International Law Adrift: Forum Shopping, Forum Rejection, and the Future of Maritime Dispute Resolution

 

Imagine: In 2019, maritime disputes in the East and South China Seas remain unresolved. As part of the promised renegotiation of the “trade deal” between the U.S. and China, Washington agrees to discontinue its military patrols in China’s near seas in return for a Chinese agreement not to pursue trade remedies at the World Trade Organization (WTO) for new American tariffs on manufactured goods. The Philippines and Thailand are firmly ensconced in the Chinese sphere of influence: American ships no longer call in their ports and Chinese cash flows to the bank accounts of their politicians. Vietnam and Japan continue to resist Chinese dominance in the Asian littoral, but their cause seems more dire by the day. China declares large parts of the high seas off-limits to foreign militaries and subjects foreign-flagged commercial vessels to arbitrary inspections.

In an effort to appeal to the international community, Tokyo and Hanoi file legal claims under the United Nations Convention on the Law of the Sea (UNCLOS or Convention), the premier international agreement governing such disputes.11

When it was first negotiated in 1982 and finally came into effect in 1994,22 UNCLOS’s various features, including its binding dispute resolution system, were considered to be at the leading edge of international law.33 Part XV of the Convention offers several choices of forum to resolve disputes.44 How, then, might a state strategize to pick the optimal forum? Did any of the countries involved select a preferred venue when they ratified the Convention? Is there any forum that is particularly well suited to this area of maritime law? Might any one type of procedure give the petitioners an advantage?

This particular dispute, however, comes with a twist. Recalling how China ignored an adverse arbitral award by the Permanent Court of Arbitration (PCA) in 2016,55

Japan and Vietnam take their cases to internationally established courts: the International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ). Both claims succeed on the merits, and the courts issue strong condemnations of China’s actions. However, following the precedent it set before and the pattern of behavior of the world’s other major military powers, China maintains course. The Convention, which represented the culmination of centuries of legal developments to open the seas to all, has no effect on the sudden closure and balkanization of shipping lanes in East Asia.66

This scenario may never come to pass. Countries regularly make use of UNCLOS’s advanced, binding dispute resolution system. At the time of writing, eight cases are pending before three separate bodies under the Convention, contributing to a budding field of case law interpreting and applying the Convention that has developed over the past two decades. Although scholars have analyzed the forum selection process,77

several new developments have occurred within the last few years that necessitate another look. Tribunals have begun to emerge from the niches they created for themselves early on, and individual states have experimented with using more than one forum to resolve longstanding debates with their neighbors.

However, the future is uncertain. The U.S. has never ratified the Convention due to domestic opposition.88

Meanwhile, Russia and China, both signatories for nearly two decades,99 have rolled back their commitment to international legal tribunals by refusing to participate in the binding resolution of disputes—or even the proceedings that produce those resolutions—in the last four years.1010 As the three largest military powers in the world and most important actors in the U.N. Security Council, their continued opposition to the Convention creates a worrying trend for international law. Their refusal to abide by judgments issued by legally constituted forums sets a precedent for smaller nations to disregard binding rulings, relegating the Convention’s method of resolving disputes to obscurity and encouraging powerful states to impose terms on their weaker neighbors.

This Comment conducts a comprehensive examination of every case decided under Part XV to date. Section II briefly reviews the development of international maritime law in the modern era. It argues that the law has attempted to balance the interests of both coastal states and shipping nations over the course of time, but that the current rules have swung in favor of coastal states. Section III presents an overview of the Convention as it exists today. It summarizes the cases decided under Part XV and evaluates various theories on how states shop for the best forums against the record of cases that has accumulated over the past two decades. It finds that the forum selection process that the framers of the Convention designed has little effect on actual practice. Instead, international legal tribunals have gained subject-matter expertise in narrow areas of law that are frequently litigated, while all other subject areas usually default to arbitration. Section IV identifies the most notable trend in the system’s recent past: forum rejection. Several major military powers have refused to participate in legal proceedings under Part XV, rejecting the jurisdiction of any forum over certain issues. This trend creates a serious problem and is likely to lead to less reliance on binding dispute resolution, leaving disputes to linger and incentivizing powerful states to intimidate their weaker neighbors to achieve their goals. In light of continued American opposition to international legal dispute resolution mechanisms, this trend may continue unabated.

For more than two thousand years, Western law has recognized that the oceans and other waterways are res communes—things that are common to all persons and therefore incapable of being owned.1111

Justinian observed that “the air, running water, [and] the sea” are “by natural law common to all.”1212 The natural division between private and communal property respects the unique characteristics of waterways and their critical role in socially beneficial commerce:

By keeping waterways in the commons . . . the law facilitate[s] transportation between owners of different parcels of private property. To allow any person to privatize a [waterway] would disrupt these valuable forms of interactions, which would then paradoxically reduce the value of all private properties that lie along the commons.1313

13

Richard A. Epstein, What is So Special About Intangible Property?: The Case for Intelligent Carryovers, in Competition Policy and Patent Law Under Uncertainty: Regulating Innovation 45 (G. Manne & J. Robert Wright eds., 2011).Hide

However, the law’s commitment to such a system has wavered over the centuries. For example, in seventeenth century Germany, several small fiefdoms arose along the length of the Rhine; each charged its own tax, which “cut sharply into [the river’s] value for transportation and commerce.”1414

The Treaty of Westphalia of 1648 solved the problem by explicitly banning the imposition of tolls and reopening river commerce for the benefit of the whole society.1515

Although the principle of free navigation of the seas dates back millennia, the modern law of the sea began with the resurgence of European shipping in the seventeenth century. In 1608, Hugo Grotius published the Dutch position in his seminal work, Mare Liberum.1616

Writing in response to Portuguese efforts to close trade routes to the East Indies to other European nations, Grotius insisted that the nature of the oceans made it illegitimate for any state to claim their sovereign control.1717 The core of his argument recalled the Roman understanding of natural law, arguing that “freedom of trade is based on a primitive right of nations which has a natural and permanent cause; and so that right cannot be destroyed.”1818

Grotius’ counterpart in England, John Selden, replied with Mare Clausum in 1635.1919

Although Grotius’ arguments were primarily aimed at expansive Spanish and Portuguese claims, Selden noted that England’s claims to the waters surrounding it would be defeated by Grotius’ ideas. Selden insisted that “the sea . . . is not common to all men, but capable of private dominion or property as well as the land.”2020 The King of Great Britain, he argued, “is lord of the sea flowing about, as an inseparable and perpetual appendant of the British Empire.”2121 These two positions form the poles of a debate that continues into the present day, often providing the fuel for maritime disputes between states.

