On Monday, December 10th, International Tribunal for the Law of the Sea President Rüdiger Wolfrum addressed the General Assembly on its agenda item "oceans and the law of the sea." (Statement here; ITLOS press release here; UN meeting report here.) Judge Wolfrum's statement, for the most part, recited, in the standard fashion of such addresses, the activities of the Tribunal during the past year. He reserved for the last part of his talk, interestingly, a discussion of why the Tribunal should be the preferred dispute resolution mechanism of parties to the Law of the Sea Convention and other international agreements. The ITLOS is hardly swamped with business, and clearly Judge Wolfrum is attempting to convince States to send their disputes to the Tribunal and not to its competitor fora, such as the International Court of Justice and arbitration. I'll have more to say about competition in international adjudication next week once I post an essay of mine that is forthcoming in the Virginia Journal of International Law. For now, here's the relevant excerpt from Judge Wolfrum's statement:. . . The choice of procedure under article 287 of the Convention is of particular relevance as, apart from the Tribunal, there are two other compulsory procedures under the Convention, namely, the International Court of Justice and arbitration (Annexes VII and VIII). The default procedure is, however, arbitration. This explains why the provisional measures cases the Tribunal has dealt with under article 290, paragraph 5, of the Convention were the subject of subsequent proceedings before Annex VII arbitral tribunals. I refer to the Southern Bluefin Tuna cases, the MOX Plant case and the Land Reclamation case. In respect of these cases, the Tribunal has not only made a significant contribution to the development of environmental law but has also assisted the parties in resolving their differences. In this regard, allow me to quote from an article published by the distinguished Professor J.G. Merrills that [I quote] “it is clear that in all three cases the main substantive contribution came not from the Annex VII tribunal, supposedly there to determine the merits, but rather from ITLOS, exercising its incidental jurisdiction” [end of quote] [J.G. Merrills, The Mosaic of International Dispute Settlement Procedures: Complementary or Contradictory?, NILR, LIV (2007), pp. 361-393, at p. 381.]
Compared with an arbitral tribunal constituted to deal with a specific case, the Tribunal, as a permanent institution, has the advantage of ensuring consistency in the development of a coherent corpus of jurisprudence. May I add that, in my view, harmonization of international jurisprudence may be achieved only through permanent courts and tribunals. This should be borne in mind when States make their declarations on the choice of dispute settlement under article 287 of the Convention. In this respect, I should like to note that in 2007 one State Party, Trinidad and Tobago, made a declaration under article 287 by which it chose, in order of priority, the International Tribunal for the Law of the Sea and the International Court of Justice.
It may also be useful to observe that parties have the option for their dispute to be heard before an ad hoc special chamber, in accordance with article 15, paragraph 2, of the Statute. Parties may choose any of the 21 judges to sit in the chamber and may also appoint judges ad hoc if the chamber does not include a member of the nationality of the parties. Parties may also propose modifications and additions to the Rules of the Tribunal. Furthermore, parties do not have to bear the costs of proceedings. Indeed, access to the Tribunal and its facilities is not subject to any fees and is free to States Parties. Likewise, the remuneration of judges and Registry staff members is financed through the regular budget of the Tribunal and not by the parties to the dispute. This is particularly advantageous when all the costs relating to the functioning of an arbitral tribunal are taken into consideration (remuneration of arbitrators, registrar and registry staff members, rental of premises, and translation and interpretation services).
I should explain that the jurisdiction of the Tribunal is not limited to issues concerning the United Nations Convention on the Law of the Sea and that there are other possibilities which States Parties may use to confer jurisdiction upon it. A dispute may be brought before the Tribunal on the basis of any international agreement related to the purposes of the Convention which specifically confers jurisdiction on the Tribunal. A number of agreements have been concluded which contain provisions stipulating that disputes arising out of the interpretation or application of these agreements could be submitted to the Tribunal. A well-known example of such an agreement is the 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 of 1995. It is worth noting that this Agreement extends mutatis mutandis the mechanism contained in Part XV of the Convention to any dispute between States Parties to this Agreement – whether or not they are also parties to the Law of the Sea Convention.
Recently, in May 2007, a new convention, the Nairobi International Convention on the Removal of Wrecks, was adopted at a diplomatic conference organized by the International Maritime Organization. This convention also contains a dispute-settlement clause that refers to Part XV of the Law of the Sea Convention. The inclusion of jurisdictional clauses of this nature is a useful development and I am therefore thankful to the sponsors of the draft resolution for having noted that States Parties to an international agreement related to the purposes of the Convention may submit to the Tribunal any dispute concerning the interpretation or application of that agreement which is submitted to it in accordance therewith.
Provisions conferring jurisdiction on the Tribunal may also be included in bilateral agreements. The Tribunal is the natural choice for States parties when they conclude a treaty relating to law of the sea matters, such as the laying of pipelines, the conservation and management of fisheries resources, marine scientific research, and the management of joint exploitation zones. In the case of agreements concluded by the European Community, the Tribunal is, in fact, the only permanent court available to the parties to the dispute.
Mr President, the Tribunal is thus prepared to discharge the functions entrusted to it by the Convention. . . .
