Speech by Professor S Jayakumar, Deputy Prime Minister, Co-ordinating Minister for National Security and Minister for Law at ITLOS Workshop on the Role of the International Tribunal for the Law of the Sea in the Settlement of Disputes relating to the Law of the Sea in Northeast, Southeast and South Asia at the Royal Pavillion Ballroom II, Regent Hotel on Tuesday, 29 May 2007 at 9.50 am
President Wolfrum of the Tribunal,
Honourable Judges of the Tribunal,
Distinguished participants,
Colleagues and friends,
First let me welcome you all to Singapore for this Workshop on the Role of the International Tribunal for the Law of the Sea (ITLOS) in the Settlement of Disputes relating to the Law of the Sea. To our friends from abroad, I hope you will enjoy your visit to our country.
Rise of Asia
2 This Workshop is the fourth in a series of regional workshops, the other three having been held in Senegal, Jamaica and Gabon. It is timely that this workshop takes place in Asia. The rapid economic growth of Asian countries in recent decades has moved the centre of gravity of global shipping towards Asia. Fourteen of the top twenty container lines are headquartered in Asia. Asia hosts nine of the top ten ports by cargo tonnage. The world's largest shipbuilders also reside in Asia. You may be interested to know that Singapore builds more than 70% of the world's oil rigs. Looking ahead, Asia's share of global maritime commerce is likely to continue expanding, commensurate with the strong growth in Asia's economies.
3 The seas of Northeast, Southeast, and South Asia are important not just to the countries in the region but to the international community. The shipping lanes connect the Pacific Ocean, South China Sea, the Indian Ocean, and the countries bordering them, to the Middle-East, Europe and the Americas. The Strait of Malacca and Strait of Singapore together account for about a quarter of international commerce. Half of the world's oil passes through these two Straits.
4 For Singapore, the sea has always been our lifeblood. As a small island state and maritime nation, Singapore participated actively in the negotiations on UNCLOS, where Professor Tommy Koh, Attorney-General Chao Hick Tin and myself were members of the Singapore delegation. Prof Tommy Koh himself served as the President of the Conference in its final year. Singapore is a firm supporter of UNCLOS. We, as well as the international shipping community, attach special importance to the provisions of the convention governing the passage of ships through the territorial sea, the Contiguous Zone, the Exclusive Economic Zone, the high sea, straits used for international navigation and archipelagic sea lanes.
Value of third-party dispute settlement and role of ITLOS
5 Through the years, the Tribunal has shown itself able to render justice in a fair, prompt and cost-effective manner. One of the cases dealt with by the Tribunal involved Singapore and Malaysia. Our experience with ITLOS has been a positive one. As a demonstration of our support, Singapore is happy to host this Workshop. Submitting long-standing bilateral disputes to third-party dispute settlement is to be encouraged in the conduct of relations between states as it avoids unnecessary acrimony and allows the overall relationship to focus on positive areas of mutually beneficial cooperation. As it celebrates its 10th anniversary this year, it is important that the Tribunal continues to raise awareness of the advantages which it can offer to States in settling disputes relating to the Law of the Sea.
6 It is important to remember that the law of the sea has been one of the most dynamic and disputed areas of international law for many years and even centuries. In the 20th century, the disputes became more numerous as technology improved both the seafarers' access to the oceans and coastal states' ability to control their coastal areas. Resources, such as fish, that had previously been thought to be inexhaustible were in danger of depletion and oil and gas resources in the continental shelf had become exploitable. Coastal states exerted increasing influence and asserted extended jurisdiction, and ocean going states resisted their efforts. This led to some remarkable confrontations, such as the "cod war" between England and Iceland that culminated in the 1974 Fisheries Jurisdiction cases in the International Court of Justice (ICJ).
7 Against this historical backdrop of contention and dispute, UNCLOS represents a major advance in international law from a variety of standpoints. Apart from its comprehensive nature, governing virtually all aspects of the law of the sea, and its near universality, UNCLOS also sets out mandatory rules for the settlement of disputes. States are obliged to settle their disputes by peaceful means. In this regard, the dispute settlement mechanisms provided for in Part XV of the Convention were drafted to allow maximum flexibility for the State parties in their choice of modality.
