The role of Special Agreements in instituting proceedings before the International Tribunal for the Law of the Sea

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         Despite the alleged unnecessity of the International Tribunal for the Law of the Sea (ITLOS), given the existence of the International Court of Justice (ICJ) – as proposed by some scholars and delegations in the Third Conference on the Law of the Sea –, one may point out several differences between the two permanent tribunals. And a vital diversity seems to concern the practical and political aspects of the institution of proceedings in these adjudicatory bodies.

ooooooIt is pacific that proceedings before an international tribunal may be instituted under three forms: by means of (i) a pre-existent compromissory clause;[1] (ii) a Special Agreement (compromis) providing for the settlement of an already existent dispute; (iii) acquiescence, once the dispute is unilaterally submitted – or, as the ICJ has coined it, forum prorrogatum.

ooooooThese proceedings are common to both ICJ and ITLOS. The drafting of the relevant provision in ITLOS Statute (article 24) drew heavily from article 40 of ICJ’s. Moreover, the latter’s experience reveals that the majority of its cases had its jurisdiction seised through unilateral application, instead of notification of a Special Agreement. Only 16 cases were brought by notification[2] in a universe of more than 130 contentious cases since 1946.[3]

ooooooThere has been prolific scholarly writing on the topic. It has been highlighted that land and maritime boundaries and factually and legally complex cases – but not too politically sensitive – are often brought to international tribunals through a Special Agreement. For instance, all three contentious cases thus brought to ICJ in this century concern land disputes.[4] It has also been proposed that: (i) compliance with the Tribunal’s order is more frequent in cases instituted by notification of a Special Agreement; (ii) it is more efficient, timely and materially, as the jurisdiction is not objected; (iii) the dispute submitted to the tribunal’s jurisdiction is particularly better defined, contrary to a general compromissory clause; and (iv) parties have more freedom in terms of electing the rules of procedure and the applicable law.

ooooooThis being said, Tomuschat’s lessons are conclusive, as he underlines that:

the compromis, in spite of its obvious advantages, has rightly been recognized as only one of the possible titles by virtue of which the Court can exercise its jurisdiction. The role of the Court as an element of the world system of governance ushered in by the Charter of the United Nations would be considerably diminished if it did not have other sources providing it with jurisdiction.[5]

ooooooTherefore, in the practice of ICJ, it holds that, notwithstanding the obvious advantages of a compromis, it is only one of the possible titles by virtue of which the Court can exercise its jurisdiction. Furthermore, not every kind of dispute is perfectly fit for it – and also, for this reason, States would not agree on a judicial dispute settlement. Hence, one may understand its low representativity in the broader universe of ICJ contentious cases.

ooooooTurning to the International Tribunal for the Law of the Sea, however, there seems to be a wholly different phenomenon. It currently has 29 cases, two of which are pending – and were instituted by means of notification of a Special Agreement. Among all its 27 contentious cases,[6] nine were antecedent provisional measures[7] and nine were Prompt Release proceedings. They are specific instruments, usually lasting no more than 40 days, compulsorily provided for in articles 290 (5) and 292, United Nations Convention on the Law of the Sea (UNCLOS).

ooooooFrom the nine remaining cases, seven were submitted by notification of a Special Agreement.[8] The other two were instituted by unilateral application on the grounds of article 287.[9] This is indeed a very different pattern from the one observed in ICJ. “Why?” and “What does it mean?” are questions that shall be faced in order to ascertain the role of Special Agreements in instituting proceedings before ITLOS.

ooooooThe Law of the Sea Convention, especially its Part XV, provides for a correct compulsory dispute settlement procedure. It is neither an optional protocol nor a regime that can be avoided through reservation – as UNCLOS does not admit it, according to
article 309. It is only comparable to the WTO dispute settlement system, which, for some, is not even considered a judicial system.

ooooooNonetheless, only 53 States have designated ITLOS under article 287,[10] in comparison to ICJ’s 74 optional clause declarations.[11]–[12]Also, more than 300 Treaties contain a compromissory clause recognizing ICJ’s jurisdiction over disputes arising out of them,[13] whereas ITLOS is designated in 20 – and in most of them only indirectly by reference to Part XV or article 287.[14]–[15]

ooooooThis could be one reasonable explanation for the small number of unilateral applications to ITLOS – not considering antecedent provisional measures and Prompt Release proceedings –, comparing to ICJ’s. However, a different thesis seems to be the most compelling in explaining why there are many more disputes submitted through the notification of a Special Agreement. President Paik, at the UN General Assembly, on 10th December 2019, 25 years after the coming into force of UNCLOS stated:

