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2012 Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press 1
International Tribunal for the Law of the Sea
Patibandla Chandrasekhara Rao
Table of Contents
A. Establishment
1. General Organization
2. Seabed Disputes Chamber and Other Special Chambers
3. Internal Mode of Operation
B. The Rules
C. Competence
D. The Cases
E. Assessment
Select Bibliography
Select Documents
A. Establishment
1

The International Tribunal for the Law of the Sea (ITLOS) is a permanent international judicial body established by Art.
287 UN Convention on the Law of the Sea ( Conferences on the Law of the Sea; Law of the Sea; Law of the Sea,
Settlement of Disputes). ITLOS functions in accordance with the provisions of the UN Convention on the Law of the
Sea and Annex VI to the Convention, which contains the Statute of the Tribunal (ITLOS Statute). Pursuant to Art. 16
ITLOS Statute, ITLOS adopted on 28 October 1997 the Rules of the Tribunal (ITLOS Rules; International Courts and
Tribunals, Procedure; International Courts and Tribunals, Rules and Practice Directions [ECJ, CFI, ECtHR, IACtHR,
ICSID, ITLOS, WTO Panels and Appellate Body]). And on the same day, pursuant to Art. 50 ITLOS Rules, ITLOS
adopted the Guidelines concerning the Preparation and Presentation of Cases before the Tribunal. In accordance
with Art. 40 ITLOS Rules, ITLOS adopted on 31 October 1997 the Resolution on the Internal Judicial Practice of the
Tribunal (ITLOS Resolution). Acting pursuant to Art. 50 ITLOS Rules, ITLOS adopted on 17 March 2009 the Guidelines
concerning the Posting of a Bond or Other Financial Security with the Registrar.
2

According to Art. 1 ITLOS Statute, ITLOS has its seat in the Free and Hanseatic City of Hamburg in the Federal Republic
of Germany. It may, however, sit and exercise its functions elsewhere whenever it considers this desirable.
1. General Organization
3

Art. 2 ITLOS Statute provides that ITLOS is to be composed of 21 members (judges) elected by secret ballot by the
States Parties to the UN Convention on the Law of the Sea from among persons enjoying the highest reputation for
fairness and integrity and with recognized competence in the field of the law of the sea ( International Courts and
Tribunals, Judges and Arbitrators). Under the same provision, ITLOS as a whole must maintain representation of the
principal legal systems of the world and ensure equitable geographical distribution. The geographical distribution as
decided by the fifth Meeting of States Parties in 1996, and maintained in elections held in 1996, 1999, 2002, 2005 and
2008, is as follows: five members from the African Group; five members from the Asian Group; four members from the
Latin American and Caribbean Group; four members from the Western European and other States Group; and three
members from the Eastern European Group. In 2009, the 19
th
Meeting of States Parties changed the arrangement for
the allocation of seats on ITLOS. According to the agreed arrangement, the allocation of seats on the Tribunal shall be
in accordance with the relevant provisions of the Convention, providing that no regional group will have fewer than three
seats. From the next election, ITLOS shall have the following composition: (a) five members from the Group of African
States; (b) five members from the Group of Asian States; (c) three members from the Group of Eastern European
States; (d) four members from the Group of Latin American States; (e) three members from the Group of Western
European and other States; and (f) the remaining one member of ITLOS from among the Group of African States, the
Group of Asian States and the Group of Western European and other States. Furthermore, according to the agreed
arrangement, the above provisions do not prejudice or affect future arrangements for elections.
4

As stated in Art. 4 ITLOS Statute, the persons elected to ITLOS are those nominees who obtain the largest number
of votes and a two-thirds majority of the States Parties present and voting, provided that such majority includes a
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majority of the States Parties. Art. 5 ITLOS provides that members are elected for nine years and may be re-elected.
The members elected at the first election met for the first time on 1 October 1996; the official inauguration of ITLOS,
however, took place on 18 October 1996. The members of ITLOS must continue to discharge their duties until they
have been replaced. And once replaced, they must finish any proceedings which they have begun before the date of
their replacement in accordance with Art. 5 ITLOS Statute.
5

With a view to preserving judicial independence and integrity, Art. 7 ITLOS Statute requires members of ITLOS to
refrain from engaging in incompatible activities.
6

In the interest of ensuring impartial administration of justice, Art. 8 ITLOS Statute prohibits a member of ITLOS from
participating in the decision of any case in which he has previously taken part as agent, counsel or advocate for one
of the parties, or as a member of a national or international court or tribunal, or in any other capacity ( International
Courts and Tribunals, Agents, Counsel and Advocates).
7

The independence of the members of ITLOS is assured in several ways. No member may be removed unless in the
unanimous opinion of the other members of ITLOS, he has ceased to fulfil the required conditions (Art. 9 ITLOS
Statute). The salaries, allowances, and compensation of members, as determined from time to time at meetings of
the States Parties, taking into account the workload of ITLOS, may not be decreased during the term of office (Art. 18
ITLOS Statute). When engaged in the business of ITLOS, the members of ITLOS, whether elected or ad hoc, enjoy
diplomatic privileges and immunities (Art. 10 ITLOS Statute; Immunity, Diplomatic). These privileges and immunities
have been defined in the Agreement on the Privileges and Immunities of the Tribunal (adopted at the seventh Meeting
of the States Parties on 23 May 1997, entered into force on 30 December 2001) and the Headquarters Agreement
between ITLOS and the Federal Republic of Germany (signed on 14 December 2004). Before taking up his duties,
each member of ITLOS makes a solemn declaration in an open session that he will exercise his powers impartially
and conscientiously (Art. 11 ITLOS Statute).
8

The expenses of ITLOS are borne by the States Parties and by the International Seabed Authority (ISA) on such
terms and in such a manner as shall be decided in meetings of the States Parties (Art. 19 ITLOS Statute). When a State
Party or the ISA is a party to a case submitted to ITLOS, it is not required to make any other contribution towards the
expenses of ITLOS; in respect of any other party to a case, ITLOS will fix the amount which that party is to contribute
to offset the expenses of ITLOS.
9

