碩士論文
Graduate Institute of Law College of Law
National Taiwan University Master Thesis
論《聯合國海洋法公約》爭端解決之強制管轄範圍：
以領土主權歸屬爭端為中心
The Limits of Subject-matter Jurisdiction in UNCLOS Compulsory Dispute Settlement: An
Analysis of Territorial Sovereignty Disputes
魏惇婷
Duen-Ting Wei
指導教授：姜皇池 博士
Advisor: Huang-Chih Chiang, Ph.D.
中華民國 108 年 7 月 July 2019
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A CKNOWLEDGMENTS
This thesis is the product of tremendous support and love from closed ones.
Deepest gratitude to Professor Huang-Chih Chiang, who has been the most instructive and generous advisor since day one. Professor Chiang’s constant encouragement and guidance have helped me in overcoming countless difficulties throughout the past four years. Professor Chiang is the epitome of a true mentor. Without his advice and utmost support, I would not have been able to pass the Bar Exam and work on this thesis.
I am beyond honored to have Professor Chen-Ju Chen and Professor Yu-Tsang Wu as members of the advisory committee. I am very thankful to Professor Chen and Professor Wu for their valuable time and consideration given to this thesis. Their intellectual contribution is significant to the improvement and completion of this thesis.
I would like to express my immense appreciation for SCU Jessupers. Fellow Jessupers have been the best companions on this journey and a ray of sunshine.
I would not have pursued studies in public international law were it not for the rewarding experiences with teammates of Jessup 2012 & 2014.
Thanks to Ian (Chao-Wei) Chen and Jeffrey (Chien-Yu) Long for their feedback and help in preparing for my oral defense. Special thanks to Howard J.S. Li for supporting me from an ocean away. I would also like to thank my bestie, Mitch Lai, for cheering me on and coming to the rescue when research materials were nowhere to be found within the country.
Grateful beyond words to P.H. LIAO, who has had my back come rain or shine and through thick and thin. I have learned and grown so much from and with P.H. since our paths crossed.
Finally, I am thankful to my family, especially Lily, for their unconditional love and support.
A BSTRACT
It is a commonly advanced view that disputes of territorial sovereignty are not subject to the compulsory dispute settlement regime under Part XV of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). However, in the recent 2015 Chagos Arbitration and 2016 South China Sea Arbitration, the question became the focus of both arbitral awards and has generated heated debate on whether issues of land sovereignty are subject to the subject-matter jurisdiction of Section 2 (compulsory procedures entailing binding decision) under Part XV of UNCLOS.
Among the various arguments put forth in legal scholarship, few have referred and adhered rigorously to rules of treaty interpretation when interpreting relevant jurisdictional provisions of UNCLOS. A number of academic discussions focus on land sovereignty issues in the context of “mixed disputes,”
which refers to either dispute exclusively concerning maritime delimitation and territorial sovereignty or disputes concerning both UNCLOS and non-UNCLOS issues, which are often exemplified by maritime delimitation disputes. However, land sovereignty disputes may raise preliminary questions of jurisdiction in both (pure) territorial sovereignty disputes and mixed disputes. The arguments put forth by Mauritius and the UK in the 2015 Chagos Arbitration are an indication of such distinction.
The main task of the thesis is to determine whether and to what extent are territorial sovereignty disputes excluded from compulsory jurisdiction. It seeks to tackle the controversial issue at its root by conducting a construction of UNCLOS Article 288(1) in light of the rule of treaty interpretation under international law. The thesis then delves into how international courts and tribunals tackle disputes concerning land sovereignty. The thesis also analyses whether judicial decisions conform with the interpretation of Article 288(1) and its implications on cases involving land sovereignty brought under compulsory procedures in Section 2 of Part XV UNCLOS.
Keywords: UNCLOS dispute settlement – territorial sovereignty disputes – limitations to compulsory jurisdiction– jurisdiction ratione materiae – Chagos Arbitration – South China Sea Arbitration
中文摘要
國際法學界長期以來多認為《1982 年聯合國海洋法公約》（下稱《公約》）強
制爭端解決機制之事務管轄範圍乃排除「領土主權歸屬爭端」（territorial
sovereignty disputes）。2015 年「查戈斯群島仲裁案」及「南海仲裁案」係目 前依據《公約》強制爭端解決程序並直接且較深入討論《公約》強制爭端解決機 制之事務管轄範圍與「領土主權歸屬爭端」關係之唯二司法判決。此二案件亦開 啟學說間對於領土主權歸屬管轄是否為《公約》強制爭端解決機制之事務管轄範 圍之熱烈討論且眾說紛紜。尤其針對「混合型爭端」（mixed disputes），即同 時涉領土主權歸屬事項及關於《公約》之事項。值得關注者為此二案件中，同樣 係依據《公約》附件七組成之仲裁庭，就兩邊原告看似的相同性質之主張，於認
定其依據公約強制管轄條款第288 條第 1 款有無管轄權時，做出相反之判斷。
考量強制爭端解決機制之「強制」（compulsory）性質特殊，其管轄範圍應謹慎 判斷。尤其，敏感性高之「領土主權歸屬爭端」是否屬《公約》事務管轄範圍極 具爭議性。此爭議之討論彰顯過去採取之立場未必理所當然，而有重新檢視之必
要。此爭議涉及國際法上如何認定《公約》第 288 條第 1 款管轄條款之範圍。
《公約》之本質乃國際條約，就其條文內涵有爭執者，應循國際法上條約解釋原 則加以闡釋。然，討論該管轄條款之多數學說及實務見解鮮少明示其乃依條約解 釋原則為分析，即便是操作條約解釋之論述未嚴格遵循條約解釋原則。
本論文認為，釐清《公約》強制爭端解決機制之事務管轄範圍須回歸條約解釋原 則以尋求締約當事國之真意。是以，本論文將依國際法上確立之條約解釋原則判
斷「領土主權歸屬爭端」是否屬公約管轄條款第 288 條第 1 款之範圍。本論文
試圖整理並分析關於《公約》締結之一手資料和目前學說見解，並實際操作條約 解釋原則於《公約》管轄條款。同時，本論文將分析並觀察「查戈斯群島仲裁案」
及「南海仲裁案」是否與條約解釋結果相符。最後，本文結論認為條約解釋之結 果係《公約》當然排除領土主權歸屬爭端，且不因系單純涉及領土主權爭端或混 合型爭端而異。此外，國際司法實務與條約解釋不一致之情形乃因受訴法院或法 庭具有一定裁量權限，主要系對於解釋《公約》條款、定性原告主張所採原則及 實際適用有相當程度之裁量，而使個案間認定不一致，造成不確定性。本論文認 為往後國際司法判決應循條約解釋原則，使各項解釋元素受到完整考量，使不同 國際法院和法庭間之裁判趨於一致性並具法確定性。
關鍵字：《1982 年聯合國海洋法公約》強制爭端解決機制、事物管轄範圍、領 土主權歸屬爭端、查戈斯群島仲裁案、南海仲裁案
T ABLE OF C ONTENTS
Acknowledgments ... ii
Abstract ... iii
中文摘要 ... v
Chapter I: Introduction ... 1
I. Origin and Purpose of Research ... 1
II. Research Question ... 2
III. Scope and Method of the Research ... 3
