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The Implications of Expanding International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea

Published online by Cambridge University Press:  27 February 2017

Abstract

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Type
Editorial Comments
Copyright
Copyright © American Society of International Law 1996

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Footnotes

*

This Editorial is a revised and expanded version of a paper that was presented at a forum cosponsored by the American Society of International Law and the Graduate Institute of International Studies in Geneva, Switzerland, on May 13, 1995, and published as The Implications of the International Dispute Settlement System of the 1982 Convention on the Law of the Sea on International Law, in Implications of the Proliferation of International Adjudicatory Bodies for Dispute Resolution 33 (Asil Bull. No. 9, 1995)

References

1 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Preamble, UN Doc. A/CONF.62/122 (1982), reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983) [hereinafter LOS Convention].

2 For a list of the 60 ratifications and accessions to the LOS Convention in November 1993, see Status of the United Nations Convention on the Law of the Sea, 24 United Nations, Law of the Sea Bull., Dec. 1993, at 1.

3 Shigeru Oda, The International Court ofJustice from the Bench, 244 Recueil des Cours 9, 139–55 (1993 VII). See also Elihu Lauterpacht, Aspects of the Administration of International Justice 21 (1991). Writings in support of the dispute setdement system of the Convention include: 5 United Nations Convention on the Law of the Sea 1982: A Commentary 5–15 (Myron H. Nordquist, Shabtai Rosenne & Louis B. Sohn eds., 1989); A. O. Adede, The System for Settlement of Disputes Under the United Nations Convention on the Law of the Sea (1987); Gurdip Singh, United Nations Convention on the Law of the Sea Dispute Settlement Mechanisms (1985); Shabtai Rosenne, Establishing the International Tribunal for the Law ofthe Sea, 89 AJIL 806 (1995); Jonathan I. Charney, Entry into Force of the 1982 Convention on the Law of the Sea, 35 Va. J. Int’l L. 381, 389–91 (1995); John E. Noyes, Compulsory Third-Party Adjudication and the 1982 United Nations Convention on the Law ofthe Sea, 4 Conn. J. Int’l L. 675 (1989); Bernard H. Oxman, Dispute Settlement with and among Non-Parties to the Law of the Sea Convention, in The Law of the Sea: What Lies Ahead? 479 (Thomas A. Clingan ed., 1988); Statement by Expert Panel: U.S. Policy on the Settlement of Disputes in the Law ofthe Sea, 81 AJIL 438 (1987).

4 Search of the Internet at gopher.un.org (Dec. 1, 1995).

5 LOS Convention, supra note 1, Arts. 186–91, 279–99 and Anns. V–VIII.

6 Id., Arts. 279–85.

7 Id., Art. 287.

8 Id., Ann. VI, Art. 2.

9 Id., Ann. VII.

10 Id., Ann. VIII. A list of experts in these fields is to be maintained for this alternative. Id., Art. 2.

11 LOS Convention, supra note 1, Arts. 186–91, 288, para. 3, and Ann. VI. Commercial arbitration is also available for certain deep seabed mining disputes. Id., Art. 188, para. 2.

12 Id., Art. 296.

13 See Oda, supra note 3, at 127–39. World Court cases on the law of the sea include: The S.S. “Lotus” (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10 (Sept. 7); Corfu Channel case (UK v. Alb.) (Merits), 1949 ICJ Rep. 4 (Apr. 9); Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116 (Dec. 18); North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3 (Feb. 20); Fisheries Jurisdiction (UK v. Ice.; FRG v. Ice.), 1974 ICJ Rep. 3, 175 (July 25); Aegean Sea Continental Shelf (Greece v. Turk.), Interim Protection, 1976 ICJ Rep. 3 (Order of Sept. 11); Continental Shelf (Tunis./Libya), 1982 ICJ Rep. 18 (Feb. 24); Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 ICJ Rep. 246 (Oct. 12) [hereinafter Gulf of Maine]; Continental Shelf (Libya/Malta), 1985 ICJ Rep. 13 (June 3); Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arabjamahiriya) (Tunis./Libya), 1985 ICJ Rep. 192 (Dec. 10); Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), Provisional Measures, 1990 ICJ Rep. 64 (Order of Mar. 2); Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), 1992 ICJ Rep. 351 (Sept. 11); Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), 1993 ICJ Rep. 38 (June 14) [hereinafter Jan Mayen].

