Jurisdiction and Applicable Law Under UNCLOS
In the recent case of Chagos Marine Protected Area,1 a five-member tribunal constituted under the United Nations Convention on the Law of the Sea (UNCLOS)2 held in its hands the fate of the Chagos Archipelago. One of the questions before the tribunal was whether it had the jurisdiction to declare that the British occupation of the Chagos Archipelago and the forcible removal of the Archipelago’s indigenous population violated the fundamental right to self-determination. The answer hinged on a technical, procedural point: Does the applicable law provision of UNCLOS, Article 293(1), expand the jurisdiction of UNCLOS tribunals?3
The law was not on the side of the Chagossians. It is a well-established principle of international law that applicable law provisions do not expand the jurisdiction of international courts and tribunals.4 So after Mauritius impliedly asserted that Article 293(1) could expand the jurisdiction of the tribunal,5 the United Kingdom—the other party to the dispute—quickly refuted the assertion, noting that “[t]his is an old debate, and one that, quite frankly, we should not be having.”6 The tribunal ultimately ruled in favor of the United Kingdom on this point. But if the principle is so well-established and the debate so old, why did it receive so much attention in the written and oral stages of the proceedings?
The reason is straightforward but possibly appalling to international lawyers: UNCLOS tribunals have not uniformly conformed to the principle. As of September 2016, UNCLOS tribunals in seven cases have considered whether Article 293(1) can expand their jurisdiction. On the one hand, the tribunals in M/V Saiga (No. 2),7 Guyana v. Suriname,8 and M/V Virginia G9 (the M/V Saiga line of cases) effectively invoked Article 293(1) to expand their jurisdiction. On the other hand, the tribunals in MOX Plant,10 Chagos,11 Arctic Sunrise,12 and Duzgit Integrity13(the MOX Plant line of cases) stood by the principle, rejecting any expansion of jurisdiction under Article 293(1).14 Other UNCLOS tribunals have simply not addressed the question.15
Despite this inconsistency in jurisprudence, the question of jurisdiction under Article 293(1) has received little attention among scholars. The eminent treatises on the law of the sea bypass the question entirely.16 One commentator raised the issue in the context of the M/V Saiga (No. 2) dispute,17 and another briefly touched on the issue in the context of the MOX Plant case.18 But no scholar has ever analyzed multiple cases interpreting Article 293(1) in a single text. Even the judgments and awards of UNCLOS tribunals do not dedicate much discussion to the subject. This Comment aims not only to fill this gap in the literature, but also to help inform pending and future UNCLOS disputes implicating Article 293(1), including the high-profile case of Ukraine v. Russia.
This Comment is organized as follows. Part I provides background on UNCLOS and explains why Article 293(1) does not expand the jurisdiction of UNCLOS tribunals. Part II explains how the UNCLOS tribunals in the M/V Saiga (No. 2) line of cases nonetheless exercised jurisdiction under Article 293(1). Part III then presents how the UNCLOS tribunals in the MOX Plant line of cases rejected jurisdiction under Article 293(1) but failed to recognize the legal error in the M/V Saiga (No. 2) line of cases. The Comment then concludes by noting how the failure to recognize this error may ultimately undermine the UNCLOS dispute settlement regime.
A critical difference between domestic legal systems and the international legal order is that the latter lacks courts with compulsory jurisdiction.19 One who suffers an injury under domestic law will usually be able to seek relief in a domestic court with jurisdiction over the claim, whereas one who suffers an injury under international law often cannot find a judicial forum with jurisdiction.
The drafters of UNCLOS sought to change this reality with respect to claims concerning the law of the sea. Famously characterized as “a constitution for the oceans,”20 the Convention sets out in 320 articles and nine annexes a comprehensive body of law governing practically all matters relating to the law of the sea, such as maritime delimitation, environmental protection, fisheries management, and marine scientific research. Most importantly for the purposes of this Comment, Part XV of the Convention establishes a dispute settlement mechanism to ensure compliance with the Convention. Two provisions in Part XV are particularly relevant.
