on the Law of the Sea (UNCLOS) (1) for the
settlement of disputes concerning the interpretation or application of the
Convention, and for the rendering of advisory opinions. (2) It is the largest
world-wide judicial body, composed of 21 judges "with recognized compe-
tence in the field of the law of the sea". (3) In view of the vast expanse of the
world's oceans and seas ITLOS has the largest geographical jurisdiction in
the world, besides the International Court of Justice (ICJ). (4)
Annex VI to the Convention contains the Statute of ITLOS which is, how-
ever, only one of four means for the settlement of disputes entailing bind-
ing decisions. The other alternative means are the ICJ, an arbitral tribunal
constituted in accordance with Annex VII and a special arbitral tribunal
under Annex VIII for certain categories of disputes fisheries, protection
and preservation of the marine environment, marine scientific research or
navigation, including pollution from vessels and dumping. (5) Such flexibility
as to the choice of fora available to States parties was indispensable in order
to achieve consensus on compulsory dispute settlement at the Third United
Nations Conference on the Law of the Sea. (6)
A major reason for the establishment of a new Tribunal with full compe-
tence concerning law of the sea disputes was the reluctance of a considera-
ble number of States to have such disputes decided solely by the ICJ or by
arbitral tribunals. Whereas the ICJ is a world court in general, the Tribunal
(1) United Nations Convention on the Law of the Sea, December 10, 1982, 1833 UNTS 3 (here-
inafter referred to as 'UNCLOS').
(2) See also P. CHANDRASEKHARA RAO, "ITLOS: The First Six Years", in A. VON BOGDANDY,
R. WOLFRUM (eds), 6 Max Planck Yearbook of United Nations Law, The Hague/London/New York,
Kluwer International Law, 183-300, p. 185 (2002); see further L.D. M. NELSON, "Reflections on the
1982 Convention on the Law of the Sea", in D. FREESTONE, R. BARNES, D. ONG (eds), Law of the Sea:
Progress and Prospects, Oxford/New York, Oxford University Press, p. 35 (2006).
(3) See Art. 2 (1) Annex VI to UNCLOS.
(4) See H. TUERK, "The Contribution of ITLOS to International Law", 2612 Penn State Interna-
tional Law Review, 289-316, p. 291 (2007).
(5) See Art. 287 (1) UNCLOS. To date there have been no instances of disputes being referred to
arbitration in accordance with Annex VIII. Given that only eleven States parties to UNCLOS have
so far selected Annex VIII arbitration as one of their preferred means of settlement, the chances of
a dispute being referred to such arbitration are currently rather small; see R. CHURCHILL, "Dispute
Settlement under the UN Convention on the Law of the Sea: Survey for 2008", 2414 International
Journal of Marine and Coastal Law, 603-616, p. 614 (2009).
(6) N. KLEIN, Dispute Settlement in the United Nations Convention on the Law of the Sea,
Cambridge, Cambridge University Press, p. 54 (2005).
20 YEARS OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA 451
can certainly be regarded as a world court for the law of the sea. (7) It should
also be noted that even States that are not parties to UNCLOS may become
parties to cases before it. (8)
Part XV of UNCLOS (9) deals with the settlement of disputes and imposes
an obligation on States parties to settle disputes by peaceful means. Its Sec-
tion 2 provides for compulsory procedures with binding decisions. (10) Prior
to the resort to such procedures, States parties must have recourse to alter-
native methods of dispute settlement. Section 1 of Part XV permits them to
utilize a wide range of peaceful methods, including settlement under sepa-
rate agreements. Negotiation and settlement through diplomatic channels is
emphasized through the obligation to exchange views. The use of conciliation
is also encouraged through the inclusion of a separate procedure in Annex V
to UNCLOS. (11)
Furthermore, States have the possibility to utilize procedures entailing
binding decisions, under general, regional or bilateral agreements instead of
those enshrined in Part XV. (12) States parties are thus accorded a great deal
of flexibility in choosing methods for dispute resolution, and remain complete
masters regarding the manner of settling their disputes peacefully. (13) The
underlying rationale for the creation of such an innovative, far-reaching and
complex system of dispute settlement was undoubtedly the wish to safeguard
the many delicate compromises enshrined in the Convention and to secure,
as far as possible, its uniform interpretation and application. (14)
The principal provision of Part XV is Article 287, which outlines various
procedures available to parties to settle their disputes peacefully through the
(7) P. CHANDRASEKHARA RAO, "ITLOS: The Conception of the Judicial Function", in

H.P.HESTERMEYER & D. KONIG et al.(eds), Coexistence, Cooperationand Solidarity: Liber Amicorum
Ridiger Wolfrum, Leiden/Boston, Martinus Nijhoff Publishers, p.6 (2011).
(8) Id., p. 4.
(9) See Arts. 279-299 UNCLOS.
(10) See also T. TREVES, "The Exclusive Economic Zone and the Settlement of Disputes", in
E. FRANCKX & P. GAUTIER (eds), The Exclusive Economic Zone and the United Nations Convention
on the Law of the Sea, 1982-2000: A Preliminary Assessment of State Practice,Bruxelles, Bruylant,
p.79 (2003). Treves underlines the fact that compared to the provisions concerning the settlement of
"
disputes contained in other 'codification conventions', the system for the settlement of disputes in
the United Nations Convention on the Law of the Sea is remarkably different, because it provides,
as a rule, the possibility of compulsory settlement".
(11) For the first time, compulsory conciliation under Annex V was initiated by Timor-Leste
against Australia. On 19 September 2016, the Conciliation Commission issued its decision on compe-
tence allowing the Conciliation to go forward. See Permanent Court of Arbitration, Press Release,
Conciliation between the Democratic Republic of Timor-Leste and the Commonwealth of Australia,
The Hague, 26 September 2016; see also: www.pcacases.com/web/view/132.
(12) See KLEIN, Dispute Settlement in UNCLOS (note 6), p. 31.
(13) Id., p.32.
(14) R. CHURCHILL, "Some Reflections on the Operation of the Dispute Settlement System of
the UN Convention on the Law of the Sea During its First Decade", in D. FREESTONE, R. BARNES
& D.M. ONG (eds), Law of the Sea Progress and Prospects, Oxford/New York, Oxford University
Press, p.388 (2006).
HELMUT TUERK
compulsory mechanisms established by it. (15) This Article provides that a

State party, when signing, ratifying or acceding to the Convention or at any
time thereupon, is free to choose one or more of the aforementioned four means
for the settlement of disputes, by submission of a written declaration to the UN
Secretary- General. So far only 52 States have made such a declaration 39 of
which have chosen ITLOS as preferred procedure or as one possibility. (16) In
the absence of such a declaration or if the parties have not accepted the same
procedure under Article 287, they are deemed to have accepted arbitration
under Annex VII to UNCLOS, which is thus the default procedure.
I. COMPOSITION AND STRUCTURE OF ITLOS(17)
Following the system of the ICJ, the judges of ITLOS are elected by the
States parties to the Convention for a term of nine years, with the possibility
of re-election. The term of one third of the members of the Tribunal expires
every three years. (18) The composition of ITLOS must ensure adequate
representation of the principal legal systems of the world as well as an equi-
table geographical distribution. (19) In comparison with the ICJ the number
of judges has been increased in order to give added weight to developing
countries. (20) So far, the geographical origin of the judges, however, seems
to have had little influence, if any at all, on the decisions of ITLOS. (21)
The States parties to the Convention have agreed to elect five judges each
from Africa and Asia, four each from Latin American and Caribbean States,
three from the Group of Western European and Other States and three from
the Eastern European States Group. (22) One seat, that had previously been
assigned to the Western European and Other States, is now floating between
(15) DR.ROTirWELL, "The International Tribunal for the Law of the Sea and Marine Environ-
mental Protection: Expanding the Horizons of International Ocean Governance", 17 Ocean Year-
book, 26-55, p.32 (2003).
(16) For a list of these Declarations see: www.un.org/Depts/los/convention-agreements/conven-
tion declarations.htm (last visited 4 March 2017). The Russian Federation, Ukraine and Belarus
have, however, recognized ITLOS only for prompt release cases and St. Vincent and the Gren-
adines only forthe arrest and detention of vessels. The declarations of Bangladesh and Panama are
restricted to a specific dispute.
(17) See Statute of the International Tribunal for the Law of the Sea, Annex VI to UNCLOS; see
also the ITLOS publication "A Guide to Proceedings before the Tribunal" (2009/1), in particular
p.3-9, available at:www.itlos.org.
(18) Art. 5 (1) Annex VI to UNCLOS.
(20) A.E. BOYLE, "The International Tribunal for the Law of the Sea and the Settlement of
Disputes", in J.J. NORTON et al. (eds), The Changing World of InternationalLaw in the Twenty-First
Century, The Hague/London/Boston, Kluwer International Law, p. 118 (1998).
(21) See also R. WOLFRUM, "Der Internationale Seegerichtshof', in W. GRAF VITZTmUM (ed.),
Handbuch des Seerechts, Munchen, Verlag C. H. Beck, p.476 (2006).
(22) Id.
that Group and the African and the Asian Group. (23) If the Tribunal does
not include upon the bench a judge of the nationality of a party to a dispute,
that party may designate a person of its choice to sit as a judge ad hoc (24)
which has become general practice.
The President and the Vice-President of ITLOS are elected by secret bal-
lot by a majority of the members for a period of three years and may be re-
elected. (25) Re-election has so far not happened in practice as the Tribunal has
been following a system of rotation among the different regional groups. The
administrative organ of ITLOS is the Registry, headed by the Registrar, and
is composed of a small international staff. The Registrar and his deputy are
elected by the judges for a term of five years and may also be re-elected. (26)
The President and the Registrar have to reside at the seat of the Tribunal (27)
while the other judges only travel to Hamburg for judicial and administrative
sessions. The reason for such a provision is that the negotiators of the Conven-
tion believed that the low workload during the first years of the existence of the
Tribunal would not justify a permanent presence of the judges at its seat. (28)
The Statute of ITLOS provides for the establishment of a Seabed Disputes
Chamber as well as special chambers for dealing with particular disputes or
categories of disputes. (29) The Seabed Disputes Chamber, which is a "tribu-
nal within a tribunal", consists of 11 judges, each of whom is selected every
three years by a majority of the members of the Tribunal. (30) Following
a similar system of the ICJ, ITLOS established several special chambers:
the Chamber of Summary Procedure, composed of the President, the Vice-
President, acting ex officio, three other members and two alternates, the
Chamber for Fisheries Disputes and the Chamber for Marine Environment
Disputes each consisting of seven members of the Tribunal and the Chamber
for Maritime Delimitation Disputes comprising eight judges. A judgment
given by any of the special chambers is considered to have been rendered by
the full Tribunal. (31) More important in practice, however, is the possibil-
ity to form an ad hoc special chamber, consisting of at least three members,
who may be chosen from among the members of the Tribunal; the parties
may likewise designate ad hoc judges. (32) The cases until now dealt with
(23) See P. GAUTIER, "The International Tribunal for the Law of the Sea: Activities in 2009",
914 Chinese J. Intl L., 783-798, p.786 (2010).
(24) See Art. 17 (2) and (3) Annex VI to UNCLOS.
(26) H. TUERK, "Zwolf Jahre Internationaler Seegerichtshof", in P. FiSCHER, M.M. KAROLLUS
and S. STADLMEIER (eds), Die Welt im Spannungsfeld zwisehen Regionalisierung und Globalisierung.
Festsehriftfur Heribert Franz Koec, Wien, Linde Verlag, 479-498, p. 485 (2009).
(28) WOLFRUM, "Der Internationale Seegerichtshof" (note 21), p.418.
(29) See Art. 14, respectively 15, Annex VI to UNCLOS.
(30) Art. 35 Annex VI to UNCLOS.
(32) See Arts. 19-22 Rules of the Tribunal, ITLOS doc. ITLOS/8 (17 March 2009), available
at:www.itlos.org.
HELMUT TUERK
by ITLOS have been submitted to the full Tribunal, with two exceptions
of ad hoc special chambers (33) as well as one request for an advisory opin-
ion submitted to the Seabed Disputes Chamber on the basis of its exclusive
jurisdiction. (34)
Recourse to ITLOS involves no costs for the States parties to UNCLOS.
When a dispute involves an entity that is neither a State party nor the Inter-
national Seabed Authority (ISA), the Tribunal fixes the amount which that
party must contribute towards the expenses of the Tribunal. (35) Other costs,
notably the fees for legal representation, are borne by the party incurring
them, unless decided otherwise by the Tribunal. (36) A trust fund to assist
developing States to settle their disputes through the Tribunal has been
established by the UN Secretary-General, following a decision of the General
Assembly. (37)
II. THE JURISDICTION OF ITLOS
The jurisdiction of ITLOS, in principle, includes any dispute relating to

