Category Archives: Jurisprudence

Following our previous post, the International Court of Justice (ICJ) has delivered today its Judgment on the preliminary objections raised by Kenya in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya). It finds that it may proceed with the maritime delimitation between Somalia and Kenya in the Indian Ocean. The Judgement can be found here and the summary here.

The conciliation proceedings between the Government of the Democratic Republic of Timor-Leste and the Government of the Commonwealth of Australia, pursuant to article 298 and Annex V of the UN Convention on the Law of the Sea, has resulted in measures intended to facilitate the conciliation, reported within a Trilateral Joint Statement issued 9 January 2017. After further exploration of negotiating positions, Timor-Leste  has written to the tribunals to withdraw the two claims it had initiated with Australia under the Timor Sea Treaty, reported within a Trilateral Joint Statement issued 24 January 2017.

See Trilateral Joint Statement – PCA Case Nº 2016-10 (9 January 2017) and Trilateral Joint Statement – PCA Case Nº 2016-10 (24 January 2017).

The Judgment of the Tribunal on the Preliminary Objections raised by Italy on 11 March 2016 in The M/V “Norstar” Case (Panama v. Italy) was delivered today. The Tribunal finds that it has jurisdiction to adjudicate the dispute and decides that Panama’s application is admissible. According to the Application, the dispute concerns the arrest and detention of the M/V “Norstar”, a Panamanian-flagged oil tanker. More details can be found in the Tribunal’s Judgement.

Following what has been previously reported here and here, the PCA’s Conciliation Commission has issued its Decision on Competence in the compulsory conciliation initiated between Timor-Leste and the Australia under Annex V of the United Nations Convention on the Law of the Sea. In its Decision, the Commission held that it was competent to continue with the conciliation process. These compulsory conciliation proceedings concern the maritime boundary between both States and were initiated by Timor-Leste by way of a Notice addressed to Australia pursuant to Article 298 and Annex V of the Convention. More information about this development can be found in the PCA’s press release.

Following the previously reported initiation of compulsory conciliation by Timor-Leste in respect of a dispute with Australia, readers may follow the inter-state conciliation on the Permanent Court of Arbitration website, PCA Case No. 2016-10.

For more information, press releases and transcripts see here.

The PCA has issued today a unanimous Award in the arbitration instituted by the Republic of the Philippines against the People’s Republic of China. This arbitration concerned the role of historic rights and the source of maritime entitlements in the South China Sea, the status of certain maritime features and the maritime entitlements they are capable of generating, and the lawfulness of certain actions by China that were alleged by the Philippines to violate the UNCLOS. The full text of the Award can be downloaded here. A summary has been provided by the PCA and can be downloaded here.

The Permanent Court of Arbitration has today informed the Parties that the Tribunal will issue its Award in the arbitration initiated by the Republic of the Philippines against the People’s Republic of China under Annex VII to the United Nations Convention on the Law of the Sea. The Tribunal will issue its Award on Tuesday, 12 July 2016 at approximately 11 A.M. CEST, The Hague. More information can be found in this press release.

On 29 April 2016, the Arbitral Tribunal in the arbitration concerning the “Enrica Lexie” incident (Italy v. India) adopted its Order in respect of a request by Italy for the prescription of provisional measures. In the operative part of the Order, the Arbitral Tribunal unanimously prescribed the following provisional measures:

a) Italy and India shall cooperate, including in proceedings before the Supreme Court of India, to achieve a relaxation of the bail conditions of Sergeant Girone so as to give effect to the concept of considerations of humanity, so that Sergeant Girone, while remaining under the authority of the Supreme Court of India, may return to Italy during the present Annex VII arbitration.
b) The Arbitral Tribunal confirms Italy’s obligation to return Sergeant Girone to India in case the Arbitral Tribunal finds that India has jurisdiction over him in respect of the “Enrica Lexie” incident.
c) The Arbitral Tribunal decides that Italy and India each shall report to the Arbitral Tribunal on compliance with these provisional measures, and authorizes the President to seek information from the Parties if no such report is submitted within three months from the date of this Order and thereafter as he may consider appropriate.

The full text of the Order is available on the Case Repository of the PCA.

The International Court of Justice delivered its Judgment on the preliminary objections raised by Colombia in the case concerning Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia). The Court found that it has jurisdiction, on the basis of Article XXXI of the Pact of Bogotá, to entertain the First Request put forward by Nicaragua in its Application, in which it requests the Court to determine “the precise course of the maritime boundary between Nicaragua and Colombia in the areas of the continental shelf which appertain to each of them beyond the boundaries determined by the Court in its Judgment of 19 November 2012”, and that that Request is admissible. The award of the court can be found here.

Months after the ITLOS Order on the “Enrica Lexie” Incident has been delivered (see post), the Permanent Court of Arbitration just announced that the constitution of the Arbitral Tribunal in an arbitration between the Italian Republic and the Republic of India under Annex VII to the UNCLOS has been completed. Information on the appointed arbitrators can be found in this press release.