Customary international law adopted an intermediate rule that attempted to satisfy the interests of both commerce and coastal states.2222

Until well into the twentieth century, coastal states enjoyed territorial sovereignty up to three nautical miles from their shores. Calculated roughly to match the maximum effective range of cannons,2323 the rule gave states a buffer with which to protect their beaches and ports without unnecessarily impinging on the freedom of navigation in the open ocean.2424

The pace of legal development and codification accelerated throughout the twentieth century. Following the First World War, American President Woodrow Wilson demanded “[a]bsolute freedom of navigation upon the seas” as the second of his Fourteen Points (ranking just after “open covenants of peace” in his priorities).2525

The 1930 Hague Conference on the Codification of International Law made an abortive attempt at clarifying customary law, but it was not until the U.N. took up the effort after the Second World War that the process yielded the modern law governing the oceans.2626

Today, the legal principles of free navigation of the seas and respect for coastal states’ prerogatives take shape in the principal international agreement on maritime law, UNCLOS.2727

The First Convention (UNCLOS I) met in 1958 and produced a number of generic documents but failed to delineate specific provisions for a comprehensive agreement.2828 UNCLOS II convened two years later and failed to reach agreement on the breadth of the territorial sea and limits on fisheries, two items left unresolved at the first conference.2929

The 1973 Convention (UNCLOS III) finally produced a comprehensive international agreement on maritime law. Completed in 1982, it departed from customary law by establishing greater protections for coastal states. The framework extended the territorial sea to twelve nautical miles—four times what it had been for the previous several centuries.3030

It also established a twelve nautical mile contiguous zone beyond the territorial sea, in which a coastal state may “prevent infringement of its customs, fiscal, immigration, or sanitary laws and regulations within its territory or territorial seas.”3131 Most notably, the Convention established an Exclusive Economic Zone (EEZ) that extends 200 nautical miles from the shore (when space provides).3232 The EEZ grants coastal states “sovereign rights for the purpose of exploring and exploiting, conserving, and managing[] natural resources, whether living or non-living.”3333 Such activities include “(i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; [and] (iii) the protection and preservation of the marine environment,” among others.3434 The establishment of EEZs drastically increased the amount of ocean space that was subject to some level of sovereign control by coastal states; by one estimate, EEZs now cover 43 million square nautical miles, which amounts to 41 percent of the area of the world’s oceans or the approximate equivalent of the total area of the world’s landmasses.3535

These are merely a few examples of the developments in maritime law that UNCLOS brought about that provide context for the scope of the rights involved when states are unable to resolve their differences in interpretation and application of the Convention. Fortunately, the Convention also created a novel solution to this challenge—a binding dispute resolution system.

During the negotiation of the Convention, several parties demanded the inclusion of a binding dispute resolution system to prevent the use of force or intimidation in questions over the interpretation and application of UNCLOS’s terms.3636

Developed Western powers, including the U.S., were uncomfortable with the departures from customary maritime law and believed that a number of disputes would arise over them; a binding system to resolve those disputes was critical to their acquiescence. Conversely, smaller, less powerful nations were equally enthusiastic about the system, which they viewed as a tool they could employ against their larger neighbors. The system’s inclusion was “viewed as necessary to balance the interests of all states against the increased jurisdictional competences given to coastal states by the Convention.”3737 At the time, such a system was considered “innovative and far-reaching,” and observers had high hopes for its future.3838

The core function of the system is to dissuade parties from resorting to the use of force to solve their problems and, instead, encourage resolution “by peaceful means.”3939

Codified in Part XV of the Convention, the system establishes a number of obligations for parties to fulfill prior to referring a dispute. These include an exchange of views between the parties to clarify the extent of the dispute and observation of any other compulsory mechanisms that exist in separate agreements between them.4040 After fulfilling these obligations, states face a unique and novel decision: which forum should hear the case?

UNCLOS offers four separate options to answer that question.4141

First, the Convention established a new judicial body specifically to apply its law: the International Tribunal for the Law of the Sea (ITLOS).4242 ITLOS is empowered to hear any dispute arising under the Convention, and it has special jurisdiction for two claims: provisional measures under Article 290 and the prompt release of detained vessels and their crews under Article 292.4343 Second, parties may refer their disputes to the ICJ,4444 which may apply both UNCLOS and any other authority that is available under the ICJ’s jurisdiction-granting statute.4545 Third, the parties may opt for arbitration under Annex VII of the Convention.4646 Although the parties enjoy the choice of a range of arbitral bodies, twelve of the thirteen arbitral cases raised so far have been heard under the auspices of the PCA.4747 Lastly, parties may opt for special arbitration under Annex VIII.4848 These cases are confined to a narrow field of highly technical disputes over “(1) fisheries, (2) protection and preservation of the marine environment, (3) marine scientific research, or (4) navigation, including pollution from vessels and by dumping.”4949

Article 287 calls for States Parties to select a preferred forum to hear their disputes at the time of accession to the Convention.5050

