terça-feira, 22 de março de 2016
quarta-feira, 9 de março de 2016
INTERNATIONAL LAW - BRAZIL: INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA - IT...: The International Tribunal for the Law of the Sea is an independent judicial body established by the United Nations Convention on the Law o...
The International Tribunal for the Law of the Sea is an independent judicial body established by the United Nations Convention on the Law of the Sea to adjudicate disputes arising out of the interpretation and application of the Convention. The Tribunal is composed of 21 independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.
The Tribunal has jurisdiction over any dispute concerning the interpretation or application of the Convention, and over all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal (Statute, article 21). The Tribunal is open to States Parties to the Convention (i.e. States and international organisations which are parties to the Convention). It is also open to entities other than States Parties, i.e., States or intergovernmental organisations which are not parties to the Convention, and to state enterprises and private entities "in any case expressly provided for in Part XI or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case" (Statute, article 20).
The United Nations Convention on the Law of the Sea was opened for signature at Montego Bay, Jamaica, on 10 December 1982. It entered into force 12 years later, on 16 November 1994. A subsequent Agreement relating to the implementation of Part XI of the Convention was adopted on 28 July 1994 and entered into force on 28 July 1996. This Agreement and Part XI of the Convention are to be interpreted and applied together as a single instrument.
The origins of the Convention date from 1 November 1967 when Ambassador Arvid Pardo of Malta addressed the General Assembly of the United Nations and called for "an effective international regime over the seabed and the ocean floor beyond a clearly defined national jurisdiction". This led to the convening, in 1973, of the Third United Nations Conference on the Law of the Sea, which after nine years of negotiations adopted the Convention.
The Convention establishes a comprehensive legal framework to regulate all ocean space, its uses and resources. It contains, among other things, provisions relating to the territorial sea, the contiguous zone, the continental shelf, the exclusive economic zone and the high seas. It also provides for the protection and preservation of the marine environment, for marine scientific research and for the development and transfer of marine technology. One of the most important parts of the Convention concerns the exploration for and exploitation of the resources of the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (the Area). The Convention declares the Area and its resources to be "the common heritage of mankind". The International Seabed Authority, established by the Convention, administers the resources of the Area.
Part XV of the Convention lays down a comprehensive system for the settlement of disputes that might arise with respect to the interpretation and application of the Convention. It requires States Parties to settle their disputes concerning the interpretation or application of the Convention by peaceful means indicated in the Charter of the United Nations. However, if parties to a dispute fail to reach a settlement by peaceful means of their own choice, they are obliged to resort to the compulsory dispute settlement procedures entailing binding decisions, subject to limitations and exceptions contained in the Convention.
The mechanism established by the Convention provides for four alternative means for the settlement of disputes: the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal constituted in accordance with Annex VII to the Convention, and a special arbitral tribunal constituted in accordance with Annex VIII to the Convention.
A State Party is free to choose one or more of these means by a written declaration to be made under article 287 of the Convention and deposited with the Secretary-General of the United Nations (declarations made by States Parties under article 287).
If the parties to a dispute have not accepted the same settlement procedure, the dispute may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree.
Pursuant to the provisions of its Statute, the Tribunal has formed the following Chambers: the Chamber of Summary Procedure, the Chamber for Fisheries Disputes, the Chamber for Marine Environment Disputes and the Chamber for Maritime Delimitation Disputes.
At the request of the parties, the Tribunal has also formed special chambers to deal with the Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community) and the Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire).
Disputes relating to activities in the International Seabed Area are submitted to the Seabed Disputes Chamber of the Tribunal, consisting of 11 judges. Any party to a dispute over which the Seabed Disputes Chamber has jurisdiction may request the Seabed Disputes Chamber to form an ad hoc chamber composed of three members of the Seabed Disputes Chamber.
The Tribunal is open to States Parties to the Convention and, in certain cases, to entities other than States Parties (such as international organizations and natural or legal persons) (Access to the Tribunal).
The jurisdiction of the Tribunal comprises all disputes submitted to it in accordance with the Convention. It also extends to all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal. To date, twelve multilateral agreements have been concluded which confer jurisdiction on the Tribunal (relevant provisions of these agreements).
Unless the parties otherwise agree, the jurisdiction of the Tribunal is mandatory in cases relating to the prompt release of vessels and crews under article 292 of the Convention and to provisional measures pending the constitution of an arbitral tribunal under article 290, paragraph 5, of the Convention.
The Seabed Disputes Chamber is competent to give advisory opinions on legal questions arising within the scope of the activities of the International Seabed Authority. The Tribunal may also give advisory opinions in certain cases under international agreements related to the purposes of the Convention.
Disputes before the Tribunal are instituted either by written application or by notification of a special agreement. The procedure to be followed for the conduct of cases submitted to the Tribunal is defined in its Statute and Rules.