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Published online by Cambridge University Press: 06 June 2017
1 See United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Arts. 286, 297, 298, 1833 UNTS 397, reprinted in 21 ILM 1261 (1982) [hereinafter LOS Convention]. The Convention and other documents concerning the Convention and the International Tribunal for the Law of the Sea, including the proceedings and decisions in the Tribunal’s cases, are available online at <http://www.un.org/ Depts/los/index.htm>.
2 Id., Art. 287. A significant number of states have filed no declarations on forum, the result being that jurisdiction rests in an arbitral tribunal. Id., Art. 287(3).
3 Id., Art. 282 & id., Annex VI, Arts. 20-22.
4 LOS Convention, supra note 1, Art. 290(5).
5 Id., Art. 292(1).
6 This jurisdiction is exercised by the Tribunal’s Sea-Bed Disputes Chamber. Id., Arts. 187-90.
7 Prompt-release cases, which are not incidental proceedings, deal with the respondent’s obligation to release arrested vessels and crew on bond, but the jurisdiction of the Tribunal is limited to the question of prompt release, including bond or other financial security. Id., Art. 292. Prompt release on reasonable bond is required in fisheries and pollution cases even if the underlying arrest and trial are lawful. See id., Arts. 73(2), 226(1) (b). In the most recent case, the vessel and crew were released shortly after the application was filed. The case was discontinued by agreement of the parties. “Chaisiri Reefer 2” (Pan. v. Yem.), ITLOS/ Press52 (July 16, 2001).
8 Indeed, apart from prompt-release cases and provisional measures orders, the one full case on the merits it has decided thus far was subject to arbitration under die Convention, but was submitted to the Tribunal by special agreement after die Tribunal’s compulsory jurisdiction over prompt release and provisional measures was invoked by the applicant. See the reports on the M/V “Saiga” cases at 92 AJIL 278 (1998) and 94 AJIL 140 (2000). The only other full case on the merits thus far brought and decided under die Convention was submitted to arbitration following the prescription of provisional measures by the Tribunal. See reports on the Southern Bluefin Tuna cases by Barbara Kwiautowska at 94 AJIL 150 (2000) and 95 AJIL 162 (2001), and this reviewer’s Complementary Agreements and Compulsory jurisdiction, 95 AJIL 277 (2001). Chile and the European Community recently requested formation of a special chamber of die Tribunal to consider their dispute concerning swordfish conservation, but proceedings were deferred at die request of the parties. ITLOS/Press45 (Mar. 21, 2001).
9 One should also note in this connection the earlier work published by the author’s fellow judge on the Tribunal, Mohamed Mouldi Marsit, Le Tribunal Du Droit De La Mer: Presentation Et Textes Officiels (Paris, A. Pedone, 1999).
10 See Jonathan, I. Charney, Is International Law Threatened by Multiple International Tribunals ? 271 Recueil Des Cours 101 (1998)Google Scholar; see also Oxman, supra note 8, 95 AJIL at 280 n. 14.
11 One example is found in the references to “activities in the International Seabed Area.” That expression is not used in the Convention. The precise expression that is used, “activities in the Area,” is obviously not self-explanatory; its definition limits both its geographic and its substantive scope. See LOS Convention, supra note 1, Art. 1(1), (3). Unfortunately, the inclusion of precise language regarding the geographic limitation draws attention to the problem posed by the unqualified use of the word “activities.” Those who do not know what is meant might have been better served by a reference to mining activities.
12 See supra note 7. The Tribunal’s rules and practices properly provide for promptness in such cases, with a decision contemplated within a month (previously three weeks) after the application is filed. See Rules of the Tribunal, Art. 112 (as amended). This time frame is especially impressive because the president is the only judge ordinarily resident in Hamburg, and the Statute requires the consent of both parties to use a chamber in lieu of the full tribunal. In reacting to the Tribunal’s decisions in such cases, scholars and lawyers should balance the need to address continuing deprivations of liberty in the particular case as quickly as possible with the need for reasoned opinions that further the understanding and development of the law; they should avoid encouraging the judges to unduly sacrifice the former to the latter. Even in a case where there is a delay in rejecting an application, that delay may forestall resort to other means for securing release.
13 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, July 28,1994, annex, sec. 1, para. 2, UN Sales. No. E.97.V.10, at 215 (1997) (entered into force July 28, 1996), reprinted in 33 ILM 1309, 1316 (1994).
14 See Resolution Concerning the Internal Judicial Practice of the Court, Art. 4 (Apr. 12, 1976), reprinted in 15 ILM 950 (1976), available at <http://www.icjcij.org>. This writer recalls the astonishment of the late Justice William J. Brennan of the U.S. Supreme Court when he learned of this practice at a faculty seminar at the University of Miami School of Law.
15 See Resolution on Internal Judicial Practice of the Tribunal, Art. 5, ITLOS/10 (Oct. 31, 1997).
16 M/V “Saiga” (St. Vincent v. Guinea), Judgment, ITLOS Case No. 1 (Dec. 4, 1997) (prompt release).
17 “Grand Prince” (Belize v. Fr.), Judgment, ITLOS Case No. 8 (Apr. 20, 2001). Judge Eiriksson dissented.
18 LOS Convention, supra note 1, Art. 292(2); see supra note 7.
19 M/V “Saiga” (St. Vincent v. Guinea), Judgment, ITLOS Case No. 1 (Dec. 4, 1997).
20 “Camouco” (Pan. v. Fr.), Judgment, ITLOS Case No. 5 (Feb. 7, 2000).
21 Admittedly, there is some ambiguity, as the flag state expressly appointed the agent (a private attorney who had also represented the vessel owner in municipal court proceedings in the same matter). See Bernard H. Oxman & Vincent, P. Bantz, Case Report: The “Camouco,” 94 AJIL 713 (2000)Google Scholar.
22 See “Grand Prince,” Decl. Cot, J. ad hoc, paras. 9-15. These general observations follow the rebuke, “L’accusation de fraude à la Convention est une accusation grave, qui ne doit pas etre portee a la legere,” with reference to assertions made by the agent for the applicant that France had confiscated the vessel in order to circumvent its prompt-release obligations. Id., para. 5. Judge Anderson notes that the agent “is not well placed, as a non-Belizean lawyer in private practice in Spain, to explain to the Tribunal the seeming inconsistencies in the statements of different government departments and agencies in Belize, as recorded in the documents” submitted to the Tribunal. Id., Sep. Op. Anderson, J., at 1.
23 Id., Decl. Cot, J. ad hoc, para. 11.