In the event that a dispute arises between parties that selected different preferred forums (or that have failed to make a selection), the case defaults to Annex VII arbitration.5151 Even if both parties have selected the same forum, they may agree to pursue the case elsewhere.5252 States may change their forum selection at any time, although a new selection does not affect ongoing proceedings.5353 Countries may choose more than one forum and may rank them in order of preference as well.5454 At the time the Convention was negotiated, “a choice of forum was said to be of critical importance to acceptance of the proposed dispute settlement system.”5555

However, forum selections have not developed in the way that the framers of the Convention envisioned. Although states are required to select a choice of procedure under Article 287, only forty-three have done so (approximately 25 percent of all signatories).5656

Moreover, disputes often end up in forums other than those that states have chosen because they agree to take the issue to another forum or because the parties cannot agree and default to Annex VII arbitration.5757

At the time of writing, forty-five cases have been submitted under Part XV since UNCLOS came into effect in 1994, averaging just two per year.5858

Earlier studies have catalogued those cases to some degree, but nearly ten years have passed since those prior efforts.5959 In the meantime, several new cases have arisen that have carried the development of the law into new territory, particularly with respect to questions of jurisdiction. In order to evaluate existing theories of forum selection, it is helpful to review trends in the case law to date. The Appendix provides a table of the cases that may be useful to the reader. This Section evaluates the cases by three categories: forum, subject matter, and participating states.

1. States Parties have four options when selecting a forum under Part XV.

Since the Convention established ITLOS in 1996, it has heard the lion’s share of disputes with twenty-one cases.6060

ITLOS possesses a unique power to issue advisory opinions interpreting the Convention, but it has exercised that authority only twice.6161 ITLOS has three comparative advantages over its counterparts in obtaining jurisdiction over Part XV cases. First, it has sole jurisdiction under Article 290 to impose provisional measures on parties while their cases are pending arbitration under Annex VII or Annex VIII.6262 Akin to preliminary injunctions in courts of the U.S., these orders “have frequently helped the parties to settle a dispute,” enabling ITLOS to facilitate the resolution of a dispute even when the parties opt for arbitration.6363 Second, it has sole jurisdiction to hear controversies involving the prompt release of detained vessels and crews under Article 292.6464 In its first decade of operation, ITLOS heard cases about detainment more than disputes over any other subject (nine in total), although it has fielded only one such case since 2007.6565 Third, unlike arbitral tribunals, ITLOS proceedings are free to signatories to the Convention,6666 and so are attractive to countries that may otherwise not be able to afford arbitration.

As the second option for parties, the ICJ has heard ten cases under UNCLOS since 1994.6767

Because it exists apart from the Convention and has its own authorizing statute, the ICJ has a comparative advantage over ITLOS in that it can apply other substantive sources of international law besides UNCLOS.6868 For example, in 2012, when the ICJ resolved a dispute over the delimitation of the continental shelf between Colombia and Nicaragua, it applied Article 76 as customary international law even though Colombia is not a signatory of UNCLOS.6969

The third available forum, Annex VII arbitration, has been dominated by the PCA at The Hague; it has heard twelve of the thirteen such cases.7070

As the default forum under Article 287, most cases arrive at the PCA because the parties cannot agree to bring the case elsewhere.7171 Observers have suggested a few other theories about why states might opt for arbitration rather than an international judicial body, including domestic opposition to supranational courts and affinity for arbitral procedures that are closer to common law states’ own judicial procedures.7272

The final option, Annex VIII, which creates special arbitration for scientific and technical matters, has never been used.7373

As a result, this Comment offers no analysis on the subject.

2. Subject matter is often the determining factor in forum selection.

An analysis of the cases by subject matter presents a useful opportunity to compare the frequency with which different forums hear similar types of cases. Some trends comport with the text of the Convention. For instance, ITLOS hears every law enforcement “prompt release” case under Article 292 because the Convention grants ITLOS sole jurisdiction over those matters.7474

Parties with cases tangentially dealing with the detention or confiscation of ships but not covered under Article 292 also tend to choose ITLOS as a forum because of its subject matter expertise in the field, even though those cases may not fall within ITLOS’s exclusive jurisdiction. These include cases in which vessels have already been released and parties seek damages for alleged violations of the Convention.7575 However, in other matters, such as boundary delimitation, there appears to be some competition between the forums for business.7676 Additionally, as noted above, states often make use of the provisional measures option under Article 290 to invoke the jurisdiction of both ITLOS and the PCA in the hopes that one or both will render a favorable ruling.7777

a) Law enforcement

Eighteen cases have arisen under Part XV regarding enforcement of either international or domestic laws against foreign-flagged vessels operating in EEZs. These are more numerous than disputes on any other subject. Because of its sole jurisdiction to hear “prompt release” cases under Article 292, ITLOS has heard fifteen of the disputes (nearly 85 percent). As the only tribunal developing the law in this area, ITLOS has had free reign to establish rules to govern the release of vessels that are detained for alleged violations, allowing flag states to post a security bond in return for their ships and crew members while pledging to return the suspects when the time for trial arrives.7878

In the first case it heard, M/V Saiga, ITLOS established a legal framework for evaluating the issues at the center of most disputes—the calculation of the proper amount for the security bond.7979

After ITLOS affirmed the rule in its second “prompt release” case, Camouco, the cases immediately began to dwindle.8080 ITLOS decided its last “prompt release” case in 2007, though another is pending resolution.8181

More recently, ITLOS has served as the preliminary court to impose provisional measures before referring law enforcement matters to the PCA under Annex VII.8282

These cases include ARA Libertad, in which Ghana detained an Argentinian warship,8383 and Arctic Sunrise, in which Russia arrested Greenpeace members protesting an oil platform and impounded their vessel.8484 In both instances, ITLOS imposed provisional measures for release of the vessels and crew before referring the cases to the PCA to consider violations of the law and corresponding damages.

