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Establishing the International Tribunal for the Law of the Sea

Published online by Cambridge University Press:  27 February 2017

Shabtai Rosenne
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Type
Current Developments
Information
American Journal of International Law , Volume 89 , Issue 4 , October 1995 , pp. 806 - 814
Copyright
Copyright © American Society of International Law 1995

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References

1 United Nations Convention on the Law of the Sea, opened for signatun Dec. 10, 1982, UN Doc. A/CONF.62/ 122 (1982), reprinted in UNITED NATIONS, OFFICIAL TEXT OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA WITH ANNEXES AND INDEX, UN Sales No. E.83.V.5 (1983), 21 ILM 1261 (1982) [hereinafter Convention]. On Article 308, which has several other provisions regarding the entry into force of the Convention and actions to be taken on that event, see 5 UNIVERSITY OF VIRGINIA, CENTER FOR OCEANS LAW AND POLICY, THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982: A COMMENTARY 203 (Shabtai Rosenne & Louis B. Sohn eds., 1989) [hereinafter COMMENTARY].

2 MULTILATERAL TREATIES DEPOSITED WITH THE SECRETARY-GENERAL: STATUS AS AT 31 DECEMBER 1994, at 850, UN Doc. ST/LEG/SER.E/13, UN Sales No. E.95.V.5 (1995).

3 See UNITED NATIONS, LAW OF THE SEA BULLETIN, Special Issue No. 4, Nov. 1994. The resolution and Agreement are reprinted in 33 ILM 1309 (1994). The Agreement was signed by the United States on July 29, in contrast to its negative vote in the conference when the Convention itself was adopted in 1982. See 16 THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA, OFFICIAL RECORDS 154, 155, UN Sales No. E.84.V.2 (1984). For the submission of the Convention and the Agreement to the Senate, see S. TREATY DOC. No. 39, 103d Cong., 2d Sess. (1994); and Contemporary Practice of the United States Relating to International Law, 89 AJIL 112 (1995). The preamble to General Assembly Resolution 48/263 refers specifically to the promotion of “appropriate representation” in the institutions established by the Convention on the Law of the Sea.

4 By Article 308, paragraph 3, the Assembly of the Authority, consisting of all states parties, was to meet on the date of the entry into force of the Convention and was to elect the Council. The Assembly duly met at the seat of the Authority, in Kingston, Jamaica, for the first part of its first session between November 16 and 18, 1994. Its work was largely ceremonial. It held the second part of its first session also at Kingston between February 27 and March 17, 1995, when it elected Ambassador Hasjim Djalal (Indonesia) as President and adopted its rules of procedure. See UN Doc. ISBA/A/WP.3 (1995). The Assembly has not yet been able to elect the Council. Those rules of procedure were helpful in negotiating rules of procedure for the Meetings of States Parties.

5 On this Commission, see 2 COMMENTARY, supra note 1, at 837 (Art. 76) and 1000 (Ann. II) (Satya N. Nandan & Shabtai Rosenne eds., 1993). The members of this Commission are elected for a term of five years. In consequence, a Meeting of States Parties has to take place every three years for the election of members of the Tribunal and every five years for the election of the members of the Commission, together with occasional meetings when required to hold by-elections. The periodicity of Meetings of States Parties has not yet been determined, and will be directly affected by the budgetary arrangements. However, the rules of procedure were drafted in such a way as not to institutionalize the Meetings of States Parties.

6 On ITLOS, see 5 COMMENTARY, supra note 1, at 30 (Art. 287) and 331 (Ann. VI).

7 For the Final Act of the Conference, Resolution I, para. 10, see 21 ILM at 1245, 1253.

8 Report of the Preparatory Commission under Paragraph 10 of Resolution I containing recommendations for submission to the Meeting of States Parties to be convened in accordance with Annex VI, article 4, of the Convention [on the Law of the Sea] regarding Practical Arrangements for the Establishment of the International Tribunal for the Law of the Sea, UN Doc. LOS/PCN/152 (4 vols., 1995) [hereinafter Report]. This Report covers 1,345 pages. For the recommendations regarding the first election, see UN Doc. LOS/PCN/ L.115/Rev/1 and Corr.l (1994), 4 id. at 221, 225.

9 UN Docs. SPLOS/1 (1994); SPLOS/l/Rev/1 (1995).

10 Convention, Ann. VI, Art. 4, para. 4.

11 In the footnote to Rule 31 of the rules of procedure of the General Assembly, UN Doc. A/520/Rev.l5 (1985), the geographical groups established by the General Assembly are the African, Asian, East European, Latin American, and West European and Other States.

