“Judicial Review” of Coastal State Enforcement Action by International Courts and Tribunals: The Emergence of Dynamic and Expansive Interpretations of UNCLOS Safeguards

Dr James Harrison is a senior lecturer in international law at the University of Edinburgh School of Law. His research interests span several areas of international law, including law of the sea, international environmental law, and dispute settlement.  In all of these areas, he is particularly interested in the role that international organizations and international courts and tribunals play in the development of international law.  He has published widely on these topics, including a monograph on Making the Law of the Sea (CUP 2011) and a range articles in leading international law journals. 

Abstract

The United Nations Convention on the Law of the Sea (UNCLOS) established a new ‘legal order for the seas and oceans’, which dictated the extent of states’ rights and obligations at sea.  One of the central issues in the negotiation of UNCLOS was the extent of coastal states’ legislative and enforcement jurisdiction in waters adjacent to their territory and what navigational rights could continue to be exercised by international shipping in those waters. UNCLOS confers jurisdiction on coastal states to take legislative and enforcement action in relation to a range of issues in the territorial sea, international straits, archipelagic waters, and the exclusive economic zone, but it often subjects those powers to explicit limitations or conditions that seek to prevent the coastal state from interfering with legitimate navigation.  These safeguards were often specifically negotiated and the precise limitations and conditions will depend upon the nature of the enforcement power and where it is being exercised.  Yet, the contours of many safeguards are subject to a degree of uncertainty due to the inherent ambiguity of the text. This is particularly true for those safeguards that require enforcement actions to comply with an abstract standard requiring them to be ‘reasonable’, ‘appropriate’, ‘justifiable’, ‘necessary’, ‘essential’, ‘non-discriminatory’, or ‘proportionate.’ It follows that courts and tribunals are expected to play a central role in overseeing the interpretation and application of the regime relating to coastal state enforcement jurisdiction. In practice, several UNCLOS disputes have involved claims alleging the abuse of coastal state enforcement powers and this paper will analyse the interpretation of safeguards by international courts and tribunals with a view to evaluating what effect the jurisprudence has had on the balance of rights and interests underpinning the Convention. By analysing key cases, including the M/V Virginia G, the Arctic Sunrise and the Duzgit Integrity, it will be argued that courts and tribunals have often employed a dynamic and expansive interpretation of the safeguards, using a range of sources that go beyond the text of the treaty itself. Indeed, courts and tribunals have not only been willing to give a broad meaning to the negotiated text, but also to utilise renvoi, systemic interpretation and broad concepts of applicable law in order to develop the Convention regime. Moreover, courts and tribunals have often employed a strict standard of review, thereby minimising the deference that is given to coastal state decision-making.  As a result, the scope and content of safeguards has evolved in a manner that has altered not only the balance between the rights of flag states and the rights of coastal states, but also the balance between the authority of domestic decision-makers and the international judiciary.