ITLOS inefficiently managed and perceived as unfair, undermining compliance in its decisions

The Tribunal did decide one case, between Bangladesh and Myanmar, but that suit only arose due to confusion over the application of the Treaty in the first place, leading Eric Posner, the Kirkland and Ellis Professor of Law at the University of Chicago, and John Yoo, Professor of Law at the University of California Berkeley, to conclude:

“Early indicators suggest that the ITLOS will not be an effective international Tribunal... Because of the independence of the tribunal, states have little influence over how it resolves disputes. They cannot expect outcomes that are satisfactory to both parties, and thus they cannot expect widespread compliance. If compliance is likely to be weak, there is little point in using the Tribunal in the first place.”²²

Another source of the Tribunal’s ineffectiveness arises from its very constitution. As Cato Institute Senior Fellow Doug Bandow points out:

“The new International Tribunal for the Law of the Sea is supposed to offer dispassionate adjudication of disputes. Yet membership is decided by quota: Each “geographical group” is to have at least three representatives. In its early days the Tribunal served as a dumping ground for frustrated LOST politicos such as Cameroon’s Paul Engo and Tanzania’s Joseph Warioba, both of whom once had hoped to become the Authority’s Secretary- General.”²³

Ineffectiveness has an economic cost. States and companies will defer investment in disputed areas, as there is little hope for speedy resolution. Thus, as cases remain tied up in costly legal knots, areas become off-limits for development, and all economic benefit is lost.