the law of the sea, such as disputes regarding maritime boundaries, fisher-
ies, sea pollution or marine scientific research. Its jurisdiction is, however,
subject to limitations spelled out in Article 297 UNCLOS that relates to the
exercise of certain discretionary powers by the coastal State, in particular,
disputes concerning its sovereign rights in respect of fisheries in the Exclusive
Economic Zone (EEZ). Furthermore, according to Article 298 (1), exceptions
to the compulsory procedures may also be made by virtue of written dec-
larations for matters concerning sea boundary delimitations, historic bays
or titles, military activities, certain enforcement activities in the exercise of
sovereign rights in the EEZ and disputes in which the UN Security Council
is exercising its functions under Chapter VII of the Charter.
States parties have so far used article 298 of the Convention rather restric-
tively as to date only 37 such declarations have been made, (38) in particu-
lar by State parties with unresolved maritime boundary issues. It should
be borne in mind that in accordance with the well- established principle of
(33) Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the
South-Eastern Pacific Ocean (Chile v. European Union); Dispute concerning delimitation of the
maritime boundary between Ghana and Cote d'Ivoire in the Atlantic Ocean, (Ghana v. Cote d'Ivoire).
(34) Request for Advisory Opinion by the Council of the ISA relating to the responsibilities and
obligations of States sponsoring persons and entities with respect to activities in the Area (note 184).
(36) See Art. 34 Annex VI to UNCLOS.
(37) UN General Assembly Resolution 55/7 of 30 October 2000, available at: https://docu-
ments-dds-ny.un.org/doc/UNDOC/GEN/NOO/559/81/PDF/N0055981.pdf?OpenElement (last
visited 4 March 2017).
(38) See www.un.org/Depts/los/convention-agreements/convention-declarations.htm (last
visited 4 March 2017).
"compdtence de la compdtence", it is the responsibility of the court or tribu-

nal concerned to determine whether or not it has jurisdiction in a dispute
relating to the interpretation and application of these provisions. (39) In
two instances, ITLOS has compulsory jurisdiction: Article 290(5) regard-
ing provisional measures, and Article 292 concerning the prompt release of
vessels and/or crews, independently of the choice of procedure mechanism
under Article 287.
It is important to note that a State party is supposed to have accepted
compulsory procedure by the mere fact of having ratified or adhered to
UNCLOS in respect of any dispute arising thereunder, unless it expressly
excludes the application ofthis type of procedure within the limits set by the
Convention. This is a significant innovation with respect to the traditional
compulsory jurisdiction system, which requires separate consent, as is the
case with Article 36(2) of the Statute of the ICJ. (40)
Submissions to ITLOS may also be made on a consensual basis through an
ad hoc special agreement, a traditional possibility referred to in Article 24(l)
of the Statute, which has been made use of in several cases. A variant thereof
is the forum prorogatum where one party makes a unilateral application
and the other party to the dispute consents. (41) Article 22 of the Statute
further allows ITLOS to exercise jurisdiction over disputes relating to the
interpretation or application of treaties already in force which concern the
subject-matter covered by the Convention, provided that all the parties to
that treaty so agree. The jurisdiction of ITLOS may furthermore derive from
relevant clauses included in international agreements relating to the law
of the sea. (42) At present, there are 15 multilateral agreements (43) the
best known is the 1995 Fish Stocks Agreement (44) containing provisions
making specific reference to the dispute settlement procedures of Part XV
of UNCLOS and therewith conferring jurisdiction on the Tribunal. With
(39) Art. 288 (4) UNCLOS; Art. 58 ITLOS Rules; see also, Judge Shunji Yanai, President of
ITLOS, Statement at the Plenary of the Sixty-Eighth Session of the UN General Assembly,
9 December 2013, p.3, available at:www.itlos.org.
(40) TUERK, Reflections on the ContemporaryLaw of the Sea, Chapter VII (note *),
p. 130.
(41) R. WOLFRUM, "The Settlement of Disputes Before ITLOS: A Progressive Development of
International Law or Relying on Traditional Mechanisms?", 51 Japanese Yearbook of International
Law, 140-163, p. 148 (2008).
(42) See Guide to Proceedings before the Tribunal (note 17), p. 6.
(43) See ITLOS (ed.), Yearbook 2015, Leiden/Boston, Brill, 2017, Annex III (Relevant Provisions
of International Agreements Conferring Jurisdiction on the Tribunal), pp. 228-241 ("Multilateral
Agreements"). Three of these multilateral agreements have, however, not yet entered into force.
(44) Agreement for the Implementation of the Provisions of the United Nations Convention on
the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling
Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 UNTS 3 (hereinafter referred to
as the Fish Stocks Agreement), available at:http://www.un.org/Depts/los/convention-agreements/
convention overview fish stocks.htm.
HELMUT TUERK
respect to these agreements, the procedures of Part XV apply, whether a

party to the agreement is a State party to UNCLOS or not. (45)
The law to be applied by ITLOS comprises the Convention, and other
rules of international law not incompatible with it, (46) while there is no
such hierarchy of norms to be taken into account by the ICJ. (47) This does
not, however, preclude the Tribunal from holding jurisdiction to determine
a matter ex aequo et bono, if the parties so agree. (48) Decisions are final and
the parties to the dispute are required to comply with them, which has gen-
erally been the case. The decisions, however, have no binding force beyond
the parties to the dispute, (49) although they may be quite significant for the
development of the law of the sea in general, and may, in addition, influence
the future interpretation of this body of law. It should also be noted that
parties have no recourse to appeal against a decision of the Tribunal. (50)
ITLOS is open to States parties to UNCLOS, other States, as well as other
entities, such as international organizations and natural or legal persons in
any case expressly provided for in Part XI of UNCLOS regarding explo-
ration and exploitation of the international seabed "Area" or in any case
submitted pursuant to any other agreement conferring jurisdiction on the
Tribunal that is accepted by all the parties to that case. (51) Although the
jurisdiction of ITLOS is not as broad rationemateriaeas that of the ICJ, being
confined to matters provided for in the Convention and related instruments,
it is certainly more comprehensive ratione personae, as in cases before the
Court only States may be parties. (52) Access is probably the most significant
difference between the Tribunal and the ICJ. (53)
The Seabed Disputes Chamber has been granted exclusive and compulsory
jurisdiction over disputes arising out of the exploration and exploitation of
the "Area", independent of any choice of procedure made under Article 287
(45) Judge R. Wolfrum, President of ITLOS, Statement on the Report of the Tribunal to the
Sixteenth Meeting of States parties to UNCLOS, 19 June 2006, p. 7, available at: www.itlos.org.
(46) See Art. 293 (1) UNCLOS.
(47) See also R. WOLFRUM, "Advisory Opinions: Are They a Suitable Alternative for the Settle-
ment of International Disputes?", in R. WOLFRUM and I. GATZSCHMANN (eds), InternationalDispute
Settlement: Room for Innovations?,Heidelberg, Springer Verlag, 35-67, pp. 51-55 (2012). It should be
added that if the jurisdiction of the ICJ in a particular case is based on Art. 287 UNCLOS the Court
is likewise bound by Art. 293.
(48) Art. 293 (2) UNCLOS.
(49) See Art. 296 UNCLOS.
(50) ROTHWELL, "ITLOS and Marine Environmental Protection" (note 15), p. 34.
(51) See Art. 20 Annex VI to UNCLOS.
(52) See Art. 34 (1) of the Statute of the ICJ, available at: www.icj-cij.org.
(53) A.E. BOYLE, "Dispute Settlement and the Law of the Sea Convention: Problems of Frag-
mentation and Jurisdiction", 4611 International& Comparative Law Quarterly,36-54, p. 51 (1997);
see also R. WOLFRUM, "Verfahren zur Freigabe von Schiffen vor dem Internationalen Seegericht-
,
shol in R. LAGONI & M. PASCHKE (eds), Seehandelsreehtund Seereeht: FestsehriftfurRolf Herber zum
70. Geburtstag, Hamburg, Lit Verlag, p. 568 (1999).
ofUNCLOS. (54) The particular categories of disputes over which that Cham-
ber has jurisdiction are listed in Article 187. This includes disputes between
States parties concerning the interpretation or application of Part XI and
the Annexes relating thereto. In such cases, the dispute may at the request
of the parties, be submitted to a special chamber of the Tribunal, but it may
also be submitted to an ad hoc chamber of the Seabed Disputes Chamber at
the request of any party. (55) Disputes between a State party and the ISA
also fall within the scope of jurisdiction of this Chamber as well as disputes
between the ISA and a prospective contractor and disputes involving the
alleged liability of the Authority for any damage arising out of wrongful
acts. Furthermore, an arbitral tribunal dealing with a commercial dispute
concerning activities in the "Area" must refer any question of the interpreta-
tion of Part XI of UNCLOS and the Annexes relating thereto to the Seabed
Disputes Chamber. (56)
It is important to note that the decisions of the Seabed Disputes Cham-
ber are enforceable in the territories of the States parties in the same man-
ner as judgments or orders of the highest court of the State party in whose
territory the enforcement is sought. (57) This provision which makes
these decisions enforceable as a domestic matter (58) has given rise to
constitutional difficulties in certain countries as such direct enforcement of
international judgments is rather exceptional. This rule, however, clearly
reflects the intention of the framers of UNCLOS to make that Chamber the
guarantor for upholding the rule of law regarding deep seabed activities on
a worldwide scale. In that respect its functions might well be compared to
that of a constitutional court. (59)
The Seabed Disputes Chamber must furthermore, as matter of urgency,
give advisory opinions at the request of the Assembly or the Council of the
ISA "on legal questions arising within the scope of their activities." (60) The
Chamber may also be requested by the Assembly of the Authority to give
an opinion as to the conformity with the Convention of a proposal on any
matter before it. (61) While the Council has already submitted one request
(54) See also Presentation by Judge H. Tuerk, Vice-President of ITLOS, at the Seminar on
Exploration and Exploitation of Deep Seabed Mineral Resources in the Area: Challenges for
Africa, and Opportunities for Collaborative Research in the South Atlantic Ocean, Abuj a, Nigeria,
24 March 2009, p. 9- 10, available at: www.itlos.org.
(55) Art. 188 (1) UNCLOS.
(56) Art. 188 (2) UNCLOS.
(57) Art. 39 of Annex VI to UNCLOS.
(58) M. H. NORDQUIST, S. ROSENNE & L. B. SOHN (eds), Virginia Commentary, Vol. V, p. 414
(1989).
(59) WOLFRUM, Advisory Opinions: Are They a Suitable Alternative for the Settlement of Interna-
tional Disputes? (note 47) p. 53.
(60) Art. 191 UNCLOS.
(61) Art. 159 (10) UNCLOS.
HELMUT TUERK
for an advisory opinion, (62) the Assembly has so far not made use of that
possibility.
Although UNCLOS does not explicitly provide for advisory jurisdiction
of ITLOS as a full tribunal, there is, nothing in its Statute or in the Conven-
tion that would exclude such jurisdiction. In order to fill this gap, ITLOS
in 1997 decided to include in Article 138 of its Rules the possibility of exer-
cising advisory jurisdiction. Accordingly, it "may give an advisory opinion
on a legal question if an international agreement related to the purposes of
the Convention specifically provides for the submission to the Tribunal of
a request for such an opinion". Such a request is to be transmitted to the
Tribunal "by whatever body [organe] is authorized by or in accordance with
the agreement to make the request". Thus far one request for an advisory
opinion has been submitted to the full Tribunal. (63)
III. THE JURISPRUDENCE OF ITLOS (64)
A. Provisionalmeasures
ITLOS may be requested to prescribe provisional measures in two situa-

tions, first according to Article 290 (1) where a dispute on the merits has been
submitted to it, and second on the basis of Article 290 (5) when such a dispute
has been submitted to an arbitral tribunal, pending its constitution. (65)
When provisional measures have been requested by a party to a dispute that
has been submitted to an arbitral tribunal, ITLOS is empowered, pursuant to
Article 290(5) UNCLOS, to grant such measures pending the constitution of
the arbitral tribunal, unless the parties have agreed to seise another court or
tribunal within two weeks from the date of the request for provisional meas-
ures. In order to prescribe provisional measures, the Tribunal must consider
that the measures are required by the urgency of the situation and that,
prima facie, the arbitral tribunal to be constituted would have jurisdiction.
Once constituted, the tribunal to which the dispute has been submitted may
modify, revoke or affirm those provisional measures.
ITLOS may prescribe provisional measures not only to preserve the respec-
tive rights of the parties to the dispute, but also to "prevent serious harm to the
(62) See Request for Advisory Opinion submitted to the Seabed Dispute Chamber regarding
responsibilities and obligations of States sponsoring persons and entities with respect to activities
in the Area (note 184).
(63) See Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission
(note 193).
(64) See also Digest of Jurisprudence, 1996-2016, issued by ITLOS, www.itlos.org, 2016,
Compact Media Gmbh, Hamburg, made up of two parts: the first consists of a short presentation of
each case, the second sets out excerpts from the Tribunal's jurisprudence organized by topic.
(65) See Judge R. Wolfrum, President of ITLOS, Statement to the Sixth Committee of UNGA,
20 October 2006, p.5; available at:www.itlos.org.
marine environment". (66) This ground for provisional measures, which does
not require the risk of "irreparable harm", reflects the importance UNCLOS
attaches to the protection of the environment. (67) Provisional measures may
also be prescribed to prevent damage to fish stocks regulated by the Fish
Stocks Agreement. In addition, the Tribunal may follow up the measures it
has prescribed by requesting the parties to submit reports on compliance. (68)
ITLOS has to date been seised with requests for provisional measures
in nine cases: the M/V "Louisa" Case (Saint Vincent and the Grenadines
v. Kingdom of Spain) and the Dispute concerning delimitation of the mari-
time boundary between Ghana and C6te d'Ivoire in the Atlantic Ocean (Ghana
v. C6te d'Ivoire) both in connection with an application on the merits, the
other seven, pending the constitution of an arbitral tribunal: the Southern
Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), the MOX
Plant Case (Irelandv. United Kingdom), the Case concerning Land Reclama-
tion by Singapore in and around the Straits of Johor (Singaporev. Malaysia),
the "Ara Libertad" Case (Argentina v. Ghana), the "Arctic Sunrise" Case
(Kingdom of the Netherlands v. Russian Federation)and the "EnricaLexie"
Case (Italy v. India).
In the M/V "Louisa" Case, (69) Saint Vincent and the Grenadines
requested the Tribunal, in particular, to order the release of the vessel and
its tender held by Spain since 1 February 2006 for alleged violation of
Spain's historical patrimony and to order the respondent to pay the costs
incurred in connection with the request. In its Order of 23 December 2010
the Tribunal found that it had prima facie jurisdiction over the dispute and
that there was no "real and imminent risk" that irreparable prejudice may be
caused to the rights of the parties or to the marine environment on account of
degradation of the vessel, considering the assurances given in this respect by
Spain. (70) In the circumstances of the case, the Tribunal saw no requirement
to prescribe provisional measures, without in any way prejudging the ques-
tion of its jurisdiction to deal with the merits and the merits themselves. (71)
In the Dispute concerning Delimitation of the Maritime Boundary in the
Atlantic Ocean (72), C6te D'Ivoire requested a Special Chamber of the Tribu-
(66) Art. 290 (1) UNCLOS

