Dispute settlement under the un convention on the law of the sea: Survey for 2006

International Journal of Marine and Coastal Law

Volumn 22, Issue 4, 2007, Pages 463-483

  Churchill, Robin ^a  

^a UNIVERSITY OF DUNDEE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

DISPUTE RESOLUTION; LAW OF THE SEA; MARITIME BOUNDARY; SURVEY; UNITED NATIONS;

ATLANTIC ISLANDS; ATLANTIC OCEAN; BARBADOS; CARIBBEAN ISLANDS; LESSER ANTILLES; TRINIDAD AND TOBAGO;

EID: 36048980269     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180807782512233     Document Type: Article

References (94)

1. The previous surveys (for 2004 and 2005) were published in (2006) 21 IJMCL 1 and 377.
2. The information in this section has been obtained from the web site of the UN Division for Ocean Affairs and the Law of the Sea at http://www.un.org/ Depts/los/index.htm.
3. UN General Assembly Resolution A/RES/66/222 of 20 December 2006, para. 27.
4. Report of the Sixteenth Meeting of States Parties to the Law of the Sea Convention, SPLOS/148, 28 July 2006, pp. 7-9 (paras. 34-42), available at http://daccessdds.un.org/doc/UNDOC/GEN/N06/448/49/PDF/N0644849.pdf? OpenElement;
5. and Decisions on Budgetary Matters of the International Tribunal for the Law of the Sea for 2007-2008, SPLOS/145, 23 June 2006, available at http://daccessdds.un.org/doc/UNDOC/GEN/N06/403/32/PDF/N0640332.pdf? OpenElement.
6. Report of the Sixteenth Meeting, supra note 4, p.10 (paras. 50-53);
7. Decision relating to the Establishment of the Staff Pension Committee of the International Tribunal for the Law of the Sea, SPLOS/147, 23 June 2006, available at http://daccessdds.un.org/doc/UNDOC/GEN/N06/403/74/PDF/N0640374.pdf? OpenElement.
8. Oceans and Law of the Sea: Report of the Secretary-General, UN Doc. A/62/66 (12 March 2007), p. 12 (para. 19), available at http://daccessdds.un.org/doc/UNDOC/GEN/N07/266/94/PDF/N0726694.pdf?OpenElement.
9. See also Annual Report of the International Tribunal for the Law of the Sea for 2006, SPLOS/152, 23 March 2007, pp. 8-9, available at http://daccessdds.un.org/doc/UNDOC/GEN/N07/281/82/PDF/N0728182.pdf?OpenElement
10. Statement by President Wolfrum to the UN General Assembly on 8 December 2006, paras. 5-8, available at http://www.itlos.org/start2_en.html. See also his address to the Informal Meeting of Legal Advisers of Ministries of Foreign Affairs, 23 October 2006, pp. 3-7, available at ibid.
11. Oceans and Law of the Sea: Report of the Secretary-General, supra note 4, p. 13 (para. 22); ITLOS, Press Release 104, 19 September 2006, available at http://www.itlos.org/start2_en.html.
12. Oceans and Law of the Sea: Report of the Secretary-General, supra note 4, p. 12 (para. 19).
13. ITLOS, Press Releases 103 and 105, 19 and 29 September 2006, available at http://www.itlos.org/start2_en.html.
14. ITLOS, Press Release 106, 6 November 2006, available at http://www.itlos.org/start2_en.html.
15. Although the UN Secretary-General decided in 2005 to award a sum of $20,000 from the Fund to Guinea-Bissau towards the expenses that it had incurred in the Juno Trader case in 2004, no request for that sum had been made by Guinea-Bissau by the end of 2006.
16. Oceans and Law of the Sea: Report of the Secretary-General, supra note 6, p. 101 (para. 358).
17. See, for example, President Wolfrum's addresses to the UN General Assembly and to the Informal Meeting of Legal Advisers in 2006, supra note 7.
18. See the Survey for 2004 for an explanation as to why the four cases concerning the law of the sea that have been referred to the ICJ since the entry into force of the Law of the Sea Convention were not brought under Part XV of the Convention: R. Churchill, "Dispute Settlement under the UN Convention on the Law of the Sea: Survey for 2004," (2006) 21 IJMCL 1 at 11.
19. See V. Lowe and R. Churchill, "The International Tribunal for the Law of the Sea: Survey for 2001," (2002) 17 IJMCL 463 at 479-84
20. and R. Churchill, "The International Tribunal for the Law of the Sea: Survey for 2003," (2004) 19 IJMCL 369 at 372.
21. The MOX Plant case (Ireland v. United Kingdom), Request for Provisional Measures, Order of 3 December 2001, (2002) 41 ILM 405.