12 Convention, Ann. VI, Art. 18 (selected paras.).

13 The latter required the Secretary-General to designate a staff member as Acting Registrar of the Tribunal before May 16, 1995, to be charged with making practical preparations for the organization of the Tribunal, including the establishment of a library. Statement by the Chairman of the Preparatory Commission, UN Doc. LOS/PCN/L.115/Rev.1, supra note 8. For the decisions quoted in the text, see Report of the Meeting of States Parties, prepared by the Secretariat, UN Doc. SPLOS/3 (1995). Mr. Gritakumar Chitty, of the Division of Ocean Affairs and the Law of the Sea, Office of Legal Affairs, UN Secretariat, and secretary of Special Commission 4, was appointed Acting Registrar.

14 See Report of the Meeting of States Parties, May 15–19, 1995, UN Doc. SPLOS/4, reprinted in LAW OF THE SEA INFORMATION CIRCULAR NO. 1, June 1995, at 23.

15 1 Report, supra note 8, at 13. And see id. at 23 for a further discussion of this aspect.

16 For details, see UN Doc. LOS/PCN/SCN.4/WP.8/Add.1* (1993), 2 Report, supra note 8, at 278, and UN Doc. LOS/PCN/SCN.4/WP.16/Add.6 (1993), 1 id. at 151.

17 These arrangements broadly correspond to the establishment of the International Court of Justice. The first election was completed on February 8, 1946, when the term of office of those then elected began. An informal meeting of the judges there present took place and the acting secretary of the Court was in attendance and asked for nominations for a chairman. The senior judge present was invited to take the chair. The judges fixed April 3, 1946, as the date for the Court’s first meetings, at which it would have to discuss various organizational matters. The Court met for its first organizational session as agreed, on April 3, 1946, and elected its President, Vice-President and Registrar. It held its formal inaugural session on April 18, 1946. 1946–1947 ICJ Y.B. 27–29.

18 UN Doc. SPLOS/2/Rev.3 (1995). Earlier versions of this rule concluded with the phrase “and in accordance with these Rules.” Those rules contain provisions for restricted ballots in the event of a deadlock over the election of the officers of the Meeting of States Parties. Restricted ballots had been employed in the UN General Assembly for the election of members of the International Court of Justice up to 1960. The effect of dropping this phrase from the rules of procedure of the Meetings of States Parties is to throw this matter open for ad hoc decision, as occurred in the General Assembly. The rules of procedure adopted on May 19, 1995, leave open the rules relating to financial and budgetary matters, which are being developed.

19 The current remuneration of the Members of the International Court of Justice is U.S. $145,000.00 per annum, free of all taxation. Unlike membership on the Court, membership on the Tribunal is not a full-time occupation; the members are only required to disengage themselves from activities and to divest themselves of financial interests that are incompatible with their membership on the Tribunal, a matter to which, no doubt, the Tribunal will itself give attention in due course. The postponement of the Tribunal’s organizational session to October 1996 enables members elected in August to take the necessary steps to comply with Article 7, paragraph 1 of the Statute regarding incompatible activities and financial interests.

20 1 Report, supra note 8, at 13. For the initial deadlock, see UN Doc. LOS/PCN/SCN.4/L.3 (1985), 3 id. at 41.

21 The language practices of the International Court of Justice follow those of the Permanent Court of International Justice, and reflect the language practices of the League of Nations with only two official languages, English and French. The United Nations today has six official languages, Arabic, Chinese, English, French, Russian and Spanish.

22 I dealt with some aspects of these limitations, while the conference was still in progress, in my Settlement of Fisheries Disputes in the Exclusive Economic Zone, 73 AJIL 89 (1979).

23 That article must now be read together with Articles 83–88 of the final draft rules of the Tribunal prepared by the Secretariat and included in 1 Report, supra note 8, at 65 (originally UN Doc. LOS/PCN/SCN.4/ WP.16/Add.1 (1994)). This conception of provisional measures goes beyond Article 41 of the Statute of the International Court. On some of the differences between the Tribunal and the International Court, see my The International Tribunal for the Law of the Sea and the International Court of Justice: Some Points of Difference, in THE BALTIC SEA: NEW DEVELOPMENTS IN NATIONAL POLICIES AND INTERNATIONAL COOPERATION 200 (Renate Platzōder & Philomène Verlaan eds., 1994).

24 See Articles 89–93 of the rules of the Tribunal, supra note 23.

25 Note that by Article 31 of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted on August 4, 1995, by the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc. A/CONF.164/33 (1995), a similar residual compulsory jurisdiction is conferred on the Tribunal: it would be empowered to prescribe provisional measures to preserve the respective rights of the parties to a dispute or to prevent damage to the stocks in question, pending the settlement of the dispute, if the parties to the dispute are also parties to the 1982 Convention.