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Dispute Settlement Provisions of the
United Nations Convention on the Law of the Sea
By Lesther Antonio Ortega Lemus
1. Dispute Settlement Provisions of UNCLOS
One of the main achievements of the Third United Nations
Conference on the Law of the Sea (the Conference hereinafter) was
to agree on the inclusion of comprehensive provisions regarding the
settlement of disputes that could arise from the interpretation and
application of the Convention1.
Negotiation history details lengthy arguments and clearly
opposed arguments from the different parties negotiating the text.
Changes were abundant even from the works of the Drafting
Committee, thus already away from the negotiation table2.
The importance of the system as such was marked since the very
beginning of the Conference, but there was also the commitment to
maintain the feasibility of the final text to be adopted by the
attending states, signing it and finally ratifying it. There was a
firm conviction not to affect the package-deal method3, therefore
demanding a careful exercise of balancing interests and
compromising without furnishing a useless product4.
The Convention is organized into 17 divisions, called simply as
Parts. It is Part XV that is designated as Settlement of Disputes.
Additionally, Annexes V, VI, VII and VIII relate to the specific
mechanisms that Part XV (and to some extent Part XI) propounds.
Those Annexes refer to: a) Conciliation, b) the Statute of the
International Tribunal for the Law of the Sea, c) Arbitration, and
d) Special Arbitration, in respective order.
As mentioned above, there are other provisions of the
Convention, outside Part XV it is, that relate to dispute
settlement, being the most notable the referred Part XI, in its
Section 5, Articles 186-191, which deal with the Seabed Disputes
Chamber (SDC hereafter) of the International Tribunal for the Law
of the Sea (ITLOS hereafter), which will be dealt with below.
It must be remembered that as a United Nations instrument, the
Convention still is traversed by the principles and norms that
emanate from the Charter of the United Nations as well as any other
applicable instrument. Most (if not all) of the UNCLOS State
Parties are members of the United Nations as well, and by virtue of
Article 103 of the Charter, it is the latter that prevails over any
other treaty obligation. This subordination must be kept in 1
Nordquist, Myron (Ed.) United Nations Convention on the Law of the
Sea 1982 A Commentary Vol. V P.5 2 Ibid. P.5-15 3 Erasmus. Op. Cit.
P.21-22 4 Ibid.
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Dispute Settlement Provisions of The United Nations Convention
on the Law of the Sea
Lesther Antonio Ortega Lemus
mind by the reader while going through the text below and when
interpreting the role, case-law and instruments related to the
adjudicatory organs set forth or used by the UNCLOS, in particular
the International Court of Justice(ICJ hereafter), which is
especially sensitive to it as the principal judicial organ of the
United Nations.
Some of the provisions of the Charter have been embodied in the
UNCLOS expressly, as it is the case of Articles 2 paragraph 3, and
33 of the former, by means of Article 279 of the latter, virtually
extending the obligation contained in the Charter to State Parties
which could be non-members of the United Nations5.
It has been argued that due to the participation of the
countries product of the de-colonization process, as well as their
numerical superiority, there was a focus on the new law of the sea
(opposed to a suspicion towards both the established International
Law and the ICJ), making it clear from, e.g. the provisions of
Article 293, which directs the dispute resolution bodies to apply
that Convention and other rules of international law not
incompatible with this Convention, when referring to the applicable
law6.
1.1. Part XV As mentioned before, Part XV has a very interesting
drafting history, which corresponds to the type of agreements and
compromises that had to be achieved in order to make the whole
dispute settlement system acceptable for all (or at least most) of
the negotiating parties.
Four fundamental aims guided that process: Firstly, the
settlement of disputes was to be based on law to avoid disputes
being settled through the political and economic pressures of the
more powerful States. Second, the greatest possible uniformity in
the interpretation of the Convention would be sought through
compulsory dispute settlement. Third, exceptions would be carefully
determined in order to enhance the obligatory character of the
settlement regime. Finally, the system of dispute settlement had to
constitute an integral part of the Convention rather than be
included as an optional protocol7.
In addition, the dispute settlement mechanism was seen as the
necessary guardian of the delicate equilibrium that most of the
provisions of the Convention represent8. It was also envisaged as
the guarantee of a uniform and consistent interpretation of the
text9.
With so many interests at stake (sovereignty issues, security
issues, vital resources, inter alia) and such a large negotiating
body with different policies towards dispute settlement, the
problem was how to satisfy every negotiating partys
preferences.
5 Merrils, J.G. International Dispute Settlement. 4th Ed.
Cambridge University Press P. 183 6 Ibid. P.187 7 Klein, Natalie.
Dispute Settlement in the UN Convention on the Law of the Sea.
Cambridge University Press. P.20-21 8 Adede, A.O. The Basic
Structure of the Disputes Settlement Part of the Law of the Sea
Convention, P.145 in Ocean Development and International Law
Journal Vol. 11 No. 1/2 (1982) 9 Ibid. P.10
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Dispute Settlement Provisions of The United Nations Convention
on the Law of the Sea
Lesther Antonio Ortega Lemus
Through the negotiation of the dispute settlement provisions,
the problem just mentioned became a real one. This potential
impasse was solved in Montreux10 by furnishing a flexible and
diverse formula of choice whereby all the interests were
represented, which is now reflected in Article 287 of the
Convention.
The mechanism had to be compulsory in order to serve the purpose
for which it was devised. Agreement to the latter required certain
exclusions from the compulsory mechanism, in order for the future
parties to feel secure about their highest interests11.
Consequently, a set of exclusions and opt-outs were inserted into
the frame (and now stand as Articles 297 and 298).
The main characteristics of Part XV (which is discussed in
detail below) are the following:
a. It is a subsidiary mechanism to solve the parties disputes12.
It firstly allows parties to deal with their disputes in a pacific
manner under the means of settlement of their own choice.
b. It requires from the parties to exchange views, therefore
privileging a negotiated solution.
c. When used, Part XV provides for an escalation procedure,
starting with diplomatic means of settlement, followed by (if
resorted to) conciliation and afterwards entering into adjudicative
binding methods (if the issue is not excluded by the Convention or
by a declaration).
1.1.1. Structure Part XV comprises 20 Articles (279-299) which
are arranged into three sections, namely:
a. Section 1. General Provisions (Articles 279-285), b. Section
2. Compulsory Procedures Entailing Binding Decisions (Articles
286-296),
and c. Section 3. Limitations and Exceptions to Applicability of
Section 2 (Articles 297-
299).
This arrangement was the product of many alternate drafting
exercises during the Conference and took its actual shape very late
in that process13.
The referred arrangement reflects the type of means of
settlement according to their nature: section 1 contains the
diplomatic means and the freedom of choice as well as
non-compulsory conciliation; section 2 comprises compulsory
settlement by means of binding-decision adjudicative bodies, and
section 3 refers to compulsory conciliation as the only 10 Adede.