First, the jurisdiction provision, Article 288(1), grants UNCLOS tribunals the jurisdiction to settle UNCLOS claims.21 Consequently, aside from a few exceptions,22 any state that suffers an injury under UNCLOS may seek relief from an UNCLOS tribunal. In theory, UNCLOS tribunals may take one of four forms: the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), an Annex VII tribunal, or an Annex VIII tribunal.23 In practice, however, all UNCLOS tribunals have either been ITLOS or an Annex VII tribunal. ITLOS is a permanent judicial body composed of twenty-one judges.24 By contrast, Annex VII tribunals are ad hoc arbitral tribunals normally composed of five arbitrators.25 Together, ITLOS and Annex VII tribunals have been seized of twenty-one disputes (excluding prompt release cases) and have reached a decision on the merits in ten of those disputes.26
Second, the Convention’s applicable law provision, Article 293(1), provides that UNCLOS tribunals “shall apply this Convention and other rules of international law not incompatible with this Convention.”27 Some have interpreted Article 293(1) to expand the jurisdiction of UNCLOS tribunals to include certain non-UNCLOS claims. Under this interpretation, Article 293(1) would grant UNCLOS tribunals the jurisdiction to declare whether states have violated certain non-UNCLOS rules of international law, such as the rules on the use of force, the rules on the acquisition of territory, and the rules of international human rights law. This interpretation, however, is incorrect.
A proper interpretation of Article 293(1) requires recourse to Article 31 of the Vienna Convention on the Law of Treaties (VCLT).28 Article 31 is universally considered to reflect customary international law,29 and scholars agree that international courts and tribunals must apply the Article when interpreting treaties.30 Article 31 provides: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”31 In other words, one must examine three items: the ordinary meaning of the text, the context, and the object and purpose of the treaty.
First, the ordinary meaning of the text of Article 293(1) conveys the notion that it does not expand the jurisdiction of UNCLOS tribunals. In fact, the very wording of the provision reveals that it only speaks to applicable law, not jurisdiction. Article 293(1) states: “A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.”32 It therefore envisages a two-step process: first, the UNCLOS tribunal must determine whether it has jurisdiction (under Article 288); second, if it has jurisdiction (and only if it has jurisdiction), then the tribunal shall apply UNCLOS and “other rules of international law.” Given that Article 288(1) grants UNCLOS tribunals jurisdiction only over UNCLOS claims,33 the “other rules of international law” should be interpreted as referring primarily to rules of international law that help UNCLOS tribunals exercise their jurisdiction over UNCLOS claims.34
Second, the context of Article 293(1) affirms this interpretation. The official title of Article 288 is “Jurisdiction” and that of Article 293 is “Applicable Law,” reinforcing the fact that the Convention considers them to be two separate notions. One cannot use the applicable law provision (Article 293) to expand jurisdiction; otherwise, it would violate the jurisdiction provision (Article 288).
Third, the object and purpose of UNCLOS, as expressed in the Preamble, is to govern “all issues relating to the law of the sea.”35 It is not intended to govern issues outside the law of the sea. Consequently, it makes sense that Article 293(1) cannot expand the jurisdiction of UNCLOS tribunals beyond their jurisdiction under Article 288(1) to resolve UNCLOS claims.
Therefore, Article 293(1) should not be interpreted as an expansion of the jurisdiction of UNCLOS tribunals beyond UNCLOS.
Despite this seemingly straightforward analysis, UNCLOS tribunals have invoked Article 293(1) to expand their jurisdiction to non-UNCLOS claims in three cases. The first was ITLOS’s second case: M/V Saiga (No. 2). In 1997, Saint Vincent and the Grenadines (St. Vincent) instituted an UNCLOS arbitration against Guinea claiming, inter alia, that Guinea had violated the prohibition on the use of excessive force in the detention of ships when Guinean authorities arrested a ship registered in St. Vincent.36 Although the prohibition is an established norm of customary international law,37 it is not explicitly enshrined in UNCLOS.38 The most pertinent provision concerning the use of force in UNCLOS is Article 301, but this provision prohibits only the threat or use of force “against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.”39 ITLOS therefore concluded that UNCLOS does not expressly regulate the use of force in the arrest of ships.40 As a result, St. Vincent’s claim that Guinea violated the prohibition on the use of excessive force in the detention of ships could not constitute a claim under Article 301, but rather constituted a non-UNCLOS claim based on customary international law. ITLOS, however, held:
Although the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.41
According to the language above, ITLOS only relied on Article 293(1) to “apply” the prohibition on the use of excessive force, without making an express claim of jurisdiction. However, ITLOS ultimately made a formal determination that Guinea violated the prohibition,42 which ipso facto amounted to an exercise of jurisdiction over the claim.43 Remarkably, ITLOS did not provide any justification beyond the paragraph quoted above for this exercise of jurisdiction.
