Author Archive for
Kristen Boon

The Transformation of the Permanent Court of Arbitration

by Kristen Boon

The Permanent Court of Arbitration (PCA) recently released its 2012 annual report, which documents its remarkable institutional transformation. Established in 1899, the PCA is an intergovernmental organization based in the Peace Palace in The Hague.  Although it has a long and interesting history, including housing the Iran – U.S. Claims Tribunal for a number of years, over the last 12 years the PCA has seen its workload and subject matter scope increase exponentially.  As Secretary General of the PCA, Hugo Siblesz, noted in a speech in February:

“As of this moment, the PCA is acting to administer 71 pending cases, including 5 inter-State arbitrations, 48 arbitrations under bilateral or multilateral investment treaties, and 18 arbitrations in contract disputes involving States, State entities, or international organizations. In total, 152 arbitrations have been brought to the PCA in the past 12 years, in comparison with only 34 cases administered in the first one hundred years of the organization. In inter-State arbitration, the PCA has recently seen more activity than at any other point in its history – including the flush of arbitrations brought to the PCA in its early days before the First World War. And in disputes between States and private parties, the PCA has now handled more arbitrations under the UNCITRAL Rules than any other institution, developing in the process a singular experience in the application of those Rules.”

There was an extremely interesting panel on the PCA organized by ASIL in February, focusing on the PCA’s reinvention.  The PCA is an active and multi-faceted institution that acts as a registry and/or appointing authority in a range of international law issues, including public international law disputes, investor-state arbitrations, commercial contract disputes, law of the sea arbitrations under Annex VII of UNCLOS, and energy charter treaty disputes.  It has even administered an arbitration between a State and an armed movement within its territory (namely the Abyei Arbitration between the Government of Sudan and the Sudan People’s Liberation Movement/Army in 2008 – 9).

One institutional feature of note is that PCA offers a development assistance fund for states that require financial aid for use of PCA’s services.  Member states donate to the fund, and the 2012 report  notes 8 states – 5 from Africa, 2 from Asia and 1 from Latin America have received assistance thus far.  In addition, the PCA has just adopted new procedural rules for disputes involving at least one State, state-controlled entity, or international organization.    An interesting addition here is Article 34(7) which requires states to report on execution of the award, in an attempt to improve compliance.

Amb. Siblesz noted that dispute resolution in international matters is on the upswing generally, which is a trend to note in terms of the field generally.  Nonetheless, one aspect of the PCA’s comparative success in attracting cases appears to be its ability to provide high quality, quick, and confidential services, in a range of international law matters.  Thus in terms of lessons to be learned, generality rather than speciality appears to be aiding the PCA in its competitive bid.  Its general successes are also leading some to speculate whether it could assist the UN on a more permanent basis with regards to mediation and arbitration of international matters.  Thus, for example, might the PCA be used by the UN as a go-to institution for international dispute resolution generally, perhaps supplementing or even replacing in certain cases, the usual system of special envoys and representatives?


New ITLOS Advisory Opinion Sought

by Kristen Boon

The International Tribunal of the Law of the Sea has received a request for an advisory opinion from the Sub Regional Fisheries Commission located in Senegal. The Commission is a treaty based organization founded in 1985, which has seven member states (Senegal, Cape Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, and Sierra Leone). Some background information on the Commission is available here.

The Commission’s request asks four questions:

1. What are the obligations of the flag State in cases where illegal, unreported, and unregulated (IUU) fishing activities are conducted within the Exclusive Economic Zone of third party States?

2. To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag?

3. Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question?

4. What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and sticks of common interest, especially the small pelagic species and tuna?

If ITLOS’s approach to this advisory opinion is similar to its Advisory Opinion on the Seabed, we can expect a creative and expansive response.  There, ITLOS affirmed the due diligence principle (which the ICJ recognized in the Pulp Mills case), and gave it content by linking it to the obligations of states.  ITLOS therefore has a trackrecord of “making waves” with regards to linkages between the law of responsibility and the Law of the Sea.

