The International Tribunal for the Law of the Sea’s role in maintaining International Peace and Security

PREFACE

Believe it or not, this is THE VERY FIRST article in an “Op-Ed” kind of format rather than for class that I have ever written where the intention was for this to be posted… somewhere… way before I had the idea of writing on Medium where I wanted to have the freedom in writing whatever that I wanted. Therefore, you might be able to see, read, and identify that this was indeed my very first article and I decided that I would be posting this under the “Bara’s Gazette!” project, despite it being the second article posted under here, but also the first I have EVER WRITTEN? Kinda strange, but honestly I liked the idea how the International Tribunal for the Law of the Sea can have a role in maintaining International Peace and Security and I wanted to write it out there! I hope you can enjoy this article and take some insights from it!

I. INTRODUCTION The United Nations (“UN”) Charter (“UNC”) in Article 1(1) shows that the UN has three main functions in maintaining international peace and security. First, the UN should ensure that member states do not threaten peace or start conflicts, a primary function held by the UN General Assembly (“UNGA”). Second, is to take action when a member state actually starts conflict or breaks the peace, the primary function of the UN Security Council (“UNSC”) vested with authority to take strong collective action. Finally, the UN should aid in resolving disputes peacefully, a role given to both the UNGA through Article 14 and the UNSC through Chapter VI of the UNC. This is further elaborated in the UNC in Article 2(3), providing that all states must solve their disagreements peacefully, in a way that would not compromise world peace, security, or justice. Peaceful conflict resolution is a cornerstone of today’s international order and is considered a legal obligation for all UN member states as ruled in the International Court of Justice’s (“ICJ”) Fisheries Jurisdiction case and the Aerial Incident of 10 August 1999 case that peaceful dispute resolution could not be concluded as a recommendation that member states can choose to ignore. This obligation of peaceful dispute resolution, also extends to the Law of the Sea.

The laws concerning the usage of the seas are consolidated into a single treaty, the Law of the Sea Convention of 1982 (“LOSC”). The LOSC codified rules concerning the oceans bringing an order to a regime fraught with potential conflict covering all of the ocean space, taking into consideration its diverse applications and physical domains. These include preserving law and order, conserving the marine environment, and navigating, overflying, and exploiting both living and non-living resources across maritime boundaries. As Damos Dumoli Agusman and Citra Yuda Nur Fatihah declared, the LOSC can be considered as the “constitution of the sea” due to its vast scope of regulating the rights and obligation of states in the seas. The LOSC also translates the obligation to settle disputes peacefully as enshrined in the UNC into a comprehensive dispute settlement system found in Part XV of the LOSC. More specifically Article 279 obligates state parties to settle any dispute between them concerning the LOSC by peaceful means in accordance with Article 2(3) of the UNC. In relation to this, Article 287 provides that state parties can decide how they would settle disputes concerning the LOSC with one of the options being to settle through the International Tribunal for the Law of the Sea (“ITLOS”).

ITLOS, based in Hamburg, Germany is open to state parties of the LOSC and other entities such as the International Seabed Authority, state-owned companies, and even private persons or corporations in certain cases. ITLOS’ jurisdiction comprises all disputes and applications brought to it under the LOSC and any matters covered by other agreements that give ITLOS jurisdiction. ITLOS applies the provisions of the LOSC together with other rules of international law, so long it does not contradict the LOSC. In circumstances when an international agreement linked with the purposes of the LOSC allows, ITLOS may also render Advisory Opinions (“AO”) on legal matters in accordance with article 138 of the Rules of the Tribunal 2009. Conclusively, ITLOS is one of the methods state parties to the LOSC can select to peacefully settle disputes concerning its application and by large maintaining international peace and security pursuant to Article 1(1) of the UNC. This article will further explore how ITLOS contributes to maintaining international peace and security in practice as an international court with the power of settling disputes between states.

II. THE LEGAL FRAMEWORK A. LOSC Part XV: Settlement of Disputes The LOSC, is unique in the sense that it contains a detailed regime concerning dispute settlement, with the possibility of mandatory jurisdiction over disputes concerning interpretation and application of the LOSC. Article 279 of Part XV of the LOSC affirms that states have an obligation to settle disputes peacefully in accordance with the UNC to prevent jeopardizing international peace, security, and justice. This integrates the LOSC’s dispute resolution system into the larger UN legal framework and gives courts and tribunals the authority to ensure compliance, promote uniform interpretation, and support the law of the sea’s progressive development. Further, Article 287 of the LOSC provides ITLOS as the adjudicating body entitled to exercise compulsory jurisdiction concerning disputes relating to interpreting and applying the LOSC, though the LOSC nonetheless gives flexibility for disputing parties in choosing their forum. Therefore, the LOSC prioritizes securing compulsory settlement rather than a uniform set of jurisprudence. Under Article 287, a dispute can be brought unilaterally by one party and also by the mutual consent of the parties.