Then in 2004, in the case of Guyana v. Suriname, Guyana instituted proceedings against Suriname before an Annex VII tribunal claiming, inter alia, that Suriname was “internationally responsible for violating . . . the Charter of the United Nations, and general international law . . . because of its use of armed force” against a Canadian vessel licensed by Guyana.44 Once again, although UNCLOS prohibits the use of force against “the territorial integrity or political independence of any State,”45 the Convention does not prohibit the use of force against foreign vessels. Consequently, Guyana’s claim was a non-UNCLOS claim arising under general international law. In deciding how to deal with the non-UNCLOS claim, the tribunal simply cited M/V Saiga (No. 2) and held:
The International Tribunal for the Law of the Sea (“ITLOS”) [in M/V Saiga (No. 2)] interpreted Article 293 as giving it competence to apply not only the Convention, but also the norms of customary international law (including, of course, those relating to the use of force) . . . . In the view of this Tribunal this is a reasonable interpretation of Article 293 and therefore Suriname’s contention that this Tribunal had “no jurisdiction to adjudicate alleged violations of the United Nations Charter and general international law” cannot be accepted.46
Notably, not only did the Annex VII tribunal explicitly state that Article 293 gave it “competence”47 (a synonym for “jurisdiction”48), but it also rejected Suriname’s contention that it had no “jurisdiction”49 over the claim. Moreover, without any further explanation, the tribunal expressly declared in the dispositif of the award that it “ha[d] jurisdiction to consider and rule on Guyana’s allegation that Suriname has engaged in the unlawful use or threat of force contrary to the Convention, the UN Charter, and general international law.”50 And like ITLOS in M/V Saiga (No. 2), the Guyana v. Suriname tribunal ultimately made a formal finding of a violation of the prohibition on the threat of the use of force.51 There is thus no question that it exercised jurisdiction under Article 293(1).
The most recent instance where an UNCLOS tribunal invoked Article 293(1) to expand its jurisdiction was the case of M/V Virginia G, where ITLOS faced a situation very similar to that in M/V Saiga (No. 2). In 2011, Panama instituted an UNCLOS arbitration against Guinea-Bissau for arresting an oil tanker registered in Panama. Like St. Vincent in M/V Saiga (No. 2), Panama claimed, inter alia, that Guinea-Bissau had violated the prohibition on the use of excessive force in detaining the vessel.52 Although Panama asserted that this prohibition arose under both “the Convention and . . . international law,”53 UNCLOS, again, does not contain any provisions on the prohibition on the use of excessive force against a vessel.54 Therefore, Panama’s claim, like St. Vincent’s claim, was a non-UNCLOS claim. In deciding whether it could exercise jurisdiction over this claim, ITLOS, like the Guyana v. Suriname tribunal, simply quoted the discussion on Article 293(1) in M/V Saiga (No. 2),55 and exercised jurisdiction over the claim by making a finding that there was no violation of the prohibition.56
In conclusion, even though Article 293(1) should not be invoked to expand the jurisdiction of an UNCLOS tribunal, the M/V Saiga (No. 2), Guyana v. Suriname, and M/V Virginia G tribunals all effectively exercised jurisdiction under the provision—implicitly in M/V Saiga (No. 2) and M/V Virginia G, and explicitly in Guyana v. Suriname.
Aside from the M/V Saiga (No. 2) line of cases, only four other UNCLOS tribunals—all Annex VII tribunals—have considered the question of whether Article 293(1) may expand their jurisdiction. In all four cases, the Annex VII tribunals correctly held that Article 293(1) could not enlarge their jurisdiction. But they did not go so far as to state that the M/V Saiga (No. 2) line of cases was incorrectly decided.
The first such case was MOX Plant. In 2001, Ireland brought an UNCLOS arbitration against the United Kingdom, claiming, inter alia, that the United Kingdom violated two norms of international environmental law with respect to a mixed oxide plant across the Irish Sea from Ireland.57 As the environmental norms in question are not enshrined in UNCLOS, the claims were undoubtedly non-UNCLOS claims. Yet Ireland cited M/V Saiga (No. 2) to argue that the tribunal had the authority to find a violation of the norms in question.58 Although the Annex VII tribunal never issued a final award,59 it famously stated in Procedural Order No. 3 that “there is a cardinal distinction between the scope of its jurisdiction under article 288, paragraph 1, of the Convention, on the one hand, and the law to be applied by the Tribunal under article 293 of the Convention, on the other hand.”60 And in a formal statement released by its president, the tribunal asserted that any non-UNCLOS claims would be inadmissible.61 In doing so, it did not attempt to reconcile the inconsistency between its holding and ITLOS’s judgment in M/V Saiga (No. 2).
