The United Nations’ International Tribunal for the Law of the Sea (ITLOS) was established in 1982 and has been based in Hamburg since 1996. It can be called to adjudicate between States Parties on shipping, seabed, fisheries and the marine environment. Jin-Hyun Paik, elected as president in 2017, provided HANSA insights into the work
What exactly are your duties as president of ITLOS?
Jin-Hyun Paik: My major responsibility is[ds_preview] the judicial work. I am president but at the same time a judge. I have to deal with the cases and in addition have to preside over the judicial meetings in the Tribunal. We have 21 judges and I don’t know any court, domestic or international, that has such a number of judges working together. Sometimes with ad hoc judges we are even 23. It is a challenge for me to preside over the deliberations attended by this number of judges. We have a Registrar who is responsible for the administration but as president I have to give my approval on all this. My third responsibility is to represent the Tribunal, which involves attending State Parties’ meetings, speaking at the United Nations General Assembly or at international conferences, and attending various functions in the host country, Germany.
How many cases are you currently working on?
Paik: We have one pending case at the moment. The dispute concerns the arrest and detention of the oil tanker »Norstar«. Panama, as the applicant, argues that the arrest and detention was unlawful and is therefore seeking compensation for damages to the ship as well as to the flag state. The respondent, Italy, argues that the arrest and detention was not unlawful. We are expecting to give the judgement in two or three months time.
Is this a typical case for the Tribunal?
Paik: Yes, it has already dealt with the arrest and detention of ships on several occasions. But each case is different.
What has been the most important judgement so far?
Paik: It is difficult to single out one case. Besides ship-related issues, especially arrest and detention, the Tribunal has made quite substantial contributions to maritime boundary disputes as well as to the protection and preservation of the marine environment.
In addition to your duties at the Tribunal you are, amongst others, also serving as the president of the Arbitral Tribunal in the dispute concerning »Coastal State Rights in the Black Sea, Sea of Azov and Kerch Strait« (Ukraine v. Russia). Could you give more insight into that?
Paik: This is a pending case, submitted in late 2016, on which I cannot comment.
In 20 years ITLOS has delivered 25 judgements. This might seem – at least compared to other courts – a small number.
Paik: The disputes we deal with are between two sovereign states so it’s not comparable to a domestic court. Often the legal issues involved are quite sensitive. We try to make sure that we give every possible consideration to all issues involved in the dispute. In the international community there are about 200 States that are potential clients. That’s why you cannot compare the number of cases within the domestic context. We always respect parties’ decisions to bring a case to the Tribunal. But after we have given our judgement on a certain legal issue many States will learn how the relevant law was interpreted and applied by the Tribunal. So when other States are faced with a similar dispute they might know how the Tribunal will decide this case in light of previous decisions.
What is necessary to submit a dispute to ITLOS?
Paik: As I said we are basically dealing with disputes between States. If they cannot settle their disputes through negotiation or any other means then they may bring it to us. Sometimes we are faced with specific legal issues, but if you look into them you find some general questions that can be relevant for other cases. The Tribunal renders a judgement in the specific dispute and by settling it very often the judgement can be applicable to other cases. Herewith we clarify and develop international law.
Are there any costs involved?
Paik: No, there aren’t. We are operating based on the contribution made by the state parties. Of course, parties must pay for their travel expenses and lawyers fees but for the use of the Tribunal no costs are incurred. States should not be afraid of coming to the Tribunal if they have a dispute and are unable to settle it.
How long does it take from the submission of a case until the judgement?
Paik: Normally proceedings consist of two phases, a written and an oral one. Usually in the written phase the parties submit a memorial and a counter-memorial to the Tribunal, for which each party has six months to prepare. After this first round parties may ask for a second round of pleadings. We then give usually three or four months to each party to respond to the position of the other one. The pleadings are called reply and rejoinder. Altogether this results in about two years for the written phase. The time for the hearing, for which all judges have to be present here in Hamburg, depends on the case and may take one week, sometimes two weeks or longer. After the hearing the judges get together to deliberate on the case, which normally includes more than two rounds. So this phase usually takes six to nine months. Altogether we need about three years, which is short in comparison with other courts.
Will ITLOS have to deal with the need for new boundaries of States due to rising sea levels in the future?
Paik: If States submit a dispute concerning the rise of sea level, we may deal with various issues including the question of new boundaries. We can also give an advisory opinion on legal questions. But so far nobody has asked. I personally encourage States and international organizations to submit such a request because there are many legal issues and uncertainties. We are ready.
Have you already dealt with the exploitation of deep sea bed mining?
Paik: Yes, we made a very important contribution in this area of law through an advisory opinion. In this we clarified the extent of responsibility and liability of sponsoring States, normally small islands States such as Nauru and Tonga working with the seabed mining companies. At present we are still in a phase of exploration and no commercial exploitation has taken place but we expect that mining may start in five to ten years and that some disputes will arise out of these activities which will then be placed before the Seabed Disputes Chamber of the Tribunal.
Interview: Claudia Behrend