Op. Cit. P.131-132 11 Churchill, R.R. & A. V. Lowe The Law of
the Sea 3rd Ed. Manchester University Press P. 455 12 Merrills. Op.
Cit. P.207 13 Ibid. P.14
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Dispute Settlement Provisions of The United Nations Convention
on the Law of the Sea
Lesther Antonio Ortega Lemus
applicable mean to settle disputes in the fields where exclusion
from section two has been accepted.
1.1.2. Section 1 Going back to Section 1, it is there where the
main principles of the mechanism14 are laid down, being those:
a. the obligation of the parties to settle their disputes by
peaceful means (Article 279), b. the parties are free to choose the
means of settlement of their preference (Article
280)15, and c. the procedures set forth in Part XV apply only
when the choice of the parties has
been unsuccessful in bringing a final solution or when time
designated for that has lapsed (Article 281).
In addition, it is also stipulated that any other applicable
arrangement whereby the parties have agreed to dispute settlement
entailing binding decisions should be followed in lieu of Part XV
(Article 282). Lastly, the parties are required to expeditiously
make use of negotiation, through the obligation to exchange views
set forth by Article 28316.
The guiding principles set out in the Articles discussed above
reflect the ancillary character of Part XV, by giving priority to
any other arrangement that the Parties of the Convention and to a
dispute thereto may be able to reach: by a previously entered
jurisdictional clause, either general, bilateral, multilateral or
regional (particularly evident in Articles 281 and 282), or an
arrangement ex post facto (as provided by Articles 279 and
280).
Conciliation17 is singled out by the Convention (giving it
certain relevance) and proposed as mean to be chosen by the Parties
to settle their disputes without resorting to a binding decision18
as well as the only available compulsory means when the matter
falls within the exceptions or limitations set by Articles 297 and
298. Annex V of the Convention blueprints the procedure to follow
in case conciliation is accepted, as well as for compulsory
Conciliation. The actual procedure to be followed will be discussed
further down.
One final element which makes Section 1 of Part XV remarkable as
a dispute settlement mechanism embodied in an international
instrument is that by virtue of Article 285, all the above
described diplomatic machinery applies both to State Parties and to
other entities different from States, according to the rules laid
down in Part XI Section 5 (as the
14 Churchill & Lowe. Op. Cit. P.454 15 See Peters, Anne
International Dispute Settlement: A Network of Cooperational Duties
in European Journal of International Law Vol. 14 No.1 (2003) P.10
16 Although such obligation (in UNCLOS and in general Public
International Law)seems to be relative in its extent, as it can be
observed through the dicta of cases as the Southern Bluefin Tuna
case or in the Cameroon v. Nigeria Land and Maritime Boundary case
of 1998 17 For more on Conciliation, see Koopmans, Sven Diplomatic
Dispute Settlement The Use of Inter-State Conciliation, T.M.C.
Asser Press, The Hague 2008 18 Mensah, Thomas The Dispute
Settlement Regime of the 1982 United Nations Convention on the Law
of the Sea in Max Planck Yearbook of United Nations Law 2 (1998)
P.310
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Dispute Settlement Provisions of The United Nations Convention
on the Law of the Sea
Lesther Antonio Ortega Lemus
Agreement Relating to the Implementation of Part XI of 199419
did not affect Section 5 at all), and by means of Article 305, and
especially letter f) of the latter, in conjunction with Article 7
of Annex IX of the Convention with regards to International
Organizations20.
Section 1 of Part XV is also applicable by extension, when the
international agreements, mentioned in Article 288 refer to the
whole Part without discriminating between the non-binding means of
the latter and Section 2 binding-decision means.
1.1.3. Section 2 The procedures in Section 2 are deem as
complementary to the traditional means of dispute settlement which
have been hallowed by customary international law, residual
procedures, in that they are applicable only in default of other
procedures acceptable to the parties21.
Following the indications of the first Article of this Section,
resort to it should take place only when, after attempting
settlement under Section 1 has proven unsuccessful22. That includes
not only the possibility of the parties to a dispute to actually
agree in a mechanism, use it and it concludes unsuccessfully, but
also when disagreement about the mechanism impedes advancing or
when the resorting to Section 1 is actually not accepted at all
(e.g. under Article 284 paragraph 3 whereby if the invitation to
resort to Conciliation is not accepted by one of the Parties, the
mechanism is deem to be terminated, having the double effect of
properly concluding it but also satisfying the requirement of usage
of Section 1 and of negotiations to take place).
Parties, in the case described above, should also enter into an
exchange of views if the settlement of disputes mechanism proves
unsuccessful. The text of the Convention gives the impression of
using this as a safety pin that ensures that, both when a dispute
arises as when a mechanism of dispute settlement has concluded
without success, the dispute does not run automatically through the
mechanism23, but actually being propelled step by step by the
Parties to it. The latter has been characterized as detrimental to
the impact of the mechanism24 per se, nevertheless it is the
opinion of the undersigning that it rather provides to the Parties
a degree of control over the dispute settlement process, a
feature
19 Agreement Relating to the Implementation of Part XI of the
United Nations Convention on the Law of the Sea, New York 1994. 20
As it will be discussed hereafter, the Case concerning the
Conservation and sustainable Exploitation of Swordfish Stocks in
the South-Eastern Pacific Ocean is (as far as the knowledge of the
undersigning reaches) the first case where an International
Organization is taken to Court by a State in the context of an
international instruments dispute settlement mechanism. 21 Vidas,
Davor & Willy streng (Eds.) Order of the Oceans at the Turn of
the Century P.83 22 A possible (but not clear-cut) exception is
that of disputes arising out of marine scientific research
activities, which by virtue of Article 264 should be settled
directly by use of Sections 2 & 3 of Part XV, as no mention is
made to Section 1. 23 Adede. Op. Cit. P.129 24 Merrills. Op. Cit.
P.189
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Dispute Settlement Provisions of The United Nations Convention
on the Law of the Sea
Lesther Antonio Ortega Lemus
that surely was appreciated when States had to consider becoming
parties to the Convention or not.
Articles 287 and 288 constitute the core of the Section,
providing respectively the famous choice of procedure (which
actually is a choice of mechanism, mean or institution rather than
procedure) and the scope of jurisdiction.
Article 287, as has been stated above, gives Parties the freedom
to select one or various means to settle disputes that have not
been solved by means of the provisions set in Section 1:
a) The International Tribunal for the Law of the Sea, b) The
International Court of Justice, c) Arbitration under Annex VII of
the Convention, and d) Special Arbitration under Annex VIII of the
Convention.
