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Lowe, Vaughan --- "Advocating Judicial Activism: The ITLOS Opinions of Judge Ivan Shearer" [2005] AUYrBkIntLaw 10; (2005) 24 Australian Year Book of International Law 145

Advocating Judicial Activism:
The ITLOS Opinions of Judge Ivan Shearer

Vaughan Lowe[∗]

It is a pleasure to offer this small tribute to Ivan Shearer. All those who work on the Law of the Sea are conscious of the great contribution that he has made to the subject over many years, notably in his completion of Professor O’Connell’s two-volume International Law of the Sea. His nomination, twice, as an ad hoc judge on the International Tribunal for the Law of the Sea (ITLOS) is a testimony not only to his standing as a specialist in the field, but also to the confidence that is commanded by his judgment and skills as a practical lawyer.

Despite the impression that might be gained from the elegance of constitutional doctrines of the separation of powers, there is no fixed role that tribunals must assume. Some take a modest view of their competence. It is commonly assumed that in the civil law tradition courts see their role as that of applying rules made by the legislature, and not as making or, as it is more delicately put, developing the law. Others, such as the Court of Justice of the European Communities(itself created initially by states in the civil law tradition) have shown an astonishing boldness in creating legal principles of the most fundamental and pervasive importance. Yet others focus less upon the law than upon the parties and the search for a modus vivendi between them that is both practical and principled. The search by a tribunal for its role is a thread that runs through Judge Shearer’s opinions in the Southern Bluefin Tuna (SBT) and Volga Cases.

The Southern Bluefin Tuna Case

The SBT Case arose from concerns on the part of Australia and New Zealand that the stocks of southern bluefin tuna were being overfished. They alleged in particular that Japan had, by unilaterally designing and undertaking an experimental fishing program, failed to comply with its obligations regarding the conservation of highly migratory species and regarding high seas fishing, under articles 64 and 116-119 of the 1982 UN Convention on the Law of the Sea (UNCLOS).[1] On 15 July 1999 Australia and New Zealand requested the establishment of an arbitral tribunal under UNCLOS Annex VII to determine the dispute; and on 30 July 1999 they requested the International Tribunal for the Law of the Sea to prescribe provisional measures under UNCLOS article 290.[2] Professor Shearer, Challis Professor of International Law at the University of Sydney, was appointed as Judge ad hoc by Australia and New Zealand acting jointly, because they were parties in the same interest.

The ITLOS gave its decision, with the exemplary speed that has become its hallmark, on 27 August 1999. It found that there appeared to be a basis on which the jurisdiction of the Annex VII tribunal might be founded, so that the requirement in UNCLOS article 290 for prima facie jurisdiction had been met, and proceeded to prescribe provisional measures including a limitation on the annual catch of SBT and a direction that the parties resume negotiations regarding the conservation of SBT.

It is something of an understatement to speak of ‘the decision’ of the ITLOS. The ITLOS decision itself was accompanied by one joint declaration, by Judges Wolfrum, Caminos, Marotta Rangel, Yankov, Anderson and Eiriksson, a further declaration by Judge Warioba, separate opinions by Judges Laing, Treves and Shearer, a joint separate opinion by Judges Yamomoto and Park, and dissenting opinions by Judges Vukas and Eiriksson. A minority of the judges contented themselves with signing the majority decision. Judge Shearer, who had voted in favour of the provisional measures prescribed by the Tribunal, described in his separate opinion the differences between his reasoning and that of the Tribunal as a whole.

First, he explained that, although the ITLOS had found that prima facie the Annex VII Tribunal would have jurisdiction,

[t]he demonstration of the jurisdiction of the Annex VII arbitral tribunal in the present case goes beyond the level of being merely prima facie: that jurisdiction is to be regarded as clearly established.[3]

