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Mossop, Joanna --- "Dispute Settlement in the UN Convention on the Law of the Sea" [2005] VUWLawRw 43; (2005) 36(4) Victoria University of Wellington Law Review 867

BOOK REVIEW: DISPUTE SETTLEMENT IN THE UN CONVENTION ON THE LAW OF THE SEA

Joanna Mossop[*]

Natalie Klein Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press, Cambridge, 2005) (418 pages).

It has been more than ten years since the United Nations Convention on the Law of the Sea (the Convention) came into force.[1] As any international lawyer knows, the Convention was a tour de force in treaty terms. The negotiators had a bold vision – to codify an area of law that had eluded codification, and to finally put to rest legal disputes that had been simmering for many years. The Convention is the result of 10 years of negotiation in which numerous issues were addressed. The system of dispute resolution that was agreed upon in Part XV of the Convention was one of the most significant achievements.

It is important to remember that the law of the sea has been one of the most dynamic and disputed areas of international law for most of the past several centuries. States have been disputing the appropriate rules for as long as they have been meeting on the waters. In the twentieth century, the disputes became more numerous as technology improved both seafarers' access to the oceans and coastal states' ability to control their maritime boundaries. Resources that had previously appeared inexhaustible were diminishing and states were aware of the impact of the oceans on their security. Coastal states exerted increasing influence and asserted extended jurisdiction, and ocean-going states resisted their efforts. This lead to some remarkable confrontations, such as the "cod wars" between England and Iceland that culminated in the 1974 Fisheries Jurisdiction cases in the International Court of Justice.[2]

In light of this history, the fact that the Convention contains a dispute settlement provision that involves compulsory adjudication was a move away from the contentious past characterised by unilateral action. Many authors have speculated on the potential impact of Part XV of the Convention (for one articulate discussion, see the articles by Rosemary Rayfuse and Andrew Serdy in this issue)[3] but Natalie Klein's text is the first to undertake a detailed analysis of the provisions and the cases brought under the Convention provisions.[4]

Natalie Klein has written a technically excellent text outlining the history and development of the dispute procedures, the requirements of each part of the process and the extent to which the cases heard under the dispute procedures have cast light on the operation of the procedures. Some may argue that it is too early to attempt a comprehensive evaluation of the case law and operation of the dispute resolution process. However, although there have only been 13 cases on the ITLOS docket and a few arbitral decisions, there is plenty of substance to discuss, and Klein does this well. Her discussion of the prompt release cases, for example, is highly detailed and extremely useful from a practical perspective.

The book is well researched, and Klein refers to the negotiations and occasionally to other background details to bring the provisions of Part XV of the Convention to life. For example, in describing why and how states decided to make maritime boundary disputes an optional exclusion from compulsory settlement, the book goes into useful detail about the history of maritime delimitation and the Convention's approach to the issue.[5] In writing about dispute resolution, Klein offers a broader understanding of the Convention and the law of the sea itself.

Klein's thesis is that although the compulsory process in the Convention is unique, it is not the cure-all that some commentators would suggest. Partly this is due to the inherent limitations in the structure of Part XV, including the large number of topics excluded from compulsory dispute settlement. Rather than seeing these exclusions as a defect, however, Klein considers them a legitimate political compromise needed to balance sovereignty concerns with the goals of peaceful dispute settlement. As she points out, no reservations were possible to the Convention, and the exceptions placated states who were fearful that sensitive matters could be forced to adjudication.[6]

Klein is not entirely pessimistic about the role of the compulsory dispute settlement process. She notes that ITLOS has been willing to take a relatively active role in some cases,[7] facilitating the cooperation between the parties through specific measures. She also argues that, through the prompt release cases, ITLOS is willing to assume some responsibility for matters that had previously been considered the province of domestic courts.[8] She is also willing to admit that there is an important role for the compulsory dispute settlement process in situations where the Convention provisions are vague and could benefit from interpretation.[9]

On the last point, one has to conclude that the cases brought under Part XV have not fulfilled their promise so far. One case that had the potential to clarify some of the broadest and most important provisions in the Convention failed at the jurisdiction stage.[10] As Klein notes, to date states have avoided bringing disputes that would require interpretation of the hortatory provisions of the Convention, but she does not proffer a prediction as to whether states may be more willing to do so in the future. However, this is not the aim of the book, and it might be unfair to criticise her for not undertaking more crystal-ball gazing.

Another area not covered by the book – and probably beyond the scope of Klein's work – is the position of the Convention's dispute settlement procedures in international law theory generally. It would be interesting to compare the experience under the Convention with the dispute settlement process in the World Trade Organisation, which has had a much larger impact on the interpretation of the rules in that treaty body. However, this is an issue that will undoubtedly be followed up by Klein or other scholars in the future.

This book is of significant value to practitioners and scholars dealing with dispute settlement in the law of the sea. Although the jurisprudence under the Convention will undoubtedly develop (slowly, it seems), Natalie Klein's book is a solid foundation against which later cases can be compared. In light of its detailed examination of the topic it is not as suitable to be used as a student textbook, but the appropriate audience will find it useful and insightful.

[*] Lecturer, School of Law, Victoria University of Wellington

[1] United Nations Convention on the Law of the Sea (10 December 1982) 1833 UNTS 3.

[2] Fisheries Jurisdiction (United Kingdom v Iceland) [1974] ICJ Rep 3.

[3] Rosemary Rayfuse "The Future of Compulsory Dispute Settlement under the Law of the Sea Convention"; and Andrew Serdy "The Paradoxical Success of UNCLOS Part XV: a Half-hearted Reply to Rayfuse". Both papers are published in the Victoria University of Wellington Law Review's volume 36, issue 4 (2005).

[4] Natalie Klein Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press, Cambridge, 2005).

[5] Klein, above n 4, 228-279.

[6] Klein, above n 4, 27.

[7] Namely the Southern Bluefin Tuna case, the Mox Plant case and the Land Reclamation case: Klein, above n 4, 82-83 and 351-352.

[8] Klein, above n 4, 117.

[9] Klein, above n 4, 354.

[10] See Southern Bluefin Tuna Cases (Australia v Japan; New Zealand v Japan) (27 August 1999) ITLOS.