Governing the Oceans and Dispute Resolution: An Evolving Legal Order?

Abstract

The UN Convention on the Law of the Sea 1982 (UNCLOS) established a legal order for the oceans. Recently it has been suggested that creative litigation by small States against great powers risks undermining that very order through pushing dispute settlement bodies to adopt novel and unanticipated interpretations of the Convention. That is, the argument goes, the very Convention itself is put in jeopardy if international judges or arbitrators interpret it in such a way that great powers consider themselves bound to a bargain they did not make. Such a result could undermine respect for international dispute settlement or adherence to UNCLOS. The argument is mistaken. The choice is not between an immutably fixed order and a freefall into disorderly judge-made law. Any legal order involving authoritative dispute settlement anticipates evolution through interpretation: order can be dynamic and adaptive. Further, a close examination of patterns of small state litigation under UNCLOS may tell us much about the international law’s idealist project to impose order on a disordered realist world.

Keywords: international law, international law of the sea, dispute resolution