The flexible formula accommodates the positions of the different
groups during the Conference, and allows the Parties to choose one
or more of the mechanisms enumerated above by means of a written
declaration to be deposited with the Secretary General of the
United Nations. Practice shows that Parties not only select one or
more of the above mentioned, but creatively put then (when
selecting more than one) in a preferential order, designate
mechanisms for certain types of disputes or exclude certain types
of disputes from the jurisdiction of one of them or, as a few
countries have done, make a negative choice by completely denying
jurisdiction of one of the mechanisms (e.g. Cuba and Guinea-Bissau
with regards to the ICJ25).
Thus, Parties can make their choice at the time of signing,
ratifying, acceding or any other moment thereon. Not making a
choice actually entails making a choice for Arbitration under Annex
VII of the Convention, as paragraph 3 of the Article under
discussion presumes so when no declaration has been made. The same
direction is followed when Parties to a dispute have divergent
choices26. A very special case is that of an International
Organization Party to the Convention and party to a dispute jointly
or in the same interest with its member states, whereby the former
has to follow the choice of the latter, with the exception of the
case where the choice of the State is for the ICJ alone, and
whereby for the reason explained below, both are deem to have
chosen Arbitration under Annex VII, unless otherwise agreed by the
parties to the dispute (and presumably always excluding the ICJ as
a possibility, following Article 34 paragraph 1 of the Statute of
the Court).
25 Churchill, R. R. Some Reflections on the Operation of the
Dispute Settlement System of the UN Convention on the Law of the
Sea During its First Decade in Freestone, Barnes & Ong The Law
of the Sea Progress and Prospects. P.395 26 This may lead to
strange outcomes as the case of two States making a choice for
different permanent (i.e. one for ICJ and one for ITLOS)
jurisdictions will have to (unless agreement of the parties) use
arbitration. See Vukas, Budislav The Law of the Sea: Selected
Writings P.298
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Dispute Settlement Provisions of The United Nations Convention
on the Law of the Sea
Lesther Antonio Ortega Lemus
Arbitration under Annex VII arises as the default mechanism27
and currently, taking into account both declarations choosing it
expressly and the lack-of-declaration device, covers most (by far)
of the possible disputes falling into binding-decision
mechanisms28.
Paragraphs 6) and 7) of Article 287 require special mention as
they appear as corrections to the system of declarations of
acceptance of compulsory jurisdiction embedded in the Statute of
the ICJ. Paragraph 6) indicates that a revocation of a declaration
as per paragraph 1 will enter into effect until three months after
its effective deposit (avoiding circumstances as the Nicaragua
Case29). Paragraph 7), on the other hand, clarifies that the
expiry, revocation or substitution of a declaration by a new one,
does not affect proceedings pending before any of the mechanisms
(avoiding claims as the one made by Guatemala in the Nottebohm
Case30).
Paragraph 2) also inserts an important limitation to the freedom
of the Parties, as it makes it clear that the jurisdiction of the
SDC remains obligatory and unaffected by the above mentioned
declarations.
Before entering into the regulation of jurisdiction, access to
the adjudicative organs mechanisms is given by Article 291, to
State Parties. With regards to other entities, it is applicable
only to the extent regulated by the Convention itself, in
particular by Section 5 of Part XI with regards to activities in
the Area and the International Seabed Authority. As a nuance, Annex
IX in its Article 7 impedes International Organizations from
selecting the International Court of Justice as dispute settlement
mechanism, for obvious reasons that stem from the Statute of the
Courts Article 34 paragraph 1.
Jurisdiction, as reflected in Article 288, comprises any dispute
concerning the interpretation or application of the Convention, as
well as of an international agreement related to the purposes of
this Convention, which is submitted to it in accordance with the
agreement.
From those lines, it is understood that the dispute settlement
mechanism entailing binding decisions covers the whole of the
Conventions regulated matters, without further exceptions or
limitations than the ones provided by the Convention itself
(Section 3). Again the restriction to the generality comes from the
Seabed regime, as the SDC has a predetermined exclusive and
excluding jurisdiction.
27 This of course applies if the parties do not make any other
decision, as the freedom to choose the mechanisms to settle a
dispute is maintained throughout the totality of the process and
has actually happened in two cases which were originally directed
to Annex VII Arbitration but were transferred by choice of the
parties to ITLOS (situation that happened after the approximations
that the President of the latter holds with both parties when the
constitution of the arbitral tribunal is about to take place,
moment when they learn more about the Tribunal and the benefits vis
vis Arbitration. The reason to this, according to what the
President of ITLOS Judge Jos Luis Jesus told the undersigning, is
that many countries do not know about it). 28 An updated table of
declarations under Article 287 is available at
http://www.un.org/depts/los/settlement
_of_disputes/choice_procedure.htm 29 Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
1984, P.392 at P.419 30 Nottebohm Case (Preliminary Objection),
Judgment of November 18th, 1953: I.C.J. Reports 1953, P.111, at.
116. Also available at
http://www.icj-cij.org/docket/files/18/2057.pdf
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Dispute Settlement Provisions of The United Nations Convention
on the Law of the Sea
Lesther Antonio Ortega Lemus
Furthermore, the Convention plays a structural role of lending
its dispute settlement mechanism to any other arrangement that
hosts related purposes to those of the Convention31, taking
advantage of the machinery already put in place and with presumable
capacity and expertise in the matter. It also could be said that in
practice it aims at the focalization of the Law of the Sea and
related matters around consistent and overarching precedents and
interpretations.
Jurisdictional regulation in that Article concludes with an
affirmation of the principle of competence de la competnce by
leaving to the seised adjudicatory body the decision of its own
contested jurisdiction.
Applicable law (Article 293), is the Convention and other norms
of International Law not incompatible with the latter. Additional
provisions can be found in the Statute of ITLOS both for the
Tribunal as for the SDC32. The bodies in question could also decide
ex aequo et bono if authorized by the parties to the dispute
(another provision that was modeled after the Statute of the
ICJ).
The case of international agreements related to the purpose of
the Convention, would imply necessarily applying that agreement in
particular and/or its own provisions with regards to applicable law
(as it is the case of Article 30 paragraph 5 of the Straddling Fish
Stocks Agreement33). Interestingly enough (at least as a
theoretical exercise due to the fact that the very basic premise of
the enabling provision is that the international agreement must be
in accordance with the purpose of the Convention), since some of
those agreements34 might not impose on their parties to be at the
same time parties to the Convention, a case submitted to an Article
287 paragraph 1 adjudicatory body could exclude the applicability
of the Convention itself (although a wide number of its provisions
exist identically under Customary International Law35) beyond the
provisions of Part XV or even more restricted, those of Article
28736.
