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The law of the sea tribunal and the ICJ
The Law of the Sea Tribunal and the ICJ Some notions about utility
Mark W. Janis
The article traces the history of the Law of the Sea Tribunal. The conflict between supporters of the Tribunal and the opponents (who view it as infringing on the legitimate territory of the International Court of Justice) is explained. The relatively limited role of universal international courts in the 20th century is described and it is argued that a possible model for the potential success or otherwise of the new Tribunal may be found in the European regional courts: the ECJ and the ECHR. Mark W. Janis is Professor of Law at the University of Connecticut. He may be contacted at 65 Elizabeth Street, Hartford, CN, USA.
International law has long known the difference between universal and regional international courts. At the turn of the last century, for example, there were established both the universal Permanent Court of Arbitration (the PCA) and the regional Central American Court of Justice. Nowadays, of course, the International Court of Justice (the ICJ) is universal, and there are a variety of important regional courts, including the European Court of Justice (the ECJ) and the European Court of Human Rights (the ECHR). These European courts are specialized in that their competences refer only to a limited subject matter, ie the interpretation and application of specific international agreements. Less noticed perhaps than the distinction between universal and regional international courts is the difference between specialized and general universal international courts, ie the distinction between international courts open to all States but limited in subject matter jurisdiction and universal courts like the ICJ which are not so limited. A specialized universal international court that raises some interesting questions about the utility of such tribunals is the International Tribunal for the Law of the Sea (the Tribunal) which is to be established if and when the 1982 United Nations Convention on the Law of the Sea (LOS Convention) comes into force.’ The Tribunal, along with the ICJ and ad hoc arbitral tribunals, is meant to be available to specially consenting States parties to the Convention as ‘a means for the settlement of disputes concerning the interpretation or application’ of the LOS Convention.’ This article surveys the Tribunal and the ICJ and, drawing upon the experience of the two European specialized international courts, assesses the prospective utility of specialized as opposed to general universal international courts.
The Law of the Sea Tribunal
‘UN Dot. AKONF. 62/122 (1982) [hereinafter cited as LOS Convention]. ‘/bid, Article 287(l).
102
The idea of such a Tribunal was initiated at the United Nations Conference on the Law of the Sea in 1974 by the Informal Working Group on the Settlement of Disputes Arising from the Law of the Sea Convention at the suggestion of the US delegation. Professor Louis B.
MARINE
POLICY
March 1992
The Law of the Sea Tribunal
3A.0. Adede, ‘Statement of disputes arising under the Law of the Sea Convention’, American Journal of International Law, Vol 69, 1975, pp 798, 800-801. 41bid, pp 801-818. ‘S. Oda, ‘Some reflections on the dispute settlement clauses in the United Nations Convention on the Law of the Sea’, J. Makarcyzyk, ed, Essays in International Law in Honour of Judge Manfred Laths, Nijhoff, Dordrecht, 1984, pp 645, 645-646. ‘Ibid, pp 646-647. 7/hid, pp 647-649. ‘N.Q. Dinh, P. Daillier and A. Pellet, Droit International Public, 3 ed, 1987, pp 79C791. ‘LOS Convention, op tit, Ref 1, Articles 186-191. ‘O/bid, Annex VI, Article 35. “Ibid, Annex VI, Article 36. “/bid, Article 187. ‘?bid, Part XV, Articles 279-299. ‘%p tit, Ref 3, p 801. l5 LOS Convention, op tit, Ref 1, p 287.