Then in 2010, in the case of Chagos, Mauritius brought an UNCLOS proceeding against the United Kingdom over the Chagos Marine Protected Area, requesting, inter alia, that the tribunal determine who—Mauritius or the United Kingdom—had sovereignty over the Chagos Archipelago.62 As UNCLOS does not contain provisions on territorial sovereignty,63 Mauritius’s claim was a non-UNCLOS claim. Yet Mauritius cited M/V Saiga (No. 2) and Guyana v. Suriname for the proposition that the tribunal could apply non-UNCLOS rules of international law to resolve the sovereignty claim as long as it was sufficiently connected with an UNCLOS claim.64 The Annex VII tribunal first clarified that “[w]hether the Tribunal . . . may apply such exterior sources of law and address such matters raises a question of the scope of jurisdiction under the Convention.”65 It then found that it did not have jurisdiction over the sovereignty claim.66 Notably, although it summarized the parties’ arguments on Article 293(1), M/V Saiga (No. 2), and Guyana v. Suriname,67 the tribunal did not refer to any of them when explaining its decision.68
The third case that rejected an expansion of jurisdiction under Article 293(1) was Arctic Sunrise. In 2013, the Netherlands instituted UNCLOS proceedings against Russia, seeking, inter alia, a declaration that Russia had violated the International Covenant on Civil and Political Rights (ICCPR) in its arrest and detention of the Greenpeace activists aboard the MV Arctic Sunrise.69 Since the ICCPR is a separate treaty not codified in UNCLOS, the Annex VII tribunal was confronted with a non-UNCLOS claim. In line with the jurisprudence of the MOX Plant and Chagos tribunals, the Arctic Sunrise tribunal expressly held that “Article 293(1) does not extend the jurisdiction of the tribunal”70 and “Article 293 is not . . . a means to obtain a determination that some treaty other than the Convention has been violated.”71 In applying this principle to the case before it, the tribunal declared: “This Tribunal does not consider that it has jurisdiction to apply directly provisions such as Articles 9 and 12(2) of the ICCPR or to determine breaches of such provisions.”72
Unlike the MOX Plant and Chagos tribunals, the Arctic Sunrise tribunal attempted to distinguish M/V Saiga (No. 2). Despite its general statement on Article 293(1), the tribunal held:
In the case of some broadly worded or general provisions, it may also be necessary to rely on primary rules of international law other than the Convention in order to interpret and apply particular provisions of the Convention. Both arbitral tribunals and ITLOS have interpreted the Convention as allowing for the application of relevant rules of international law. Article 293 of the Convention makes this possible. For instance, in M/V “SAIGA” No. 2, ITLOS took account of general international law rules on the use of force in considering the use of force for the arrest of a vessel.73
This attempt to accommodate M/V Saiga (No. 2) is not convincing for two reasons. First, the tribunal failed to specify exactly which “broadly worded or general provision” was at play in M/V Saiga (No. 2). The reality is that ITLOS had not specified any such substantive provision when explaining its exercise of jurisdiction over the use-of-force claim.74 Second, the tribunal downplayed ITLOS’s treatment of the use-of-force claim in M/V Saiga (No. 2). As discussed above, ITLOS had declared a violation of the prohibition on the use of excessive force, which amounted to an exercise of jurisdiction. The Arctic Sunrise tribunal, however, stated that ITLOS merely “took account” of rules concerning the use of force.
