Abstract
In “Judicialization of the Sea: Bargaining in the Shadow of UNCLOS,” Sara Mitchell and Andrew Owsiak define “legalization” as international legal constraints, and “judicialization” of the law of the sea as states’ sense that their policy options are legally bounded, and that courts have gained the authority to define the meaning of the law of the sea. The authors are generally correct that the processes of legalization and judicialization under the UN Convention on the Law of the Sea (UNCLOS) fundamentally alter interstate behavior in significant ways, whatever the choice of dispute settlement mechanisms a state party to UNCLOS has made. However, as I explain in this essay, the International Tribunal for the Law of the Sea (ITLOS) should be the most often utilized mechanism to settle UNCLOS disputes, and its potential as a dispute settlement mechanism has yet to be used to the fullest extent.
Highlights
In “Judicialization of the Sea: Bargaining in the Shadow of UNCLOS,” Sara Mitchell and Andrew Owsiak define “legalization” as international legal constraints, and “judicialization” of the law of the sea as states’ sense that their policy options are legally bounded, and that courts have gained the authority to define the meaning of the law of the sea
The authors are generally correct that the processes of legalization and judicialization under the UN Convention on the Law of the Sea (UNCLOS) fundamentally alter interstate behavior in significant ways, whatever the choice of dispute settlement mechanisms a state party to UNCLOS has made
As I explain in this essay, the International Tribunal for the Law of the Sea (ITLOS) should be the most often utilized mechanism to settle UNCLOS disputes, and its potential as a dispute settlement mechanism has yet to be used to the fullest extent
Summary
In “Judicialization of the Sea: Bargaining in the Shadow of UNCLOS,” Sara Mitchell and Andrew Owsiak define “legalization” as international legal constraints, and “judicialization” of the law of the sea as states’ sense that their policy options are legally bounded, and that courts have gained the authority to define the meaning of the law of the sea. The authors are generally correct that the processes of legalization and judicialization under the UN Convention on the Law of the Sea (UNCLOS) fundamentally alter interstate behavior in significant ways, whatever the choice of dispute settlement mechanisms a state party to UNCLOS has made. When negotiations run into a stalemate, there is always a possibility that one of the governments may decide to resort to third-party dispute settlement mechanisms under UNCLOS This lurking possibility generates strong incentives for negotiating states to settle out of court whatever their respective bargaining power. The authors’ use of Article 287 declarations to investigate the above effect of judicialization is helpful in this regard They are correct to conclude that states that accept the jurisdiction of international courts through optional declarations signal a commitment to judicial settlement
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