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and the ICJ
Sohn served as Rapporteur at the 1974 Caracas and 1975 Geneva sessions of the working group. The USA had proposed draft articles for a chapter on the settlement of disputes to the UN Sea-bed Committee as early as 1973.3 The notion of a specialized Tribunal alongside other means of dispute settlement available to the States parties to the LOS Convention seems to have been grounded on a preference for providing States with as wide a range as possible of choices for dispute settlement.4 From the early days of discussions about the Tribunal, there were those who objected ‘to having a new court or tribunal with blanket jurisdiction over the whole area of the law of the sea, though they fully agreed that certain types of seabed disputes would be dealt with by a new institution to be set up specially for that purpose’.’ Opposition to a Tribunal with an extensive law of the sea competence vis-a-vis the ICJ failed to prevail in the law of the sea negotiations in three key ways. Advocates of the ICJ (1) failed to limit the Tribunal to a limited jurisdiction rather than to ‘any dispute’ involving the LOS Convention; (2) failed to prevent the Tribunal from being called the ‘International Tribunal for the Law of the Sea’ rather than the more pedestrian Law of the Sea Tribunal; and (3) failed to put the Tribunal in second place behind the ICJ among the alternatives for dispute settlement listed in Article 287, ‘Choice of procedure’.6 It is easy to understand why enthusiasts for the ICJ and its ‘international law as a whole’ were despondent about the relative triumphs of the Tribunal.’ As a result of its successful place in the LOS Convention, the Tribunal has become an excellent example of what might be described as an international jurisdiction of a ‘caracttre universal’ involving a ‘compethce restreinte’.8 The Statute of the Tribunal is set out in Annex VI of the LOS Convention, but important provisions respecting it are to be found in the main body of the Convention in Parts XI and XV. Part XI of the LOS Convention deals with the deep sea-bed (the Area) and the International Authority. Part XI also treats dispute settlement in the Area and especially the Sea-bed Dispute Chamber of the Tribunal.‘The Tribunal’s Statute provides that the Sea-bed Dispute Chamber is to consist of 11 of the 21 members of the Tribunal who are to be elected by majority vote of the members of the Tribunal.“’ The Sea-bed Dispute Chamber may also constitute an ad hoc Chamber composed of three members consented to by the parties to the dispute.” Part XI sets forth a very wide jurisdiction for the Tribunal in matters concerning the Area, including cases involving States, the Authority, and private contractors.12 Part XV of the LOS Convention treats the settlement of disputes in general.‘” As already mentioned, the intent behind this part was to ‘give states complete freedom to choose whichever means of settlement is considered suitable by them in a particular case’.14 Accordingly, Article 287 provides: 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; (b) the International Court of Justice; (c) an arbitral tribunal; (d) a special arbitral tribunal constituted . for one or more of the categories of disputes.”
103
The Law of the Sea Tribunal and the ICJ
Although, as a general rule, disputes are to be submitted to one or another of the fora specified in Article 287,” there are a very large number of explicit limitations and exceptions to compulsory dispute military activities’* and maritime boundary settlement, I7 including delimitations.” In some 41 articles, Annex VI of the LOS Convention provides the Statute of the Tribunal to be established in Hamburg with some 21 members who are to be expert in the law of the sea.2(3 The Tribunal’s members are to sit for renewable nine-year terms and are to be elected by the States parties to the LOS Convention.21 Three-member special chambers may be established with the consent of the parties to a is given competence respecting all matters dispute.22 The Tribunal concerning the LOS Convention.2’
The International
Court of Justice
It is with respect to just this broad competence important principle is raised vis-a-vis the ICJ. Judge put the matter plainly: ‘%id, Article 286. 17/bid, Articles 297-299. 181bid, Article 298(l)(b); M.W. Janis, ‘The military activities exception in the Law of the Sea Convention’, Ocean Development and tnternationalLaw, 1979. 19LOS Convention, op tit, Ref 1, Article 298 (l)(a); Manner, ‘Settlement of seaboundary delimitation disputes according to the provisions of the 1982 Law of the Sea Convention’, Essays in /nternationa/
Law in Honour of Judge Manfred Laths, op cif, Ref 5, pp 625, 634-643. *‘LOS Convention, op tit, Ref 1, Annex VI, Article l(2), 2.
“Ibid, Annex VI, Articles 4,5. “/bid, Annex VI, Article 15. 23/hid, Annex VI, Article 21. 240da, op tit, Ref 5, p 649. ?923 PCIJ Reoorts. Ser A. No 1 “?927 PCIJ Reborts; Ser A; No 10. “1927 PCIJ Reports, Ser 6, No 14. z81929 PCIJ Reports, Ser A, No 23. 291931 PCIJ Reports, Ser A/B, No 43. 301933 PCIJ Reports, Ser A/B, No 51. 3’1934 PCIJ Reports, Ser A/B, No 62. ?937 PCIJ Reports, Ser A/B, No 70. ?937 PCIJ Reootts. Ser A/B. No 71. 341947-1948 IdJ Reports, l;, 53, 124; 1949 ICJ Reports 4, 237, 244. 351951 ICJ Reports 116. ?960 ICJ Reports 150. 371968 ICJ Reports 9; 1969 ICJ Reports 3. 381972 ICJ Reports 12,30,181,188; 1973 ICJ Reports 3, 49, 302, 313; 1974 ICJ Reports 3. 175. ?‘976 ICJ Reports 3; 1978 ICJ Reports 3. 401981 ICJ Reoorts 3: 1982 ICJ Reoorts 18; 1984 ICJ Reports 3; 1985 ICJ Reborts 13, 192. 4’1982 ICJ Reports 3; 1984 ICJ Reports 165, 246. @1987 ICJ Reports 10; 1989 ICJ Reports 162; 1990 ICJ Reports 3.
