January 5, 2013

Should the Tribunal on the Law of the Sea have exclusive jurisdiction over ‘maritime’ disputes?

Although an argument can be made for the Tribunal on the Law of the Sea to have exclusive jurisdiction over maritime disputes, a closer examination reveals that in the long-run such exclusivity may be problematic.  This essay will first outline reasons supporting the idea of exclusive jurisdiction.  This essay will then discuss some of the problems that exclusive jurisdiction would create. 
The idea of exclusive jurisdiction is not lacking support.  First, exclusive jurisdiction could possibly reduce forum-shopping among parties to a maritime dispute.  At present, parties to a dispute can select between the Tribunal, the ICJ, arbitration, or special arbitration.  Where parties elect to take a particular dispute may be influenced by factors such as: (1) the current composition of the Tribunal or ICJ; (2) the fact that Tribunal judgments are binding but not enforceable under Article 94(2) of the UN charter; and/or (3) the wider access to the Tribunal available under Article 305 and Annex IX.  The problem arises in that without a single forum to ensure uniformity, there is the potential for greater fragmentation of judicial decisions and international law.  In other words, principles of international law may develop independently of one another because maritime issues are being addressed by four different dispute settlement mechanisms, none of which are required to follow each other’s decisions.
A second reason to support exclusive jurisdiction is that it would eliminate the “categorization” dilemma.  In general, parties to a dispute must initially categorize the type of dispute they have between them before deciding which forum to use.  For example, parties must determine if the dispute is really concerning a boundary and a party, a State and an entity, two or more States, or is really even a maritime issue? Categorizing the type of dispute before them is important because a dispute will be treated according to how politically sensitive the subject matter is.  A more politically sensitive case will then go wherever the State feels it was most likely to win.  Providing the Tribunal exclusive jurisdiction would relieve parties of the categorization task and provide a general notice that all maritime related cases are subject to the same dispute settlement mechanism.
Lastly, it may just make practical sense to give the Tribunal exclusive jurisdiction because it is often better for a court with expertise in a particular discipline to judge complicated areas of the law.
However, even though the aforementioned reasons support exclusive jurisdiction, they are arguably outweighed by the following problems.  To begin with, even though many states believe the scope of specialization needed to resolve disputes within the area of law of the sea is beyond the scope of the ICJ, many states believe the range and character of potential disputes should not be limited to one settlement type.  Giving the Tribunal exclusive jurisdiction would foreclose the flexibility states currently possess in coming to a resolution.  In addition, exclusive jurisdiction would deprive states of conciliation or arbitration options because by definition, the Tribunal would become the sole dispute settlement mechanism for maritime disputes.
     Moreover, exclusive jurisdiction appears to create the following problem.  As one author has noted, under a broad view the Tribunal is technically permitted to address any dispute that parties may bring to it.[1]  This view believes that the Tribunal is open to the possibility of taking on international legal matters, outside the scope of the law of the sea, which may be bootstrapped onto a complicated maritime case.  Exclusive jurisdiction would therefore require the Tribunal to address such general international law principles upon request and consent of the parties to the dispute (Article 21).  In turn, the possibility exists that the Tribunal would examine principles of international law that should not be judged as maritime issues.  Hence,  giving the Tribunal exclusive jurisdiction runs the risk of increasing the strength of the Tribunal to the point where it could feasibly address important issues that would be more appropriately handled by the ICJ.

[1] Boyle, “Dispute Settlement and the Law of the Sea Convention: problems of fragmentation and jurisdiction,” 46 Int’l & Comp. L.Q. 37, 50 (1997)