B. LOSC Article 290: Provisional Measures Article 290(1) of the LOSC provides that in the event that a dispute has been properly brought before a court or tribunal that believes it has jurisdiction, the court or tribunal may, while awaiting a final ruling, order interim measures deemed necessary to protect the parties’ respective rights or to avoid grave harm to the marine environment. Despite the frequently drawn-out nature of international litigation, these are intended to protect the parties’ rights, stop disputes from getting worse, and guarantee that final rulings are upheld. Rather than focusing on the merits, tribunals evaluate whether the absence of measures would result in irreversible prejudice by considering the parties’ actions and the surrounding circumstances.

C. LOSC Article 292: Prompt Release Article 292(1) of the LOSC provides that if a vessel from one state is detained by another and the detaining state is accused of not following the rules of the LOSC concerning the release of the ship or crew once a fair bond or financial guarantee is paid, the matter can be taken into a court of the parties choice. Nevertheless, if the parties are unable to decide within 10 days, the matter can go to ITLOS pursuant to Article 287, unless the other state agrees otherwise. Because it strikes a compromise between the interests of the flag State and the detaining State, Article 292 is a novel provision in the law of the sea. The flag State wants its ships and personnel released as soon as possible, while the holding State wants to ensure the master appears and pays fines. When a ship is detained on suspicion of violating the LOSC, prompt release may be used. Because a coastal state has the authority to hold a ship that is suspected of violating Article 292, its detention of a ship must be legal. This is due to the fact that Article 292 must be applied in situations where detention is unlawful under international law in addition to situations where it is lawful.

D. Advisory Jurisdiction International tribunals have both advisory and contentious authority. AOs provide clarification on how international law should be interpreted, as opposed to rulings that resolve conflicts. Although they are not legally obligatory, the tribunal’s status gives them authority, and by outlining states’ responsibilities, they frequently influence the evolution of international law. AOs offer broad legal interpretations that, unless there are compelling grounds to deviate, tribunals often adhere to in subsequent instances. Whether the LOSC adequately tackles new issues or calls for further regulations is a crucial question in the contemporary era of the law of the sea. Thus, without changing the LOSC, AOs assist in elucidating its meaning and relevance to current concerns. ITLOS’ advisory jurisdiction is derived from Article 21 of its Statute, which grants jurisdiction over disputes and “all other matters,” and Article 138 of its Rules of Procedure. The Tribunal affirms that its advisory function is valid when authorized by relevant agreements and not prohibited by the LOSC, even though the LOSC does not specifically mention it.

III. APPLICATION IN PRACTICE A. Provisional Measures Provisional actions imposed under Article 290 of the LOSC include the M/V Saiga case, which was first referred to the ITLOS under Article 290(5) awaiting the formation of an Annex VII arbitral tribunal. Although the merits were to be resolved by arbitration, the request was eventually deemed to come under Article 290(1) after the parties agreed to submit the matter to ITLOS. Similarly, in the Southern Bluefin Tuna case, temporary measures were requested from ITLOS under Article 290(5) because the arbitral tribunal had not yet been established. In M/V Saiga involved the oil tanker Saiga flying the flag of Saint Vincent and the Grenadines supplying fuel to ships near Guinea, when on 27 October 1997 it crossed into Guinea’s EEZ and supplied fuel, allegedly violating Guinea’s customs laws. Consequently, Guinea’s patrol boats arrested the vessel outside its EEZ after pursuit resulting in two crew members being injured, the ship detained, and the cargo discharged with no bond or financial guarantee being requested or offered. On 13 November 1997, Saint Vincent and the Grenadines brought proceedings against Guinea under Article 292 of the LOSC asking for the immediate release of the Saiga, its cargo, and crew. ITLOS approved Saint Vincent and the Grenadines’ request and ordered provisional measures on March 11, 1998, which compelled Guinea to refrain from pursuing legal or administrative action against the ship and her crew, encouraged both sides to avoid escalating the disagreement, and required them to produce reports on their adherence to ITLOS’ instructions.

