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Reflections on the Governance Function of Compulsory Dispute Settlement in the Legal Order for the Ocean

Reflections on the Governance Function of Compulsory Dispute Settlement in the Legal Order for... Introduction1The drafters of the United Nations Convention on the Law of the Sea (LOSC),2 according to its preamble, sought to establish ‘a legal order for the seas and oceans’. While the LOSC’s honorary title of ‘constitution for the oceans’ has become somewhat of a truism, its package deal nature and the resultant normative and institutional structure can indeed be characterised in ‘constitutional’3 or ‘public law’ terms.4 The compulsory dispute settlement procedures contained in Part XV of the Convention are a key part of that package, and have been hailed as one of its most ‘significant achievements’.5 The drafters thus accorded an important role to compulsory dispute settlement in maintaining the legal order for the ocean. The term ‘legal order’ is maintained deliberately for the present purposes, because it captures and connects three important aspects: the object and purpose of the LOSC to provide the overarching legal framework for this legal order; the more general idea that one can only speak of a legal ‘order’ when the norms that make up this order relate to each other in some way;6 and the understanding of a legal order as something that is inherently dynamic and adaptive (akin to a ‘living constitution’).7 The purposes of compulsory dispute settlement under Part XV can be summarised as corresponding to each of these aspects: maintaining and protecting the balance of interests struck by the LOSC; providing authoritative interpretations on how norms relate to one another and to the broader normative context; and, when relevant, progressively developing the regime to adapt to changing interests and circumstances.8 That does not mean that these different objectives are always easily reconciled. As courts and tribunals are faced with increasingly complex disputes and changing circumstances beyond what was foreseen by the drafters, finding a balance between protecting and progressively developing of the legal order can be perceived as a straddle.This article takes the occasion of the Convention’s fortieth anniversary as an opportunity to reflect on the role that compulsory dispute settlement has played in maintaining the legal order for the ocean. It will not venture onto the slippery slope of assessing whether after forty years Part XV can be said to have lived up to the expectations of its drafters. Not only would that require an empirical enquiry beyond the scope of this contribution, more importantly, as times and circumstances change, expectations change. A stock-taking exercise may thus more usefully be informed by broader normative considerations that span across time. The compulsory dispute settlement system under Part XV is after all expected – both by its drafters and the relevant community of States Parties at any given point in time – to fulfil certain functions. These functions will be the focal point of the present analysis. More specifically, it is posited that compulsory jurisdiction under Part XV enables and arguably requires LOSC courts and tribunals to exercise an important ‘governance function’,9 in addition to the more traditional understandings of the interconnected ‘dispute settlement’, ‘fact-finding’ and ‘law-ascertainment/law-making’ functions of international courts and tribunals.10The governance function broadly articulates the observation that adjudicators (intentionally or unintentionally) also influence States and other actors beyond those that are party to a particular dispute, and may need to be mindful of wider (community) interests and normative coherence within and beyond and the confines of a specific part of a regime. The governance function is thus polycentric and may manifest itself in a variety of ways, reflective of broader structural developments in the international legal order associated with procedural ‘constitutionalisation’, international public law, and global administrative law.11 More specifically for the present purposes, it resonates with particular constitutional and administrative law features of the LOSC. This article uses the governance function as an analytical frame to identify and assess the different ways in which it is reflected in the use and exercise of compulsory jurisdiction under Part XV to date – be that in ways intended or unintended by the drafters. The aim is to shed light on the multifaceted role of compulsory dispute settlement in maintaining the legal order for the ocean in a way that accounts for the changing expectations of States Parties over time. The article does not purport to be exhaustive of forty years of LOSC jurisprudence, instead, it offers a three-fold typology of (non-exclusive) ways in which the governance function manifests itself in compulsory dispute settlement under the LOSC. The discussion follows these three lines of enquiry. First, a variety of ways in which the compulsory dispute settlement system contributes to normative coherence in the legal order for the ocean, both within the Convention itself and between the Convention and its broader normative context, will be identified. The second part turns to specific governance functions that flow directly from substantive provisions of the Convention and the limitations thereto. Drawing on the preceding analysis, the third part will consider the ways in which the governance function can be understood to reach beyond the parties to a dispute.The Governance Function of the Compulsory Dispute Settlement System: Normative CoherenceCompulsory dispute settlement plays an important role in maintaining normative coherence and enhancing systemic integration within the legal order for the ocean. Indeed, a key rationale for adopting Part XV in its present form was to ensure the effectiveness of the substantive bargains struck under the Convention, and to provide a central mechanism for authoritative interpretation of the Convention.12 That does not mean that the reach of compulsory procedures under Part XV is fully comprehensive, nor have all available procedures been used in practice.13 As the drafters could not agree on a single adjudicatory forum, Part XV leaves States a choice between the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), ad hoc arbitration under Annex VII, or special arbitration under Annex VIII.14 These LOSC courts and tribunals can, in principle, exercise compulsory jurisdiction over ‘any dispute concerning the interpretation or application of the Convention’,15 with a number of limitations and optional exceptions.16 It is noteworthy that the initial fears voiced by some commentators that the choice of different judicial fora under Part XV would lead to fragmentation of both substantive law and procedure was not a particular concern of the drafters,17 nor has it materialised in practice. An overall trend towards coherence and cross-fertilisation between the jurisprudence of different LOSC courts and tribunals, rather than fragmentation thereof, is widely observed.18 The term ‘coherence’ for present purposes denotes this overall discernible trend and aim, that is not to say that case law under the LOSC is free of ambiguities or inconsistencies. The following discussion identifies factors that contribute to this trend at the level of the LOSC ‘internally’, as well as ‘externally’ in its relationship with the broader normative order.Internal Coherence within the LOSCThe availability of compulsory dispute settlement has a function in guarding the internal normative coherence and uniform interpretation of the Convention. On a procedural level, it may be noted that the possibility of forum shopping among the different LOSC courts and tribunals under Part XV does not necessarily impede this function. Afterall, States may have different reasons for choosing one forum over the other, not in the least the significantly higher costs involved in arbitration for example. In certain types of cases, ITLOS, as a permanent specialist tribunal, may furthermore be considered a ‘more predictable commodity’,19 or more authoritative than an Annex VII tribunal, to rule on questions that are of relevance to the functioning of the Convention on a more structural or institutional level.20 In addition, ITLOS has a track record of hearing and deciding on cases relatively quickly. The flexibility provided in the choice of procedure under Part XV may actually cater for different and changing needs of States in a way that bolsters the broader public function of compulsory dispute settlement.In terms of substantive coherence in the interpretation and application of the Convention, the concept of ‘acquis judiciaire’ has been used to describe the ‘gradual building of a uniform law through the reiteration of and cross-referral to existing judicial decisions’ among LOSC courts and tribunals.21 While this requires nuance in that the acquis is better established for some parts of the Convention than others – inevitably those that have more frequently been subject