104
that an issue of Oda of the ICJ has
[T]he International Tribunal for the Law of the Sea is to be established as a new judicial organ with comprehensive jurisdiction over all aspects of the law of the sea, I personally still have some reservations It should not be overlooked that the law of the sea has been, and always will be, an integral part of international law as a whole. The law of the sea must be interpreted in the light of the uniform development of jurisprudence in the international community and must not be dealt with in a fragmentary manner . I will not attempt to say that every kind of dispute concerning the ocean should be dealt with by the International Court of Justice. Yet if the new Convention continues in its present direction, namely separating this branch of law from the general rules of international law to place it under the jurisdiction of a separate judicial authority, I am afraid that it will lead to the destruction of the very foundation of international law . . [T]he rule of law based upon the uniform development of jurisprudence will be best structured by way of strengthening the role of the International Court of Justice, not by dispersing the judicial function of the international community among various scattered organs.24
Certainly Judge Oda is right in implying that the ICJ has dealt extensively with the law of the sea. The predecessor to the ICJ, the Permanent Court of International Justice (the PCIJ), considered nine maritime cases: S.S. Wimhledon,2s Lotus,2h Jurisdiction of the European Commission of the Danube, 27 Territorial Jurisdiction of the International Commission of the River Oder,” Access to, or Anchorage in, the Port of Danzig, of Polish War Vessels,2’ Delimitation of the Territorial Waters between the Island of Castellorizo and the Coasts of Anatolia,‘” Lighthouse Cases between France and Greece,“’ Diversion of Water from the Meuse,” and Lighthouses in Crete and Samos.3” The ICJ itself has
rendered in nine
some 31 judgments, advisory opinions more law of the sea cases: Corfu
and substantive Channel,‘4
orders
Fisheries
3s
Constitution of the Maritime Safety Committee of the Inter-Governmemal Maritime Consultative Organization,3h North Sea Continental Shelf,“’ Fisheries Jurisdiction ,3X Aegean Sea Continental Shelf,“” Continental Shelf (TunisialLibyan Arab Jamahiriva),4” Delimitation of the Maritime Boundary in the Gulf of Maine Area,41 and Land, Island and Maritime Frontier Dispute (El SalvadorlHonduras).42 These 40 PCIJ and ICJ
decisions
and opinions
constitute
nearly
one-fifth
MARINE
of the jurisprudence
POLICY March 1992
The Law of the Sea Tribunal and the ICJ
of the international court over the first 70 years of its existence (1920-90).43 As we have seen, the intent of the founders of the Tribunal was to give that court a broad maritime jurisdiction. On reflection, was it necessary or wise to create the Tribunal when the ICJ might be deprived thereby of a significant fraction of its traditional case load? What of Judge Oda’s complaint that separating the law of the sea by the broad jurisdiction of the Tribunal threatens to ‘lead to the destruction of the very foundation of international law’. T44To help answer these questions it might do to turn to the record of international courts, especially the specialized European international courts.
Some European lessons about utility
43M.W. Janis, An Introduction to International Law, Little, Brown, Boston, MA 1988, pp 100-101. 440da, op tit, Ref 5, p 649. 45M W. Janis, ‘Protestants, progress and peace: enthusiasm for an international court in early nineteenth-century America’, M.W. Janis, ed, The influence of Religion on the Development of International Law, Nijhoff, Dordrecht, 1991, p 223. 46Janis, op tit, Ref 43, p 100. 47J.H. Ralston, International Arbitration from Athens to Locarno, 1929, p 153. @Janis, op tit, Ref 43, pp 178-192, 221230.