Another example would be the Southern Bluefin Tuna Case between Australia & New Zealand against Japan. The dispute concerned the matter of conservation of the population of Southern Bluefin Tuna (“SBT”) which is significantly over-fished and is below the commonly accepted thresholds for biologically safe parental biomass. Because of this, Australia, New Zealand, and Japan established the 1993 Convention for the Conservation of Southern Bluefin Tuna (“CSBT”) agreeing on the total allowable catch for the three states. However, in 1998, Japan unilaterally conducted a so-called experimental fishing of 1,400 tonnes of SBT in the Indian Ocean. Australia and Japan claimed that Japan’s unilateral experimental fishing failed to take into consideration the conservation and management of SBT in the high seas, in breach of Articles 64, 116–119, and 300 of the LOSC. Japan argued that an Annex VII Arbitration Tribunal pursuant to Article 290(5) of the LOSC would lack prima facie jurisdiction over the dispute. Japan further argued that the dispute was concerning the CSBT rather than the LOSC. The Arbitral Tribunal concluded that Australia and New Zealand’s application met the requirements under Article 290(5) of the LOSC, implying that it had prima facie jurisdiction over the matter. Both Australia and New Zealand appealed to ITLOS to seek provisional awards before an award could be made however. On 27 August 1999, ITLOS ordered provisional measures for Australia, Japan, and New Zealand to limit their tuna catches to pre-agreed quotas, refrain from actions that could harm the arbitral tribunal’s final decision, avoid aggravating the dispute, resume conservation and management negotiations, and work with other fishing states to protect the critically endangered SBT population on August 27, 1999.

The provisional measures in M/V Saiga and the Southern Bluefin Tuna Cases show ITLOS’ role in stability by directing parties to refrain from escalating disputes, maintain the efficacy of final judgments, continue cooperation and negotiations, and exercise caution in uncertain situations. This includes protecting crew rights in M/V Saiga and preserving a depleted marine species in the Southern Bluefin Tuna amidst scientific uncertainty.

B. Prompt Release The M/V Saiga case also concerned prompt release considering it involved the detaining and seizing of the Saiga by Guinea. ITLOS mandated that the ship be released once a bond or security was posted, which included a certain amount of gasoil that was released from the ship and a certain amount of money in the form of a bank guarantee or letter of credit. The Volga Case is another noteworthy example. In February 2002, Australia detained the Russian-flagged vessel Volga and its crew for allegedly engaging in illegal, unreported, and unregulated fishing in its EEZ. After domestic proceedings and the issuance of a bond by Australian courts, Russia filed a request for the immediate release of the vessel and crew as well as compensation before ITLOS in December 2002. Russia filed the case with ITLOS under Article 292 of the LOSC, asking for the prompt release of the Volga and its three crew members. On 23 December 2003, ITLOS delivered its decision stating that Australia must release Volga immediately upon the posting of a security deposit or other guarantee to be determined by ITLOS. ITLOS determined that by imposing an unreasonable bond, Australia had violated the LOSC’s prompt release requirement. It ordered the vessel and crew to be released, stating that its jurisdiction under Article 292 was limited to evaluating the bond’s reasonableness rather than the legality of the detention and that the bond amount could not be determined by the value of the catch.

Here, international peace and security is maintained because it prevents the dispute from escalating as prompt release ensures that disputes are handled through legal measures. Both the Saiga and Volga cases provided a solution which prevented disputes from escalating, because if a coastal state detains a foreign vessel for too long, it can cause diplomatic tensions and further conflicts. This also balances the interests between two disputing parties where coastal states can enforce their sovereignty while at the same time flag states have their rights protected under the LOSC. Finally, it protects the security of the people, as prompt release also covers the crew of the vessel. Timely release would reduce humanitarian concerns and prioritizing their human rights.

C. Advisory Jurisdiction So far, there are three AOs which has been issued by ITLOS, namely the Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area by the Seabed Disputes Chamber, the Request for an AO submitted by the Sub-Regional Fisheries Commission, and the Request for AO submitted by the Commission of Small Island States (“COSIS”) on Climate Change and International Law. This article will focus primarily on the most recent AO submitted by the COSIS on Climate Change and International Law. Since the ocean absorbs more than 90% of excess heat and experiences effects like acidification and sea level rise, courts have rarely addressed the connection between climate law and the LOSC. In light of this, the COSIS on Climate Change and International Law in December 2022 requested an AO from ITLOS on states’ obligations to prevent, reduce, and control marine pollution and protect the marine environment from the effects of climate change caused by greenhouse gases (“GHG”) emissions, as stipulated in Article 2(2) of its agreement.