to adjudication, such as maritime boundary delimitations,22 obligations to protect the marine environment,23 or prompt release,24 – it articulates the mindfulness and active role of judges in guarding normative coherence within a legal system. Contrary to the concepts of ‘precedent’ or ‘settled jurisprudence’, which can be seen as static, acquis judiciaire is understood as an evolving process in which courts and tribunals may also be called upon to progressively develop the acquis.25 This is important because, as noted above, a ‘legal order’ for the ocean not only implies a system of norms that coherently relate to one another, but also one that is adaptive in response to changing needs over time. Furthermore, in terms of the governance function of dispute settlement, a growing acquis judiciaire may have a self-perpetuating function in that it strengthens substantive normative coherence within the LOSC, while at the same time guiding judicial reasoning by appealing to the ‘adjudicators’ conscience of belonging to a unified system of law’.26Finally, there are certain developments in the practice of adjudication under Part XV that may also contribute to the overall trend towards coherence, including adjudicators’ ‘conscience’ in that respect. For example, the parties in Annex VII arbitration each nominate an arbitrator of their choice and appoint the remaining arbitrators on the panel by agreement. When no such agreement can be reached, as is often the case, the President of the ITLOS will appoint the other members of the panel.27 As a result, panels often consist of present or former ITLOS judges, thereby closely resembling a special chamber of the ITLOS with one judge ad hoc appointed by each party. Boyle suggests that this interchange between the ITLOS and Annex VII arbitration may actually promote substantive coherence and consistency in the jurisprudence, and strengthen the role and legitimacy of both the Tribunal and arbitral panels.28External Coherence: The LOSC and BeyondThe ‘external’ dimension of normative coherence in the legal order for the ocean, that is, of the Convention within its wider normative context, is facilitated by the drafters in various ways. On the level of substantive provisions, the Convention contains ample provisions that expressly refer to ‘other rules of international law’,29 or even directly incorporates external rules and standards through so-called ‘rules of reference’.30 The role of dispute settlement in guarding external coherence is, however, not limited to instances where courts and tribunals are called upon to apply such provisions. Importantly, attention for normative coherence comes to the fore in the general method of judicial interpretation. Much attention has been paid in international legal scholarship to Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) as a ‘de-fragmentation’ tool,31 yet the LOSC’s applicable law provision in Article 293(1) provides what could be seen as a lex specialis thereto: stating that courts and tribunals with jurisdiction under Part XV ‘shall apply this Convention and other rules of international law’ not incompatible with it. Article 293 is of course no panacea. Managing normative interactions through judicial interpretation takes place within the limits of the general rules on treaty interpretation.32 Furthermore, Article 293 cannot be used as a ‘backdoor’ to expand jurisdiction ratione materiae. A LOSC court or tribunal cannot directly apply external norms in cases where no jurisdiction to do so has first been established. This distinction, however, has not always been upheld so clearly by LOSC courts and tribunals in practice, and has triggered criticism on various occasions.33The question of applicable law should be separated from the question of jurisdiction and the associated power to exercise ‘incidental jurisdiction’ over ancillary non-LOSC issues when this is necessary to resolve the dispute at hand.34 It falls within the discretion of the court or tribunal to ‘objectively’ identify the ‘real issue’ at stake and the ‘object of the claims’ submitted to it,35 but this is a question of jurisdiction and not of applicable law. While this issue initially mainly arose in so-called ‘mixed disputes’ (a law of the sea dispute involving a concurrent unsettled territorial sovereignty dispute),36 it has since arisen in connection with claims concerning, inter alia, the use of force, immunities, human rights, environmental law, and may in principle arise in any case that touches on non-LOSC issues. This underlines the breadth and (growing) complexity of the broader legal order for the ocean, and thereby also of the governance function of LOSC courts and tribunals in this respect. Indeed, several examples can be found in recent cases of States invoking violations of external instruments in addition to or in support of alleged violations of the LOSC.37 In the South China Sea Arbitration, the Philippines submitted that China’s toleration of destructive fishing methods violated obligations under both the LOSC and the Convention on Biological Diversity (CBD).38 The tribunal considered that the Philippines had not ‘presented a claim arising under the CBD as such’39 and was accordingly satisfied that Article 293(1) of the LOSC, together with Article 31(3)(c) of the VCLT enabled it to ‘consider the relevant provisions of the CBD for the purposes of interpreting the content and standard of Articles 192 and 194 of the Convention’.40 In the Arctic Sunrise Arbitration, the Netherlands claimed that Russia had violated various human rights obligations under customary international law and the International Covenant on Civil and Political Rights in arresting the Greenpeace vessel Arctic Sunrise and its crew.41 The arbitral tribunal made it very clear that regard may be had to human rights law in assessing the reasonableness and proportionality of coastal State enforcement actions, but that this would be ‘to interpret the relevant Convention provisions by reference to relevant context’ pursuant to Article 293.42 The tribunal expressly stated that it did not have jurisdiction to apply these human rights provisions directly or to establish breaches thereof.43 Article 293 thus ‘ensures that a tribunal can give full effect to the provisions of the Convention’44 within their broader normative context. It should be noted that Article 293 does create a normative hierarchy to the extent that the Convention prevails in case of a conflict between the LOSC and other rules of international law.45 Or in other words, recourse to external norms for the purposes of interpretation cannot lead to a result that goes against the object and purpose of (provisions of) the Convention.The compulsory dispute settlement system enables LOSC courts and tribunals to fulfil a governance function by guarding and enhancing the ‘internal’ and the ‘external’ normative coherence of the Convention. This is effectuated both on the procedural level and through interpretative methods and the development of a growing acquis judiciaire, which in turn arguably strengthens the position and legitimacy of dispute settlement bodies themselves.46 It has been suggested that (interpretative) arguments based on coherence tend to carry particular authoritative weight.47 Courts and tribunals that are aware of their own position in shaping the broader legal order of the ocean thereby arguably also help to enhance the legitimacy of that legal order.48Specific Governance Functions Flowing from Substantive ProvisionsThere are a number of specific governance functions of compulsory dispute settlement that could be seen as purposefully created by the drafters in the sense that they flow directly from substantive provisions of the Convention and the design of Part XV. First of all, these can be identified on the procedural level in Part XV where it assigns an ‘administrative role’ to the ITLOS for types of disputes over which it has exclusive jurisdiction, in the case of the Seabed Disputes Chamber,49 or default jurisdiction in cases of provisional measures50 and applications for prompt release of vessels and crews.51 The bulk of the early caseload of the ITLOS consisted of applications for prompt release, making it a good example of an area where the Tribunal has developed an acquis judiciaire.52 The fact that the stream of applications for prompt release has effectively dried up since 2007 might even suggest that the Tribunals’ job is pretty much done in this respect.53 Prompt release jurisprudence is discussed in more detail below as it also provides an illustration of the second way in which governance functions flow from the text of the Convention, namely through substantive provisions that include open-ended balancing principles.54Provisions that qualify the exercise of certain rights by reference to principles such as ‘reasonableness’, or the obligation to have ‘due regard’ to the rights of other States, impose an administrative law-like review function on courts and tribunals having to interpret and apply them. While this function as such was foreseen by the drafters, it was not determined exactly what ‘standard of judicial review’ courts