A. Scope of the Research ... 3
B. Method of the Research ... 4
IV. Structure of the Research ... 4
V. Terms Used ... 5
A. Mixed Disputes- ... 5
B. UNCLOS disputes/ Non-UNCLOS disputes- ... 6
C. UNCLOS Tribunals- ... 7
Chapter II: Jurisdiction of International Dispute Settlement... 8
I. Introduction ... 8
II. Legal Basis of Jurisdiction ... 8
A. Sovereignty and State Consent ... 8
B. Scope of Jurisdiction ... 11
C. Types of Jurisdiction ... 12
III. Determining the Scope of Subject-Matter Jurisdiction ... 14
IV. Conclusion ...19
Chapter III: UNCLOS Dispute Settlement Regime ...21
I. Part XV of UNCLOS: Dispute Settlement ... 21
A. Background of UNCLOS Dispute Settlement Regime ... 21
B. UNCLOS Dispute Settlement Framework ... 21
C. General Obligation of Pacific Dispute Settlement ... 24
D. Characteristics of UNCLOS Dispute Settlement ... 26
II. UNCLOS Compulsory Dispute Settlement ... 27
A. Introduction ... 28
B. Negotiating History of UNCLOS Dispute Settlement Regime ... 30
C. Compulsory Dispute Settlement Procedures ... 35
III. Conclusion ... 42
Chapter IV: Treaty Interpretation and the Basis of Jurisdiction for Territorial Sovereignty Disputes ... 43
I. Recourse to Treaty Interpretation ... 43
II. The General Rule of Treaty Interpretation ... 45
A. The VCLT Approach to Treaty Interpretation ... 46
III. Academic Debate on Jurisdiction over Territorial Sovereignty Disputes ... 51
A. Academic Literature in Support of Compulsory Jurisdiction over Territorial Sovereignty Disputes ... 52
B. Academic Literature Against Compulsory Jurisdiction over Territorial Sovereignty Disputes ... 55
C. Some Observations of the Debate ... 62
IV. Interpretation of Sources of Jurisdiction over Territorial Sovereignty
Disputes ... 63
A. Article 288(1) ... 64
B. Article 293 ... 71
C. Article 298(1)(a)(i) ... 72
V. Conclusion ... 75
Chapter V: Territorial Sovereignty Disputes in UNCLOS Tribunals ... 78
I. Chagos Arbitration (Mauritius v. UK) ... 78
A. Background of The Chagos Arbitration ... 79
B. Mauritius’ First Submission ... 82
C. Mauritius’ Second Submission ... 93
D. Dissenting Opinion of Judge Wolfrum and Kateka ... 95
E. Analysis ... 97
II. South China Sea Arbitration (the Philippines v. China) ... 100
A. Background of the South China Sea Arbitration... 101
B. Jurisdictional Issue of the Case ... 102
C. Analysis ... 113
III. A Comparative Analysis of the Cases ... 115
Chapter VI: Conclusion ... 118
Bibliography ... 122
C HAPTER I: I NTRODUCTION
I. Origin and Purpose of Research
One of the main issues dealt with by the Permanent Court of Arbitration (PCA) in the 2015 South China Sea Arbitration,1 as well as the 2015 Chagos Archipelago Arbitration,2 was jurisdiction. The South China Sea arbitral award marks the latest rendered judicial decision sparking discussions about the scope of jurisdiction ratione materiae (or subject-matter jurisdiction) under the “Dispute Settlement” regime in Part XV, specifically, the compulsory dispute settlement, of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).3
The jurisdiction clauses of dispute settlement under Part XV of UNCLOS acknowledges voluntary and compulsory dispute settlement mechanisms.
Compulsory dispute settlement under Section 2 of Part XV is of particular importance for it is a mandatory procedure applicable notwithstanding an agreement between the concerned parties to initiate judicial proceedings. Section 2 of Part XV is a not only compulsory but binding framework. By reason of its compulsory and binding nature, certain limitations and exceptions to its jurisdiction ratione materiae are enshrined in UNCLOS provisions. As explicit in Articles 286 and 288, only disputes concerning the “interpretation or application”
of UNCLOS or other related agreements may be subject to the compulsory jurisdiction of UNCLOS.
1 The South China Sea (Phil. v. China), Award on Jurisdiction and Admissibility, PCA Case No.
2013–19 (UNCLOS Annex VII Arb. Trib. Oct. 29, 2015 ), http://www.pca-cpa.org (last visited Aug.
7, 2019) [hereinafter South China Sea Arbitration].
2 Chagos Marine Protected Area (Mauritius v. U.K.), Award, PCA Case No. 2011–3 (UNCLOS Annex VII Arb. Trib. Mar. 18, 2015), http://www.pca-cpa.org (last visited Aug. 7, 2019) [hereinafter Chagos Arbitration].
3 U.N. Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 396 [hereinafter UNCLOS].
It is said that States generally agree disputes of “territorial sovereignty” are not considered as concerning the “interpretation or application” of UNCLOS, and hence, are not subject to the compulsory dispute settlement regime under UNCLOS. However, not all proponents of this view have offered explanation other than the mere absence of relevant provision governing land sovereignty disputes under UNCLOS. Recent scholarship suggests discrepancies in the
“widely accepted” notion. Not much academic literature provides a reference to the rule of treaty interpretation. Given the main issue to this thesis lies in the interpretation of provisions under UNCLOS Part XV, it is only reasonable that methods of treaty interpretation are reviewed in pursuit of an interpretation of the scope of its compulsory jurisdiction. In practice, the Permanent Court of Arbitration has on few occasions been faced with disputes of territorial sovereignty, but seem to have responded differently on each account. Most notably, the South China Sea Tribunal found their jurisdiction over disputes seemingly relating to territorial sovereignty, whereas the Chagos Tribunal found otherwise. Academic scholarship and judicial decisions have apparently demonstrated various understanding of the limits of the scope of subject-matter jurisdiction in relation to territorial sovereignty disputes.