Nonetheless, at present, there is not much information generally available about the background of this request other than general difficulty with IUU fishing in the region.   Has the commission brought this case to try to gain leverage with distant water fishing nations?  Is this ultimately a dispute with the EU?   Some relevant conversations about the law of the sea and responsibility are taking place at the Food and Agriculture Organization that might provide useful background information.  See in particular the draft guidelines on Flag State performance that address questions of flag state responsibility for IUU fishing.

And we at Opinio Juris hope to contribute to this conversation by way of a symposium later this spring on the intersection between the law of the sea and principles of state responsibility.

New Guidelines for Armed Private Security Companies Doing Business with the UN

by Kristen Boon

Armed Private Security Companies (APSC) doing business with the UN are now subject to a new set of practices and protocols that contain a multi-stakeholder monitoring and complaints mechanism.   These practices and protocols are set forth in the International Code of Conduct for Private Security Providers (“Code”), which the UN incorporates via its new Guidelines on the Use of Armed Security Services from Private Security Companies (“Guidelines”) (to be read in conjunction with the UN’s Security Policy Manual, Chapter IV, Section I, “Armed Private Security Companies”).

The UN now requires that APSCs comply with the Code, and limits its hiring of armed APSCs to those that cooperate with the mechanism, as detailed in Section F of the Guidelines.  Prior to commencing UN service, the Guidelines require the APSC to provide training to its personnel on, among other things:

  • cultural sensitivity training
  • Human Rights Law and application
  • Use of Force training
  • integrity and ethical awareness
  • preventing sexual harassment

James Cockayne provides a good overview of the context and content of the Guidelines over at the IPI’s Global Observatory.

The effort is significant for a few reasons.  First, it demonstrates a new effort towards regulating the activities of the UN’s numerous commercial partners in the peace and security field.   This effort to implement and maintain international standards will replace practices that many have described as incoherent and inconsistent (as described in the report here).

Second, these UN specific Guidelines supplement a general but stalled effort to create a multilateral convention on private military and security companies, and will consequently contribute to the soft law in the field.   The most recent draft (from 2010) is available here.  The UN is thus to be applauded for introducing the Guidelines at this time, as opposed to stepping back and waiting for the multilateral process to mature.

Finally, the Guidelines are indicative of a general move towards multi-stakeholder regulation of non-state actors.   This trend has been noted in other international areas including health, as this paper by Professors Abbott and Gartner make clear.   The oversight mechanism here will be established as an association under Swiss law.  It will be governed by two multistakeholder bodies: a General Assembly and a Board. There are three ‘pillars’ in each composed of civil society, industry and states/IOs.  Voting is arranged so as to give any pillar the power to block a decision.  As a result, states, civil society organizations, and industry must cooperate in the Association’s certification, human rights monitoring and complaints mechanism processes.

The oversight mechanism works by requiring the Association to review APSC performance under the Code through external monitoring and self-reporting based on established criteria.  If an APSC violates the code, the Association can initiate suspension proceedings.  For proceedings launched by individuals, the Board can also set up a grievance process to ensure an effective remedy.

I am interested in what OJ readers think.  Will this approach fill an accountability gap by improving   human rights compliance in the field?  Moreover, will this soft law approach establish new benchmarks for an eventual multilateral treaty?  There will be a panel on this topic at the annual ASIL meeting later this week which will be well worth attending.


Expanding the “Jaws” of CITES

by Kristen Boon

States parties to the Convention on the Trade in Endangered Species (CITES) voted to list five new commercially valuable shark species under Appendix II last week, notwithstanding an attempt to reopen the discussion in the final plenary by some dissenters. The international trade in oceanic whitetip (Carcharhinus longimanus), scalloped hammerhead (Sphyrma lewini), great hammerhead shark (Sphyrna mokarran), smooth hammerhead shark (Sphyrna zigaena) and the porbeagle shark (Lamna nasus) will now be restricted.  These species have been harvested in huge numbers for their valuable fins and/or meat.   On the day of the vote, Susan Lieberman of the PEW Environmental Trust said “today was the most significant day for the ocean in the 40-year history of CITES.”  This CITES press release gives more details on the measures.