22. The MOX Plant case (Ireland v. United Kingdom). Order No. 4 of 14 November 2003. Further Suspension of Proceedings on Jurisdiction and Merits, available at http://www.pcacpa.org/ENGLISH/RPC/MOX/MOX%200rder%20No4.pdf. In fact, proceedings had been provisionally suspended in June 2003 when it became clear the Commission was contemplating the institution of proceedings against Ireland:
23. see The MOX Plant Case (Ireland v. United Kingdom). Order No. 3. Suspension of Proceedings on Jurisdiction and Merits and Request for Further Provisional Measures, available at http://www.pca-cpa.org/upload/files/ MOX%20Order%20no3.pdf.
24. Case C-459/03, Commission v. Ireland, [2006] ECR 1-4635. For a much fuller discussion of the Court's judgment than that which follows,
25. see P. J. Cardwell and D. French, "Who Decides? The ECJ's Judgment on Jurisdiction in the MOX Plant Dispute," (2007) 19 Journal of Environmental Law 121;
26. N. Lavranos, "The MOX Plant Judgment of the ECJ: How Exclusive is the Jurisdiction of the ECJ?," (2006) 15 European Environmental Law Review 291;
27. and N. Lavranos, "The Scope of the Exclusive Jurisdiction of the Court of Justice," (2007) 32 European Law Review 291.
28. Paras. 80-139 of the Court's judgment.
29. Treaty establishing the European Atomic Energy Community, 1957. Art. 193 of the latter is similar to Art. 292 of the EC Treaty.
30. Paras. 148-152 of the Court's judgment.
31. Paras. 158-183 of the Court's judgment.
32. The MOX Plant case (Ireland v. United Kingdom). Order No. 5 of 22 January 2007. Suspension of Periodic Reports by the Parties, available at http://www.pca-cpa.org/PDF/MOX%20Order%20No5.pdf.
33. (2006) 45 ILM 798. The text of the award is also available at http://www.pca-cpa.org/ENGLISH/RPC/BATRI/Award%20final%20110406.pdf. The award has already been the subject of comment in this journal. See Yoshifumi Tanaka, "Arbitral Tribunal Award, Annex VII LOSC, Barbados v. Trinidad and Tobago," (2006) 21 IJMCL 523;
34. and Barbara Kwiatkowska, "The 2006 Barbados/Trinidad and Tobago Award: A Landmark in Compulsory Jurisdiction and Equitable Maritime Boundary Delimitation," (2007) 22 IJMCL 7.
35. See paras. 194-200 of the Award.
36. Award, para. 200 (ii).
37. Southern Bluefin Tuna Case (Australia and New Zealand v. Japan) (Award on Jurisdiction and Admissibility of 4 August 2000), paras. 55 and 63, (2000) 39 ILM 1359.
38. Award, para. 203.
39. See Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan) (Provisional Measures, Order of 27 August 1999), paras. 56-61, (1999) 38 ILM 1624;
40. and MOX Plant Case (Ireland v. United Kingdom), supra note 17, para. 60.
41. See further Robin Churchill, "Some Reflections on the Operation of the Dispute Settlement System of the UN Convention on the Law of the Sea during its First Decade," in David Freestone, Richard Barnes and David Ong (eds), The Law of the Sea: Progress and Prospects (Oxford University Press, Oxford 2006) 388 at 405-406.
42. Case concerning the Delimitation of Maritime Areas between Canada and the French Republic, (1992) 31 ILM 1145 at 1172.
43. Award, para. 368.
44. Ibid., para. 215.
45. Ibid.
46. Award, para. 222.
47. Ibid., para. 223.
48. Ibid., para. 227.
49. Ibid., para. 228.
50. Ibid., para. 230.
51. Ibid., paras. 231-241.
52. Ibid., paras. 242-244 (citations to case law omitted). Later in its Award (in para. 305) the Tribunal suggests that its approach is applicable not only to delimitation of overlapping EEZs and continental shelves but also to delimitation of overlapping territorial seas.
53. Eritrea/Yemen arbitration, 2nd stage, 1999, 119 International Law Reports All.
54. Maritime Delimitation and Territorial Questions (Qatar v. Bahrain) case (Merits), [2001] ICJ Rep. 40;
55. and Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria, Equatorial Guinea intervening), [2002] ICJ Rep. 303.
56. Award, para. 294. The equidistance line is measured from the archipelagic baselines of Trinidad and Tobago and the low-water line on the coast of Barbados.
57. For maps showing the claims of the parties as to where the boundary should lie, as well as the actual boundary determined by the Tribunal, see pp. 42 and 50 of this volume of the Journal.
58. Award., para. 381.
59. Ibid., para. 269.
60. Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) [1993] ICJ Rep. 38.