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March 1992
Although there have long been examples both of ad hoc international adjudication and of aspirations for permanent international adjudicatory tribunals, 4s it is pointless to begin to undertake fine comparative analyses about distinct varieties of international courts before the 20th century. In the first place, there were simply too few even quasipermanent international courts before 1899. In the second place, those courts that did exist or even those that were contemplated, were, by and large, strictly regional, eg, for the Greeks, for the Germans, for the Europeans, or for the Christian ‘civilized’ world. Only with the PCA in 1899, the PCIJ in 1920, and the ICJ in 1945, have there really been permanent universal international courts. To begin the analysis, then, with the international courts of the 20th century, it is important to note the real record of the three permanent universal (and more or less general) international courts. From 1900 to 1990, some 90 years, there have been 26 decisions and opinions by the PCA, 83 by the PCIJ, and 133 (to 1990) by the ICJ. This is a total of some 242 PCA, PCIJ and ICJ decisions and advisory opinions, a not unimpressive number unless it is remembered that this is the record for nine decades of practice. An average of two or three decisions or opinions a year, a caseload that has been characteristic of almost every decade of the international court in the 20th century, supports neither optimists who expect the international court to be a vehicle for world peace nor pessimists who dismiss the court as an unrealistic fantasy: ‘The true story is that the International Court has been an occasional but real actor on the world stage’.46 The international court’s record compels new questions about its utility. How much does the actual caseload of the international court in the 20th century only parallel the caseload of public international arbitration in the 19th century?47 How many of the cases decided by the international court would have simply gone on to public international arbitration had the PCA, PCIJ and ICJ not in fact existed? Whatever the answers to these questions, it is only fair to say that if there is to be a truly new and progressive tale to be told about international adjudication in the 20th century, it must be the story of the specialized international courts, particularly the two European regional international courts, the ECJ at Luxembourg and the ECHR at Strasbourg. These are the two international courts which, after 1960, have truly revolutionized attitudes about the prospect for international adjudication. The number of cases they decide and the efficacy of their judgments draw a bright light between them and the ICJ.48
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The Law of the Sea Tribunal and the ICJ
The ECJ and ECHR are regional international courts. However, in an important sense, they, not the ICJ, may be seen as the lineal descendant of the PCA and the PCIJ. If one looks both to the membership and to the caseload of the PCA and the PCIJ, one sees that both were overwhelmingly European. It may follow that in this sense at least it was the ICJ rather than the ECJ and the ECHR that broke the newer ground after 1945 with its more global scope and aspirations. If the contrast in caseload and efficacy between the ECJ/ECHR and the ICJ is a ‘grand truth’ about modern international adjudication, as it probably is, what does it tell us about the wisdom of establishing another sort of specialized international court, the Tribunal, with a universal character but a limited subject matter competence? The blunt evidence of the relative success of the ECJ and ECHR vis-a-vis the ICJ can tilt both for and against the probable utility of the Tribunal. On the one hand, if the success of the ECJ and ECHR is attributed to their limited competence grounded on a single treaty, then this makes a good case for a Tribunal dedicated to the LOS Convention. A court with an acknowledged expertise respecting the interpretation and application of a certain international convention may well, over time, gain the respect of States. On the other hand, if the relative success of the ECJ and the ECHR is attributed to a narrow membership based on populations similar to each other in terms of culture, politics, law, and economics, then the experience of the ICJ rather than that of the ECJ and ECHR may be more pertinent to the future of the Tribunal. There may be too many international ‘divisions’ to make it reasonable for States often to refer matters to universal courts such as the ICJ and perhaps the Tribunal. If this is the case, then adding the Tribunal to the world of universal courts already and notably inhabited by the ICJ may only share out an already small pie rather than making the small pie any larger. On the face of it, the justice of Judge Oda’s complaint against the Tribunal may depend very greatly on the small pie/large pie analogy. Looking again to Europe, it is probable that the existence of the ECJ and the ECHR has greatly enlarged the ‘pie’ of European international adjudicatory cases, but it is unlikely that the ICJ has shared in the new ‘eating’. It is also unlikely that the creation of the ECJ and the ECHR have much diminished the ICJ’s actual caseload. If the LOS Convention creates a larger ‘pie’ of maritime adjudicatory cases, the experience of the specialized European courts may well hint that the new caseload will flow to the Tribunal rather than to the ICJ. If the LOS Convention, however, does not create more law of the sea cases for the courts, then it is likely that the ICJ will, as Judge Oda foresees, suffer. Some, though probably not all, of the usual maritime caseload will head to the Tribunal. As a matter of utility, it seems well worth the attempt to create and expansively employ the Tribunal. There seems to be no sign over 90 years that a universal international court of general jurisdiction like the ICJ is bound to succeed. Rather, the evidence is that specialized courts like the ECJ and ECHR are the wave of the future. In the hope that the Tribunal will follow in their footsteps, it makes sense to give this specialized universal international court as good an opportunity as possible.