Under CITES, species listed under Appendix II are those “that are not necessarily now threatened with extinction but that may become so unless trade is closely controlled… International trade in specimens of Appendix-II species may be authorized by the granting of an export permit or re-export certificate.  Permits or certificates should only be granted if the relevant authorities are satisfied that certain conditions are met, above all that trade will not be detrimental to the survival of the species in the wild.”

A similar attempt was made to list Bluefin Tuna on Appendix II in 2010, but this failed to garner enough votes.  I blogged about it here, and described it as an attempt at regime shifting (away from ICCAT, the RFMO with jurisdiction over tunas, and towards CITES).

The CITES listing is only one piece of good news for sharks however.  On the same day, a separate UN Agency, the Food and Agriculture Organization, released a report underscoring the critical condition of other shark populations in the Mediterranean and Black Sea.

In addition to sharks, a number of tropical timber species were added onto CITES Appendices, which will be enforced by a number of sophisticated new timber tracking technologies.

An attempt to list Polar Bears was defeated.    The discussion (which pitted Canada, which opposed the listing as it exports some polar bear parts, against the United States) was noteworthy because there was a difference of opinion with regards to the cause of the threat – climate change or hunting practices.

As I noted in my blog about tunas, there are few restraints on high seas fishing due to the principle of open access.  It has thus been difficult to create regimes that can effectively regulate the fishing of migratory species.  These additions to the CITES Appendices thus mark both an important expansion in the scope of CITES and an attempt to protect a broadening range of scarce natural resources that are subject to commercial exploitation.

Lex Specialis and the Responsibility of International Organizations

by Kristen Boon

Lex Specialis was a topic of much discussion during the ILC debates on the Responsibility of International Organizations.  The central issue was this:  how broad is the provision, and does it give IOs carte blanche to derogate from or contract around the residual rules of responsibility?   I’ve just posted an article on SSRN here that gives my take.  Here is the abstract:

The International Law Commission’s recent endeavor to progressively develop principles of responsibility applicable to international organizations reignited an old debate: do international organizations share a common set of core attributes? Or are they fundamentally sui generis, given their great variations in mandate, size, and power vis–à– vis member States? The comments submitted by international organizations to the Commission demonstrate that there is very little consensus on the genus of international organizations, and consequently on the application of general rules to these increasingly important and pervasive bodies. Indeed, most organizations took the position that the founding premise of the international legal framework applicable to them should be speciality not generality.

The article is part of a forthcoming book edited by Dr. Maurizio Ragazzi entitled The Responsibility of International Organizations.   The book contains a block buster list of authors.  Keep an eye out – it will be published by Brill.


Topics of Interest at the 22nd Session of the Human Rights Council

by Kristen Boon

The 22nd session of the Human Rights Council opened on February 22, and is now in its second week.  The overall program of work is available here.

A hot topic next week will be the March 11 discussion on Syria, which will draw on this February 2013 report by the International Independent Commission of Inquiry on the Syrian Arab Republic.

In addition, the Council has now discussed the right to adequate housing, enforced disappearances and the rights of the child.   Yesterday, Special Rapporteur on human rights and counter terrorism Ben Emmerson urged US authorities to “publish without delay, and to the fullest extent possible, the Senate Select Committee on Intelligence report into the CIA’s secret detention and interrogation programme” as this article explains.  There is a nifty chart showing countries and issues to be addressed here.  Webcasts are available here.

UN Flatly Rejects Haiti Cholera Claim

by Kristen Boon


After 15 months, the UN has finally responded to the Haiti Cholera claims brought by lawyers representing over 5000 victims.  For background on this massive and tragic case, see my post here.