In contrast to the high volume of law enforcement cases that ITLOS has adjudicated, the PCA has heard only three. Two of those were ARA Libertad and Arctic Sunrise, in which ITLOS first imposed provisional measures; ARA Libertad settled before the PCA could rule,8585

while Arctic Sunrise saw one party refuse to participate, allowing the PCA to reach a final judgment on the merits that largely followed ITLOS’s preliminary opinion.8686 The third case, Duzgit Integrity, remains pending.8787

b) Boundary delimitation

In contrast with ITLOS’s dominance in law enforcement matters, the ICJ has done the bulk of the work on maritime boundary delimitation. It has heard eight of the twelve cases brought under Part XV, with many involving land boundaries as well as maritime borders.8888

For this reason, the ICJ seems to be the best situated venue to delimit boundaries; its ability to decide issues outside the maritime context allows states to settle their disputes with their neighbors in a single sitting rather than separating the land and sea cases in separate forums. Clive Schofield, Director of the Australian Centre for Ocean Resources and Security at the University of Wollongong, posited that the ICJ’s work in boundary delimitation predates UNCLOS, providing a rich body of precedent on which to draw that the other forums lack.8989 The ICJ has made use of its dominant position in the international legal environment on multiple occasions to declare sections of UNCLOS to be customary international law and therefore binding on signatories.9090

In recent years, the other forums have also participated successfully in boundary delimitation cases. The PCA delimited maritime borders between Barbados and Trinidad & Tobago in 2006,9191

Guyana and Suriname in 2007,9292 and Bangladesh and India in 2014.9393 ITLOS resolved a border dispute between Bangladesh and Myanmar in 2012.9494

c) Fisheries and environmental protection

The remaining cases do not fall neatly into any one category, and have accordingly been distributed fairly evenly among the tribunals. ITLOS is the only forum that has successfully issued any kind of order in a case involving fisheries. There have been five cases to date, and all five eventually settled before a judgment on the merits (three for ITLOS, one for the PCA, and one for the ICJ). In the Southern Bluefin Tuna Cases, ITLOS imposed provisional measures on Japan when it allegedly exceeded its fishing quotas by creating a scientific experiments program that necessitated catching extra tuna.9595

However, the parties settled the matter in advance of Annex VII arbitration.9696 Four cases (covering two disputes) have focused primarily on environmental protection. In The MOX Plant, Ireland successfully petitioned ITLOS to impose provisional measures on the construction of a new nuclear power plant in the U.K.9797 The case was later dropped before a PCA ruling because of changes in E.U. law that left the issue moot.9898 A similar process occurred in Malaysia v. Singapore: ITLOS imposed provisional measures on land reclamation projects in the Straits of Johor, but the parties settled the matter prior to an arbitral award.9999

The final two cases do not fit neatly into any single category. In Chagos Marine Protected Area, Mauritius argued that it, and not the U.K., should be considered the coastal state for all rights arising under UNCLOS with respect to the Chagos Archipelago, home to the British and American military base at Diego Garcia in the Indian Ocean.100100

The dispute arose from Britain’s lease on the islands for military purposes; Mauritius suggested that it should govern the fisheries and other maritime resources in the islands’ EEZ, which Britain argued would interfere with its lease.101101 The PCA punted the issue, finding that UNCLOS could not answer questions of sovereignty but agreeing with Mauritius that Britain had a duty to preserve the natural resources for the eventual return of control to Mauritius.102102 The second case, The South China Sea Arbitration, is a uniquely famous case that is discussed at length in Section IV(B).103103

Early in the age of Part XV, Sicco Rah and Tilo Wallrabenstein of the Law of the Sea and Maritime Law Institute at the University of Hamburg suggested that ITLOS would take on a special role in the field of environmental protection through its unique authority to issue advisory opinions that would guide the development of the law.104104

The cases, however, do not support that theory. ITLOS has participated in cases involving the environment only as the forum for provisional measures, while the parties selected arbitration to issue rulings on the merits. Likewise, ITLOS has issued only two advisory opinions; only one had any connection to environmental protection.105105 Finally, there has been some modern criticism of ITLOS’s decisions in “prompt release” cases. Some observers believe that ITLOS tends to impose undervalued security bonds for violating vessels to obtain their release from detention, in effect lowering the deterrent for crimes like poaching protected fish.106106

3. Certain petitioning states exhibit preferences for particular forums, but Article 287 has little impact on forum selection.

This Section will provide a brief comment on the interaction between Article 287 choice of procedure selections and the actual behavior of parties when selecting a forum.107107

Of the twenty-eight states that have brought cases under Part XV in any forum, only eleven had previously selected a preferred forum. Of those eleven, six ended up in a forum other than the one they preferred. Five states followed the default pattern of using Annex VII arbitration in the event that the two parties could not agree: Argentina and Ghana, Bangladesh and India, Denmark and the E.U., Italy and India, and The Netherlands and Russia. In one case, because the defendant had not signed onto UNCLOS, the case defaulted to the ICJ as the only forum that had jurisdiction over both parties (Chile and Peru).108108

There are two other interesting items to note. First, as might be expected, those countries that specialize in acting as flag states for commercial vessels, such as Panama and Saint Vincent and the Grenadines, frequently appear before ITLOS in the context of petitioning for prompt release of their vessels or damages after the fact.109109

Similarly, Nicaragua has become a frequent petitioner at the ICJ. It brought four of the ten cases the ICJ has heard under UNCLOS (Honduras and multiple disputes with Colombia) and appeared as the respondent in a fifth case in which Costa Rica is the petitioner.110110