or tribunals ought to apply in concrete cases. This is where things can get contentious as States’ expectations as to the degree of deference shown to particular interests differ and evolve. In addition to the more ‘bilateral’ and retrospective function of these provisions that requires a balance of interests to be struck between the parties to a particular dispute, there is arguably also a ‘public’ and more prospective function inherent in the exercise of judicial jurisdiction in these types of cases, as courts and tribunals anticipate future situations in which the same open-ended principles will have to be applied again.55 Some examples will be discussed to illustrate how this open-ended balancing exercise enables or even requires dispute settlement bodies to exercise a governance function, while at the same time imposing limitations thereon.Governance Function via Open-ended Balancing PrinciplesA key balancing principle that is found recurrently throughout the Convention is the obligation to have ‘due regard’ to the rights and duties of other States. The term ‘due regard’ is found explicitly in the regimes of the exclusive economic zone (EEZ) and the high seas, yet an obligation to be ‘other regarding’ in the exercise of rights under the Convention extends throughout the various maritime zones.56The duty of due regard entails a positive obligation for States to engage in a ‘balancing exercise’,57 but it is ‘open-ended’ in the sense that it depends on the circumstances of a specific case which duties exactly are ‘due’.58 As a balancing mechanism, its function is not limited to mediating conflicting interests between two States on a strictly bilateral basis, but may include (by implication or directly) the consideration of other actors’ interests or wider community interests.59 For example, in interpreting the coastal State’s duty of due regard under Article 56(2), the tribunal in Arctic Sunrise had to balance the right of the coastal State to take measures necessary to protect its sovereign rights in the EEZ with the right of Greenpeace activists on board the Dutch-flagged Arctic Sunrise to protest at sea. The tribunal considered protest at sea to be an ‘internationally lawful use of the sea related to the freedom of navigation’, derived from the freedom of expression and the freedom of assembly as protected under human rights instruments to which both States were parties.60 The tribunal then read into the obligation of due regard under Article 56(2) the requirement that coastal State measures aimed at protecting its sovereign rights must ‘fulfil the tests of reasonableness, necessity, and proportionality’.61 Where the exercise of sovereign rights, jurisdiction, and freedoms across the Convention is qualified by open-ended balancing principles like due regard, subjecting these obligations to compulsory dispute settlement is not only a tool to bilaterally (and retrospectively) protect the rights of one State Party against the alleged excessive exercise of jurisdiction by another, it also serves a broader public governance function in (prospectively) guarding the balance of competing interests in ocean space.Another, more narrowly circumscribed, balancing principle is applied in prompt release cases. The ITLOS has to assess the ‘reasonableness’ of the bond set by the coastal State for the release of a vessel and crew that have been detained on suspicion of illegal fishing, pollution or dumping offences in the coastal State’s EEZ.62 Over time, ITLOS’ prompt release jurisprudence has developed a relatively predictable set of relevant factors to assess the reasonableness of bonds, while emphasising the contextual and case-dependent nature of this balancing principle.63 Given the limited scope and specific purpose of prompt release proceedings, the ITLOS has taken a restrictive approach to the balancing act involved.64 Nevertheless, considerations based on norms external to the Convention have been taken into account, as is reflected for example in the Tribunal’s statement that the obligation of prompt release includes ‘elementary considerations of humanity and due process of law’ and ‘a concern for fairness’.65 In stressing that a decision to confiscate a vessel should not be taken through proceedings ‘inconsistent with international standards of due process of law’, the Tribunal has furthermore (indirectly) taken the rights and interests of crews and shipowners into account.66At the same time, examples can be found where the Tribunal was criticised for not giving enough effect to its governance function. In the Volga case, the balance of interests struck by the Tribunal proved particularly contentious, exactly because the Tribunal, according to many observers, had given insufficient consideration to the wider implications flowing from this case. Australia had arrested and detained the Russian-flagged Volga for illegal fishing in its EEZ, and argued that its obligations to combat illegal, unreported and unregulated (IUU) fishing under the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR)67 were relevant in determining the gravity of the alleged offence, and thus the reasonableness of the bond. This argument was rejected by the majority of the Tribunal.68 Australia had made the financial bond subject to two conditions: that the vessel carries a vessel monitoring system and that information regarding the vessel’s beneficial owners, directors of the holding company and underwriters be provided to the Australian authorities, which Australia justified by reference to the persistent serious problems with IUU fishing in the Southern Ocean, and the implications thereof for fisheries management more broadly.69 The Tribunal took a restrictive approach to interpreting the term ‘bond or other security’ in Article 73(2) as limited to those of a ‘financial nature’ only.70 It did not consider Australia’s ‘good behaviour bond’ (the purpose of which was to prevent future violations) to fall within the meaning of this term.71 Dissenting opinions condemned this interpretation as too narrow,72 and commentators widely criticised the Volga decision for shifting the balance too far in favour of the flag State, to the detriment of coastal State rights and obligations to protect living resources in the EEZ and to cooperate in their conservation, including under important regional regimes such as CCAMLR.73 While the Tribunal’s textual approach to interpretation in this case may not be indefensible per se,74 the essence of the critique speaks to the fact that ‘a new balance’ ought to have been found between, on the one hand, vessel owners, operators and fishing companies, and the coastal State on the other hand.75 In other words, in the light of contemporary challenges related to IUU fishing, expectations as to how the balance of interests ought to be struck – even in the limited context of prompt release – had apparently evolved.76 That said, the limited scope of prompt release jurisdiction should be borne in mind, and exactly because of this limited scope the Tribunal may have considered itself more restricted in its interpretative discretion. In interpreting and applying open-ended balancing principles, the degree of deference shown to the coastal State also determines the scope of the governance function of the Tribunal.Limitations: Standard of ReviewWhen called upon to apply any of the open-ended balancing principles discussed above, the role of courts and tribunals is arguably somewhat different in character from other instances of treaty interpretation in that it closely resembles administrative review.77 Essentially, the role of a court or tribunal is to ‘review’ the exercise of State powers and determine whether it meets the minimum standard of care required vis-à-vis other actors, or whether it goes beyond what is permissible under the Convention. As pointed out above, this raises the question of what ‘standard of review’ courts and tribunals ought to apply.78 Also known as the ‘margin of appreciation’ in other contexts,79 it concerns the degree of deference shown by a court or tribunal to the discretion of State authorities in the exercise of their powers. In determining the standard of review, the governance function of dispute settlement manifests itself in the need to consider how the wider range of interests involved may be affected, as illustrated by the examples discussed above. The ‘prospective’ dimension of the exercise of judicial jurisdiction is particularly pertinent here, as the criteria that courts and tribunals develop for how these balancing principles are to be applied will have implications for future applications of those principles. Open-ended balancing principles grant adjudicators leeway to take account of evolving norms and interests on a case-by-case basis. At the same time, this ‘open-ended-ness’ also comes with the risk that too much opacity in judicial reasoning, or too much divergence between judges and arbitrators in the standard of review applied, may raise questions of legitimacy when adjudicators are perceived to replace coastal States’ discretion with their own.80In particular in the case law dealing with the exercise of