Another case was commenced before the ICJ but settled prior to judgment. Passage through the Great Belt (Fin. v. Den.), Provisional Measures, 1991 ICJ Rep. 12 (Order of July 29); Passage through the Great Belt (Fin. v. Den.), 1992 ICJ Rep. 348 (Order of Sept. 10).

Pending cases include Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Jurisdiction and Admissibility, 1995 ICJ Rep. 6 (Feb. 15); Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), 1989 ICJ Rep. 126 (Order of Nov. 1); Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nig.), Communiqué No. 94/13 (June 20, 1994); Fisheries Jurisdiction (Spain v. Can.), 1995 ICJ Rep. 87 (Order of May 2). In August 1995, an attempt was made to revive the Nuclear Tests cases (Austl. v. Fr.; N.Z. v. Fr.), 1973 ICJ Rep. 99, 457 (June 22), which might have involved law of the sea issues, but the request was dismissed by the Court. Request for an Examination of the Situation in accordance with paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests Case (N.Z. v. Fr.), 1995 ICJ Rep. 288 (Order of Sept. 22).

14 For example, the North Sea Continental Shelf Cases permitted the ICJ to lay down basic rules regarding the establishment of customary international law. 1969 ICJ Rep. at 41–45, paras. 70–78. Gulf of Maine permitted the Court to elaborate on issues of estoppel in international law. 1984 ICJ Rep. at 303–12, paras. 126–54. Many of the international maritime boundary cases have provided an opportunity for the ICJ to examine the role of equity in international law. See Christopher R. Rossi, Equity and International Law: A Legal Realist Approach to International Decisionmaking 215–46 (1993).

15 E.g., the withdrawal by the United States of its declaration accepting the compulsory jurisdiction of the ICJ, as a result of the Judgments in Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Nov. 26); and Merits, 1986 ICJ Rep. 14 (June 27). United States: Statement on the U.S. Withdrawal from the Proceedings Initiated by Nicaragua in the International Court of Justice (Jan. 18, 1985), 24 ILM 246 (1985); United States: Department of State Letter and Statement Concerning Termination of Acceptance of I.C.J. Compulsory Jurisdiction (Oct. 7, 1985), id. at 1742. On the other hand, despite withdrawing its acceptance of the Court’s compulsory jurisdiction, the United States has subsequently been a party to several cases before the Court. Oil Platforms (Iran v. U.S.), 1994 ICJ Rep. 3 (Order of Jan. 18); Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.S.), 1992 ICJ Rep. 234 (June 19); Aerial Incident of 3July 1988 (Iran v. U.S.), 1991 ICJ Rep. 187 (Order of Dec. 18); Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 ICJ Rep. 15 (July 20).

16 LOS Convention, supra note 1, Art. 287, para. 1(b).

17 Competition among jurisdictions is common in the United States, with concurrent jurisdiction in many cases held by the separate state and federal court systems. An interesting example of the competition among these 51 systems is in the area of civil rights, where federal courts were strong advocates of expanding civil rights from the 1950s to the 1970s, but became more restrictive in that regard subsequent to the 1970s. As a result, the state courts, traditionally viewed as hostile, often developed more liberal civil rights rules. Erwin Chemerinsky, Ending the Parity Debate, 71 B.U. L. Rev. 593 (1991); Michael Wells, Behind the Parity Debate: The Decline of the Legal Process Tradition in the Law of Federal Courts, id. at 609; Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. Rev. 233, 300–26 (1988).