He explained his reasoning in detail; but it is the broad principle underlying that reasoning that is the concern of this paper. He pointed out that, if the Annex VII tribunal did not have jurisdiction, the dispute would fall entirely outside the scope of the UNCLOS part XV section 2 ‘compulsory dispute settlement’ procedures and the parties would be confined to the procedures set out in article 16 of the 1993 Convention for the Conservation of Southern Bluefin Tuna (CCSBT).[4] Those procedures provided for adjudication or arbitration with the consent of all the parties to the dispute, but not for compulsory adjudication or arbitration. Consequently, as Judge Shearer put it, ‘the process of negotiation goes around and around, potentially without end’.[5] He considered that the CCSBT provision did not rule out recourse to the compulsory UNCLOS dispute settlement procedures, and accordingly, and taking account of the provisions of article 281(1) of UNCLOS,[6] there was no obstacle to the Annex VII tribunal exercising jurisdiction over the merits of the case. The Annex VII tribunal subsequently took a different view, holding that article 16 of the CCSBT did preclude recourse to UNCLOS procedures and that by virtue of UNCLOS article 281 the tribunal lacked jurisdiction over the case.[7]

Second, Judge Shearer remarked upon three aspects of the prescription of provisional measures in the SBT Case. He would have supported an order finding that Japan was prima facie in breach of its obligations under UNCLOS, the CCSBT and customary international law;[8] he regarded the provisional measures that were prescribed as being rightly based upon the precautionary principle;[9] and he examined the question whether the ITLOS was acting ultra vires in prescribing the measures that it did, and in particular whether it had the power to prescribe provisional measures ultra petita, that is, beyond the scope of the provisional measures that it had been requested to prescribe by the parties to the case.[10] On the latter point he considered that, unlike the International Court of Justice (ICJ), article 41 of whose statute gives it the power to indicate[11] whatever provisional measures the Court considers are required in the circumstances to preserve the respective rights of either party, the ITLOS may only prescribe measures that have been requested by the parties. He tempered this strict reading of the ITLOS statute[12] by asserting that the ITLOS may nonetheless prescribe measures that represent a partial grant or modification of the relief sought by the parties, and that ‘traditional’ provisional measures such as orders of non-aggravation or, in the circumstances of the SBT Case, an order to the parties to seek agreement with other concerned states on conservation measures, fell within the power of partial grant or modification.[13] Interesting as these issues concerning provisional measures are, however, they lie some way from the main focus of this paper, which is on Judge Shearer’s view of the role of the ITLOS; and they will not be pursued further. Instead, I shall turn to the second of his ITLOS opinions, his dissenting opinion in the Volga Case, before discussing the main themes evident in the two opinions

The Volga Case

The Volga Case concerned the arrest by the Royal Australian Navy of a Russian-flagged fishing vessel for fishing illegally in the Australian exclusive economic zone (EEZ).[14] The Volga was one of a number of ships fishing for Patagonian toothfish, a highly-valued fish that has featured in a number of ITLOS cases.[15] The Australian Fisheries Management Authority (AFMA) required the deposit of a security of AU$3,332,500 for release of the Volga, and the ITLOS ‘prompt release’ proceedings, brought by Russia under ITLOS article 292, concerned the level at which that security had been set. Russia[16] considered the level excessively high. Professor Shearer was again appointed as ad hoc judge by Australia.

The majority in the ITLOS[17] held that the Volga should be released on payment of a security of AU$1,920,000, which was the undisputed value of the vessel and its equipment. Judge Shearer parted company with the majority over the question of the propriety of adding to that sum a further sum of AU$1,000,000. The purpose of the additional million dollars was said by Australia (in the words of the ITLOS) to be ‘to guarantee the carriage of a fully operational monitoring system and observance of Commission for the Conservation of Antarctic Marine Living Resources conservation measures until the conclusion of legal proceedings’. It was, in short, a ‘good behaviour bond’.

The ITLOS judgment asserted[18] that ‘a “good behaviour bond” to prevent future violations of the laws of a coastal state cannot be considered as a bond or security’ within the meaning of the relevant UNCLOS provisions.[19] Judge Shearer, on the other hand, took the view that the ITLOS was entitled to consider the reasonableness of the bond in the context of the facts and circumstances of the case, at least in so far as those facts were not contested by the applicant flag-state[20] of the Volga or were public knowledge. Those facts included the catastrophic decline in stocks of many fish species, the high profitability of illegal fishing for Patagonian toothfish, and the difficulty of enforcing fisheries laws in the bleak, cold, and very extensive Australian EEZ around Heard Island, where the fishing in question took place. In those circumstances Judge Shearer thought that the ITLOS should take full account of the measures ‘found necessary by many coastal States … to deter by way of judicial and administrative orders the plundering of the living resources of the sea’.[21] He implied that this might be done by adopting a wide interpretation of the Convention, but noted that even on a narrow construction it might be possible to accept the right of national courts to impose non-financial conditions.[22] More generally, he noted that the prompt release provisions in UNCLOS articles 73 and 292 were designed to achieve a balance between the interests of flag states and coastal states, and he argued that ‘it should be recognised that circumstances have now changed and a new balance should be struck’.[23]

