1. INTERNATIONAL MARITIME LAW Dr. Indrė Isokaitė Vilnius University, Law Faculty Public Law Department International and European Union Law Institute 2016

2. Lecture No 12 Maritime Dispute Resolution

3. Maritime disputes may be resolved at national criminal or civil courts applying the rules of UNCLOS that provide for a jurisdiction of a Coastal State / a Port State / a Flag State and under respective national legislation. International maritime disputes are resolved by competent international bodies (if not by negotiation or other peaceful means).

4. Rules of jurisdiction in the field of protection and preservation of the marine environment UNCLOS Article 217 establishes a duty of a flag State to ensure its vessels’ compliance with international standards and a duty to start immediate investigation and where appropriate institute proceedings in respect of the alleged violation irrespective of where the violation occurred or where the pollution caused by such violation has occurred or has been spotted (subject to the exceptions in Articles 218, 220, 228). Flag States conducting an investigation of the violation may request the assistance of any other State whose cooperation could be useful in clarifying the circumstances of the case…

5. Rules of jurisdiction in the field of protection and preservation of the marine environment UCLOS Article 220 establishes Coastal State’s jurisdiction: when a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may (subject to Section 7) institute proceedings in respect of any violation of its laws and regulations adopted in accordance with UNCLOS or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the EEZ of that State.

6. Rules of jurisdiction in the field of protection and preservation of the marine environment Article 228 (Section 7) provides for certain restrictions on instituting proceedings: proceedings to impose penalties in respect of any violation of applicable laws and regulations relating to the prevention, reduction and control of pollution from vessels committed by a foreign vessel beyond the territorial sea of the State instituting proceedings shall be suspended upon the taking of the proceedings to impose penalties in respect of corresponding charges by the flag State within six months of the date on which proceedings were first instituted, unless those proceedings relate to a case of major damage to the coastal State or the flag State in question has repeatedly disregarded its obligation to enforce effectively the applicable international rules and standards in respect of violations committed by its vessels. The flag State shall in due course make available to the State previously instituting proceedings a full dossier of the case and the records of the proceedings… When proceedings instituted by the flag State have been brought to a conclusion, the suspended proceedings shall be terminated. Upon payment of costs incurred in respect of such proceedings, any bond posted / other financial security provided in connection with the suspended proceedings shall be released by the coastal State.

7. Rules of jurisdiction in the field of protection and preservation of the marine environment Example: Vessel flying the flag of Lithuania has been detained by French authorities having taken some photos revealing a possible oil spill during discharge operations within EEZ of France and competent French authorities instituted proceedings. Under UNCLOS Article 228 Lithuania may within 6 months institute proceedings to impose charges on its ship for sea pollution within French waters and ask France to terminate the proceedings.

8. Rules of jurisdiction in the field of protection and preservation of the marine environment Proceedings to impose penalties on foreign vessels shall not be instituted after the expiry of three years from the date on which the violation was committed, and shall not be taken by any State in the event of proceedings having been instituted by another State subject to the provisions set out in Article 228. The provisions of this article are without prejudice to the right of the flag State to take any measures, including proceedings to impose penalties, according to its laws irrespective of prior proceedings by another State.

9. International Maritime Dispute Resolution UNCLOS provides for a negotiation or other diplomatic measures (conciliation, etc.) for the States’ to resolve their maritime disputes. States may also apply to the court or tribunal having jurisdiction over their dispute. UNCLOS Part XV ‘Settlement of disputes’

10. International bodies for the States to choose for their dispute settlement Under UNCLOS 287 a State, while signing, ratifying UNCLOS, acceeding to it or later, has the right to choose one or more of the following means for settlement of their disputes concerning the interpretation and application of UNCLOS: The International Tribunal for the Law of the Sea (ITLOS) The International Court of Justice (ICJ) An Arbitral Tribunal constituted in accordance with Annex VII A Special Arbitral Tribunal constituted in accordance with Annex VIII