coastal State powers in the EEZ, a lack of sufficiently clear reasoning as to the criteria that inform the standard of review has triggered some critique.81 Across the board, it has been observed that LOSC case law tends to reflect a more permissive approach to assessing the exercise of prescriptive jurisdiction by coastal States, and a more restrictive and textual approach in respect of enforcement jurisdiction – which mirrors the balance between coastal State and flag State powers reflected in the EEZ regime more broadly.82 Yet, LOSC courts and tribunals have occasionally also read balancing principles into provisions that do not explicitly contain them. In M/V Virginia G, the ITLOS considered that the principle of ‘reasonableness’, which is only found explicitly in Article 73(2) in connection to prompt release, applies generally to enforcement measures in the EEZ under Article 73 of the Convention.83 The arbitral tribunal in Duzgit Integrity stated that any exercise of enforcement power on the basis of the Convention ‘is also governed by certain rules and principles of general international law, in particular the principle of reasonableness’, which ‘encompasses the principles of necessity and proportionality’.84 In the latter case, the result was that the arbitral tribunal effectively read these principles into Article 49(3) concerning the sovereign rights of archipelagic States without much clarification as to their normative content, thereby arguably widening the scope of review, and potentially even the types of cases that might be brought under this article.85These various applications of open-ended balancing principles in practice illustrate that the standard of review often proves contentious. A balance needs to be struck between the bilateral, retrospective dimension of dispute settlement, and the prospective, more ‘public’ dimension. As part of the latter, governance considerations not only come into play in relation to wider implications and (community) interests that may need to be taken into account, but also in the need for adjudicators to carefully consider and motivate the criteria on which the eventual balance is struck – thereby enhancing the legitimacy of the judicial balancing exercise for present and future cases.Governance beyond the Parties to a DisputeThe cases referred to in the preceding discussion illustrate that disputes under the LOSC often involve the interests of a wider range of actors beyond the States that are party to the dispute.86 These may include non-State actors, such as ship owners, fishing companies, maritime service providers, multinational corporations involved in continental shelf exploitation, or, as seen in Arctic Sunrise, NGOs and crew members, whose rights and interests may be directly or indirectly implied. Disputes under the LOSC may furthermore touch on the mandates of different international organisations. The ITLOS in particular arguably has a governance function in relation to other institutions established by the LOSC: the Commission on the Limits of the Continental Shelf (CLCS) and the International Seabed Authority (ISA). Indeed, ITLOS has clarified its relation vis-à-vis the mandate of the CLCS in Bangladesh/Myanmar,87 which was subsequently relied on by an Annex VII tribunal and the ICJ.88 The ITLOS Seabed Disputes Chamber clarified the position of the Council of the ISA in the Seabed Advisory Opinion, ‘mindful of the fact that by answering the questions it will assist the Council in the performance of its activities and contribute to the implementation of the Convention’s regime’.89A governance function can furthermore be observed in the wider influence that judicial pronouncements have on other States Parties to the Convention that are not party to the dispute. Any authoritative judicial interpretation of a State’s rights or obligations under a treaty may of course have implications for the rights and obligations of other States Parties under that agreement, which is true in general. What is relatively unique about the LOSC’s compulsory dispute settlement mechanism is that it is also available for disputes relating to shared interests and obligations erga omnes, for example those relating to high seas fisheries management or obligations to protect the marine environment.90 For the establishment of jurisdiction under Article 288 it is not explicitly required that the applicant State acts exclusively in defence of its own rights or interests. It merely requires a disagreement ‘concerning the interpretation and application’ of the Convention. Wolfrum argues that ‘allowing a case to be filed without the necessity to prove that individual interests of the applicant State are at stake would be in line with a literal interpretation as well as with the general community orientation of the Convention’.91 There are no examples yet of a State bringing a case under Part XV purely in the public interest. In practice, there will inevitably be a combination of individual and community interest at play, regardless of how the submissions are framed. In the Chagos Arbitration, the United Kingdom argued it was acting in the common interest of biodiversity preservation by establishing a no-take marine protected area (MPA) around the Chagos archipelago, despite Mauritius’ objection thereto.92 It was not the goal of the MPA measure as such that led the tribunal to conclude that the United Kingdom had breached its obligations under the LOSC, but the failure to consult Mauritius in the process meant that the United Kingdom failed to properly ‘balance its own rights and interests with Mauritius’ rights’.93 This points back to the administrative nature of the balancing exercise that is involved in the application of many obligations under the Convention.ConclusionThe preceding discussion has sought to map the different ways in which the governance function of compulsory dispute settlement under the LOSC manifests itself in guarding the internal and external normative coherence of the legal order for the ocean and in giving effect to a wider range of (community) interests beyond the parties to a single dispute. In addition to these various manifestations of the governance function in the actual exercise of judicial jurisdiction, the mere existence of compulsory procedures under Part XV arguably also fulfils a governance function through its ‘contraceptive effect’.94 In other words, the ‘threat’ of litigation may discourage the exercise of creeping jurisdiction by States, or provide an incentive for disputes to be settled through negotiation instead. This aspect of the governance function aligns with the strong emphasis on (regional) cooperation in the implementation and further development of the legal order for the ocean that can be found throughout the Convention.95From the ‘constitutional’ character of the Convention, including its numerous features that are of a ‘public law’ nature, it can be deducted that the governance function is part of the object and purpose of Part XV, and it has indeed fulfilled this function in practice – in ways both foreseen and unforeseen by the drafters. How ‘effectively’ LOSC courts and tribunals can be said to have exercised this function, whether its reach has stretched too far or not far enough, is ultimately in the eye of the beholder. Yet, any exercise of judicial discretion is limited by functional and jurisdictional constraints, imposed by the text of the Convention and by how States Parties and adjudicators themselves view their function at any given time. The need to strike a balance between the at times conflicting demands of protecting and progressively developing the legal order for the ocean in light of changing circumstances and normative expectations over time also underlines the need for adjudicators to be mindful of those constraints and to motivate the scope and conditions for the exercise of judicial jurisdiction in any particular case. Ultimately, both the legal order for the ocean and the compulsory dispute settlement system depend on the continued willingness of States to participate in it, uphold it, and comply with it. Or as Miron puts it, ‘their trust in the system is as essential as is the establishment of a judicial guardianship’.96Thus far, at the milestone of forty, the evidence of this continued willingness looks quite promising,97 despite some notable exceptions.98 That said, the compulsory dispute settlement system, framed here in terms of its broader ‘governance’ function, may have yet to face its litmus test when disputes involving complex contemporary issues such as climate change, human rights at sea, or novel types of extractive activities start to make their way through the channels of Part XV. As one ought to look forward to a next major anniversary, it will be interesting to see how the governance function evolves and what the legal order for the ocean will look like for the LOSC at fifty. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The International Journal of Marine and Coastal Law Brill

Reflections on the Governance Function of Compulsory Dispute Settlement in the Legal Order for the Ocean

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Brill