The purpose of this thesis is to ascertain whether and if so, to what extent are territorial sovereignty disputes subject to UNCLOS compulsory jurisdiction, and the underlying legal rationale in light of contemporary academic literature and judicial decisions.
II. Research Question
The research question of this thesis is whether territorial sovereignty disputes are subject to UNCLOS compulsory dispute settlement. In answering this problem, the following issues will be addressed in turn.
First, the basis of the exercise of jurisdiction by international adjudicating bodies, and the method to be taken in order to elucidate the precise content of jurisdiction conferred to adjudicating bodies.
Second, the scope of jurisdiction ratione materiae of UNCLOS compulsory dispute settlement.
Third, whether UNCLOS provisions on the subject-matter jurisdiction of compulsory dispute settlement allow the exercise of jurisdiction over disputes concerning territorial sovereignty (i.e. whether territorial sovereignty disputes are disputes concerning the interpretation or application of UNCLOS). This is answered by recourse to the rule of treaty interpretation under general international law.
Fourth, in light of recent practices, whether courts and tribunals consider territorial sovereignty disputes within the scope of compulsory jurisdiction, and if so, what the extent or limitations to jurisdiction over territorial sovereignty are.
Fifth, whether the practices of the UNCLOS Tribunals in understanding the jurisdictional provisions deviate from, modify, or affirm the interpretation in accordance with the 1969 Vienna Convention on the Law of Treaties.
Sixth, the conclusion to be drawn from existing academic literature and cases.
III. Scope and Method of the Research
A. Scope of the Research
As identified in Part I and II of Chapter I, the subject-matter jurisdiction of UNCLOS compulsory dispute settlement lies at the core of this thesis and is subject to treaty interpretation. The purview of this thesis is thus, international treaties, judicial decisions and academic scholarship on the issues specifically related to the compulsory dispute settlement of UNCLOS, the rule of treaty interpretation, and territorial sovereignty disputes that are subject to compulsory jurisdiction under UNCLOS dispute settlement regime.
The overview of the 1982 UNCLOS includes important official records of negotiating history and supplemented by legal scholarship.
The discussion and application of the 1969 Vienna Convention on the Law of Treaties and rules of customary international law are limited to those applied in
interpreting UNCLOS jurisdictional provisions. Not all elements of treaty interpretation are explored in this thesis.
In terms of UNCLOS provisions, the scope of research is confined to the subject- matter jurisdiction of the compulsory dispute settlement. Provisions of other treaties and jurisdictional provision beyond those involving the scope of subject- matter jurisdiction are not addressed.
Cases are limited to ones that involve the relevant issues discussed in this thesis and those that explicitly address the issue of jurisdiction over territorial sovereignty disputes.
B. Method of the Research
The research method applied in this thesis is the inductive method, which consists of the following.
First, a survey of legal scholarship on the canons of treaty interpretation under international law and the scope of UNCLOS compulsory jurisdiction. It covers existing academic literature, including, inter alia, books, journal articles and commentaries.
Second, a review and analysis on case studies, in which the scope of compulsory jurisdiction and territorial sovereignty disputes are considered.
Third, this thesis induces from the result of the first and second steps to conduct analyses and conclude its research findings on the question.
IV. Structure of the Research
This thesis is organized as follows. Chapter II provides an introduction of the fundamental basis of dispute settlement. The reason why judicial bodies possess the power to adjudicate over disputes, especially given the fact that disputes are referred by States for a binding resolution by third parties, serves as a gateway to further discussion.
Chapter III is composed of two main Parts. In Part 1, this thesis begins with an overview of the 1982 UNCLOS dispute settlement framework, i.e. Part XV. This thesis will illustrate the background to the negotiation and drafting history of the 1982 UNCLOS. In Part 2, this thesis focuses on provisions concerning the subject- matter jurisdiction of the “compulsory dispute settlement” and the limits thereof.
Chapter IV consists of an in-depth analysis of Article 288(1), the main provision of jurisdiction ratione materiae, through the rule of treaty interpretation. In Part I and II, canons of treaty interpretation applicable in interpreting Article 288(1) are introduced. Part III reviews the various theories identified through legal scholarship. In Part IV, this thesis concludes by applying the rule of treaty interpretation to Article 288(1).
In Chapter V, judicial decisions that dealt with territorial sovereignty disputes under UNCLOS compulsory jurisdiction are discussed in length and analyzed.
Lastly, in Chapter VI, this thesis concludes with some key observations.
V. Terms Used
A. Mixed Disputes-
This thesis refers to the general definition of mixed disputes to indicate disputes involving UNCLOS issues and non-UNCLOS issues, unless otherwise specified.
While some commentators refer to “mixed disputes” as disputes concerning maritime boundary delimitation and territorial sovereignty issues under UNCLOS Article 298(1)(a)(i);4 others generally categorize “mixed disputes”
4 Peter Tzeng, Supplemental Jurisdiction under UNCLOS, 38 HOUS.J.INT’L L.499, 501 (2016);
Irina Buga, Territorial Sovereignty Issues in Maritime Disputes: A Jurisdictional Dilemma for Law of the Sea Tribunals, 27INT’L J.MARINE &COASTAL L. 59, 60 (2012); Rüdiger Wolfrum, Statement to the Informal Meeting of Legal Advisers of Ministries of Foreign Affairs, President of the International Tribunal for the Law of the Sea, Oct. 23, 2006, 2–6, https://www.itlos.org/press-media/statements-of-the-president/statements-of-president- wolfrum/ (last visited Aug. 7, 2019) [hereinafter Wolfrum Statement]; Chagos Marine Protected
disputes that involve UNCLOS disputes and non-UNCLOS disputes.5 It is commonly agreed that no UNCLOS provision addresses territorial sovereignty issues;6 hence, the former category is merely an example of the latter.7 The nomenclature adopted in academic writings may vary based on their respective views; however, neither classification affects the discussions of this thesis.