11. States’ declarations If a State party to UNCLOS is a party to a dispute not covered by a declaration regarding the choice of particular means for dispute resolution, it shall be deemed to have accepted arbitration in accordance with Annex VII, and… if the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to the arbitration in accordance with Annex VII. Out of 166 State Parties to UNCLOS only some 40 have made declarations under Article 287 (16 chose ITLOS as priority). States’ declarations may be found at: http://www.itlos.org/start2_en.html

12. International Tribunal for the Law of the Sea http://www.itlos.org/http://www.itlos.org/

13. International Tribunal for the Law of the Sea - an independent judicial body established by UNCLOS to adjudicate disputes arising out of the interpretation and application of UNCLOS - composed 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 - having the following Chambers: the Chamber of Summary Procedure, the Chamber for Fisheries Disputes, the Chamber for Marine Environment Disputes and the Chamber for Maritime Delimitation Disputes.

14. Jurisdiction of ITLOS Contentious cases Advisory opinions under UNCLOS under international agreements Thus ITLOS jurisdiction comprises all disputes submitted to it in accordance with UNCLOS. It also extends to all matters specifically provided for in any other agreement which confers jurisdiction on ITLOS. The Seabed Disputes Chamber is competent to give advisory opinions on legal questions arising within the scope of the activities of the International Seabed Authority. The Tribunal may also give advisory opinions in certain cases under international agreements related to the purposes of the Convention.

15. Jurisdiction of ITLOS: contentious cases Jurisdiction over any dispute concerning the interpretation or application of the UNCLOS Jurisdiction over any dispute concerning the interpretation or application of other agreements Provisional measures (UNCLOS 290) Prompt release of vessels and crews (UNCLOS 292) Seabed Disputes

16. ITLOS cases 23 cases so far, majority on prompt release of vessels and provisional measures. Proceedings may be instituted by each Party (if both have chosen ITLOS and / or under UNCLOS Articles 290, 292) and the judgments adopted are binding.

17. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures On 30 July 1999 Australia and New Zealand filed requests for the prescription of provisional measures (interim injunction) in a case against Japan. The dispute between Australia and New Zealand on one side and Japan on the other concerns the conservation of the population of Southern Bluefin Tuna*. The species is significantly overfished and is below commonly accepted thresholds for biologically safe parental biomass. Australia and New Zealand claim that Japan’s actions amount to a failure to conserve and to cooperate in the conservation of the Southern Bluefin Tuna stock. The applicants claim that Japan, by initiating an unilateral experimental fishing programme for Southern Bluefin Tuna in 1998 and 1999, threaten serious or irreversible damage to the Southern Bluefin Tuna population. The request is for an interim injunction against Japan to immediately cease the unilateral experimental fishing of the Southern Bluefin Tuna (which commenced at the beginning of June 1999). * According to the requests, Southern Bluefin Tuna (Thunnus maccoyii) is a highly migratory fish species, which traverses the exclusive economic zone and territorial sea of several countries and the high seas, including the Southern Ocean.

18. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures In the absence of agreement between the parties for the settlement of the merits (substance) of the dispute between them, the Governments of Australia and New Zealand decided to submit their dispute with Japan to an arbitration procedure under Annex VII of UNCLOS. Pending the constitution of such an arbitral tribunal, the Governments of Australia and New Zealand have requested ITLOS to prescribe provisional measures, pursuant to paragraph 5 of Article 290 of UNCLOS.

19. Paragraph 5 of Article 290 of UNCLOS Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, any court or tribunal agreed upon by the parties or, failing such agreement within two weeks from the date of the request for provisional measures, the International Tribunal for the Law of the Sea or, with respect to activities in the Area, the Seabed Disputes Chamber, may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. Once constituted, the tribunal to which the dispute has been submitted may modify, revoke or affirm those provisional measures, acting in conformity with paragraphs 1 to 4.

20. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures Japan challenges the jurisdiction of ITLOS to prescribe the provisional remedies requested. Japan responds that the dispute is a matter regulated under the 1993 Convention for the Conservation of Southern Bluefin Tuna and should be settled by the procedures under that Convention, not related with the interpretation of UNCLOS. Japan also contends that there is no urgency in the requests of Australia and New Zealand and that therefore ITLOS should decline to prescribe provisional measures. It states that Australia and New Zealand could be fully compensated by future reductions in Japan’s catch. Provisional measures can only be ordered if the arbitral tribunal under Annex VII to UNCLOS (to which the main case would be submitted) would itself have jurisdiction. Japan also maintains that, even if ITLOS has jurisdiction over the case, the prescription of provisional measures is not appropriate in this case because there is no risk of irreparable damage to the Southern Bluefin Tuna stock.

21. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures 1993 Convention, Article 16, stated: 1.If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. 2.Any dispute of this character not so resolved shall, with the consent in each case of all the parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court of Justice or to arbitration shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above. 3.In cases where the dispute is referred to arbitration, the arbitral tribunal shall be constituted as provided in the Annex to this Convention. The Annex forms an integral part of this Convention.

22. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan) Article 281 of UNCLOS (Procedure where no settlement has been reached by the parties) provides that: If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.

23. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures ITLOS established its jurisdiction… ITLOS noted that there is no disagreement between the parties that the stock of Southern Bluefin Tuna is severely depleted. It considered that there is scientific uncertainty regarding measures to be taken to conserve the stock. ITLOS also considered that in the circumstances the parties should act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of Southern Bluefin Tuna. ITLOS ordered inter alia that the parties should resume negotiations without delay with a view to reaching agreement on measures for the conservation and management of Southern Bluefin Tuna and that the parties should restrict their catches and should not implement experimental fishing programme.

24. Southern Bluefin Tuna Case On 4 August 2000, an arbitral tribunal constituted under annexure VII of the United Nations Convention on the Law of the Sea (‘UNCLOS’)1 delivered its Award on Jurisdiction and Admissibility (‘Award’)2 in a dispute between Australia and New Zealand on the one hand, and Japan on the other, concerning the conservation and management of southern bluefin tuna (‘SBT’). In finding that it did not have jurisdiction to rule on the merits of the case, the arbitral tribunal revoked an earlier order for provisional measures made by the International Tribunal for the Law of the Sea (‘ITLOS’)3 and encouraged the parties to continue to seek to resolve their dispute under the peaceful means provided for in the Convention for the Conservation of Southern Bluefin Tuna (‘CCSBT’). https://www.law.unimelb.edu.au/files/dmfile/downloadf2ea1.pdf

25. Dissenting opinion Given the general recognition of overlapping dispute settlement provisions in ‘international judicial practice and the general law of treaties’54 and the pivotal role played by compulsory and binding dispute settlement in the travaux preparatoires and operation of UNCLOS, Sir Kenneth Keith concluded that the exclusion of the binding procedures of UNCLOS under the CCSBT would require a clear and express wording to that effect. On this basis, he held that the arbitral tribunal had jurisdiction to hear the merits of the dispute.

26. The M/V "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain) On 24 November 2010 Saint Vincent and the Grenadines has instituted proceedings against Spain in a dispute concerning the MV Louisa, flying the flag of Saint Vincent and the Grenadines, arrested on 1 February 2006 by the Spanish authorities and held since that date. According to the Applicant, the MV Louisa was involved in conducting sonar and caesium magnetic surveys of the sea floor of the Bay of Cadiz in order to locate and record indications of oil and methane gas. The Applicant states that the vessel was arrested for alleged violations of Spain’s historical patrimony or marine environment laws, that various members of the crew were also arrested but have since been released and that the vessel is being held without bond in the port of El Puerto de Santa Maria. The Applicant maintains that the vessel was involved in scientific research with a valid permit from the coastal State. The Applicant claims that Spain has violated articles 73, 87, 226, 245 and 303 of the United Nations Convention on the Law of the Sea and requests the Tribunal to award damages in the amount of “not less than $10,000,000”. The Application instituting proceedings before the Tribunal includes a request for provisional measures under article 290, paragraph 1, of the Convention, in which the Tribunal is requested, inter alia, to order the Respondent to release the MV Louisa and return the property seized.

