Volume 42 | Number 1 Fall 2006
The MOX Plant Case: The Question of “Supplemental Jurisdiction” for International Environmental Claims Under UNCLOS
VIII. Conclusion
What would be the implications should the Tribunal reject Ireland’s interpretation? Depending on the nuances of the holding, states may come to understand that unless their non-UNCLOS agreements specifically confer jurisdiction upon UNCLOS, they need not fear enforcement via UNCLOS’s substantial procedural and dispute resolution provisions. Likewise, states will be required to rely upon the weak or non-existent dispute resolution provisions of those non-UNCLOS agreements. As such, states that pollute less would remain significantly disadvantaged over those that pollute more.
Should the Tribunal adopt Ireland’s general position, however, states large and small would be placed on notice that UNCLOS provides enforcement machinery applicable to a wide range of non-UNCLOS agreements. No doubt this would produce concern, as any number of non-UNCLOS agreements may have been concluded primarily because of the absence of effective enforcement provisions. Parties are all too willing to accept unfavorable terms in the interests of diplomacy or politics when the terms are clearly unenforceable. If UNCLOS renders that bargaining position untenable, states may find it harder to reach future agreements, and may find themselves in uncomfortable positions with regard to prior, now-enforceable agreements that are “not incompatible” with UNCLOS. In this way, by harmonizing or integrating a panoply of international agreements under its umbrella, UNCLOS might produce a reactionary avoidance of international accord, which might be susceptible to adjudication under UNCLOS, and an amplification of tensions susceptible to non-peaceful resolution, defeating one of the core objectives of the Convention.
On the other hand, the benefits arising from supplemental jurisdiction under UNCLOS would be substantial and may outweigh the imagined liabilities. The absence of dispute resolution procedures renders many international agreements ineffectual, and the alternatives offered by UNCLOS may provide a corrective effect for other legal regimes.189 Myriad overlapping and contradictory international agreements frustrate any state’s efforts to protect its interests or prosecute its rights. If a kind of supplemental jurisdiction is found to be proper under UNCLOS, the dispute resolution process and harmonizing effect that UNCLOS offers to non-UNCLOS agreements—and the resultant leveling of the enforcement playing field among Convention signatories—should prove beneficial to all who depend upon the oceans as “the common heritage of mankind.”190
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Footnotes
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