Normative novelty37 was that of Articles 294 and 295, as they
introduce interesting elements to the dispute settlement mechanism,
namely, the rejection in limine of abuse of
31 For a thorough discussion on the topic see Treves, Tullio A
System for Law of the Sea Dispute Settlement in Freestone et al. Op
Cit. P.417 32 There is also an applicable law Article in Annex III,
nevertheless not related to dispute settlement (in principle). 33
Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982
Relating to the Conservation and Management of Straddling Fish
Stocks and Highly Migratory Fish Stocks. United Nations General
Assembly A/CONF.164/37 34 Examples of that situation are provided
in Treves Op. Cit. A relevant list is to be found at www.itlos.org
35 See inter alia Macrae, Leslie M. Customary International Law and
the United Nations Law of the Sea Treaty in California Western
International Law Journal Vol. 13 (1983) 36 Professor Treves seems
to hold a different view (Cfr. Op. Cit. P.428), as he purports that
actually the Conventions substantive provisions would be extended
in their application to the non-party when the conventional rules
do not match the customary ones. 37 Merrills. Op. Cit. P.186-187
Although the latter compares those two provisions with similar
norms in the European Convention of Human Rights.
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Dispute Settlement Provisions of The United Nations Convention
on the Law of the Sea
Lesther Antonio Ortega Lemus
legal process claims, both proprio motu or at the request of a
party, and the exhaustion of local remedies (when International Law
so requires38).
Going back to Article 294, paragraph 3 entitles parties to make
use of preliminary objections, following the relevant rules of
procedure, respectively the Rules of Court of the ICJ39, the Rules
of the Tribunal of the ITLOS40 (particularly Article 97) and
whatever relevant rules of procedure Annex VII and VIII arbitral
tribunals put together.
Provisional Measures deserve a longer treatment than the
physical constrains of this paper can endow. In any case, the most
relevant elements of the regulation of provisional measures by
Article 290 is that once prima facie jurisdiction has been
ascertained by the seised adjudicatory body, and only at the
request of a party to the dispute, the latter may prescribe any
provisional measures which considers appropriate under the
circumstances with two possible goals: to preserve the parties
rights or to prevent serious harm to the marine environment. The
undersigning asked to a number of well known experts (which asked
not to be identified in this paper), what is the current status of
such provision, in particular the following questions:
a) Is the limitation of the power to prescribe provisional
measures only at the request of a party seen as a hard norm or
could it be superseded by the doctrine of inherent powers?
b) Could this limitation be overseen (or not) by the ICJ under
the power given by Article 41 of its Statute and prescribe
provisional measures proprio motu? And if so, are the other three
choices of Article 287 in an inferiority position? Could this be
seen as an advantage on choosing the ICJ as means to settle
disputes under Part XV Section 2?
Both questions were subject to diverse and even contradicting
answers41. It indicates at least to the undersigning that are
issues still to be put to the test by the docket generated by Part
XV.
Paragraph 6) of Article 290 is another example of the Convention
learning from the ICJs Statutes shortcomings, as it states clearly
that parties shall comply promptly with the prescribed measures42
(as opposed to the measures indicated as per Article 41 paragraph 1
of the Statute of the ICJ43).
38 This particular provision is inserted due to the nature of
the possible subjects to the jurisdiction of the adjudicatory
bodies, being States, International Organizations, private
companies and even individuals. 39 Available at www.icj-cij.org 40
International Tribunal for the Law of the Sea Basic Texts 2005
P.16-70 at P.53 also available at www.itlos.org 41 Some of the
answers to the first question included the very suggestion of that
faculty falling under the inherent powers doctrine (especially for
ITLOS that has no more basis than the Convention), as well as a
reply to that suggestion as being contra legem and therefore not
ascertainable. To the second question, the answers were more
ambivalent. For that issue see Orrego Vicua, Francisco The
International Tribunal for the Law of the Sea and Provisional
measures: Settled Issues and Pending Problems in The International
Journal of Marine and Coastal Law, Vol. 22 No. 3 (2007) at P.455 42
Churchill & Lowe Op. Cit. P.459 43 Orrego Vicua Op. Cit.
P.452
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Dispute Settlement Provisions of The United Nations Convention
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Lesther Antonio Ortega Lemus
Paragraph 5) of the said Article brings one of the two
compulsory jurisdiction cases that favor ITLOS, namely, the
prescription of provisional measures pending the constitution of an
arbitral tribunal after two weeks of the request for provisional
measures, if the parties have not agreed otherwise. In this
scenario, ITLOS must first determine if the arbitral tribunal to be
constituted will have prima facie jurisdiction, and second, if the
urgency of the request requires it to provide for the measures or
if there is no risk by waiting for the arbitral tribunal, which
once constituted will have in any case the power to revoke, affirm
or modify any provisional measure so prescribed by ITLOS.
The second of those ITLOS compulsory jurisdiction proceedings is
the one crystallized in Article 292, regarding the prompt release
of vessels and their crew following detention by a State other than
the Flag State44. The negotiation of this procedure45 proved to be
(strangely according to some authors46) quite complicated, although
to the opinion of the undersigning, the complexity of its
negotiation makes complete sense due to its compulsory and
unavoidable nature, obligatory compliance and celerity, that in a
certain way strips away from the detaining country a certain power
which was a long-vested one.
The substantive norms for that procedure come from Articles 73
paragraph 2), 220 paragraph 7), and 226 paragraph 1. Procedure is
provided by Articles 110-114 of the Rules of ITLOS47.
The fact that the application can be made either (or just) by
the Flag State or on its behalf is a salient feature48, which
allows certain flexibility of action, relieving the Flag State in
many cases and providing the vessels and crews stakeholders to act
upon their interests. It also presents certain possibilities to the
future still unexplored, as the one of an application made on
behalf of the Flag State by the State whose nationals are crew
members or shareholders of the ship owners interests (or beneficial
owners), by insurers or creditors of the vessel, et cetera.
An application for release can be made to ITLOS when the
following three elements converge:
a) A State Party has detained a vessel flying the flag of
another State Party to the Convention,
b) The authorities of the detaining Party have allegedly not
complied with the prompt release of the vessel or its crew upon the
posting of a reasonable bond or other financial security, as
indicated in the Convention, and
44 A well-detailed account of the matter at Mensah, Thomas The
Tribunal and the Prompt Release of Vessels in The International
Journal of Marine and Coastal Law, Vol. 22 No. 3 (2007) P.425 45
The drafting history of the said Article available at Nordquist Op.
Cit. P.66-71 46 Inter alia Merrills, Op. Cit. P.186 47 ITLOS
publication A Guide to Proceedings before the International
Tribunal for the Law of the Sea P.23-27 offers a simplified
explanation of the procedure as well as models for the documents to
be submitted. 48 For justification and drafting history of that
feature see Nordquist Op. Cit. P.70-71
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Dispute Settlement Provisions of The United Nations Convention
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Lesther Antonio Ortega Lemus
c) The Parties have not agreed upon the submission of the matter
to any Court or Tribunal within 10 days of the detention.