The Significance of Judge Shearer’s Opinions

These separate opinions of Judge Shearer raise important questions concerning the relationship between the ITLOS and three other institutions that are also involved in the processes of implementing the provisions of the UNCLOS: UNCLOS Annex VII tribunals, national courts, and the UNCLOS states parties.

The ITLOS and UNCLOS Annex VII Tribunals

Judge Shearer’s separate opinion in the SBT Case suggested that the ITLOS should have indicated that the Annex VII tribunal had jurisdiction in the case. That suggestion is one that many lawyers, and particularly those with experience of practice before international tribunals, will instinctively reject.

Some may recall the well-established principle that each tribunal has the right to determine its own competence, and object that for the ITLOS to rule, or even give a firm indication, on the question would be to usurp the right of the Annex VII tribunal.

There is much force in that objection; but it is not conclusive. The ‘Kompetenz-Kompetenz’ principle is, certainly, well-established; but the principle stipulates only that each tribunal has the competence to determine its own jurisdiction. It does not stipulate that no other tribunal may take a position on that question. It is quite normal for higher courts, hearing cases on appeal, to review jurisdictional determinations made by lower courts or tribunals and, where appropriate, to overturn them. There is no reason why one tribunal should not express a view on the jurisdiction of another. It may be said that this is true within the disciplined hierarchy of national courts, but that the ITLOS is not in a position superior to Annex VII tribunals. It is not, in these cases, hearing appeals or reviewing decisions of lower courts; and nothing in UNCLOS gives the ITLOS such a role in relation to Annex VII tribunals. That is, of course, correct; but it does not dispose of the issue.

Suppose that in a series of cases Annex VII tribunals, each of them different from and independent of each other, had rendered a series of irreconcilable decisions on jurisdictional questions. Each purports to interpret and apply the provisions of the UNCLOS. Each is final and without appeal, and binding upon the parties to the particular dispute.[24] Logically, some of these hypothetical decisions must be wrong. What should be done?

Courts have several distinct functions. Obviously, they decide disputes between the parties; and in doing so they clarify the substantive law and they often develop the substantive law. But they also have a different and broader role. Ideally, they elicit confidence in the judicial process and more generally in the Rule of Law; and for that purpose they clarify and develop procedural principles and practices. Confidence depends upon many factors, but prominent among them are the closely related characteristics of predictability and consistency in decisions. If a system of courts or tribunals delivers unpredictable and inconsistent decisions, it will tend to deter litigation (which may be a good thing) and to undermine confidence in the dispute settlement system (which is certainly a bad thing). If decisions on procedural matters appear to be unpredictable, that will erode confidence in the substantive principles of the regime, too. In any area of the law that result would be undesirable. It is particularly undesirable in the context of the Law of the Sea because of the way in which UNCLOS was drafted. Agreement was possible on the substantive provisions of UNCLOS because (unlike its predecessors)[25] it had integrated into the Convention a dispute settlement system that guaranteed that disputes over the propriety of conduct whose legality was not precisely pinned down in the Convention could be submitted to an impartial expert tribunal for determination according to international law, and in particular the rules and principles set out in the Convention. In other words, the states parties were prepared to sign off the Convention text without dotting every i and crossing every t because the details in critical areas would be worked out either by state practice or, if all else failed, by recourse to adjudication. If that system were to be undermined by unpredictability and inconsistency in decisions made by the various tribunals constituted under the provisions of UNCLOS part XV (Settlement of Disputes), the UNCLOS regime would be significantly weakened. But how can consistency be secured?