28. The M/V "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain) Saint Vincent and the Grenadines requested the Tribunal to: declare that the Tribunal has jurisdiction under Articles 287 and 290 of the Convention to hear the request for provisional measures concerning the detention of the vessel MV Louisa; declare that the request is admissible; that the allegations of the Applicant are well founded and that the Respondent has breached its obligations under the Convention; order the Respondent to release the vessel Louisa and its tender, the Gemini III, upon such terms and conditions as the Tribunal shall consider reasonable, but without bond or other further economic hardship; order the return of scientific research information and property held since 2006; prescribe such other provisional measures as may be appropriate such as issuing an order requiring the Spanish Agent to meet with the Applicant’s Agent or Representatives to resolve the matter or other important measures; and order the Respondent pay the costs incurred by the Applicant in connection with this request, including agents’ fees, attorneys’ fees, experts’ fees, transportation, lodging and subsistence.

29. The M/V "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain) Spain requested the Tribunal: to reject the request for the prescription of provisional measures requested by Saint Vincent and the Grenadines; to reject the prescription of all the provisional measures requested by the Applicant; to order Saint Vincent and the Grenadines to pay the fees of the Agent and the rest of the Spanish delegation within reasonable limits and the costs incurred by this application, as fixed by the Tribunal.

30. The M/V "Louisa" Case Article73: Enforcement of laws and regulations of the coastal State 1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. 2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security.

31. Article 220: Enforcement by Coastal States 2. Where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has, during its passage therein, violated laws and regulations of that State adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels, that State, without prejudice to the application of the relevant provisions of Part II, section 3, may undertake physical inspection of the vessel relating to the violation and may, where the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws, subject to the provisions of section 7.

32. Article 226: Investigation of foreign vessels... (b) If the investigation indicates a violation of applicable laws and regulations or international rules and standards for the protection and preservation of the marine environment, release shall be made promptly subject to reasonable procedures such as bonding or other appropriate financial security. (c) Without prejudice to applicable international rules and standards relating to the seaworthiness of vessels, the release of a vessel may, whenever it would present an unreasonable threat of damage to the marine environment, be refused or made conditional upon proceeding to the nearest appropriate repair yard. Where release has been refused or made conditional, the flag State of the vessel must be promptly notified, and may seek release of the vessel in accordance with Part XV.

33. The M/V "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain) On 23 December 2010, the Tribunal delivered its Order on the Request. In the said Order, the Tribunal decided by 17 votes to 4, that “the circumstances, as they now present themselves to the Tribunal, are not such as to require the exercise of its powers to prescribe provisional measures under article 290, paragraph 1, of the Convention; […] “ 2013 May 28 judgement On the merits: Saint Vincent and the Grenadines invoked, as the basis for the jurisdiction of the Tribunal, the declarations made by the Parties in accordance with article 287 of the Convention.

34. The M/V "Louisa" Case (Saint Vincent and the Grenadines v. Kingdom of Spain) The Tribunal concludes that no dispute concerning the interpretation or application of the Convention existed between the Parties at the time of the filing of the Application and that, therefore, it has no jurisdiction ratione materiae to entertain the present case. The Tribunal holds the view that States are required to fulfil their obligations under international law, in particular human rights law, and that considerations of due process of law must be applied in all circumstances the Tribunal sees no need to depart from the general rule that each party shall bear its own costs with respect to both the provisional measures phase and the merits phase of the present proceedings.

35. Thank you ! Parnidžio kopa the Curonian Lagoon, Lithuania