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Copyright © Koninklijke Brill NV, Leiden, The Netherlands
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0927-3522
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1571-8085
DOI
10.1163/15718085-bja10122
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Abstract

Introduction1The drafters of the United Nations Convention on the Law of the Sea (LOSC),2 according to its preamble, sought to establish ‘a legal order for the seas and oceans’. While the LOSC’s honorary title of ‘constitution for the oceans’ has become somewhat of a truism, its package deal nature and the resultant normative and institutional structure can indeed be characterised in ‘constitutional’3 or ‘public law’ terms.4 The compulsory dispute settlement procedures contained in Part XV of the Convention are a key part of that package, and have been hailed as one of its most ‘significant achievements’.5 The drafters thus accorded an important role to compulsory dispute settlement in maintaining the legal order for the ocean. The term ‘legal order’ is maintained deliberately for the present purposes, because it captures and connects three important aspects: the object and purpose of the LOSC to provide the overarching legal framework for this legal order; the more general idea that one can only speak of a legal ‘order’ when the norms that make up this order relate to each other in some way;6 and the understanding of a legal order as something that is inherently dynamic and adaptive (akin to a ‘living constitution’).7 The purposes of compulsory dispute settlement under Part XV can be summarised as corresponding to each of these aspects: maintaining and protecting the balance of interests struck by the LOSC; providing authoritative interpretations on how norms relate to one another and to the broader normative context; and, when relevant, progressively developing the regime to adapt to changing interests and circumstances.8 That does not mean that these different objectives are always easily reconciled. As courts and tribunals are faced with increasingly complex disputes and changing circumstances beyond what was foreseen by the drafters, finding a balance between protecting and progressively developing of the legal order can be perceived as a straddle.This article takes the occasion of the Convention’s fortieth anniversary as an opportunity to reflect on the role that compulsory dispute settlement has played in maintaining the legal order for the ocean. It will not venture onto the slippery slope of assessing whether after forty years Part XV can be said to have lived up to the expectations of its drafters. Not only would that require an empirical enquiry beyond the scope of this contribution, more importantly, as times and circumstances change, expectations change. A stock-taking exercise may thus more usefully be informed by broader normative considerations that span across time. The compulsory dispute settlement system under Part XV is after all expected – both by its drafters and the relevant community of States Parties at any given point in time – to fulfil certain functions. These functions will be the focal point of the present analysis. More specifically, it is posited that compulsory jurisdiction under Part XV enables and arguably requires LOSC courts and tribunals to exercise an important ‘governance function’,9 in addition to the more traditional understandings of the interconnected ‘dispute settlement’, ‘fact-finding’ and ‘law-ascertainment/law-making’ functions of international courts and tribunals.10The governance function broadly articulates the observation that adjudicators (intentionally or unintentionally) also influence States and other actors beyond those that are party to a particular dispute, and may need to be mindful of wider (community) interests and normative coherence within and beyond and the confines of a specific part of a regime. The governance function is thus polycentric and may manifest itself in a variety of ways, reflective of broader structural developments in the international legal order associated with procedural ‘constitutionalisation’, international public law, and global administrative law.11 More specifically for the present purposes, it resonates with particular constitutional and administrative law features of the LOSC. This article uses the governance function as an analytical frame to identify and assess the different ways in which it is reflected in the use and exercise of compulsory jurisdiction under Part XV to date – be that in ways intended or unintended by the drafters. The aim is to shed light on the multifaceted role of compulsory dispute settlement in maintaining the legal order for the ocean in a way that accounts for the changing expectations of States Parties over time. The article does not purport to be exhaustive of forty years of LOSC jurisprudence, instead, it offers a three-fold typology of (non-exclusive) ways in which the governance function manifests itself in compulsory dispute settlement under the LOSC. The discussion follows these three lines of enquiry. First, a variety of ways in which the compulsory dispute settlement system contributes to normative coherence in the legal order for the ocean, both within the Convention itself and between the Convention and its broader normative context, will be identified. The second part turns to specific governance functions that flow directly from substantive provisions of the Convention and the limitations thereto. Drawing on the preceding analysis, the third part will consider the ways in which the governance function can be understood to reach beyond the parties to a dispute.The Governance Function of the Compulsory Dispute Settlement System: Normative CoherenceCompulsory dispute settlement plays an important role in maintaining normative coherence and enhancing systemic integration within the legal order for the ocean. Indeed, a key rationale for adopting Part XV in its present form was to ensure the effectiveness of the substantive bargains struck under the Convention, and to provide a central mechanism for authoritative interpretation of the Convention.12 That does not mean that the reach of compulsory procedures under Part XV is fully comprehensive, nor have all available procedures been used in practice.13 As the drafters could not agree on a single adjudicatory forum, Part XV leaves States a choice between the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), ad hoc arbitration under Annex VII, or special arbitration under Annex VIII.14 These LOSC courts and tribunals can, in principle, exercise compulsory jurisdiction over ‘any dispute concerning the interpretation or application of the Convention’,15 with a number of limitations and optional exceptions.16 It is noteworthy that the initial fears voiced by some commentators that the choice of different judicial fora under Part XV would lead to fragmentation of both substantive law and procedure was not a particular concern of the drafters,17 nor has it materialised in practice. An overall trend towards coherence and cross-fertilisation between the jurisprudence of different LOSC courts and tribunals, rather than fragmentation thereof, is widely observed.18 The term ‘coherence’ for present purposes denotes this overall discernible trend and aim, that is not to say that case law under the LOSC is free of ambiguities or inconsistencies. The following discussion identifies factors that contribute to this trend at the level of the LOSC ‘internally’, as well as ‘externally’ in its relationship with the broader normative order.Internal Coherence within the LOSCThe availability of compulsory dispute settlement has a function in guarding the internal normative coherence and uniform interpretation of the Convention. On a procedural level, it may be noted that the possibility of forum shopping among the different LOSC courts and tribunals under Part XV does not necessarily impede this function. Afterall, States may have different reasons for choosing one forum over the other, not in the least the significantly higher costs involved in arbitration for example. In certain types of cases, ITLOS, as a permanent specialist tribunal, may furthermore be considered a ‘more predictable commodity’,19 or more authoritative than an Annex VII tribunal, to rule on questions that are of relevance to the functioning of the Convention on a more structural or institutional level.20 In addition, ITLOS has a track record of hearing and deciding on cases relatively quickly. The flexibility provided in the choice of procedure under Part XV may actually cater for different and changing needs of States in a way that bolsters the broader public function of compulsory dispute settlement.In terms of substantive coherence in the interpretation and application of the Convention, the concept of ‘acquis judiciaire’ has been used to describe the ‘gradual building of a uniform law through the reiteration of and cross-referral to existing judicial decisions’ among LOSC courts and tribunals.21 While this requires nuance in that the acquis is better established for