(67) See P. GAUTIER, "Urgent Proceedings before the International Tribunal for the Law of the
Sea", 8/1 Issues in Legal Scholarship, 1-20, p. 13 (2009).
(68) Statement by Judge R. Wolfrum, President of ITLOS, to the Informal Meeting of Legal
Advisers of Ministries of Foreign Affairs, 24 October 2005, p. 5, available at:www.itlos.org.
(69) M1 V "Louisa" (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional Meas-
ures, Order of 23 December 2010, ITLOS Reports 2008-2010, p.58; ITLOS Press Releases, ITLOS
Press No.222, 12 January 2015, available at:www.itlos.org.
(70) Id., Order of 23 December 2010, para. 78.
(71) Id., para. 80.
(72) Dispute concerning delimitation of the maritime boundary between Ghana and Cote D'Ivoire in
the Atlantic Ocean (Ghana v. Cote dIvoire), Provisional Measures, Order of 25 April 2015, ITLOS
Reports 2015, p. 146; ITLOS Press Release, ITLOS/ Press No.229, 25 April 2015.
HELMUT TUERK
nal to prescribe provisional measures requiring Ghana, in particular, to take

all steps to suspend all ongoing oil exploration and exploitation operations
in the disputed area as well as to refrain from granting any new permit for
oil exploration and exploitation in that area. In its Order of 25 April 2015,
the Chamber considered that the exploration and exploitation activities, as
planned by Ghana, cause irreparable prejudice to the sovereign and exclu-
sive rights invoked by C6te D'Ivoire in the continental shelf and superja-
cent waters of the disputed area, before a decision on the merits is given by
the Special Chamber and that the risk of "such prejudice is imminent". (73)
In view of a possible risk of serious harm to the environment the Chamber
underlined that the Parties should in the circumstances "act with prudence
and caution" to prevent such harm. (74) It also held that the suspension
of ongoing activities conducted by Ghana in respect of which drilling has
already taken place would entail the risk of considerable financial loss to
Ghana and its concessionaires and could also pose a serious danger to the
marine environment. (75) In order to preserve the rights of C6te D'Ivoire,
Ghana was, however, ordered to take all necessary steps to ensure that no
new drilling either by Ghana or under its control takes place in the disputed
area. (76) Both Parties were ordered to take all necessary steps to prevent
serious harm to the environment and to cooperate to that end. (77)
In its Order the Special Chamber thus attempted to strike a delicate bal-
ance between the claims of the parties. (78) It has also been noted that this
was the first time that in a request to ITLOS for provisional measures an
explicit reference was made to the standard of proof that parties must satisfy
in order to demonstrate the existence of the rights claimed by them. (79)
What is furthermore particularly interesting in this Case is the fact that it
was the first time that provisional measures were requested in a delimitation
dispute.
In the Southern Bluefin Tuna Cases, (80) Australia and New Zealand
sought relief from ITLOS in relation to Japan's unilateral decision to con-
(73) Id., Order of 25 April 2015, para. 96.

(74) Id., para. 72.
(75) Id., para. 99.
(76) Id., paras 102 and 108 (1) a.
(77) Id., para. 108 (1) d.
(78) Y. TANAKA, "Unilateral Exploration and Exploitation of Natural Resources in Disputed
Areas: A Note on the Ghana/Cote d'Ivoire Order of 25 April 2015 before the Special Chamber of
ITLOS", Ocean Development & InternationalLaw, 46:4, 315-330, p. 326 (2015); see also F. OLORUN-
DAMI, "Provisional Measures in the Ghana /Cte d'Ivoire Maritime Boundary Delimitation Dispute;
a Commentary", InternationalEnergy Law Review, 4, 151-155 (2016).
(79) A. SARMIENTO LAmuS and R. GONZALES QUINTERO, "Request for Provisional Measures in the
Dispute concerning Delimitation of the Maritime Boundary between Ghana and Cote d'Ivoire in
the Atlantic Ocean", Current Legal Developments, International Tribunalforthe Law of the Sea: The
InternationalJournal of Marine and Coastal Law, 160-167, p. 165 (2016).
(80) Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures,
Order of 27 August 1999, ITLOS Reports 1999, p. 280; ITLOS Press Releases, ITLOS/ Press No. 28,
duct an experimental fishing programme, which was planned for a duration

of three years. The Tribunal was requested to prescribe provisional meas-
ures to the effect that Japan immediately cease its unilateral experimental
fishing of southern bluefin tuna, restrict its catch to the national quotum as
last agreed, (81) and require all parties to act consistently with the precau-
tionary principle caution and vigilance in fishing for southern bluefin
tuna pending final settlement of the dispute. In its Order of August 27, 1999,
ITLOS considered that the parties should, in the circumstances, "act with
'prudence and caution' to ensure that effective conservation measures are
taken to prevent serious harm to the stock of southern bluefin tuna". (82)
The Tribunal also stressed that "the conservation of the living resources
of the sea is an element in the protection and preservation of the marine
environment". (83) It ordered, inter alia, that the Parties should resume
negotiations without delay, with a view to reaching agreement on measures
for the conservation and management of these fish stocks, (84) and that the
parties should restrict their catches. It has been observed that the Tribunal's
intervention at the stage of provisional measures played a very significant
role in bringing the parties Australia, New Zealand and Japan back
to negotiations with each other, with the eventual result that the Southern
Bluefin Tuna Commission could be revitalized. (85)
In the MOX Plant Case, (86) ITLOS heard a dispute between Ireland and
the United Kingdom regarding the potentially harmful impact on the marine
environment of the operation of a MOX plant (87) situated at Sellafield,
United Kingdom, on the coast of the Irish Sea. Ireland submitted a request
to the Tribunal for the prescription of provisional measures. In its Order
of December 3, 2001, it found that the urgency of the situation did not, in
the short period before the constitution of the Annex VII arbitral tribunal,
require the prescription of such measures. However, it did consider that the
duty to co-operate is a "fundamental principle in the prevention of pollution
of the marine environment under Part XII of UNCLOS and under general
27 August 1999, available at:www.itlos.org; see also A. BOYLE, "Southern Bluefin Tuna Cases", in
Max Planck Encyclopedia of Public International Law, Oxford University Press, 2015.
(81) See Convention for the Conservation of Southern Bluefin Tuna, 10 May 1993, 1819 UNTS
359, available at:https://treaties.un.org/doc/Publication/UNTS/Volume"201819/volume-1819--I
31155-English.pdf.
(82) Order of 27 August 1999 (note 80), para. 77.
(83) Id., para. 70.
(84) Id., para. 90 (1), e and c.
(85) See Statement by Professor J. Crawford, Counsel in the Southern Bluefin Tuna Cases, as
quoted in the Statement by Judge R. Wolfrum, President of ITLOS, to the Informal Meeting of
Legal Advisers (note 68), p.5, available at:www.itlos.org.
(86) The "MOX Plant" Case (Ireland v. United Kingdom), Provisional Measures, Order of
3 December 2001, ITLOS Reports 2001, p. 95; ITLOS Press Releases, ITLOS/Press No. 62,
3 December 2001, available at:www.itlos.org.
(87) Such a plant recycles material from nuclear reactors and converts it into a new fuel called
MOX mixed oxide fuel intended for use as an energy source in nuclear power stations.
HELMUT TUERK
international law", and that rights arise therefrom which the Tribunal may
consider appropriate to conserve under article 290 UNCLOS. (88) The lit-
igants were therefore ordered pending a decision by the arbitral tribu-
nal to co-operate and enter into consultations in order to exchange further
information regarding the possible consequences for the Irish Sea arising
from the commissioning of the MOX plant. (89)
In this connection it should be mentioned that the European Court of
Justice in its Judgment of May 30, 2006, in the case Commission of the Euro-
pean Communities v. Ireland,(90) stated that it had exclusive jurisdiction to
rule on disputes concerning the interpretation and application of provisions
of UNCLOS which form part of the Community legal order. By bringing
proceedings under the dispute settlement procedure laid down in the Con-
vention, Ireland had failed to comply with its duty of cooperation under
the European Community and Euratom Treaties, and accordingly was in
breach of Community Law. It has been pointed out that this judgement
may seriously affect the possibility of EU Member States to make use of
the dispute settlement system of UNCLOS in disputes among of them (91)
and may also give rise to concern from the viewpoint of non-EU parties to
UNCLOS regarding the possible development of case-law on the Convention
by the European Court. (92)
The Case of Land Reclamation by Singapore in and around the Straits of
Johor (93) concerned a dispute between Malaysia and Singapore relating to
land reclamation activities carried out by Singapore which, according to
Malaysia, impinged upon its rights in and around the Straits of Johor, sepa-
rating Malaysia from the island of Singapore. Malaysia claimed that Singa-
pore's actions were in breach of its duties under international law, including,
inter alia, its duties to preserve and protect the marine environment. In its
Order of October 8, 2003, ITLOS prescribed provisional measures requiring
Malaysia and Singapore to cooperate and enter into consultation to estab-
lish promptly a group of independent experts to study the effects of Singa-
pore's land reclamation. (94) Singapore was, furthermore, directed not to
(88) Order of 3 December 2001 (note 86), para. 82.

(89) Id., para. 89 (1).
(90) Case C-459/03, Commission of the European Communities v. Ireland, 2006 ECR 1-04635; see
also N. LAVRANOS, "The MOX Plant' judgment of the ECJ: How exclusive is the jurisdiction of the
ECJ?", 15110 European Environmental Law Review, 291-296 (2006).
(91) See Statement by Judge R. Wolfrum, President of ITLOS, on 'The Value for Hamburg of
ITLOS Profile, Expectations and Reality' at the Ubersee Club, Hamburg, 27 February 2008,
p. 7, available at: www.itlos.org.
(92) See T. TREVES, "The European Community and the European Union and the Law of the
Sea: Recent Developments", 48 Indian Journal of InternationalLaw, 1-20, p. 19 (2008).
(93) Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia
v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports (2003), p. 10; ITLOS
Press Releases, ITLOS/Press No. 84, 8 October 2003, available at: www.itlos.org.
(94) Id., Order of 8 October 2003, para. 106 (1) a.
conduct its land reclamation in ways that might cause irreparable prejudice
to the rights of Malaysia or serious harm to the marine environment. (95)
On April 26, 2005, Malaysia and Singapore settled their dispute by signing
an agreement to this effect. The provisional measures ordered by ITLOS
were obviously instrumental in bringing the parties together and providing
a successful diplomatic solution to the dispute. (96)
In the "Ara Libertad" Case (97) Argentina submitted a request to ITLOS
for provisional measures, concerning the detention of the Argentine frigate
ARA Libertad in the port of Tema, near Accra, Ghana, on 1 October 2012,
claiming that the frigate, on an official visit to Ghana, was illegally detained
pursuant to an Order rendered by a Ghanaian court in violation of interna-
tional law and, in particular, of the immunities enjoyed by warships. In its
Order of 15 December 2012, the Tribunal considered that under "general
international law", (98) a warship enjoys immunity and that "any act which
prevents by force a warship from discharging its mission and duties is a
source of conflict that may endanger friendly relations among States". (99)
It therefore unanimously held that Ghana must "forthwith and uncondi-
tionally" release the frigate "ARA Libertad", ensure that the frigate, its
Commander and crew are able to leave the port of Tema and the maritime
areas under the jurisdiction of Ghana. (100) The Order of ITLOS was com-
plied with by Ghana within a few days. Although it has also been stated that
with this decision the Tribunal managed to prejudice the final result of the
arbitration(101) the Order has nevertheless been generally acclaimed as it
clarified that warships enjoy immunity from foreign jurisdiction also when
in internal waters or ports. (102)
(95) Id., para. 106 (2).