B. UNCLOS disputes/ Non-UNCLOS disputes-
UNCLOS disputes refer to disputes that are governed by provisions of UNCLOS.
Conversely, non-UNCLOS disputes are disputes that are not addressed by UNCLOS provisions.
Area (Mauritius v. U.K.), PCA Case No. 2011–3, ¶ 45 (UNCLOS Annex VII Arb. Trib. Mar. 18, 2015) (dissenting and concurring opinion by Judge James Kateka & Judge Rüdiger Wolfrum), http://www.pca-cpa.org (last visited Aug. 7, 2019) [hereinafter Chagos Dissenting Opinion];
Stefan Talmon, The Chagos Marine Protected Area Arbitration: Expansion of the Jurisdiction, 65 INT’L &COMP. L.Q. 927, 946 (2016); Loris Marotti, Between Consent and Effectiveness:
Incidental Determinations and the Expansion of the Jurisdiction of UNCLOS Tribunals, in INTERPRETATIONS OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA BY INTERNATIONAL COURTS AND TRIBUNALS 383, 384 (Angela Del Vecchio & Robert Virzo eds., 2019).
5 Talmon, supra note 4, at 933; see also Benard Oxman, Courts and Tribunals: The ICJ, ITLOS, and Arbitral Tribunals, in THE OXFORD HANDBOOK OF THE LAW OF THE SEA 394, 400 (Donald R.
Rothwell et al. eds., 2014); Tullio Treves, Article 286:Application of procedures under this section, in UNITED NATIONS CONVENTION ON THE LAW OF THE SEA:ACOMMENTARY 1844, 1847, ¶ 11 (Alexander Proelss ed., 2017) [hereinafter Treves (2017)]; Patibandla Chandrasekhara Rao, Delimitation Disputes Under the United Nations Convention on the Law of the Sea: Settlement Procedures, in LAW OF THE SEA, ENVIRONMENTAL LAW AND SETTLEMENT OF DISPUTES: LIBER AMICORUM JUDGE THOMAS A.MENSAH 877, 887 (Tafsir Malick Ndiaye & Rüdiger Wolfrum eds., 2007).
6 Chagos Dissenting Opinion, supra note 4, ¶ 45; Talmon, supra note 4, at 933; see also Sienho Yee, The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections, 13 CHINESE J.INT’L L. 663, 689 (2014).
7 Marotti, supra note 4, at 394.
Throughout this thesis and as defined to by some commentators,8 an “UNCLOS dispute” is any dispute concerning the interpretation or application of UNCLOS (i.e. disputes governed by UNCLOS provisions); whereas, a “non-UNCLOS dispute” is any dispute concerning the interpretation or application of any rule of international law beyond UNCLOS (i.e. disputes not governed by UNCLOS provisions).
C. UNCLOS Tribunals-
UNCLOS Tribunals is used in this thesis to indicate the adjudicating bodies set out in Article 287 of UNCLOS.
8 Tzeng, supra note 4, at 501; see also M. Bruce Volbeda, The MOX Plant Case: The Question of
“Supplemental Jurisdiction” for International Environmental Claims Under UNCLOS, 42 TEX. INT’L L.J. 211, 220–1 (2006).
C HAPTER II: J URISDICTION OF I NTERNATIONAL
D ISPUTE S ETTLEMENT I. Introduction
In identifying the scope of jurisdiction ratione materiae of the compulsory dispute settlement of UNCLOS, the fundamental principle of the jurisdiction of international courts and tribunals in judicial settlement should be born in mind.
In this chapter, the following issues are explored to lay grounds for discussions in the subsequent chapters. Namely, the basis of international courts and tribunals’
jurisdiction to decide a case, the scope of jurisdiction and by whom the question of jurisdiction is determined. Viewing these issues as a whole is indicative of why the construction of UNCLOS jurisdictional clauses is rudimentary to ascertain the scope of compulsory jurisdiction.
II. Legal Basis of Jurisdiction
A. Sovereignty and State Consent
The international legal order is premised on State sovereignty, which provides legal authority for international courts or tribunals to adjudicate cases.9 International adjudication is a means of dispute settlement where parties refer a dispute for a legally binding decision by an impartial third-party, which is usually a court or tribunal.10 The jurisdiction of international courts or tribunals is the
9 Yuval Shany, Jurisdiction and Admissibility, in THE OXFORD HANDBOOK OF INTERNATIONAL ADJUDICATION 779, 782 (Cesare P.R. Romano et al. eds., 2013).
10 Richard Bilder, Adjudication: International Arbitral Tribunals and Courts, in PEACEMAKING IN INTERNATIONAL CONFLICT:METHODS AND TECHNIQUES 195 (I. William Zartman ed., 2007). See generally Alain Pallet, Judicial Settlement of International Disputes, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (Online ed. July 2013), http://opil.ouplaw.com (last visited Aug. 7, 2019); Md. Saiful Karim, Litigating Law of the Sea Disputes Using the
legal authority bestowed by States.11 The basis of jurisdiction stems from notions of delegation and consent.12 In other words, the legal powers of international courts or tribunals derive from the delegated authority of States.13 Accordingly, the sole foundation of a court or tribunal’s jurisdiction over disputes between States lies in State sovereignty, which is expressed by State consent.14
No obligation exists in general international law to settle disputes. International dispute settlement by formal and legal procedures are consensual in character.15 The jurisdiction of international courts or tribunals to render a binding decision in a particular dispute hinges upon the consent of the State parties to the dispute in question. The principle governing dispute settlement is that a dispute cannot be referred to an international court or tribunal without consent from the parties to the dispute.16 Judicial or arbitral process entailing a binding decision cannot take place in the absence of the parties’ consent.17 This is true either of ad hoc or
UNCLOS Dispute Settlement System, in LITIGATING INTERNATIONAL LAW DISPUTES:WEIGHING THE OPTIONS 260, 261 (Natalie Klein ed., 2014).
11 Shany, supra note 9, at 782; see also Shabtai Rosenne, International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW ¶ 1 (Online ed. Mar. 2006), http://opil.ouplaw.com (last visited Aug.
7, 2019) (Rosenne defines jurisdiction as “the channel through which a court or tribunal receives its power to decide a case with binding force for the parties to that case.”).
