94
1 Introduction
Following intense deliberations extending over a period of 8 years, the United
Nations Convention on the Law of the Sea (UNCLOS) was adopted on 10th
December 1982.
1
This multilateral treaty has been labelled the “constitution for the
oceans”—a description that reflects its nature as framework convention in need of
further development as well as its purpose to “settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea”.
2
Two of the many
features that distinguish the UNCLOS from earlier multilateral agreements applicable to the oceans
3
deserve particular attention in the present context. On the one
hand, Part XII UNCLOS prescribes for the first time in the history of international
law rules and principles concerning the protection and preservation of the marine
environment that are applicable to all maritime zones under the international law of
the sea. These rules and principles are, in other words, the most obvious example of
the “dual approach to ocean governance”
4
embodied in the Convention, inasmuch
as their main emphasis is not on sovereignty, or jurisdiction respectively, of coastal
States in regard to specific maritime zones, such as the territorial sea and the exclusive economic zone (EEZ). On the other hand, Part XV of the UNCLOS establishes
a compulsory system of peaceful settlement of disputes concerning the interpretation and application of the Convention.
5
Together with Annex VI to the Convention,
this Part constitutes the legal basis for the establishment of the International Tribunal
for the Law of the Sea (ITLOS).
According to Art. 287(1) UNCLOS, when signing, ratifying or acceding to this
Convention or at any time thereafter, States are free to choose, by means of a written
declaration, one or more of several means for the settlement of disputes concerning
the interpretation or application of the Convention, one of which being the ITLOS. If
and to the extent to which a State party has not submitted such a declaration, Article
287(3) UNCLOS assumes the jurisdiction of an arbitral tribunal established in
accordance with Annex VII of the Convention. The jurisdiction of the ITLOS is
subject to special rules, however, as (a) Art. 287(2)(i) UNCLOS prescribes an obligation to “accept the jurisdiction of the Seabed Disputes Chamber of the International
Tribunal for the Law of the Sea to the extent and in the manner provided for in Part
XI, section 5”, (b) Art. 290(5)(ii) UNCLOS allocates to the ITLOS the competence
to prescribe, modify or revoke provisional measures, provided that the requirements
mentioned in this provision are given, and (c) Art. 292(iii) UNCLOS envisages the
subsidiary jurisdiction of the ITLOS for cases concerning the prompt release of vessels and crews. Against this substantive and procedural legal background, this article aims at providing an overview of the jurisprudence of the ITLOS in respect of
1 United Nations Convention on the Law of the Sea of 10 December 1982, 1833 UNTS 3.
2 Preamble of the UNCLOS.
3 See Lagoni (2017), p. 10.
4 Tanaka (2008).
5 For details see Klein (2005), pp. 29–124.
A. Proelss
1 Introduction
Following intense deliberations extending over a period of 8 years, the United
Nations Convention on the Law of the Sea (UNCLOS) was adopted on 10th
December 1982.
1
This multilateral treaty has been labelled the “constitution for the
oceans”—a description that reflects its nature as framework convention in need of
further development as well as its purpose to “settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea”.
2
Two of the many
features that distinguish the UNCLOS from earlier multilateral agreements applicable to the oceans
3
deserve particular attention in the present context. On the one
hand, Part XII UNCLOS prescribes for the first time in the history of international
law rules and principles concerning the protection and preservation of the marine
environment that are applicable to all maritime zones under the international law of
the sea. These rules and principles are, in other words, the most obvious example of
the “dual approach to ocean governance”
4
embodied in the Convention, inasmuch
as their main emphasis is not on sovereignty, or jurisdiction respectively, of coastal
States in regard to specific maritime zones, such as the territorial sea and the exclusive economic zone (EEZ). On the other hand, Part XV of the UNCLOS establishes
a compulsory system of peaceful settlement of disputes concerning the interpretation and application of the Convention.
5
Together with Annex VI to the Convention,
this Part constitutes the legal basis for the establishment of the International Tribunal
for the Law of the Sea (ITLOS).
According to Art. 287(1) UNCLOS, when signing, ratifying or acceding to this
Convention or at any time thereafter, States are free to choose, by means of a written
declaration, one or more of several means for the settlement of disputes concerning
the interpretation or application of the Convention, one of which being the ITLOS. If
and to the extent to which a State party has not submitted such a declaration, Article
287(3) UNCLOS assumes the jurisdiction of an arbitral tribunal established in
accordance with Annex VII of the Convention. The jurisdiction of the ITLOS is
subject to special rules, however, as (a) Art. 287(2)(i) UNCLOS prescribes an obligation to “accept the jurisdiction of the Seabed Disputes Chamber of the International
Tribunal for the Law of the Sea to the extent and in the manner provided for in Part
XI, section 5”, (b) Art. 290(5)(ii) UNCLOS allocates to the ITLOS the competence
to prescribe, modify or revoke provisional measures, provided that the requirements
mentioned in this provision are given, and (c) Art. 292(iii) UNCLOS envisages the
subsidiary jurisdiction of the ITLOS for cases concerning the prompt release of vessels and crews. Against this substantive and procedural legal background, this article aims at providing an overview of the jurisprudence of the ITLOS in respect of
1 United Nations Convention on the Law of the Sea of 10 December 1982, 1833 UNTS 3.
2 Preamble of the UNCLOS.
3 See Lagoni (2017), p. 10.
4 Tanaka (2008).
5 For details see Klein (2005), pp. 29–124.
A. Proelss