The 1982 United Nations Convention on the Law of the Sea is the primary international agreement governing maritime law. It incorporated a feature that, at the time, was considered to be on the leading edge of international legal development: a binding dispute resolution system. At the time of accession, each state party was required to select one of four available forums: the International Court of Justice, the newly created International Tribunal on the Law of the Sea, private arbitration, or special tribunals convened to resolve unique scientific and environmental matters. Since the Convention went into effect in 1994, however, states have made little use of the system; many have resolved issues through private negotiation or have simply allowed legal conflicts to endure. Moreover, less than a quarter of parties to the 1982 Convention have selected a preferred forum. Among the relatively small set of cases that have been heard, however, patterns have begun to emerge that contain hints about how states engage in forum shopping in the maritime context. This Comment conducts a comprehensive analysis of existing case law and tests various academic theories about forum shopping to determine why states opt for each of the various courts or tribunals when submitting a dispute for resolution under the Convention. It finds that subject matter is the best predictor of forum selection, as each forum has made use of comparative advantages to gain a foothold in particular areas of the law. The Comment also notes a worrying trend in non-participation by major powers, including Russia, China, and the U.S. If the great powers of the world reject the compulsory nature of the system, UNCLOS will become less effective at channeling tensions into peaceful resolutions. This will increase the risk that states will resort to the use of force to solve disputes.
Gates, Douglas W.
"International Law Adrift: Forum Shopping, Forum Rejection, and the Future of Maritime Dispute Resolution,"
Chicago Journal of International Law:
1, Article 8.
Available at: https://chicagounbound.uchicago.edu/cjil/vol18/iss1/8