ITLOS is comprised of the President, the Vice-President, the other judges of ITLOS, judges ad hoc, if any, the Seabed
Disputes Chamber and other chambers, the Registrar, the Deputy Registrar, and the other staff of the Registry. The
President and the Vice-President are elected by ITLOS for three years; they may be re-elected. The conception of the
office of the President in the ITLOS Statute, ITLOS Rules, ITLOS Resolution, and the decisions of ITLOS on the role
of the President is fundamentally the same as that of the office of the President of the International Court of Justice
(ICJ). The President occupies a pivotal position in relation to the work of ITLOS and its administration. He directs the
work of ITLOS, supervises the administration of ITLOS and presides at all meetings of ITLOS. He exercises certain
powers of ITLOS when the Tribunal is not sitting (Art. 12 ITLOS Rules).
10

The ITLOS Statute makes provision for the ad hoc appointment of judges to ITLOS (Art. 17 ITLOS Statute). If ITLOS
or a special chamber includes upon the bench a member of the nationality of one of the parties to a dispute, any other
party may choose a person to participate as a member of ITLOS or of a special chamber, as the case may be. If ITLOS,
or a special chamber, does not include upon the bench a member of the nationality of the parties to the dispute, each
of those parties may choose a person to participate as a member of ITLOS or of the special chamber. Should there
be several parties in the same interest, they are considered as one party only. Judges ad hoc must fulfil the conditions
required by Arts 2, 8 and 11 ITLOS Statute. Provision is also made for the particular case of a judge ad hoc chosen by
an entity other than a State Party, ie, international organization, natural or juridical person, or State enterprise. Judges
ad hoc participate in the decision on terms of complete equality with their colleagues. As of January 2001, judges ad
hoc have been chosen in six cases heard by ITLOS.
11

In any dispute involving scientific or technical matters, ITLOS may, at the request of a party or proprio motu, select, in
consultation with the parties, no fewer than two scientific or technical experts chosen preferably from the relevant list
prepared in accordance with Art. 2 Annex VIII UN Convention on the Law of the Sea to sit with ITLOS but without the
right to vote (Art. 289 UN Convention on the Law of the Sea; Art. 42 ITLOS Rules). These experts are to be distinguished
from experts whom the parties in a dispute or ITLOS may arrange to call to give evidence in the proceedings of a case
(Arts 72 and 77 ITLOS Rules; International Courts and Tribunals, Evidence).
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12

The Registrar and the Deputy Registrar are each elected by ITLOS for a period of five years from among candidates
nominated by its members (Arts 32 and 33 ITLOS Rules). The Registrar is the head of the Registry, and, in the discharge
of his functions, he is responsible to ITLOS only. The main functions of the Registrar are specified in Art. 36 ITLOS
Rules.
2. Seabed Disputes Chamber and Other Special Chambers
13

The Seabed Disputes Chamber is part of ITLOS. It is a standing body like ITLOS and was established on 20 February
1997 during the second session of ITLOS in accordance with Part XI, Section 5 UN Convention on the Law of the
Sea and Art. 14 ITLOS Statute. The Seabed Disputes Chamber deals with disputes arising out of the exploration and
exploitation of the International Seabed Area. It has exclusive jurisdiction over such disputes ( Judicial Settlement
of International Disputes). Further, the Seabed Disputes Chamber is required to give advisory opinions at the request
of the ISA Assembly or the ISA Council on legal questions arising within the scope of their activities (Arts 159 (10) and
191 UN Convention on the Law of the Sea). The Chamber is composed of 11 members, selected by a majority of the
elected members of ITLOS from amongst themselves. The terms of office of members selected at triennial elections
expire on 30 September every three years thereafter (Art. 23 ITLOS Rules). As in ITLOS, it is also a requirement
in the Seabed Disputes Chamber that the representation of the principal legal systems of the world and equitable
geographical distribution shall be assured. The ISA Assembly may adopt recommendations of a general nature relating
to such representation and distribution (Art. 35 ITLOS Statute). A judgment given by the Seabed Disputes Chamber is
to be considered as one rendered by ITLOS (Art. 15 ITLOS Statute). Provision is also made for the Seabed Disputes
Chamber to form an ad hoc chamber, composed of three of its members, for dealing with a particular dispute submitted
to it in accordance with Art. 188 (1) (b) UN Convention on the Law of the Sea ( International Courts and Tribunals,
Chambers; International Courts and Tribunals, Judgments).
14

The special chambers of ITLOS (Art. 15 ITLOS Statute) are modelled on similar chambers of the ICJ (Art. 26 ICJ
Statute). ITLOS formed three types of special chambers: one for dealing with certain categories of disputes; one for
dealing with a particular dispute; and one for hearing and determining disputes by summary procedure. With regard to
chambers of the first type, on 14 February 1997, ITLOS formed the Chamber for Fisheries Disputes and the Chamber for
Marine Environment Disputes and, on 16 March 2008, the Chamber for Maritime Delimitation Disputes. The members of
these chambers are selected from time to time by ITLOS, generally for periods not exceeding three years. The chamber
of the third type, known as the Chamber of Summary Procedure (Chamber), is formed annually. The President and
the Vice-President are members ex officio of the Chamber. The Chamber is also competent to prescribe interim
(provisional) measures of protection if ITLOS is not in session or a sufficient number of members are not available to
constitute a quorum (Art. 25 ITLOS Statute). The Chamber deals with applications for the prompt release of vessels
and crews under Art. 292 UN Convention on the Law of the Sea, but only if the applicant requests the Chamber to do
so and then only if the detaining State notifies ITLOS that it concurs with the request within five days of receiving notice
of the application (Art. 112 ITLOS Rules). This provision has been invoked unsuccessfully on two occasions.
The second type of chamber was formed by ITLOS, by Order dated 20 December 2000, in Conservation
and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European
Community) (Constitution of Chamber) (Swordfish Case). An ad hoc Chamber should be of particular
interest to parties considering arbitration.
15

