Summary of "ITLOS' Judge, Prof. Dr. Liesbeth Lijnzaad, Talks about Dispute Settlement in the Law of the Sea"

Summary of the Video

ITLOS’ Judge, Prof. Dr. Liesbeth Lijnzaad, Talks about Dispute Settlement in the Law of the Sea

Main Ideas and Concepts

1. Introduction and Context

The lecture was hosted for students and faculty from law, social and political sciences, and fisheries/marine affairs faculties. It coincided with Indonesia’s Kartini Day, celebrating women’s empowerment, highlighting the significance of having a female judge from ITLOS as the speaker.

2. Background on the Law of the Sea Convention (UNCLOS)

The Law of the Sea was initially governed by customary law (unwritten practices recognized as binding).
Increasing maritime activities created the need for written, universally accepted rules, leading to the 1958 UN conventions, which were fragmented and not universally accepted.
The 1982 UNCLOS resulted from long, complex negotiations aiming to create a comprehensive and coherent legal framework for the seas, containing 320 articles and 9 annexes.
Despite wide acceptance, some states (e.g., the US, Israel, Turkey, Venezuela) are not parties to UNCLOS.
An implementing agreement in 1994 addressed deep seabed mining.

3. Dispute Settlement under UNCLOS

Dispute settlement was made compulsory to maintain system stability but allowed flexibility due to consensus-based negotiations.

Article 287 provides a multiple-choice system for dispute settlement, offering four options:
- International Tribunal for the Law of the Sea (ITLOS)
- International Court of Justice (ICJ)
- Arbitral tribunal
- Special arbitration (rarely used)
States choose their preferred forum when ratifying UNCLOS or later, and may change their choice.
If parties choose different forums or one party makes no choice, arbitration becomes the default procedure.
Arbitration awards are binding, even if a defendant refuses to participate; the tribunal president can appoint arbitrators to ensure proceedings continue.

4. ITLOS Jurisdiction and Procedures

ITLOS handles contentious cases between states, urgent procedures, and advisory opinions.

Two unique urgent procedures:
- Provisional Measures (Article 290): Urgent interim orders to preserve rights or prevent harm pending the main case decision.
- Prompt Release (Article 292): Concerns the release of detained ships upon payment of a reasonable bond by the flag state, mainly applied in fisheries cases so far.
Provisional measures can be requested once arbitration is initiated but before the tribunal is fully constituted (Article 290(5)) to address urgent matters during the interim period.
The tribunal prioritizes urgent cases and holds hearings; the orders are binding until final decisions.
Prompt release cases address disputes over whether the bond demanded by the arresting state is reasonable, including financial and non-financial conditions (e.g., installing satellite tracking).
No environmental law-related prompt release cases have been brought yet.

5. Challenges and Developments

Some states refuse to participate in proceedings, e.g., China in South China Sea cases, Russia in Arctic Sunrise and Ukrainian naval vessels cases.
The tribunal operates remotely during the COVID-19 pandemic with reduced productivity but has adapted rules for distance working.
ITLOS case law is developing, including overlaps with naval warfare law and environmental issues, though courts rely on states to bring cases.
There is ongoing discussion about expanding law of the sea jurisprudence to emerging issues like climate change.

6. Judges’ Election and Composition of ITLOS

ITLOS has 21 judges, with seats allocated by regional groups to ensure geographic diversity.
Elections are highly political, involving regional consensus and diplomatic campaigning.
Candidates ideally have broad expertise in international law, oceans management, and related fields beyond just law of the sea.
Judges may write dissenting or separate opinions, which is different from some national legal traditions.

7. Questions from Participants and Responses

On Judge Candidacy: Political factors and regional group dynamics heavily influence election outcomes; expertise and diplomatic networking are crucial.
Prompt Release Bonds: The tribunal has ruled that bonds must be financial; non-financial conditions are generally not accepted as bonds.
Environmental and Naval Warfare Cases: ITLOS can address issues related to the convention, including naval warfare and environmental protection, but only if states bring cases.
Handling Cases during the Pandemic: ITLOS has adapted to remote hearings and administrative sessions.
Deadlocks in Judgments: Decisions require a majority; the president’s vote can be decisive in a tie.
Comparison between ITLOS and ICJ: Both courts’ jurisprudence is seen as complementary, forming a continuum in maritime boundary dispute settlement.
Duty to Cooperate and Information Sharing: Difficult to enforce; claims require proof of harm linked to failure to share information (e.g., piracy reports).
Disputes Involving Non-State Parties: Possible if parties agree by special agreement (compromise) to submit the dispute to ITLOS or ICJ jurisdiction.
Internships and Training: ITLOS offers internships and summer schools, including online formats during the pandemic.

Methodology / Key Procedures Outlined

Dispute Settlement Options under Article 287

States select preferred dispute settlement forum (ITLOS, ICJ, arbitration, special arbitration).
Arbitration is default if no agreement or conflicting choices.
Tribunal president appoints arbitrators if parties fail to do so.

Provisional Measures Procedure (Article 290)

Request can be made after arbitration is initiated but before tribunal constitution (Art. 290(5)).
Requires demonstration of:
- Urgency
- Risk of irreparable harm
- Plausibility of rights claimed (prima facie jurisdiction)
Tribunal holds hearings and issues binding interim orders.

Prompt Release Procedure (Article 292)

Ship detained by port state pending bond payment.
Flag state may request prompt release on payment of reasonable bond.
Tribunal reviews reasonableness of bond (financial and procedural fairness).
Only fisheries cases so far; environmental cases not yet brought.

Election of ITLOS Judges

21 judges, distributed by regional groups.
Candidates must be experts with high moral standards and geographic diversity.
Election influenced by regional politics and diplomatic efforts.

Handling Non-State Parties in Disputes

Possible via special agreement (compromise) by parties to submit dispute to ITLOS or ICJ.
Requires mutual consent.

Speakers / Sources Featured

Prof. Dr. Liesbeth Lijnzaad – Judge at the International Tribunal for the Law of the Sea (ITLOS), professor of international law, former legal advisor at the Netherlands Ministry of Foreign Affairs.
Paedris – Dean of the Faculty of Law (name partially unclear).
Moderator and Questioners:
- Bulardi (Foreign Ministry official)
- Various students and faculty members from Indonesian universities and faculties of law, social and political sciences, fisheries, and marine affairs.
- Mr. Guzman (mentioned as a potential candidate for ITLOS judge).
- Other named participants: Benita, Renata, Kirana, Amanda.

Conclusion

The lecture provided a comprehensive overview of the history, structure, and procedures of dispute settlement under the Law of the Sea Convention. It offered detailed insights into ITLOS operations, challenges, and the political realities of international judicial appointments. The Q&A session enriched the discussion with practical concerns from the Indonesian context and current global maritime issues.