Consequence from UNCLOS

During this century the sea was object of new uses and new possibilities. For this reason, new conflicts appear among States that go beyond the traditional disputes concerning navigations and territorial sea. The States have come up with new types of disputes: the delimitation and exploitation of continental platform, the exploitation of seabed, protection and environmental preservation, the questions referring the pollution and the scientific marine research, etc.

Initially, these disputes were resolved by some arbitral tribunal and many conventions among the States, becoming subsequently issued decisions of the International Court of Justice. The need of establishing effective norms, applicable to possible conflicts due to the increased economic activities at the marine environment, has expanded. The problem with the existing norms about Law of the Sea and its disputes is that they are not general principles or universally accepted rules. As the scope of actuation of these regulations is very restrictive, it is frequently needed the elaboration of new regulations regarding to the Law of the Sea to solve punctual problems.

The entry into force of the United Nations Convention on the Law of the Sea - UNCLOS, introduced a considerable change in the law of the sea. The convention proposes a system of compulsory jurisdiction, creating some instruments and enlarging other’s competences. The system of settlement of disputes established by the UNCLOS is part of the convention and not a facultative protocol (such as Vienna, New York or Geneva Convention). There were some critics concerning the tribunal’s creation. It was claimed that the proliferation of the tribunals could result in a fragmentation of the international Law.

The Sea Convention uses the freedom of choice principle on the ways to settle disputes (article .33, 1, The United Nation Charter and article 1 of Manila Declaration). This principle made some critics to consider the jurisdictional actuation of the tribunals fragile, because, due to the sovereignty principle, each state can choose the system it wants to submit their internal political or juridical questions. Among settlement pacific disputes enunciate by UCLOS, we have the International Tribunal for the Law of the Sea, which is considerad in my opinion the most complet instrument of International law, because established all aspects about: sovereignty, jurisdiction and finally to fulfil rights and obligations at ocean activities by the states parties.

So, many questions can be resolved thoroughly pratics and efficient means, because is a judicial specialize body. Another critical point to mention is that the ITLOS would be considerably fragile about jurisdictional actuation, despite a compulsory jurisdiction is established, the States members of the convention can choose among the given instruments (based on the freedom of choice principle) which to apply on its questions and, in this case, would give preference to a Court with tradition in law of the sea.

The most polemic part of the Convention and maybe the most difficult to implement, is the imposition of a specific and obligatory system for the settlement disputes, when involved the seabed exploration situations: The Seabed Chamber Disputes, this instrument is a attachment of International Tribunal for the Law of the Sea. This system was created in consequence of the subjects that acts on it and the specific content of juridical relations established by the Part XI, which involve both state’s and economic private’s interest. The Seabed Disputes Chamber creation was based on the common patrimony of humanity idea. Its activities are organized by the International Authority of Seabed which grants the accomplishment of the rules mentioned at part XI of UNCLOS and respective attachment (article 153, 4). Considering these questions, some developed countries refused to sign the convention causing a considerable destabilization on the convention’s system.

As a consequence of these facts, many questions can be made: How can be justified the fragmentation of the international law with the emergence of new international courts? The created court have concurrent jurisdiction? How the creation of UNCLOS affect the process of settlement of disputes relating to law of the sea? How this refuse to UNCLOS affects the diplomatic relations among the States of the international society? These questions are the guidelines to the research and analyses, willing to contribute to the evolution of international law, about the regulation of the law of the sea.