Chapter 3 analyses the three selected challenges facing international tribunals – managing change, reviewing State conduct for compliance with international law, and dispute resolution – in the environmental case law of the International Tribunal for the Law of the Sea (ITLOS) and arbitral tribunals constituted under the UN Convention on the Law of the Sea (UNCLOS). UNCLOS tribunals have often interpreted the Convention in a manner that takes account of relevant developments in international law. This is partly due to features of UNCLOS itself, including that it contains many generic or open-ended terms. The chapter demonstrates that the standard and method of review are significant issues in the environmental case law of UNCLOS tribunals, in the context of the Convention conferring on coastal States discretionary powers. These issues raise similar functional questions to those seen in the other adjudication contexts studied, for example regarding the rationales for some deference to domestic authorities. Finally, the chapter demonstrates that UNCLOS tribunals often adjudicate in a facilitative, forward-looking manner, aiming to assist the parties to rebuild their relationship.

Peaceful settlement of international disputes occupies an important place in international law in general and the law of the sea is no exception. In this respect, the LOSC establishes a unique mechanism combining the voluntary and compulsory procedures for dispute settlement. It is particularly significant that the LOSC sets out the compulsory dispute settlement procedures as an integrated part of the Convention. Furthermore, it is of particular interest to note that a new permanent international tribunal, namely, ITLOS, was established. The dispute settlement procedures of the LOSC provide an interesting insight into the development of dispute settlement procedures in international law. Thus, this chapter will address the dispute settlement procedures under the LOSC with particular reference to the following issues: (1) the principal features of the dispute settlement procedures of the LOSC, (2) the significance of and limitations associated with the compulsory procedures for dispute settlement under the LOSC, and (3) jurisdiction over mixed disputes involving maritime and non-maritime issues, and (40 a risk of fragmentation of international law.

Discussion on human rights before the International Tribunal for the Law of the Sea (ITLOS or Tribunal) often refers to its ‘considerations of humanity’ dictum. Yet this is just one way the Tribunal takes into account the interests and rights of individuals affected by law of the sea disputes. This chapter uncovers multiple modes of engagement of ITLOS with human rights – some subtle, some bold – across three types of procedure: prompt release, provisional measures and merits cases. It illustrates how ITLOS has achieved a ‘humanisation’ of the obligation of prompt release through its context- and purpose-based interpretation; likewise, parties increasingly invoke, and ITLOS tacitly relies upon, human rights as a basis for provisional measures. While the Tribunal’s reliance on individual rights in merits decisions remains limited to date, it may consider human rights on the basis of ‘reference provisions’ within UNCLOS, the ‘considerations of humanity’ dictum and the prohibition on abuse of rights. The analysis reveals that ITLOS has paved the way for human rights to be taken into account in law of the sea disputes and that UNCLOS provides a legal framework for it.

A recurring theme is the legitimacy and harmonization of jurisprudence among international courts and tribunals. In this context, an important procedural consideration is so-called forum shopping; a strategy by which litigants pursue parallel or sequential proceedings, among multiple jurisdictions, in order to achieve the most favourable result. This chapter explores the differential treatment of forum shopping between the specialized regimes for human rights and the investor-State dispute settlement (ISDS) regime. It contends that the notable contrast between the restrictive rules applicable to individual human rights complaint procedures and the laissez-faire approach of the ISDS regime is instructive as to the place of human rights in the praxis of the international legal order; a procedural privileging of secondary human rights norms such as property rights over the most fundamental jus cogens norms such as the prohibition of extra-judicial executions and torture. The shift from norms to procedures provides a more honest picture of where the contemporary international legal order stands in regard to the fundamental principles that it espouses as unimpeachable axioms.