106
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POLICY
March 1992
Mark W. Janis
The article traces the history of the Law of the Sea Tribunal. The conflict between supporters of the Tribunal and the opponents (who view it as infringing on the legitimate territory of the International Court of Justice) is explained. The relatively limited role of universal international courts in the 20th century is described and it is argued that a possible model for the potential success or otherwise of the new Tribunal may be found in the European regional courts: the ECJ and the ECHR. Mark W. Janis is Professor of Law at the University of Connecticut. He may be contacted at 65 Elizabeth Street, Hartford, CN, USA.
International law has long known the difference between universal and regional international courts. At the turn of the last century, for example, there were established both the universal Permanent Court of Arbitration (the PCA) and the regional Central American Court of Justice. Nowadays, of course, the International Court of Justice (the ICJ) is universal, and there are a variety of important regional courts, including the European Court of Justice (the ECJ) and the European Court of Human Rights (the ECHR). These European courts are specialized in that their competences refer only to a limited subject matter, ie the interpretation and application of specific international agreements. Less noticed perhaps than the distinction between universal and regional international courts is the difference between specialized and general universal international courts, ie the distinction between international courts open to all States but limited in subject matter jurisdiction and universal courts like the ICJ which are not so limited. A specialized universal international court that raises some interesting questions about the utility of such tribunals is the International Tribunal for the Law of the Sea (the Tribunal) which is to be established if and when the 1982 United Nations Convention on the Law of the Sea (LOS Convention) comes into force.’ The Tribunal, along with the ICJ and ad hoc arbitral tribunals, is meant to be available to specially consenting States parties to the Convention as ‘a means for the settlement of disputes concerning the interpretation or application’ of the LOS Convention.’ This article surveys the Tribunal and the ICJ and, drawing upon the experience of the two European specialized international courts, assesses the prospective utility of specialized as opposed to general universal international courts.
The Law of the Sea Tribunal
‘UN Dot. AKONF. 62/122 (1982) [hereinafter cited as LOS Convention]. ‘/bid, Article 287(l).
102
The idea of such a Tribunal was initiated at the United Nations Conference on the Law of the Sea in 1974 by the Informal Working Group on the Settlement of Disputes Arising from the Law of the Sea Convention at the suggestion of the US delegation. Professor Louis B.
MARINE
POLICY
March 1992
The Law of the Sea Tribunal
3A.0. Adede, ‘Statement of disputes arising under the Law of the Sea Convention’, American Journal of International Law, Vol 69, 1975, pp 798, 800-801. 41bid, pp 801-818. ‘S. Oda, ‘Some reflections on the dispute settlement clauses in the United Nations Convention on the Law of the Sea’, J. Makarcyzyk, ed, Essays in International Law in Honour of Judge Manfred Laths, Nijhoff, Dordrecht, 1984, pp 645, 645-646. ‘Ibid, pp 646-647. 7/hid, pp 647-649. ‘N.Q. Dinh, P. Daillier and A. Pellet, Droit International Public, 3 ed, 1987, pp 79C791. ‘LOS Convention, op tit, Ref 1, Articles 186-191. ‘O/bid, Annex VI, Article 35. “Ibid, Annex VI, Article 36. “/bid, Article 187. ‘?bid, Part XV, Articles 279-299. ‘%p tit, Ref 3, p 801. l5 LOS Convention, op tit, Ref 1, p 287.
