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    11:59 PM Kevin Lee (Advocate of the Supreme Court of Singapore, Counsel to the Republic of Italy in the Enrica Lexie dispute in the International Tribunal for the Law of the Sea)

    The International Tribunal for the Law of the Sea and its Joint Declaration with Singapore – Prospects, Possibilities and Predictions

        

    Introduction

    Singapore’s efforts to position itself as a leading centre for international dispute settlement have now advanced to the field of inter-State disputes and public international law. At a ceremony on 31 August 2015, Mr Ng How Yue, Permanent Secretary to the Ministry of Law of Singapore, and His Excellency Judge Vladimir Vladimirovich Golitsyn, President of the International Tribunal for the Law of the Sea (“ITLOS”, or “the Tribunal”), signed a Joint Declaration for Singapore to become a venue for proceedings in cases before ITLOS for the settlement of law of the sea disputes (“Joint Declaration”). With this latest development, Singapore is slated to be an attractive option as the venue for States from the Asia Pacific which have submitted their disputes to the Tribunal. This entry sets out the key features of ITLOS as an international judicial institution, discusses the nature of Singapore’s agreement with ITLOS, and explores the future of the settlement of law of the sea disputes in Singapore.

    The International Tribunal for the Law of the Sea and its Role in International Dispute Settlement

    Established by the United Nations Convention on the Law of the Sea (“UNCLOS” or “the Convention”) in 1982, the ITLOS is a specialized international judicial body for the settlement of disputes relating to the law of the sea. Currently, 166 States and the European Union are parties to UNCLOS, with Singapore itself having ratified the Convention on 17 November 1994.

    Since, at the time of the negotiation of UNCLOS, there were no existing international judicial bodies other than the International Court of Justice (“ICJ”), the institutional structure of ITLOS was modeled after that of the ICJ. As such, being broadly similar to the composition of the ICJ, the ITLOS is composed of 21 Judges who are elected by the parties to UNCLOS from among persons enjoying the highest reputation for fairness and integrity and having a recognized expertise in the law of the sea. No two members of the Tribunal may be nationals of the same State, and provisions in the ITLOS Statute ensure that the geographical representation of States is maintained within the Tribunal (Article 3 of ITLOS Statute). ITLOS procedure also adopts the ICJ formulation for Judges ad hoc. Accordingly, if the Tribunal, when hearing a dispute, does not include on the bench a member of the nationality of the parties, each of those parties may appoint an individual to participate as a Judge ad hoc of the Tribunal. ITLOS also has a permanent character similar to that of the ICJ, and has its seat in Hamburg, Germany, which is where all its proceedings have been conducted and its functions exercised thus far.

    While I do not intend to set out the structure and organization of ITLOS in full, a brief discussion of the competence and functions of ITLOS may be useful for understanding the kind of proceedings that could make their way to Singapore. In this regard, the UNCLOS confers on ITLOS a broad jurisdiction to deal with a wide variety of disputes. One must, however, bear in mind that ITLOS was a product of the UNCLOS negotiations that took place over an extended period of 9 years (1973 to 1982). As such, the intricacies of the UNCLOS negotiations—in particular, the complexity of concluding a single instrument embodying the diverse interests of all States, littoral or otherwise, in the regulation of the law of the sea—are inherently reflected in the legal and structural architecture of ITLOS. Thus, while the jurisdiction and functions of the Tribunal are set out in Annex VI of UNCLOS, they are particularized in various other provisions situated throughout UNCLOS.

