for solving conflicts, as was the case of Lauterpacht; (ii) the insufficiency of
pre-existing international jurisdictions, namely the Permanent Court of International
Justice (PCIJ); (iii) the regionalization of international law, with the creation of
economic and political regional blocs;
107 and (iv) the growing complexity of transnational problems and conflicts, a sum of factors that have led to the creation of
tribunals with universal aspirations. The resulting phenomenon was the
jurisdicionalization of the international society, fully legitimized by the will of
sovereign states. Offspring of that phenomenon were the Dispute Settlement Body
of the World Trade Organization, in 1994, the International Criminal Court, in 2004,
and the centerpiece of this section, the ITLOS, in 1996.
Following that institutional boom, time had come to implement the rule of law in
international affairs, a herculean task which is still undoubtedly a “work in progress”.
108 Yet, the effectiveness of the international rule of law has certainly gained
momentum in past decades. Take the case of the law of the sea, for instance, where
international courts and tribunals have played an increasingly relevant role, due
mostly to the entry into force of UNCLOS in 1994, but to the burgeoning uses of the
oceans. In this field of international law, UNCLOS was awarded a robust part
devoted exclusively to the settlement of disputes, including the pioneering compulsory procedures entailing binding decisions on the parties.
109
Already in the first sessions of the Third Conference, negotiating parties admitted
the need for a specific dispute settlement system for ocean-related controversies.
110
Most states anticipated an increase in conflicts related to the rights and duties
exercisable by each party in the newly created maritime spaces, which gave birth
to the plurality of legal regimes in the law of the sea. Particularly worrisome were
three points: the extension of the territorial sea, the creation of the EEZ and the
delimitation of the continental shelf vis-à-vis the Area. Hence, “where there had
previously been a single jurisdiction there would be a plurality of powers, giving rise
to new conflicts”.
111
107 Karagiannis (2003), p. 15.
108 Oxman (2011), p. 437.
109 It should be born in mind that a “dispute” amounts to the disagreement on a point of law or fact,
the conflict of interests or views, or the objective opposition by a party to the claims/interests of
another party.
110 During UNCLOS negotiations, both formal and informal, two sets of countries would emerge in
relation to a dispute settlement mechanism. The so-called “maximalists” and the “minimalists”. The
former demanded an internationally binding adjudicating body to solve legal oceanic disputes,
whereas the minimalists rejected wide compulsory jurisdiction to an international tribunal. See
Noyes (1999), p. 116. Brazil is one of the countries that expressly rejected a wide compulsory
jurisdiction to the Tribunal. Reason for that may be the reluctance to cede sovereignty in matters
considered to be politically sensitive, such as economic rights over natural resources offshore or
even increase in geopolitical influence over the South Atlantic Ocean. See Statement of the
Brazilian Delegation, 62nd Plenary meeting Extract from the Official Records of the Third United
Nations Conference on the Law of the Sea, Volume V, A/CONF.62/SR.62.
111 See 59th Plenary meeting Extract from the Official Records of the Third United Nations
Conference on the Law of the Sea, Volume V, A/CONF.62/SR.59, Note of the Chairman.
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3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS
pre-existing international jurisdictions, namely the Permanent Court of International
Justice (PCIJ); (iii) the regionalization of international law, with the creation of
economic and political regional blocs;
107 and (iv) the growing complexity of transnational problems and conflicts, a sum of factors that have led to the creation of
tribunals with universal aspirations. The resulting phenomenon was the
jurisdicionalization of the international society, fully legitimized by the will of
sovereign states. Offspring of that phenomenon were the Dispute Settlement Body
of the World Trade Organization, in 1994, the International Criminal Court, in 2004,
and the centerpiece of this section, the ITLOS, in 1996.
Following that institutional boom, time had come to implement the rule of law in
international affairs, a herculean task which is still undoubtedly a “work in progress”.
108 Yet, the effectiveness of the international rule of law has certainly gained
momentum in past decades. Take the case of the law of the sea, for instance, where
international courts and tribunals have played an increasingly relevant role, due
mostly to the entry into force of UNCLOS in 1994, but to the burgeoning uses of the
oceans. In this field of international law, UNCLOS was awarded a robust part
devoted exclusively to the settlement of disputes, including the pioneering compulsory procedures entailing binding decisions on the parties.
109
Already in the first sessions of the Third Conference, negotiating parties admitted
the need for a specific dispute settlement system for ocean-related controversies.
110
Most states anticipated an increase in conflicts related to the rights and duties
exercisable by each party in the newly created maritime spaces, which gave birth
to the plurality of legal regimes in the law of the sea. Particularly worrisome were
three points: the extension of the territorial sea, the creation of the EEZ and the
delimitation of the continental shelf vis-à-vis the Area. Hence, “where there had
previously been a single jurisdiction there would be a plurality of powers, giving rise
to new conflicts”.
111
107 Karagiannis (2003), p. 15.
108 Oxman (2011), p. 437.
109 It should be born in mind that a “dispute” amounts to the disagreement on a point of law or fact,
the conflict of interests or views, or the objective opposition by a party to the claims/interests of
another party.
110 During UNCLOS negotiations, both formal and informal, two sets of countries would emerge in
relation to a dispute settlement mechanism. The so-called “maximalists” and the “minimalists”. The
former demanded an internationally binding adjudicating body to solve legal oceanic disputes,
whereas the minimalists rejected wide compulsory jurisdiction to an international tribunal. See
Noyes (1999), p. 116. Brazil is one of the countries that expressly rejected a wide compulsory
jurisdiction to the Tribunal. Reason for that may be the reluctance to cede sovereignty in matters
considered to be politically sensitive, such as economic rights over natural resources offshore or
even increase in geopolitical influence over the South Atlantic Ocean. See Statement of the
Brazilian Delegation, 62nd Plenary meeting Extract from the Official Records of the Third United
Nations Conference on the Law of the Sea, Volume V, A/CONF.62/SR.62.
111 See 59th Plenary meeting Extract from the Official Records of the Third United Nations
Conference on the Law of the Sea, Volume V, A/CONF.62/SR.59, Note of the Chairman.
70
3 The Continental Shelf Beyond 200 nm: Innovations in Art. 76 UNCLOS