According to Art. 15 (4) ITLOS Statute, disputes may be heard and determined by the special chambers of ITLOS if the
parties so request. Unless they so request, any dispute referred to ITLOS will be heard by the full bench. A judgment
given by any of the special chambers is considered as rendered by ITLOS (Art. 15 ITLOS Statute).
16

ITLOS established several committees, namely, the Committee on Rules and Judicial Practice; the Committee on
Budget and Finance, the Committee on Staff and Administration, the Committee on Library, Archives and Publications,
the Committee on Buildings and Electronic Systems, and the Committee on Public Relations. The recommendations
of the Committees are placed before ITLOS for approval.
3. Internal Mode of Operation
17

The internal functioning of ITLOS is governed by Arts 40 to 42 ITLOS Rules. ITLOS adopted a resolution in 1997 to
govern its internal judicial practice after the closure of the written proceedings in cases. Since ITLOS is a standing court,
its judges are required to hold themselves permanently available to exercise their functions and attend all meetings
of ITLOS, unless they are absent on leave during judicial vacations, if any, or are prevented from attending by illness
or for other serious reasons duly explained to the President (Art. 41 (2) ITLOS Rules). The deliberations of ITLOS take
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place in private and remain secret. While a strict embargo is placed on judicial deliberations being made public, ITLOS
is given discretion to publish or allow publication of any part of its deliberations on matters that are not judicial in nature
(Art. 42 ITLOS Rules). The publications of ITLOS include: the Yearbook; Reports of Judgments, Advisory Opinions and
Orders; Pleadings, Minutes of Public Sittings and Documents and Basic Texts. ITLOS submits Annual Reports to the
Meetings of the States Parties. It also publicizes its work through press releases and its website.
18

A quorum of 11 elected members is required to constitute ITLOS. A quorum of seven of the members selected by
ITLOS is required to constitute the Seabed Disputes Chamber. The quorum for meetings of the Chamber of Summary
Procedure is three judges. The quorum for meetings of the Chamber for Fisheries Disputes and the Chamber for
Marine Environment Disputes is five judges. The quorum required for meetings of the Chamber for Maritime Delimitation
Disputes is six members. Ad hoc judges are not to be taken into account for the calculation of the quorum.
B. The Rules
19

Since ITLOS enjoys a standing comparable to that of the ICJ in matters relating to the law of the sea it is but natural
that ITLOS modelled its rules on the ICJ Rules ( International Court of Justice, Rules and Practice Directions), while
departing from the latter where appropriate, keeping in view the differences between its Statute and that of the ICJ in
respect of their competences and also juridical writings seeking reforms in procedures for increasing the effectiveness
of the ICJ.
20

Consistent with the urging of Art. 49 ITLOS Rules that the proceedings before ITLOS shall be conducted without
unnecessary delay or expense, ITLOS introduced several features in the rules and ITLOS Resolution which are not
present in the corresponding documents of the ICJ. These new features may be seen in respect of, among other
things, the fixing of time-limits for the submission of pleadings, filing of preliminary objections and presentation of
submissions by the other party, and the fixing of the date for the opening of the oral proceedings. Other new features
include the introduction of the initial deliberations stage after the closure of the written proceedings and prior to the
opening of the oral proceedings, to enable judges to exchange views on the written pleadings and the conduct of the
case, the procedural elaboration of the new concept of preliminary proceedings set out in the UN Convention on the
Law of the Sea, the reporting obligation of parties as to their compliance with provisional measures prescribed by
ITLOS, short time-limits for a hearing and rendering of judgment in proceedings involving prompt release of vessels
and crews, and the introduction of elaborate rules of procedure concerning proceedings in contentious cases before
the Seabed Disputes Chamber.
21

Though ITLOS was established by the UN Convention on the Law of the Sea, which represented the culmination of
efforts sponsored by the UN, it is not an organ of the UN, unlike the ICJ. Nor is it organically linked with any other
body established by the UN Convention on the Law of the Sea. ITLOS is an autonomous international judicial body.
It is, however, part of the system for the peaceful settlement of international disputes as laid down by the UN
Charter. As a sign of excellent linkages between ITLOS and the UN, they concluded an Agreement on Cooperation and
Relationship in 1997 (2000 UNTS 468). Following UN General Assembly Resolution 55/7 of 30 October 2000, the UN
Secretary-General established a voluntary trust fund to assist States, in particular developing States, in the settlement
of disputes through ITLOS ( Trust Funds). The trust fund was used in 2004 in connection with the Juno Trader Case.
In connection with its annual consideration of the item Oceans and the Law of the Sea, the UN General Assembly
makes recommendations to States which are of direct interest to ITLOS.
22

The co-operation between ITLOS and the UN is made possible mainly through recommendations made by the Meetings
of the States Parties to the UN Convention on the Law of the Sea which are convened every year in order to deal with,
among other things, matters concerning the organization and budget of ITLOS. In relation to administrative, budgetary,
and financial matters, and the election of the members of ITLOS, the Meeting of the States Parties is to ITLOS what
the UN General Assembly is to the ICJ.
23

ITLOS Registry also has administrative arrangements for promoting co-operation with a number of international
organizations, especially in the field of information-sharing, including the ICJ, the World Trade Organization
(WTO), the International Hydrographic Organization (IHO), the International Maritime Organization (IMO),
the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural
Organization (UNESCO), the Secretariat of the ISA, the Asian-African Legal Consultative Organization (AALCO), the
European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), the International
Labour Organization (ILO), the Permanent Court of Arbitration (PCA), the United Nations Environment Programme
(UNEP), and the Food and Agriculture Organization of the United Nations (FAO) ( Co-operation, International Law
of; International Organizations or Institutions, External Relations and Co-operation).
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24

