The Convention on the Law of the Sea

Introduction

On 16th November 1994 the convention on the Law of the Sea (UNCLOS) came into force, it was establish in 1982. The purpose of this convention is to provide nations with four methods to resolve maritime disputes, two of these methods were (1) submit the dispute to the international Tribunal for the Law of the Sea (ITLOS) and (2) the adjudication of the dispute by the international court of justice, (ICJ).

ITLOS

Description

The International Tribunal for the Law of the Sea is an independent judicial body established by the United NationsConvention on the Law of the Sea to adjudicate disputes arising out of the interpretation and application of the Convention.

How and why was it formed?

The Tribunal came into existence following the entry into force of the Convention on 16November 1994. After the election of the first judges on 1 August 1996, the Tribunal took up its work in Hamburg on 1 October 1996. The official inauguration of the Tribunal was held on 18 October 1996. The Tribunal was established as a specialized tribunal to deal with disputes arising out of the interpretation and application of the Convention https://www.itlos.org/general-information/

Rules

Membership 

1. No two members of the Tribunal may be nationals of the same State. Aperson who for the purposes of membership in the Tribunal could be regarded as a national of more than one State shall be deemed to be a national of the one in which he ordinarily exercises civil and political rights. 
2. There shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations. https://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm Section 1 Article 2

Members

The Tribunal is composed of 21 independent members elected by secret ballot by the States Parties to the Convention. Each State Party may nominate up to two candidates from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea. No two members may be nationals of the same State and in the Tribunal as a whole it is necessary to assure the representation of the principal legal systems of the world and equitable geographical distribution; there shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations (African States, Asian States, Eastern European States, Latin American and Caribbean States and Western European and Other States). Members are elected for nine years and may be re-elected; the terms of one third of the members expire every three years.

Functions

The seabed disputes chamber is competent to give advisory opinions on legal questions arising within the scope of the activities of the international seabed authority, the tribunal might may also give advisory opinions in certain cases under international agreements related to the purposes of the convention. Disputes before the tribunal are instituted by either written application or by notification of a special agreement.

Description

On 21 March 2001 an application was filed on behalf of Belize against France for the prompt release of the fishing vessel Grand Prince under article 292 of the United Nations Convention on the Law of the Sea. The case was named the “Grand Prince” Case and entered in the List of cases as case no. 8. (Republic of France v. Belize, 2001)

Legal Principles and Issues Involved

The procedure provided for under article 292 has as its sole purpose to ensure the prompt release of a vessel upon the posting of a reasonable bond, pending the completion of judicial proceedings brought against the captain or owner of the vessel before the jurisdictions of the detaining State. Thus, when the internal judicial procedures have reached their conclusion and, in particular, when they have led to the pronouncement of a sentence of confiscation of the vessel, any possible resort to the article 292 procedure loses its reason for being. In such a case, the application for prompt release is moot (dA©purvue d'objet). As from the time when a national court has pronounced confiscation of the vessel as the applicable sanction, the introduction of a prompt release proceeding before the International Tribunal for the Law of the Sea is not only no longer possible but indeed is not even conceivable. As part of a proceeding of this kind, the Tribunal decides as to the reasonableness of the bond required to order the release of the vessel. This presupposes, firstly, that simple provisional measures of an interlocutory (conservatoire) kind have been taken with respect to the vessel, and, secondly, that those measures can be revoked (rapportA©) or stayed in exchange for a guarantee of enforcement of possible debts to the State by the owner of the vessel. But a confiscation declared by a national court as a principal or secondary penalty has as its effect authoritatively and definitively to transfer to the State the property confiscated.