Although Part XII of the LOSC establishes broad obligations to protect and preserve the marine environment, it does not expressly mention GHG emissions, climate change, or ocean acidification which were issues not of central concern during its negotiation in 1982. However, contemporary scientific consensus confirms that anthropogenic GHG emissions alter ocean chemistry, causing acidification, warming, deoxygenation, coral bleaching, ecosystem disruption, and sea-level rise, posing existential threats to low-lying island states. In its advisory proceedings, the COSIS on Climate Change and International Law sought clarification of states’ obligations under the LOSC to address climate change impacts, rather than a determination of responsibility for past wrongdoing. Over 50 states and organizations presented arguments before ITLOS, emphasizing that Part XII should be interpreted in light of contemporary scientific knowledge and present-day environmental threats, rather than being confined to the understanding of 1982.

Most argued that human-caused GHG counted as “pollution of the marine environment” under Article 1(1)(4) of the LOSC, which would allow ITLOS to address its impacts on the seas. Nearly all states focused on Articles 192 and 194 which required states to protect and preserve the marine environment and take all necessary measures to prevent, reduce, and control pollution using the best means available respectively. Some also debated whether the LOSC includes an obligation to cooperate and how the principle of “common but differentiated responsibilities” applies. Three primary positions emerged from this. First, the COSIS on Climate Change and International Law contended that states are clearly required by Articles 192 and 194 of the LOSC to address climate change, including cutting GHG emissions in accordance with the Paris Agreement and the Intergovernmental Panel on Climate Change’s 1.5°C goal, if not more. Second, is a middle approach which acknowledged that the LOSC may call for more robust environmental protection, maintaining that the LOSC duties should be construed in accordance with the Paris Agreement and the UN Framework Convention on Climate Change (“UNFCCC”). Third, a hard-line stance maintained that governments’ LOSC responsibilities could be satisfied by just adhering to the Paris Agreement and the UNFCCC, which constitute a specialized framework controlling emissions.

ITLOS confirmed jurisdiction and restricted its review to the LOSC’s principal environmental requirements in its AO, which was delivered on May 21, 2024. It concluded that preventing, minimizing, and managing marine pollution is part of the larger obligation to safeguard and preserve the maritime environment under Article 192. According to ITLOS, GHG emissions are covered under Part XII, which includes Articles 194, 207–212, 213, 222, and 197–201, and are considered “pollution of the marine environment” under LOSC. Therefore, states must take all necessary steps to address harm caused by GHGs. Some courts disagreed, claiming that some articles, especially Article 194(2), also contain result-oriented features that call for tangible outcomes, even though ITLOS primarily described these requirements as due diligence.

Despite not having legal force behind them, AOs have a lot of authority and persuasive power and maintain international peace and security. In order to minimize legal uncertainty, ITLOS first made it clear that manmade GHG emissions are considered marine pollution and that governments are required to take all necessary steps to avoid, limit, and regulate such harm. Second, by reinforcing cooperation and assistance commitments, the opinion decreased the likelihood of conflicts and benefited small island governments and climate-vulnerable nations in particular. Third, it helps avert future disputes over fisheries, migration, and depleting resources by connecting GHG emissions to tangible consequences like ocean warming, acidification, and resource loss. Finally, the AO establishes a significant persuasive precedent that affects other organizations like the ICJ and the Inter-American Court of Human Rights. All things considered, the AO lessens the possibility of conflict connected to climate change by elucidating legal duties, encouraging collaboration, and assisting in the peaceful settlement of disputes.

IV. CONCLUSION The aim of this paper is to ascertain the role ITLOS has in maintaining international peace and security. It was found that ITLOS contribution to maintaining international peace and security can be found in the LOSC Part XV regarding its obligations to settle disputes peacefully, Article 290 concerning Prompt Release, Article 292 concerning Provisional Measures. This has been applied in cases such as the M/V Saiga, the Southern Bluefin Tuna, the Volga, and the AO on Climate Change. Therefore, it clearly shows that ITLOS has become one of the most influential international bodies for states to use in order to fulfill their obligations pursuant to LOSC Part XV and Article 1(1) of the UNC.

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