(96) Statement by Judge R. Wolfrum, President of ITLOS, on the occasion of the Tenth Anni-
versary Ceremony at the Vertretung der Freien und Hansestadt Hamburg, Berlin, 18 September
2006, available at: www.itlos.org.
(97) The "Ara Libertad" Case (Argentina v. Ghana), Provisional Measures, Order of 15 December
2012, ITLOS Press Releases, ITLOS/Press No. 188, 15 December 2012, available at: www.itlos.org.
(98) Id., Order of 15 December 2012, para. 98.
(99) Id., para. 97.
(100) Id., para. 108.
(101) T.E ROBINS, "The Peculiar Case of the Ara Libertad: Provisional Measures and Prejudice
to the Arbitral Tribunal's Final Result", 20 Harv. Negot. L. Rev., 265-288, pp. 285-286 (Spring
2015).
(102) See also M. LANDO, "State Jurisdiction and Immunity of Warships in the Ara Libertad
Case", Japanese Yearbook of International Law, Vol. 58, 236-355 (2015); see further M.G. KOHEN,
"Is the Internal Waters Regime Excluded from the United Nations Convention on the Law of the
Sea", in L. DEL CASTILLO (ed.), Law of the Sea from Grotius to the InternationalTribunalfor the Law
of the Sea, Liber Amicorum Judge Hugo Caminos, Leiden/Boston, Brill Nijhoff, 110-124 (2015); see
also S. RUIZ-CERUTTI, "The UNCLOS and the Settlement of Disputes: The 'ARA Libertad' Case",
in id., 713-722; see further M. C. MRASSOU, "The 'ARA Libertad"', in Max Planck Encyclopedia of
Public InternationalLaw, Oxford University Press (2015).
HELMUT TUERK
The "Arctic Sunrise" Case (103) concerned the arrest and detention of the
vessel "Arctic Sunrise", an icebreaker operated by Greenpeace International
flying the flag of the Netherlands, and its crew by authorities of the Russian
Federation. The ship was used to stage a protest directed against a Russian
offshore ice-resistant fixed platform in the Barents Sea. The Netherlands
had instituted arbitral proceedings under Annex VII against Russia and
in that context requested ITLOS to order the release of the Arctic Sunrise
and the detained persons upon the posting of a bond. Russia informed the
Tribunal not to accept the arbitration procedure on the basis of a declaration
by which it does not accept procedures provided for in Section 2 of Part XV
of the Convention, entailing binding decisions with respect to disputes [...]
concerning law-enforcement activities in regard to the exercise of sovereign
rights or jurisdiction. (104) It thus also refused to appear before ITLOS.
In its Order of 22 November 2013, the Tribunal, in line with the decisions
and the practice of the ICJ, considered that the absence of a party or failure
of a party to defend its case does not constitute a bar to the proceedings and
does not preclude the prescription of provisional measures, provided that
the parties have been given an opportunity of presenting their observations
on this subject. (105) The Russian declaration, with respect to law enforce-
ment activities under Article 298 (1) UNCLOS, prima facie, applies only to
disputes concerning scientific research or fisheries and could not therefore
exclude the compulsory procedures in Section 2 of Part XV of UNCLOS.
The Tribunal thus held that pending a decision by the arbitral tribunal, the
Russian Federation must immediately release the vessel "Arctic Sunrise" and
all persons detained upon the posting of a bond or other financial security by
the Netherlands in the amount of 3.6 million Euros. Thereupon, the Russian
Federation must ensure that the vessel and the persons concerned are allowed
to leave the territory and maritime areas under Russian jurisdiction. (106)
It has been noted that this was the first case in which the Tribunal was
requested in the framework of provisional measures proceedings to order
the release of a vessel and its crew from detention for alleged violations of
the maritime regulations of a coastal State applicable to its EEZ. (107) This
was furthermore the first time that a State party refused to appear before
ITLOS and did not follow-up on the Order of the Tribunal. (108) The per-
(103) The "Arctic Sunrise" Case (Kingdom of the Netherlands v. Russian Federation), Provisional
Measures, Order of 22 November 2013, ITLOS Reports 2013, p. 230; ITLOS Press Releases, ITLOS/
Press No. 205, 22 November 2013, available at:www.itlos.org.
(104) See id., Order of 22 November 2013, para. 9.
(105) Id., para. 48.
(106) Id., para. 105.
(107) E. LAINA, "The 'Arctic Sunrise' Case Provisional Measures Ordered", Environmental
Policy and Law, 45/6,266-269, p.268 (2015).
(108) See also, T.M.NDIAYE, "Non-Appearance before the International Tribunal for the Law of
the Sea", Indian Journalof InternationalLaw, Vol. 53, No.4, Oct.-Dec. 2013, 545-565.
sons detained were, however, released shortly thereafter on the basis of a

Russian amnesty law and after a period of several months the vessel was
also returned.
The M1/V "EnricaLexie" Case (109) related to an incident when two mem-
bers of the Italian Marines deployed on board to protect that vessel against
piracy, killed two Indian fishermen having mistakenly identified their craft
as a pirate ship. Indian authorities had instructed the vessel to sail to the port
of Kochi were the two Marines were arrested and placed in custody. Italy, in
this connection, requested provisional measures from ITLOS against India.
In its Order of 24 August 2015, the Tribunal held that, pending a decision by
the Annex VII arbitral tribunal, Italy and India must both suspend all court
proceedings and refrain from initiating new ones which might aggravate or
extend the dispute or might jeopardize or prejudice the carrying out of any
decision which the arbitral tribunal may render. (110)
As far as the cases regarding provisional measures related to the protection
of the marine environment ITLOS was able to contribute to the development
of international environmental law, in particular by emphasizing the duty of
cooperation (111) and the notion of prudence and caution, as essential com-
ponents of environmental obligations. In its respective Orders the Tribunal
followed the line of adopting a pragmatic approach and prescribing measures
which, in its view, would assist the parties to find a solution. (112) As regards
the other cases of provisional measures an important focus of the Tribunal
was the mitigation of humanitarian hardship imposed upon seafarers.
B. Prompt release of vessels and crews (113)
According to Article 73(1) UNCLOS coastal States are entitled to board,

inspect and arrest any vessel within their 200 nautical mile EEZ where
around 900% of commercial fishing takes place (114) in order to enforce
(109) The "EnricaLexie" Incident (Italy v. India), Provisional Measures, Order of 24 August
2015, ITLOS Reports 2015, p. 176; ITLOS Press Releases, ITLOS/Press No. 237, 24 August 2015,
available at: www.itlos.org.
(110) Id., Order of 24 August 2015, para. 141.
(111) See also P. WECKEL, "Les premieres applications de l'article 290 de la Convention sur le
droit de la mer relatif a la prescription de mesures conservatoires", 10914 Revue generale de droit
internationalpublic, 829-858, p. 838 (2005).
(112) R. WOLFRUM, "The Tenth Anniversary of International Tribunal for the Law of the Sea
213 Romanian Journal of InternationalLaw, 66-78, p. 76 (2006).
(113) See also A. K. ESCHER, "Release ofVessels and Crews before The International Tribunal for
the Law of the Sea", 312 The Law and Practice of InternationalCourts and Tribunals: A Practition-
er's Journal,E. VALENTIA-OSPINA (ed.), 205-374 (2004).
(114) See R. CHURCHILL, "The Jurisprudence of the International Tribunal for the Law of the
Sea Relating to Fisheries: Is There Much In The Net?", 2213 InternationalJournalof Marine and
Coastal Law, 383-424, p. 386 (2007), and Summary of the Symposium on the Jurisprudence of
the International Tribunal for Law of the Sea: Assessments and Prospects, Hamburg, Germany,
29-30 September, 2006, available at: www.itlos.org.
HELMUT TUERK
their laws and regulations in respect of the living resources of that area. (115)
Article 73(2) requires arrested vessels and their crews to be promptly released
upon the posting of a reasonable bond or other security. Whenever it is
alleged that the detaining State has not complied with that duty, the flag
State of the vessel is entitled under Article 292 a provision which consti-
tutes a counterpart to the rights granted to coastal States to request the
release of the vessel before any court or tribunal agreed upon by the parties
or, failing such agreement within 10 days from the time of the detention,
before a court or tribunal accepted by the detaining State under Article 287
or before ITLOS, unless the parties otherwise agree. (116)
Thus far, nine applications for the release of vessels and/or crew have been
submitted to the Tribunal in accordance with Article 292: the M/V "Saiga"
Case (Saint Vincent and the Grenadines v. Guinea), the "Camouco" Case
(Panama v. France), the "Monte Confurco" Case (Seychelles v. France), the
"GrandPrince" Case (Belize v. France),the "ChaisiriReefer 2" Case (Panama
v. Yemen), the "Volga" Case (Russia v. Australia), the "Juno Trader" Case
(Saint Vincent and the Grenadinesv. Guinea-Bissau),the "Hoshinmaru"Case
(Japanv. Russia Federation) and the "Tomimaru" Case (Japanv. Russian
Federation).
The first prompt release case concerned an application by Saint Vincent
and the Grenadines for the prompt release of the oil tanker M/V "Saiga"and
its crew from detention in Conakry, Guinea, (117) which had been arrested
for alleged smuggling activities off that country's coast. In its Judgment of
4 December 1997 ITLOS prescribed the prompt release of the vessel and its
crew from detention upon the deposit of a bond of US$ 400,000. (118) It also
held that a State may make an application under Article 292 UNCLOS not
only where no bond has been set but also where it considers that the bond
set by the detaining State is unreasonable.
In the Case of the fishing vessel "Camouco", (119) ITLOS was requested
by Panama to order the prompt release of the vessel and its Master, which
had been arrested for alleged unlawful fishing in the EEZ of the Crozet
Islands French Southern and Antarctic Territories. In its Judgment of
7 February 2000, the Tribunal ordered the prompt release of the vessel upon
the deposit of a financial security of French Francs (FF) 8 million (approxi-
(115) KLEIN, Dispute Settlement in UNCLOS (note 6), p. 86.

(116) Art. 292 (1) UNCLOS.
(117) MI V "Saiga" (Saint Vincent and the Grenadines v. Guinea), Prompt Release, Judgment
of 4 December 1997, ITLOS Reports 1997, p. 16; ITLOS Press Releases, ITLOS/Press No. 10,
4 December 1997, available at: www.itlos.org; see also L. A. DE LAFAYETTE, "Saiga Cases", in Max
Planck Encyclopedia of Public InternationalLaw, Oxford University Press, 2015.
(118) Id., Judgment of 4 December 1997, para. 86 (5).
(119) The "Camouco" Case (Panamav. France), Prompt Release, Judgment of 7 February 2000,
ITLOS Reports 2000, p. 10; ITLOS Press Releases, ITLOS/Press No. 35, 7 February 2000, available
at: www.itlos.org.
mately US$1.2 million) although France had sought that the bond be no less
than FF 20 million. The Tribunal also observed that Article 292 UNCLOS
provides for a quick, independent remedy during which local remedies as
France had argued could normally not be exhausted.
The Case concerning the vessel "Monte Confurco" (120) was brought by the
Seychelles against France. The vessel was apprehended for alleged illegal fish-
ing and failure to announce its presence in the EEZ of the Kerguelen Island.
ITLOS in its Judgment of 18 December 2000 ordered the prompt release
of the vessel and its Master by France upon the furnishing of a security of
18 million French Francs by the Seychelles, as the bond set by the national
French court 56.4 million French Francs was not considered reasonable.
The fishing trawler "Grand Prince", (121) at that time flying the flag of
Belize, was arrested by the French authorities in the EEZ of the Kerguelen
Islands for alleged illegal fishing. The competent French court fixed a bond
for its release in the amount of 11 million French Francs, which was later
followed by a confiscation order. ITLOS in its Judgment of April 20, 2001
found that it had no jurisdiction under Article 292 UNCLOS to entertain the
application as the documentary evidence submitted by the applicant failed
to establish that Belize was the flag State of the vessel when the application
was made; a decision that underlines the importance the Tribunal attaches
to the matter of registration of ships.
The proceedings in the "ChaisiriReefer 2" Case (122) were instituted by
Panama against Yemen for the prompt release of that detained vessel, its
crew and cargo. Following an agreement between Panama and Yemen on
July 13, 2001 after the release of the vessel and its cargo and crew the
Case was removed from the Tribunal's List of Cases. The availability of the
relief provided by ITLOS certainly helped in reaching an out-of-court set-
tlement.
In the "Volga" Case, (123) that Russian vessel had been arrested for
alleged illegal fishing in the Australian fishing zone. The Russian Federation
requested the release of the "Volga" and its crew, the conditions for release
imposed by Australia being neither permissible nor reasonable under the
(120) The"Monte Confurco" Case (Seychelles v. France), Prompt Release, Judgment of

(121) The "Grand Prince" Case (Belize v. France), Prompt Release, Judgment of 20 April 2001,
ITLOS Reports 2001, p. 17; ITLOS Press Releases, ITLOS/Press No. 48, 20 April 2001, available
at:www.itlos.org.
(122) The "Chaisiri Reefer 2" Case (Panamav. Yemen), Prompt Release, Order of 13 July 2001,
ITLOS Reports 2001, p. 82; ITLOS Press Releases, ITLOS/Press No. 52, 16 July 2001, available
at:www.itlos.org.
(123) The "Volga" Case (Russian Federation v. Australia), Prompt Release, Judgment of
HELMUT TUERK
Convention. In its Judgment of December 23 2002, ITLOS took note of the

concern of Australia with regard to the depletion of stocks of Patagonian
Toothfish in the Southern Ocean and also stated that the amount of 1,920,000
Australian Dollars sought for the release of the vessel was reasonable in terms
of Article 292 UNCLOS. (124) It, however, considered that the non-financial
conditions laid down by Australia could not be considered as components
of the bond or other financial security for the purposes of that provision of
the Convention.
The "Juno Trader" Case, (125) submitted on behalf of Saint Vincent and
the Grenadines against Guinea-Bissau, concerned the detention of that vessel
and its crew for alleged infringement of national fisheries legislation in that
country's EEZ. Guinea-Bissau objected to the jurisdiction of ITLOS on the
grounds that, according to its national legislation, the ownership of the vessel
"Juno Trader" had reverted to the State of Guinea-Bissau and that therefore,
Saint Vincent and the Grenadines could not any more be considered the flag
State. The Tribunal, however, held that, whatever may be the effect of a
definitive change in the ownership of a vessel upon its nationality, there was
no basis in the particular circumstances of the case, for holding that there
had been such a definitive change. In its Judgment of December 18, 2004,
ITLOS thus ordered the prompt release of the vessel "Juno Trader", upon
the posting of a bond of Euro 300.000. It also declared that all members of
the crew should be free to leave Guinea-Bissau without any conditions. (126)
The "Hoshinmaru" Case (127) concerned a dispute submitted by Japan
regarding the detention of that fishing vessel by the authorities of the Rus-
sian Federation for the alleged infringement of national fisheries legisla-
tion in its EEZ. Russia had set a bond of 25,000,000 roubles, later reduced
to 22,000,000, which Japan considered to be unreasonable and not meeting
the requirements of Article 292 UNCLOS. In its Judgment of August 6,
2007 ITLOS, inter alia, stated that the amount of the bond should, in par-
ticular, be proportionate to the gravity of the alleged offences. (128) ITLOS
considered the amount of the bond fixed by the Russian Federation not
to be reasonable and decided that the "Hoshinmaru", including its catch
on board, should be promptly released upon the posting of a bond or other
security and that the Master and the crew should be free to leave without
(124) Id., Judgment of 23 December 2002, para. 95 (5).