    The primary bases of the jurisdiction of ITLOS may be summarised as follows. First, ITLOS has jurisdiction over disputes concerning the interpretation or application of UNCLOS. However, it is only one of four possible fora. Under the dispute settlement mechanism in Article 287 of UNCLOS, each party to UNCLOS is free to choose by means of a written declaration at the time of signing, ratifying or acceding to the Convention or thereafter, one or more of the following means for the settlement of UNCLOS disputes: (i) ITLOS, (ii) ICJ, (iii) ad hoc arbitration in accordance with Annex VII of UNCLOS (“Annex VII Arbitration”), or (iv) a “special arbitral tribunal” constituted in accordance with Annex VIII of UNCLOS. If the disputing parties have accepted the same procedure, that procedure applies unless agreed otherwise. If, however, the parties to the dispute have not accepted the same procedure, the default means for the settlement of the dispute is that of Annex VII Arbitration. As such, a dispute concerning the interpretation or application of UNCLOS will be submitted to ITLOS only if both parties have chosen ITLOS as their preferred means for the settlement of UNCLOS disputes under the Article 287 mechanism.

    Second, ITLOS has jurisdiction over certain disputes concerning the interpretation or application of agreements other than UNCLOS. This applies where a dispute concerning the interpretation or application of an international agreement related to the purposes of UNCLOS is submitted to ITLOS in accordance with the agreement (Article 288, Paragraph 2 of UNCLOS); or where parties have agreed to submit to ITLOS a dispute concerning the interpretation and application of a treaty or convention already in force and concerning the subject matter covered by UNCLOS (Article 22 of ITLOS Statute). In addition, the jurisdiction of ITLOS includes all matters specifically provided for in any agreement other than the Convention, which confers jurisdiction on the Tribunal (Article 21 of ITLOS Statute).

    Third, unless parties have agreed on an alternative forum, ITLOS has compulsory jurisdiction over disputes concerning the prompt release of vessels and crews that have been detained by a State Party in breach of UNCLOS (Article 292 of UNCLOS).

    Fourth, ITLOS has jurisdiction to prescribe provisional measures for the preservation of parties’ rights in accordance with the requirements of Article 290 of UNCLOS, where it considers that it has prima facie jurisdiction over a dispute that has been submitted to it (Article 290, Paragraph 1 of UNCLOS); or where a dispute has been submitted to Annex VII Arbitration, but the arbitral tribunal is pending constitution (Article 290, Paragraph 5 of UNCLOS).

    Fifth, the Seabed Disputes Chamber of ITLOS has jurisdiction over disputes relating to the exploration and exploitation of the “Area”, as defined in Article 1 of UNCLOS (Articles 186 to 191 of UNCLOS). This Chamber is also competent to give advisory opinions on legal questions arising within the scope of the activities of the International Seabed Authority at the request of the Assembly or the Council of the International Seabed Authority (Article 159, Paragraph 10 and Article 191 of UNCLOS).

    Sixth, the Tribunal has jurisdiction to give advisory opinions on legal questions where an international agreement related to the purposes of the Convention specifically provides for such a request to be submitted to the Tribunal (Article 138, Paragraph 1 of ITLOS Rules).

    Seventh, ITLOS has competence-competence in the event of a dispute as to its jurisdiction (Article 288, Paragraph 4 of UNCLOS).

    Quite apart from the question of the scope of the Tribunal’s jurisdiction, ITLOS has the ability to perform its functions through a variety of modalities. Pursuant to Article 15, Paragraph 1 of the ITLOS Statute, the Tribunal has the power to form special chambers for dealing with “particular categories of disputes”, and has, to date, formed three such chambers: the Chamber for Fisheries Disputes, the Chamber for Marine Environment Disputes, and the Chamber for Maritime Delimitation Disputes. In addition, exercising its power under Article 15, Paragraph 3 of the ITLOS Statute, the Tribunal has also formed the Chamber for Summary Procedure for the speedy determination of disputes by summary procedure. Finally, in accordance with Article 15, Paragraph 2 of the ITLOS Statute, parties may also request that a special chamber be formed for deciding a particular dispute. Parties to a dispute may, therefore, choose to have their dispute heard either by the full Tribunal of 21 Judges, or by one of its Special Chambers.