8 ITLOS is an important part of this sophisticated dispute settlement system, the other options being the ICJ, arbitration under Annex VII of the Convention and special arbitration under Annex VIII of the Convention. The Tribunal brings together 21 Judges with exceptional experience and learning in the law of the sea. Within the past decade, the Tribunal has made significant contributions to the jurisprudence on the law of the sea, and has proven itself as a forum where parties can expect prompt and efficient disposal of their cases.
Potential of legal fragmentation
9 Some commentators have expressed concern that the growth in the number of new courts and tribunals can lead to inconsistency in the development of legal norms, waste of resources and conflict of jurisdiction between courts. It could also encourage forum shopping by States looking for the best outcome.
10 Not a single one of the international tribunals created by specialised treaties in recent years, ITLOS included, have seen fit to turn its back on the general corpus of international law which constitutes the very essence of the international legal order. Instead, we observe that these are tribunals deeply conscious of the fact that, in applying their specialised treaty rules to the disputes before them, they are doing so within the context of a single, inter-connected, international law order. These tribunals, each working within their own specialised fields, are nevertheless aware that they are engaged in a single enterprise of upholding the rule of law in the international legal order. We see this demonstrated most clearly in the readiness of international tribunals, in particular ITLOS, to draw upon the work of other tribunals which have had the opportunity to grapple with similar issues before.
Challenges for ITLOS
11 ITLOS represents the first world-wide court set up specifically to deal with a major part of international law since the establishment of the ICJ. UNCLOS was a tour de force in treaty terms - the result of 10 years of negotiation in which numerous issues were addressed. Herein lies the challenge for ITLOS. Along with the dramatic growth in the volume of international shipping, there are also new issues and concerns which have arisen and which will pose new challenges to the work of the Tribunal in the years to come. There have been several negative developments recently, which in our view, have the potential to undermine the Convention. Let me just mention three of them.
12 First, it is clear that no reservations or exceptions may be made to UNCLOS. While States may make declarations or statements when joining the Convention, these cannot exclude or modify the Convention. However, this has not prevented a number of States from making declarations which purport to modify the meaning of the Convention or to exclude the application of certain provisions of the Convention to themselves.
13 Second, during the negotiations on the EEZs, a delicate compromise was reached. Coastal States were permitted to establish a new 200 nautical mile wide exclusive economic zone in which they would have sovereign rights to explore and exploit living and non-living natural resources. At the same time, other States would continue to enjoy the freedom of navigation and overflight in the EEZ and other uses related to these freedoms, including the conduct of military exercises. The EEZ, unlike the territorial sea, is not under the sovereignty of the coastal State. Recent attempts by some coastal States to unilaterally alter the status of the EEZ are not consistent with the Convention.
14 Third, there is a worrying trend by some coastal States to unilaterally impose measures inconsistent with the Convention in the name of protecting environment. Singapore supports efforts to protect the marine and coastal environment. But such measures must not contravene the carefully negotiated package enshrined in UNCLOS. We believe that the protection of the marine environment can be done without undermining this delicate balance in the Convention.
Conclusion
15 UNCLOS has always had to deal with and balance numerous competing interests. It is because of this that UNCLOS is universally supported, even by those few States, such as the United States, which have not yet acceded to it. In fact, we are glad that President Bush has recently urged the US Senate to ratify the UNCLOS during the current session. We hope that it will come to pass. It will be an added endorsement that the Convention has served the world well. In this regard, the Tribunal is an important cornerstone of UNCLOS as it plays a central role in ensuring that States Parties are faithful in their interpretation and application of the Convention. I hope that in the coming years, States will be more willing to resort to the ITLOS to challenge what they perceive to be violations of the Convention by other States. Up to now, States have been reluctant to do so.
16 I hope that the exchange of views over the next three days will facilitate a better appreciation of the Tribunal's work as well as the challenges which lie ahead. ITLOS' ability in protecting the integrity of UNCLOS and encouraging a coherent application of the Convention will instil confidence in the dispute settlement mechanism and bode well for the future of UNCLOS.
17 I wish all participants a fruitful discussion and a pleasant stay in Singapore.
Thank you.
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