(125) The "Juno Trader" Case (Saint Vincent and the Grenadines v. Guinea-Bissau), Prompt
Release, Judgment of 18 December 2004, ITLOS Reports 2004, p. 17; ITLOS Press Releases,
ITLOS/Press No.95, 18 December 2004, available at:www.itlos.org.
(126) Id., Judgment of 18 December 2004, para. 104 (4) and (5).
(127) The "Hoshinmaru" Case (Japan v. Russian Federation), Prompt Release, Judgment of
6 August 2007, ITLOS Reports 2005-2007, p. 18; ITLOS Press Releases, ITLOS/Press No. 112,
6 August 2007, available at:www.itlos.org.
(128) Id., Judgment of 6 August 2007, para. 91.
any conditions. (129) It further determined that the bond should amount to
10,000,000 roubles (approximately US$ 390,000). (130)
The "Tomimaru" Case(131) also concerned the detention of that fishing
vessel by the authorities of the Russian Federation for the alleged infringe-
ment of national fisheries legislation in its EEZ. The "Tomimaru" had
already been detained eight months earlier and the crew had been allowed
to leave the Russian Federation long before the application was submitted
by Japan. The competent Russian courts had decided to confiscate the vessel
and Russia thus maintained that the application by Japan had been rendered
without object. In its Judgment of August 6, 2007 ITLOS expressed the view
that the decision to confiscate eliminates the provisional character of the
detention of the vessel rendering the procedure for its prompt release with-
out object. It, however, also noted that confiscation decided in "unjustified
haste" would jeopardize the implementation of Article 292. Such a decision
should furthermore not be taken in such a way as to prevent the ship owner
from having recourse to available domestic judicial remedies, or as to pre-
vent the flag State from resorting to the prompt release procedure set forth
in the Convention. (132) The Tribunal also underscored that a decision to
confiscate the vessel did not prevent it from considering an application for
prompt release while proceedings are still before the domestic courts of the
detaining State. (133) As the decision by the Supreme Court of the Russian
Federation which confirmed the decision of the lower courts to confiscate
the "Tomimaru" had brought to an end the procedures before the domestic
courts, ITLOS found that the application of Japan no longer had any object
and that it was therefore not called upon to give a decision thereon. (134)
In respect of the six cases in which ITLOS ordered the release of the vessel
and/or its crew upon the posting of a reasonable bond, it can fairly be said
that it has developed a coherent jurisprudence, particularly as regards the
relevant factors for determining the reasonableness of bonds or other finan-
cial security. These factors which by no means constitute a complete list
include the gravity of the alleged offences, the penalties imposed or imposable
under the laws of the detaining State, the value of the detained vessel and of
the cargo seized, the amount of the bond imposed by the detaining State and
its form. It is to be emphasized that it is the Tribunal that ultimately deter-
(129) Id., para. 102.

(130) Id., para. 100.
(131) The "Tomnimaru" Case (Japan v. Russian Federation), Prompt Release, Judgment of
6 August 2007, ITLOS Reports 2005-2007, p. 74; ITLOS Press Releases, ITLOS/Press No. 113,
6 August 2007, available at: www.itlos.org.
(132) See Id., Judgment of 6 August 2007, para. 76.
(133) Id., para. 78.
(134) Id., para. 82.
HELMUT TUERK
mines the reasonableness of the bond. (135) The prompt release procedure is
also characterized by its swiftness, as the Tribunal, according to its Rules,
must give priority to such applications over all other proceedings. (136) In its
practice, ITLOS has delivered its decisions within the timeframe of approx-
imately one month. The urgency of these proceedings is justified in view of
the financial burden for the ship owner resulting from the detention of a
vessel as well as humanitarian considerations regarding detained crews. (137)
It is important to note that in any prompt release proceedings, ITLOS may
deal only with the question of the release of the vessel without prejudice to
the merits of any case before the appropriate domestic forum in respect of
the vessel, its owner or its crew. (138) In its jurisprudence, the Tribunal has
been very careful to strictly apply this requirement of the Convention. (139)
As the question of release may be submitted not only by the flag State, but
also "on its behalf" private parties may in principle be allowed to further
their interests directly before ITLOS, the flag States nevertheless remain-
ing party to the procedure. (140) This is certainly a significant innovation
provided by UNCLOS, if not the most important novel feature of its entire
dispute settlement mechanism. (141)
The prompt release cases ITLOS has thus far been seised with, nearly all
of them connected with fisheries, were based on Article 73(2) UNCLOS. It
is interesting to note that no State has, however, yet made use of one of the
two other provisions of UNCLOS which provide for the release of the vessel
upon the posting of a bond when the vessel has been detained for alleged
pollution offences, that is Article 220 (6) and (7) and Article 226 (1) b and
c. The reason therefore might be that in the first case there is a clear wording
of the release provision while in the second instance regarding pollution the
provisions are drafted in a very intricate way, which may discourage State
(135) Statement by Judge JL.Jesus, President of ITLOS, at the OLDEPESCA XX Conference

of Ministers, Le Paz, Bolivia, 2 September 2009, p.5, available at:www.itlos.org.
(136) Art. 112 of the Rules of the Tribunal (note 32).
Advisers (note 68), p. 4; see also WOLFRUM, "The Tenth Anniversary of ITLOS" (note 112), p. 74.
(138) See Art. 292(3) UNCLOS.
Advisers (note 68), p. 3.
(140) T. TREVES, "The Jurisdiction of The International Tribunal for the Law of the Sea", 37
Indian Journal of InternationalLaw, 396-419, pp. 401-402 (1997); see also WOLFRUM, "Verfahren
zur Freigabe von Schiffen vor dem ISGH" (note 53), pp. 577-578. Normal practice has been for
the application to be submitted on behalf of the flag State. In the "Volga Case", for instance, the
submission was made directly by the flag State, as the agent of the Russian Federation was a
member of the Foreign Ministry; see P. GAUTIER, "Les affaires de 'prompte mainlevee' devant le
Tribunal international du droit de la mer, 31d Global Community Yearbook of InternationalLaw and
Jurisprudence,79-106, p.85 (2003).
(141) See also V.P.BANTZ, "Views from Hamburg: The Juno Trader Case or How to Make Sense
of the Coastal State's Rights in Light of its Duty of Prompt Release", 2412 University of Queensland
Law Journal,415-444, pp. 436-437 (2005).
parties from submitting cases to ITLOS on that basis. (142) Although, these
provisions do not expressly refer to the crew members of detained ships, these
are nevertheless covered by such prompt release proceedings since they are
part of the vessel as a unit. (143)
C. Cases relating to the merits
The following cases relating to the merits have been submitted to ITLOS:
the M1/V "Saiga" (No. 2) Case (Saint Vincent and the Grenadines v. Guinea),
the Case concerning Conservation and Sustainable Exploitation of Swordfish
Stocks in the South-Eastern Pacific Ocean (Chile v. European Union), the
Dispute concerning the maritime boundary in the Bay of Bengal (Bangladesh
v. Myanmar), the M1/V "Virginia G." Case (Panamav. Guinea-Bissau),the
M/ V "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain),
the Dispute concerning Delimitationof the maritime boundary between Ghana
and C6te d'voire (Ghana v. C6te d'Ivoire), and the M/ V "Norstar"Case (Pan-
ama v. Italy). (144)
In the M/V "Saiga" (No. 2) Case, (145) ITLOS had to deal with both
the merits and the request for the prescription of provisional measures. The
vessel and its crew continued to be held by Guinea even after the Tribunal
had prescribed their prompt release. Guinea had not only arrested the tanker
M/V "Saiga", but also its Master for providing fishing vessels with gasoil
bunkering off the coast of Guinea, which it alleged was an offence under
its customs laws. Saint Vincent and the Grenadines claimed, however, that
the bunkering of vessels is within the freedom of navigation in the EEZ. The
arrest of the "Saiga" took place at a point outside Guinea's EEZ, with Guinea
claiming that the arrest followed its right of "hot pursuit". On March 11,
1998, ITLOS ordered (146) that Guinea should refrain from taking or enforc-
ing any judicial or administrative measures against the "Saiga", its Master
and the other members of the crew, its owners or operators. The vessel, its
(142) GAUTIER, Urgent Proceedings before ITLOS (note 67), pp. 4-5.
(143) See id., p. 6; see also Judge J.L. Jesus, President of ITLOS, Statement at the Informal
Meeting of Legal Advisors of Ministries of Foreign Affairs, 27 October 2009,p. 6,available at:www.
itlos.org.
(144) The M V "Louisa" and the M V "Norstar"Cases have been submitted by unilateral appli-
cations, Bangladesh and Myanmar had mutually consented to the jurisdiction of the Tribunal in
accordance with Art. 287 (4) UNCLOS and the remaining cases relating to the merits have been
submitted by means of a special agreement.
(145) MIV "Saiga" (No.2) Case (Saint Vincent and theGrenadines v Guinea), Judgment of
1 July 1999, ITLOS Reports 1999, p. 10; ITLOS Press Releases, ITLOS/Press No. 23 and Supple-
ment No. 1, 1 July 1999, available at www.itlos.org; see also L. A. DE LA FAYETTE, "Saiga Cases"
(note 117).
(146) The M1 V "Saiga" (No.2) Case (Saint Vincent and theGrenadines v.Guinea), Provisional
Measures, Order of II March 1998, ITLOS Reports 1998, p.24; ITLOS Press Releases, ITLOS/Press
No.15, 11 March 1998, available at:www.itlos.org.
HELMUT TUERK
captain and its crew had in fact already been released shortly before in com-
pliance by Guinea with the Judgment of the Tribunal of December 4, 1997.
In its Judgment of July 1, 1999 the Tribunal declared that Guinea had
violated the rights of Saint Vincent and the Grenadines in arresting the
"Saiga", and awarded Saint Vincent and the Grenadines US$ 2,123,357 with
interest as compensation. The Tribunal emphasized, inter alia, that "consid-
erations of humanity must apply in the law of sea, as they do in other areas
of international law". (147) As to the question of genuine link between the
ship and the flag State, the Tribunal concluded that the purpose of Arti-
cle 91 of the Convention requiring such a link is to secure more effective
implementation of the duties of the flag State, and not to establish criteria
by reference to which the validity of the registration of ships in a flag State
may be challenged by other States. (148) In examining the question whether
certain claims could be entertained because they related to violations of the
rights of persons who were not nationals of Saint Vincent and the Grenadines,
ITLOS declared that the relevant provisions of the Convention consider the
ship as a unit, as regards the rights and obligations of the flag State with
respect thereto. Thus the ship, everything on it, and every person involved
or interested in its operations are treated as an entity linked to the flag
State. The nationalities of these persons are not relevant. If each person
that sustained damage were obliged to look for protection to the State from
which such person is a national, undue hardship would ensue. (149) It is to
be noted that this jurisprudence has found widespread acceptance in the law
of the sea community. (150)
In the Case concerning the Conservation and Sustainable Exploitation of
Swordfish Stocks in the South-Eastern Pacific Ocean, (151) ITLOS, at the
request of Chile and the then European Community, on 20 December 2000
formed a Special Chamber. Its Order of 16 December 2009 (152) placed on
the record the discontinuance of the proceedings by agreement of the Par-
ties which, inter alia, provides for a definitive commitment to cooperate in
the long term conservation and management of the swordfish stocks in the
South-Eastern Pacific. This has so far been the only case where one of the
(147) The M V "Saiga" (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgement
of I July 1999, ITLOS Reports 1999, p. 10, para. 155; ITLOS Press Releases, ITLOS/Press No. 23,
add. 1, 1 July 1999, available at: www.itlos.org.
(148) Id., para. 83.
(149) Id., paras 106 and 107.
(150) Judge Vladimir Golitsyn, President of ITLOS, Statement at the Plenary of the Sixty-
Ninth Session of the UN General Assembly, 9 December 2014, p. 5, available at: www.itlos.org.
(151) Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the
South-Eastern Pacific Ocean (ChilelEuropean Community), Order of 20 December 2000, ITLOS
Reports 2000, p. 148; ITLOS Press Releases, ITLOS/Press No. 43, 21 December 2000, available
at: www.itlos.org.
(152) Order of 16 December 2009, ITLOS Reports 2008-2010, p. 13; ITLOS Press Releases,
ITLOS/Press No. 141, 17 December 2009, available at: www.itlos.org.
parties to the dispute was an international organization. The outcome of