The UN’s rejection was communicated to the claimants’ lawyers via this two page letter which relies on a brief reference to the Convention on Privileges and Immunities in support of the decision.  The operative paragraph of the letter is as follows:

“With respect to the claims submitted, consideration of these claims would necessarily include a review of political and policy matters.  Accordingly, these claims are not receivable pursuant to Section 29 of the Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly on 13 February 1946.”


Section 29 of the Convention on Privileges and Immunities of the UN requires the United Nations to “make provisions for appropriate modes of settlement of […] disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party”.

This provision mitigates the absolute de facto immunity of the United Nations, and August Reinisch has argued that the rationale of Section 29 is to ensure due process of law and to protect fundamental human rights.

The UN’s position appears to be that the cholera claim is in the nature of a public (rather than a private law claim cognizable under Section 29) due to the political and policy issues it raises.   Nonetheless, there is no explanation in the letter itself as to why this should be considered a public law dispute.

One key element of a public law claim would presumably be that the dispute arises between a state and the UN, but in this case it is absent because Haiti expressly elected not to participate in this dispute.  Perhaps another rationale is that the claim involves public law because the cholera outbreak arose pursuant to a Status of Forces Agreement with Haiti.

Many elements of a “dispute of a private law character”, however, would appear to be present:  the claim itself was essentially one of tort, the claimants were private individuals (represented by an NGO), and the remedy sought was monetary compensation.   This distinction clearly troubled the claimants lawyers as well, as their press release makes clear.

The upshot of this communication is that the claimants have no venue to pursue their case.    The UN’s decision cannot be appealed.  Moreover, if the UN were sued in a national court, it would assert its privileges and immunities which would shield it from jurisdiction.   Although the Model Status of Forces Agreement  provides for a standing claims commission, no such commission has ever actually been established in any context.   There is a well developed practice of adjudication by local claims boards for routine claims and injuries that occur during Peacekeeping Missions, although in this case, it appears that such a board in Haiti would not have jurisdiction due to the complexity of the case in addition to the level of compensation sought.

Does anyone have views as to whether the UN’s assertion that this is a public law claim is supported by the law or past practice?   If this distinction between public and private claims was so clear, it is surprising that the UN took 15 months to respond, and then in such a terse manner.

A Bigger Transitional Justice Role Recommended for the AU

by Kristen Boon

The International Peace Institute (where, in full disclosure, I am spending part of my sabbatical as a Senior Visiting Advisor) has just released a new report entitled Peace, Justice and Reconciliation in Africa.  The report, which will be of interest to those who follow the ICC and transitional justice issues, is available here

The report makes two recommendations:

1)      The African Union’s Panel of the Wise (a five member consultative body of the AU) should adopt an advocacy role to promote and reinforce guiding principles.  Specifically, the Panel is urged to place transitional justice issues at the center of a new continental legal architecture, which would include promoting ratification of existing legal instruments such as the African Charter on Human and People’s rights and the new African Court on Human and Peoples’ Rights.

2)      The AU should develop a Transitional Justice Policy Framework and strengthen instruments for justice and reconciliation on the continent.  The text provides general background on the ICC’s role in Africa, but of particular note are the recommendations in the Annex that, if implemented, would alter the landscape of international criminal law in Africa.  For example, the Annex suggests the creation of an AU – ICC liason office and AU hybrid courts with jurisdiction over crimes within the Rome Statue and Geneva Conventions. 

If implemented these recommendations would be a significant step towards a stronger AU.  I’ve blogged here about the AU’s increasing use of sanctions, and have watched with interest the growing (but not always harmonious) relationship between the AU’s Peace and Security Council and the UN Security Council, as illustrated by differences of opinion on how to respond to the crises in Libya and Côte d’Ivoire and over the financing of the AU Mission in Somalia in 2011.  On the international criminal justice front, a low water mark was the AU’s decision to oppose the ICC’s indictment of Bashir.  Better coordination between the AU and other institutions like the Security Council and the ICC would change the landscape considerably.  The International Peace Institute’s report is worth a read.