    Nature of the Joint Declaration – What it is and what it isn’t

    Having set out the key features of ITLOS, some words might be devoted to the nature of the Joint Declaration. While the actual text of the Joint Declaration is not publicly available, the joint press release by ITLOS and the Singapore Ministry of Law sheds some light on the nature of the agreement. The press release states that, in line with the commitment to safeguard the international rule of law in the region, “the Singapore Government will provide appropriate facilities to the Tribunal whenever it is desirable for a special chamber of the Tribunal or the Tribunal to sit or exercise its functions in Singapore”.

    A number of points as to the nature of the Joint Declaration can be gleaned from the text of the joint press release. Unlike what some press articles have inadvertently implied, Singapore has not, by virtue of the Joint Declaration, become a legal forum for the settlement of law of the sea disputes. Rather, the Joint Declaration simply provides a legal framework for the conduct of ITLOS proceedings in Singapore. While ITLOS is headquartered in Hamburg, the Tribunal has always had the ability to sit and exercise its functions outside of Hamburg whenever it considers this desirable (Article 1, Paragraph 3 of ITLOS Statute). Accordingly, the Joint Declaration formalizes a commitment that suitable facilities will be provided by Singapore for ITLOS proceedings where the Tribunal or parties to a dispute have decided that Singapore would be an appropriate venue for the conduct of such proceedings. In this regard, the author notes that a similar agreement for the provision of facilities for arbitral disputes administered by the Permanent Court of Arbitration (“PCA”) was concluded between Singapore and the PCA in 2007.

    In addition, based on the description in the press release, the nature of the ITLOS proceedings that may be hosted in Singapore appears to include the full panoply of disputes and matters falling within the jurisdiction and functions of the Tribunal. As such, all disputes described in the previous section of this entry could potentially be heard in Singapore facilities, regardless of whether they are before the full Tribunal or one of the ITLOS Special Chambers. In addition, any other matters relating to the functions of ITLOS may similarly be conducted in a Singapore facility (e.g. meetings held by the President of ITLOS in exercising his function as the appointing authority where a dispute has been submitted to Annex VII Arbitration but the parties are unable to agree on the appointment of arbitrators (Article 3, Paragraphs (d) to (f) of Annex VII of UNCLOS)).

    Finally, while the actual text of the Joint Declaration is not available for inspection, agreements of this nature usually contain provisions that regulate the privileges and immunities provided by the host State (in this case, Singapore) to members of the Tribunal and/or participants in the proceedings. They often also include a commitment by the international organization to promote the use of the host State as an alternative venue for proceedings where it is appropriate or desirable to do so.

    The future of Law of the Sea disputes in Singapore – Prospects, Possibilities and Predictions

    The signing of the Joint Declaration is very positive news for the settlement of law of the sea disputes in Singapore, and signifies a strong commitment from Singapore to contribute to the international rule of law by facilitating the work of ITLOS. In addition, the author is of the view that the Joint Declaration will be an important catalyst for the growth of the settlement of law of the sea disputes in Singapore, and in this regard, would conclude with the following observations and predictions.

    The Joint Declaration is incredibly strategic in seeking to expand the possibility of Singapore being a viable hearing venue for law of the sea disputes. Since the UNCLOS came into force in 1994, twelve cases have been arbitrated under Annex VII of UNCLOS, eleven of which have been administered under the auspices of the PCA. As noted above, Singapore already has in place a Host Country Agreement concluded with the PCA which formalizes its commitment to provide hearing and meeting facilities for PCA proceedings. The Joint Declaration between ITLOS and Singapore therefore expands the possibility of Singapore being the hearing venue over a range of other matters that are either unique to ITLOS, or in conjunction with the PCA Host Country Agreement, allows Singapore to be a hearing venue for a much larger range of law of the sea proceedings.  