the case is a classic example of how ITLOS can contribute to the settlement
of disputes by peaceful means chosen by the parties, bringing a dispute to a
satisfactory conclusion that had divided Chile and the European Union for
about twenty years. (153)
The Dispute concerning delimitationof the maritime boundary between Bang-
ladesh and Myanmar in the Bay of Bengal, (154) had initially been submitted
to an arbitral tribunal to be constituted under Annex VII. Subsequently,
both parties, however, accepted the jurisdiction of ITLOS for its settlement.
The dispute adjudicated by ITLOS on 14 March 2012 had three main aspects:
delimitation of the boundary of the territorial sea, of the EEZ and the con-
tinental shelf within 200 nautical miles and the question of entitlements of
both Parties to a continental shelf beyond that distance. A salient feature of
the case was that the Tribunal was also asked to decide on the delimitation
between the Parties of the continental shelf beyond 200 nautical miles. (155)
The Tribunal, having found that there was no agreement between the
Parties regarding the delimitation of the territorial sea, decided to delimit it
by drawing an equidistance line up to the point beyond which the territorial
seas of the Parties no longer overlap. A conclusion to the contrary would
have resulted in giving more weight to the sovereign rights and jurisdiction
of Myanmar in its EEZ and continental shelf than to the sovereignty of
Bangladesh over its territorial sea. (156)
With respect to the delimitation of the EEZ and continental shelf within
200 nautical miles ITLOS applied the equidistance/relevant circumstances
method, following the three-stage approach used by international courts and
tribunals in the majority of cases submitted to them. It thus constructed
its own provisional equidistance line and then determined that the cut-off
effect produced by the concavity of the coast of Bangladesh constitutes a
relevant circumstance. The Tribunal decided to adjust that provisional line
in a reasonable and balanced way, in order to achieve an equitable solution
as required by Articles 73 and 84 UNCLOS, cutting off the seaward projec-
(153) See remark by the President of the Special Chamber, Judge Chandrasekhara Rao; ITLOS
Press Releases, ITLOS/Press No. 141, 17 December 2009, p.2, available at:www.itlos.org.
(154) Dispute concerning delimitationof the maritime boundary between Bangladesh and Myanmar
in the Bay of Bengal (Bangladesh Myanmar), Judgment of 14 March 2012, ITLOS Reports 2012,
p.4; ITLOS Press Releases, ITLOS/Press No.175, 14 March 2012; see also G. EIRIKSSON, "The Bay
of Bengal Case before the International Tribunal for the Law of the Sea", in L. DEL CASTILLO (ed.),
Law of the Sea from Grotius to the InternationalTribunal for the Law of the Sea, Liber Amicorum
Judge Hugo Caminos, 512-528 (2015); see further S.LIN and C. SCHOFIELD, "Lessons from the Bay of
Bengal ITLOS Case: stepping offshore for a 'deeper' Maritime Political Geography, Commentary",
The Geographical Journal,Vol. 180, No.3, September 2014, 260-264.
(155) Judge Shunji Yanai, President of ITLOS, Statement at the Plenary of the Sixty-Seventh
Session of the United Nations General Assembly, 11 December 2012, p.5, available at www.itlos.
org.
(156) Judgment of 14 March 2012 (note 154), para. 169.
HELMUT TUERK
tion of the coasts of neither Bangladesh nor Myanmar and continuing until
a point located 200 nautical miles from the baselines of the territorial sea of
Bangladesh. (157)
Regarding the delimitation of the continental shelf beyond 200 nautical
miles, ITLOS found that on the basis of the relevant provisions of UNCLOS it
had jurisdiction to delimit the continental shelf in its entirety. It considered
whether in the circumstances of the case it should refrain from exercising that
jurisdiction until each Party had established the outer limits of the continen-
tal shelf pursuant to Article 76, paragraph 8, UNCLOS, or at least until the
Commission on the Limits of the Continental Shelf (CLCS) had made recom-
mendations to each Party on its submission. The Tribunal concluded that it
had an obligation to adjudicate the dispute and to delimit the continental
shelf between the Parties beyond 200 nautical miles without prejudice to
the establishment of the outer limits of the continental shelf. (158)
As regards the question of entitlements of the Parties to a continental shelf
beyond 200 nautical miles ITLOS held that such an entitlement should be
determined by reference to the outer edge of the continental margin to be
ascertained in accordance with Article 76 (4) UNCLOS. (159) It also noted
that the Bay of Bengal presents a unique situation and concluded that Bang-
ladesh and Myanmar had overlapping entitlements to a continental shelf
beyond 200 nautical miles based on the thickness of sedimentary rocks. (160)
In delimiting the continental shelf beyond 200 nautical miles the Tribunal
indicated that the delimitation method to be employed for the continental
shelf beyond 200 nautical miles should not differ from that within that dis-
tance. It thus decided that the adjusted equidistance line delimiting both
the EEZ and the continental shelf within 200 nautical miles would continue
in the same direction beyond the 200-nautical-mile limit of Bangladesh until
it reached the area where the rights of third States may be affected. (161)
As the delimitation of the continental shelf beyond 200 nautical miles,
if not strictly based on an equidistance line, results in a so-called "grey
area", (162) ITLOS decided that in the area beyond the EEZ of Bangladesh
that is within the limits of Myanmar's EEZ, the maritime boundary delimits
the Parties' rights with respect to the seabed and subsoil of the continental
shelf but does not otherwise limit Myanmar's rights with respect to the EEZ,
notably as regards the superjacent waters. Each State must therefore exer-
cise its rights and perform its duties with due regard to the rights and duties
of the other in accordance with the relevant provisions of UNCLOS. (163) It
(157) See id., para. 340.

(158) Id., para. 394.
(159) Id., para. 437.
(160) Id., see paras 445-448.
(161) Id., para. 463.
(162) Id., para. 464.
(163) Id., paras 474 and 475.
should be pointed out that never before had an international court or tribunal
pronounced itself on the question of the "grey area". There can be no doubt
that a single boundary line delimiting both the seabed and the water column
would be preferable. The provisions of the Convention relating to the EEZ
on the one hand and the continental shelf on the other did not, under the
circumstances of the case, leave the Tribunal any other choice.
It is also to be highlighted that this was the first time that any inter-
national court or tribunal decided on delimitation of the continental shelf
beyond 200 nautical miles. In the view of ITLOS it would have been contrary
to the object and purpose of UNCLOS not to resolve the existing impasse
between the Parties. Inaction by the CLCS and the Tribunal, two organs
created by UNCLOS to ensure the effective implementation of its provi-
sions, would leave the Parties in a position where they might be unable to
benefit fully from their rights over the continental shelf. (164) The Tribunal
emphasized that the activities of the bodies established by the Convention
are complementary to each other so as to ensure its coherent and efficient
implementation. (165)
The Judgment thus resolved a dispute that had existed for more than
36 years and potentially unlocked a situation where both Myanmar and
Bangladesh were prevented from exploiting the natural resources of the
continental shelf beyond 200 nautical miles. It was the first delimitation
case brought before ITLOS and has rightly been called 'a historic and major
milestone in international law, particular in UNCLOS. (166)
The M/V "Louisa" Case, (167) also concerned a dispute on the merits
regarding the boarding, search and detention of that vessel flying the flag
of Saint Vincent and the Grenadines by Spanish authorities. Several persons
were arrested and detained in Spain for different periods in connection with
criminal proceedings instituted in respect of the commission of "the crime of
possession and depositing weapons of war [...] together with the continued
crime of damaging Spanish historical patrimony". (168) In its Judgment of
28 May 2013, ITLOS first examined the link between primafacie jurisdiction
and jurisdiction on the merits and stated that the latter question can only be
decided after consideration of the written and oral proceedings and not on the
basis of the decision onprimafaciejurisdiction in connection with the request
for the prescription of provisional measures. The Tribunal noted that the
(164) Id., para. 392.

(165) Id., para. 373.
(166) Judge Shunji Yanai, President of ITLOS, Statement at the Plenary of the Sixty-Seventh
Session of the UN General Assembly, 11 December 2012, p. 8, quoting from a statement by
Myanmar, available at: www.itlos.org.
(167) The MIV "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain), Judg-
ment of 28 May 2013, ITLOS Reports 2013, p. 4; ITLOS Press Releases, ITLOS/Press No. 193,
28 May 2013, available at: www.itlos.org.
(168) Id., Judgment of 28 May 2013, para. 54.
HELMUT TUERK
case had two aspects, the detention of the vessel and the persons connected
therewith and the other concerning the treatment of these persons. It came to
the conclusion that none of the various provision of the Convention invoked
by Saint Vincent and the Grenadines, such as Article 73 enforcement of
laws and regulations of the coastal State and Article 87 freedom of the
high seas , could serve as a basis for its jurisdiction. (169)
After the closure of the written proceedings, Saint Vincent and the Gren-
adines presented its claim as one substantively based on article 300 good
faith and abuse of rights and the alleged violations of human rights by
Spain. The Tribunal considered this as a new claim which in order to be
admitted "must arise directly out of the application or be implicit in it". (170)
It finally concluded that no dispute concerning the interpretation or appli-
cation of the Convention existed between the Parties at the time of filing of
the application and that, therefore, it had no jurisdiction ratione materiaeto
entertain the case before it. (171) It is to be noted that ITLOS in that case
for good reason reversed itself on the questions of jurisdiction. The M1/V
Louisa Case further raised certain questions of human rights which would
have merited an in depth examination, but were beyond the purview of a
tribunal established for matters relating to the law of the sea.
In the M/V "Virginia0." Case, (172) the dispute had initially been submit-
ted to arbitration pursuant to Annex VII. It concerned the M/V Virginia G,
an oil tanker flying the flag of Panama, arrested in 2009 by the authorities
of Guinea-Bissau for carrying out refuelling operations for foreign vessels,
fishing in that country's EEZ. The vessel and the gas oil on board were con-
fiscated, the vessel had, however, been released after more than one year. The
main issue ITLOS had to deal with was the question of bunkering activities
in support of foreign vessels fishing in the EEZ of a coastal State, a matter
not addressed by UNCLOS. In its Judgment of 14 April 2014 the Tribunal
held in this regard that the regulation of such an activity "is among those
measures which the coastal State may take in its EEZ to conserve and man-
age its living resources under Article 56 of the Convention, read together
with its Article 62(4) of the Convention. This view is also confirmed by State
practice which has developed after the adoption of the Convention". (173)
The relevant national legislation of Guinea-Bissau was thus found to be in
conformity with UNCLOS.
As regards confiscation of a vessel offering bunkering services to foreign
vessels fishing in the EEZ, ITLOS stated that this is not per se in violation
(169) Id., see paras 105, respectively 109.

(170) Id., para. 142.
(171) Id., para. 151.
(172) The MIV "Virginia G" Case (PanamalGuinea Bissau), Judgment of 14 April 2014, ITLOS
Reports 2014, p. 4; ITLOS Press Releases, ITLOS/Press No. 211, 14 April 2014; available at: www.
itlos.org.
(173) Id., Judgment of 14 April 2014, para. 217.
of Article 73(1) of the Convention. Whether or not confiscation is justified

in a given case depends on the facts and circumstances. (174) The Tribunal
considered that in light of the circumstances of the case the confiscation of
the vessel and the gas oil on board was in violation of Article 73(1) of the
Convention. (175) It further found that by failing to notify Panama as the
flag State of the detention and arrest of the M/V Virginia G, and subsequent
actions against the vessel and its cargo, Guinea-Bissau violated the require-
ments of Article 73(4) of the Convention, depriving Panama of its right as
a flag State to intervene. Panama was awarded compensation for the gas
oil confiscated in the amount of US$ 388,506.00, with interest at the rate
of 2.862 per cent, compounded annually, and an amount of f 146,080.80,
with interest at the rate of 3.165 per cent, compounded annually, for costs
of repairs to the vessel. (176) As regards the counter-claim that had been
submitted by Guinea-Bissau based on the alleged violation by Panama of
Article 91 of the Convention, the Tribunal noted that a genuine link existed
between Panama and the M/V Virginia G at the time of the incident and
therefore concluded that the counter-claim was unfounded. (177)
With this Judgment ITLOS undoubtedly covered new ground by clarify-
ing an important issue that had been left unregulated by the Convention, as
at the time of its elaboration there seemed to be no apparent need to do so.
Although criticism has been voiced that in this Case the Tribunal was acting
as a legislative body rather than a judicial one(178) it should be borne in
mind that the Convention is a living instrument (179) and its application and
interpretation will continue to be shaped by State practice and international
jurisprudence.
The Dispute concerning the delimitation of the maritime boundary between
Ghana and Cdte d'Ivoire in the Atlantic Ocean, (180) initially submitted to
arbitration under Annex VII, was submitted to a Special Chamber ofITLOS
formed by Order of 12 January 2015, according to an agreement by the Par-
ties. The Case is still on the docket of the Tribunal with respect to the merits
and will be decided in the course of 2017.
(174) Id., para. 257.