12 Shany, supra note 9, at 782; see also CHITTHARANJAN F. AMERASHINGHE, INTERNATIONAL ARBITRAL JURISDICTION 55–6 (2011) [hereinafter AMERASHINGHE (2011)]; AKEHURST’S MODERN INTRODUCTION TO INTERNATIONAL LAW 563 (Alexander Orakhelashvili ed., 8th ed. 2018).
13 Shany, supra note 9, at 782.
14 Alexander Proelss, The Limits of Jurisdiction Ratione Materiae of UNCLOS Tribunals, 46 HITOTSUBASHI J.L.&POL.47, 48 (2018); A.O. Adede, Settlement of Dispute Arising Under the Law of the Sea Convention, 69 AM.J.INT’L L.798, 816–7 (1975).
15 JAMES CRAWFORD,BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 718 (8th ed., 2012).
16 Robert Beckman, Part XV and South China Sea,in THE SOUTH CHINA SEA DISPUTE AND LAW OF THE SEA 229, 231 (S. Jayakumar et al. eds., 2014).
17 Rosenne, supra note 11, ¶ 3; Pallet, supra note 10, ¶ 8.
permanent (i.e. existing or standing) courts.18 In this respect, international judicial settlement is distinct from domestic court systems.19
The method in which consent is manifested is not controlled.20 States can express consent to international adjudication by entering into a special agreement (compromis).21 A compromis is an agreement between parties to refer a specific dispute to a judicial or arbitral body. It is an ad hoc treaty- instrument used for the settlement of a specific dispute after it has arisen between the parties.22 State parties may agree on the contentious claims (i.e. subject- matter of the dispute), the parties and procedure.23
Consent can also be generalized and given in advance in relation to a treaty and specific parties or for future cases falling within certain categories of dispute.24 Such consent usually takes the form of a compromissory clause in a treaty providing for dispute resolution mechanisms.25 States consent to the jurisdiction of international court or tribunal before a dispute occurs by way of becoming a party to a treaty with a dispute settlement clause.26 A compromissory clause may allow a party to unilaterally institute proceedings against other parties.27 Unlike
18 Oxman, supra note 5, at 396.
19 CRAWFORD,supra note 15, at 718.
20 Rosenne, supra note 11, ¶ 3.
21 Id., ¶¶ 3, 10; Hugh Thirlway, Compromis, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW ¶¶ 4–5, 26 (Online ed. Aug. 2006), http://opil.ouplaw.com (last visited Aug.
7, 2019).
22 Oxman, supra note 5, at 396; Thirlway, supra note 21, ¶¶ 1–6.
23 Thirlway, supra note 21, ¶¶ 7–22 (suggesting the applicable procedure may be one agreed upon in the compromis or may be the statute or rules of a standing court, for which the compromis provides reference).
24 Id., ¶¶ 3–5, 26; Rosenne, supra note 11, ¶¶ 3, 10.
25 Thirlway, supra note 21, ¶¶ 3–5.
26 Oxman, supra note 5, at 396–7; Beckman, supra note 16, at 231.
27 Rosenne, supra note 11, ¶ 10; UNCLOS, supra note 3, art. 286 et seq.
a compromis, advanced consent (or “pre-consent”)28 provides an aggrieved party access to an impartial court or tribunal without having to wait for the other party to agree.29 This is comparable to domestic legal systems with compulsory recourse to judicial settlement.30
B. Scope of Jurisdiction
International judicial jurisdiction is based on and derives from the consent of States, and this is well recognized in relation to the scope of jurisdiction.31 As noted by Shany, international courts and tribunals have subject-matter jurisdiction over cases “that raise those factual and legal questions which the constitutive instruments have defined and (or) that one or more of the parties have agreed to refer to adjudication.” 32 With respect to subject-matter jurisdiction, it is either contingent upon the legal instrument concerned or otherwise agreed upon by the parties to a dispute.33
In commenting on consent being the underpinning basis of jurisdiction of courts and tribunals, Thirlway also notes:
28 MIGUEL GARCÍA-REVILLO, THE CONTENTIOUS AND ADVISORY JURISDICTION OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA 32 (2015).
29 Oxman, supra note 5, at 396–7; CRAWFORD,supra note 15, at 447.
30 Oxman, supra note 5, at 396–7; Andreas Paulus, International Adjudication, in THE PHILOSOPHY OF INTERNATIONAL LAW 207, 208 (Samantha Besson & John Tasioulas eds., 2010);
Chester Brown, Inherent Powers in International Adjudication, in THE OXFORD HANDBOOK OF INTERNATIONAL ADJUDICATION 828, 834 (Cesare P. R. Romano et al. eds., 2013).
31 Hugh Thirlway, The Law and Procedure of the International Court of Justice 1960–1989: Part Nine, 69 BRIT. Y.B. INT’L L. 1, 4 (1999) [hereinafter Thirlway (1999)]; Natalie Klein, The Vicissitudes of Dispute Settlement under the Law of the Sea Convention, 32 INT’L.J.MARINE &
COASTAL L. 332, 361 (2017) [hereinafter Klein (2017)].
32 Shany, supra note 9, at 779–805.
33 Id.
[T]he essence of jurisdiction is consent: if the Statute expresses the consent of States to a limited power to […], it is self-contradictory to argue that, by creating a court, they implicitly consented to a wider power.34
By the same token, the scope of subject-matter jurisdiction is controlled by the extent of State consent.
Jurisdiction or competence […] is the power, conferred by the consent of the parties, to make a determination on specified disputed issues which will be binding on the parties because that is what they have consented to.35
C. Types of Jurisdiction
Generally, the delegation of powers to international courts or tribunals are confined and subject to conditions.36 International courts and tribunals are bestowed limited delegated power to adjudicate cases.