MARINE
POLICY
March 1992
and the ICJ
Sohn served as Rapporteur at the 1974 Caracas and 1975 Geneva sessions of the working group. The USA had proposed draft articles for a chapter on the settlement of disputes to the UN Sea-bed Committee as early as 1973.3 The notion of a specialized Tribunal alongside other means of dispute settlement available to the States parties to the LOS Convention seems to have been grounded on a preference for providing States with as wide a range as possible of choices for dispute settlement.4 From the early days of discussions about the Tribunal, there were those who objected ‘to having a new court or tribunal with blanket jurisdiction over the whole area of the law of the sea, though they fully agreed that certain types of seabed disputes would be dealt with by a new institution to be set up specially for that purpose’.’ Opposition to a Tribunal with an extensive law of the sea competence vis-a-vis the ICJ failed to prevail in the law of the sea negotiations in three key ways. Advocates of the ICJ (1) failed to limit the Tribunal to a limited jurisdiction rather than to ‘any dispute’ involving the LOS Convention; (2) failed to prevent the Tribunal from being called the ‘International Tribunal for the Law of the Sea’ rather than the more pedestrian Law of the Sea Tribunal; and (3) failed to put the Tribunal in second place behind the ICJ among the alternatives for dispute settlement listed in Article 287, ‘Choice of procedure’.6 It is easy to understand why enthusiasts for the ICJ and its ‘international law as a whole’ were despondent about the relative triumphs of the Tribunal.’ As a result of its successful place in the LOS Convention, the Tribunal has become an excellent example of what might be described as an international jurisdiction of a ‘caracttre universal’ involving a ‘compethce restreinte’.8 The Statute of the Tribunal is set out in Annex VI of the LOS Convention, but important provisions respecting it are to be found in the main body of the Convention in Parts XI and XV. Part XI of the LOS Convention deals with the deep sea-bed (the Area) and the International Authority. Part XI also treats dispute settlement in the Area and especially the Sea-bed Dispute Chamber of the Tribunal.‘The Tribunal’s Statute provides that the Sea-bed Dispute Chamber is to consist of 11 of the 21 members of the Tribunal who are to be elected by majority vote of the members of the Tribunal.“’ The Sea-bed Dispute Chamber may also constitute an ad hoc Chamber composed of three members consented to by the parties to the dispute.” Part XI sets forth a very wide jurisdiction for the Tribunal in matters concerning the Area, including cases involving States, the Authority, and private contractors.12 Part XV of the LOS Convention treats the settlement of disputes in general.‘” As already mentioned, the intent behind this part was to ‘give states complete freedom to choose whichever means of settlement is considered suitable by them in a particular case’.14 Accordingly, Article 287 provides: 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; (b) the International Court of Justice; (c) an arbitral tribunal; (d) a special arbitral tribunal constituted . for one or more of the categories of disputes.”
103
The Law of the Sea Tribunal and the ICJ
Although, as a general rule, disputes are to be submitted to one or another of the fora specified in Article 287,” there are a very large number of explicit limitations and exceptions to compulsory dispute military activities’* and maritime boundary settlement, I7 including delimitations.” In some 41 articles, Annex VI of the LOS Convention provides the Statute of the Tribunal to be established in Hamburg with some 21 members who are to be expert in the law of the sea.2(3 The Tribunal’s members are to sit for renewable nine-year terms and are to be elected by the States parties to the LOS Convention.21 Three-member special chambers may be established with the consent of the parties to a is given competence respecting all matters dispute.22 The Tribunal concerning the LOS Convention.2’
The International
Court of Justice
It is with respect to just this broad competence important principle is raised vis-a-vis the ICJ. Judge put the matter plainly: ‘%id, Article 286. 17/bid, Articles 297-299. 181bid, Article 298(l)(b); M.W. Janis, ‘The military activities exception in the Law of the Sea Convention’, Ocean Development and tnternationalLaw, 1979. 19LOS Convention, op tit, Ref 1, Article 298 (l)(a); Manner, ‘Settlement of seaboundary delimitation disputes according to the provisions of the 1982 Law of the Sea Convention’, Essays in /nternationa/
Law in Honour of Judge Manfred Laths, op cif, Ref 5, pp 625, 634-643. *‘LOS Convention, op tit, Ref 1, Annex VI, Article l(2), 2.
“Ibid, Annex VI, Articles 4,5. “/bid, Annex VI, Article 15. 23/hid, Annex VI, Article 21. 240da, op tit, Ref 5, p 649. ?923 PCIJ Reoorts. Ser A. No 1 “?927 PCIJ Reborts; Ser A; No 10. “1927 PCIJ Reports, Ser 6, No 14. z81929 PCIJ Reports, Ser A, No 23. 291931 PCIJ Reports, Ser A/B, No 43. 301933 PCIJ Reports, Ser A/B, No 51. 3’1934 PCIJ Reports, Ser A/B, No 62. ?937 PCIJ Reports, Ser A/B, No 70. ?937 PCIJ Reootts. Ser A/B. No 71. 341947-1948 IdJ Reports, l;, 53, 124; 1949 ICJ Reports 4, 237, 244. 351951 ICJ Reports 116. ?960 ICJ Reports 150. 371968 ICJ Reports 9; 1969 ICJ Reports 3. 381972 ICJ Reports 12,30,181,188; 1973 ICJ Reports 3, 49, 302, 313; 1974 ICJ Reports 3. 175. ?‘976 ICJ Reports 3; 1978 ICJ Reports 3. 401981 ICJ Reoorts 3: 1982 ICJ Reoorts 18; 1984 ICJ Reports 3; 1985 ICJ Reborts 13, 192. 4’1982 ICJ Reports 3; 1984 ICJ Reports 165, 246. @1987 ICJ Reports 10; 1989 ICJ Reports 162; 1990 ICJ Reports 3.
