Research of the Judicial Jurisdiction Project

The current regime for the oceans is built around the United Nations Convention on the Law of the Sea (LOSC). During its negotiation, providing States access to international courts and tribunals was considered essential for guaranteeing the uniform interpretation and application of the LOSC and therewith its stability and future relevance.

Part XV of the LOSC contains one of the most comprehensive dispute settlement systems in international law. However, a recent arbitration between the Philippines and China, which rejected China’s controversial maritime claims in the South China Sea, indicates that the work of courts and tribunals may raise sharp controversy. This in particular concerns the question to what extent they may decide on rules of law not contained in the LOSC in settling disputes under the Convention. Going too far in this respect could lead to the accusation of judicial activism. Too much restraint could make courts and tribunals ineffective as they would not be able to settle disputes submitted to them.

The project will analyse both the choices the judiciary has made in this respect and the criticisms that have been leveled at these choices. Both will be assessed against existing views in legal theory, international relations and philosophy as regards the role of the judiciary in maintaining an effective legal system and suggest possible future pathways for courts and tribunals to take. The project will involve law of the sea practitioners to allow determining how theory and practice relate to and may learn from each other.