International Tribunal for the Law of the Sea

PluriCourts explores the means and methods through which disputes regarding the law of the Sea are settled by resource to ad hoc arbitration, the International Court of Justice (ICJ) or the International Tribunal on the Law of the Sea (ITLOS).

The Charter of the United Nations requires all Members of the Organization to settle their international disputes by peaceful means in such a manner that international peace and security are not endangered. More specifically, States have to settle any dispute between them concerning the interpretation or application of the Convention by peaceful means and shall seek a solution by the means indicated in article 33, para. 1, of the Charter, being ‘negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice’.

Until the 1990s, disputes in the field of the law of the sea were settled through either ad hoc arbitration or recourse to the World Court, i.e. the Permanent Court of International Justice (PCIJ) and its successor, the International Court of Justice (ICJ). The ICJ has dealt with law of the sea disputes on the basis of its jurisdiction as provided for in its Statute: jurisdiction conferred on the ICJ by a special agreement or by means of the ‘optional clause’. Several ICJ judgments made a significant contribution to the jurisprudence on the law of the sea, especially on issues relating to the maritime boundaries.

The UN Convention on the Law of the Sea (UNCLOS) was opened for signature on 10 December 1982. Its Part XV provides a comprehensive set of voluntary and compulsory procedures for dispute settlement. More specifically, article 286 of UNCLOS stipulates that the dispute be submitted at the request of any party to the dispute to a court or tribunal having jurisdiction in this regard. Article 287 of the Convention defines those courts or tribunals as:

“a. The International Tribunal for the Law of the Sea (established in accordance with Annex VI of the Convention) including the Seabed Disputes Chamber;

b.   The International Court of Justice;

c.   An arbitral tribunal constituted in accordance with Annex VII of the Convention;

d.   A special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.”

This system is generally regarded as a step forward in comparison with the pre-UNCLOS situation as it provides for compulsory procedures entailing binding decisions, even though several major areas of conflict are exempted from compulsory dispute settlement (for example certain issues relating to maritime scientific research or exploitation of living resources in the exclusive economic zone). While providing for more than one adjudicating body, the drafters of the UN Convention on the Law of the Sea did not perceive any danger to the unity of international law because these bodies fulfil complementary needs and are expected to regard each other’s decisions, thus ensuring the harmonious development of the law of the sea.

PluriCourts explores the extent to which States Parties have made use of the dispute settlement mechanisms provided for in UNCLOS, the effect of the decisions rendered in this field and the legal and political reasons for the rather limited invocation of the compulsory procedures. PluriCourts also examines the reasons for and impact of the fact that, as of yet, arbitration is seen as the preferred mechanism by States Parties under this system. However, the frequency with which dispute settlement mechanisms are invoked is not the only way to measure their significance. Arguably, in some cases the very existence of these mechanisms has acted as a restraint on arbitrary actions of States or promoted voluntary compliance. A final point of investigation is how this dispute settlement system allows non-State actors, such international organizations or multinational corporations, to seek redress through independent international adjudicatory bodies.

Published Dec. 1, 2017 2:13 PM - Last modified Dec. 1, 2017 2:13 PM