English and French are the official languages of ITLOS (Art. 43 ITLOS Rules).
C. Competence
25

ITLOS is open to States Parties to the UN Convention on the Law of the Sea (Art. 20 ITLOS Statute). States and entities
specified in Art. 305 (1) (c) to (f) UN Convention on the Law of the Sea may become parties to the Convention (Art. 1
UN Convention on the Law of the Sea). ITLOS is also open to entities other than States Parties in any case expressly
provided for in Part XI UN Convention on the Law of the Sea or in any case submitted pursuant to any other agreement
conferring jurisdiction on ITLOS which is accepted by all the parties to that case (Art. 20 ITLOS Statute).
26

ITLOS has jurisdiction over any dispute concerning the interpretation or application of the UN Convention on the Law of
the Sea which is submitted to it in accordance with Part XV UN Convention on the Law of the Sea. It also has jurisdiction
over any dispute concerning the interpretation or application of an international agreement related to the purposes
of the Convention (Art. 288 UN Convention on the Law of the Sea; Interpretation in International Law). ITLOS has
jurisdiction over all disputes and all applications submitted to it in accordance with the UN Convention on the Law of
the Sea and all matters specifically provided for in any other agreement which confers jurisdiction on ITLOS (Art. 21
ITLOS Statute; International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications). There
are 10 such agreements so far, including the agreement on straddling and highly migratory fish stocks, which confer
jurisdiction on ITLOS. Further, any dispute concerning the interpretation or application of a treaty or convention already
in force and relating to the subject-matter covered by the UN Convention on the Law of the Sea may, if all the parties to
such treaty or convention so agree, be submitted to ITLOS in accordance with such agreement (Art. 22 ITLOS Statute).
In the event of a dispute as to whether ITLOS has jurisdiction, the matter is to be settled by the decision of the Tribunal
(Art. 288 UN Convention on the Law of the Sea).
27

Part XV UN Convention on the Law of the Sea deals with settlement of disputes. Section 1 (Arts 27985 UN Convention
on the Law of the Sea) of this Part contains general provisions on the subject. Section 2 (Arts 28696 UN Convention
on the Law of the Sea) deals with compulsory procedures entailing binding decisions. ITLOS is just one of the means
available to the parties to the UN Convention on the Law of the Sea for binding settlement of disputes concerning
the interpretation or application of the UN Convention on the Law of the Sea, the others being: the ICJ; an arbitral
tribunal constituted in accordance with Annex VII UN Convention on the Law of the Sea; or a special arbitral tribunal
constituted in accordance with Annex VIII UN Convention on the Law of the Sea for one or more of the categories of
disputes specified therein (Art. 287 UN Convention on the Law of the Sea; Res iudicata). One or more of the means
referred to above may be chosen by a State by means of a written declaration. Of the 160 parties as of January 2011
that is, 159 States and one international organization, namely the European (Economic) Community, now European
Union43 have filed declarations under Art. 287 UN Convention on the Law of the Sea; of these 43, 26 States Parties
have chosen ITLOS as the means or one of the means for the settlement of disputes concerning the interpretation or
application of the UN Convention on the Law of the Sea. Recently, the Union of Myanmar and Bangladesh have issued
declarations under Art. 287 UN Convention on the Law of the Sea, by which each country accepted the jurisdiction of
the Tribunal for the settlement of a dispute between the Union of Myanmar and Bangladesh relating to the delimitation
of the maritime boundary between the two countries in the Bay of Bengal ( Maritime Boundaries, Delimitation). Unless
both the applicant and the respondent filed declarations accepting the same means for the settlement of the dispute,
arbitration becomes a compulsory procedure in accordance with Annex VII; the parties are, however, free to agree
otherwise. Section 3 (Arts 29799 UN Convention on the Law of the Sea) sets out limitations and exceptions to the
applicability of the compulsory procedures in Section 2. However, these limitations and exceptions do not detract from
an agreement of the parties to submit their dispute to ITLOS.
28

ITLOS has compulsory residual jurisdiction in matters involving the prompt release of detained vessels and crews
under Art. 292 UN Convention on the Law of the Sea and provisional measures under Art. 290 (5) UN Convention
on the Law of the Seaas these matters require immediate action and must be dealt with without delay. Out of the
18 cases submitted to ITLOS, as many as 13 cases have been instituted on the basis of such compulsory jurisdiction
as of January 2011.
29

ITLOS may also 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 ITLOS of a request for such an opinion and a request for an
advisory opinion is transmitted to the Tribunal by whatever body is authorized by or in accordance with the agreement
to make the request to ITLOS (Art. 138 ITLOS Rules).
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30

The jurisdiction, powers, and functions of the Seabed Disputes Chamber and of special chambers have been described
above in paras 13 to 15.
31

The applicable law of ITLOS consists of the UN Convention on the Law of the Sea and other rules of international law
not incompatible with the UN Convention on the Law of the Sea. ITLOS may also decide a case ex aequo et bono,
if the parties so agree (Art. 293 UN Convention on the Law of the Sea).
32

The UN Convention on the Law of the Sea has innovative provisions with regard to avoiding abuse of the legal process
(Art. 294 UN Convention on the Law of the Sea). ITLOS is empowered to determine whether an application made
in respect of a dispute referred to in Art. 297 UN Convention on the Law of the Sea constitutes an abuse of legal
process or is prima facie unfounded (Art. 294 UN Convention on the Law of the Sea). Art. 294 makes clear, however,
that nothing therein affects the rights of any party to a dispute to make preliminary objections in accordance with the
applicable rules of procedure. Art. 96 ITLOS Rules contains further provisions in regard to the preliminary proceedings.
33

