The Brazilian Institute for the Law of the Sea (BILOS) announced a call for submission of papers to be presented at the VIII Congress of the Brazilian Institute for the Law of the Sea. The theme of the event is Law of the Sea: New Actors, Conflicts, and Technologies. This event is to be held in Brasília on November 25-26, 2024. For those preferring to present the draft via videoconference, an extra session of the event will be held on 29 November 2024. Drafts must be submitted by 1 October 2024. Further information available here.
Monthly Archives: August 2024
Symposium: The ‘Constitution for the Oceans’ in Light of Emerging Challenges
The Korea Maritime Institute (KMI) and the International Foundation for the Law of the Sea (IFLOS) will jointly organise a symposium marking the 30th anniversary of the entry into force of the United Nations Convention on the Law of the Sea, entitled, The ‘Constitution for the Oceans’ in Light of Emerging Challenges, 21-22 September 2024, at the International Tribunal for the Law of the Sea (Hamburg, Germany). For more information and registration see here.
Filed under Events
Conference: Ocean Governance in the South Pacific & Latin America
The 47th Annual Conference on Oceans Law & Policy, entitled, Ocean Governance in the South Pacific and Latin America, will be held 17-20 September 2024 at the Peruvian Naval Academy (Lima, Peru), in a hybrid format. For more information and registration see here.
Filed under Events
Dispute Concerning Detention of Ukrainian Naval Vessels/Servicemen, Ruling and Appointment of Replacement Arbitrators
Following the previously reported Decision on Challenges and resignation of two arbitrators in the Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation), on 8 August 2024 the President of ITLOS, following consultations, appointed Mr James Kateka (United Republic of Tanzania) and Ms Joanna Mossop (New Zealand) to fill the vacancies (UNCLOS, Annex VII, Art 3(e)-(f)), as well as appointing Mr Gudmundur Eiriksson (Iceland) as president of the Arbitral Tribunal (UNCLOS, Annex VII, Art 3(e)-(f)).
The appointments follow previous developments under the Arbitral Tribunal, whereby, among others, the Russian Federation had requested the Arbitral Tribunal “proceed with a ruling in respect of the proper procedure for appointment of replacement arbitrators” (Procedural Order No. 9, para 1). The Arbitral Tribunal noted “that the Parties disagree on the proper interpretation and application of Article 3 of Annex VII to the Convention and the Rules of Procedure [..and..] notes especially its reference to the desirability of agreement between the Parties” (Procedural Order No. 9, paras 45-46). While progress was made, no agreement between the Parties on the appointment of replacement arbitrators was reached (Procedural Order No. 9, paras 17-22). In proceeding with the request, the analysis of the Arbitral Tribunal stated:
39. Professor McRae and Judge Wolfrum were appointed as members of the Arbitral Tribunal, and Professor McRae as its President, by the ITLOS President. Thus, in accordance with Article 3, subparagraph (e), of Annex VII, “the manner prescribed for [their] initial appointment” under subparagraph (f) for filling the vacancies resulting from the successful challenges to Professor McRae and Judge Wolfrum is that outlined in Article 3, subparagraph (e).
Procedural Order No. 9, paras 39-44
[…]
43. In Article 6 of its Rules of Procedure, the Arbitral Tribunal chose to deal with the application of the term in Article 3, subparagraph (e), of Annex VII to the Convention, “the manner prescribed for [their] initial appointment”, in the case of filling a vacancy in the event of withdrawal, incapacity or death of an arbitrator […]
44. Notably, Article 6, paragraph 1, of the Rules of Procedure does not refer to the event of disqualification of an arbitrator upon a successful challenge by a Party.
The Arbitral Tribunal ultimately concluded in Procedural Order No. 9 of 18 July 2024:
48. In its request for a ruling, the Russian Federation has not identified any question of procedure which, in the terms of Article 1, paragraph 2, of the Rules of Procedure of the Arbitral Tribunal, “is not expressly governed by these Rules [of Procedure] or by Annex VII to the Convention or other provisions of the Convention”, and the Arbitral Tribunal will not rule, in the abstract, on questions outside this scope.