In the analogous situation of ad hoc commercial arbitration it has been suggested that an international court be established that could review decisions of ad hoc tribunals.[26] But the implementation of such a solution would depend upon the vesting of a review jurisdiction in a tribunal, and the acceptance by parties to disputes of an obligation to submit to the jurisdiction of such a tribunal. It is, in theory at least, arguable that the ITLOS might develop its jurisprudence so as to achieve an equivalent result. If an applicant state A took the position in its pleadings before an Annex VII tribunal that the tribunal had jurisdiction, and respondent state B took a different view, that difference of opinion would be a ‘dispute between them concerning the interpretation or application’ of UNCLOS. There would, in theory, be no reason why that question should not be referred to another tribunal, such as the ITLOS. If that were done, and the cases were taken to the ITLOS, the ITLOS might develop a kind of review jurisdiction (or an anticipatory advisory jurisdiction, if the cases were decided before the award of the Annex VII tribunal) on the back of the cases brought before it, rather in the way that courts developed their jurisdiction in the Middle Ages.[27] The ITLOS already has under UNCLOS a limited jurisdiction to give ‘preliminary rulings’ (to borrow the terminology of the European Court of Justice);[28] and a development of this kind might be seen as an extension of that role. But it is most unlikely that this will happen. International litigation always consumes a great deal of time and money from limited government budgets, and it is hard to imagine that parties will have any enthusiasm for making it yet more costly and protracted by inserting a further stage in proceedings that are already before a competent tribunal. In the UNCLOS context the parties would, moreover, have to agree to submit the question to the ITLOS, because the ITLOS has no compulsory jurisdiction in this field; and such agreement is most unlikely to be forthcoming.

An alternative would be for the Annex VII tribunal itself to direct the parties to take the matter to the ITLOS, rather as the Annex VII tribunal in the MOX Case effectively sent the parties off to the European Court of Justice to resolve a jurisdictional question.[29] But again, this is most unlikely to happen. Why should a tribunal, properly seised by the parties, decline to make a determination as to its jurisdiction when it is plainly competent, under the Kompetenz-Kompetenz principle, to make such a determination itself? Such an action would be tantamount to the return of a non liquet. Even if the Annex VII tribunal is faced with inconsistent decisions (as is now the case with ICSID tribunals, for example),[30] there is no reason why it should not resolve the conflict itself, and every reason to suppose that it would do so.

In these circumstances, it is evident that no single tribunal has the power to prevent the undermining of the UNCLOS dispute settlement system that would result from inconsistent decisions on jurisdictional questions. There are two ways in which the problem might be approached. The states parties might amend the Convention, so as to clarify the relevant issues; or an authoritative body might consider the question and deliver an analysis that might command the respect and acceptance of subsequent tribunals. I shall return at the end of this paper to the question of the relationship between the ITLOS and the meetings of states parties; but it can be said now that the procedure for the amendment of the Convention[31] is ill-suited to what is essentially maintenance work on the Convention, rather than the correction of very minor defects or, at the other extreme, the complete restructuring of parts of the Convention. Adjusting jurisdictional principles is an on-going task not easily undertaken by episodic conferences seeking to agree to amendments to the Convention. The regular meetings of parties to UNCLOS[32] might provide a more convenient forum; but it is hard to see how that body could easily engage in the detailed technical work of drawing up what would approximate to ‘interpretative declarations’.[33]

Given these difficulties, it is understandable that the ITLOS, and its individual judges, should seek to exercise some benevolent oversight of the UNCLOS dispute settlement system. If they do not, who else will? While it is clear that the ITLOS cannot review determinations made by Annex VII tribunals, and obvious that what would in any event amount to no more than dicta could not bind other tribunals, the unique position of the ITLOS within the Law of the Sea regime does give it an authority that would lend great weight to any pronouncements that it might make.

There is, however, a second, more practical, objection to Judge Shearer’s suggestion that the ITLOS should, in SBT, have given a clear indication to the Annex VII tribunal on the question of jurisdiction. It is that, even if it is conceded that the ITLOS may appropriately make observations on the way in which jurisdictional principles are being applied within the UNCLOS part XV procedure, proceedings on provisional measures are not a suitable occasion on which to do so.