Evidently, by agreement of the parties, the matter could be
submitted to ITLOS immediately after detention (alternatively to
any court or tribunal or to the choice made by the detaining State
under Article 287). In practice all cases49 have been submitted to
ITLOS50, which by now counts with unmatched skill and has developed
a relevant case-law.
An important clarification with regards to the procedure in
discussion is that its treatment by the adjudicatory body (in
practice ITLOS) will only address the question of the release of
the vessel and/or its crew, without prejudicing the merits of the
case (which usually should be a domestic issue for the detaining
state to deal with51). Thus, the judgment to be delivered should
only deal with the question of whether or not the detaining State
has complied with the provisions of the Convention on the
matter.
If the claim advanced by the applicant is accepted as founded by
the seised body, it must decide the amount, the nature and the form
of the bond or other financial security to be posted, upon which,
the detaining State must promptly comply with the judgment rendered
therein. The bond or other financial security can be posted either
with the detaining State or (in the case of ITLOS) with the
Registrar of ITLOS.
In total, the proceedings should not exceed four weeks from the
application to the rendering of the judgment.
A less relevant provision is that of Article 289, that allows
the dispute settlement bodies to make use of Experts, as Article 30
paragraph 2 of the Statute of the International Court of Justice
does. Although it has not been used yet, as Part XV disputes rise
and the complexity of them require so, it is expected that the
adjudicatory bodies will take this provision into account, even
more so after the criticism that the Pulp Mills Case52 generated
against the International Court of Justice on grounds of the
assessing of the scientific evidence by International Law
experts.
49 To the date of conclusion of this paper, ITLOS had dealt with
the following cases of prompt release of vessels and crews: 1. The
M/V Saiga (Saint Vincent and the Granadines v. Guinea), 2. The
Camouco (Panama v. France), 3. The Monte Confurco (Seychelles v.
France), 4. The Grand Prince (Belize v. France), 5. The Chaisiri
Reefer 2 (Panama v. Yemen) , 6. The Volga (Russian Federation v.
Australia), 7. The Juno Trader (Saint Vincent and the Granadines v.
Guinea Bissau), 8. The Hoshinmaru(Japan v. Russian Federation, and
9. The Tomimaru (Japan v. Russian Federation). See www.itlos.org 50
It appears, both to the opinion of the interviewed experts and to
the undersigning, that it is rather unlikely that State Parties
will ever resort to any other of the 287 possibilities for the
prompt release of vessels and crews, due to the speed requirement
of the procedure, the fact that only ITLOS has tested criteria and
shown capacity to deliver judgment on time (even when seised with
two cases simultaneously, i.e. the Tomimaru and Hoshinmaru Cases).
It will be very difficult that with the time-constraint of 10 days
from the detention of the vessel, that the parties will agree to
something else than ITLOS, if they could not agree on the release
of the vessel against the posting of a security. 51 Those
procedures will usually include i.e. fines or even criminal
investigation/prosecution to or against the Captain, crews, or
owner of the vessel. 52 Case Concerning Pulp Mills in the River
Uruguay (Argentina v. Uruguay). Available at
http://www.icj-cij.org/docket/files/135/15877.pdf
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The last Article of Section 2 (Article 296) lays down two sides
of the stare decisis et non quieta movere rule: the first one which
indicates the finality and obligatory character of the decision,
and the second one that the effects of this obligatory decision
only reach the parties of the process. Both have equivalents in the
ICJ Statute in Articles 59 and 60. Additionally, Article 94
paragraph 1 of the Charter of the United Nations completes the
latter in the way Article 296 paragraph 1 of the Convention is
structured.
As an overarching comment on Section 2 of Part XV of the
Convention, it is possible to recognize in its text a sound system
of compulsory settlement of disputes arising out of the
interpretation or application of the said instrument, when no
solution has been reached through the application (or
non-application by virtue of its ancillary character and the
freedom to choose principle) of Section 1 of that Part. Its
flexibility certainly gives it strength, but introduces some doubts
about the accomplishment of one of the main objectives while
drafting Part XV, which was to maintain the uniformity and
coherence of the Conventions case law.
1.1.4. Section 3 The final section of Part XV deals with the
exceptions and limitations to the system of compulsory jurisdiction
described above.
The reason and need for exceptions has been mentioned
beforehand, as part of the delicate compromise that was achieved in
order to put in place the almost-comprehensive system that entails
compulsory and binding jurisdictional outcomes, without impinging
on the most sensitive interests of States that would certainly bar
the latter from acceding to such a system.
Two parallel devises were incorporated to the text: first, all
matters which were automatically excluded from the reach of
compulsory and binding dispute resolution and second, those matters
that are up to each State to declare (but automatically triggering
reciprocal effects) its exclusion from the said system. Each of
those devises was drafted in a single (and difficult-to-read)
article of the Convention, being those respectively, Article 297
and 298.
1.1.4.1. Article 297: Automatic Exceptions The chapeau of
Article 297 indicates that it deals with limitations to the system
laid down by Section 2. It is divided into three paragraphs:
a) Paragraph 1, which deals with the submission of claims
against the exercise of sovereign rights or jurisdiction by the
coastal state,
b) Paragraph 2, which deals with marine scientific research
disputes, and c) Paragraph 3, which deals with fisheries.
Paragraph 1, as mentioned, establishes that when a dispute
regarding the interpretation and/or application of the Convention
related to the exercise of sovereign rights or
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jurisdiction by the Coastal State53 will be subject to the
compulsory jurisdiction system of Section 2 when it falls under the
following three categories:
a) When it is alleged that the Coastal State transgressed the
Conventions provisions on the freedoms and rights of navigation,
overflight or laying of submarine cables and pipelines and any
other internationally lawful uses of the sea (as per Article 58)
allowed in its Exclusive Economic Zone,
b) When it is a third state that has contravened the Convention
or the laws and regulations of a Coastal State in the exercise of
those freedoms and rights, and
c) When it is alleged that a Coastal State has acted in
contravention of international rules and standards for the
protection and preservation of the marine environment (applicable
to that State) either established under the Convention or through a
competent international organization (i.e. the International
Maritime Organization).
The logic of it, being a limitation to Section 2, and not merely
a reaffirmation of its applicability comes, according to some
authors54, from its drafting history, whereby in previous drafts
the word only made clear that when it came to disputes related to
the discretion of the Coastal State in the exercise of its
sovereign rights or jurisdiction, the three categories listed above
were exceptionally subject to Section 2, thus any other case would
be excluded55. The final wording of the text leaves no other option
to reconcile the purpose set out in the chapeau of the Article with
its contents.