104
that an issue of Oda of the ICJ has
[T]he International Tribunal for the Law of the Sea is to be established as a new judicial organ with comprehensive jurisdiction over all aspects of the law of the sea, I personally still have some reservations It should not be overlooked that the law of the sea has been, and always will be, an integral part of international law as a whole. The law of the sea must be interpreted in the light of the uniform development of jurisprudence in the international community and must not be dealt with in a fragmentary manner . I will not attempt to say that every kind of dispute concerning the ocean should be dealt with by the International Court of Justice. Yet if the new Convention continues in its present direction, namely separating this branch of law from the general rules of international law to place it under the jurisdiction of a separate judicial authority, I am afraid that it will lead to the destruction of the very foundation of international law . . [T]he rule of law based upon the uniform development of jurisprudence will be best structured by way of strengthening the role of the International Court of Justice, not by dispersing the judicial function of the international community among various scattered organs.24
Certainly Judge Oda is right in implying that the ICJ has dealt extensively with the law of the sea. The predecessor to the ICJ, the Permanent Court of International Justice (the PCIJ), considered nine maritime cases: S.S. Wimhledon,2s Lotus,2h Jurisdiction of the European Commission of the Danube, 27 Territorial Jurisdiction of the International Commission of the River Oder,” Access to, or Anchorage in, the Port of Danzig, of Polish War Vessels,2’ Delimitation of the Territorial Waters between the Island of Castellorizo and the Coasts of Anatolia,‘” Lighthouse Cases between France and Greece,“’ Diversion of Water from the Meuse,” and Lighthouses in Crete and Samos.3” The ICJ itself has
rendered in nine
some 31 judgments, advisory opinions more law of the sea cases: Corfu
and substantive Channel,‘4
orders
Fisheries
3s
Constitution of the Maritime Safety Committee of the Inter-Governmemal Maritime Consultative Organization,3h North Sea Continental Shelf,“’ Fisheries Jurisdiction ,3X Aegean Sea Continental Shelf,“” Continental Shelf (TunisialLibyan Arab Jamahiriva),4” Delimitation of the Maritime Boundary in the Gulf of Maine Area,41 and Land, Island and Maritime Frontier Dispute (El SalvadorlHonduras).42 These 40 PCIJ and ICJ
decisions
and opinions
constitute
nearly
one-fifth
MARINE
of the jurisprudence
POLICY March 1992
The Law of the Sea Tribunal and the ICJ
of the international court over the first 70 years of its existence (1920-90).43 As we have seen, the intent of the founders of the Tribunal was to give that court a broad maritime jurisdiction. On reflection, was it necessary or wise to create the Tribunal when the ICJ might be deprived thereby of a significant fraction of its traditional case load? What of Judge Oda’s complaint that separating the law of the sea by the broad jurisdiction of the Tribunal threatens to ‘lead to the destruction of the very foundation of international law’. T44To help answer these questions it might do to turn to the record of international courts, especially the specialized European international courts.
Some European lessons about utility
43M.W. Janis, An Introduction to International Law, Little, Brown, Boston, MA 1988, pp 100-101. 440da, op tit, Ref 5, p 649. 45M W. Janis, ‘Protestants, progress and peace: enthusiasm for an international court in early nineteenth-century America’, M.W. Janis, ed, The influence of Religion on the Development of International Law, Nijhoff, Dordrecht, 1991, p 223. 46Janis, op tit, Ref 43, p 100. 47J.H. Ralston, International Arbitration from Athens to Locarno, 1929, p 153. @Janis, op tit, Ref 43, pp 178-192, 221230.