61. Award, para. 269. The Tribunal here essentially follows the judgment of the ICJ in the Gulf of Maine case: see Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/USA) [1984] ICJ Rep. 24e at 342.
62. Fishing Agreement between the Government of the Republic of Trinidad and Tobago and the Government of Barbados, 1990. Text in Trinidad and Tobago's Counter-Memorial, Annex, Vol. 2(1), No. 7.
63. Award, paras. 285-286.
64. Ibid., paras. 288-293.
65. See Press Release No. 04 MFA of the Barbados Ministry of Foreign Affairs and Foreign Trade, 23 January 2007, at http://www.foreign.gov.bb/Userfiles/File/ Barbados%20and%20Trinidad%20Meet%20to%20Conclude% 20Bilateral%20Fisheries%20Agreement.pdf.
66. See the MOX Plant Case (Ireland v. United Kingdom), supra note 17, paras. 78-80;
67. and Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Request for Provisional Measures, Order of 8 October 2003, paras. 76-81 and 84-88, available at http://www.itlos.org/start2_en.html.
68. Award, para. 315. But note that in the following para, the Tribunal did say that the distinction between opposite and adjacent coasts may be relevant in "limited geographical circumstances" but "has no weight when the delimitation is concerned with vast ocean areas."
69. Ibid., para. 327.
70. Ibid., para. 329.
71. Ibid., para. 331.
72. Ibid.
73. Award, para. 328.
74. Ibid., para. 337.
75. Ibid.
76. Treaty on the Delimitation of Marine and Submarine Areas, 1990. 1654 UNTS 293.
77. Agreement on Maritime Delimitation, 1987. 1546 UNTS 308.
78. Cameroon v. Nigeria, supra note 43, at 447 (para. 304).
79. Aegean Sea Continental Shelf case (Greece v. Turkey), [1978] ICJ Rep. 3.
80. Award, para. 373.
81. Ibid., para. 375.
82. Ibid., para. 376.
83. It should be noted that the point of intersection is some way short of the seaward limit of the boundary between Trinidad and Tobago and Venezuela established by their 1990 agreement, which lies more than 200 nautical miles from the archipelagic baselines of Trinidad and Tobago at a point described in Art. II (1) of the agreement as "approximately on the outer edge of the continental margin."
84. On this question, see Kwiatkowska, supra note 25, pp. 53-58. This matter was also dealt with in the pleadings of the parties: see, for example, the counter-memorial of Trinidad and Tobago, pp. 94-100, available at http://www.pca-cpa.org/upload/files/TTCM.pdf.
85. See Press Release No. 6 of the Barbados Ministry of Foreign Affairs and Foreign Trade, 11 April 2006, at http://www.barbados.gov.bb/Docs/ FISHERIES_DISPUTE.pdf; and Statement of the Attorney General of Trinidad and Tobago to the Senate on 11 April 2006, pp. 54-56 at http://www.ttparliament.org/ hansard/senate/2006/hs20060411 .pdf.
86. See para. 338 of the Award.
87. The Guyana/Suriname case, which was before an arbitral tribunal (discussed immediately below); and the Nicaragua/Colombia, Nicaragua/Honduras and Romania/Ukraine cases, which were before the ICJ.
88. See Churchill, supra note 15, at pp. 12-13.
89. There were, however, news reports that the oral proceedings took place in December 2006: see http://cgxenergy.ca/News_Jan_02_07.html.
90. A similar provision relating specifically to the ITLOS is found in Art. 21 of Annex VI.
91. For a list of seven of these agreements, and a discussion of their provisions, see Tullio Treves, "A System for Law of the Sea Dispute Settlement," in Freestone, Barnes and Ong, supra note 30, p. 417. The eighth agreement is the Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries, 1980 (1285 UNTS 129), which in 2004 was amended by providing that disputes relating to the interpretation and application of the Convention that cannot be settled by consensual means may be referred by either party to the means of dispute settlement set out in Part XV of the Law of the Sea Convention or, in the case of disputes involving straddling stocks, the means set out in Part VIII of the Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (the UN Fish Stocks Agreement):
92. see North-East Atlantic Fisheries Commission, Report of the 23rd Annual Meeting, Vol. II, 28-29.
93. (1997) 36 ILM 7.
94. [2006] Official Journal of the European Communities L196/15.