Dr Massimo Lando LL.M, Assistant Professor, School of Law, City University of Hong Kong and Dr Niccolò Ridi LL.M., Lecturer in Public International Law, The Dickson Poon School of Law, King’s College London – Written evidence (UNC0041)

UNCLOS: fit for purpose in the 21st century?

Massimo Lando, LL.M (Cantab.), Ph.D (Cantab.)[*]

Niccolò Ridi, LL.M. (Cantab.), Ph.D. (Londin.)[**]

I. Overview of the Submission

1. The authors make this submission in response to the call from evidence issued by the Lords Select Committee on International Relations and Defence. This submission focuses on Question 3 in the call for evidence, which asks:

“[h]ow is UNCLOS enforced and how successful is its enforcement? How successful is dispute resolution under UNCLOS?”

2. As experts in international dispute settlement, the authors will address two pressing issues concerning the dispute resolution mechanisms under Part XV of UNCLOS. Part II of the submission discusses conflict of jurisdiction under Part XV. Part III discusses the exercise of advisory jurisdiction under Part XV, especially in relation to the future possibility of an advisory opinions concerning climate change obligations under international law.

II. Jurisdictional Conflicts

1. The possibility of conflicts

3. The entry into force of UNCLOS in 1994 has been hailed as ‘probably the most important development in the settlement of international disputes since the adoption of the UN Charter and the Statute of the International Court of Justice’.[1] Yet, even at the time, it was readily apparent to contemporary commentators that the framework so established was prone to giving rise to conflicts.[2]
4. In international law and international adjudication, these conflicts can take two shapes. On the one hand, multiplicity of fora may give rise to jurisdictional conflicts, which occur when two or more tribunals are competent to entertain the same dispute (or different components thereof). International law does not provide for general rules for the regulation of jurisdiction of adjudicatory bodies,[3] and it is unclear to what extent international courts and tribunals may be entitled to decline to exercise their jurisdiction in favour of another available forum.[4] This increases the risk of forum shopping, abusive litigation, and, ultimately, conflicting decisions.
5. The second category of conflict is a predicate of the first: as the number of international adjudicatory bodies increases, so does the potential for conflicting decisions and a progressive ‘fragmentation’ of international law,[5] even in specialised areas such as the law of the sea. The other side of the coin, however, may be equally concerning for states: although there is no rule of stare decisis in international adjudication,[6] international adjudicatory bodies have sometimes relied on a determination of a point of law made by another, thereby raising questions as to what legal effects, if any, such determinations should have.[7]

2. Conflicts and UNCLOS Part XV

6. In principle, UNCLOS Part XV provides safeguards against possible conflicts.
7. Article 281, essentially restates the principle of freedom of choice of dispute settlement means, thereby making the application of Part XV the residual option.[8]
8. Article 282, in turns, allows party-selected dispute settlement procedures resulting in a binding decision apply ‘in lieu’ of the procedures provided by Part XV, thereby making the former prevail over the latter.[9] Part XV procedures include a referral of the dispute to the International Tribunal for the Law of the Sea, the International Court of Justice (“ICJ”), or arbitral tribunals constituted in accordance with Chapters VII or VIII. “Chapter VII” arbitration also serves as the fallback rule.[10]
9. Finally, and although UNCLOS does not allow reservations,[11] Article 298 allows parties to declare that they do not accept Part XV procedures for certain categories of disputes.[12] The United Kingdom has recently, availed itself of this possibility in 2021, excluding the applicability of Part XV procedures for “disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles”.[13]