The fourth and final case that rejected an expansion of jurisdiction under Article 293(1) was Duzgit Integrity. In 2013, just a few weeks after the Netherlands filed its claim against Russia, Malta instituted UNCLOS proceedings against São Tomé and Príncipe (São Tomé) over São Tomé’s arrest of the Maltese vessel Duzgit Integrity in São Toméan archipelagic waters.75 Malta argued, inter alia, that São Tomé’s arrest, imprisonment, and fining of the master and crew of the vessel violated “generally applicable rules of international law related to fundamental human rights and humanitarian concerns.”76 As UNCLOS does not contain provisions on “human rights and humanitarian concerns,” São Tomé argued that the tribunal did not have jurisdiction over these non-UNCLOS claims.77 After considering both Article 288(1) and Article 293(1), the tribunal concluded that “[t]he combined effect of these two provisions is that the Tribunal does not have jurisdiction to determine breaches of obligations not having their source in the Convention (including human rights obligations).”78 As a result, the tribunal held that it was “not competent to determine if fundamental human rights obligations were violated by São Tomé.”79
Notably, the Duzgit Integrity tribunal attempted to reconcile this holding with M/V Saiga (No. 2) in two ways. First, it invoked the same argument as the Arctic Sunrise tribunal concerning “broadly worded or general provisions,” but, like the Arctic Sunrise tribunal, it failed to specify the provision in question in M/V Saiga (No. 2) and downplayed ITLOS’s treatment of the use-of-force claim in that case.80 Second, again citing M/V Saiga (No. 2),81 it held:
The exercise of enforcement powers by a (coastal) State in situations where the State derives these powers from provisions of the Convention is also governed by certain rules and principles of general international law, in particular the principle of reasonableness. This principle encompasses the principles of necessity and proportionality. These principles do not only apply in cases where States resort to force, but to all measures of law enforcement. Article 293(1) requires the application of these principles.82
This justification, however, fails to recognize that the M/V Saiga (No. 2) tribunal, like the Guyana v. Suriname and M/V Virginia G tribunals, had made a formal finding in the dispositif of a violation of international law without reference to a particular provision of UNCLOS.83 By contrast, when the Duzgit Integrity tribunal applied the principle of reasonableness to São Tomé’s conduct, its sole conclusion was that São Tomé had violated Article 49(3) of UNCLOS.84 Consequently, the Duzgit Integrity tribunal did not fully justify ITLOS’s exercise of jurisdiction over the use-of-force claim in M/V Saiga (No. 2).
The MOX Plant line of cases reveals an interesting phenomenon: although each Annex VII tribunal expressly or impliedly acknowledged that Article 293(1) does not expand the jurisdiction of UNCLOS tribunals, none of them stated that the M/V Saiga (No. 2) line of cases was wrongly decided. The MOX Plant and Chagos tribunals avoided addressing the cases entirely, and the Arctic Sunrise and Duzgit Integrity tribunals attempted to fit M/V Saiga (No. 2) into an exception to the general principle. How can one explain this behavior? Four possible reasons are considered below.
First, as a legal matter, the tribunals in the M/V Saiga (No. 2) line of cases may have actually been correct in exercising jurisdiction over their respective claims, even if Article 293(1) was an incorrect basis for that jurisdiction. Instead, the tribunals could have plausibly invoked Article 288(1) as the source of jurisdiction, characterizing the claims as UNCLOS claims under Articles 56(2), 58(1), 58(3), 87(1), and/or 301.85
Second, as a policy matter, the tribunals in the MOX Plant line of cases may have considered the M/V Saiga (No. 2) line of decisions to be good public policy. One cannot overlook the fact that the non-UNCLOS claims in M/V Saiga (No. 2), Guyana v. Suriname, and M/V Virginia G were all related to the prohibition on the use of force in international law. The fact that the prohibition is a “cornerstone” of the U.N. Charter86 and widely considered a jus cogens norm87 may have discouraged the MOX Plant, Chagos, Arctic Sunrise, and Duzgit Integrity tribunals from criticizing the M/V Saiga (No. 2) line of decisions.
Third, as a political matter, the tribunals in the MOX Plant line of cases may have found it inappropriate to criticize the M/V Saiga (No. 2) and M/V Virginia G tribunals because of the composition of the tribunals themselves. The MOX Plant, Chagos, Arctic Sunrise, and Duzgit Integrity tribunals were all Annex VII tribunals composed of three or five ad hoc arbitrators,88 whereas ITLOS, which decided M/V Saiga (No. 2) and M/V Virginia G, is a permanent judicial body composed of twenty-one judges elected for their expertise in the law of the sea.89 The Annex VII tribunals therefore may have found it inappropriate to accuse ITLOS of having committed a legal error in light of the authority it commands by virtue of its permanence, size, and expertise.