International Law and Scarcity

by Kristen Boon

Scarcity of land, water, food, fish…These are common refrains today, and yet they beg an important question: what is scarcity?  This was the starting point of a terrific conference this week organized by the Dean Rusk Center, at the University of Georgia Law School, the Georgia Journal of International and Comparative Law, and OJ friend Professor Harlan Cohen.

The definition of scarcity can be approached in three ways.  Usually, scarcity is determined by supply and demand.  When demand outruns supply, it goes, we are in a state of scarcity. Nonetheless, the economic view of scarcity is not the only relevant framework because it doesn’t address questions of access.   Another way of looking at the issue, therefore, is through the window of rights and justice.  In other words we must consider vulnerability, exclusions, and access when we are assessing access.  Finally, we might look at the use of exhaustible resources on a trajectory.  As resources are used, we move down a slope.  The issue then is where are we on that slope with regards to exhaustible resources, and what should we do about it?

On the issue of how to respond to questions of scarcity, members of the panels canvassed opportunities to conserve, redistribute, substitute, innovate, acquire, and even abandon.  Some were particularly keen to highlight the problems of waste, as we contemplate scarcity.   Nonetheless, the discussion led to the suggestion we can’t get a handle on any of the scarcity issues in one area without coming to terms with the fact choices may need to be made about what uses are most important.  Normative choices about what to prefer, perhaps based on substitutability, will be part of the solution.  (Although, water and air of course are not substitutable.) Moreover, we might need to think hard about governance choices in order to make those institutions stick.  Management and regulation are therefore part of the conversation.

But these approaches raise big questions about whether to think about all these issues separately or together, in emergency/crisis terms or in terms of long-range planning, locally or globally.  Ultimately, it may depend on what resources we are talking about.  For my part, I discussed scarcity and redistribution in the case of Bluefin Tuna, which I have blogged about here.

At Your Fingertips ….. International Law Apps

by Kristen Boon

It’s becoming a trend …. international law apps that aim to influence policy makers and engage the public. The app for “Children and Armed Conflict” (sponsored in part by the Mission of Liechtenstein)  collates information on the legal framework and grave violations relevant to the effects of armed conflict on children, as well as providing recent news, background information on country situations, relevant Security Council resolutions, and even a checklist for drafting new mandates.  As the app’s homepage explains:  ”with this application we aim to provide policy-makers and those seeking to influence them with readily available key documents and appropriate language on child protection issues in order to increase the agenda’s impact.”    This note by the International Peace Institute indicates how useful the app is in situating what may appear to be isolated incidents within large trends.

There is also an app titled “Safe Access to Firewood and alternative Energy” which addresses the lack of safe access to cooking fuel in humanitarian situations.   This app uses decision trees and matrices on roles and responsibilities to develop strategies for long term fuel supply and identify the responsible agencies and working groups.

An app titled “Women, Peace & Security Handbook” provides a compendium of resolutions that address issues relevant to women, peace and security on topics such as:  sexual exploitation, displacement, and participation.    This app serves as a mini-handbook, providing up to date information on thematic trends within Security Council resolutions.

A movement is now afoot to develop a new Sanctions App that would provide information to practitioners on the design of UN sanctions.  According to preliminary materials distribution by the Swiss Mission to the UN the “Sanctions App (an iPhone, iPad, or android application) would be based on links to relevant operative paragraphs of UNSCRs and also contain interactive features to enable real-time access to various databases while draft texts of new sanctions resolutions are being developed.”

These apps coincide with the proliferation of apps for charitable giving and advocacy on various issues including immigration and protest.  Even the Red Cross has entered the fray, developing apps that will apply in humanitarian emergencies.

Are these apps the leading edge in the growth of international law, and can we see more to come?  Or, might the high costs associated with entry and design keep tightly funded organizations from entering the space?  What do OJ readers think?

