This panel was convened at 2:30 pm, Friday, April 11, by its moderator, Cesare Romano of Loyola Law School Los Angeles, who introduced the panelists: Natalie Klein of Macquarie University; Coalter Lathrop of Sovereign Geographic; Joanna Mossop of Victoria University at Wellington; and Yoshifumi Tanaka of the University of Copenhagen. *
THE EFFECTIVENESS OF THE UNCLOS DISPUTE SETTLEMENT REGIME: REACHING FOR THE STARS?
By Natalie Klein ([dagger])
A good friend of mine told me the best thing she ever learned from a high school teacher was that they should always reach for the stars. That way, if they only reached the rooftops, at least they got off the ground.
The dispute settlement regime in Part XV of the UN Convention on the Law of the Sea (UNCLOS) undoubtedly reached for the stars. It was to be "the pivot upon which the delicate equilibrium of the compromise must be balanced," (1) "the cement which should hold the whole structure together and guarantee its continued acceptability and endurance for all parties." (2)
I was among the skeptics as to the promise that the UNCLOS dispute settlement regime held for all disputes arising from varied maritime activities. (3) In my earlier work, (4) I set out to consider whether the dispute settlement regime in UNCLOS was indeed indispensable to the overall operation of the many facets of the Convention. I concluded that compulsory procedures entailing binding decisions were indispensable in some (although not all) instances, but that the dispute settlement regime with its many limitations and exceptions was politically realistic.
As we make an assessment of the effectiveness of the UNCLOS dispute settlement regime 20 years on, my purpose is twofold. First, I want to consider for what reasons the dispute settlement regime was needed and used. Second, I want to ask: What have been the unexpected uses of the UNCLOS dispute settlement regime, and how do those reflect on the effectiveness of Part XV to the law of the sea? Ultimately, to return to my earlier analogy, it is not possible to conclude that UNCLOS dispute settlement has reached the stars, but we can have a healthy debate as to what level rooftop has been reached.
In assessing Part XV in the overall regime of UNCLOS, I had earlier taken the view that the dispute settlement regime was requisite for those parts of the Convention where a particularly delicate balance of interests had been achieved in the text and third-party adjudication or arbitration could be used to safeguard that balance. The most common balance of interests in this regard is between the exclusive interests of coastal states and the inclusive interests of all other states, often flag states, in seeking to protect their respective rights. This sort of balance is manifest in the transit passage regime, for example, as well as in Articles 56 and 58 pertaining to different interests within the exclusive economic zone.
Another reason that the UNCLOS dispute settlement regime was needed was to flesh out some of the very broad or general obligations included in the Convention. Judicial decisionmaking would not, of course, be
the only avenue available for this purpose, as UNCLOS anticipated further developments in organizations like the IMO, (5) or among concerned states under separate agreements, such as with regional fisheries management organizations or arrangements. (6) Yet if a dispute arose between states concerning the interpretation and application of provisions setting out general standards of conduct, it would inevitably fall to a court or tribunal to determine what would fall within those particular standards in the circumstances of the case.
Part XV of UNCLOS has indeed been used, to greater and lesser extents, for these two reasons. In relation to safeguarding the balance of interests in the text, there are clear examples in the case law produced under UNCLOS. The decisions of the International Tribunal for the Law of the Sea (ITLOS) in prompt-release cases arising under Article 292 are redolent with concern for safeguarding the interests of flag states in freedom of navigation against potential over-zealous enforcement of fisheries laws by coastal states. (7) The difficulty that has emerged is that the strong desire of ITLOS to protect flag state interests pursuant to the perceived purpose of Article 292 is that such protection has come by sacrificing cooperative fishing regimes that are trying to better conserve and manage diminishing fish resources. (8) The decision in Hoshinmaru does point slightly in the opposite direction in referencing the importance of accurate reporting to coastal states. (9) Future prompt-release decisions will reflect on the direction of ITLOS in this regard.
Other examples of the protection of flag state interests against those of coastal states emerge from the provisional measures orders of ITLOS in the case brought by Argentina against Ghana for the detention in port of its warship, the ARA Libertad, and in the case brought by the Netherlands against Russia for the detention of the Arctic Sunrise and arrest of Greenpeace protestors for interference with one of Russia's oil rigs. Argentina successfully secured a unanimous order that the ARA Libertad was to be released pending arbitration over the merits of Argentina's claims. (10) Similarly, the Netherlands, in a near-unanimous decision, secured an order for Russia to release the Arctic Sunrise and all detained persons upon payment of a financial bond. (11)
In relation to the UNCLOS dispute settlement regime being needed to flesh out general obligations included within the Convention, there are fewer examples to bear out this view. Certainly the Southern Bluefin Tuna arbitration underlines that a tribunal does not have a role in elaborating on obligations of cooperation in high seas fisheries where states have already proceeded to do so under their own agreement, which includes its own preferred dispute settlement regime. (12) There was potentially an opportunity for an arbitral tribunal to elaborate on the broad environmental norms included in UNCLOS for the protection and preservation of the marine environment in the MOX Plant case brought by Ireland against the United Kingdom. (13) However, with the cessation of the arbitration, no such elaboration could occur. The advisory opinion of the Seabed Disputes Chamber did, however, provide important details on the requirements of due diligence, including what constitutes best environmental practices, and whether developing countries could be held to any different standard. (14)
As the evidence is not overwhelming, it is thus important to consider how Part XV has instead been used. As I previously asked, what have been the unexpected uses of the UNCLOS dispute settlement regime, and how do those reflect on the effectiveness of Part XV to the law of the sea? It is worth considering in this regard: (1) What were the cases that have been submitted under Part XV, contrary to expectations? (2) Which were the cases that went elsewhere when they could have...