18 Ad hoc third-party dispute setdements on the law of the sea include: Grisbadarna Case (Nor. v. Swed.), 11 R.IA.A. 147 (Perm. Ct. Arb. 1909); Beagle Channel Arbitral Award (Arg./Chile), 17 ILM 632 (1978), 52 ILR93 (1979); Delimitation of the Continental Shelf (UK/Fr.), 18 R.I.A.A. 3, 18 ILM 397 (1979); Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen, Report and Recommendations to the Governments of Iceland and Norway, 20 ILM 797 (1981), 62 ILR 108 (1982); Arbitral Award of 19 October 1981 (Emirates of Dubai/Sharjah) (unpub., see Dubai-Sharjah, Rep. No. 7–4, in International Maritime Boundaries 1499 (Jonathan I. Charney & Lewis M. Alexander eds., 1993)); Maritime Boundary (Guinea/Guinea-Bissau), 25 ILM 252 (1986), 77 ILR 636 (1988); Delimitation of the Maritime Areas between Canada and France (St. Pierre & Miquelon), 31 ILM 1149 (1992) [hereinafter St. Pierre & Miquelon].

19 Shigeru Oda, Further Thoughts on the Chambers Procedure of the International Court of Justice, 82 AJIL 556 (1988); Stephen M. Schwebel, Ad Hoc Chambers of the International Court of Justice, 81 AJIL 831 (1987); Davis R. Robinson, David A. Colson & Bruce C. Rashkow, Some Perspectives on Adjudicating before the World Court: The Gulf of Maine Case, 79 AJIL 578 (1985).

20 Chamber of the Court for Environmental Matters: Composition, ICJ Communiqué No. 94/10 (Mar. 14, 1994).

21 UN Secretary-General’s Trust Fund, UN Doc. A/44/PV.43, at 7–11 (1989); Peter H. F. Bekker, International Legal Aid in Practice: The ICJ Trust Fund, 87 AJIL 659 (1993); and Financial Assistance Fund for Settlement of International Disputes, Permanent Court of Arbitration, 94th Annual Report 63 (1994).

22 LOS Convention, supra note 1, Art. 293, para. 1.

23 See supra note 18.

24 Such forums, in addition to those in the LOS Convention, include dispute settlement procedures in the trade field under the General Agreement on Tariffs and Trade/World Trade Organization Agreement and the North American Free Trade Agreement; a plethora of human rights dispute settlement mechanisms established by many treaties and organizations, including the United Nations; the war crimes Tribunals for the former Yugoslavia and Rwanda; the claims Tribunal for the Iran-U.S. disputes and the UN Commission for claims against Iraq arising out of its invasion of Kuwait; and courts established by regional organizations such as the European Union, the Central American States and the Organization of American States, as well as the Conference on (now Organization for) Security and Co-operation in Europe.

25 See, e.g., the most recent ICJ decision, in the Jan Mayen case, with regard to proportionality and nongeo-graphic considerations. Jan Mayen, 1993 ICJ Rep. at 70, 72–73, 79–81, paras. 70, 72–73, 77–81. See Jonathan I. Charney, Progress in International Maritime Boundary Delimitation Law, 88 AJIL 227, 236–40, 241–43 (1994).

26 For example, the arbitration tribunal’s efforts to develop the proportionality analysis in St. Pierre & Miquelon, 31 ILM at 1161, 1162, 1176, paras. 26, 29–33, 93. See Charney, supra note 25, at 241–42.

27 LOS Convention, supra note 1, Arts. 292, 293, 295, 296.

28 Id., Arts. 297, paras. 2(b), 3(b), and 298, para. 1(a).

29 Id., Ann. V, Art. 7.

30 See Jonathan I. Charney, Universal International Law, 87 AJIL 529 (1993).

31 Some have made creative suggestions for expanding its advisory jurisdiction. See Louis B. Sohn, Broadening the Advisory Jurisdiction of the International Court of Justice, 77 AJIL 124 (1983).

19
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