The Battle of Ideas under LOSC Dispute Settlement Procedures

Abstract

Dispute settlement procedures under the United Nations Convention on the Law of the Sea (LOSC) can be a great laboratory for observing judicial processes of exploring and testing the acceptability of multiple solutions to issues of interpretation through a battle of ideas among LOSC adjudicators. The analysis observes that LOSC tribunals tend towards two jurisprudential patterns when battling their ideas: (1) the International Tribunal for the Law of the Sea (ITLOS) takes an implicit approach of deviating from previous case law of other LOSC tribunals; and (2) Annex VII arbitral tribunals have been quite straightforward when facing a diverging interpretative discourse. This article explains the institutional dynamics underpinning these two jurisprudential patterns. Calibrating judicial reasoning of the ITLOS is proposed, which would hopefully stimulate a vibrant battle of ideas facilitating coherent development of international law.