Sanctions On the Upswing by Regional Bodies in Africa

by Kristen Boon

The African Union (AU) and the Economic Community of West African States (ECOWAS) are becoming active sanctioners in Africa.   In the last few years, the AU and ECOWAS have applied sanctions in many African conflicts, including Mali, the Central African Republic, Ivory Coast, and Guinea-Bissau.  This represents a lot of activity for the AU in particular, which is only 10 years old.

The role of sanctions by regional organizations is to be contrasted with the UN Security Council’s.  The UN has typically applied sanctions in three situations: counter-terrorism, nuclear proliferation, and in cases of civil wars or interstate conflicts.  However, sanctions by African regional organizations focus heavily on internal political conditions.  Under Articles 23 and 30 of the AU’s constitutive act, for example, the AU can sanction for non-payment of organizational dues and for unconstitutional changes of government. See an analysis of these provisions here.   For ECOWAS, Article 45 of the Protocol on Democracy and Good Governance permits sanctions against its members “in the event that democracy is abruptly brought to an end by any means or where there is massive violation of Human Rights in a Member State.”    In sum, these regional security systems permit sanctions in internal situations where the constitutional order and good governance is at stake. These are situations where the UN Security Council rarely acts, unless it is supporting regional measures, as it did in Guinea Bissau and Sierra Leone.  Regional organizations consequently have a narrow purview, and focus less, as a legal matter, on the international ramifications to peace and security that would trigger the Security Council’s chapter VII powers.

In terms of form, the AU applies what are known as “targeted” sanctions that apply to specific actors and have specific goals.  AU targeted sanctions typically involve travel bans, asset freezes, and denial of transport and communications, as this excellent report by Mikael Eriksson explains.    Both the AU and ECOWAS can suspend membership rights as well.   Suspension might appear as little more than a slap on the wrist, however it has long been observed that there are multiple obstacles to effective implementation of sanctions in Africa, including: (i) lack of local capacity to implement; (ii) porous borders blunting the impact of sanctions, and (iii) the difficulty of reaching targeted individuals who operate outside formal financial systems.   Exclusion from membership of a respected regional organization may therefore have a greater impact than multilateral sanctions imposed by distant bodies, due to the stigmatizing effects and loss of participation in local economic and security communities.

Another difference between UN and regional sanctions is duration.   Whereas UN Security Council sanctions often linger on for years, and some would argue, far beyond their natural lifespan, sanctions applied by the African organizations are typically short lived.  For example, ECOWAS applied sanctions against Mali’s leaders in April 2012, and lifted them a few months later, in August 2012.   Relatedly, regional organizations have been much quicker to threaten sanctions in deteriorating political situations, and use them as a tool to keep the dialogue going in times of instability.  Although the track record is too short to indicate definite trends, it appears that sanctions by regional bodies have been more nimble and responsive to situations on the ground.  Nonetheless, regional organizations have encountered many of the same problems of implementation and compliance as Security Council. The jury is still out on whether regional sanctions are more effective.

Sanctions will be an important nexus point for future cooperation between the UN Security Council and regional bodies.   Of course the UN Charter accords the UN Security Council primary (but not exclusive) responsibility with regards to peace and security. There is interesting work being done on the relationship between the AU’s Peace and Security Council and the UN Security Council on peacekeeping, but little work (as far as I am aware) assessing the relationship between the Security Council and regional organizations on sanctions.  This seems like an important area of inquiry moving forward, as it might provide an opportunity to more fully utilize Chapter VIII of the UN Charter on regional arrangements.

East China Sea dispute: what is the Role of International Law?

by Kristen Boon

The Senkaku / Diaoyu islands, a series of rocky, uninhabited outcrops, are being claimed by Japan, China, and Taiwan, amongst others, both for historical reasons, and because of their potential value in anchoring sovereignty over natural resources like oil.   Some have predicted the dispute may be a military “flash point” in 2013.