The Permanent Court of Arbitration has rendered an Award on Jurisdiction and Admissibility in case number 2013-19; The Republic of Philippines v. The People’s Republic of China. In short, by unanimous decision the Tribunal has decided the Tribunal has jurisdiction to consider the Philippines’ Submissions No. 3, 4, 6, 7, 10, 11, and 13 (subject to conditions discussed in in paragraphs 400, 401, 403, 404, 407, 408, 410); reserved consideration of its jurisdiction to rule on Submissions No. 1, 2, 5, 8, 9, 12, and 14 to the merits phase; and directed the Philippines to clarify the content and narrow the scope of its Submission 15 (reserving consideration of its jurisdiction to the merits phase).

For further information, please see the Award here, and the Press Release here.

The Permanent Court of Arbitration has delivered a unanimous Award dated 14 August 2015, in which it affirmed jurisdiction and found Russia had breached its obligations owed to the Netherlands as the flag State under Articles 56(2), 58(1), 58(2), 87(1)(a), and 92(1) of UNCLOS. Furthermore, in failing to comply with previous provisional measures proscribed by ITLOS, Russia breached its obligations to the Netherlands under Articles 290(6) and 296(1). Finally a failure to pay the deposits requested by the Tribunal in these proceedings, was a breach of Russia’s obligations under Part XV and Article 300.

An overview of the case can be found here. For a summary of the award see here, and the full award here.

The International Tribunal for the Law of the Sea has been requested by Italy to prescribe provisional measures under article 290, paragraph 5, of the United Nations Convention on the Law of the Sea in a dispute with the Republic of India over the incident involving the MV Enrica Lexie, an oil tanker flying the Italian flag. By Order dated 24 July 2015, the President of the Tribunal, Judge Vladimir Golitsyn, fixed 10 August 2015 as the date for the opening of the public hearing in the case. More information can be found on the press release.

The Special Chamber of the International Tribunal for the Law of the Sea has unanimously prescribed provisional measures under article 290(1) of UNCLOS in the case, Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire).

The Order of the 25 April can be found here, along with the Separate Opinion of Judge ad hoc Mensah here. For a summary, refer to the Press Release here.

The Arbitral Tribunal in the case submitted by the Republic of the Philippines against the People’s Republic of China under Annex VII to the United Nations Convention on the Law of the Sea has issued its fourth Procedural Order, deciding to conduct a hearing in July 2015 on the Arbitral Tribunal’s jurisdiction. More information is available in the PCA’s press release.

The Special Chamber of the International Tribunal for the Law of the Sea, established to deal with the dispute concerning delimitation of the maritime boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean will deliver its Order in the provisional measures phase of the case on Saturday, 25 April 2015. Judge Boualem Bouguetaia, President of the Special Chamber, will read the Order at a public sitting which will be held at 3 p.m. More information available in the ITLOS press release.

The International Tribunal for the Law of the Sea (ITLOS) has on the 2nd April 2015 given its advisory opinion in Case No. 21, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC). The questions referred to the Tribunal were “1. What are the obligations of the flag State in cases where illegal, unreported and unregulated (IUU) fishing activities are conducted within the Exclusive Economic Zones of third party States? 2. To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag? 3. Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question? 4. What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna?”.

The advisory opinion can be found here, along with a summary press release.

Availing themselves of the right conferred under article 125(2), of the Rules of the Tribunal, two declarations were appended: Declaration of Judge Wolfrum and Declaration of Judge Cot.
Exercising the right conferred by article 30(3), of the Statute of the Tribunal, three separate opinions were given: Separate opinion of Judge Ndiaye; Separate opinion of Judge Lucky, and Separate opinion of Judge Paik.

The arbitration proceedings concerning the establishment of a marine protected area by the United Kingdom of Great Britain and Northern Island around the Chagos Archipelago (April 2010) has concluded with an award in relation to Mauritius’ claim that the MPA declaration was incompatible with the United Kingdom’s UNCLOS obligations. The claims related to the status of the UK/Mauritius as the coastal state were dismissed for lack of jurisdiction. Judge James Kateka and Judge Rüdiger Wolfrum issued a dissenting and concurrent opinion which touched upon this question, and the principles of decolonization and self-determination.

For an overview see the press release. For more information see the full Award of the Arbitral Tribunal, and the dissenting and concurrent opinion of Kateka and Wolfrum.

In the arbitration proceedings, The Republic of the Philippines v. The People’s Republic of China, The Republic of the Philippines have conveyed a further 12 volumes of supplementary submissions totaling over 3,000 pages. This is in response to the 26 questions submitted by the Arbitral Tribunal to the Philippines.

For more information on the submission see the Statement of the Department of Foreign Affairs (Philippines). Further information on the arbitration proceedings can be found here.

Côte d’Ivoire has submitted a request under UNCLOS article 290(1) to the Special Chamber of the International Tribunal for the Law of the Sea formed to deal with the Ghana/Côte d’Ivoire maritime boundary dispute (Case No. 23).

For full details of the provisional measures requested see here.