Scholars have posited a number of theories to explain how states go about shopping for a forum under Part XV. However, no study within the last decade has updated those theories in light of new cases to test their accuracy. This Comment will attempt to do so. While some theories, such as that selection is based on the subject matter at issue, have strong support. Others are less helpful in predicting where a case will be filed.111111

1. Scholars offer a number of useful theories that remain relevant and informative.

First, the framers of the Convention assumed that states would select forums using the choice of procedure under Article 287, which would decide the issue of forum shopping at the time of accession and provide a stable framework for determining the proper venue ex ante. As noted above, this concept was not realized. However, ITLOS Judge Tullio Treves has suggested that the fact that few states parties have submitted Article 287 selections does not necessarily represent widespread disapproval of the dispute resolution system or ITLOS in general.112112

He points out that, of those states that have made the selection, the vast majority opted against arbitration.113113 Given his position, he takes that fact as a heartening sign for the acceptance of international courts over arbitration.114114 However, as described earlier, Article 287 selections have determined the forum in just five cases over twenty years.115115

Second, some scholars have suggested that procedural differences can explain affinities for arbitration over other venues. Rah and Wallrabenstein note that arbitration seems to have been the preferred procedure in cases that are eligible to go elsewhere (contingent on the agreement of both parties), even though the cost of resolving the dispute at ITLOS is usually lower than the cost of arbitrating it.116116

They explain the puzzle by noting the advantages of arbitration. First, arbitration is more acceptable to domestic public opinion, especially for the losing country.117117 Adverse rulings by international legal tribunals sometimes provoke a public backlash against participation in agreements that the public perceives as a cession of sovereignty to a supranational body; arbitration tends to avoid such optics.118118 They also note the increased confidentiality available in arbitration and the bar to third party intervention that does not exist at ITLOS or the ICJ.119119 In the ten years since Rah and Wallrabenstein published their comments, arbitration has continued to draw the majority of petitions that are eligible to be heard outside ITLOS and that do not involve boundary delimitation.

Finally, Professors Emilia Powell and Sara Mitchell recently introduced interesting quantitative research suggesting that there is a correlation between the type of domestic legal system a state employs and its forum under Part XV.120120

They argue that common law countries have a strong aversion to the ICJ and prefer arbitration because it mimics the common law system in several respects.121121 Conversely, civil law countries are more likely to opt for the ICJ and ITLOS because “the similarities between legal rules of the ICJ [and ITLOS] and the civil law tradition enhance civil law states’ comfort levels in working with the World Court.”122122 The thesis is novel and deserves further analysis, but that effort is outside the scope of this Comment.

2. Other conclusions arise from the cases.

While instances of forum selection may not have played out exactly as the framers of UNCLOS might have imagined, Part XV has grown into a robust dispute resolution system with important contributions to the development of international maritime law. The system seems to have developed a comprehensive normative framework for the resolution of certain types of disputes by establishing clear rules that reduce transaction costs and facilitate bargaining among parties ex ante rather than invoking Part XV.123123

UNCLOS has made particular strides of this sort in the areas of prompt release cases, evidenced by successful resolution of a number of early cases, the development and application of a set of clear and consistent rules, and a subsequent decline in frequency of similar disputes.124124

However, the most important development since the last round of studies a decade ago has been the emergence of a counter-movement by the great powers of the world. This phenomenon adds a layer of complexity to forum shopping for any country considering bringing a claim against a powerful neighbor: even if a complainant selects the most advantageous forum for its grievance, will its opponent agree to participate in resolving the issue? More importantly, even if the complainant wins on the merits, will the state subject to the judgment change its behavior?125125

The current trend suggests that the answer to both questions is no, which poses a problem for the survival of the binding dispute resolution system.

In the more than two decades since UNCLOS entered into effect, its system of resolving disputes between States Parties has achieved great success in regulating a number of fields of maritime law. Nine disputed maritime borders have been finalized and seven vessels and their crews have been released on bond after detention in a foreign country. More important than the resolution of each individual dispute, the various forums have begun to establish rules that govern each type of situation, allowing parties to avoid dispute resolution by bargaining in light of established guidelines.126126

However, the past few years have seen States Parties that once abided by the rules and norms of UNCLOS begin to refuse to participate in the dispute resolution process. Because the refusing parties are also the world’s preeminent political and military powers, non-participation raises serious concerns about the efficacy of the system and its future.

The Russian Federation, then the Soviet Union, was one of the initial signatories to the Convention in 1982.127127

It ratified UNCLOS in 1997, three years after the treaty went into effect.128128 Both at signing and again at ratification, Russia appended declarations refusing to submit to binding dispute resolution procedures in a number of situations, including “disputes concerning . . . sea boundary delimitations . . . [or] law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction.”129129 It is one of only forty-eight countries that have been involved in the resolution of a dispute, appearing before ITLOS three times: the first as a plaintiff and two other times as the defendant.130130

In some sense, Russia’s involvement with the system represents a model of how the process should work: each case struck a balance between the needs of both States Parties while attempting to maintain a consistent legal framework. However, Russia was also called to appear before the PCA in an Annex XII case in 2013, after it adopted an unusual position that marked a turning point in the development of the dispute resolution system.

