Supplemental jurisdiction under UNCLOS.

• Author: Tzeng, Peter
• Position: United Nations Convention on the Law of the Sea

1. INTRODUCTION II. BACKGROUND A. Jurisdiction Under UNCLOS B. Supplemental Jurisdiction Under UNCLOS C. Relevant Case Law D. Literature Gap III. SOURCES OF SUPPLEMENTAL JURISDICTION UNDER UNCLOS A. Supplemental Jurisdiction Under Article 288(2) B. Supplemental Jurisdiction Under Article 293(1) C. Supplemental Jurisdiction Under Zonal Renvoi Provisions D. Supplemental Jurisdiction Under the Principle of Effectiveness IV. CONCLUSION I. INTRODUCTION

   There is a rising tide of dispute settlement under the United Nations Convention on the Law of the Sea (UNCLOS), (1) if not yet a tsunami. (2) In 2015 alone, UNCLOS tribunals rendered three groundbreaking awards in Chagos, (3) Arctic Sunrise, (4) and Philippines v. China, (5) issued two orders prescribing provisional measures in Ghana/Cote d'Ivoire (6) and Enrica Lexie, (7) and delivered an unprecedented advisory opinion in Sub-Regional Fisheries Commission. (8) As of May 2016, a total of six cases are pending before UNCLOS tribunals, (9) and a seventh is in the pipeline: Ukraine has expressed its intention to institute UNCLOS proceedings against Russia over Crimea. (10) Although much has yet to be written about all of these cases, one development must not be swept away by the current: the supplemental jurisdiction of UNCLOS tribunals. (11)

   As a preliminary matter, three terms must be defined. First, as used in this article, an "UNCLOS tribunal" is any judicial body exercising jurisdiction under UNCLOS. (12) Second, an "UNCLOS dispute" is any dispute concerning the interpretation or application of UNCLOS. And third, a "non-UNCLOS dispute" is any dispute concerning the interpretation or application of a rule of international law outside UNCLOS.

   In light of these definitions, "supplemental jurisdiction" is simply "the jurisdiction of UNCLOS tribunals over non-UNCLOS disputes." Almost every recent dispute brought before an UNCLOS tribunal has raised questions of supplemental jurisdiction. Yet while commentators have long recognized the broad jurisdiction of UNCLOS tribunals over UNCLOS disputes, (13) they have given relatively little attention to the supplemental jurisdiction of UNCLOS tribunals over non-UNCLOS disputes. Indeed, to this day, no court, tribunal, or commentator has pieced together or even tried to piece together a comprehensive theory of supplemental jurisdiction. This article aims to do just that.

   This is not to say that supplemental jurisdiction under UNCLOS has gone completely unnoticed. Although the literature lacks a comprehensive treatment of the topic, commentators have discussed specific applications of supplemental jurisdiction. For example, one of the liveliest debates in the law of the sea today is whether UNCLOS tribunals may exercise jurisdiction over a territorial sovereignty dispute in the context of a maritime delimitation dispute--the so-called "mixed dispute" question. (14) In addition, commentators have discussed whether UNCLOS tribunals properly exercised (or refused to exercise) jurisdiction over disputes concerning the use of force in M/V Saiga (No. 2) (15) and Guyana v. Suriname, (16) over disputes arising from international environmental agreements in MOX Plant, (17) over territorial sovereignty disputes in Chagas (18) and Philippines v. China, (19) and over human rights disputes in Arctic Sunrise. (20) But commentators have not expressly recognized the common thread weaving all these cases together: they are all examples of an UNCLOS tribunal exercising (or refusing to exercise) jurisdiction over a non-UNCLOS dispute. That is, they all raise issues of supplemental jurisdiction. Only by considering all of these cases together can one develop a coherent understanding of the supplemental jurisdiction of UNCLOS tribunals.

   This article is organized as follows. Part II provides background on jurisdiction under UNCLOS (Part II.A), supplemental jurisdiction under UNCLOS (Part II.B), the relevant case law (Part II.C), and the gap in the literature on the subject of supplemental jurisdiction (Part II.D). Part III then provides a detailed analysis of four major sources of supplemental jurisdiction under UNCLOS, from the least controversial to the most controversial: Article 288(2) (Part III.A); Article 293(1) (Part III.B); zonal renvai provisions (Part III.C); and the principle of effectiveness (Part III.D). Part IV then concludes the article.