Fourth, on an individual level, ITLOS judges and UNCLOS arbitrators come from the same circle of elite lawyers. As a result, the members of the tribunals in the MOX Plant line of cases may not have wanted to accuse their friends, colleagues, or even prior selves of having been wrong. Indeed, the President of the MOX Plant and Arctic Sunrise tribunals (Thomas A. Mensah)90 was the President of ITLOS in M/V Saiga (No. 2).91 As for the Chagos tribunal, the President (Ivan Shearer)92 was a member of the Guyana v. Suriname tribunal,93 and three other members of the Chagos tribunal (Rüdiger Wolfrum, Albert Hoffman, and James Kateka)94 were, respectively, the Vice-President of ITLOS in M/V Saiga (No. 2),95 the Vice-President of ITLOS in M/V Virginia G,96 and a judge of ITLOS in M/V Virginia G.97 Finally, with respect to the Duzgit Integrity tribunal, one member (Tullio Treves)98 was a judge of ITLOS in M/V Saiga (No. 2)99 and M/V Virginia G,100 and another member (James Kateka)101 was a judge of ITLOS in M/V Virginia G.102
One can therefore understand why the tribunals in the MOX Plant line of cases did not expressly state that the tribunals in the M/V Saiga (No. 2) line of cases had committed a legal error. These legal, policy, political, and individual pressures perhaps discouraged the MOX Plant, Chagos, Arctic Sunrise, and Duzgit Integrity tribunals from critiquing the M/V Saiga (No. 2), Guyana v. Suriname, and M/V Virginia G tribunals.
Although understandable, the failure of the tribunals in the MOX Plant line of cases to expressly recognize the legal error of the M/V Saiga (No. 2) line of cases may ultimately undermine the UNCLOS dispute settlement regime. Since the UNCLOS tribunals in the M/V Saiga (No. 2) line of cases exercised jurisdiction under Article 293(1) without significant reproach, UNCLOS tribunals may continue to be tempted to follow their path. Indeed, despite wide modern acceptance of the principle that applicable law provisions do not expand the jurisdiction of international courts and tribunals, ITLOS in the recent M/V Virginia G case still felt compelled to follow the precedent it set in M/V Saiga (No. 2). And there is no guarantee that future tribunals will not extend their jurisdiction even further, beyond what ITLOS would have accepted in M/V Saiga (No. 2). The Annex VII tribunal in Guyana v. Suriname, for example, appeared to take on a very expansive notion of its jurisdiction, ultimately holding that it had jurisdiction not only over claims concerning the use of force, but also over violations of the U.N. Charter, customary international law, and general international law.
Such a notion of jurisdiction would have significant consequences for Ukraine v. Russia. On September 14, 2016, Ukraine instituted arbitration proceedings against Russia under UNCLOS, claiming, inter alia, that Russia has interfered with “its rights as the coastal state in maritime zones adjacent to Crimea in the Black Sea, Sea of Azov, and Kerch Strait.”103 The validity of this claim, however, depends on a Ukrainian claim of sovereignty over Crimea. As territorial sovereignty disputes fall outside the scope of UNCLOS,104 the tribunal may have to determine whether it may exercise jurisdiction over this non-UNCLOS sovereignty claim. Under the jurisprudence of Guyana v. Suriname, the tribunal could arguably invoke Article 293(1) to exercise such jurisdiction. But there are real doubts as to whether UNCLOS tribunals should have the jurisdiction to settle such prominent territorial sovereignty disputes.105
Any unwarranted expansion of jurisdiction is dangerous. It must be remembered that the international legal order depends on the consent of states. The reason UNCLOS tribunals are authorized to exercise jurisdiction over disputes in the first place is that the disputing states ratified or acceded to the Convention. If UNCLOS tribunals begin exercising jurisdiction over disputes for which states never intended to grant them jurisdiction, the legitimacy of UNCLOS dispute settlement may be questioned. Not only may more states follow in the steps of China and Russia in not participating in UNCLOS proceedings,106 but the relatively few states who have not yet ratified or acceded to the Convention—such as the United States—may be less inclined to do so.
As a result, it is the responsibility of UNCLOS tribunals to exercise only the jurisdiction accorded to them. As the M/V Saiga (No. 2), Guyana v. Suriname, and M/V Virginia G tribunals have made a legal error by relying on Article 293(1) to establish their jurisdiction over use-of-force claims, UNCLOS tribunals should not be afraid to say so. Avoiding the discussion or attempting to distinguish that line of cases is insufficient. Rather, an express—though, of course, diplomatic—refutation of that jurisprudence is necessary to preserve the legitimacy of UNCLOS proceedings. Otherwise, states may continue to invoke M/V Saiga (No. 2) and its progeny to expand the jurisdiction of UNCLOS tribunals.