    Moreover, far from just being an agreement for the provision of hearing and meeting facilities, there is also a good chance that the Joint Declaration could actually “grow the pie” for the settlement of law of the sea disputes in ITLOS and Singapore, as opposed to the mere redistribution of existing and prospective cases. I say this for two reasons. First, the establishment of Singapore as a hearing venue substantially reduces the potential cost of international dispute settlement in ITLOS for States from the Asia Pacific. In large inter-State disputes, the combined size of parties’ delegations could amount to more than seventy people. The Joint Declaration allows State Parties from the Asia Pacific to send their delegations for hearings and meetings in Singapore rather than have to bear the very substantial costs of flying their entire delegations to Hamburg. This could result in more disputes being submitted to ITLOS by States from the Asia Pacific where cost concerns would otherwise have been prohibitive. Second, in a small, but not insignificant way, the fact that Singapore is a possible venue for the settlement of law of the sea disputes could also help to reduce the impression of Asian States that the settlement of public international law disputes is predominantly euro-centric. This may, in the longer term, persuade more Asian States to resolve their law of the sea disputes via international dispute settlement, and with Singapore as a venue.

    In light of the above, it is the author’s opinion that the incidence and number of law of the sea proceedings that will be heard in Singapore will rise over the next decade. In addition, given Singapore’s parallel efforts to establish itself as a leading international dispute resolution hub, there is also a promising chance that States would not only look to Singapore as a viable hearing venue, but also as a possible seat of arbitration. There is, nonetheless, more that can be done in pursuit of Singapore’s vision. Two such propositions stand out.

    First, Singapore could increase its ability to provide the full range of dispute resolution services for law of the sea disputes by growing its expertise in providing and supporting international conciliation. While Asian States frequently resort to international litigation and arbitration of law of the sea disputes, alternative forms of dispute resolution such as conciliation (provided for in Article 284 and Annex V of UNCLOS) are likely to grow in importance in the long run. The adversarial win-lose nature of international litigation and arbitration is unacceptable to certain Asian States. A recent example of this is China’s refusal to participate in an Annex VII Arbitration commenced by the Philippines with respect to their disputes in the South China Sea. As such, the resort to more consensual forms of dispute resolution that allow for a win-win solution may grow in Asia in the long run, in particular as regards law of the sea disputes where important national or strategic interests are concerned. Establishing expertise in international conciliation (potentially by expanding the focus of the Singapore International Mediation Centre) could therefore contribute to the future growth of law of the sea disputes in Singapore.

    Second, Singapore should utilize its ability to nominate individuals to the United Nations list of conciliators and arbitrators. Under Article 3 of Annex V and Article 3 of Annex VII of UNCLOS, where parties are unable to constitute the conciliation commission or Annex VII arbitral tribunal, respectively, for the settlement of law of the sea disputes, the appointing authority must appoint the remaining conciliators or arbitrators from the United Nations list of conciliators and arbitrators. At present, Singapore has not made any nominations for either of those lists, thereby forgoing the possibility that its nominated individuals could be selected by the appointing authority as part of a conciliation commission or Annex VII arbitral tribunal for the settlement of law of the sea disputes. The nomination of senior practitioners with relevant law of the sea expertise (e.g. Professor Tommy Koh who was the President of the third United Nations conference on the law of the sea) could therefore open up another potential area in which Singapore could grow its dispute resolution expertise and reputation in the law of the sea, and contribute in a very direct way to the international rule of law.

    All in all, the Joint Declaration is an important instrument for the future of law of the sea disputes in Singapore, and in line with the Singapore Government’s wider vision of establishing Singapore as a hub for international dispute settlement, represents a very promising advancement in the field of inter-State disputes. This author is optimistic that with the right stepping stones in place, Singapore’s goal and vision of becoming a leading international dispute resolution hub for the full suite of dispute resolution services is not just plausible, it is forthcoming. 

    * This blog entry may be cited as Kevin Lee, “The International Tribunal for the Law of the Sea and its Joint Declaration with Singapore – Prospects, Possibilities and Predictions”, Singapore Law Blog (15 September 2015) (http://www.singaporelawblog.sg/blog/article/134)

    ** A PDF version of this entry may be downloaded here

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