A preliminary objection to the jurisdiction of ITLOS or to the admissibility of the application, or any other objection
upon which a decision is requested before any further proceedings on the merits, must be made within 90 days
from the institution of proceedings (Art. 97 ITLOS Rules). Once an objection is made, the proceedings on the merits
are suspended. This is similar to the suspension of proceedings on the merits following the initiation of preliminary
proceedings under Art. 96 ITLOS Rules. It is left open for a party to file preliminary proceedings and preliminary
objections simultaneously. Apparently, an application involving preliminary proceedings cannot be joined to the
proceedings on the merits.
34

The judgments of ITLOS are final and without appeal (Art. 33 ITLOS Statute). ITLOS is competent to interpret or
revise its judgment (Arts 12629 ITLOS Rules; Judgments of International Courts and Tribunals, Interpretation of;
Judgments of International Courts and Tribunals, Revision of). In the event of dispute as to the meaning or scope
of a judgment, any party may make a request for its interpretation (Art. 126 ITLOS Rules). A request for revision of a
judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor,
which fact was, when the judgment was given, unknown to the Tribunal and also to the party requesting revision, always
provided that such ignorance was not due to negligence. Such request must be made at the latest within six months of
the discovery of the new fact and before the lapse of ten years from the date of the judgment (Art. 127 ITLOS Rules).
35

Arts 31 and 32 ITLOS Statute provide for two types of interventions broadly similar to those provided for in the ICJ
Statute ( International Courts and Tribunals, Intervention in Proceedings). The first concerns a request to intervene by
a State Party which considers that it has an interest of a legal nature that may be affected by the decision in any dispute.
The second concerns the intervention as of right in which a State Party may take recourse whenever the interpretation
or application of the UN Convention on the Law of the Sea is in question or whenever, pursuant to Arts 21 and 22
ITLOS Statute, the interpretation or application of an international agreement is in question. The ITLOS Rules provide
that permission to intervene under the terms of Art. 31 ITLOS Statute may be granted, irrespective of the choice made
by the applicant under Art. 287 UN Convention on the Law of the Sea.
36

As a general rule, each party to a dispute before ITLOS has to bear its own costs; however, ITLOS may decide otherwise
(Art. 34 ITLOS Statute).
D. The Cases
37

As of January 2011, 18 cases have been submitted to ITLOS. Of these, three cases were instituted by special agreement
of the parties: The M/V SAIGA (No 2) Case ( Saiga Cases), the Swordfish Case ( Fish Stocks) and, more recently,
the Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal
(Case No 16). The first of these two cases also involved the prescription of provisional measures under Art. 290 (1) UN
Convention on the Law of the Sea. Nine cases involved applications for prompt release of vessels and crews under
Art. 292 UN Convention on the Law of the Sea: The M/V SAIGA (No 1) Case, The Camouco Case, The Monte
Confurco Case, The Grand Prince Case, The Chaisiri Reefer 2 Case, The Volga Case, The Juno Trader Case,
The Hoshinmaru Case, and The Tomimaru Case. Four cases concerned the prescription of provisional measures
under Art. 290 (5) UN Convention on the Law of the Sea: the Southern Bluefin Tuna Cases, the MOX Plant Case
( MOX Plant Arbitration and Cases), and Land Reclamation by Singapore in and around the Straits of Johor (Land
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Reclamation Case). The proceedings in the Southern Bluefin Tuna Cases were joined upon the requests of New
Zealand and Australia. Although the number of cases referred to ITLOS over a span of 16 years has not been large,
ITLOS utilized the opportunities it was given to expound progressively the scope of a number of the provisions of the
UN Convention on the Law of the Sea.
38

In The SAIGA (No 2) Casethe only case decided by ITLOS on the meritsthe Tribunal has had occasion to lay
down substantive principles with regard to the need for the establishment of a genuine link between the flag State
and the vessel before the former can bring an international claim against another State in respect of illegal measures
taken against the vessel ( Claims, International; Flag of Ships); the scope and applicability of the local remedies
rule in cases involving direct violations of the rights of the flag State ( Local remedies, Exhaustion of); the entitlement
of a flag State to claim protection in respect of persons and things on board the ship flying its flag irrespective of the
nationalities of such persons; the competence of ITLOS to determine the compatibility of national laws and regulations
in the framework of the UN Convention on the Law of the Sea (see also International Law and Domestic [Municipal]
Law; International Law and Domestic [Municipal] Law, Law and Decisions of International Organizations and Courts);
the competence of a coastal State to apply its customs laws within the exclusive economic zone; the availability to a
coastal State of the principle of public interest to prohibit any activities in the exclusive economic zone which affect its
fiscal or economic interests; the extent to which a coastal State can rely on the defence of state of necessity in order to
justify an otherwise wrongful act in the exclusive economic zone ( Necessity, State of); the conditions which needed
to be satisfied for the exercise of the right of hot pursuit under Art. 111 UN Convention on the Law of the Sea; the
application of considerations of humanity in the law of the sea, especially the basic principles concerning the use of
force in the arrest of a ship at sea and against the persons on board; and entitlement to reparation for damage suffered
by a flag State as well as for damage or other loss suffered by its vessel, including all persons involved or interested
in its operation ( Humanity, Principle of; Reparations; State Responsibility).
39

It is interesting to note that ITLOSwhile directing Guinea to pay compensation to Saint Vincent and the Grenadines
in the sum specified in the operative provisions of the judgment with interestfound a way to indicate how that sum
should be distributed by the flag State in respect of damage to the ship, financial losses of the ship users, the operators
of the ship, the owners of the cargo, and the Master, members of the crew and other persons on board the ship,
etc. Compensation was also awarded for injury, pain and suffering, disability, and psychological damages of officers
concerned.
40

The Swordfish Case is the first case of its kind in whichthanks to the UN Convention on the Law of the Seaan
international organization became a party in a contentious case before an international court. This is also the first case
in which the parties agreed that the dispute be referred to a special chamber of ITLOS to be formed in accordance with
Art 15 (2) ITLOS Statute. Since the parties informed the President of the Special Chamber that they had reached a
provisional arrangement concerning the dispute and requested that the proceedings before the Special Chamber be
suspended, the President extended the time-limit for making preliminary objections until 1 January 2008, thus enabling
the parties to reach a final settlement of the dispute within the extended period. More recently, the parties requested
the Special Chamber to extend the time-limits for the proceedings by one more year. The Special Chamber, having
ascertained the reasons from the parties in support of their request, extended the time-limits, as requested by the
parties. This underlines ITLOSs readiness to promote, where appropriate, the friendly settlement of the dispute between
the parties.
41