One point that might be raised is that not all cases will have a provisional measures phase, so that it would be a matter of accident whether or not the ITLOS had an opportunity to pronounce upon jurisdictional questions. That objection misses the point. There can be no question, under the current UNCLOS rules, of the ITLOS engaging in any systematic scrutiny of jurisdictional principles, case-by-case. The most that it could do would be to take whatever appropriate opportunities afforded themselves to make such pronouncements, and to do so in abstract terms.

The real difficulty flows rather from the nature of provisional measures proceedings. Such proceedings must, in order to be effective, concentrate on preserving the situation and the rights of the parties in the face of imminent harm. Pleadings do not analyse jurisdictional issues in depth, and should not be required to do so. They should concentrate upon the substantive issues. Similarly, the ITLOS should retain the liberty to prescribe the provisional measures that appear to it to be necessary as a holding operation, knowing that once it has acted to avert the immediate danger, another tribunal can examine both jurisdictional and substantive questions thoroughly at whatever length the parties and the tribunal consider to be necessary.

One might reasonably ask whether, if a jurisdictional issue cannot be identified and articulated by the Respondent’s lawyers within the short time available for the filing of a response in a provisional measures application, any issue subsequently unearthed is likely to be compelling. Jurisdictional issues, it may be said, do not have the complexity and difficulty that may arise from scientific evidence and statistical and technical data relevant to the merits of the case: they can be presented clearly even within short time limits. That may be so; but the identification of an issue and its resolution after thorough analysis are two different matters. It is entirely possible that even if a jurisdictional issue can be stated clearly and concisely, neither the parties nor the ITLOS will have sufficient time to analyse the issue thoroughly. Indeed, the provisions of article 290 of UNCLOS, which require only a prima facie finding of jurisdiction, encourage such a situation. Certainly, the kind of detailed analysis of travaux préparatoires and state practice that characterised inquiries such as the Barcelona Traction Case[34] and Case A/18 in the Iran-US Claims Tribunal[35] could scarcely be mounted within the time constraints of provisional measures proceedings. The ITLOS, and UNCLOS states parties, might organise seminars on such topics, either internally or for a wider audience, and give the issues an airing in a manner that may inform opinion and influence pleadings and decisions in later cases. But provisional measures hearings are not the place for them.

Given those constraints, and the risks of advancing propositions that have not been thoroughly tested in argument, the wiser course is plainly for the ITLOS to exercise great restraint in making pronouncements on points that are not necessary for its decisions. Frustrating as it might be for ITLOS to be confined to its Convention role as only one tribunal among many that may adjudicate under UNCLOS part XV, those constraints cannot be ignored. While Judge Shearer’s exhortation was a helpful reminder that the ITLOS has the ability to influence the operation of other tribunals within the UNCLOS system, that is a power that must be used carefully and sparingly.

The ITLOS and National Courts

The second aspect of Judge Shearer’s opinions to be considered here is his approach to the relationship between the ITLOS and national courts. That was an issue that arose in the Volga Case, in his suggestion that the ITLOS should help national courts to grapple with the problem of illegal commercial fishing, by accepting the propriety of ‘good-behaviour’ bonds and other non-financial conditions for the prompt release of arrested fishing vessels, when the particular circumstances – including the need to deter law-breaking – justified it.

At its simplest, that suggestion does not require a departure from the wording of the Convention provisions, which require the prompt release of vessels ‘upon the posting of [a] reasonable bond or other security’.[36] For shipowners, the question is presumably one of the amount of the bond required, rather than the basis upon which that amount is calculated. Since the UNCLOS does not limit the amount of fines that states may impose in respect of illegal fishing, and since there is no doubt that states may impose bonds calculated by reference to the potential fines faced by the accused, if convicted, states have a solution in their own hands. If existing fines are too low to deter law-breaking, the fines should be increased. Furthermore, while the mandatory use of position-fixing equipment in the EEZ[37] would be a very helpful development, not only in combating illegal fishing, but also in monitoring other activities at sea, the use of bonds seems a rather obtuse approach to the problem. States could, presumably, achieve those results by appropriately drafted regulations applicable to fishing vessels within its EEZ.[38] The position taken by the ITLOS in ruling out bonds and securities assessed on the basis of future conduct does not, therefore, create any real difficulties for coastal states in regulating EEZ activities.