Paragraph 2 starts by affirming what Article 264 states with
regards to marine scientific research activities, but inserts the
limitation that the coastal state is not obliged to accept the
submission for settlement of any dispute arising out of its
discretionary right under Article 246 (that states the jurisdiction
of the Coastal State to regulate, authorize and conduct marine
scientific research in its Exclusive Economic Zone and Continental
Shelf; other states depend on its consent to conduct those
activities in the said areas and the Coastal State can
discretionarily withhold its consent under certain conditions), and
its power to suspend marine scientific research in accordance to
Article 253.
Despite the above mentioned limitation, Paragraph 2 does give
third states the right to resort to compulsory conciliation
(misnomer according to Adede56 and an euphemism, according to
Brown57) following the procedure set forth in Annex V, section 2;
however, the commission cannot question or substitute the Coastal
States discretion with its own.
Paragraph 3 deals with fisheries disputes, stating again the
general rule by which those are subject to Section 2 of Part XV of
the Convention, and later on adding the exception
53 For further explanations see Klein Op. Cit. P.140-144 54 See
Brown, E.D. Dispute Settlement and the Law of the Sea: the UN
Convention Regime P.22 in Marine Policy, Vol. 21 No.1 (1997) 55
Ibid. 56 Adede Op. Cit. P.148 57 Brown Op. Cit. P. 24
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whereby the Coastal State is not obliged to allow the submission
of a dispute relating to its sovereign rights with respect to the
living resources and discretionary management and conservations
powers, including the contents of related domestic legislation.
When the Coastal State manifestly fails to comply with its
management and conservation obligation, when it arbitrarily refuse
to make the determinations related to the exploitation of the
living resources in its Exclusive Economic Zone or to allocate any
surplus therein, a third state can institute compulsory
conciliation under the same conditions as in Paragraph 2.
1.1.4.2. Article 298: Optional Exceptions The second type of
exceptions from compulsory settlement of dispute by means of
Section 2 is the set of dispute categories listed in Article 298.
Differently from those in Article 297, dispute categories listed in
the former require to be excluded by the State Party, by means of a
written declaration following the provisions of paragraphs 5 &
6 of Article 298.
The three categories of disputes that can be excluded are:
a) Disputes concerning maritime delimitation and historic titles
(including historic bays), as per paragraph 1 (a),
b) Disputes concerning military and law enforcement activities
in regard to the exercise of sovereign rights or jurisdiction, as
per paragraph 1 (b), and
c) Disputes in respect of which the Security Council of the
United Nations is exercising its functions, as per paragraph 1
(c).
The rationale behind the first category of disputes being
excluded comes from the fact that there was no agreement with
regards to the propriety of subjecting delimitation of boundaries
to a adjudicatory body, by compulsory means, and by the fact that
the relevant substantive Articles (15, 74 and 83) give little
comfort to those searching for certainty and predictability as
requirements for subjecting themselves to Section 2 procedures.
The Convention indicates that when such a declaration is made,
the State making the latter is obliged to submit itself to
compulsory conciliation under Annex V section 2, if a dispute
arises subsequently to the entry into force of the Convention, that
negotiation has not been successful after a reasonable period of
time and that the dispute does not include any pending sovereignty
dispute (either continental or insular).
The Conciliation Commission, when seised with the dispute, has
to produce a report, which of course has to be reasoned.
Subsequently, parties to the dispute are expected to negotiate an
agreement on the basis of that report, and where that negotiation
fails, by mutual consent, parties should submit the dispute to
Section 2 procedures. This makes reaching an agreement completely
dependent on the will of both parties, reason why it has been
labeled as mere pactum de contrahendo58.
58 Brown Op. Cit. P.25
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The natural comment that derives from the scope of the exclusion
is that all disputes predating the Conventions entry into force
that have to do with delimitation of maritime boundaries between
adjacent and opposite States are excluded from the devise of
Section 2, whenever the State concerned actually makes a
declaration under Article 298 in that respect. Agreed boundaries
and delimitation to take place according to bilateral or
multilateral agreements are excluded as well.
The second category of disputes excluded relate to military
activities and law enforcement activities (related to the sovereign
rights and jurisdiction of the coastal state with regards to marine
scientific research and fisheries). The exclusion touches a highly
sensitive area and the reason for its existence can hardly be
questioned, at least under the current status of international
law59.
Finally, the third category of possible exclusions relates to
disputes where the Security Council is exercising its functions in
accordance with the Charter of the United Nations. A limit to the
exclusion is when the Security Council actually withdraws that
matter from its agenda or calls the parties to settle the disputes
by the means provided by the Convention (following Articles 33,
36-38 of the Charter).
Although Section 3 puts in place by means of Articles 297 and
298 the previously stated categories of disputes away from the
reach of means of dispute settlement set forth in Section 2,
Article 299 preserves the right of the parties to, still, resort to
any mean of their own choice to settle those disputes.
1.1.4.3. The effect of Section 3 A large volume of the critique
has focused on the effect of Section 3 over the reach and strength
of the dispute settlement system, sometimes qualifying it as
eroding60 or inserting serious limitations61 to the system.
Although it can be recognized that it is far from comprehensive
or perfect, the words of Thomas Mensah, first president of ITLOS
provide a good framework:
There can be no denying that the compromise made to gain the
system wide acceptance involves some sacrifice the inclusion of
certain limitations and exceptions to the compulsory application of
the system. And the question whether the actual limitations and
exceptions incorporated in the Convention are appropriate,
reasonable minds may and will differ. While cannot be contested is
the level of international acceptance which the system now enjoys
would not have been possible without a compromise of the kind now
in the Convention. The
59 See Janis, M.W. Dispute Settlement in the Law of the Sea
Convention: the Military Activities Exception, in Ocean Development
and International Law Vol. 4 (1977) P.51-65 60 Merrills Op. Cit.
P.189 61 Kwiatkowska, Barbara Peaceful Settlement of Oceans and
Other Environmental Disputes Under International Agreements
P.22
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issue then, is not whether we wish to have any compulsory system
or none at all. What we have is certainly not perfect, and no one
can claim or has claimed otherwise. What can be claimed with a
degree of confidence is that it probably was the only one on offer.
Considering that it is also much better than what had hitherto been
available or even imagined, it also may safely be said that this
was an offer which the international community could not reasonably
refuse62.
1.2. Part XI As mentioned before, the Convention hosts dispute
resolution provisions elsewhere than in Part XV, being the most
relevant Section 5 of Part XI63, which establishes the bases of the
SDC jurisdiction.
