Aleksander Čičerov, LL. M. Beijing, 26 to 30 November 2012

INTERNATIONAL WORKSHOP ON THE IMPLEMENTATION OF ARTICLE 82 OF THE UN CONVENTION ON THE LAW OF THE SEA

Aleksander Čičerov, LL. M.Beijing, 26 to 30 November 2012

HOW TO SETTLE POTENTIAL DISPUTES ARRISING FROM THE

APPLICATION OF ARTICLE 82• Article 82 says:• “ 1. The coastal State shall make

payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles from the baselines from

• which the breadth of territorial sea is measured.• 2. The payments and contributions shall be

made annually with respect to all production at a site after the first five years of production at the site. For the sixth year, the rate of payment or contribution shall be 1 per cent of the value or volume of production at the site. The rate shall increase by 1 per cent for each subsequent year untill the twelfth year and shall remain at 7 per

• cent thereafter. Production does not include resources used in connection with exploitation.

• 3. A developing State which is a net importer of a mineral resources produced from its continental shelf is exempt from making such payments or contributions in respect of that mineral resource.

• 4. The payments or contributions shall be made through the Authority, which shall distribute them to States Parties to this Convention, on the basis of equitable sharing criteria, taking into account the interests and needs of the developing States, particularly the least developed and the land-locked amongst them.

• Commentary:• Article 82 applies only to the portion of

continental shelves that extand beyond 200 NM.

• Treaties give rise to numerous disputes about their interpretation or application. An increasing range of international procedures and mechanisms are available to assist in the settlement of international

disputes involving States and other members of international society (see Article 33 of the UN Charter).

• The 1982 Convention on the Law of the Sea (UNCLOS) is the most important international act regulating the law of the sea.

• “Among the most distinctive features of UNCLOS is its system for the solution of

disputes (Rothwell, Stephans, op. cit., International Law of the Sea, HART Publishing, Oxford and Portland, Oregon, 2010, p. 439).

• Although Article 82 is dormant almost 30 years, there are coastal States which have granted prospecting or exploration licences or even leases on their Outer Continental Shelf (OCS) and thus run the risk of potential disputes in the framework of Article 82.

No solution to disputes arising from Article 82

• It is hard to imagine that the Fathers of the ‘Constitution of the Oceans’ have forgotten to prescribe a solution to the potential disputes arising from the application of Article 82, which is, no doubt about that, an important part of the ‘package deal’ of UNCLOS. But it seems very evidently that

UNCLOS has not anticipated how disputes regarding the interpretation and application of Article 82 should be resolved.

• Part XV of the UNCLOS establishes very elaborated dispute settlement framework to be used by the State Parties to UNCLOS.

• A very limited access is provided for the International Seabed Authority( eg. Ratione loci, Ratione materiae).

The aim of the WS ON ARTICLE 82• Following approval by the Assembly of the

Authority, and as a follow-up to the Chatham House seminar (see Technical Study: No. 4), the objectiv of the International Workshop on the Implementation of Article 82 (Beijing, 26 to 30

November 2012) is to consider and make recommendations on the application of the dispute settlement procedures in part XV of the Convention to the potential disputes arising from the application of Article 82.How to settle disputes arrising from the

application of Article 82Article 82 and 76 are closely inter-linked

(see Chircop, Development of Guidelines for the Implementation of Article 82 Working Paper, p.9).

• Considering the work already done (Chatham House, Technical Study: No. 4, Development of Guidelines for the Implementation of Article 82), I feel sure that a Model Article 82 Agreement is needed.

• This Model Article 82 Agreement should have a dispute settlement clause enabling to resolve disputes through three-tired approach (see Chircop, ibid., p.38).Applied for future the Model 82 Article Agreement will be by its nature international agreement, governed by international law and concluded in written form between State (s) and Authority.

• I. C. J. advisory opinion is clear when saying: “International organizations are subject of international law and as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties (I. C. J. Advisory opinion, Interpretation of the Agreement of 25 March 1951 between WHO and Egypt

(1980), I. C. J. Reps 73, op. cit., p. 98-90).• Two distinctive inernational agreements,

namely the Viena Convention on the Law of Treaties, 1969 (VLCT 69) and the Vienna Convention on the Law of Treaties between States and International organizations, 1986 (VLCT 86) should guide the development of an agreement between State(s) and the Authority.

• Article 82 anticipates interaction between OCS States and the Authority (Chircop, ibid. p.11).

• The proposed Model Article 82 Agreement is just a model which will follow particular caracteristic of a relationship between State and Authority.

Type of agreement• By its nature, the Model Article 82

Agreement is that of a treaty between a sovereign State and an International organization with specific features and particular characteristics (see Chircop, ibid., p.13).

• Two international conventions, namely VLCT 69 and VLCT 86 will be informed and guided the relationshiop between State(s) and the Authority.

• Since the Authority is not a Party to VCLT 86, there is a need to consider the accession to it (see Gaja in Chircop, ibid., foot note, p.14).

• The Model Article 82 Agreement will be construed in a manner of international agreement (meaning preamble, dispozitive clauses, final provisions, pacta sunt servanda as well).

• It is to be regarded as an executive agreement of UNCLOS. Its ratification will be subject of a domestic constitutional requirements od States.

Commentary: The law of the sea is that law by which States

and International Organizations regulate their relations in respect of those areas subject to coastal State’s jurisdiction and in relations to those areas of the sea and the seabed beyond national jurisdiction. Uncertainity regarding the lack of dispute settlements procedures in Article 82 demand an executive agreement to make it operational. There is a relationship between the

UNCLOS and the executive agreement that is going to be elaborated in the Model Article 82 Agreement.

• I understand that States are always reticent “to submit disputes to independent impartial adjudication and have always been particularly reticent to agree/in advance/ to compulsory jurisdiction of an independent judicial body (Rebecca M. M. Wallace, op. cit., International Law, Third Edition, Sweet et Maxwell, 1977, p. 280, see also North Sea Continental Shelf case, I. C. J. Rep. 1969, p. 3).

Applicable law• The Model Article 82 Agreement should be

guided by UNCLOS and applicable principles of international law.

• Subsidiary agreements seems to be unvoidable.• The preambulatory clause could include the

notion of concluding the agreement (of the need of each Party) to faciliate the implementation of Article 82 (Chircop, ibid., p. 15).

Dispute settlement procedures• Identification of possible disputes.• The UNCLOS has made no express

provisions for the settlement of Article 82 disputes between OCS State and the Authority.

• Model Article 82 Agreement elements are to be found in part in the VCLT 86 and Annexes.

• Constructive interpretations of particular provisions in UNCLOS/ITLOS.

• Three-tiered approach.• OCS States and the Authority to confer

jurisdiction on the ITLOS (how).• Assembly and the Council of the Authority

to seek an advisory opinion from the Seabed Dispute Chamber of ITLOS.

• To seek solution through arbitration (UNCITRAL)

• Disputes between State Parties – article 270 of UNCLOS.

• Not captured are disputes between an OCS State and the Authority with regard to matters that do not relate to activities in the Area.

The ideal Article 82 scenario• “The ideal Article 82 dispute resolution scenario

is one where the OCS State and the Authority consent to the jurisdiction of the Chamber (or the plenary tribunal) by virtue of the Article 82 Agreement, which the Tribunal would take cognizance of under Annex VI of UNCLOS as a case submitted pursuant to an agreement conferring jurisdiction on the Tribunal and is accepted by the parties concerned” (Chircop, ibid., p. 67).

• Thank you!