Nonetheless, Judge Shearer is, with respect, surely correct in arguing that the ITLOS in its ‘prompt release’ role must see itself as working in tandem with national courts, and that it must assess reasonableness not according to a single abstract standard applicable in every circumstance but on a case-by-case basis. This is not a context where uniformity is an independent merit. Unlike situations in, say, international trade law where harmonisation and uniform standards are necessary in order to remove artificial obstacles to the operation of market forces, the purpose of the article 292 prompt release procedures is simply to ensure that coastal states do not exercise their coastal jurisdiction, greatly expanded by the establishment of the EEZ, so as to interfere unreasonably with shipping: and it should be recalled that the article 292 procedures relate not only to detentions based on alleged breaches of fishing regulations but also to detentions based on alleged breaches of pollution regulations.[39] Uniformity is the essence of the matter in, say, European Union (EU) law relating to health and safety standards; but differences between the level of security set by national courts for alleged violators of fishing laws can have little effect, direct or indirect, upon the costs and facility of lawful fishing.

From that perspective it is evident that, just as the trial court must take all material factors into account in setting a ‘reasonable’ level of the security, so too must the ITLOS in reviewing the court’s decision. The ITLOS decision was indeed taken ‘keeping in view the overall circumstances of the case’;[40] but the ITLOS could usefully have expanded somewhat upon the approach that courts should adopt to the need to strengthen enforcement regimes in the face of particularly serious or chronic threats to valuable and vulnerable fish stocks. Given the hierarchical relationship between the ITLOS and national courts established by article 292, which is quite different from that between the ITLOS and Annex VII tribunals, such advice would have been entirely appropriate.

The suggestion, made at the end of Judge Shearer’s opinion in the Volga Case, that there should be a new balance between flag states and coastal states is a rather different matter. He may have had in mind the need for a revision of the UNCLOS, or the adoption of a new international agreement on detention whose provisions would supersede those in UNCLOS. In so far as it might be thought that the ITLOS should strike that new balance, however, there must be a question as to the propriety of such action. Some courts have taken steps of breathtaking boldness in forging entire constitutional principles and structures out of bland and equivocal texts. The EU Court of Justice, and the United States of America Supreme Court, are outstanding examples. Others pull back from radical innovation, leaving that task to the legislature. What approach should the ITLOS take? That is a question that leads directly to the third topic to be considered in this paper: the relationship between the ITLOS and the UNCLOS states parties.

The ITLOS and UNCLOS States Parties

The amendment of UNCLOS is, like the amendment of any international treaty, a matter for the states parties to it. It is they who must modify the legal obligations to which they have subscribed. But courts and tribunals can do a good deal in the way of ‘developing’ treaty provisions by the imaginative interpretation of them. The work of the EU Court has already been mentioned; and the ICJ in cases such as Certain Expenses of the United Nations[41]

furnishes further examples. But how should we determine whether a court or tribunal should be proactive in this way, engineering far-reaching developments in the significance and effect of the underlying legal instruments, or should content itself with pointing out difficulties and leaving it to the law-makers to make the necessary changes in the law?

Judge Shearer pointed to one development in particular as an indicator of the need for a new balance:

[C]ircumstances have now changed. Few fishing vessels are state-owned. The problems today arise from privately owned fishing vessels, often operating in fleets, pursuing rich rewards in illegal fishing and in places where detection is often difficult. Fishing companies are highly capitalised and efficient, and some of them are unscrupulous. The flag State is bound to exercise effective control of its vessels, but this is often made difficult by frequent changes of name and flag by those vessels.[42]

It would be interesting to see just how far those features have indeed changed since the early 1980s, when the UNCLOS balance was struck; but it is undeniable that there has been some change, notably the decline of the eastern European state-owned fishing fleets.

That change is reminiscent of another, which provides a useful parallel. It was the converse shift towards state participation in trading that led to the reform of the law on state immunity, with the espousal by many jurisdictions of the doctrine of restrictive immunity rather than the absolute immunity that was the traditional rule. It was in that context that Lord Denning, in the Trendtex Case,[43] asked whether English courts, faced with the same issue, should not respond by abandoning the precedents applying the doctrine of absolute immunity and adopt the ‘new balance’, as it were, of restrictive immunity. The Court of Appeal did so; and its decision is widely regarded as an exemplary exercise of progressive judicial discretion.