1. Russia largely abided by its commitments in earlier cases.

This Section examines Russia’s initial interactions with binding dispute resolution under UNCLOS. In its first three Part XV cases through 2007, the Russian Federation largely abided by its duties under Part XV and had a mixed record of success before ITLOS.

a) The “Volga” case131131

131

For a detailed treatment of the facts of the case and the resulting legal implications, see generally Oppenheim, supra note 106.Hide

In February 2002, Australian military personnel aboard HMAS Canberra boarded the Volga, which was a Russian fishing vessel allegedly fleeing Australia’s EEZ.132132

After Australian authorities detained the ship in Fremantle for violations of domestic fishing laws, they charged three Spanish crewmembers with criminal offenses and released them on bail.133133 The Russian government filed an application with the ITLOS under Article 292 to obtain the prompt release of the vessel and her crew in return for a security bond.134134

The case was the fourth time ITLOS heard a dispute under Article 292, and it adhered closely to the legal standards it had previously established to determine the reasonableness of a security bond.135135

In a victory for Australia, and for the dispute resolution procedures, ITLOS determined that Australia had requested a reasonable bond and ordered Russia to make the payment in order to obtain the release of the vessel.136136 The case was particularly noteworthy among international legal proceedings for its quick three-week completion.

b) The “Hoshinmaru” Case (Japan v. Russian Federation)

The first of two companion cases before ITLOS in 2007, Hoshinmaru, stemmed from the Russian detention of a Japanese fishing vessel following a routine inspection in the Russian EEZ.137137

Although the vessel was licensed to fish in the area, the inspection uncovered a cache of sockeye salmon that the fishermen were attempting to pass off as chum in violation of Russian regulations.138138 The Russian Coast Guard detained the vessel in Petropavlovsk and Japan filed an application with ITLOS under Article 292 for its prompt return.139139 Before ITLOS considered the application, Russia set a bond of approximately $980,000 USD, representing both the value of the boat and estimated damages to the salmon population. Japan alleged that the amount was unreasonable and requested ITLOS’s assistance in resolving the issue.140140

The situation differed from Volga in one key respect. In that case, Australia set the amount for the security bond soon after the detention of the vessel in accordance with Article 73 of the Convention. ITLOS stepped in at Russia’s request, but it found the bond to be reasonable and merely facilitated the transaction. In Hoshinmaru, however, Russia waited weeks to respond to Japanese requests for a bond; it only named a figure once Japan invoked ITLOS’s aid.141141

In its judgment on the merits, ITLOS struck down the $980,000 as excessive and reduced the amount to approximately $445,000.142142

c) The “Tomimaru” Case (Japan v. Russian Federation)

The second of the two cases of 2007 turned out better for Russia. As in Hoshinmaru, the problem involved the detention of a Japanese vessel for illegal fishing in the Russian EEZ. However, because the particular offenses were much more egregious by the standards of Russian domestic law (tons of illegal fish caught and fraudulently concealed in the ship’s logs), local law enforcement officials obtained a court order to confiscate the vessel as evidence in their prosecution in the matter.143143

The decision was litigated as far as Russia’s Supreme Court, which upheld the confiscation.144144 Japan requested ITLOS’s assistance, but ITLOS refused to intervene.145145 It found that Russia had properly resolved the matter in its own courts, and that any involvement on its part would “contradict the [domestic] decision . . . and encroach upon national competences, thus contravening Article 292.”146146

2. Russia adopted a new approach in Arctic Sunrise (The Netherlands v. Russian Federation).

With three previous appearances before ITLOS, Russia had become one of the most frequent participants in Part XV proceedings by 2007. However, concurrent with other changes in its foreign policy, Russia took a new approach the next time representatives of ITLOS came calling. In September 2013, the Arctic Sunrise, a Dutch vessel chartered by Greenpeace, staged a protest of the Russian oil platform Prirazlomnaya in the Russian EEZ in the Pechora Sea.147147

The Russian Coast Guard seized the ship, towed it to Murmansk, and arrested the crew. In response, the Netherlands, as flag state of the vessel, sought a prompt release under Article 292. When Russia disregarded the request, the Netherlands filed an application for provisional measures under Article 290 with ITLOS, to include the release of the vessel and its crew.148148 It also filed a subsequent application for Annex VII arbitration to determine both the legality of Russia’s actions and monetary damages with the PCA.149149

Unlike in previous instances, Russia balked. In a note verbale addressed to ITLOS, Russia recalled the declaration it made in 1997: “[Russia] does not accept procedures provided for in Section 2 of Part XV of the Convention, entailing binding decisions with respect to disputes .  .  . concerning law-enforcement activities in regard to the exercise of sovereign rights or jurisdiction.”150150

It notified ITLOS that it did not accept ITLOS’s jurisdiction to hear the case and would not participate in the proceedings.151151 ITLOS thus faced a difficult question: what to do when a State Party does not appear in court?

The Netherlands responded with a novel legal argument. It suggested that declarations such as the one that Russia made can deny jurisdiction only over those matters of which the Convention allows a coastal state to opt out.152152

The declaration arose under Article 298, which allows states to opt out of jurisdiction for “disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under Article 297, paragraph 2 or 3.”153153 Article 297, paragraph 2 provides that “a coastal state shall not be obliged to accept the submission of [a dispute regarding marine scientific research]” arising out of other sections governing the conduct of such research within a state’s EEZ.154154 Paragraph 3 provides the same right to coastal states in disputes over fisheries within their EEZs.155155 Because this dispute had nothing to do with research or fishing, the Netherlands argued, Russia’s declaration ran into a barrier erected by Article 309:156156 “No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.”157157 Article 310 clarifies that rule:

Article 309 does not preclude a State . . . from making declarations . . . with a view . . . to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.158158

158

Id. at art. 310.Hide

Because Russia’s declaration under Article 298 did not accord with Article 297, the Netherlands argued, it could not be the case that it shielded Russia from the binding resolution of disputes without violating Articles 309 and 310.159159

ITLOS agreed and notified Russia that it did, in fact, have jurisdiction.160160

Russia remained obstinate, however. Relying on several ICJ precedents, ITLOS held that “the absence of a party . . . does not constitute a bar to the proceedings.”161161

Although ITLOS attempted to take into account Russia’s interest as best it could, it ruled for the Netherlands and ordered the immediate release of the vessel and non-Russian members of its crew in returning for a €3.6 million security bond, pending arbitration.162162 Russia refused to comply with the order, although it granted the crew amnesty within a month, released them, and finally released the ship several months later.163163

