87
minimum requirements that should be fulfilled. First, SPLOS is the main forum to
which ITLOS is accountable, so it must provide a stable and reliable context where
ITLOS can explain its performance. Second, SPLOS must fully respect the independence of ITLOS. The following assessment of the work of SPLOS is based on
the reports of SPLOS meetings, literature and interviews. It focuses on three issues:
the election of judges, the adoption of the budget, and SPLOS as the accountability
forum for ITLOS.
The election of judges has happened in accordance with the UNCLOS rules and
procedures. SPLOS has only once postponed the deadline for these elections: in its
first meeting (November 1994), in the special circumstances of the first election of
ITLOS members. However, this decision could be justified as not being against the
relevant rules. It was presented as an amendment of the ITLOS Statute, adopted by
SPLOS by consensus, in which it was agreed that this postponement of the first
election of the members of the Tribunal would be a “one-time deferment”.
19
Apart
from this, whenever it was necessary, SPLOS has elected the judges on time, both
in the regular elections and in ad hoc proceedings, for instance, when a sitting judge
passed away.
20
Obviously this does not say anything about whether the judges elected were
indeed the best amongst the candidates, meeting the requirements for ITLOS members: “[t]he Tribunal shall be composed of a body of 21 independent members,
elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea”.
21
Compared to
other INJUGOVINS, there is at least one characteristic of these elections where
some other INJUGOVINS do better. In recent years, more and more INJUGOVINS
have introduced mechanisms to ensure that the best qualified candidates are elected.
For this purpose, the ICC has an Advisory Committee on Nominations. A Committee
of the Parliamentary Assembly of the Council of Europe interviews candidate
judges for the European Court of Human Rights. Such mechanisms (‘quality
checks’) have been introduced partly in response to occasional criticism that judges
are ‘not fit for the job’. SPLOS does not yet have such a mechanism.
Secondly, and perhaps the most difficult and delicate part of the work of SPLOS,
is the adoption of the budget of ITLOS. Originally this was done annually, for a
19 Doc. SPLOS/3, at p. 7 (para. 16(a)); Treves (2005), pp. 69–70; Rao and Gautier (2018),
pp. 36–37. According to the ITLOS Statute (Art. 4.3), “[t]he first election shall be held within six
months of the date of entry into force of this Convention”. UNCLOS entered into force on 16
November 1994. However, judges were only elected on 1 August 1996 (Doc. SPLOS/14, pp. 5–8).
The decision to postpone this first election was presented by SPLOS as a “one-time deferment”
(Doc. SPLOS/3, at p. 7 (para. 16(a))). If this is seen as an amendment of the ITLOS Statute, it does
not amount to a violation of Art. 4(3). Art. 41(1) of the Statute requires that “amendments of the
Statute other than amendments to section 4, may be adopted only in accordance with article 313
[of UNCLOS] or by consensus at a conference convened in accordance with this Convention”. The
“one-time deferment” decision was adopted by consensus by SPLOS (Doc. SPLOS/3, at pp. 5–6
(para. 12), and p. 7 (para. 16(a))).
20 Rao and Gautier (2018), p. 41.
21 ITLOS Statute, Art. 2(1).
Governance of the International Tribunal of the Law of the Sea: The Role…
minimum requirements that should be fulfilled. First, SPLOS is the main forum to
which ITLOS is accountable, so it must provide a stable and reliable context where
ITLOS can explain its performance. Second, SPLOS must fully respect the independence of ITLOS. The following assessment of the work of SPLOS is based on
the reports of SPLOS meetings, literature and interviews. It focuses on three issues:
the election of judges, the adoption of the budget, and SPLOS as the accountability
forum for ITLOS.
The election of judges has happened in accordance with the UNCLOS rules and
procedures. SPLOS has only once postponed the deadline for these elections: in its
first meeting (November 1994), in the special circumstances of the first election of
ITLOS members. However, this decision could be justified as not being against the
relevant rules. It was presented as an amendment of the ITLOS Statute, adopted by
SPLOS by consensus, in which it was agreed that this postponement of the first
election of the members of the Tribunal would be a “one-time deferment”.
19
Apart
from this, whenever it was necessary, SPLOS has elected the judges on time, both
in the regular elections and in ad hoc proceedings, for instance, when a sitting judge
passed away.
20
Obviously this does not say anything about whether the judges elected were
indeed the best amongst the candidates, meeting the requirements for ITLOS members: “[t]he Tribunal shall be composed of a body of 21 independent members,
elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea”.
21
Compared to
other INJUGOVINS, there is at least one characteristic of these elections where
some other INJUGOVINS do better. In recent years, more and more INJUGOVINS
have introduced mechanisms to ensure that the best qualified candidates are elected.
For this purpose, the ICC has an Advisory Committee on Nominations. A Committee
of the Parliamentary Assembly of the Council of Europe interviews candidate
judges for the European Court of Human Rights. Such mechanisms (‘quality
checks’) have been introduced partly in response to occasional criticism that judges
are ‘not fit for the job’. SPLOS does not yet have such a mechanism.
Secondly, and perhaps the most difficult and delicate part of the work of SPLOS,
is the adoption of the budget of ITLOS. Originally this was done annually, for a
19 Doc. SPLOS/3, at p. 7 (para. 16(a)); Treves (2005), pp. 69–70; Rao and Gautier (2018),
pp. 36–37. According to the ITLOS Statute (Art. 4.3), “[t]he first election shall be held within six
months of the date of entry into force of this Convention”. UNCLOS entered into force on 16
November 1994. However, judges were only elected on 1 August 1996 (Doc. SPLOS/14, pp. 5–8).
The decision to postpone this first election was presented by SPLOS as a “one-time deferment”
(Doc. SPLOS/3, at p. 7 (para. 16(a))). If this is seen as an amendment of the ITLOS Statute, it does
not amount to a violation of Art. 4(3). Art. 41(1) of the Statute requires that “amendments of the
Statute other than amendments to section 4, may be adopted only in accordance with article 313
[of UNCLOS] or by consensus at a conference convened in accordance with this Convention”. The
“one-time deferment” decision was adopted by consensus by SPLOS (Doc. SPLOS/3, at pp. 5–6
(para. 12), and p. 7 (para. 16(a))).
20 Rao and Gautier (2018), p. 41.
21 ITLOS Statute, Art. 2(1).
Governance of the International Tribunal of the Law of the Sea: The Role…