|
Judge Oda’s primary criticism is that the establishment of the Tribunal for the Law of the Sea, especially, detracts from the role of the ICJ as the primary judicial organ of the United Nations, and that it will separate the law of the sea from the main body of public international law within which it is and should be deeply entwined. He argues that only law of the sea disputes involving highly technical matters or nonjudicial issues (which he defines broadly) should be submitted to special law of the sea dispute settlement forums. All others should be required to be placed before the ICJ.
I agree with Judge Oda that the law of the sea has been, and should continue to be, deeply entwined in general international law but that certain disputes involving this subject may be better handled by specialized dispute settlement organs. I also believe that it is valuable to maintain the predominance of the ICJ in public international law. In fact, the World Court has heard more cases touching on the law of the sea than on any other area of public international law.[44]
Some criticisms concern the variety of forums available to hear the law of the sea dispute could damage the development of consistent jurisprudence. [45] The 1982 Convention provides for a free competition system among four forums at the compulsory procedural level. No forum has exclusive authority to interpret the 1982 Convention. However, this concern is probably overblown. I doubt that the Tribunal for the Law of the Sea or the other dispute settlement forums under the 1982 Convention will fail to take appropriate account of public international law. As Judge Oda correctly observes, the law of the sea is deeply entwined in public international law.
By providing a variety of options, the 1982 Convention encourages the peaceful settlement of disputes under law. We should celebrate the increased number of forums for third-party dispute settlement found in the 1982 Convention and other international agreements because it means that international third-party settlement procedures, especially adjudication and arbitration, are becoming more acceptable. This development will promote the evolution of public international law and its broader acceptance by the public as a true system of law.[46] The new forums created by the1982 Convention may benefit both general international law and the law of the sea, and also promote the peaceful settlement of international dispute.
--------------------------------------------------------------------------------
[1] See R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd edn, Manchester University Press,1999, P461.
|
