Development of law of the sea by UNCLOS dispute settlement procedures: towards a coherent jurisprudence?

Abstract

The creation of the UNCLOS dispute settlement procedures is undoubtedly one of the most significant achievements in international dispute settlement. It crafted a unique system of compulsory jurisdiction that provides flexibility for State parties to choose one or more of four different procedures for the settlement of UNCLOS disputes. Yet, the multiplicity of courts and tribunals inevitably entails risks of problematic divergences in UNCLOS jurisprudence, which could destroy the core value of predictability that is essential for the functioning of any dispute settlement system. Such concern is increasingly relevant for assessing the ever-growing jurisprudence from UNCLOS dispute settlement procedures.

With this background, it is pertinent to ask a number of related questions; is the legitimacy of UNCLOS dispute settlement procedures threatened by divergent judicial pronouncements? If so, what are suitable solutions for ameliorating problematic divergences that have emerged or crystallised in practice?

This thesis initially situates the establishment of the UNCLOS dispute settlement procedures within the broader context of the proliferation of international courts and tribunals. It also scrutinises how drafters at the Third UN Conference on the Law of the Sea constructed the complex system of compulsory jurisdiction under UNCLOS by combining a choice of forum with a default mechanism of arbitration. One significant feature is that such institutional design aims to prioritise the flexibility on choices of judicial fora, designs of procedural rules, and compositions of adjudicators. Meanwhile, designed as an important element in the constitutional nature of UNCLOS, the UNCLOS dispute settlement procedures are expected to play an important role in preserving the balance and holding the complex legal relationships altogether within one treaty system. Coherent jurisprudence is essential for effectively clarifying and developing the negotiated text of UNCLOS. That has inevitably left the UNCLOS dispute settlement procedures oscillating between the desire of preserving flexibility of dispute settlement procedures and achieving the functional objective of producing coherent jurisprudence. This thesis then comprehensively analyses the case law of UNCLOS court and tribunals in order to identify the extent to which a consistent jurisprudence has emerged through jurisprudential debates, as well as to pinpoint issues where serious jurisprudential divergences still exist. It is argued that the existence of judicial incoherence on key points of UNCLOS interpretation signals an urgent task for UNCLOS dispute settlement procedures if the legitimacy of the system is to bemaintained.

No system could endure in stagnation. This thesis proactively suggests potential routes for future operations of UNCLOS dispute settlement procedures. To ensure that the objective of judicial coherence is maintained over time, innovative institutional cross-fertilisations, dedicated balancing exercises underpinning competing judicial procedures, and reconciliations of institutional dynamics through international mechanisms are vital. This thesis seeks to orchestrate balancing exercises involving maintaining institutional flexibility and achieving judicial coherence of UNCLOS dispute settlement procedures. From a broader institutional perspective, this thesis proposes potential institutional mechanisms designed for reconciling competing interpretative powers between State parties and UNCLOS Tribunals, as well as balancing judicial accountability and independence of UNCLOS dispute settlement procedures.