Structurally, Section 5 comprises Articles 186 to 191, being
Articles 187-189 the core elements of this part, as they establish
respectively the jurisdiction of the SDC, the choice of procedure
and the limitation of jurisdiction with regards to the decisions of
the International Seabed Authority (ISA).
The SDC64 is established by means of Article 186, which directs
the reader to Part XV and to Annex VI (Statute of ITLOS). Its
jurisdictions scope, according to Article 187, covers disputes with
respect to activities in the Area in the categories listed
below:
a) The interpretation and application of Part XI and Annexes III
& IV (Inter-state), b) Disputes between State Parties and the
ISA concerning alleged violations to Part XI
or the Annexes or of rules, regulations and procedures of the
ISA, as well as claims of misuse of power or excess of jurisdiction
by the ISA,
c) Disputes between parties to contracts (State Parties, ISA,
the Enterprise, natural or juridical persons) regarding the
interpretation or application of a relevant contract or plan of
work, or acts or omissions of a party to a contract that affects
another party,
d) Disputes between the ISA and a prospective contractor
concerning the refusal of a contract or a legal issue arising in
the negotiation of that contract,
e) Liability issues between the ISA and any other subject to the
SDCs jurisdiction according to the substantive rules set in Article
22 of Annex III, and
f) Any other dispute for which the SDC is named in the
Convention as being competent.
The above described Article incorporates in a novel way the
possibility of private parties and state-owned companies to have
direct standing before an international tribunal dealing with
public international law instruments. It also gives standing to the
ISA, being this an intergovernmental organization. Even more so,
the SDC can deal with both
62 Vidas & streng Op. Cit. P.93 63 For a detailed account of
the development of the regime see Klein Op. Cit. P.317-348 64 See
Mensah Op. Cit. P.316-319
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conventional international law, international organizations law
(rules, regulations and procedures of the ISA), and contractual law
regarding activities in the Area.
Due to the broad scope of this Article, freedom of choice is
given to the parties with regards to the submission of disputes
between State Parties (and international organizations which are
parties to UNCLOS) to a special chamber of ITLOS (under Articles 15
or 17 of its Statute), an ad hoc chamber of the SDC (under Article
36 of ITLOS Statute)65. Disputes regarding the interpretation or
application of a contract of a plan of work can even be submitted
to binding commercial arbitration under the limitations that such
arbitral tribunal cannot enter into the interpretation of the
Convention (matter which if arises, has to be dealt with by the SDC
by referral of latter, and such decision has to be followed by the
arbitral tribunal when rendering its award). UNCITRAL rules are
pointed out as subsidiary, when the parties make no decision on
that matter.
Although endowed with certain decision power over the ISA, the
SDC cannot question the ISAs exercise of discretionary powers or
substitute it for its own. The latter means that the SDC cannot
decide if any rules, regulations and procedures of the Authority
are in conformity with the Convention nor declare those invalid,
but merely about the application of those by the ISA in individual
cases that could conflict with the Convention or its Annexes.
Additionally, SDC shall66 give advisory opinions at the request
of the ISAs Assembly or Council, request that has to be treated as
urgent. Such procedure has been triggered for the first time by the
ISAs Council decision ISBA/16/C/13 of May 6th 2010 with regards to
the responsibilities and obligations of States sponsoring persons
and entities with respect to activities in the International Seabed
Area. This became Case 17 in ITLOS docket and the first one of the
SDC.
Being the first time that the SDC will activate its mechanism,
many things will have to be created. In an informal discussion with
the current President of the SDC, Judge Tullio Treves, some of such
issues were pointed out, highlighting the fact that amicus curiae
briefs were to be submitted, according to some approaches by
private entities and nongovernmental organizations (NGOs)67, and
that since that possibility was not regulated either by the
Convention, nor the Statute of ITLOS or its Rules, or any further
regulation, a solution had to be crafted following the examples of
other dispute settlement bodies,
65 El-Baghdadi Mahdi The Binding Nature of the Disputes
Settlement Procedure in the Third U.N. Convention On the Law of the
Sea: The International Seabed Authority (Sic) in Journal of Mineral
Law & Policy Vol. 6 (1990-1991) P.180-181 66 This expression
apparently wipes out any shadow of doubt about the alleged
discretionary power that the ICJ holds with regards to giving or
not an advisory opinion. 67 Until the date of conclusion of this
paper, twelve State Parties (United Kingdom of Great Britain and
Northern Ireland, Nauru, Korea, Romania, the Netherlands, the
Russian Federation, Mexico, Germany, China, Australia, Chile,
Philippines) three intergovernmental organizations and one NGOs
statement. See www.itlos.org
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including the World Trade Organizations case, giving to the
international community a case of commonality or
cross-fertilization among international judiciary68.
Once activities in the Area become more and more common,
disputes surely will arise as in any other segment of commerce and
industry, and with that the SDC will acquire more relevance.
1.3. Annexes Article 318 of the Convention makes it clear that
the Annexes are an integral part of it. As mentioned above, there
are 9 Annexes. Annexes V, VI, VII and VIII are relevant to the
dispute settlement system.
1.3.1. Annex V: Conciliation Conciliation under UNCLOS can take
place in two different modalities. The first one is the procedure
envisaged by Article 284, which has been already discussed and that
refers to the parties freedom to choose the means to solve their
disputes under Section 1 of Part XV. The second modality refers to
the so-called compulsory conciliation, which is mentioned in
Articles 297 and 298 as the only compulsory mean to settle disputes
when those fall under the limitations and exceptions listed
therein.
Being the only non-binding mean to settle disputes that the
Convention singled out as proposed method to settle disputes under
Section 1 of Part XV, and being the only mean available to parties
when disputes are excluded from compulsory settlement (either
automatically or by a declaration) it was felt that a procedure had
to be tailored for that purpose. Thus, Annex V through its 14
Articles sets the latter.
Following its non-compulsory and compulsory possibility, the
Annex is divided into two sections correspondingly. The first
section establishes the way to institute proceedings:
a) by writing to the other party or parties b) In such
notification, the instituting party should nominate two
conciliators,
preferably from the list maintained by the Secretary General of
the United Nations; one of them may be its national.
c) Within 21 days the notification has been made, the other
party has to appoint its own two conciliators following the same
rule. If the appointment is not made, within one week after the
expiry of the 21 days, the other party can request the Secretary
General to do the corresponding appointments (who has 30 days to
nominate the missing conciliators, in consultation with the
parties) or terminate the procedure by notification to the other
party.
68 More on commonality in Brown, Chester A common law of
international adjudication Oxford University Press 2007
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d) Within 30 days of the last nomination, the four conciliators
have to nominate a chairperson, from the list of conciliators above
mentioned, completing the conciliation commission. As above, if the
nomination doesnt take place in the established time limit, any of
the parties may request the Secretary General to fulfill his
obligations following the same rules as described.
