Judicialization of the Sea: Bargaining under the UNCLOS Regime
Sara McLaughlin Mitchell
University of Iowa
Andrew P. Owsiak
University of Georgia
Abstract:
When two states agree to a judicialized dispute settlement process, does their bargaining behavior change under the court’s shadow? We propose that legalization and judicialization mechanisms supply an affirmative answer to this question. Legalization clarifies conventions and rules and outlines dispute resolution procedures which not only deters new disagreements that concern the related conventions, but also reduces the likelihood of militarized conflict should disagreements arise. Judicialization further alters the bargaining over disagreements that arise by clarifying legal ambiguities, offering the looming threat of court involvement, and generating case law that states can use to see how the court might handle their case. It therefore encourages states to bargain differently under the shadow the court creates. Analyzing the management of interstate diplomatic maritime claims – the universe of potential maritime conflicts that could appear before adjudicatory bodies under the United Nations Convention on the Law of the Sea (UNCLOS) – reveals consistent evidence in support of the argument. Pairs of states that sign or ratify UNCLOS experience fewer maritime claims and militarized disputes than non-UNCLOS members. Moreover, countries that jointly make stronger and judicial commitments under UNCLOS experience greater judicialization effects; they select away from court involvement and work to manage their maritime claims outside of court instead. UNCLOS thus incentivizes states to bargain in the shadow of its courts and promotes peaceful management of interstate maritime claims.
Discussants:
Áslaug Ásgeirsdóttir (Bates College)
Faten Ghosn (University of Arizona)
Molly Melin (Loyola University Chicago)
Paul Huth (University of Maryland)
OPSC Coordinator:
Emily Hencken Ritter (University of California Merced)
Graduate Assistant:
Peter D. Carey II (University of California Merced)