The Netherlands took the case to the PCA the following year to secure a declaration that Russia’s conduct had been a violation of international law, as well as an apology and monetary damages.164164

Again, despite ITLOS’s finding of jurisdiction, Russia refused to participate.165165 The PCA produced a detailed ruling on the merits of the case, finding unanimously that Russia had violated the Convention and ordering it to return all property confiscated aboard Arctic Sunrise.166166 It also ordered damages for harm done to the vessel, although the calculation of damages remains ongoing at the time of writing.167167

Taken alone, the Arctic Sunrise cases under Part XV might have been an anomaly among a string of otherwise successful dispute resolutions by the various available forums. The underlying incident was a relatively minor occurrence in comparison with other disputes between the Russian Federation and the West in 2013.168168

The case became a turning point in great power approaches to binding dispute resolution, however, when the People’s Republic of China adopted Russia’s theory of Part XV jurisdiction in a high profile case at the center of a major controversy in East Asia.169169

The People’s Republic of China was also an original signatory to the Convention in 1982, ratifying the agreement in 1996.170170

At the time of ratification, China added a number of qualifications to its participation in the Convention.171171 They included an affirmation of “sovereign rights and jurisdiction” over its EEZ, a commitment to resolve border disputes through bilateral negotiations, and a reaffirmation of sovereignty over a number of outlying islands.172172 In 2006, China added a remedial declaration under Article 298 to limit its participation in the dispute resolution scheme: “[China] does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.”173173 This reservation, nearly identical to Russia’s, 174174 would play an important role in a future dispute.

1. China followed Russia’s lead in The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China).

China avoided dispute resolution under UNCLOS for nearly two decades. However, in the same year that Russia refused to participate in Arctic Sunrise, China adopted Russia’s approach and successfully undercut the dispute resolution system. The Philippines brought a case for arbitration to the PCA against China in early 2013.175175

The dispute was the most ambitious challenge for Part XV to date, and so it was closely watched by powers around the world and had the potential to reset power dynamics in East Asia at just the point when China was becoming more assertive militarily.176176 The Philippines’s move thus represented a critical opportunity for the international legal system to resolve a simmering dispute that experts identified as the “cauldron” in which tensions might boil over into a third World War.177177 By any conceivable measure, UNCLOS’s dispute resolution system failed to mitigate that possibility.

The Philippines’s complaint, which encompassed over a dozen legal issues, focused on four broad claims. First, the Philippines challenged China’s claim to sovereignty over the entirety of the South China Sea (the so-called “Nine Dash Line”) under UNCLOS.178178

Second, it asked the court to determine whether any land features claimed by China were entitled to their own territorial seas and EEZs.179179 Third, it sought a declaratory judgment on the illegality of Chinese actions, including interference with the Philippines’s use of resources in its own EEZ and the infliction of harm on the maritime environment through construction projects.180180 Finally, it asked the court to declare that China had aggravated the dispute through a number of questionable tactics.181181 The intricacies of the legal issues at stake are of less importance to this Comment than the jurisdictional questions and have been covered at length elsewhere.182182 The key consideration for this discussion was in China’s response: “the South China Sea arbitration is null and void, and has no binding effect on China . . . The Philippines’s attempt to negate China’s territorial sovereignty and maritime rights and interests in the South China Sea through arbitral proceeding [sic] will lead to nothing.”183183

Perhaps because of the significance of the case (especially when compared to the rather small stakes involved in Arctic Sunrise), the Chinese government took an aggressive stance on the question of the court’s jurisdiction. In its initial note verbale in February, China expressed the argument it would maintain throughout the course of the proceedings.184184

First, the core of the dispute was China’s and the Philippines’s competing claims to sovereignty over the Spratly Islands. Because the Convention assumes the sovereignty of the coastal state when establishing territorial rights, it cannot resolve the fundamental disputes that underlie claims. Second, both sides “agreed to settle the disputes through bilateral negotiation” in the 2002 Declaration on the Conduct of Parties in the South China Sea.185185 The Declaration was an agreement between China and the members of the Association of Southeast Asian Nations (ASEAN).186186 By unilaterally removing the dispute from bilateral negotiations, China argued, the Philippines had departed from “the right track of settling disputes.”187187

After the PCA declined to dismiss the case outright, China published an open position paper laying out its argument in greater detail, which the court adopted in lieu of an official submission.188188

In addition to earlier arguments on sovereignty and separate dispute resolution agreements, the paper added an alternative argument that China’s 2006 declaration under Article 298 exempted it from the resolution of disputes over maritime delimitation.189189 Because the Philippines’s claim was really about sovereignty over islands, the arbitration was tantamount to “a request for maritime delimitation by the Arbitral Tribunal in disguise.”190190

After hearings and submissions from both the Philippines and observer states from ASEAN, the court confirmed its jurisdiction to hear the case. Citing both U.S. v. Nicaragua and Arctic Sunrise, the court first determined that China’s refusal to participate did not impede the course of arbitration.191191

Second, it rejected the notion that the dispute over sovereignty of the islands was the only matter to be resolved, and that any collateral decision would necessarily (and illicitly) resolve the larger question that was beyond the scope of the Convention.192192 The Philippines had carefully selected the issues in its claim to limit the arbitration to the boundaries of UNCLOS and the court’s jurisdiction.193193 Third, the court rejected China’s argument that the parties had a binding agreement to settle disputes bilaterally.194194 Finally, the court found that seven of the Philippines’s claims clearly did not fall within the Chinese exemption because they were unrelated to the types of activities articulated in Article 297, Paragraphs 1-3 (as in Arctic Sunrise).195195 However, it delayed ruling on jurisdiction over seven other claims until the merits phase of the case in order to allow China to articulate a fuller argument on the question of jurisdiction.196196

