Ocean Newsletter
No.589 February 20, 2025
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18 Years as a Judge of the International Tribunal for the Law of the Sea
YANAI Shunji (Former Judge of the International Tribunal for the Law of the Sea)
The International Tribunal for the Law of the Sea was established by the United Nations Convention on the Law of the Sea and is composed of 21 judges. The first Japanese judge, Professor Yamamoto Soji, served one term of nine years, after which the author served two terms of 18 years. The majority of judges strive to find the best solution for the cases that are referred to them, so the direction of the judgment is determined through repeated discussions among the judges. The International Tribunal for the Law of the Sea has been highly regarded around the world in the 30 years since its establishment, has begun to accept large cases such as boundary delimitation cases, and its precedents are contributing to the development of the Law of the Sea.
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Advisory Opinion on Climate Change at the International Tribunal for the Law of the Sea
YAMASHITA Tsuyoshi (Research Fellow, Center for International Law and Policy, Tohoku University)
The advisory opinion of the International Tribunal for the Law of the Sea (ITLOS) determined that the parties to the United Nations Convention on the Law of the Sea (UNCLOS) have an obligation to protect and preserve the marine environment from pollution as a deleterious effects of climate change caused by anthropogenic greenhouse gas emissions. Many states and international organizations actively exchanged opinions on marine environmental issues related to climate change, and the issues were organized to promote further negotiations in the future. The important significance of ITLOS as a dispute settlement system can be seen in the organization and promotion of such negotiations.
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Reflection from INC 5- Legally Binding Instrument for Eliminating Plastic Pollution
Emadul ISLAM (Senior Research Fellow, Ocean Policy Research Institute, Sasakawa Peace Foundation)
The article highlights global efforts to tackle plastic pollution through the development of a legally binding international treaty, mandated by the UNEA 5/14 resolution in 2022. The recent INC-5 negotiations in Busan faced challenges, including disagreements on key articles and resistance from petroleum-producing nations. However, over 100 countries supported ambitious goals, such as limiting plastic polymers. Despite delays, progress continues, with strong civil society backing and plans for further negotiations in 2025 to finalize a comprehensive treaty.
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Ensuring Ocean Equity
Stephanie JUWANA (Co-founder and Program Director at Indonesia Ocean Justice Initiative)
In the midst of a global economy facing many challenges, the ocean is increasingly viewed as a promising economic frontier, and investments in the blue economy have surged. However, if the blue economy is promoted without integrating equity, it could result in widespread injustice. Ensuring ocean equity is essential in promoting durable economic growth, enhancing social stability, and unlocking the full potential of the ocean as a sustainable resource.
18 Years as a Judge of the International Tribunal for the Law of the Sea
KEYWORDS
UN Convention on the Law of the Sea / Judicial Precedent Transition / Contribution to the Development of the Law of the Sea
YANAI Shunji (Former Judge of the International Tribunal for the Law of the Sea)
The International Tribunal for the Law of the Sea (ITLOS) was established by the UN Convention on the Law of the Sea and is composed of 21 judges. The first Japanese judge, Professor Yamamoto Soji, served one term of nine years, after which the author served two terms of 18 years. The majority of judges strive to find the best solution for the cases that are referred to them, so the direction of the judgment is determined through repeated discussions among the judges. ITLOS has been highly regarded around the world in the 30 years since its establishment, and it has begun to accept large cases such as boundary delimitation cases, and its precedents are contributing to the development of the Law of the Sea.
Strongly Persuaded to Become a Candidate
ITLOS was established by the UN Convention on the Law of the Sea (UNCLOS), which was adopted in 1982, as a specialized court for resolving maritime disputes between states, and began operations in 1996. ITLOS is composed of 21 judges chosen through international elections from among the world's experts on the Law of the Sea. From Japan, Professor Yamamoto Soji, an authority on the law of the sea, was elected in the first election and served a 9-year term. In 2004, the year before his term was to expire, the Ministry of Foreign Affairs asked the author to become the next judge. Professor Yamamoto also told him, "I want to retire after one term. You should take over." The author initially decided it was time to relax and declined the request, but after strong persuasion from the Ministry of Foreign Affairs and Professor Yamamoto, he reluctantly ran for the position and was elected with a high score. About five years into his first term, ITLOS needed to elect a new president through mutual selection. Although the author had no intention of becoming president, he was unanimously elected through his colleagues' recommendation.
The president's term is three years, during which one must reside permanently in Hamburg, Germany. In addition to serving as the presiding judge for cases, he also chairs the drafting committee responsible for creating draft judgments. When a case is submitted to ITLOS as a full court, the drafting committee typically consists of five judges, including the chair, with each member drafting portions of the initial draft. Despite receiving general direction from the full court, drafting the first draft from scratch is an enormous task. Draft judgments are created through up to three drafts before voting. The president also manages the court's administrative and financial affairs and represents the court at international conferences such as the UN General Assembly, making it an extremely demanding role. He was persuaded by the Ministry of Foreign Affairs and his predecessor, Judge Yamamoto, to take the position of judge. After being reelected, the author ultimately served two terms totaling 18 years, retiring in May 2024.
The president's term is three years, during which one must reside permanently in Hamburg, Germany. In addition to serving as the presiding judge for cases, he also chairs the drafting committee responsible for creating draft judgments. When a case is submitted to ITLOS as a full court, the drafting committee typically consists of five judges, including the chair, with each member drafting portions of the initial draft. Despite receiving general direction from the full court, drafting the first draft from scratch is an enormous task. Draft judgments are created through up to three drafts before voting. The president also manages the court's administrative and financial affairs and represents the court at international conferences such as the UN General Assembly, making it an extremely demanding role. He was persuaded by the Ministry of Foreign Affairs and his predecessor, Judge Yamamoto, to take the position of judge. After being reelected, the author ultimately served two terms totaling 18 years, retiring in May 2024.