As Duncan noted last month, China made a partial submission to the Commission on the Continental Shelf in December, identifying the outer limits of China’s continental shelf.   Reactions of neighboring countries to China’s submission are starting to emerge.   Last week, Korea made a partial submission to the Commission seeking to identify the outer limits of Korea’s continental shelf, which, unsurprisingly, overlap with China’s claim.  The map here is illustrative.

Moreover, in a note dated December 28, 2012, Japan asked the Commission not to consider China’s submission because the distance between the coasts in the area covered by the submission is less than 400 nautical miles, and pursuant to UNCLOS Article 83, the delimitation must be effected by agreement of the parties.  As a result, Japan is maintaining its position that the islands are under Japan’s control and are an inherent part of its territory.

Reactions from other countries with interests in the area (Vietnam, the Philippines and Brunei for example) may be forthcoming.

Despite the overlap between continental shelf claims and sovereignty over the islands however, the  Commission’s direct role in the dispute will be limited.  The Commission makes independent recommendations that are based on technical and scientific data.  It is not competent to consider the merits of division lines between states with overlapping claims, as this article by Coalter Lathrop explains.  As a result, the parties’ submissions to the Commission are without prejudice to their strategy in the larger political contest over sovereignty to the islands.

Looking ahead however, if the sovereignty dispute evolves into a delimitation dispute between the various parties, it could be resolved in one of three ways: military action, political negotiations or international dispute resolution.  To date, most seem to assume that international dispute resolution (and, I might add, international law) will not have much of a role to play.  Although parties to the UN Law of the Sea Convention (and most of the relevant contenders in this dispute are parties to UNCLOS) are required to submit their disputes to one of four methods of compulsory dispute resolution pursuant to Article 298, international jurisdiction in this case is complex because of the number of countries potentially involved, the patchwork of treaty commitments and reservations over dispute resolution mechanisms and law of the sea matters, and the “cultural” hesitance of some of the key players to submit the dispute to an international tribunal. (OJ readers, please chime in on these complexities!)

Nonetheless I think the November 19, 2012 decision of the International Court of Justice (ICJ) in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia) should give the parties to the S/D dispute confidence in the role of international dispute resolution mechanisms.   In that decision, the ICJ found that Colombia has sovereignty over disputed Caribbean islands in the San Andres Archipelago.  The Court also found Nicaragua has sovereignty over a disputed maritime area of approximately 75,000 square kilometers.   In essence, the Court tried to reach an equitable decision by giving one country sovereignty over the islands and another sovereignty over the marine area. Although the judgment was initially met with anger in Colombia, even leading it to denounce the Bogota pact which gave the ICJ jurisdiction in the first place, a few days later Bolivia suggested that it might submit a brewing dispute with Chile to the ICJ, suggesting that the authority of the Court has not been diminished in the region.

The ICJ has a long and impressive track record on maritime delimitation cases.  It has been seized of 15 such cases around the world, including an ongoing dispute between Peru and Chile.  Moreover, compliance rates with ICJ cases are generally high because the ICJ has limited, consent-based, jurisdiction.  Third party alternatives to the ICJ are arbitral tribunals, and the International Tribunal of the Law of the Sea (ITLOS), which released its first maritime boundary decision in March 2012, in the Myanmar v. Bangladesh case.

All indicators suggest that the need for dispute resolution in maritime matters will increase.  As countries get bigger, so to speak, by defining their maritime entitlements like the extent of their continental shelf, it is not surprising that they will start to bump up against one another.  With 180 unresolved maritime disputes around the globe, dispute resolution is becoming increasingly appealing when bilateral negotiations fail or stall.

Countries in the South East China sea dispute should reconsider their circumspection towards international dispute resolution.  We need an international court with international jurisprudence in particularly the type of situation where regional tensions run high.  It is surely better than the alternative:  protests, military exercises and potentially conflict at sea.