The ITLOS is in a very different position. The Court of Appeal was applying common law precedents. It was not bound by legislation on the point. The ITLOS, in contrast, is charged with the application of rules set out in a binding treaty: it does not have the latitude available to the Court of Appeal. Moreover, in Trendtex the Court of Appeal had available to it a range of decisions from foreign tribunals that clearly demonstrated (at least to the eyes of the Court) the direction in which international law had shifted. There is no such body of case-law from which the ITLOS could infer with confidence the way that international thinking has moved: if, indeed, it has moved at all on the question of the balance between flag state and coastal state rights.[44] And the Court of Appeal also had an assured place towards the top of the hierarchy of courts in England.

Those differences highlight some of the principles that must be taken into account in deciding how ‘activist’ the ITLOS should be. Certainly, tribunals should take decisions within the scope of the legal instruments that they are bound to apply. But in the prompt release context, which pivots on the concept of a ‘reasonable’ bond or security, that leaves a good deal of room for judicial manoeuvre. The greater problem facing the ITLOS is that of identifying the trends in international opinion.

It may well be that we are at the beginning of a decisive shift in the balance between flag and coastal state rights. One sign of this is that the states that were in the past among the staunchest defenders of the freedom of the high seas and of navigation generally are now among those most actively pursuing the Proliferation Security Initiative[45] and international agreements on the interdiction of drug traffickers at sea,[46] both of them developments eroding the traditional exclusivity of flag state jurisdiction on the high seas. But it is significant that both developments are proceeding by the conclusion of agreements between the states concerned, and not by unilateral action. It is doubtful how far states have revised their views of where their national interest lies in the debate over the extent of coastal state rights over shipping, or how those views would be affected by shipping, environmental and other interest groups. How is the ITLOS to gauge international opinion? The rapid, adversarial, exchanges in the swift prompt release proceedings are unlikely to generate a considered and balanced account of the state of international thinking.

Moreover, if the ITLOS were to forge some new development in the application of UNCLOS that was thought by many states to be at odds with the direction in which international law should move, that could affect the confidence that those states (and perhaps others, suspicious of innovative tribunals) have in the ITLOS. It would be a risky strategy to adopt.

Again, the solution may be to acknowledge that the judges of ITLOS are as attentive to developments in international thinking on these issues as anyone, and for the meetings of states parties to seek to establish how those states would wish to see the UNCLOS regime develop. The best route to the sound development of UNCLOS is through a co-operation between the ITLOS and the meetings of states parties, and not by either trying to usurp the proper role of the other.

Concluding Remarks

Judge Shearer’s opinions in the SBT and Volga Cases are good examples of the value of separate opinions. They highlight issues that require attention, and they propose solutions to them that can find their value in the market place of ideas. It is a role that befits one of the most distinguished international scholars in the field of the Law of the Sea.

[∗] Chichele Professor of Public International Law and Fellow of All Souls College, University of Oxford.

[1] United Nations Convention on the Law of the Sea (10 December 1982), 1833 UNTS 397.

[2] (NZ v Japan; Australia v Japan), Request for provisional measures (1999) 38 ILM 1624.

[3] 38 ILM 1647.

[4] Convention for the Conservation of Southern Bluefin Tuna (10 May 1993), ATS 16.

[5] Above n 3.

[6] ‘If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.’

[7] (2000) 119 ILR 508.

[8] 38 ILM 1649-50.

[9] Ibid 1650.

[10] Ibid, 1650-52.

[11] He also considered that ‘the power of the ICJ … is merely to indicate, not prescribe, provisional measures’. The ICJ has now taken the view that provisional measures indicated under art 41 of its Statute are legally binding: see [98]–[109] of the judgment of 27 June 2001 in the LaGrand Case (Germany v USA) [2001] ICJ Rep 466, 501-506.

[12] Which is UNCLOS Annex VI.