The owner of the vessel loses his title by virtue of the judicial decision and, if he seeks to recover his rights in the property, the remedies open to him can no longer be pursued within a proceeding for prompt release, since he can no longer be considered as the holder of title (titulaire d'un droit de propriA©tA©) to the vessel. The vessel Grand Prince was found in violation in the French Exclusive Economic Zone, was boarded and detained on 26 December 2000, and was escorted to the island of Reunion, where it arrived on 9 January 2001. The Director of Maritime Affairs of Reunion declared the provisional impoundment of the vessel, which was confirmed on 12 January by an Order of the Tribunal d'Instance of Saint Paul which, furthermore, fixed the amount of the bond to be paid to permit release from impoundment. Moreover, on 11 January, the Deputy Prosecutor of the Republic before the Tribunal de Grande Instance of Saint Denis drew up an arraignment (procA¨s-verbal d'interpellation) against the captain of the vessel and, considering that in this case the introduction of an investigative proceeding (instruction) was not necessary, decided directly to summon the accused to appear at a hearing of the criminal court on 23 January, pursuant to articles 393 et seq. of the Code of Penal Procedure. (ANNEX I) The judgment of the criminal court, handed down the same day (ANNEX II) pronounced the confiscation of the vessel Grand Prince with immediate execution notwithstanding appeal, pursuant to article 131-6-10 of the Penal Code and article 471, final paragraph, of the Code of Penal Procedure (ANNEX III). Further, the captain was sentenced to a fine and damages.

Outcome

Whereas, pursuant to article 292 of the Convention, the Tribunal shall deal with the Application without delay, Whereas, pursuant to article 112, paragraph 3, of the Rules of the Tribunal, the Tribunal, or the President if the Tribunal is not sitting, shall fix the earliest possible date, within a period of 15 days commencing with the first working day following the date on which the application is received, for a hearing. THE PRESIDENT Fixes 5 and 6 April 2001 as the dates for the hearing; Reserves the subsequent procedure for further decision. THE TRIBUNAL, By 12 votes to 9, Finds that the Tribunal has no jurisdiction under article 292 of the Convention to entertain the Application;

ITLOS 2nd Dispute

https://www.itlos.org/en/cases/list-of-cases/case-no-15/

Description

This case is made in respect of the Tomimaru, a Japanese fishing vessel detained in the Russian exclusive economic zone (hereinafter “EEZ”) by the authorities of the respondent since 2 November 2006 and currently detained in the Russian port of Petropavlovsk-Kamchatskii. The Tomimaru is a fishing vessel owned and operated by Kanai Gyogyo Co., a Japanese company registered at 6-3-25, Kushiro city, Hokkaido, Japan. The Tomimaru was flying the Japanese flag at the time of detention and retains Japanese nationality at the time of filing of this application. It is registered at Kushiro city, Hokkaido, Japan. The Tomimaru is a vessel of 279 tons. It has cargo capacity of 263.3 cubic meters for freezer and 580.6 cubic meters for cold storage and fish tank. The estimated value of the vessel and its equipment is 92,894,507 Yen. Documents that evidence the ownership and specifications of the Tomimaru and support the estimate of value are attached. The Tomimaru had 14 Japanese crew members including its Master and 7 Indonesian crew members. The Master and all other members of the crew have now left Russia. There are two sets of proceedings that have been instituted against the Master and the owner of the Tomimaru before the domestic courts of the Respondent: (a) criminal proceedings against the Master, in respect of which a bond of 8,800,000 rubles (approximately US$ 343,000) was set on 12 December 2006; (b) administrative proceedings against the owner of the Tomimaru, in respect of which no bond has been fixed.

The Tomimaru was licensed by the respondent to fight in the Respondent’s EEZ during the period between 1 October and 31 December 2006. Pursuant to that license, the Tomimaru was fishing in the respondents EEZ in the western Bering Sea with the Respondents permission. On 31 October 2006 the Tomimaru was en route from tis licensed fishing area to the port of Kushiro in Japan, when it was boarded by officials from the Respondents patrol boat No.160. According to the Master of the Tomimaru, the boarding occurred at 18:20 (Japan standard time) on 31 October 2006 and was carried out by three officials belonging to the respondent. According to the Master of the Tomimaru, the place of boarding was 52-16N 160-52E the exact coordinates, within the Respondent’s EEZ. The Tomimaru was ordered to sail to the port of Petropavlovsk-Kamchatskii, where the vessel and the crew were detained. During the voyage to that port, and official of the Respondent on board the Tomimaru indicated that the actual amount of fish being carried by the Tomimaru appeared to differ from the amount recorded in its logbook and that the difference was about five tons. On November 2006 a Note Verbal No. 018-3 2006 was issued by the representative of the ministry of Foreign Affair of the Russian Federation in Petropavlovsk-Kamchatskii. It stated that:

1. A criminal case had been instituted against the Master of the Tomimaru on 8 November 2006;
2. The Tomimaru had permission to engage in fishing in the Russian EEZ for up to 1,163 of Pollack and 18t of herring during the period from 1 October to 31 December 2006;
3. Upon inspection on 8 November 2006, more than 20t of walleye Pollack that was not listed on the logbook was found on board the Tomimaru’
4. More than 19.5t of halibut, 3.2t of ray, 4.9t cod, and more than 3t of other fish, with a total value in excess of 8,500,000 rubles ( Approximately US$ 330,000) were found on board the Tomimaru.

https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_15/application_japan_eng.1.pdf

Parties Involved

Legal Principles and Issues Involved

In respect of the Master of the vessel criminal proceedings were instituted on 8 November 2006 concerning the alleged crime stipulated by Article 253 of the Criminal Code of the Russian Federation (exploitation without due permission of the natural resources in the Russian EEZ). The vessel was declared material evidence in accordance with the Article 82 of the Code of Criminal Procedure of the Russian Federation. On 23 November 2006 the Master of the vessel was accused of violation of part 2 of Article 253 of the Criminal Code of the Russian Federation. On the same day he was asked to sign a written undertaking not to leave the city of Petropavlovsk-Kamchatskii and to behave properly. By the verdict of the Petropavlovsk-Kamchatskii court of 15 Mary 2007 the Master of the vessel was found guilty for having committed crimes under paragraph 2 Article 253 and paragraph 2 Article 201 of the Criminal Code of the Russian Federation. He paid the fine in the amount of 500,000 robles, imposed by the verdict, but not damages awarded and were allowed to leave Petropavlovsk-Kamchatski for Japan on 30 May 2007. https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_15/response_russ_fed_eng.1.pdf

Outcome

• https://www.itlos.org/fileadmin/itlos/documents/basic_texts/Itlos_8_E_17_03_09.pdf
• https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_5/Judgment.07.02.00.E.pdf
• https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_5/Dissenting.Anderson.E.pdf
• https://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm

ICJ

ICJ 1st dispute

Description

On behalf of the Government of Australia and pursuant to Article 36, paragraphs 1 and 2, and Article 40 of the Statute of the Court and Article 38 of the Rules of Court, I have the honor to submit to the Court the present Application instituting proceedings against the Government of Japan. The present Application concerns Japan’s continued pursuit of a large-scale program of whaling under the Second Phase of its Japanese Whale Research Pro-gram under Special Permit in the Antarctic (“JARPAII”), in breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling (“ICRW”), as well as its other international obligations for the preservation of marine mammals and the marine environment. Australia has consistently opposed Japan’s JARPA II program, both through individual protests and demarches and through relevant international forums, including the International Whaling Commission (“IWC”). The Court has jurisdiction over the present dispute in accordance with the provisions of Article 36, paragraph 2, of its Statute, by virtue of the operation of the declarations of acceptance made respectively by Australia, dated 22 March 2002, and by Japan, dated 9 July 2007.

Parties involved

(Australia v. Japan: New Zealand intervening)

Legal principles and issues involved

Commercial whaling, whether by pelagic operations or from land stations, is prohibited in a region designated as the Southern Ocean Sanctuary. This Sanctuary comprises the waters of the Southern Hemisphere southwards of the following line: starting from 40 degrees S, 50 degrees W ; thence due east to 20 degrees E ; thence due south to 55 degrees S ; thence due east to 130 degrees E ; thence due north to 40 degrees S ; thence due east to 130 degrees W ; thence due south to 60 degrees S ; thence due east to 50 degrees W ; thence due north to the point of beginning. This prohibition applies irrespective of the conservation status of baleen and toothed whale stocks in this Sanctuary, as may from time to time be determined by the Com-mission. As they have been classified as “endangered” (at a very high risk of extinction) by the International Union for the Conservation of Nature (IUCN), of the three species targeted by JARPAII, this is the one about which the least is known, but it is probable that they are still severely depleted relative to the pre-1904 population. There are limited indications of some recovery in population numbers in the Southern Hemisphere but no agreed population estimate exists. Also, the population structure of the Southern Hemisphere fin whales remains unknown. Accordingly, there is risk of the depletion of small stocks.

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