Procedural Order No. 9, paras 48-50
49. Ukraine has now applied to the ITLOS President to appoint replacements for Professor McRae and Judge Wolfrum. It is not for this Arbitral Tribunal to comment on how the ITLOS President should respond to that request.
50. Accordingly, for the reasons set out above, the Acting President and the other members of the Arbitral Tribunal, by a majority of two to one, reject the request of the Russian Federation that the Arbitral Tribunal rule on the procedure for the appointment of replacement arbitrators.
Professor Vylegzhanin appended a Dissenting Opinion to Procedural Order No. 9 (not yet publicly available).
Filed under Jurisprudence
EU: BBNJ Agreement – Declaration of Competence & Exception on Non-retroactivity
On 19 July 2024, Council Decision (EU) 2024/1830 of 17 June 2024 was published in the Official Journal of the European Union, accompanied by Declaration 2024/1832 and Declaration 2024/1833.
Council Decision (EU) 2024/1830 approved, on behalf of the European Union, the Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement), completing the internal process to allow the EU to formally deposit its instrument of approval (not yet occurred). The instrument of approval (BBNJ Agreement, Art 66) will be accompanied by a Declaration of Competence (BBNJ Agreement, Art 67(2)) and an Exception (BBNJ Agreement, Arts 70, 10(1)). Declaration 2024/1832 provides what will be in the Declaration of Competence of the European Union concerning the BBNJ Agreement. Declaration 2024/1833 provides what will be in an authorised exception submitted by the European Union concerning BBNJ Agreement. The declared exception provides:
The European Union declares the exception of the retroactive effects as set out in the second sentence of Article 10(1), therefore the provisions of this Agreement shall apply for the Union only to activities with respect to marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction collected and generated after the entry into force of this Agreement for the Union.
Declaration 2024/1833
Other Parties (all others to-date) without a declared exception upon signature or ratification consent to apply relevant BBNJ Agreement provisions with retroactive effect: “The application of the provisions of this Agreement shall extend to the utilization of marine genetic resources and digital sequence information on marine genetic resources of areas beyond national jurisdiction collected or generated before entry into force” (BBNJ Agreement, Art 10(1)). Consistent with Articles 67 and 10, the Declaration of Competence and Article 10-based Exception must be submitted in writing when signing, ratifying, approving, accepting or acceding to the BBNJ Agreement. “The conclusion of the Agreement by the Union is without prejudice to the Member States’ competence as regards the ratification, approval or acceptance of the Agreement” (Council Decision (EU) 2024/1830, recital 9) and “The Union and its Member States aim to ratify the Agreement prior to the United Nations Ocean Conference that will take place in 2025” (Council Decision (EU) 2024/1830, recital 4).
Filed under State Practice, Treaties
CLCS: Partial Submission by Viet Nam (Central Area)
On 17 July 2024, in accordance with Article 76(8) of UNCLOS, Viet Nam submitted to the Commission on the Limits of the Continental Shelf (CLCS) information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured in respect of the Central Area (VNM-C).
This follows the separate May 2009 Joint Partial Submission by Malaysia and Viet Nam in the southern part of the South China Sea and May 2009 Partial Submission by Viet Nam in respect of the North Area (VNM-N), both of which have proceeded as far as the presentation of the submission by coastal State representatives at a session of the Commission (CLCS/64, paras 87-92; 102-106).
Note, on the same date as the VNM-C Partial Submission, Viet Nam submitted a Communication (17 July 2024) on the previously reported June 2024 Partial Submission by the Philippines (West Palawan Region). At the time of writing, communications received and published with regard to the VNM-C Partial Submission include China (29 July 2024).
Filed under International Organizations, State Practice
De Maribus 