ITLOS Turns 10 – A Cause for Celebration?

The International Tribunal for the Law of the Sea (ITLOS) celebrated its tenth anniversary last Monday. This week, ITLOS will host a formal ceremony and symposium in Hamburg to mark the occasion.

But does ITLOS really have all that much to celebrate? I wonder whether members of the Tribunal might actually view its first ten years as something of a disappointment given earlier expectations that it would be a robust center for dispute settlement in all areas of ocean law. To date, ITLOS has considered a grand total of 13 cases—less than two a year. Seven of these cases centered on the same legal issue—the prompt release of vessels. Guinea’s seizure of the M/V Saiga accounts for two of the thirteen cases. Two other cases – Swordfish Stocks in the South-Eastern Pacific Ocean and the Chaisiri Reefer 2 Case – settled before ITLOS held any hearings. And in the Southern Bluefin Tuna and MOX Plant cases, ITLOS only ruled on applications for provisional measures, as the parties opted to have the merits of their disputes heard by arbitral tribunal. Now, some of ITLOS’s decisions were significant – M/V Saiga, for example, dealt with important questions of the nationality of vessels and hot pursuit. Still, on the whole, ITLOS appears to be off to a slow start.

How does it compare with other international tribunals? In its first ten years (1946-1956), the ICJ decided 20 contentious cases and issued 10 advisory opinions. Of course, the ICJ’s jurisdiction reaches virtually all international legal issues, so it might be unfair to compare it to a “specialized” international tribunal such as ITLOS. At the same time, some specialized international tribunals have far exceeded ITLOS in terms of their caseloads. For example, when the WTO celebrated its 10 year anniversary a couple of years ago, it could boast over 300 cases in its first decade.

So, why does ITLOS appear to be on a much slower trajectory? I can think of three possible explanations. First, perhaps there is greater actual agreement among states on ocean law’s content as reflected in the 1982 UN Convention on the Law of the Sea (UNCLOS) than there is on the rules governing the international trading system. Greater agreement over the scope and application of a normative regime would suggest fewer disputes, and fewer underlying disputes could explain the paucity of dispute settlement cases before ITLOS. Or, perhaps the reason is structural. UNCLOS Art. 287 gives state parties three choices for resolving their ocean law disputes – (1) ITLOS; (2) the ICJ; or (3) various types of arbitral tribunals constituted in accordance with UNCLOS Annexes VII or VIII. Thus, unlike the WTO’s compulsory panel/appellate body system, ITLOS faces real competition for ocean law cases – competition where it sometimes loses (e.g., Southern Bluefin Tuna and MOX Plant) to other fora. A third possible explanation could be that states have yet to reach the point where they “trust” ITLOS as a legitimate institution that will fairly and effectively interpret the underlying treaty obligations. After all, the WTO was built on decades of GATT practice (and the ICJ was preceded by the PCIJ); ITLOS has no equivalent predecessor. Under this scenario, it may take several more years of ITLOS working its way through “minor” cases before states are willing to entrust it with more important decisions that they could otherwise have resolved by arbitral tribunal or through the ICJ.

Thus, for those looking for a brighter future for ITLOS, they should consider whether it will follow the trajectory of the International Centre for the Settlement of Investment Disputes (ICSID). Between ICSID’s formation in 1972 and its ten year anniversary in 1982, it too heard only 13 disputes. Today, however, ICSID has become a frequent source for decisions on international investment issues. From 1995-2005, it heard over 77 cases. So, even if there’s not much fanfare over ITLOS at 10, if it can increase the quantity and quality of its caseload, there may still be cause to celebrate in the years to come.