3. How the UNCLOS system reacted to conflicts

10. Despite the safeguards embedded in UNCLOS Part XV, conflicts have in fact arisen. Two cases may illustrate the problems that may be faced within the UNCLOS system.
11. In Southern Bluefin Tuna, the first Annex VII arbitration, the problem arose as a result of a dispute settlement provision contained in the 1993 Convention for the Conservation of Southern Bluefin Tuna.[14] Initially, at the provisional measures stage, the Tribunal found that it had prima facie jurisdiction. However, as the agreement at issue required that further consent be given to activate third-party settlement of disputes, the Tribunal eventually found it was capable of excluding “any further procedure”, and therefore declined jurisdiction.[15]
12. In MOX Plant the conflict arose instead as a result of the involvement of a number of different adjudicatory bodies: ITLOS, an UNCLOS Annex VII Tribunal, an Arbitral Tribunal adjudicating claims arising under the OSPAR Convention,[16] and, finally, the European Court of Justice (“ECJ”).[17] In that case, the Annex VII Tribunal decided to suspend the proceedings on the basis of the virtually certain involvement of a forum having exclusive jurisdiction. The Tribunal stopped short of conceding that the interpretation of UNCLOS fell within the exclusive competence of the ECJ as between Member States. However, it acknowledged that, were the ECJ to assert exclusive jurisdiction, it would have deprived the Tribunal of its jurisdiction through the application of Article 282.[18]
13. Yet another example is provided by the “Swordfish dispute” between Chile and the then European Community. In that case, the European Community took issue with Chile’s measures prohibiting vessels flying the flag of its Member States from unloading in Chilean ports. The dispute eventually yielded a request for the constitution of a World Trade Organization (“WTO”) dispute settlement panel on the basis of a breach of WTO rules on freedom of transit and non-tariff import barriers,[19] whereas Chile initiated proceedings before ITLOS on account of purported breaches of UNCLOS.[20] The legal questions before the two judicial bodies were indubitably different, but inextricably connected. Moreover, had the dispute not been settled, additional difficulties would have arisen due to the jurisdictional exclusivity of the WTO Dispute Settlement Mechanism insofar as it relates to a breach of the WTO Covered Agreements.[21]
14. Thus, in Southern Bluefin Tuna, a “non-conflict” resulted in the finding that that an agreement that did not provide for compulsory dispute settlement had the capacity to displace the application of compulsory dispute settlement under Part XV.[22] Conversely, in MOX Plant, a potential conflict was found to be sufficient to suspend the proceedings—also raising the question of whether one such approach could result in a real denial of justice if the forum in favour of which the exercise of jurisdiction has been declined or suspended does not, in turn, take up jurisdiction.[23] Finally, the Swordfish dispute demonstrates that the same dispute may be ‘sliced’ into components which lend themselves to litigation before different fora, potentially resulting in laborious claim-splitting and even abusive litigation techniques.

4. Problems to be envisaged and possible suggestions

15. As the short overview above demonstrates, jurisdictional conflicts are entirely possible and may generate significant difficulties where one adjudicatory body asserts jurisdictional exclusivity and even where the jurisdiction ratione materiae of an adjudicatory body is restricted to disputes arising under a specific set of rules. It is not inconceivable that such problems may occur in the context of the UK/EU Trade and Cooperation Agreement (“UK/EU TCA”),[24] which refers in various parts to the provisions of UNCLOS and is nevertheless informed by the principle of exclusivity in its dispute settlement provisions.[25]
16. It is suggested that States could rectify the present situation as follows:
17. First, States could, by triggering the simplified procedure to amend UNCLOS, pursuant to Article 313,[26] make two formal amendments to UNCLOS to the following effect:
1. Modifying Article 281 to rule out the possibility that an agreement not containing a binding dispute settlement clause might deprive ITLOS or an UNCLOS Tribunal of jurisdiction where this would otherwise exist.
2. Empowering ITLOS or UNCLOS Tribunals to decline to exercise jurisdiction where the dispute is brought before another judicial body, subject to the condition that the latter does indeed take jurisdiction and that the dispute predominantly involves the application of rules falling into its jurisdictional purview.
18. States could also, as long-term commitment, take the problem of jurisdictional conflict into account the in their treaty practice. Where establishing new dispute settlement mechanisms in their agreements they could, further, require that the jurisprudence of ITLOS and UNCLOS Tribunals be taken into account by such bodies.[27]