At the request of the parties, on 17 December 2009, the Special Chamber issued an Order pursuant to Art. 105 (2) ITLOS
Rules. In its Order, the Special Chamber recorded the discontinuance, by agreement of the parties, of the proceedings
initiated on 20 December 2000 by Chile and the European Community and ordered that the case be removed from
the list of cases. The Order also recorded the elements of the terms of the settlement agreed between the parties.
This demonstrates that an important function of the Tribunal is to assist parties, where appropriate, in reaching direct
settlement of the dispute between them. The outcome of that case may be seen as a classic example of what the
Tribunal may do to bring about settlement of disputes by peaceful means chosen by the parties.
42

The remaining cases that were brought before ITLOS were submitted based on its residual compulsory jurisdiction. A
majority of ITLOS judgments were delivered in prompt-release cases under Art. 292 UN Convention on the Law of the
Sea. All such cases arose on account of the alleged non-compliance with the provisions of Art. 73 (2) UN Convention
on the Law of the Sea, which reads that [a]rrested vessels and their crews shall be promptly released upon the posting
of reasonable bond or other security. ITLOS observed that Art. 73 UN Convention on the Law of the Sea identifies two
interests: the interest of the coastal State to take appropriate measures as may be necessary to ensure compliance with
the laws and regulations adopted by it on the one hand; and the interest of the flag State in securing prompt release of
its vessels and their crews from detention on the other. ITLOS strikes a fair balance between these two interests (The
Monte Confurco Case para. 70). Similarly, the object of Art. 292 UN Convention on the Law of the Sea is to reconcile
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2012 Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press 8
the interest of the flag State to have its vessel and its crew released promptly with the interest of the detaining State
to secure appearance in its court of the Master and the payment of penalties. And, the balance of interests emerging
from Arts 73 and 292 UN Convention on the Law of the Sea provides the guiding criterion for ITLOS in its assessment
of the reasonableness of the bond.
43

ITLOS held that the proceedings under Art. 292 UN Convention on the Law of the Sea, as specified in para. 3 thereof,
can deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic
forum against the vessel, its owner, or its crew (The Monte Confurco Case para. 74). Although, in proceedings under
Art. 292 UN Convention on the Law of the Sea, ITLOS is not precluded from examining the facts and circumstances of
the case to the extent necessary for a proper appreciation of the reasonableness of the bond, since such proceedings
must be concluded without delay, there is a limitation on the extent to which ITLOS can take cognizance of the facts
in dispute and seek evidence in support of the allegations made by the parties. While indicating the factors relevant
in an assessment of the reasonableness of the bonds or other financial security, ITLOS observed that they included
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, and that their assessment must be an objective one (The Camouco Case para. 67). In The Hoshinmaru Case,
ITLOS expressed the view that the amount of a bond should be proportionate to the gravity of the alleged offences
(at para. 88). It also observed that it does not consider it reasonable that a bond should be set on the basis of the
maximum penalties which would be applicable to the owner and the Master under the laws of the detaining State (The
Hoshinmaru Case para. 93). Nor does ITLOS consider it reasonable that the bond should be calculated on the basis
of the confiscation of the vessel, if the circumstances of the case do not so demand it (ibid).
44

ITLOS clarified that the release from detention can be subject only to the posting of a bond or other security whose
reasonableness can be assessed in financial terms and to no other conditions additional to a bond or other financial
security. ITLOS observed that, in the scheme of Art. 292 UN Convention on the Law of the Sea, it is the flag State of
the vessel when the application was made that is given the locus standi to file the application for release, though the
application as such may be made by or on behalf of the flag State of the vessel and that the applicant should be the
flag State (The Grand Prince Case paras 66, 93; International Courts and Tribunals, Standing). Since ITLOS must
satisfy itself that it has jurisdiction to deal with the case as submitted, and must, if necessary, go into the matter proprio
motu, it has the right to deal with all aspects of the question of jurisdiction, whether or not they have been expressly
raised by the parties. A majority of the prompt release cases raised international concerns about illegal, unregulated,
and unreported fishing in the Southern Ocean and the dangers this posed to the conservation of fisheries resources
and the maintenance of the ecological balance of the environment ( Biological Diversity, International Protection;
Conservation of Natural Resources). ITLOS took note of these concerns, though it indicated that the submissions
in this regard could not be adjudged in the proceedings under Art. 292 UN Convention on the Law of the Sea (The
Camouco Case paras 59, 60). ITLOS also declared that it is not permissible to read the requirement of exhaustion
of local remedies, set out in Art. 295 UN Convention on the Law of the Sea, into Art. 292 (ibid para. 57). In The
Tomimaru Case, ITLOS noted that considering the object and purpose of the prompt release procedure, a decision
to confiscate a vessel does not prevent the Tribunal from considering an application for prompt release of such vessel
while proceedings are still before the domestic courts of the detaining State (at para. 78). ITLOS also observed that
the decision given by a highest court brings to an end the procedures before the domestic courts, that in such a case
the confiscation of a vessel becomes final and that the Tribunal will not be competent to release the vessel under Art.
292 UN Convention on the Law of the Sea (The Tomimaru Case para. 79).
45

ITLOS deals with a prompt release case on a priority basis. After receiving the application, the detaining State may
submit a statement in response no later than 96 hours before the hearing. The hearing has to take place within a period
of 15 days commencing with the first working day following the date on which the application is filed. Unless otherwise
decided, each of the parties is given one day to present its evidence and arguments. ITLOS is required to deliver its
judgment within 14 days after the closure of the hearing.
46

