This chapter, written in honor of David Caron, focuses on creativity in dispute resolution relating to the law of the sea. When the 1982 U.N. Convention on the Law of the Sea (UNCLOS) was adopted in 1982, its dispute settlement procedures were heralded as highly creative in offering an array of possibilities for States (and even non-State actors). Now that almost three decades have passed since the Convention’s entry into force in 1994, can it be said that the promise of such creativity has been fulfilled? It appears that the answer to that question is largely yes, not just in the modes by which dispute resolution is occurring (negotiation, mediation, conciliation, arbitration, and judicial settlement), but also in the wide-ranging issues being addressed within those modes, and perhaps even in the express and tacit dialogue occurring among the dispute settlers. The system, of course, is not perfect and could be more robust, but we may be amidst a “rising tide” of maritime dispute resolution, one that is strengthening and developing this area of the law. At the same time, a word of caution is in order; some aspects of the creativity found within the decisions of dispute settlers may well be giving at least some States pause as to the procedures they have unleashed.
GW Paper Series
Murphy, Sean D., “Creativity in Dispute Settlement relating to the Law of the Sea,” in BY PEACEFUL MEANS: INTERNATIONAL ADJUDICATION AND ARBITRATION (Charles N. Brower et al., eds.) (Oxford University Press) (forthcoming 2023).