some parts of the Convention than others – inevitably those that have more frequently been subject to adjudication, such as maritime boundary delimitations,22 obligations to protect the marine environment,23 or prompt release,24 – it articulates the mindfulness and active role of judges in guarding normative coherence within a legal system. Contrary to the concepts of ‘precedent’ or ‘settled jurisprudence’, which can be seen as static, acquis judiciaire is understood as an evolving process in which courts and tribunals may also be called upon to progressively develop the acquis.25 This is important because, as noted above, a ‘legal order’ for the ocean not only implies a system of norms that coherently relate to one another, but also one that is adaptive in response to changing needs over time. Furthermore, in terms of the governance function of dispute settlement, a growing acquis judiciaire may have a self-perpetuating function in that it strengthens substantive normative coherence within the LOSC, while at the same time guiding judicial reasoning by appealing to the ‘adjudicators’ conscience of belonging to a unified system of law’.26Finally, there are certain developments in the practice of adjudication under Part XV that may also contribute to the overall trend towards coherence, including adjudicators’ ‘conscience’ in that respect. For example, the parties in Annex VII arbitration each nominate an arbitrator of their choice and appoint the remaining arbitrators on the panel by agreement. When no such agreement can be reached, as is often the case, the President of the ITLOS will appoint the other members of the panel.27 As a result, panels often consist of present or former ITLOS judges, thereby closely resembling a special chamber of the ITLOS with one judge ad hoc appointed by each party. Boyle suggests that this interchange between the ITLOS and Annex VII arbitration may actually promote substantive coherence and consistency in the jurisprudence, and strengthen the role and legitimacy of both the Tribunal and arbitral panels.28External Coherence: The LOSC and BeyondThe ‘external’ dimension of normative coherence in the legal order for the ocean, that is, of the Convention within its wider normative context, is facilitated by the drafters in various ways. On the level of substantive provisions, the Convention contains ample provisions that expressly refer to ‘other rules of international law’,29 or even directly incorporates external rules and standards through so-called ‘rules of reference’.30 The role of dispute settlement in guarding external coherence is, however, not limited to instances where courts and tribunals are called upon to apply such provisions. Importantly, attention for normative coherence comes to the fore in the general method of judicial interpretation. Much attention has been paid in international legal scholarship to Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) as a ‘de-fragmentation’ tool,31 yet the LOSC’s applicable law provision in Article 293(1) provides what could be seen as a lex specialis thereto: stating that courts and tribunals with jurisdiction under Part XV ‘shall apply this Convention and other rules of international law’ not incompatible with it. Article 293 is of course no panacea. Managing normative interactions through judicial interpretation takes place within the limits of the general rules on treaty interpretation.32 Furthermore, Article 293 cannot be used as a ‘backdoor’ to expand jurisdiction ratione materiae. A LOSC court or tribunal cannot directly apply external norms in cases where no jurisdiction to do so has first been established. This distinction, however, has not always been upheld so clearly by LOSC courts and tribunals in practice, and has triggered criticism on various occasions.33The question of applicable law should be separated from the question of jurisdiction and the associated power to exercise ‘incidental jurisdiction’ over ancillary non-LOSC issues when this is necessary to resolve the dispute at hand.34 It falls within the discretion of the court or tribunal to ‘objectively’ identify the ‘real issue’ at stake and the ‘object of the claims’ submitted to it,35 but this is a question of jurisdiction and not of applicable law. While this issue initially mainly arose in so-called ‘mixed disputes’ (a law of the sea dispute involving a concurrent unsettled territorial sovereignty dispute),36 it has since arisen in connection with claims concerning, inter alia, the use of force, immunities, human rights, environmental law, and may in principle arise in any case that touches on non-LOSC issues. This underlines the breadth and (growing) complexity of the broader legal order for the ocean, and thereby also of the governance function of LOSC courts and tribunals in this respect. Indeed, several examples can be found in recent cases of States invoking violations of external instruments in addition to or in support of alleged violations of the LOSC.37 In the South China Sea Arbitration, the Philippines submitted that China’s toleration of destructive fishing methods violated obligations under both the LOSC and the Convention on Biological Diversity (CBD).38 The tribunal considered that the Philippines had not ‘presented a claim arising under the CBD as such’39 and was accordingly satisfied that Article 293(1) of the LOSC, together with Article 31(3)(c) of the VCLT enabled it to ‘consider the relevant provisions of the CBD for the purposes of interpreting the content and standard of Articles 192 and 194 of the Convention’.40 In the Arctic Sunrise Arbitration, the Netherlands claimed that Russia had violated various human rights obligations under customary international law and the International Covenant on Civil and Political Rights in arresting the Greenpeace vessel Arctic Sunrise and its crew.41 The arbitral tribunal made it very clear that regard may be had to human rights law in assessing the reasonableness and proportionality of coastal State enforcement actions, but that this would be ‘to interpret the relevant Convention provisions by reference to relevant context’ pursuant to Article 293.42 The tribunal expressly stated that it did not have jurisdiction to apply these human rights provisions directly or to establish breaches thereof.43 Article 293 thus ‘ensures that a tribunal can give full effect to the provisions of the Convention’44 within their broader normative context. It should be noted that Article 293 does create a normative hierarchy to the extent that the Convention prevails in case of a conflict between the LOSC and other rules of international law.45 Or in other words, recourse to external norms for the purposes of interpretation cannot lead to a result that goes against the object and purpose of (provisions of) the Convention.The compulsory dispute settlement system enables LOSC courts and tribunals to fulfil a governance function by guarding and enhancing the ‘internal’ and the ‘external’ normative coherence of the Convention. This is effectuated both on the procedural level and through interpretative methods and the development of a growing acquis judiciaire, which in turn arguably strengthens the position and legitimacy of dispute settlement bodies themselves.46 It has been suggested that (interpretative) arguments based on coherence tend to carry particular authoritative weight.47 Courts and tribunals that are aware of their own position in shaping the broader legal order of the ocean thereby arguably also help to enhance the legitimacy of that legal order.48Specific Governance Functions Flowing from Substantive ProvisionsThere are a number of specific governance functions of compulsory dispute settlement that could be seen as purposefully created by the drafters in the sense that they flow directly from substantive provisions of the Convention and the design of Part XV. First of all, these can be identified on the procedural level in Part XV where it assigns an ‘administrative role’ to the ITLOS for types of disputes over which it has exclusive jurisdiction, in the case of the Seabed Disputes Chamber,49 or default jurisdiction in cases of provisional measures50 and applications for prompt release of vessels and crews.51 The bulk of the early caseload of the ITLOS consisted of applications for prompt release, making it a good example of an area where the Tribunal has developed an acquis judiciaire.52 The fact that the stream of applications for prompt release has effectively dried up since 2007 might even suggest that the Tribunals’ job is pretty much done in this respect.53 Prompt release jurisprudence is discussed in more detail below as it also provides an illustration of the second way in which governance functions flow from the text of the Convention, namely through substantive provisions that include open-ended balancing principles.54Provisions that qualify the exercise of certain rights by reference to principles such as ‘reasonableness’, or the obligation to have ‘due regard’ to the rights of other States, impose an administrative law-like review function on courts and tribunals having to interpret and apply them. While this function as such