2. BACKGROUND

   1. Jurisdiction Under UNCLOS

      A critical difference between domestic legal systems and the international legal order is that the latter lacks courts with compulsory jurisdiction. (21) One who suffers an injury under domestic law will usually be able to seek relief in a domestic court with jurisdiction over the dispute, whereas one who suffers an injury under international law will often not be able to find a judicial forum with jurisdiction.

      The drafters of the United Nations Convention on the Law of the Sea sought to change this reality with respect to disputes concerning the law of the sea. Famously characterized as "a constitution for the oceans," (22) the Convention sets out in 320 articles and nine annexes a comprehensive body of law governing practically "all issues relating to the law of the sea," (23) such as fisheries management, environmental protection, marine scientific research, and maritime delimitation. To ensure compliance with its provisions, the Convention provides for a compulsory (24) and binding (25) dispute settlement procedure that can take place before four judicial bodies: the International Tribunal for the Law of the Sea (ITLOS), Annex VII arbitral tribunals, Annex VIII arbitral tribunals, and the International Court of Justice (ICJ). (26) For convenience, though at the expense of precision, this article refers to all four judicial bodies as "UNCLOS tribunals." (27)

      Article 288(1) of the Convention establishes the jurisdiction of UNCLOS tribunals. It provides that UNCLOS tribunals "shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part." (28) Although the language "any dispute concerning the interpretation or application of this Convention" and close variants thereof are commonly found in the dispute settlement clauses of treaties, (29) there is no consensus over its exact meaning. (30) Few, however, would disagree with two conclusions that the ICJ has drawn from such language. First, the jurisdiction over disputes "concerning the interpretation or application" of a treaty includes, inter alia, the jurisdiction to declare whether a State Party has breached the treaty. (31) Second, the jurisdiction over disputes "concerning the interpretation or application" of a treaty does not include the jurisdiction to declare whether a State Party has breached a rule of international law outside the treaty. (32) Although disputes over whether a State has breached a rule of international law are just one of many types of disputes, they will be the focus of this article because most if not all disputes concerning supplemental jurisdiction under UNCLOS are disputes over whether a State has breached a rule of international law.

      With this understanding, one can summarize the function of Article 288(1) rather succinctly: Article 288(1) grants UNCLOS tribunals jurisdiction over UNCLOS disputes (i.e. whether a State Party has breached UNCLOS), but not over non-UNCLOS disputes (i.e. whether a State Party has breached a non-UNCLOS rule of international law).

      There are, however, two exceptions to this general statement. First, there are certain UNCLOS disputes over which UNCLOS tribunals do not have jurisdiction by virtue of Section 3 of Part XV of the Convention. (33) This article does not focus on these exceptions. Second, there are certain non-UNCLOS disputes over which UNCLOS tribunals nonetheless have jurisdiction by virtue of certain provisions of the Convention or general principles of international law. This article refers to such jurisdiction as "supplemental jurisdiction" and the provisions and principles granting such jurisdiction as "sources of supplemental jurisdiction." These exceptions are the focus of this article.

   2. Supplemental Jurisdiction Under UNCLOS

      The term "supplemental jurisdiction" is not a term of art in public international law. Rather, the term derives from U.S. law, where supplemental jurisdiction is the jurisdiction of federal courts over non-federal claims. Under 28 U.S.C. [section] 1367, the extent to which a federal court may exercise supplemental jurisdiction over a non-federal claim is clear: it may do so if and only if the non-federal claim "form[s] part of the same case or controversy" as a federal claim. (34) Under UNCLOS, however, the extent to which an UNCLOS tribunal may exercise supplemental jurisdiction over a non-UNCLOS claim is often not clear: it depends on the source of supplemental jurisdiction.

      There are four major sources of supplemental jurisdiction under UNCLOS: (1) Article 288(2); (2) Article 293(1); (3) zonal renvoi provisions; and (4) the principle of effectiveness. (35) This article explores each of these sources in depth in Part III.

   3. Relevant Case Law

      A small but growing number of UNCLOS tribunals have examined one or more of these sources of supplemental jurisdiction. Their judgments, awards, and/or orders will be quoted, cited, and critiqued throughout this article. So as not to interrupt the substantive discussions in Part III, this Part provides a brief summary of the six major cases--as relevant to the supplemental jurisdiction question--in chronological order.

      The first UNCLOS tribunal to confront the question of supplemental jurisdiction was ITLOS in M/V Saiga (No. 2). The case revolved around a dispute between Saint Vincent and the Grenadines (St. Vincent) and Guinea over an incident that occurred in the exclusive economic zone (EEZ) of Sierra Leone. (36) On the morning of October 28, 1997, the oil tanker...