Chapter VII. Decisions and Advisory Opinions of International Tribunals

Chapter vii

1. international tribunal for the Law of the sea

   The International Tribunal for the Law of the Sea is an independent permanent tribunal established by the United Nations Convention on the Law of the Sea, 1982.1

   PENDING CASES, JUDGEMENTS AND ORDERS IN 2003

   Case no. 7 (pending case)—Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community)

   By a request of the Parties, the President of the Special Chamber extended the time limit for making preliminary objections until 1 January 2006, by Order dated 16 December 2003.

   Case no. 12—Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore) Request for provisional measures

   Land reclamation—Request for provisional measures under article 290 paragraph 5, UNCLOS—Article 283 obligation to exchange views—Existence of an agreement under article 281 to seek settlement of the dispute by peaceful means—Assessment of the urgency of the need for provisional measures under article 290—Existence of a claim to an area of territorial sea not per se a sufficient basis for provisional measures—Protection of rights arising from duty of cooperation in prevention of pollution

   On 5 September 2003, Malaysia filed a Request for the prescription of provisional measures against Singapore under article 290, paragraph 5, of the United Nations Convention on the Law of the Sea (UNCLOS), 1982, pending the constitution of an arbitral tribunal under annex VII to the Convention, in a dispute concerning land reclamation by Singapore in and around the Straits of Johor.

   Malaysia sought the prescription of the following provisional measures:

   1. that Singapore should, pending the decision of the arbitral tribunal, suspend all current land reclamation activities in the vicinity of the maritime boundary between the two States or of areas claimed as territorial waters by Malaysia (and specifically around Pulau Tekong and Tuas);

   2. to the extent it has not already done so, provide Malaysia with full information as to the current and projected works, including in particular their proposed extent, their

      As at 31 December 2003, there were 145 parties to the Convention. For the text of the Convention and the Statute of the Tribunal, see United Nations Treaty Series, vol. 1833, p. 3.

      570 United Nations Juridical Yearbook 2003

      method of construction, the origin and kind of materials used, and designs for coastal protection and remediation (if any);

   3. afford Malaysia a full opportunity to comment upon the works and their potential impacts having regard, inter alia, to the information provided; and

   4. agree to negotiate with Malaysia concerning any remaining unresolved issues.

      Singapore requested that the Tribunal:

      1 . dismiss Malaysia’s request for provisional measures; and

      2 . order Malaysia to bear the costs incurred by Singapore in these proceedings.

      The Order of 8 October 2003

      The Tribunal first addressed the issue of whether the annex VII arbitral tribunal would prima facie have jurisdiction over the dispute. With respect to the obligation to exchange views set out in article 283 of UNCLOS, the Tribunal considered that the obligation had been satisfied as Malaysia was not obliged to continue with an exchange of views after had it concluded that this exchange could not yield a positive result. Singapore then argued that, by agreeing to meet on 13 and 14 August 2003 the parties had, for the purposes of article 281, agreed to seek settlement of the dispute by a peaceful means (namely negotiation) and Malaysia was therefore unable to seek provisional measures. The Tribunal noted that the meeting took place after the institution of arbitral proceedings and that Malaysia had expressly stated that such meetings would be without prejudice to its right to proceed with the arbitration pursuant to annex VII to UNCLOS or to request the Tribunal to prescribe provisional measures. Article 281 was therefore not applicable. The Tribunal found that the annex VII arbitral tribunal would prima facie have jurisdiction over the dispute. The Tribunal also found that the case was admissible under ITLOS Rules.

      The Tribunal noted that, under article 290, paragraph 5, of UNCLOS, the Tribunal is competent to prescribe provisional measures prior to the constitution of the annex VII arbitral tribunal if the urgency of the situation so requires. Singapore contended that, as the annex VII arbitral tribunal was to be constituted by no later than 9 October 2003, there was no need to prescribe provisional measures given the short period of time remaining before that date. The Tribunal noted that there is nothing in article 290 of the Convention to suggest that the measures prescribed by the Tribunal must be confined to that period and further considered that the urgency of the situation must be assessed by taking into account the period during which the annex VII arbitral tribunal is not yet in a position to modify, revoke or affirm the provisional measures.

      With respect to the request for provisional measures relating to the land reclamation works in the sector of Tuas, the Tribunal considered that the existence of a claim to an area of territorial sea is not, per se, a sufficient basis for the prescription of provisional measures.

      The Tribunal found that Malaysia had not shown that there was a situation of urgency or that there was a risk that its rights with respect to an area of its territorial sea would suffer irreversible damage pending consideration of the merits of the case by the annex VII arbitral tribunal. Accordingly, the Tribunal did not consider it appropriate to prescribe provisional measures with respect to the land reclamation by Singapore in the sector of Tuas.

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      The Tribunal went on to consider Malaysia’s Request for the remaining provisional measures. It was noted that during the oral proceedings, Singapore, in response to the measures requested by Malaysia, reiterated its offer to share the information requested by Malaysia with respect to the reclamation works, stated that it would provide Malaysia with a full opportunity to comment on the reclamation works and their potential impact, and declared that it was ready and willing to enter into negotiations. The Tribunal placed on record these assurances given by Singapore.

      With respect to the infilling work in Area D at Pulau Tekong, which was of primary concern to Malaysia, the Tribunal noted the commitment made by Singapore at the hearing not to undertake any irreversible action to construct the stone revetment around Area D pending the completion of a study, jointly sponsored and funded by both States, to be undertaken by independent experts.

      The Tribunal stated that the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of UNCLOS and general international law, and that there are rights which arise therefrom which the...