was foreseen by the drafters, it was not determined exactly what ‘standard of judicial review’ courts or tribunals ought to apply in concrete cases. This is where things can get contentious as States’ expectations as to the degree of deference shown to particular interests differ and evolve. In addition to the more ‘bilateral’ and retrospective function of these provisions that requires a balance of interests to be struck between the parties to a particular dispute, there is arguably also a ‘public’ and more prospective function inherent in the exercise of judicial jurisdiction in these types of cases, as courts and tribunals anticipate future situations in which the same open-ended principles will have to be applied again.55 Some examples will be discussed to illustrate how this open-ended balancing exercise enables or even requires dispute settlement bodies to exercise a governance function, while at the same time imposing limitations thereon.Governance Function via Open-ended Balancing PrinciplesA key balancing principle that is found recurrently throughout the Convention is the obligation to have ‘due regard’ to the rights and duties of other States. The term ‘due regard’ is found explicitly in the regimes of the exclusive economic zone (EEZ) and the high seas, yet an obligation to be ‘other regarding’ in the exercise of rights under the Convention extends throughout the various maritime zones.56The duty of due regard entails a positive obligation for States to engage in a ‘balancing exercise’,57 but it is ‘open-ended’ in the sense that it depends on the circumstances of a specific case which duties exactly are ‘due’.58 As a balancing mechanism, its function is not limited to mediating conflicting interests between two States on a strictly bilateral basis, but may include (by implication or directly) the consideration of other actors’ interests or wider community interests.59 For example, in interpreting the coastal State’s duty of due regard under Article 56(2), the tribunal in Arctic Sunrise had to balance the right of the coastal State to take measures necessary to protect its sovereign rights in the EEZ with the right of Greenpeace activists on board the Dutch-flagged Arctic Sunrise to protest at sea. The tribunal considered protest at sea to be an ‘internationally lawful use of the sea related to the freedom of navigation’, derived from the freedom of expression and the freedom of assembly as protected under human rights instruments to which both States were parties.60 The tribunal then read into the obligation of due regard under Article 56(2) the requirement that coastal State measures aimed at protecting its sovereign rights must ‘fulfil the tests of reasonableness, necessity, and proportionality’.61 Where the exercise of sovereign rights, jurisdiction, and freedoms across the Convention is qualified by open-ended balancing principles like due regard, subjecting these obligations to compulsory dispute settlement is not only a tool to bilaterally (and retrospectively) protect the rights of one State Party against the alleged excessive exercise of jurisdiction by another, it also serves a broader public governance function in (prospectively) guarding the balance of competing interests in ocean space.Another, more narrowly circumscribed, balancing principle is applied in prompt release cases. The ITLOS has to assess the ‘reasonableness’ of the bond set by the coastal State for the release of a vessel and crew that have been detained on suspicion of illegal fishing, pollution or dumping offences in the coastal State’s EEZ.62 Over time, ITLOS’ prompt release jurisprudence has developed a relatively predictable set of relevant factors to assess the reasonableness of bonds, while emphasising the contextual and case-dependent nature of this balancing principle.63 Given the limited scope and specific purpose of prompt release proceedings, the ITLOS has taken a restrictive approach to the balancing act involved.64 Nevertheless, considerations based on norms external to the Convention have been taken into account, as is reflected for example in the Tribunal’s statement that the obligation of prompt release includes ‘elementary considerations of humanity and due process of law’ and ‘a concern for fairness’.65 In stressing that a decision to confiscate a vessel should not be taken through proceedings ‘inconsistent with international standards of due process of law’, the Tribunal has furthermore (indirectly) taken the rights and interests of crews and shipowners into account.66At the same time, examples can be found where the Tribunal was criticised for not giving enough effect to its governance function. In the Volga case, the balance of interests struck by the Tribunal proved particularly contentious, exactly because the Tribunal, according to many observers, had given insufficient consideration to the wider implications flowing from this case. Australia had arrested and detained the Russian-flagged Volga for illegal fishing in its EEZ, and argued that its obligations to combat illegal, unreported and unregulated (IUU) fishing under the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR)67 were relevant in determining the gravity of the alleged offence, and thus the reasonableness of the bond. This argument was rejected by the majority of the Tribunal.68 Australia had made the financial bond subject to two conditions: that the vessel carries a vessel monitoring system and that information regarding the vessel’s beneficial owners, directors of the holding company and underwriters be provided to the Australian authorities, which Australia justified by reference to the persistent serious problems with IUU fishing in the Southern Ocean, and the implications thereof for fisheries management more broadly.69 The Tribunal took a restrictive approach to interpreting the term ‘bond or other security’ in Article 73(2) as limited to those of a ‘financial nature’ only.70 It did not consider Australia’s ‘good behaviour bond’ (the purpose of which was to prevent future violations) to fall within the meaning of this term.71 Dissenting opinions condemned this interpretation as too narrow,72 and commentators widely criticised the Volga decision for shifting the balance too far in favour of the flag State, to the detriment of coastal State rights and obligations to protect living resources in the EEZ and to cooperate in their conservation, including under important regional regimes such as CCAMLR.73 While the Tribunal’s textual approach to interpretation in this case may not be indefensible per se,74 the essence of the critique speaks to the fact that ‘a new balance’ ought to have been found between, on the one hand, vessel owners, operators and fishing companies, and the coastal State on the other hand.75 In other words, in the light of contemporary challenges related to IUU fishing, expectations as to how the balance of interests ought to be struck – even in the limited context of prompt release – had apparently evolved.76 That said, the limited scope of prompt release jurisdiction should be borne in mind, and exactly because of this limited scope the Tribunal may have considered itself more restricted in its interpretative discretion. In interpreting and applying open-ended balancing principles, the degree of deference shown to the coastal State also determines the scope of the governance function of the Tribunal.Limitations: Standard of ReviewWhen called upon to apply any of the open-ended balancing principles discussed above, the role of courts and tribunals is arguably somewhat different in character from other instances of treaty interpretation in that it closely resembles administrative review.77 Essentially, the role of a court or tribunal is to ‘review’ the exercise of State powers and determine whether it meets the minimum standard of care required vis-à-vis other actors, or whether it goes beyond what is permissible under the Convention. As pointed out above, this raises the question of what ‘standard of review’ courts and tribunals ought to apply.78 Also known as the ‘margin of appreciation’ in other contexts,79 it concerns the degree of deference shown by a court or tribunal to the discretion of State authorities in the exercise of their powers. In determining the standard of review, the governance function of dispute settlement manifests itself in the need to consider how the wider range of interests involved may be affected, as illustrated by the examples discussed above. The ‘prospective’ dimension of the exercise of judicial jurisdiction is particularly pertinent here, as the criteria that courts and tribunals develop for how these balancing principles are to be applied will have implications for future applications of those principles. Open-ended balancing principles grant adjudicators leeway to take account of evolving norms and interests on a case-by-case basis. At the same time, this ‘open-ended-ness’ also comes with the risk that too much opacity in judicial reasoning, or too much divergence between judges and arbitrators in the standard of review applied, may raise questions of legitimacy when adjudicators are perceived to replace