On 4 October 2013, the Kingdom of the Netherlands instituted arbitral proceedings against the Russian Federation under Annex VII to the United Nations Convention on the Law of the Sea. The dispute concerns the boarding and detention of the vessel Arctic Sunrise in the exclusive economic zone of the Russian Federation and the detention of the persons on board the vessel by the Russian authorities. By Note Verbale to the PCA dated 27 February 2014, the Russian Federation has indicated its “refusal to take part in this arbitration”. The award on Jurisdiction was just delivered and can be found here.

Ghana has initiated arbitration proceedings under the United Nations Convention on the Law of the Sea (Part XV, and Annex VII) to establish its maritime boundary with Côte d’Ivoire. For more information, see Ghanaian Government press release, and the Joint Press Release by Attorney General & Minster for Justice, Minister for Energy and the Chairman of the Boundary Commission.

The official press release of the Ghanaian government demonstrating the intended arbitration procedure.

The Federal Republic of Somalia has instituted proceedings against the Republic of Kenya before the International Court of Justice with regard to “a dispute concerning maritime delimitation in the Indian Ocean”. (Somalia Application).

In its Application, which is accompanied by three sketch-maps, Somalia contends that both States “disagree about the location of the maritime boundary in the area where their maritime entitlements overlap”, and asserts that “[d]iplomatic negotiations, in which their respective views have been fully exchanged, have failed to resolve this disagreement”. (ICJ Press Release).

The Somali Government requested the ICJ to establish a single maritime boundary between Somalia and Kenya in the Indian Ocean delimiting the territorial sea, exclusive economic zone, and continental shelf, including the continental shelf beyond 200 nautical miles. (Somalia Ministry Foreign Affairs Press Release).

In its Award dated 7 July 2014, the Permanent Court unanimously decided that it has jurisdiction to identify the land boundary terminus and to delimit the territorial sea, the exclusive economic zone, and the continental shelf between the Parties within and beyond two hundred nautical miles in the areas where the claims of the Parties overlap. The Tribunal was also unanimous in identifying the location of the land boundary terminus between Bangladesh and India and in determining the course of the maritime boundary in the territorial sea. By a majority of four votes to one, the Tribunal determined the course of the maritime boundary line between Bangladesh and India in the exclusive economic zone and the continental shelf within and beyond 200 nautical miles (press release). You can read the full Award from the PCA here as well as the separate concurring and dissenting opinion to the Award of judge Pemmaraju Sreenivasa Rao.

Bangladesh-India Delimitation (p.163, Award)

The Arbitral Tribunal in the case brought by the Republic of the Philippines against the People’s Republic of China under Annex VII to the United Nations Convention on the Law of the Sea (“the Convention”), has issued its second Procedural Order, establishing the next steps in the timetable for the arbitration. This follows the second meeting of the Members of the Arbitral Tribunal, held at the Peace Palace in The Hague on 14 and 15 May 2014.  In accordance with the Tribunal’s first Procedural Order dated 27 August 2013, the Philippines filed its Memorial on 30 March 2014, addressing matters relating to the jurisdiction of the Arbitral Tribunal, the admissibility of the Philippines’ claim, as well as the merits of the dispute. In Procedural Order No. 2, the Arbitral Tribunal fixes 15 December 2014 as the date for China to submit its Counter-Memorial responding to the Philippines’ Memorial. The Arbitral Tribunal will determine the further course of the proceedings, including the need for, and scheduling of any other written submissions and hearings, at an appropriate later stage, after seeking the views of the Parties. More information on the case here and here.

The International Tribunal for the Law of the Sea delivered its judgment today in The M/V “Virginia G” Case (Panama/Guinea-Bissau). The judgment was read by President Shunji Yanai at a public sitting.

The dispute concerns the M/V Virginia G, an oil tanker flying the flag of Panama, arrested on 21 August 2009 by the authorities of Guinea-Bissau for carrying out refuelling operations for foreign vessels fishing in Guinea-Bissau’s exclusive economic zone. The vessel and the gas oil on board were confiscated on 27 August 2009. Subsequently, the vessel was released by decision of the authorities of Guinea-Bissau, which was notified to the ship-owner on 6 October 2010. Proceedings were instituted before the Tribunal on 4 July 2011 through the notification of a special agreement concluded between the Parties. The hearing in the case was held from 2 to 6 September 2013. The judgment is here.

The International Court of Justice (ICJ), has today rendered its judgment in the case concerning Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). The Court finds that Japan’s whaling programme in the Antarctic (JARPA II) is not in accordance with three provisions of the Schedule to the International Convention for the Regulation of Whaling. The judgment is here.

The Republic of Costa Rica yesterday instituted proceedings against the Republic of Nicaragua with regard to a “[d]ispute concerning maritime delimitation in the Caribbean Sea and the Pacific Ocean”. In its Application, Costa Rica requests the Court  “to determine the complete course of a single maritime boundary between all the maritime areas appertaining, respectively, to Costa Rica and to Nicaragua in the Caribbean Sea and in the Pacific Ocean, on the basis of international law”. The Applicant “further requests the Court to determine the precise geographical co-ordinates of the single maritime boundaries in the Caribbean Sea and in the Pacific Ocean”. More information here.