III. Advisory Jurisdiction under Part XV of UNCLOS

A. Likelihood of an Advisory Opinion concerning Climate Change Obligations

19. On 25 September 2021, the Prime Minister of Vanuatu spoke at the UN General Assembly and announced that his country would be pursuing a request for an advisory opinion by the ICJ in relation to climate change obligations under international law. On 31 October 2021, at the COP26 meeting in Glasgow, the Prime Minister of Antigua and Barbuda announced the signature of an agreement with Tuvalu which establishes the Commission of Small Island Developing States on Climate Change and International Law. Pursuant to its founding agreement, this Commission is empowered also to request ITLOS to render advisory opinions concerning climate change and sea-level rise. The question that arises in the context of the Select Committee’s call for evidence concerns the likelihood that ITLOS will soon receive a request for an advisory opinion relating to climate change obligations under international law. Such a request would be problematic as it is at best likely, and at worst certain, that ITLOS, operating as a full Tribunal, has no advisory jurisdiction under UNCLOS.

B. Legal Framework governing Advisory Jurisdiction under UNCLOS

20. Part XV of UNCLOS contains no legal provision expressly conferring advisory jurisdiction on any of the judicial organs listed under Article 287. The only UNCLOS provisions that expressly relate to advisory opinions are Articles 159(10) and 191. Under both these provisions, advisory opinions are to be rendered by the Seabed Disputes Chamber of ITLOS, on which UNCLOS thus expressly confers advisory jurisdiction.[28]
21. Whether Part XV judicial organs other than the Seabed Disputes Chamber have jurisdiction to render advisory opinions depends on whether their respective constitutive instruments confer that type of jurisdiction on them. Nothing in Annexes VII or VIII of UNCLOS indicates that arbitral tribunals constituted thereunder have advisory jurisdiction. Article 96 of the UN Charter[29] and Article 65 of the ICJ’s Statute[30] expressly confer jurisdiction on the Court to render advisory opinions “on any legal question” if requested by the UN General Assembly, the UN Security Council, or a UN specialised agency authorised by the General Assembly to make such a request.
22. However, ITLOS’ Statute includes no legal provision expressly conferring advisory jurisdiction on the full Tribunal. Article 21 of ITLOS’ Statute is the provision which determines the jurisdiction of the Tribunal. Under Article 21:

“[t]he jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.”

23. Although there is no express conferral of advisory jurisdiction on ITLOS under Article 21 of the Statute, Article 138 of ITLOS’ Rules of Procedure states that:

“[t]he Tribunal may give an advisory opinion on a legal question if an international agreement related to the purposes of the Convention [i.e., UNCLOS] specifically provides for the submission to the Tribunal of a request for such an opinion.”

24. Article 138, as all other Rules of Procedure, was drafted not by States as part of a treaty, but by ITLOS’ judges themselves, who are empowered to do so under Article 16 of ITLOS’s Statute.[31]

C. ITLOS’ Creation of Advisory Jurisdiction in the Fisheries Commission Advisory Opinion

1. ITLOS’ decision and its problems

25. In 2013, the Sub-Regional Fisheries Commission (“SRFC”), a regional fisheries organisation that brings together 7 West African States, requested ITLOS as a full Tribunal to render an advisory opinions concerning the rights and obligations of States parties to UNCLOS concerning Illegal, Unreported and Unregulated Fishing. At the advisory proceedings, numerous States, including the UK, contended that ITLOS lacked advisory jurisdiction.[32] ITLOS stated that, while its advisory jurisdiction as a full tribunal could not be based on Article 138 of the Rules of Procedure, it stems from Article 21 of its Statute.[33] ITLOS noted that Article 21 refers to “disputes” and “applications”, which undoubtedly concern its contentious jurisdiction, but that it also refers to “matters”, the meaning of which is not expressly clarified.[34] According to ITLOS, all words in Article 21 must be given meaning pursuant to the principle of effectiveness in treaty interpretation. ITLOS found that:

“[t]he words all ‘matters’ […] should not be interpreted as covering only ‘disputes’, for, if that were to be the case, article 21 of the Statute would simply have used the word ‘disputes’. Consequently, it must mean something more than only ‘disputes’. That something more must include advisory opinions, if specifically provided for in ‘any other agreement which confers jurisdiction on the Tribunal’.”[35]

26. ITLOS’s reasoning is a petitio principii. It is far from evident that “that something more” must include advisory opinions. Moreover, the express conferral of advisory jurisdiction on organs other than the full Tribunal, including a specialised chamber of the Tribunal itself, is a strong indication that States did not intend to confer advisory jurisdiction on ITLOS as a full Tribunal. ITLOS’ finding that it has advisory jurisdiction under Article 21 of its Statute was criticised by scholars as “creeping jurisdiction”.[36]

2. Article 138 of ITLOS’ Rules of Procedure and its implications

27. The finding that ITLOS has advisory jurisdiction under its Statute is especially problematic because the conditions for States to access the Tribunal’s advisory jurisdiction are particularly lax. Access to ITLOS’ advisory jurisdiction is governed by Article 138 of the Rules of Procedure, which only requires that a treaty related to the purposes of UNCLOS provides for the possibility of requesting advisory opinions to ITLOS as a full Tribunal. The Fisheries Commission Advisory Opinion illustrates the operation of this provision: all that was necessary was for a fisheries-related treaty concluded by 7 a mere States to envisage the possibility of requesting ITLOS for an advisory opinion. This mechanism stands in stark contrast with that under the UN Charter, which requires a majority of States in the General Assembly or Security Council to vote in favour of requesting the ICJ for an advisory opinion.
28. The implication is that there are far more barriers to accessing the ICJ’s advisory jurisdiction by comparison to that of ITLOS as a full Tribunal. These barriers appear justified, given the long-lasting effect that advisory opinions, although not formally binding, have on the development of international law. The UK itself is well-acquainted with the implications of advisory opinions, due to its recent experience with the ICJ’s advisory opinions concerning Chagos. While they do not formally impose international obligations on States, advisory opinions have de facto legal effects which potentially apply to all States in the international community. For that reason, it appears sensible for all States in the international community to participate in the diplomatic process that results in requesting an advisory opinion. Article 138 of ITLOS’ Rules of Procedure does not require such participation. In theory, ITLOS could be requested to render an advisory opinion based on a treaty concluded by only two States.
29. This situation is exactly the one existing after the conclusion of the agreement between Antigua and Barbuda and Tuvalu. That agreement is sufficient for those two States to request ITLOS to render an advisory opinion on climate change obligations under international law. That agreement could thus bypass the guarantees of participation in the diplomatic process for requesting advisory opinions, while, at the same time, the advisory opinion would ascertain the existence of obligations for all States to observe. Given the pressing problems of climate change, bypassing the complex diplomatic process under the UN Charter to request an ICJ advisory opinion may not be entirely problematic, and perhaps could even be welcomed. This aspect would not change the fact that ITLOS likely lacks advisory jurisdiction, which could undermine the legitimacy and credibility of any advisory opinion it were to render on climate change obligations under international law

C. Suggestion

30. States could rectify the awkward situation created by ITLOS’ unpersuasive decision that it has advisory jurisdiction under the Statute. They could do so by triggering the simplified procedure to amend UNCLOS, pursuant to Article 313 referred above.
31. States could make a formal amendment to ITLOS’ Statute in which they lay down the conditions to access the full Tribunal’s advisory jurisdiction, on terms similar to those of the ICJ. The main difference would be that, instead of the General Assembly and Security Council, the requesting organ would likely be the Meeting of the States Parties to UNCLOS.

Received 12 November 2021