coastal States’ discretion with their own.80In particular in the case law dealing with the exercise of coastal State powers in the EEZ, a lack of sufficiently clear reasoning as to the criteria that inform the standard of review has triggered some critique.81 Across the board, it has been observed that LOSC case law tends to reflect a more permissive approach to assessing the exercise of prescriptive jurisdiction by coastal States, and a more restrictive and textual approach in respect of enforcement jurisdiction – which mirrors the balance between coastal State and flag State powers reflected in the EEZ regime more broadly.82 Yet, LOSC courts and tribunals have occasionally also read balancing principles into provisions that do not explicitly contain them. In M/V Virginia G, the ITLOS considered that the principle of ‘reasonableness’, which is only found explicitly in Article 73(2) in connection to prompt release, applies generally to enforcement measures in the EEZ under Article 73 of the Convention.83 The arbitral tribunal in Duzgit Integrity stated that any exercise of enforcement power on the basis of the Convention ‘is also governed by certain rules and principles of general international law, in particular the principle of reasonableness’, which ‘encompasses the principles of necessity and proportionality’.84 In the latter case, the result was that the arbitral tribunal effectively read these principles into Article 49(3) concerning the sovereign rights of archipelagic States without much clarification as to their normative content, thereby arguably widening the scope of review, and potentially even the types of cases that might be brought under this article.85These various applications of open-ended balancing principles in practice illustrate that the standard of review often proves contentious. A balance needs to be struck between the bilateral, retrospective dimension of dispute settlement, and the prospective, more ‘public’ dimension. As part of the latter, governance considerations not only come into play in relation to wider implications and (community) interests that may need to be taken into account, but also in the need for adjudicators to carefully consider and motivate the criteria on which the eventual balance is struck – thereby enhancing the legitimacy of the judicial balancing exercise for present and future cases.Governance beyond the Parties to a DisputeThe cases referred to in the preceding discussion illustrate that disputes under the LOSC often involve the interests of a wider range of actors beyond the States that are party to the dispute.86 These may include non-State actors, such as ship owners, fishing companies, maritime service providers, multinational corporations involved in continental shelf exploitation, or, as seen in Arctic Sunrise, NGOs and crew members, whose rights and interests may be directly or indirectly implied. Disputes under the LOSC may furthermore touch on the mandates of different international organisations. The ITLOS in particular arguably has a governance function in relation to other institutions established by the LOSC: the Commission on the Limits of the Continental Shelf (CLCS) and the International Seabed Authority (ISA). Indeed, ITLOS has clarified its relation vis-à-vis the mandate of the CLCS in Bangladesh/Myanmar,87 which was subsequently relied on by an Annex VII tribunal and the ICJ.88 The ITLOS Seabed Disputes Chamber clarified the position of the Council of the ISA in the Seabed Advisory Opinion, ‘mindful of the fact that by answering the questions it will assist the Council in the performance of its activities and contribute to the implementation of the Convention’s regime’.89A governance function can furthermore be observed in the wider influence that judicial pronouncements have on other States Parties to the Convention that are not party to the dispute. Any authoritative judicial interpretation of a State’s rights or obligations under a treaty may of course have implications for the rights and obligations of other States Parties under that agreement, which is true in general. What is relatively unique about the LOSC’s compulsory dispute settlement mechanism is that it is also available for disputes relating to shared interests and obligations erga omnes, for example those relating to high seas fisheries management or obligations to protect the marine environment.90 For the establishment of jurisdiction under Article 288 it is not explicitly required that the applicant State acts exclusively in defence of its own rights or interests. It merely requires a disagreement ‘concerning the interpretation and application’ of the Convention. Wolfrum argues that ‘allowing a case to be filed without the necessity to prove that individual interests of the applicant State are at stake would be in line with a literal interpretation as well as with the general community orientation of the Convention’.91 There are no examples yet of a State bringing a case under Part XV purely in the public interest. In practice, there will inevitably be a combination of individual and community interest at play, regardless of how the submissions are framed. In the Chagos Arbitration, the United Kingdom argued it was acting in the common interest of biodiversity preservation by establishing a no-take marine protected area (MPA) around the Chagos archipelago, despite Mauritius’ objection thereto.92 It was not the goal of the MPA measure as such that led the tribunal to conclude that the United Kingdom had breached its obligations under the LOSC, but the failure to consult Mauritius in the process meant that the United Kingdom failed to properly ‘balance its own rights and interests with Mauritius’ rights’.93 This points back to the administrative nature of the balancing exercise that is involved in the application of many obligations under the Convention.ConclusionThe preceding discussion has sought to map the different ways in which the governance function of compulsory dispute settlement under the LOSC manifests itself in guarding the internal and external normative coherence of the legal order for the ocean and in giving effect to a wider range of (community) interests beyond the parties to a single dispute. In addition to these various manifestations of the governance function in the actual exercise of judicial jurisdiction, the mere existence of compulsory procedures under Part XV arguably also fulfils a governance function through its ‘contraceptive effect’.94 In other words, the ‘threat’ of litigation may discourage the exercise of creeping jurisdiction by States, or provide an incentive for disputes to be settled through negotiation instead. This aspect of the governance function aligns with the strong emphasis on (regional) cooperation in the implementation and further development of the legal order for the ocean that can be found throughout the Convention.95From the ‘constitutional’ character of the Convention, including its numerous features that are of a ‘public law’ nature, it can be deducted that the governance function is part of the object and purpose of Part XV, and it has indeed fulfilled this function in practice – in ways both foreseen and unforeseen by the drafters. How ‘effectively’ LOSC courts and tribunals can be said to have exercised this function, whether its reach has stretched too far or not far enough, is ultimately in the eye of the beholder. Yet, any exercise of judicial discretion is limited by functional and jurisdictional constraints, imposed by the text of the Convention and by how States Parties and adjudicators themselves view their function at any given time. The need to strike a balance between the at times conflicting demands of protecting and progressively developing the legal order for the ocean in light of changing circumstances and normative expectations over time also underlines the need for adjudicators to be mindful of those constraints and to motivate the scope and conditions for the exercise of judicial jurisdiction in any particular case. Ultimately, both the legal order for the ocean and the compulsory dispute settlement system depend on the continued willingness of States to participate in it, uphold it, and comply with it. Or as Miron puts it, ‘their trust in the system is as essential as is the establishment of a judicial guardianship’.96Thus far, at the milestone of forty, the evidence of this continued willingness looks quite promising,97 despite some notable exceptions.98 That said, the compulsory dispute settlement system, framed here in terms of its broader ‘governance’ function, may have yet to face its litmus test when disputes involving complex contemporary issues such as climate change, human rights at sea, or novel types of extractive activities start to make their way through the channels of Part XV. As one ought to look forward to a next major anniversary, it will be interesting to see how the governance function evolves and what the legal order for the ocean will look like for the LOSC at fifty.

Journal

The International Journal of Marine and Coastal Law – Brill

Published: Mar 20, 2023

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