Academic literature typically perceives jurisdiction from four main dimensions:
personal jurisdiction (jurisdiction ratione personae), which decides “who” can be parties to a case when relevant conditions are met; subject-matter jurisdiction (jurisdiction ratione materiae), which decides the factual and legal questions agreed by the parties in the constitutive instrument of judicial forums; temporal jurisdiction (jurisdiction ratione temporis), which places limits on the court or tribunal to “review cases involving facts or legal claims that have been consolidated before and (or) certain dates;” and spatial jurisdiction (jurisdiction ratione loci), which confines the powers of courts or tribunals to cases occurring in a particular geographical area.37
In addition to these four dimensions, a court or tribunal’s jurisdiction in a specific case is governed by other jurisdictional conditions.38 Any given court or tribunal
34 Thirlway (1999), supra note 31, at 21.
35 Id., at 6.
36 Shany, supra note 9, at 781–2.
37 Id., at 790–2.
38 Id., at 793.
will only have the competence to exercise jurisdiction in a case when it is granted authority in these dimensions and jurisdictional conditions are satisfied.39 The three main categories of jurisdictional conditions are identified as consent-based conditions, conditions of alternative venues, and time limits.40 Consent-based conditions require the consent of both parties to a case in order for the court to exercise jurisdiction.41 Take the International Court of Justice (hereinafter ICJ) for instance, aside from the consent required for the four main dimensions of jurisdiction, the parties must also consent to the conduct of adjudication by the Court.42 Conditions pertaining to alternative venues may require international adjudication to be initiated only in the absence of alternative dispute resolution venues.43 An underpinning rationale has to do with which forum is more adequate to settle disputes or enforce legal norms.44 The familiarity of facts, better access to resources, enforcement mechanisms, special expertise in certain fields of law, and costs are examples of factors to be considered.45 One possible reason for rendering international adjudication as a last resort is the reluctance of States to give up their control over disputes.46
Shany identifies another category of jurisdiction as “foundational jurisdiction”
and “specific jurisdiction.” The former refers to the delegated power from member States to international courts or tribunals, thereby denoting the potential power to hear a case.47 The source of foundational jurisdiction can be found in the provisions of the constitutive instrument of the international court
39 Id.
40 Id.
41 Id., at 793–4.
42 Id.
43 Id., at 794–5
44 Id.
45 Id.
46 Id., at 795.
47 Id., at 782–3.
or tribunal.48 The latter is the consent of the parties’ to a dispute that allows the court or tribunal to adjudicate in a particular case.49 The source of specific jurisdiction can be found in the specific grant of authorization by the parties to a given case.50
The ICJ itself serves as an adequate example. While the ICJ is delegated legal power to adjudicate cases, States must give consent to the ICJ before it can exercise jurisdiction over a particular case. 51 This requires a two-tier authorization: parties to the ICJ Statute delegate power to the ICJ to hear a case, and also consent to have the ICJ hear a particular case.52 The foundational jurisdiction depicts the four main dimensions of jurisdictional powers53 and preconditions to the exercise of jurisdiction.54
III. Determining the Scope of Subject-Matter Jurisdiction
The court or tribunal to which a dispute is submitted has the power to determine the scope of subject-matter jurisdiction and whether the dispute at hand falls within the scope.55 The ICJ and international arbitral tribunals have consistently abode by this principle:56
48 Id.
49 Id.
50 Id.
51 Id., at 782.
52 Id.
53 The four dimensions are jurisdiction ratione materiae, jurisdiction ratione personae, jurisdiction ratione temporis and jurisdiction ratione loci.
54 Shany, supra note 9, at 783.
55 Rosenne, supra note 11, ¶ 23; UNCLOS, supra note 3, art. 288(4).
56 For discussion on whether a court or tribunal has jurisdiction to determine its own jurisdiction (la compétence de la compétence), see generally AMERASHINGHE (2011),supra note 12, at 23–46.
It has never been contested that the Court is entitled to interpret the submissions of the parties, and in fact is bound to do so; this is one of the attributes of its judicial functions.57 The Court will itself determine the real dispute that has been submitted to it.58
[The Court] is not only entitled to interpret the submissions of the parties, but bound to do so.59
The determination of the scope of jurisdiction ratione materiae of a dispute involves two aspects. On the one hand, a court or tribunal must determine the scope of jurisdiction as set out in the jurisdictional clause. On the other hand, a court or tribunal must identify whether the subject-matter of the dispute falls within the scope of the jurisdictional clause.
An international court or tribunal ascertains the scope of jurisdiction as indicated in the relevant instrument, which signifies the parties’ consent. In doing so, “[t]he Court must not exceed the jurisdiction conferred upon it by the Parties, but it must also exercise that jurisdiction to its full extent.”60
International courts and tribunals have some discretion in the interpretation of provisions governing the scope of jurisdictional dimensions and conditions, as well as their application to relevant facts.61 “Open-ended” provisions are more likely to face interpretative discretion of courts.62 While an international legal instrument may provide a basis for courts and tribunals’ subject-matter
57 Nuclear Tests (N.Z. v. Fr.), Judgment, 1974 I.C.J. Rep. 457, 466, ¶ 30 (Dec. 20); Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. Rep. 253, 262, ¶ 29 (Dec. 20); Fisheries Jurisdiction (Spain v. Can.), Judgment, 1998 I.C.J. Rep. 432, 449, ¶¶ 30–1 (Dec. 4).
58 Fisheries Jurisdiction (Spain v. Can.), supra note 57, at 449, ¶ 31.
59 South China Sea Arbitration, supra note 1, ¶ 150.
60 Continental Shelf (Libya v. Malta), Judgment, 1985 I.C.J. Rep. 13, ¶ 19 (June 3).
61 Shany, supra note 9, at 798; Asier Garrido-Muñoz, Dispute, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW ¶ 29 (Online ed. Dec. 2018), http://opil.ouplaw.com (last visited Aug.
7, 2019).