The Chaisiri Reefer 2 Case involved an application under Art. 292 UN Convention on the Law of the Sea for the prompt
release of a vessel. After the dates for the hearing were fixed, the parties informed ITLOS that they had reached a
settlement and, consequently, the case was removed from the list of cases in accordance with the provisions of Art.
105 (2) and (3) ITLOS Rules. This was a case in which, it would appear, the availability of relief through ITLOS helped
promote an out-of-court settlement.
47

The three provisional measures cases decided by ITLOS under Art. 290 (5) UN Convention on the Law of the Sea,
dealt with important issues concerning the protection of the marine environment ( Marine Environment, International
Protection; Marine Living Resources, International Protection). In such cases, generally speaking, the following
questions arise: whether the requirements of procedures under Part XV, Section 1 UN Convention on the Law of the
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2012 Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press 9
Sea have been satisfied; whether ITLOS is satisfied that prima facie the arbitral tribunal established pursuant to Annex
VII UN Convention on the Law of the Sea would have jurisdiction; and, whether the urgency of the situation requires
the prescription of provisional measures, that is, whether in the circumstances of the case and on the evidence before
ITLOS, it can be said that there is a reasonable possibility of either prejudice or damage to the rights of the applicant
State or serious harm to the marine environment in the period during which the Annex VII arbitral tribunal is not yet in
a position to modify, revoke or affirm those provisional measures (Land Reclamation Case para. 68). Whereas the
requirement of urgency in Art. 290 (5) UN Convention on the Law of the Sea underlines the need for prescription of
provisional measures, pending the constitution of an arbitral tribunal, provisional measures as such may be prescribed
only if, as stated in Art. 290 (1) UN Convention on the Law of the Sea, ITLOS considers such measures appropriate
under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to
the marine environment. Art. 290 (5) UN Convention on the Law of the Sea has thus to be read in conjunction with
Art. 290 (1) of the Convention.
48

ITLOS has declared that: a State Party is not obliged to pursue procedures under Part XV, Section 1 UN Convention
on the Law of the Sea when it concludes that the possibilities of settlement have been exhausted (Southern Bluefin
Tuna Cases para. 60); there is nothing in Art. 290 UN Convention on the Law of the Sea to suggest that the measures
prescribed by ITLOS must be confined to the period prior to the constitution of ITLOS (Land Reclamation Case para.
67); Art. 282 UN Convention on the Law of the Sea is concerned with general, regional, or bilateral agreements which
provide for the settlement of disputes concerning the interpretation or application of the Convention; where the dispute
settlement procedures under other agreements concern the interpretation or application of those agreements and not
disputes arising under the UN Convention on the Law of the Sea, such procedures would not attract Art. 282 UN
Convention on the Law of the Sea; and the urgency of the situation must be assessed taking into account the period
during which the arbitral tribunal established according to Annex VII UN Convention on the Law of the Sea is not yet in
a position to modify, revoke or affirm those provisional measures (Art. 290 (5) UN Convention on the Law of the Sea).
49

Taking advantage of the wording in Art. 290 UN Convention on the Law of the Sea that provisional measures may
be prescribed to prevent serious harm to the marine environment, ITLOS declared that conservation of the living
resources of the sea is an element in the protection and preservation of the marine environment, that the parties must
always act with prudence and caution to ensure that effective measures are taken to prevent serious harm to the living
resources of the sea, and that the duty to co-operate is a fundamental principle in the prevention of pollution of the
marine environment under Part XII UN Convention on the Law of the Sea and general international law and that rights
arise therefrom which ITLOS may consider appropriate to preserve under Art. 290 UN Convention on the Law of the
Sea (Southern Bluefin Tuna Cases para. 77; Marine Pollution from Ships, Prevention of and Responses to). ITLOS
also underlined the duty of each party to ensure that no action is taken that might prejudice the carrying out of any
decision on the merits which the arbitral tribunal may render (Southern Bluefin Tuna Cases para. 90 (b)). Following Art.
89 (5) ITLOS Rules, ITLOS has not hesitated to prescribe measures different in whole or in part from those requested
by the parties, for the protection of the marine environment.
50

ITLOS emphasized the rights arising out of the duty to co-operate in exchanging information concerning the risks
or effects of the operation of the activities concernedso-called procedural rightsas justifying the prescription of
provisional measures. It underlined the need for the parties to reach agreement with other States and fishing entities
engaged in fisheries for fish stocks concerned, with a view to ensuring conservation and promoting the objective of
optimum utilization of the stock (Southern Bluefin Tuna Cases para. 90 (f)).
51

By virtue of Art. 290 (6) UN Convention on the Law of the Sea, the parties are bound to comply promptly with provisional
measures. Invoking the provisions of Art. 95 ITLOS Rules, ITLOS has in all provisional measures cases invariably
called upon all parties to submit reports and information on compliance with provisional measures prescribed by it. In
the Land Reclamation Case, ITLOS further declared that it is consistent with the purpose of proceedings under Art. 290
(5) UN Convention on the Law of the Sea that parties submit reports to the arbitral tribunal established according to
Annex VII UN Convention on the Law of the Sea, unless the arbitral tribunal decided otherwise (at para. 104).
E. Assessment
52

Except in relation to its jurisdiction, which is limited because ITLOS is intended to be a specialized judicial forum, ITLOS
enjoys, in other respects, a standing comparable to that of the ICJ; it is as much a world court as the ICJ is. There is a
built-in expectation in the UN Convention on the Law of the Sea that both of these bodies as well as the arbitral bodies
constituted under them would, to the extent possible, be mindful and respectful of each others jurisprudence.
53