MARINE
POLICY
March 1992
Although there have long been examples both of ad hoc international adjudication and of aspirations for permanent international adjudicatory tribunals, 4s it is pointless to begin to undertake fine comparative analyses about distinct varieties of international courts before the 20th century. In the first place, there were simply too few even quasipermanent international courts before 1899. In the second place, those courts that did exist or even those that were contemplated, were, by and large, strictly regional, eg, for the Greeks, for the Germans, for the Europeans, or for the Christian ‘civilized’ world. Only with the PCA in 1899, the PCIJ in 1920, and the ICJ in 1945, have there really been permanent universal international courts. To begin the analysis, then, with the international courts of the 20th century, it is important to note the real record of the three permanent universal (and more or less general) international courts. From 1900 to 1990, some 90 years, there have been 26 decisions and opinions by the PCA, 83 by the PCIJ, and 133 (to 1990) by the ICJ. This is a total of some 242 PCA, PCIJ and ICJ decisions and advisory opinions, a not unimpressive number unless it is remembered that this is the record for nine decades of practice. An average of two or three decisions or opinions a year, a caseload that has been characteristic of almost every decade of the international court in the 20th century, supports neither optimists who expect the international court to be a vehicle for world peace nor pessimists who dismiss the court as an unrealistic fantasy: ‘The true story is that the International Court has been an occasional but real actor on the world stage’.46 The international court’s record compels new questions about its utility. How much does the actual caseload of the international court in the 20th century only parallel the caseload of public international arbitration in the 19th century?47 How many of the cases decided by the international court would have simply gone on to public international arbitration had the PCA, PCIJ and ICJ not in fact existed? Whatever the answers to these questions, it is only fair to say that if there is to be a truly new and progressive tale to be told about international adjudication in the 20th century, it must be the story of the specialized international courts, particularly the two European regional international courts, the ECJ at Luxembourg and the ECHR at Strasbourg. These are the two international courts which, after 1960, have truly revolutionized attitudes about the prospect for international adjudication. The number of cases they decide and the efficacy of their judgments draw a bright light between them and the ICJ.48
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The Law of the Sea Tribunal and the ICJ
The ECJ and ECHR are regional international courts. However, in an important sense, they, not the ICJ, may be seen as the lineal descendant of the PCA and the PCIJ. If one looks both to the membership and to the caseload of the PCA and the PCIJ, one sees that both were overwhelmingly European. It may follow that in this sense at least it was the ICJ rather than the ECJ and the ECHR that broke the newer ground after 1945 with its more global scope and aspirations. If the contrast in caseload and efficacy between the ECJ/ECHR and the ICJ is a ‘grand truth’ about modern international adjudication, as it probably is, what does it tell us about the wisdom of establishing another sort of specialized international court, the Tribunal, with a universal character but a limited subject matter competence? The blunt evidence of the relative success of the ECJ and ECHR vis-a-vis the ICJ can tilt both for and against the probable utility of the Tribunal. On the one hand, if the success of the ECJ and ECHR is attributed to their limited competence grounded on a single treaty, then this makes a good case for a Tribunal dedicated to the LOS Convention. A court with an acknowledged expertise respecting the interpretation and application of a certain international convention may well, over time, gain the respect of States. On the other hand, if the relative success of the ECJ and the ECHR is attributed to a narrow membership based on populations similar to each other in terms of culture, politics, law, and economics, then the experience of the ICJ rather than that of the ECJ and ECHR may be more pertinent to the future of the Tribunal. There may be too many international ‘divisions’ to make it reasonable for States often to refer matters to universal courts such as the ICJ and perhaps the Tribunal. If this is the case, then adding the Tribunal to the world of universal courts already and notably inhabited by the ICJ may only share out an already small pie rather than making the small pie any larger. On the face of it, the justice of Judge Oda’s complaint against the Tribunal may depend very greatly on the small pie/large pie analogy. Looking again to Europe, it is probable that the existence of the ECJ and the ECHR has greatly enlarged the ‘pie’ of European international adjudicatory cases, but it is unlikely that the ICJ has shared in the new ‘eating’. It is also unlikely that the creation of the ECJ and the ECHR have much diminished the ICJ’s actual caseload. If the LOS Convention creates a larger ‘pie’ of maritime adjudicatory cases, the experience of the specialized European courts may well hint that the new caseload will flow to the Tribunal rather than to the ICJ. If the LOS Convention, however, does not create more law of the sea cases for the courts, then it is likely that the ICJ will, as Judge Oda foresees, suffer. Some, though probably not all, of the usual maritime caseload will head to the Tribunal. As a matter of utility, it seems well worth the attempt to create and expansively employ the Tribunal. There seems to be no sign over 90 years that a universal international court of general jurisdiction like the ICJ is bound to succeed. Rather, the evidence is that specialized courts like the ECJ and ECHR are the wave of the future. In the hope that the Tribunal will follow in their footsteps, it makes sense to give this specialized universal international court as good an opportunity as possible.
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MARINE
POLICY
March 1992