62 Shany, supra note 9, at 798.
jurisdiction, it may not necessarily prescribe the finer parameters to ultimately guide a court’s finding.63
The attitude of international courts or tribunals in construing jurisdictional provision is affected by their respective policy.64 A court that seeks to push its normative agenda may adopt a broader approach to expand jurisdiction.65 Whereas, a court may embrace a narrower approach given its deferential attitude to State sovereignty.66 Whichever approach an international judicial forum favors, its construction of jurisdictional provision should be consistent so as not to undermine its credibility or result in ad hoc selection of cases.67 Proelss concludes that the Court is thus “allocated a considerable scope of interpretation in respect of the elements of the jurisdictional clause concerned” and this would result in varying views among international adjudicating bodies.68
Similarly, when determining the subject-matter of a dispute in a given case, the court or tribunal also has some discretion. As consistently observed by the ICJ and other international arbitral tribunals:
[I]t is the Court's duty to isolate the real issue in the case and to identify the object of the claim.69
[T]he Court has first to examine a question which it finds to be essentially preliminary, namely the existence of a dispute, for, whether or not the Court has jurisdiction in the present case, the resolution of that question could exert a decisive influence on the continuation of
63 Proelss, supra note 14, at 52.
64 Shany, supra note 9, at 798–9.
65 Id.
66 Id.
67 Id., at 800.
68 Proelss, supra note 14, at 53.
69 Nuclear Tests (N.Z. v. Fr.), supra note 57, at 466, ¶ 30; Nuclear Tests (Austl. v. Fr.), supra note 57, at 262, ¶ 29; Fisheries Jurisdiction (Spain v. Can.), supra note 57, at 449, ¶¶ 30–1.
the proceedings. It will therefore be necessary to make a detailed analysis of the claim submitted to the Court by the Application of [the Applicant].70
In order to identify its task in any proceedings instituted by one State against another, the Court must begin by examining the Application.71
However, in determining the issue of a dispute, courts and tribunals shall look beyond the Applicant’s submission.
[I]t may happen that uncertainties or disagreements arise with regard to the real subject of the dispute with which the Court has been seised, or to the exact nature of the claims submitted to it. In such cases the Court cannot be restricted to a consideration of the terms of the Application alone nor, more generally, can it regard itself as bound by the claims of the Applicant.72
Even in proceedings instituted by Special Agreement, the Court has determined for itself, having examined all of the relevant instruments, what was the subject of the dispute brought before it, in circumstances where the parties could not agree on how it should be characterized.73
It is for the Court itself, while giving particular attention to the formulation of the dispute chosen by the Applicant, to determine on an objective basis the dispute dividing the parties, by examining the position of both parties […].74
[T]he Court will not confine itself to the formulation by the Applicant when determining the subject of the dispute.75
70 Nuclear Tests (N.Z. v. Fr.), supra note 57, at 463, ¶ 24; Nuclear Tests (Austl. v. Fr.), supra note 57, at 260, ¶ 24.
71 Fisheries Jurisdiction (Spain v. Can.), supra note 57, at 448, ¶ 29.
72 Id., at 448, ¶ 29.
73 Id.
74 Id., at 449, ¶¶ 30–1; Obligation to Negotiate Access to the Pacific Ocean (Bol. v. Chile), Judgment, 2015 I.C.J. Rep. 592, 602, ¶ 26 (Sep. 24).
75 Fisheries Jurisdiction (Spain v. Can.), supra note 57, at 449, ¶¶ 30–1.
It will base itself not only on the Application and final submissions, but on diplomatic exchanges, public statements and other pertinent evidence.76
[T]he Court will distinguish between the dispute itself and arguments used by the parties to sustain their respective submissions on the dispute […].77
To identify the subject-matter of the dispute, the Court bases itself on the application, as well as the written and oral pleadings of the parties. In particular, it takes account of the facts that the applicant identifies as the basis for its claim.78
[I]t is for the Tribunal itself “while giving particular attention to the formulation of the dispute chosen by the Applicant, to determine on an objective basis the dispute dividing the parties, by examining the position of both parties” and in the process “to isolate the real issue in the case and to identify the object of the claim.”79
The South China Sea Tribunal reiterated the same principle with reference to the foregoing cases.
The nature of the dispute may have significant jurisdictional implications, including whether the dispute can fairly be said to concern the interpretation or application of the Convention or whether subject-matter based exclusions from jurisdiction are applicable. Here again, an objective approach is called for, and the Tribunal is required to “isolate the real issue in the case and to identify the object of the claim.”80
[I]t is for the Court itself “to determine on an objective basis the dispute dividing the parties, by examining the position of both parties.” Such a determination will be based not only on the “Application and final submissions, but on diplomatic exchanges, public statements and other pertinent evidence.” In the process, a distinction should be made “between the dispute itself and arguments used by the parties to sustain their respective submissions on the dispute.”81 (citation omitted)
76 Id., at 449, ¶ 31; Nuclear Tests (Austl. v. Fr.), supra note 57, at 262–3, ¶¶ 29–30.
77 Fisheries Jurisdiction (Spain v. Can.), supra note 57, at 449, ¶ 32.
78 Obligation to Negotiate Access to the Pacific Ocean (Bol. v. Chile), supra note 74, at 602, ¶ 26.
79 Chagos Arbitration, supra note 2, ¶ 208.
80 South China Sea Arbitration, supra note 1, ¶ 150.
81 Id.
One commentator (Garrido-Muñoz) noted that given no general conclusion can be drawn as to how such methodology is applied, the determination of the real subject-matter of a dispute necessary to determine jurisdiction ratione materiae is particularly difficult.82 Garrido-Muñoz further stated:
What matters is that ‘the force of the arguments militating in favour of jurisdiction is preponderant’ and that ‘an intention on the part of the Parties exists to confer jurisdiction upon it’ […]; such a conclusion depends more on a circumstantial analysis than on the formulation of the dispute chosen by either party. This is for instance the case of UNCLOS Annex VII arbitrations where questions pertaining to the law of the sea appear to be linked to sovereignty disputes.83
IV. Conclusion
With respect to UNCLOS, States express their consent to be subject to the jurisdiction of international courts and tribunals under UNCLOS when they became parties to UNCLOS through signing and ratifying or accession.84 Section 2 of UNCLOS Part XV is indicative of the parties’ “advance consent” to submit disputes to adjudication and arbitration.85
The scope of subject-matter jurisdiction of UNCLOS tribunals is governed by what is articulated in the same instrument.86 However, given the extent of
82 Garrido-Muñoz, supra note 61, ¶¶ 28–9.
83 Id., ¶ 29.
84 Proelss, supra note 14, at 48; Klein (2017), supra note 31, at 361.
85 Oxman, supra note 5, at 397; Klein (2017), supra note 31, at 361.
86 UNCLOS, supra note 3, art. 287(1) (original Text of Article 287(1): When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: (a) the International Tribunal for the Law of the Sea established in accordance with Annex VI; (b) the International Court of Justice; (c) an arbitral tribunal constituted in accordance with Annex VII; (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.).
discretion conferred upon judicial bodies, courts and tribunals may express various views upon the same jurisdictional provision.