In the 14 years of its existence, most of the cases which ITLOS has dealt with were submitted to it on account of
its obligatory jurisdiction. ITLOS is, however, competent to resolve a much wider range of disputes concerning the
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2012 Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press 10

interpretation or application of the UN Convention on the Law of the Sea; including disputes concerning maritime
boundaries, fisheries ( Fisheries, Coastal; Fisheries, High Seas Fisheries, Sedentary), sea pollution, or marine
scientific research. Its advisory jurisdiction remains untapped. ITLOS has so far demonstrated that it is well-equipped
to discharge its functions speedily, efficiently, and cost-effectively. It produced procedural rules of high quality and
rendered its judgments and orders in all the cases it has dealt with in remarkably short periods. The record of
compliance with the judgments and orders has been quite satisfactory; the provisional measures prescribed by ITLOS
have even assisted the parties in finding a solution to their problems. Impartial observers have not failed to notice that
there have been no political or regional alignments in the working pattern of ITLOS. From year to year, the UN General
Assembly has noted with satisfaction the continued and significant contribution of ITLOS to the peaceful settlement
of disputes in accordance with Part XV UN Convention on the Law of the Sea (eg UNGA Res 59/24 [17 November
2004]) and underlined the important role and authority of ITLOS concerning the interpretation or application of the
Convention (UNGA Res 54/31 [18 January 2000] para. 7). ITLOS will be able to live up to the expectations of the
founding fathers of the UN Convention on the Law of the Sea only when States Parties, international organizations,
and other entities make full use of it.

Select Bibliography
Yearbooks of the International Tribunal for the Law of the Sea (M Nijhoff Leiden 1996/972009/10) vols 113.
DW BowettThe International Court of Justice (British Institute of International and Comparative Law London 1997).
J Akl The Legal Status, Privileges and Immunities of the International Tribunal for the Law of the Sea (1998) 2
MaxPlanckUNYB 34163.
G Eiriksson,The International Tribunal for the Law of the Sea (Nijhoff The Hague 2000).
P Chandrasekhara Rao and R Khan (eds) The International Tribunal for the Law of the Sea (Kluwer The Hague
2001).
P Chandrasekhara Rao ITLOS: The First Six Years (2002) 6 MaxPlanckUNYB 183288.
S Rosenne,Provisional Measures in International Law (OUP Oxford 2005).
P Chandrasekhara Rao and P Gautier (eds) The Rules of the International Tribunal for the Law of the Sea (Nijhoff
Leiden 2006).
M Wood The International Tribunal for the Law of the Sea and General International Law (2007) 3 IJMCL 351
367.
H Caminos The Creation of the International Tribunal for the Law of the Sea as a Specialized Court in A
Constantinides and N Zaikos (eds) The Diversity of International Law: Essays in Honour of Kalliopi K Koufa (Nijhoff
2009) 97108.
Select Documents
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 (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 3.
Agreement on the Privileges and Immunities of the International Tribunal for the Law of the Sea (adopted 23 May
1997) reprinted in International Tribunal for the Law of the Sea (ed) Basic Texts (Martinus Nijhoff Leiden 2005) 82.
The Camouco Case (Panama v France) (Prompt Release) (Judgment) ITLOS Case No 5 (7 February 2000).
The Chaisiri Reefer 2 Case (Panama v Yemen) (Prompt Release) ITLOS Case No 9 (13 July 2001).
Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/
European Community) ITLOS Case No 7 (20 December 2000).
The Grand Prince Case (Belize v France) (Prompt Release) (Judgment) ITLOS Case No 8 (20 April 2001).
Max Planck Encyclopedia of Public International Law www.mpepil.com
2012 Max Planck Institute for Comparative Public Law and International Law, Heidelberg and Oxford University Press 11
The Hoshinmaru Case (Japan v Russian Federation) (Prompt Release) (Judgment) ITLOS Case No 14 (6 August
2007).
The International Tribunal for the Law of the Sea.
The Juno Trader Case (Saint Vincent and the Grenadines v Guinea-Bissau) (Prompt Release) (Judgment) ITLOS
Case No 13 (18 December 2004).
Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore) (Provisional Measures)
ITLOS Case No 12 (8 October 2003).
The Monte Confurco Case (Seychelles v France) (Prompt Release) (Judgment) ITLOS Case No 6 (18 December
2000).
The MOX Plant Case (Ireland v United Kingdom) (Provisional Measures) ITLOS Case No 10 (3 December 2001).
Report of the Fifth Meeting of States Parties Meeting of States Parties to the United Nations Convention on the
Law of the Sea (New York 24 July2 August 1996) (20 September 1996) UN Doc SPLOS/14.
Resolution on the Internal Judicial Practice of the Tribunal (adopted 27 April 2005) reprinted in International
Tribunal for the Law of the Sea (ed) Basic Texts (Martinus Nijhoff Leiden 2005) 71.
Rules of the Tribunal (adopted 27 April 2005) reprinted in International Tribunal for the Law of the Sea (ed) Basic
Texts (Martinus Nijhoff Leiden 2005) 15.
The SAIGA Case (Saint Vincent and the Grenadines v Guinea) (Prompt Release) ITLOS Case No 1 (4 December
1997).
The SAIGA Case (Saint Vincent and the Grenadines v Guinea) (Judgment) ITLOS Case No 2 (1 July 1999).
Southern Bluefin Tuna Cases (New Zealand v Japan
;
Australia v Japan) (Provisional Measures) ITLOS Case Nos 3, 4 (27 August 1999).
Statute of the International Tribunal for the Law of the Sea, Annex VI to the United Nations Convention on the Law
of the Sea (concluded 10 December 1982, entered into force 16 November 1994) 1833 UNTS 561.
The Tomimaru Case (Japan v Russian Federation) (Prompt Release) (Judgment) ITLOS Case No 15 (6 August
2007).
UNGA Res 54/31 (18 January 2000) GAOR 54
th
Session Supp 49 vol 1, 21.
UNGA Res 59/24 (17 November 2004) GAOR 59
th
Session Supp 49 vol 1, 20.
The Volga Case (Russian Federation v Australia) (Prompt Release) (Judgment) ITLOS Case No 11 (23
December 2002).