I believe that the willingness of Mauritius and Maldives to transfer their dispute from Annex VII arbitration to the Tribunal is a testament to the Tribunal’s reputation for effective and efficient dispute settlement. In particular, it is clear that the Tribunal’s flexibility – in terms of the size and composition of special chambers – to hear a particular dispute is of interest to States. The last maritime delimitation case decided by the Tribunal, that of Ghana/Côte d’Ivoire, was also transferred from Annex VII arbitration to a special chamber of the Tribunal by special agreement of the Parties. While Annex VII arbitration may be the default dispute-settlement mechanism under the Convention, the Tribunal has proven itself to be an increasingly attractive option for States seeking to settle disputes arising under the Convention.[16]

ooooooIn fact, not only the two aforementioned ITLOS cases were transferred from Annex VII Arbitration: among seven “Special Agreement cases”, six came from an Annex VII Arbitrations, being Chile/European Union the notable exception. This may provoke many reflexions. It is fair to say that the great majority of these Special Agreement cases are, to a reasonable extent, compulsory – after all, they would go to arbitration anyway under Article 287 – but with a forum shopping factor.[17] Thus, President Paik seems to have a point when he affirms that these phenomena are “a testament to the Tribunal’s reputation for effective and efficient dispute settlement. In particular, it is clear that the Tribunal’s flexibility – in terms of the size and composition of special chambers – to hear a particular dispute is of interest to States”. On the other hand, only one case was not transferred from Arbitration (Chile/European Union), and it was discontinued, meaning that ITLOS does not have any other “voluntary” special agreement case.

ooooooArticle 287 has been referred to as a forum shopping provision to the extent State parties may choose, by means of a written declaration, one or more – among the four available – means for the settlement of disputes. Nevertheless, it seems that the forum shopping stage may be postponed to when a dispute has already arisen, through a special agreement. This, at least in theory, corroborates with the growing tendency States have had since the 1980s not to bind themselves to compulsory dispute settlement.[18]

ooooooUnder this context, ITLOS’s flexibility and specialization, alongside with its efficient adjudication, may well be a decisive factor to take into account. Attention must be paid, however, to the fact that under Article 287 at least 12 disputes were submitted to Arbitration.[19]–[20]

ooooooNevertheless, at the end of the story, the take-home message concerns the different roles special agreements play in respect of the International Tribunal for the Law of the Sea. They do not simply denote a common voluntary decision by the disputing parties, but rather an instrument of choice of means for the – ultimately compulsory – settlement of disputes. Finally, it remains to be seen whether the Tribunal’s specialization, flexibility, and efficiency will play a greater role in this post-hoc forum shopping.

Post Scriptum: we have come across, in recent years (and months), Annex VII Arbitrations[21] struggling to deal with implicated sovereignty issues, which do not fall under the material scope of the compulsory settlement of disputes in Part XV (article 288). A Special Agreement could also circumvent issues related to limitations in terms of jurisdiction ratione materiae. I believe it is quite unlikely to happen, as these disputes have dealt with world powers as respondents, which usually do not want to see their power equated to the other disputing party’s in judicial proceedings.