China responded by following Russia’s lead. Beijing asserted that “not accepting or participating in arbitral proceedings is a right enjoyed by a sovereign State. . . . For such a proceeding that is deliberately provocative, China has neither the obligation nor the necessity to accept or participate in it.”197197

It declared that the Philippines, which was “fully aware that it was absolutely not possible that China would accept the compulsory arbitration . . . still decided to abuse the provisions of the UNCLOS by unilaterally initiating and then pushing forward the arbitral proceedings.”198198 China also chided “other States, who . . .  [supported the Philippines’s submission and] apparently have their ulterior motives.”199199

In the following months, China continued to stonewall the court as it reached its decision. In the final award, released in July 2016, the court unanimously endorsed the Philippines’s position.200200

China, however, maintained course. In the months since the ruling, it has continued construction of artificial islands in the Spratlys, dissuaded the new administration in Manila from pressing the issue through diplomatic outreach, and increased its resistance to American military presence in the area.201201

Unlike Russia and China, the U.S. is not a party to the Convention. Although it signed the document, the Senate has steadfastly refused to ratify UNCLOS in the face of domestic opposition resulting both from economic concerns and worries about ceding legal authority to an international tribunal.202202

Even though the U.S. Navy has been a strong proponent of ratification and has assumed the role of the Convention’s primary enforcer, it has failed to convince skeptics in Congress.203203 This status puts the United States in an awkward position: among the Permanent Members of the U.N. Security Council, it is the only state that rejects Part XV dispute resolution altogether.204204

That rejection stems in part from the aversion to international courts that the United States developed in the 1980s. In 1986, the U.S. refused to participate in legal proceedings over its support for the Contra rebellion against the ruling Sandinista government in Nicaragua under customary international law.205205

Although the ICJ held in Nicaragua v. United States that the U.S. had violated Nicaragua’s sovereignty, an American veto in the U.N. Security Council prevented Nicaragua from enforcing the judgment in any meaningful way.206206 The experience soured the American public to international courts, later leading the U.S. to reject the Rome Statute and participation in the International Criminal Court in 2002.207207

It is important to note that, despite its central role in building the post-war liberal international order, it was the U.S. that first popularized the rejection of international courts and binding agreements including UNCLOS.208208

Although other countries did not follow the American approach for several decades, the U.S.’s refusal to participate in the Nicaragua case set a direct precedent for Russia in M/V Arctic Sunrise and China in The South China Sea Arbitration.

Taken together, the developments in Arctic Sunrise and The South China Sea Arbitration may portend difficulties for Part XV in the future. If China, Russia, and the U.S. all reject the system’s legitimacy when the issues are unfavorable to them, other states will have little incentive to submit to resolution of their disputes if the results do not suit their interests. Although these cases may be isolated instances, they seem to reinforce each other by providing a proven method of stonewalling international tribunals behind Article 298 declarations. Because Russia and China seem to have suffered no consequences for their actions, it will be difficult for ITLOS and the PCA to hold other obstinate parties to task in the future.

In the last few months, Russia has withdrawn its support for the Rome Statute and submission to the jurisdiction of the International Criminal Court.209209

Meanwhile, China seized a U.S. Navy research drone operating just 50 nautical miles off the Filipino coast in the South China Sea, outside its “Nine-Dash Line” claim.210210 Both actions demonstrate continued and increased opposition on the part of both countries to international law and the peaceful resolution of disputes. In light of their positions in Arctic Sunrise and The South China Sea Arbitration, this behavior seems to establish a pattern of contempt for international legal authority.

A change in the American position would act as a strong counterweight to the Russian and Chinese approach. By ratifying UNCLOS, the U.S. would lend greater legitimacy to its Navy’s perennial efforts to enforce the agreement against both its allies and its adversaries. Additionally, participation would enable American jurists and legal scholars to join the benches of the various forums that hear Part XV cases and influence the development of international maritime law. The United States could enhance the mechanism’s credibility with smaller powers by using it to resolve one of its minor outstanding disputes with Canada.211211

Such a move would have minimal economic or territorial consequences, regardless of the outcome, but have strong symbolic value as an endorsement of international law.

However, the Trump Administration seems unlikely to push the Senate for ratification. Its skeptical approach to international trade agreements and alliances suggests that it would have little enthusiasm for a renewed commitment to international law, especially if the public were to perceive the move as a cession of sovereignty to a foreign body.212212

Without a renewed American commitment, smaller States Parties will be more likely to dare to adopt the Russian and Chinese approach. Because Part XV has no capable enforcement mechanism, it is likely to fall into disuse for all but the most routine law enforcement cases.

This Comment has shown that UNCLOS Part XV has facilitated the resolution of a considerable number of maritime disputes through its relatively complex mechanisms for choice of forum. In the areas of law enforcement and border disputes, it has contributed to a substantive development of international law in its two decades of existence. While some of the design features do not operate in the ways in which their framers intended, Part XV provides useful forums to resolve lingering disputes through a peaceful process.

However, the last few years have seen the emergence of a plot twist: a worrying trend of refusal to participate in that process by great powers. As Russia and then China adopted the American approach to international courts, they undercut the system’s effectiveness and denied justice to their smaller, less powerful neighbors. China’s aggressive campaign to co-opt a new political administration in the Philippines, combined with its continued military activities in the disputed area, is particularly damaging to the practice of binding dispute resolution among nations. With three of the five permanent members of the U.N. Security Council opposed to jurisdiction of UNCLOS tribunals, smaller states have little incentive to abide by their international commitments. Although the U.S. signaled a willingness to change its approach in recent years, the inauguration of a new administration seems likely to adopt the skepticism toward international courts of administrations dating back to the mid-1980s. While the system will likely continue to function in the short-term, the next contentious case may spell its end.

 

 

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