SPEAKER’S NOTE: His Excellency Gudmundur Eiriksson on “Recent Developments in the Law of the Sea”


Seminar:

“Recent Developments in International Law”

(A Tribute to the Late Professor R. P. Anand)

Organized and Sponsored by:

Faculty of Legal Studies, South Asian University

and

Centre for International Legal Studies, School of International Studies, Jawaharlal Nehru University

Speaker’s Note:

I was very honoured to be invited to attend this seminar in honour of our late esteemed colleague Professor R. P. Anand on his second death anniversary.  Professor Anand was one of the first people I met upon taking up my duties here. He welcomed me warmly to the fellowship of scholars at the Indian Society of International Law, where I know his spirit will continue to inspire us.  IMG_0683

Of course, I knew of Professor Anand long before coming to India. When I speak today on Recent Developments in the Law of the Sea I am picking up on two themes in those writings, first, the role of developing world scholars and negotiators in the development of international law in general, and I know all of us will be referring to that part of his legacy here, and second, his pioneering work on the Law of the Sea itself.[1] In fact, I maintain that it is precisely in the Law of the Sea negotiations beginning in the late 1960s and continued at the Third United Nations Conference on the Law of the Sea, that the domination of Eurocentric doctrine in our field, to which Professor Anand referred, began to recede. It is in that light that I can once again pay tribute to the giants in those negotiations from the Third World, including of course from South Asia, and thus it so appropriate that we should be meeting here today at the South Asian University. Even more specifically, I attribute the success of those negotiations, resulting in the United Nations Convention on the Law of the Sea, including the elaboration of the comprehensive dispute settlement mechanism set out therein, as responsible for the renewed confidence of Third World States in the International Court of Justice. From the time of those negotiations when the Court had virtually no cases, the change has been dramatic in the Court’s workload. President Tomka in a recent address pointed out that the Court in the last 22 years had rendered more judgments than during the first 44 years of its existence; 60 as compared to 52.[2]

I will be identifying today two significant recent developments in the law of the sea. One of these, the work of the International Tribunal on the Law of the Sea, is directly relevant to this trend, as I will point out later.

The second significant development is the emergence of interest in law of the sea issues following the opening up of the Arctic to navigation and increased resource exploitation. I will not do more than touch on this topic, to state that, as the world community reacts to those developments, it will be found that the work done at the Law of the Sea Conference provided the tools to address the accompanying challenges.

Turning to the recent work of the International Tribunal for the Law of the Sea, the most significant development is the judgment delivered last March in the Dispute concerning Delimitation between Bangladesh and Myanmar in the Bay of Bengal.[3] The case is noteworthy for reasons other than the legal merits set out in the Judgment itself.

First, all but one of the Tribunal’s previous cases had not been on merits in the classical sense, although I hasten to add that the Tribunal has nonetheless contributed to the law of the sea jurisprudence in significant ways, including in the field of environmental law. As we know, it is a relatively new court, and one can understand the reluctance of States, through their advisors, to depart from tried and true practice, and turning rather to the ICJ, of which they may have had extensive experience, or to arbitration, where they feel they have more control over proceedings, including in the choice of Judges. As a reflection of this, it can be noted that the maritime delimitation between Bangladesh and India is being dealt with in an arbitral tribunal. There are now expectations that more cases on merits will be presented to the Tribunal, added to another case on merits now being deliberated on in the Tribunal, The M/V “Louisa” Case between Saint Vincent and the Grenadines and Spain.[4]

Second, and more significantly, it is the Tribunal’s first delimitation case, following on the two dozen or so cases decided by or pending before the ICJ or arbitral tribunals. Because of this, it is particularly important to analyze the case, not only on the specifics, but also on its place in the greater context of the settlement of disputes regime in international law. As for this latter element, I think one can confidently say that one can put paid to certain fears expressed when the establishment of the Tribunal was being debated.

I shared a panel recently with Judge Xue of the ICJ and was pleased to hear that she, like me, does not consider the proliferation of international tribunals, to be a problem, but rather as possibly enhancing the role of international law in world affairs.[5] In a world which is so complex, the more opportunities exist to seek an international settlement of disputes, the better. There could be some overlap, there could be some fragmentation, but I think that is a price that one should be prepared to pay. I say this against a background of the arbitration still pending between India and Bangladesh. The reasons why the route of arbitration was chosen in that case could be the subject of another discussion. Suffice it to say here that one of the reasons to choose that route as against standing tribunals, that is, to ensure quicker proceedings, has not proven to be the case here. Admittedly, that relates primarily to the caseload situation in the Tribunal, but I maintain also that it reflects the expeditious, and may I say, “user-friendly”, procedures adopted by the Tribunal, including during my term on its bench. Adding further to the noteworthiness of the case, it is the first maritime delimitation case in Asia, hopefully to be followed by many more in the region, and the first to deal substantively with the continental shelf beyond 200 nautical miles.

Time does not allow me to go into the background or deal with the details of the case but I wish to make some general points following on the discourse I have just introduced. I am preparing an analysis on it to be published later this year.