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[1] Article 36 (2), ICJ Statute, provides for an “optional clause”, which in most respects resembles a compromissory clause.
[2] Although there are two notifications of a special agreement in the North Sea Continental Shelf Case (1969), it is regarded as a single case – as it is indeed. Furthermore, this number takes into account only the proceedings instituted through the notification of a special agreement. It does not encompass unilateral applications grounded on an alleged compromis. This perspective is adopted by Peter Tomka, former President of the ICJ. TOMKA, Peter. The Special Agreement. In N. Ando et al. (eds.). Liber Amicorum Judge Shigeru Oda. The Hague: Kluwer Law International, 2002, p. 555.
[3] Available at <https://www.icj-cij.org/en/contentious-cases>. Access on 5th April 2020.
[4] Frontier Dispute (Benin/Niger, 2002); Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore, 2003); and Frontier Dispute (Burkina Faso/Niger, 2011).
[5] TOMUSCHAT, Christian. Article 36. In: ZIMMERMAN et al. (eds.), The International Court of Justice: a commentary. Oxford: Oxford University Press, p. 241.
[6] Two of them were Advisory Opinions. Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber); Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC) (Request for Advisory Opinion submitted to the Tribunal).
[7] It means that they were ordered prior to the constitution of an Arbitral Tribunal, under article 290(5), Law of the Sea Convention. There have also been incidental provisional measures in ITLOS.
[8] The M/V “SAIGA”  Case (Saint Vicent and the Grenadines/Guinea); Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Union); Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) ; The M/V “Virginia” Case (Panama/Guinea-Bissau); Dispute concerning delimitation of the maritime boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire); Dispute concerning delimitation of the maritime boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives); The M/T ”San Padre Pio” (No. 2) Case (Switzerland/Nigeria).
[9] The M/V “Louisa” Case (Saint Vincent and the Grenadines v. Kingdom of Spain); The M/V “Norstar” Case (Panama v. Italy).
[10] Available at <https://www.itlos.org/jurisdiction/declarations-of-states-parties/declarations-made-by-states-parties-under-article-287>. Access on: 5th April 2020.
[11] It is a curiosity that the so-called Fernandes Clause, because of its proponent Brazilian Raul Fernandes, is not adhered to by Brazil.
[12] Available at <https://www.icj-cij.org/en/declarations>. Access on: 5th April 2020.
[13] Available at <https://www.icj-cij.org/en/treaties>. Access on: 6th April 2020.
[14] Available at: <https://www.itlos.org/jurisdiction/international-agreements-conferring-jurisdiction-on-the-tribunal>. Access on: 5th April 2020.
[15] There are obvious caveats in this comparison; the material scope of such declarations and compromissory clauses, for instance, varies a lot.
[16] ITLOS. Statement by H.E. Judge Jin-Hyun Paik, President of the International Tribunal for the Law of the Sea, on Agenda Item 74(a) “Oceans and the Law of the Sea” at the Plenary of the Seventy-Fourth Session of the United Nations General Assembly. 10th December 2019. Available at: <https://www.itlos.org/fileadmin/itlos/documents/statements_of_president/paik/2019_1211_JHP_UNGA_en.pdf>. Access on 5th April 2020.
[17] “For a long time, and in most cases, there was simply no international court to turn to, let alone two tribunals whose jurisdiction overlapped. With the recent boom in international tribunals, it is well documented that international law now also faces the ‘luxury problem’ of multiple, overlapping courts”. Pauwelyn and Salles describe here the background of the forum shopping phenomenon, where International Law subjects may choose the tribunal, in one way or another, to hear its case. It brings many different challenges, such as diverging interpretations, concerns about parallel cases before international tribunals, res judicata, lis pendens etc. PAUWELYN, Joost; SALLES, Luiz Eduardo. Forum Shopping before International Tribunals: (Real) Concerns, (Im)Possible Solutions. Cornell International Law Journal, vol. 42, n. 1, pp. 79-80.
[18] An early influential work on this subject has been that of Scott and Carr. SCOTT, Gary L.; CARR, Craig L.. The ICJ and Compulsory Jurisdiction: The Case for Closing the Clause. American Journal of International Law, vol. 81, no. 1, pp. 57-76. More recently, it has also been highlighted that international dispute settlement mechanisms have faced a backlash from States. TAMS, Christian. The Continued Relevance of Compromissory Clauses as a Source of ICJ Jurisdiction (June 3, 2009). Available at SSRN: <https://ssrn.com/abstract=1413722>. Access: on 7th April 2020. WAIBEL, M..The backlash against investment arbitration: perceptions and reality. London: Kluwer Law International, 2010. ALTER, Karen J..; GATHII, James T.; HELFER, Laurence R.. Backlash against International Courts in West, East and Southern Africa: Causes and Consequences. European Journal of International Law, vol. 27, n. 2, 2016, pp. 293-328.
[19] Available at <https://pca-cpa.org/en/cases>. Access on: 6th April 2020.
[20] The Tribunal has undeniable qualities, but apparently did not make them clear (or they were not convenient) to disputing States that preferred to keep Arbitration – this point is debatable, but was not the focus of this text.
[21] The three stellar cases are the South China Sea Arbitration (Philippines v. China, 2013), the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom, 2011), and the Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen (Ukraine v. the Russian Federation, 2019).

Text written by Eduardo Cavalcanti de Mello Filho, intern at the Brazilian Institute for the Law of the Sea (BILOS), under the supervision of Prof. Dr. Felipe Kern Moreira, Director of the Institute.