ITLOS Headquarters in a Lush Green Environment
Invaluable Experience at ITLOS
The number of 21 judges in ITLOS is significantly larger than the 15 in the International Court of Justice (ICJ), which has existed for a long time. This is primarily because developing countries argued that the composition of ITLOS judges should better represent each region of the world. When the author first assumed his post at ITLOS, he was very anxious about whether a majority opinion could be reached among 21 judges for each case. In terms of actual contentious cases, first each of the parties to the disputes concerned typically submits two written statements, followed by oral arguments in court. In the full court, the 21 judges will discuss and strive to find a judgment’s direction after hearing the arguments of the parties concerned. Indeed, at the beginning of such deliberations, there are countless arguments and it seems unresolvable at first glance, but as discussions continue, they slowly head towards finding a solution. These 21 judges come from 21 different countries, and are legal professionals working with different languages, cultures, and even legal systems as backgrounds. Despite these differences, he felt they were able to reach a resolution because the majority of the judges strive to find the best possible solution for the case. For smaller five-judge chambers, reaching consensus is easier. Through 18 years of experience, the author learned that a kind of "collective wisdom" emerges from discussions. He also gained much knowledge through discussions with outstanding legal professionals from around the world, including judges from developing countries.
ITLOS Jurisprudence and Contribution to the Development of the Law of the Sea
ITLOS has received 33 cases and issued judgments or decisions on 27 of them. In the first decade after ITLOS was established, most cases involved urgent procedural matters like prompt release of foreign fishing vessels captured in the exclusive economic zones (EEZ) of coastal states and provisional measures protecting the rights of the parties to a dispute. However, as ITLOS's global recognition grew, it began to be entrusted with major cases such as regarding damage compensation for merchant ship seizures, the delimitation of territorial waters, EEZs and the continental shelf,and advisory opinions clarifying the interpretation of UNCLOS. Japan has been involved in several cases, appearing before ITLOS as both defendant and plaintiff, having been filed against by New Zealand and Australia in the "Southern Bluefin Tuna" case and filing against Russia in the "Hoshinmaru" and "Tomimaru" cases.
In international law, including the law of the sea, jurisprudence in international courts plays a crucial role in forming and clarifying rules, with the ICJ being a prime example. ITLOS has also contributed to the formation of such case law through nearly 30 years of activity. The main examples of ITLOS's jurisprudence contributing to the development of the law of the sea include the following. In today's marine transport, vessel owners, crew members, cargo owners, and others are multinational. In cases where a ship is seized by a foreign country, it becomes practically impossible for the individual parties’ home countries to protect their interests through diplomatic protection. Therefore, ITLOS established a principle where the flag state (the country where the ship is registered) protects the interests of these multinational stakeholders as a whole, treating the vessel as a unit including crew members, cargo, and other components. Regarding the system of early release of fishing vessels detained in the EEZ upon payment of a "reasonable bond," ITLOS specifically clarified the meaning of "reasonable." Additionally, ITLOS became the first international court to conduct the delimitation of the continental shelf beyond 200 nautical miles in the dispute between Bangladesh and Myanmar over the continental shelf in the Bay of Bengal. ITLOS also ruled that coastal states have the right to regulate when foreign tankers and other vessels provide bunkering (underway replenishment), a business that developed after the adoption of UNCLOS, to foreign fishing vessels within the EEZ. Furthermore, ITLOS has clarified unclear provisions of UNCLOS through three advisory opinions concerning deep seabed activities, illegal, unreported, and unregulated (IUU) fishing, and climate change.
In international law, including the law of the sea, jurisprudence in international courts plays a crucial role in forming and clarifying rules, with the ICJ being a prime example. ITLOS has also contributed to the formation of such case law through nearly 30 years of activity. The main examples of ITLOS's jurisprudence contributing to the development of the law of the sea include the following. In today's marine transport, vessel owners, crew members, cargo owners, and others are multinational. In cases where a ship is seized by a foreign country, it becomes practically impossible for the individual parties’ home countries to protect their interests through diplomatic protection. Therefore, ITLOS established a principle where the flag state (the country where the ship is registered) protects the interests of these multinational stakeholders as a whole, treating the vessel as a unit including crew members, cargo, and other components. Regarding the system of early release of fishing vessels detained in the EEZ upon payment of a "reasonable bond," ITLOS specifically clarified the meaning of "reasonable." Additionally, ITLOS became the first international court to conduct the delimitation of the continental shelf beyond 200 nautical miles in the dispute between Bangladesh and Myanmar over the continental shelf in the Bay of Bengal. ITLOS also ruled that coastal states have the right to regulate when foreign tankers and other vessels provide bunkering (underway replenishment), a business that developed after the adoption of UNCLOS, to foreign fishing vessels within the EEZ. Furthermore, ITLOS has clarified unclear provisions of UNCLOS through three advisory opinions concerning deep seabed activities, illegal, unreported, and unregulated (IUU) fishing, and climate change.

Oral Proceedings for the Advisory Opinion on Illegal, Unreported, and Unregulated (IUU) Fishing by the Sub-Regional Fisheries Commission (SFRC) of West Africa, which the Author Presided Over as the
Presiding Judge in their Final Case.
*Served as Judge of ITLOS from 2005 to 2024 (President of said Court from 2011 to 2024)