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International Tribunal For The Law Of The Sea (ITLOS) - Description [2003] PICTRes 21 (16 December 2003)
International Tribunal For The Law Of The Sea (Itlos)
Despite
being established in 1982 by the United Nations Convention on the Law
of the Sea (UNCLOS), the International
Tribunal for the Law of the Sea (ITLOS) did not become operational
until 1996 when the UNCLOS finally entered into force. While it is beyond
the scope
of this short introductory note to detail here the reasons why
the entry into force of the UNCLOS was long delayed, it
suffices to say
that the codification into a single agreement of a universal legal regime
to regulate the access
to and use of the resources of almost two-thirds
of the Earth's surface was probably the largest and longest diplomatic
undertaking in the history of the United Nations.
To be sure, the number, magnitude and complexity of the issues to be dealt
with to conclude the UNCLOS have left
a deep imprint on the structural
and legal architecture of the ITLOS. Indeed, several states resisted the
inclusion
of a judicial body in the UNCLOS which could authoritatively
settle disputes over its implementation and interpretation.
As a result,
unlike all other international judicial bodies, which are typically put
at the center of the legal
system that they have been created to preserve,
the ITLOS is only one of four possible means available to parties to settle
disputes. The other three options are the International Court of Justice,
arbitration under Annex VII of the
Convention, and special arbitration
under Annex VIII. The ITLOS is not the default mechanism in case a state
has not selected any of the four available fora. In that case, states
are deemed to have selected arbitration under Annex
VII.
At the time the UNCLOS was negotiated there were no international judicial
bodies with universal scope except
for the International Court of Justice.
Sensitivity of the issue inevitably pointed to the World Court as the
model for the institutional structure of the ITLOS. Hence, in a similar
manner, albeit with several exceptions, the ITLOS
does not, in principle,
have jurisdiction over a dispute unless both parties have agreed to it,
by way of ad
hoc declaration, special agreement or previous optional declaration.
The ITLOS is organized very much like the ICJ but, because of its special
focus, there are certain differences
that set it apart. Firstly, unlike
its kin, but like the Court of Justice of the European Communities, the
ITLOS
is endowed with a permanent special chamber with compulsory jurisdiction
over a particular category of dispute. The 11-member
Seabed Disputes Chamber
(SBDC) hears disputes concerning activities in the seabed, ocean floor
and subsoil beyond
the limits of national jurisdiction (the so-called
Area , which is managed by an agency known as the International
Seabed Authority, which was established pursuant to the UNCLOS).
Secondly, reflecting the special nature of the activities to be carried
out within the Area, the locus standi before the SBDC is different
from the one before the full Tribunal. Not only can states and the International
Seabed Authority have standing before the Chamber, but companies and individuals
of States parties can also. This feature
distinguishes the ITLOS from
other international judicial bodies with universal membership and scope,
like the
ICJ and the World Trade Organization dispute settlement system,
where non-state entities are not allowed to bring claims
(to a certain
extent this applies also to the International Criminal Court).
Thirdly, unlike most international judicial bodies, which decide cases
virtually solely on the basis of international
law, the SBDC can reach
outside those limits. The SBDC can apply the UNCLOS; principles of international
law;
the rules, regulations and procedures of the International Sea-bed
Authority; as well as terms of contracts concerning
activities in matters
relating to them.
Data obtained from the Project on International Courts and Tribunals (PICT)
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