I wish to stress how important it was that the negotiators of the Law of the Sea Convention chose to set up permanent organs to develop and to implement the rules which are set out in that basic instrument. It wasn’t enough just to put the rules on paper. It was crucial to institutionalize a way for them to develop, to deal with challenges which then were not fully anticipated.

Of relevance to this case is the role of the Commission on the Limits of the Continental Shelf established under Annex II to the Convention. In its judgment, the Tribunal dealt extensively with the relationship between dispute settlement and the work of that body. On this, I can refer to my own writing on the Commission’s work and the problems inherent in a situation where bodies with an entirely different mandate and constitution are dealing with the same area.[6] The Tribunal nimbly skirted prospects of a legal vacuum, but I would not like to speculate on whether in other geophysical circumstances the task will be as easy. For the moment, it can be said that a partial solution has been laid out. In saying this, I am not forgetting that it remains to be seen how the decision of the arbitrators in the case between Bangladesh and India will impact on that solution. The Tribunal’s judgment presents them with certain challenges, but this is one of those matters which a good friend of mine calls a “legal delicacy” and I am sure they will be up to the task.

As for the general relationship with the jurisprudence of the ICJ and other tribunals, one can fairly say, as evidenced by extensive citations to existing case law, that the Tribunal has not departed from recent trends in the relationship between equidistance, relevant circumstances, equity, proportionality, etc.[7]  As always, the application of the jurisprudence is very much related to the actual situation, and it is hard to challenge the specific choices made, calling for a balancing of a variety of considerations, not all of which are explained fully in the judgment.

In the work I described before I will set out my views, apparently not shared by the Tribunal, or other tribunals for that matter, on the role of natural prolongation and in general of geophysical and geomorphological factors in continental shelf delimitation, and in particular beyond 200 nautical miles. On this issue, I am somewhat more aligned with the experts in the Commission on the Limits of the Continental Shelf than with my legal colleagues. I will not go into this matter here but merely conclude by describing as an extremely positive recent development in the field of the law of the see that the Tribunal should have had the case before it and that it shall have opened up prospects of making and even greater contribution to the peaceful settlement of international disputes and thus supporting the cause to which Professor Anand devoted his career.


[1] See, for example, R.P. Anand, Origin and Development of the Law of the Sea: History of International Law Revisited, Martinus Nijhoff Publishers, 1983, R.P. Anand, “Non-European Sources of the Law of the Sea”, in P.Ehlers, E. Mann-Borgese and R. Wolfrum eds., Marine Issues, Kluwer Law International, 2002, pp. 19-35, R.P. Anand, “Freedom of the Seas: Past, Present and Future”, in Rafael G. Gutierrez Girandot et al. eds., New Directions in International Law: Essays in Honour of Wolfgang Abendroth: Festschrift zu seinem 75. Geburtstag,Campus Verlag, 1982, pp. 215-233.

[2] “Statement by H.E. Judge Peter Tomka, President of the International Court of Justice, at the High-Level Meeting on the Rule of Law”, New York, 24 September 2012. Full text available at: http://www.unrol.org/files/22006_Statement_ICJ.pdf

[3] Delimitation of the Maritime Boundary in the Bay of Bengal  (Bangladesh/Myanmar), Case No. 16, Judgment of 14 March 2012, available at: http://www.itlos.org/index.php?id=108

[4] M/V “Louisa” (Saint Vincent and the Grenadines v. Kingdom of Spain), Case No. 18,  available at: http://www.itlos.org/index.php?id=148&L=1%2527

[5] See “PANEL I: CHALLENGES IN INTERNATIONAL LAW AND THE UNITED NATIONS (Conference Proceedings: The Challenges We Face: A Conference Honoring Professor Richard N. Gardner’s Retirement from Teaching) “, 50 Colum. J. Transnat’l L. 537

[6] Gudmundur Eiriksson, “The Case of Disagreement Between a Coastal State and the Commission on the Limits of the Continental Shelf”, in Myron H. Nordquist, John Norton Moore and Tomas H. Heidar eds., Legal and Scientific Aspects of Continental Shelf Limits. (Proceedings of 27th Annual Conference of the Center for Oceans Law and Policy, University of Virginia School of Law, Reykjavik, 25-27 June 2003), Martinus Nijhoff Publishers, 2004, pp. 423-429.

[7] The Tribunal cites with approval, for example, Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, I.C.J. Reports 1993, p. 38, Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 61, Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 40.

…..

Speaker’s Introduction:

His Excellency Gudmundur Eiriksson is Ambassador of Iceland to India. His excellency served as a Law of the Sea Officer in the Office of the Secretary-General of the UN for the Law of the Sea from 1974 to 1976 and as a Special Consultant at the Third UN Conference on the Law of the Sea in 1977. He was a Judge at the ITLOS from 1996 to 2002 and also a member of the International Law Commission.

Speaker’s Note Courtesy:

His Excellency Gudmundur Eiriksson

Rapporteur:

MOHAMMAD RUBAIYAT RAHMAN

Student, LL.M (Semester II)

South Asian University.

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