(175) Id., para. 271.
(176) Id., para. 452 (16) and (17).
(177) Id., para. 407.
(178) See also C. VIGNOCCHI, "ITLOST? The International Tribunal for the Law ofthe Sea sounds
the charge to expand coastal State jurisdiction", 39 Tul. Mar. L.J. 791, p. 4 (Summer 2015); see
further A.C. FORTAS, "T.I.D.M., Affaire du 'Virgina G' (Panama/ uinee-Bissau) arret du 14 avril
2014", in Annuairefranpaisde droit international, LX, 2014, Paris, CNRD Editions, 499-518.
(179) See also D.H. ANDERSON, "Peaceful Settlement of Disputes under UNCLOS", in J. BARRET
and R. BARNES (eds), Law of the Sea, UNCLOS as a Living Treaty, British Institute of International
and Comparative Law, 385-415 (2016).
(180) The Dispute concerning the delimitation of the maritime boundary between Ghana and Cote
dIvoire in the Atlantic Ocean, Order of 12 January 2015, ITLOS Reports 2015, p. 122; ITLOS Press
Releases, ITLOS/Press No. 222, 12 January 2015, available at: www.itlos.org.
HELMUT TUERK
The M/V "Norstar" Case (181) concerns a Panamanian flagged vessel which
from 1994 until 1998 was involved in supplying gasoil to mega yachts
according to the application in international waters beyond the territorial
seas of Italy, France and Spain. The vessel had been arrested in Palma de
Mallorca in 1998 by Spanish officials, at the request of Italy, allegedly for
having supplied oil in contravention of Italian legislation. Panama claims
compensation from Italy for damage caused by the arrest of the vessel, con-
tending that Italy violated several provisions of UNCLOS, in particular the
right of freedom of navigation. Italy raised several preliminary objections
concerning the jurisdiction of the Tribunal and also maintained that the
claim was inadmissible. This was the first time that preliminary objections
were raised by a Party with respect to the jurisdiction of the Tribunal. In its
Judgment of 4 November 2016 ITLOS rejected all of the Italian objections,
found that it had jurisdiction and declared the application admissible. The
Case is still on the docket of the Tribunal as to the merits and will probably
be decided in 2018.
D. Advisory opinions
In 2010, the Council of the ISA for the first time decided to submit to the
Seabed Disputes Chamber a request for an advisory opinion pursuant to
Article 191 UNCLOS. (182) The request related to the legal responsibilities
and obligations of States parties to the Convention with respect to the spon-
sorship of activities in the "Area", the extent of liability of a State party for
any failure to comply with the provisions of the Convention, in particular
Part XI, and the 1994 Implementation Agreement, by an entity whom it
has sponsored, and the necessary and appropriate measures that a sponsor-
ing State must take in order to fulfill its responsibility under the relevant
provisions of these instruments. (183) The background to this request was
the fact that Nauru in 2008 sponsored an application by a private company
for a plan of work to explore for polymetallic nodules in the "Area". It was
pointed out that the potential liabilities or costs arising from this sponsorship
(181) The MIV "Norstar" Case (Panama v. Italy), Preliminary Objections, Judgment of
4 November 2016, ITLOS Reports 2016, to be published; ITLOS Press Releases, ITLOS/Press
No.254, 4 November 2016.
(182) See Decision by the Council of the ISA, ISA doc. ISBA/16/C/13, 6 May 2010, available
at: www.isa.org.jm/files/documents/EN/Press/Press1O/SB-16-19.pdf; Responsibilities and obliga-
tions of States sponsoring persons and entities with respect to activities in the Area (Request for
Advisory Opinion submitted to the Seabed Disputes Chamber).
(183) According to Article 139, para. 1 UNCLOS States parties have the responsibility to ensure
that activities in the Area, whether carried out by States parties, or state enterprises or natural or
juridical persons which possess the nationality of States parties are effectively controlled by them or
their nationals, are carried out in conformity with Part XI of the Convention. Annex III sets forth
the basic conditions of prospecting, exploration and exploitation.
could, in some circumstances, far exceed the financial capacities of Nauru,

as well as those of many other developing countries.
On 1 February 2011, the Chamber rendered its Opinion (184) in which it
stated with respect to the obligations of sponsoring States under UNCLOS
and related instruments that there is an obligation of "due diligence" and
that these States are bound to make "best possible efforts" to secure compli-
ance by the sponsored contractors. (185) There are, inter alia, also obligations
of the sponsoring States to assist the Authority, to apply a "precautionary
approach" as well as the "best environmental practices", (186) and to provide
recourse for compensation. It is to be noted that these obligations apply
equally to developed and developing States, unless specifically provided
otherwise in the applicable provisions. (187) The Chamber further found
that the liability of the sponsoring State arises from its failure to fulfill its
obligations under the Convention and related instruments, and that liability
shall be for the actual amount of the damage. (188) Finally, it held that the
Convention requires the sponsoring State to adopt, within its legal system,
laws and regulations and to take administrative measures that have two
distinct functions, namely, to ensure compliance by the contractor with its
obligations and to exempt the sponsoring State from liability. (189)
This Advisory Opinion constitutes an important guideline for States par-
ties to UNCLOS intending to engage in or to sponsor deep seabed mining
as well as for the ISA itself. The Chamber has undoubtedly accomplished
its task to assist the Authority with an independent and impartial judicial
interpretation of UNCLOS and related instruments. (190) It has been pointed
out that this unanimously adopted Advisory Opinion is "a historic ruling, as
it sets the highest standards of due diligence and endorses a legal obligation
to apply precaution and best environmental practices". (191)
The submission of a request to the full Tribunal for an advisory opinion for
many years seemed a rather theoretical possibility. However, facing contin-
(184) Responsibilities and obligations of States with respect to activities in the Area, Advisory
Opinion, 1 February 2011, ITLOS Reports 2011, ITLOS Press Releases, ITLOS/Press No. 161,
1 February 2011, available at:www.itlos.org.
(185) Id., Advisory Opinion, see paras 141 and 242 (3).
(186) Id., paras 136 and 242 (3).
(187) Id., paras 158 and 242 (3).
(188) See id., paras 184, 193 and 242 (4).
(189) Id., paras 217 and 218.
(190) D.K.ANTON, R.A.MAKGILL, C.R. PAYNE, "ITLOS/Case No. 17, Seabed Mining, Advisory
Opinion on Responsibility and Liability", 4112 Environmental Policy and Law, 60-65, p. 65 (2011).
(191) See D. FREESTONE, "Advisory Opinion of the Seabed Disputes Chamber of the Interna-
tional Tribunal for the Law of the Sea on 'Responsibilities and Obligations of States Sponsoring
Persons and Entities with respect to Activities in the Area' , 1517 American Society of International
Law, Insights, Final Thoughts (2011); see generally: "L'Apport de l'Avis consultatif du le' fevrier
2011 ",in Annuaire du Droit de Ia Mer, 2011, Tome XVI, Dossierspecial, Le Regime juridique des
grands fonds marins, Enjeux theoriques et pratiques a Ia lumiere de lAvis consultatif du 1" fevrier
2011, Paris, Editions A. Pedone.
HELMUT TUERK
ued serious problems with illegal, unreported and unregulated (IUU) fishing,
the Sub-Regional Fisheries Commission (SRFC), consisting of seven West
African States, (192) in March 2013 submitted such a request. (193) This was
done on the basis of the Convention on the Determination of the Minimal
Access Conditions for Exploitation of Marine Resources within the Maritime
Areas under the Jurisdiction of the Member States of the Sub-Regional Fish-
eries Commission (MCA-Convention). (194)
ITLOS rendered the Advisory Opinion on 2 April 2015. It first had to
consider whether it had jurisdiction to give the advisory opinion requested
and if so whether it should make use of its discretionary power not to do so.
It clarified that the expression contained in Article 21 of the Statute "all
matters specifically provided for in any other agreement which confers juris-
diction on the Tribunal" does not by itself establish the advisory jurisdiction
of the Tribunal. In terms of that article, it is the "other agreement" that
is in the present case the MCA-Convention which confers such jurisdiction
on the Tribunal. Article 21 and the "other agreement" constitute the sub-
stantive legal basis of the advisory jurisdiction of the Tribunal. (195) ITLOS
unanimously decided that it had jurisdiction to entertain the request, how-
ever, limited to the exclusive EEZ's of the SRFC Member States. (196) The
Tribunal also held that the questions submitted were of a legal nature and
related to activities falling within the scope of the MCA Convention. (197) It
thus found no compelling reasons to use its discretionary power not to give
an advisory opinion. (198)
In the replies to the four questions posed in the request, ITLOS outlined
a number of "due diligence" obligations that is obligations "of conduct"
and not "of result" , of flag States and, as far as applicable, of interna-
tional organizations. The Tribunal thus followed the approach taken by the
Seabed Disputes Chamber in its Advisory Opinion as well as the ICJ in its
(192) Regional Fishery Bodies Summary Descriptions, Sub-Regional Fisheries Commission

(SRFC), Fishery Governance Fact Sheets. The Member States are: Cabo Verde, Gambia, Guinea,
Guinea-Bissau, Mauritania, Senegal and Sierra Leone; available at: www.fao.org/fishery/rfb/srfc/
en.
(193) Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission
(SRFC), (Request for Advisory Opinion submitted to the Tribunal), Advisory Opinion, 2 April
2015, ITLOS Reports 2015, p. 4; ITLOS Press Releases, ITLOS/Press No. 227,2 April 2015; see also
V. SCHATZ, "Fishing for Interpretation: The ITLOS Advisory Opinion on Flag State Responsibility
for Illegal Fishing in the EEZ", Ocean Development & InternationalLaw, 47:4, 327-345 (2016).
(194) According to Article 33 of that Convention of 8 June 2012, the Conference of Ministers
of the SRFC may authorize the Permanent Secretary of the SRFC to bring a given legal matter
before ITLOS for advisory opinion; see: https://www.itlos.org/fileadmin/itlos/documents/cases/
case-no.21 /Convention CMA ENG.pdf
(195) Advisory Opinion of 2 April 2015 (note 193), para. 58.
(196) Id., paras 69 and 291.
(197) Id., para. 68.
(198) Id., para. 78.
Judgement in the Pulp Mills on the River Uruguay Case. (199) ITLOS held
in particular, that the flag State has the obligation to take necessary meas-
ures, including those of enforcement, to ensure compliance by vessels flying
its flag with the laws and regulations enacted by the SRFC Member States
concerning marine living resources within their EEZ's for purposes of conser-
vation and management of these resources. The flag State must ensure that
vessels flying its flag are not engaged in IUU fishing activities as defined in
the MCA-Convention within these zones. (200)
The Tribunal furthermore found that the liability of the flag State does
not arise from a failure of vessels flying its flag to comply with the laws and
regulations of the SRFC Member States concerning IUU fishing activities
in their EEZ's, but from its failure to comply with its "due diligence" obli-
gations concerning IUU fishing activities conducted by vessels flying its
flag in these zones. (201) With respect to international organizations ITLOS
held that in cases where such an organization, in the exercise of its exclusive
competence in fisheries matters at present, this only refers to the European
Union concludes a fisheries access agreement with an SRFC Member State,
which provides for access by vessels flying the flag of its member States to fish
in the EEZ of that State, the obligations of the flag State become the obliga-
tions of the international organization. Accordingly, only the international
organization may be held liable for any breach of its obligations arising from
the fisheries access agreement, and not its Member States, if the international
organization does not meet its "due diligence" obligations. (202)
Finally, ITLOS, inter alia, emphasized that the SRFC Member States
have the obligation to ensure the sustainable management of the shared fish
stocks, while these stocks occur in their EEZ's. These obligations are "due
diligence" obligations which require the States concerned to consult with one
another in good faith, pursuant to Article 300 UNCLOS. The consultations
should be meaningful in the sense that substantial effort should be made by
all States concerned, with a view to adopting effective measures necessary
to coordinate and ensure the conservation and development of these shared
stocks. (203)
This first Advisory Opinion rendered by ITLOS in its full composition has
provided the Tribunal a welcome opportunity to clarify the legal bases for
its advisory jurisdiction. (204) The Opinion has found a very positive echo as
it brought a clearer definition of flag State obligations, including, as far as
(199) Id., paras 128-132.

(200) Id., para. 219 (3).
(201) Id., para. 219 (4).
(202) Id., para. 219 (5).
(203) Id., para. 219 (6).
(204) See also J.GAO, "The ITLOS Advisory Opinion for the SRFC",14 Chinese Journal of Inter-
nationalLaw, 735-755, p.754 (2015).
HELMUT TUERK
applicable, of international organizations, (205) regarding vessels engaged in

fishing activities in EEZ's of third States. (206) It has also been stated that
the approach of the Tribunal in this Advisory Opinion may be termed as
"cautious and be characterized as a restatement of existing obligations under
UNCLOS in the context of fisheries resources in the EEZ". (207)
CONCLUSION AND OUTLOOK
In its 20 years of existence ITLOS has established a reputation for an

expeditious and efficient management of cases. (208) The Tribunal is well
equipped to deal with a wide range of disputes and to discharge its functions
speedily, efficiently and cost-effectively. The swift handling of proceedings
relating to prompt release and provisional measures needs to be highlighted
in this respect. ITLOS has not only applied, but also interpreted and devel-
oped the current law of the sea thereby making substantial contributions
to the development of international law, (209) especially to environmental
law. (210) Cases that have in recent years been submitted to the Tribunal
have, in particular, enabled it to broaden and deepen its jurisprudence from
the point of view of both substantial and procedural law. (211) In its juris-
prudence ITLOS has, furthermore, consistently sought to uphold the balance
between the rights of coastal States and those of the international commu-
nity as a whole, a balance that is the very foundation of the contemporary
law of the sea as enshrined in UNCLOS.
Since ITLOS received its first case in 1998, altogether 25 cases have been
submitted of which 16 were urgent proceedings, nine concerning prompt
release proceedings submitted under Article 292 UNCLOS and seven provi-
sional measures, pending the constitution of an Annex VII arbitral tribunal
(205) See generally H. TUERK, "Liability of international organisations for illegal, unreported
and unregulated fishing", Indian Journal of InternationalLaw, 55(2):161-176 (2015).
(206) See also R. CHURCHILL, "Dispute Settlement in the Law of the Sea", Survey for 2015
Part I, The InternationalJournal of Marine and Coastal Law 31, 555-582, p. 570 (2015).
(207) R. BABU, "State responsibility for illegal, unreported and unregulated fishing and sustain-
able fisheries in the EEZ: some reflections on the ITLOS Advisory Opinion of 2015", Indian Journal
of InternationalLaw, 55(2): 239-264, p. 264 (2015).
(208) Judge R. Wolfrum, President of ITLOS, Statement on the Report of the Tribunal to the
Sixteenth Meeting of States parties to UNCLOS, 19 June 2006, p. 5; available at: www.itlos.org.
(209) See also M. KAMTO, "Regard sur la jurisprudence du tribunal international du droit de la
mer depuis son entree en fonctionnement (1997-2004)", 10514 Revue generale de droit international
public, 793-828, p. 828 (2005); see further WOLFRUM, "The Tenth Anniversary of ITLOS" (note 112),
p. 76.
(210) See, in particular, V. GOLITSYN, "The Contribution of the International Tribunal for the
Law of the Sea to the Progressive Development of International Environmental Law", Environ-
mental Policy and Law, 46/5,292-298 (2016).
(211) Statement by Judge V. Golitsyn, President of ITLOS, at the Plenary of the Seventy-First
Session of the United Nations General Assembly on Agenda Item 73 (a) "Oceans and the Law of the
Sea", 7 December 2016, p. 7.
introduced on the basis of its compulsory jurisdiction. The Tribunal further