A compromissiory clause signifies States’ consent to jurisdiction for international adjudication—a corollary of State sovereignty. The determination of the scope of subject-matter jurisdiction equally rests on the extent of States’ consent and is exercised by the court or tribunal with jurisdiction. On the one hand, a court or tribunal has a relative degree of discretion in construing a jurisdictional provision.
On the other hand, courts and tribunals may reach different conclusions when identifying the subject-matter of a given dispute. The ambiguity and inconsistency in the two-tier determination of jurisdiction ratione materiae would tilt the balance between ensuring effective dispute resolution and attaining the purpose of the dispute settlement clause, and respect for State consent. The upshot is then, an obscure clause regulating the scope of subject-matter jurisdiction should be attentively construed to avoid encroachment of sovereignty by exceeding the extent of consent.
C HAPTER III: UNCLOS D ISPUTE S ETTLEMENT
R EGIME
Chapter III of this thesis provides an overview of the UNCLOS dispute settlement regime and its voluntary dispute settlement procedures. Given the main focus of this thesis is the scope of jurisdiction ratione materiae of the compulsory procedures, the compulsory dispute settlement regime will be discussed separately in Part IV.
I. Part XV of UNCLOS: Dispute Settlement
A. Background of UNCLOS Dispute Settlement Regime
The 1982 UNCLOS was opened for signature on 10 December 1982 and came into effect on 16November 1994. As of 10 January 2019, UNCLOS has 168 contracting parties. 87 As further explored in the following, UNCLOS envisioned a comprehensive regime of dispute settlement and, as demonstrated further in this Part, is one that differs from tradition dispute settlement procedures.
B. UNCLOS Dispute Settlement Framework
The UNCLOS III foresaw differences of opinion in interpretation and application of the UNCLOS and recognized that they should be resolved by peaceful means with an effort to protect the interests of all parties, powerful or weak. In light of the concern, the UNCLOS III established a system of dispute settlement regime.88 However, a dispute settlement regime specific to the law of the sea took on heated
87 United Nations Convention on the Law of the Sea, Status of Treaties, United Nations Treaty Collection, https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI- 6&chapter=21&Temp=mtdsg3&lang=en (last visited Aug. 7, 2019) [hereinafter UNCLOS Status]
(contracting parties include both States and non-State entities).
88 Thomas A. Mensah, The Dispute Settlement Regime of the 1982 United Nations Convention on the Law of the Sea, in 2 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 307 (Online ed. 1998), https://doi.org/10.1163/187574198X00109 (last visited Aug. 7, 2019).
discussion during the negotiation process over whether to adopt judicial dispute settlement. 89 The goals to not only solve but prevent disputes from budding were why UNCLOS eventually settled on judicial methods.90
Dispute settlement procedures are provided under Part XV (Article 279–299) of UNCLOS. Part XV is composed of three sections and establishes two types of dispute settlement procedures: voluntary and compulsory.91
Section 1 (Articles 279–285) of Part XV contains “voluntary dispute settlement procedures,” which gives parties autonomy in their choice of time, means of settlement and law.92 Section 2 (Articles 286–296) of Part XV comes into play when parties are unable to settle disputes via Section 1.93 Section 3 (Articles 297–
299) of Part XV lays down limitations and exceptions to Sections 2.94 1. Voluntary Dispute Settlement Procedures
Section 1—“General Provisions”—of Part XV finds its roots in general international law. The principle of peaceful settlement of disputes in Article 2(3) and 33(1) of the United Nations Charter (hereinafter UN Charter) is reiterated and reinforced in Article 279 of UNCLOS.95 Non-peaceful means of dispute
89 Raymond Ranjeva, Settlement of Disputes, in 2 AHANDBOOK ON THE NEW LAW OF THE SEA 1333, 1334–5 (René-Jean Dupuy & Daniel Vignes eds., 1991).
90 Id.
91 Patibandla Chandrasekhara Rao, Law of the Sea, Settlement of Disputes, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW ¶ 5 (Online ed. March 2011), http://opil.ouplaw.com (last visited Aug. 7, 2019); Klein (2017), supra note 31, at 334 [hereinafter Rao (2011)].
92 UNCLOS, supra note 3, art. 279–285.
93 Id., art. 286–296.
94 Id., art. 297–299.
95 Charter of the United Nations (June 26, 1945), 1 U.N.T.S. XVI [hereinafter UN Charter]; Rao (2011), supra note 91, ¶ 6.
settlement has no place in general international law, including UNCLOS.96 Generally, parties may resort to diplomatic means or refer to judicial settlement by way of a general or special agreement (i.e. compromis). Churchill observes that there are no records of disputes settled via consensual judicial settlement, conciliation or inquiry under Section 1 of Part XV.97 More often than not, disputes have been resolved through negotiation or other diplomatic methods.98 2. Compulsory Procedures Entailing Binding Decisions
Novel rules introduced by UNCLOS were bound to cause tension in international relations, and such strain among States would inevitably breed disputes.99 A system of dispute settlement was considered the best approach to cater to the new legal order.100 States thought a system of compulsory dispute settlement which entailed third-party procedures would dissuade States from non-compliance and act as a means to prevent disputes from arising.101 Accordingly, the UNCLOS compulsory dispute settlement system was birthed in pursuit of three main purposes: 1) to develop a comprehensive set of rules pertaining to all relevant law of the sea issues; 2) to make UNCLOS a universal instrument that reflects wide
96 G.A. Res. 2625 (XXV) Principles of International Law concerning Friendly Relations and Co- operation Among States (Oct. 24, 1970); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 290 (June 27).
97 Robin Churchill, The General Dispute Settlement System of the UN Convention on the Law of the Sea: Overview, Context, and Use, 48 OCEAN DEV.&INT’L L. 216, 223 (2017) [hereinafter Churchill (2017)].
98 Id.; Øystein Jensen & Nigel Bankes, Compulsory and Binding Dispute Resolution under the United Nations Convention on the Law of the Sea: Introduction, 48 OCEAN DEV.&INT’L L.209, 210 (2017).
99 Ranjeva, supra note 89, at 1333; CHITTHARANJAN F.AMERASHINGHE,JURISDICTION OF SPECIFIC INTERNATIONAL TRIBUNALS 257 (2009) [hereinafter AMERASHINGHE (2009)].
100 Ranjeva, supra note 89, at 1333.
101 Id.;AMERASHINGHE (2009), supra note 99, at 257.