[13] The view that the ITLOS cannot exercise its powers under UNCLOS art 290 ultra petita in order to prescribe measures that it considers appropriate to prevent serious harm to the marine environment is at first sight difficult to sustain and will doubtless be revisited by the ITLOS.

[14] The Volga Case (Russian Federation v Australia) Judgment of 23 December 2002, Application for Prompt Release, 42 ILM 159 (2003) (Case No 11).

[15] See the Camouco (Panama v France) [2000] ITLOS 1; The Monte Confurco Case (Seychelles v France) [2000] ITLOS 2 (Case No 6) and Grand Prince Cases (Belize v France) [2001] ITLOS 1 (Case No 8).

[16] As Judge Shearer noted, the flag state is the nominal party but the litigation appears to be conducted primarily by the shipowners.

[17] Judges Anderson and Shearer dissenting.

[18] 42 ILM 175, [80].

[19] The relevant provisions are UNCLOS arts 73(2) and 292.

[20] 42 ILM 194, [8]. A potential weakness in his scheme. If his view was adopted, flag states and shipowners would be well-advised to reserve their position on all questions of fact until the trial in the national court.

[21] 42 ILM 195, [17].

[22] Ibid 195-196, [18].

[23] Ibid 196, [19].

[24] UNCLOS Annex VII, art 11.

[25] The 1958 Geneva Conventions on the Law of the Sea had no compulsory dispute settlement procedures. There was an Optional Protocol on dispute settlement, but that attracted fewer than 30 ratifications.

[26] See S Schwebel, ‘The Creation and Operation of an International Court of Arbitral Awards’ in Martin Hunter, Arthur Marriott, V V Veeder (eds), The Internationalisation of International Arbitration: the LCIA Centenary Conference (1995).

[27] Perhaps a better analogy is the process of referring questions of law from an arbitrator.

[28] See UNCLOS art 188(2) and see also the power to give advisory opinions under art 191.

[29] See Order No 3, 24 June 2003: <> .

[30] See the conflicts between the two SGS decisions, eg Michael D Goldhaber, ‘Wanted: A World Investment Court’, American Lawyer/Focus Europe/Summer 2004 <> .

[31] UNCLOS arts 312–313.

[32] See UNCLOS art 319, and <> .

[33] Cf the Notes of Interpretation issued on 31 July 2001 by the Parties to the NAFTA: see J C Thomas, ‘Reflections on Article 1105 of NAFTA: History, State Practice and the Influence of Commentators’ (2002) 17 ICSID Review-Foreign Investment Law Journal 21.

[34] Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Preliminary Objections, [1964] ICJ Rep 6; Judgment, [1970] ICJ Rep 3.

[35] Iran-US, Case No A/18 (1984) 5 Iran-UN Claims Tribunal Rep 251.

[36] UNCLOS arts 73(2), 292. Curiously, the wording of art 73(2) is not precisely the same as that of art 292 in either the English or French texts of the Convention, which are the two texts reproduced in the ITLOS volume of Basic Texts 1998 (because English and French are the official languages of the ITLOS: Rules of the Tribunal, art 43).

[37] And generally. The time is now surely ripe for such an obligation, perhaps imposed indirectly via insurance and port-entry conditions.

[38] A possibility left open by the ITLOS: see 42 ILM 174, [75]-[76].

[39] UNCLOS arts 220, 226. See M Nordquist, S Rosenne and L B Sohn, United Nations Convention on the Law of the Sea 1982. A Commentary (vol V, 1989), [292.1]-[292.10].

[40] 42 ILM 176, [88].

[41] Certain Expenses of the United Nations Advisory Opinion, [1962] ICJ Rep 151 (on the procedures of the Security Council and the Council’s relationship to the General Assembly).

[42] 42 ILM 196, [19].

[43] Trendtex Trading Corporation ltd. v Central Bank of Nigeria [1977] QB 529.

[44] Though developments such as the Proliferation Security Initiative, and the development of Regional Fisheries Management Organizations, certainly suggest that there is a move under way.

[45] See <> .

[46] See the Aruba agreement, in CICAD/doc1076/00 rev 1. CICAD is the Inter-American Drug Abuse Control Commission, an agency of the Organization of American States: see <> .

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