dealt with seven contentious cases relating to the merits and two advisory
opinions. It has so far actually resolved 21 cases as two cases were discontin-
ued at the request of the parties and two cases are still pending. (212)
It should, however, not be overlooked that since 2008 no prompt release
case has been submitted to ITLOS. The reason might be that this procedure
and its likely results are by now quite well known to the States concerned
which thus prefer to resolve any such issues through bilateral negotiations.
At the same time, the number of requests for provisional measures submitted
to the Tribunal has clearly increased. This competence of ITLOS may well
be regarded as having the potential of being still more frequently used by
States parties, particularly when a case on the merits has been submitted to
an Annex VII arbitral tribunal.
As regards the seven disputes relating to the merits, two concerned mar-
itime delimitation, one the conservation of living resources and four the
detention of vessels. These cases as well as the two advisory opinions have
provided the Tribunal with a good opportunity for making a number of
important pronouncements, such as regarding the nationality of ships, claims
for damages arising out of their unlawful arrest, the use of force on the seas,
the protection of the marine environment, the delimitation of the continental
shelf beyond 200 nautical miles and in this context the relationship between
ITLOS and the CLCS, the question of bunkering in the EEZ, the obligations
of States sponsoring activities in the international seabed "Area" and the
obligations of flag States and international organizations regarding IUU
fishing in the EEZs of third States.
The resolution of the longstanding dispute between Bangladesh and Myan-
mar concerning maritime delimitation in the Bay of Bengal has rightly been
called a "landmark decision" (213) which augurs well for the future of the
Tribunal. The Advisory Opinion given by the Seabed Disputes Chamber
has set an important precedent that might encourage the Council of the
ISA as well as the Assembly to submit further such requests. By rendering
an Advisory Opinion as full Tribunal, ITLOS has furthermore covered new
ground as such advisory jurisdiction constitutes an important innovation for
international judicial proceedings. (214) Advisory proceedings before ITLOS
(212) See Judge JL. JESUS, The Tribunal's Jurisprudence and its Contribution to the Rule of
Law, Presentation at the Colloquium 20 Years of the International Tribunal for the Law of the Sea,
Hamburg 5-6 October 2016 (on file with author).
(213) See also I. KONSTANTINIDIS, "Between Villa Schroder (ITLOS) and the Peace Palace (ICJ):
Diverging Approaches to Continental Shelf Delimitation Beyond 200 Nautical Miles", Journal of
TerritorialMaritime Studies, Vol. 3, No. 2, 28-52 (Summer/Fall 2016); see further LIN and SCHOF-
IELD, Lessons from the Bay of Bengal ITLOS Case (note 154), p. 260.
(214) See also Judge R. Wolfrum, President of ITLOS, Statement at the Plenary of the Sixtieth
Session of the United Nations General Assembly, 28 November 2005, para. 15; available at: www.
itlos.org.
HELMUT TUERK
may prove for States to be a useful tool as the international community is

facing ever new challenges in ocean activities. (215)
It must be recognized that States are often reluctant to submit disputes,
especially maritime disputes, which are often politically quite sensitive,
to binding international adjudication. The undeniable underutilization of
ITLOS should also be seen in that context. (216) Since the entry into force
of UNCLOS, there has nevertheless been a marked increase in the number
of cases relating to the law of the sea submitted to international adjudica-
tion, largely due to the compulsory mechanism provided thereunder for the
settlement of disputes. (217) Ever since ITLOS became operational efforts
have been undertaken to make the Tribunal and its possibilities better known
to the international community, also through the organization of regional
workshops, particularly in developing countries. (218)
The creation of ITLOS has from the very beginning been subject to a
certain degree of criticism as being unnecessary and risking a fragmentation
of international law. (219) It is certainly true that States, under UNCLOS,
have a wide choice of forum for the settlement of disputes, which has been
significantly expanded by the creation of the Tribunal. The evidence so far
nevertheless suggests that a choice of forum is more beneficial than harm-
ful (220) and that the danger of conflicting jurisdiction has been widely over-
estimated. (221) In any case, fragmentation of the law of the sea has thus far
not occurred (222), and as far as ITLOS is concerned, it makes every effort
to keep abreast of developments in other international judicial fora, in par-
(215) Statement by Judge JL.Jesus, President of ITLOS, at the Plenary of the Sixty-third
Session of the United Nations General Assembly, 5 December 2008, p. 4; available at:www.itlos.
org.
(216) See also P. GAUTIER, "Le reglement obligatoire des differends relatifs au droit de la mer et
la pratique des Etats", The Global Community Yearbook of InternationalLaw & Jurisprudence(I),
107-125, p. 109 (2009).
(217) GAUTIER, "The International Tribunal for the Law of the Sea: Activities in 2009" (note 23),
p.791.
(218) TUERK, "Zwolf Jahre Internationaler Seegerichtshof" (note 26), p.498.
(219) See also BOYLE, "ITLOS and the Settlement of Disputes" (note 20), p. 120; see also
A. E. BOYLE, "Dispute Settlement and the Law of the Sea Convention: Problems of Fragmenta-
tion and Jurisdiction", 461 International & Comparative Law Quarterly, 37-54, p. 37 (1997); see
further KLEIN, Dispute Settlement in UNCLOS (note 6),p. 55; see also R. RAYFUSE, "The Future
of Compulsory Dispute Settlement Under UNCLOS", 36 Victoria University of Wellington Law
Review, 678-712, p.686 (2005); see further CHURCHILL, "Some Reflections on the Dispute Settlement
System of UNCLOS During its First Decade" (note 14), p. 416.
(220) BOYLE, "Dispute Settlement and UNCLOS: Problems of Fragmentation and Jurisdiction"
(note 219), p. 54.
(221) KLEIN, "Dispute Settlement in UNCLOS" (note 6), p. 59; see also CHURCHILL, "Some
Reflections on the Dispute Settlement System of UNCLOS During its First Decade" (note 14),
p. 416; see further RAYFUSE, "The Future of Compulsory Dispute Settlement Under UNCLOS"
(note 219), p. 686.
(222) See also D.H. ANDERSON, "Recent Judicial Decisions Concerning Maritime Delimitation",
in L. DEL CASTILLO (ed.), Law of the Sea from Grotius to the International Tribunalfor the Law of the
Sea, Liber Amicorum Judge Hugo Caminos, 495-511, p.511 (2015).
ticular the ICJ. (223) The Tribunal is regularly referring to the judgments
of the ICJ with respect to questions of international law and procedure and
the Court is closely following the work of ITLOS and especially its already
well-developed jurisprudence on provisional measures. (224) Exchanges of
views between delegations ofjudges ofthe two judicial institutions are taking
place, which have proven highly useful. The jurisprudence of ITLOS has not
been only cited by the ICJ but also by the European Court of Human Rights
as well as by arbitral tribunals constituted under Annex VII. It has rightly
been pointed out that it is important to see the range of courts and tribunals
acting under the Part XV of UNCLOS as contributing to a coherent body
of law. (225)
It may certainly be regretted that UNCLOS does not grant ITLOS the
privilege of being the default procedure, instead of arbitration, as had been
contemplated during the negotiations on the Convention. (226) A number of
States were, however, and probably still are of the opinion that compulsory
arbitration is less intrusive as regards national sovereignty, also because
there is a greater influence by the parties to a dispute regarding the compo-
sition of an arbitral tribunal. In this context it should be borne in mind that
decision-making by an ad hoc arbitral tribunal with a limited membership,
five arbitrators, may lead to a less weighted opinion than a judgement by
the members of a larger court or tribunal, composed of judges from all geo-
graphical regions, representing the principal legal systems, which may thus
also be considered as carrying more "political weight". The submission of
maritime disputes involving fundamental, hitherto unresolved questions of
interpretation of UNCLOS to ad hoc arbitral tribunals could furthermore
lead to problems of consistent interpretation and application of the law of
the sea as enshrined in this "constitution for the oceans."
While the Convention does not provide for ITLOS to be the default
procedure some of its provisions nevertheless accord it a more favourable
treatment. These relate to the exclusive jurisdiction of the Seabed Disputes
Chamber regarding the "Area", the residual jurisdiction of the Tribunal in
prompt release cases, the special and unique jurisdiction conferred upon it
to entertain requests for provisional measures pending the constitution of an
arbitral tribunal under Annex VII, and the authority, granted to the Presi-
(223) Statement by Judge R. Wolfrum, President of ITLOS, on Agenda Item 71(a) at the
Plenary of the Sixty-First Session of the UN General Assembly, 8 December 2006, p. 9, available
at: www.itlos.org.
(224) Dame Higgins, President of the ICJ, Speech at the 1 0 th anniversary of ITLOS, Hamburg,
29 September 2016, available at: www.icj-cij.org/presscom.
(225) M. WOOD, "The International Tribunal for the Law of the Sea and General International
Law", 2213 The InternationalJournal of Marine and Coastal Law, 351-367, p. 353 (2007).
(226) See also D.H. ANDERSON, "Peaceful Settlement of Disputes under UNCLOS" (note 179),
p. 390.
HELMUT TUERK
dent of ITLOS by Annex VII, to appoint members of an arbitral tribunal at

the request of one of the parties and in consultation with both of them. (227)
It has been stated that ITLOS as a new permanent institution dedicated to
resolving law of the sea disputes is rightly regarded as being at the centre of
the dispute resolution system of Part XV of UNCLOS. (228) In the course of
the past 20 years the Tribunal has undoubtedly become "an efficient instru-
ment for the expansion of the rule of law on the oceans". (229) Its continued
and significant contribution to the settlement of disputes by peaceful means
in accordance with Part XV of UNCLOS is also regularly being noted with
satisfaction by the UN General Assembly. (230)
(227) Judge JL. Jesus, President of ITLOS, Keynote Speech on "The Role of ITLOS in the
Settlement of Law of the Sea Disputes", Globalization and the Law of the Sea, Washington D.C.,
2 December 2010, p. 6. This authority has already been made use of on several occasions, available
at: www.itlos.org.
(228) D. R. ROTHWELL and T. STEPHENS, The InternationalLaw of the Sea, Oxford and Portland
Oregon, Hart Publishing, p. 457 (2010).
(229) T. TREVES, The Contribution of UNCLOS to the Rule of Law, Presentation at the Collo-
quium 20 Years of the International Tribunal for the Law of the Sea, Hamburg 5-6 October 2016
(on file with author).
(230) See for instance UN General Assembly Resolution 71/257 of 23 December 2016, Oceans
and the law of the sea, para. 55; available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/
N16/466/62/PDF/N 1646662.pdf?OpenElement.

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20 YEARS OF THE INTERNATIONAL

En octobre 2016, le Tribunal international du droit de lamer (TIDM), lorgane

(7) P. CHANDRASEKHARA RAO, "ITLOS: The Conception of the Judicial Function", in

compulsory mechanisms established by it. (15) This Article provides that a

I. COMPOSITION AND STRUCTURE OF ITLOS(17)

II. THE JURISDICTION OF ITLOS

The jurisdiction of ITLOS, in principle, includes any dispute relating to

"compdtence de la compdtence", it is the responsibility of the court or tribu-

respect to these agreements, the procedures of Part XV apply, whether a

III. THE JURISPRUDENCE OF ITLOS (64)

ITLOS may be requested to prescribe provisional measures in two situa-

(66) Art. 290 (1) UNCLOS

nal to prescribe provisional measures requiring Ghana, in particular, to take

(73) Id., Order of 25 April 2015, para. 96.

duct an experimental fishing programme, which was planned for a duration

(88) Order of 3 December 2001 (note 86), para. 82.

(95) Id., para. 106 (2).

sons detained were, however, released shortly thereafter on the basis of a

B. Prompt release of vessels and crews (113)

According to Article 73(1) UNCLOS coastal States are entitled to board,

(115) KLEIN, Dispute Settlement in UNCLOS (note 6), p. 86.

(120) The"Monte Confurco" Case (Seychelles v. France), Prompt Release, Judgment of

Convention. In its Judgment of December 23 2002, ITLOS took note of the

(124) Id., Judgment of 23 December 2002, para. 95 (5).

(129) Id., para. 102.

(135) Statement by Judge JL.Jesus, President of ITLOS, at the OLDEPESCA XX Conference

C. Cases relating to the merits

parties to the dispute was an international organization. The outcome of

(157) See id., para. 340.

(164) Id., para. 392.

(169) Id., see paras 105, respectively 109.

of Article 73(1) of the Convention. Whether or not confiscation is justified

(174) Id., para. 257.

could, in some circumstances, far exceed the financial capacities of Nauru,

(192) Regional Fishery Bodies Summary Descriptions, Sub-Regional Fisheries Commission

(199) Id., paras 128-132.

applicable, of international organizations, (205) regarding vessels engaged in

CONCLUSION AND OUTLOOK

In its 20 years of existence ITLOS has established a reputation for an

introduced on the basis of its compulsory jurisdiction. The Tribunal further

may prove for States to be a useful tool as the international community is

dent of ITLOS by Annex VII, to appoint members of an arbitral tribunal at

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