The procedure to follow is to the conciliation commission to
determine (although the parties are entitled to modify the
guidelines set forth in the Annex, by virtue of Article 10), but in
any case it shall follow closely its main objective which is to
provide an amicable solution for the parties (which are not obliged
to follow its recommendations or report). If by 12 months no
agreement has been reached, the commission has to deposit its
report with the Secretary General of the United Nations, who will
transmit it to the parties. That report is non-binding.
If an agreement is reached, one of the parties rejects the
conclusions or three months lapse after the deposit of the report
with the Secretary General, the conciliation process is deem to be
terminated.
With regards to the compulsory conciliation procedure contained
in section 2 of that Annex, all the above rules are applicable by
virtue of Article 14. The only difference is that if the passive
party cannot resist the conciliation process from happening (as it
could under Article 284, by rejecting it and therefore terminating
conciliation), since by Article 12 such a failure to act is not a
bar for the proceedings to take place.
Being compulsory conciliation a consequence of exclusion to
Section 2, it is for the conciliation commission to determine if it
is competent or not as indicated in Article 13 of the Annex,
reinforcing the obligatory nature of the procedure.
1.3.2. Annex VI: ITLOS The Statute of ITLOS which was decided
together with the text of the Convention, was placed as an integral
part of the latter, as Annex VI. It comprises 41 Articles which
include too the relevant matters regulating the SDC.
The Conference understood clearly69 that there was no need to
reinvent anything, but rather learn from mistakes or shortcomings
from previously constituted adjudicatory bodies and adapt what was
right to the necessities of the current situation. Thus, ITLOS
Statute is closely modeled after the Statute of the ICJ and other
courts standing by that time70.
69 Although in the beginning there were several proposals which
differ largely from Annex VI final text, including the separate
Statute of the SDC which was intended to have a distinct existence.
70 For the full drafting history see Nordquist Op. Cit.
P.331-399
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Despite the above indication, there are matters that, although
regulated in the ICJs Statute, were relegated to the Rules of the
Tribunal, such as inter alia the possibility to request the
interpretation or revision of a judgment.
As guidance on the contents of Annex VI, the undersigning author
prepared the above table which shows in parallel (following
exclusively the contents of the Statute of ITLOS) the Article
contents of both the latter, UNCLOS provisions, the Statute of the
ICJ and the few relevant Articles of the UN Charter.
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Ignoring the obvious commonalities between ITLOS and the ICJ, in
the frame of that comparison, there are a few comments to be made,
being the first that by their efforts of gaining a larger
representation in the Bench, the group of developing countries
expanded the number of Judges, from the ICJs 15 to ITLOS 21. A
second comment relates to the fact that ITLOS, although being a
unitary tribunal, coexists with the SDC which in fact is a separate
adjudicative body with a specific and excluding jurisdiction,
despite the fact that its members come from the Bench of ITLOS and
serve as Judges there as well and the Statute covers them
both71.
A curiosity related to the last statement above is that the SDC
can subsequently compose Ad Hoc chambers, thus creating a chamber
of a chamber.
ITLOS and the SDC have a wider jurisdictional reach, as both are
open to entities other than States, and the latter, even to
individual or juridical persons, applying private and contractual
law if the case so demands72. Access and jurisdiction of the
Tribunal is dealt with (as can be seen in the table above) by
Articles 20 and 21 of the Statute73 and 291 of UNCLOS, while those
of the SDC are governed by Articles 37 of the Statute and 188 of
the Convention.
With regards to the procedure, it follows closely that
established by and for the ICJ. The improvements and corrections
that ITLOS Statute includes vis--vis that of ICJ were discussed
already in Section 1.1.3 above.
One last remark about this Annex is that, as stated above, many
necessary provisions for the functioning of the Tribunal (and the
SDC) have been placed in the Rules of the Tribunal74, which should
be read together with the former75.
71 This situation derives of the original intention of
establishing two tribunals, which was abandoned for the current
solution by 1977. See Nordquist Op. Cit. P.335-337 72 Although it
has been argued that ITLOS could entertain a private dispute and
apply private law as well: Basedow, Jrgen The Law Applicable to the
Substance of Private Litigation before the International Tribunal
for the Law of the Sea in Rabels Zeitschrift fr Auslndisches und
Internationales Privatrecht Vol. 63 (1999) at P.361-367 and Treves,
Tullio Private Maritime Law Litigation and the International
Tribunal for the Law of the Sea in Ibid. P.350-360 73 Drafting
history and discussion of those provisions in Wolfrum, Rdiger The
Legislative History of Articles 20 and 21 of the Statute of the
International Tribunal for the Law of the Sea in Supra P.342-349 74
The best comment on the drafting history of the Rules available at
Treves, Tullio The Procedure Before the International Tribunal for
the Law of the Sea: The Rules of the Tribunal and Related Documents
in Leiden Journal of International Law Vol. 11 (1998) P.565-597
Judge Treves chaired the Rules drafting Committee. 75 Analysis of
the Rules at Rao, Chandrasekhara and Gautier, Philippe (eds.) The
Rules of the International Tribunal for the Law of the Sea: a
commentary Martinus Nijhoff Publishers 2006
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1.3.3. Annex VII: Arbitration Arbitration is the dispute
settlement mechanism by default of the Convention. Being an ad hoc
procedure, the drafters saw the necessity of establishing, by means
of Annex VII not only its procedural features but also a mechanism
that impedes frustration of its establishment and
performance76.
Thus, Annex VII covers through its 13 Articles the establishment
of the procedure (Article 1), the composition of the arbitral
tribunal (Article 3), how to cure the default of a party in its
duty to nominate its arbitrator, the appointing authority,
time-limits, duties of the parties (Articles 6 & 7),
non-appearance (Article 9), the formalities, finality, binding
force and interpretation or implementation control of the Award
(Articles 10-12), as the applicability mutatis mutandis of the
provisions to entities other than States (Article 13)77.
Recalling that Arbitration under UNCLOS can happen as a
voluntary mean of dispute settlement or as a compulsory one, Annex
VII corresponds to the second possibility. The institution of the
proceedings is made by one party by a written notification to the
other Party (or parties) to the dispute, accompanied of a statement
of the claim and the ground on which is based, as well as the name
of its chosen arbitrator.
The other party, within 30 days of receipt of the said
notification shall nominate its own arbitrator. Both nominations
are to be made preferably from the list kept by the
Secretary-General of the United Nations indicated in Article 2 of
the Annex, and can be nationals of the nominating State. If the
notified party does not act within those 30 days, the other Party
can request the President of ITLOS, as appointing authority, to
make the necessary appointment, who has to do so, in consultation
with the parties, in the following 30 days.
The three remaining arbitrators have to be nominated by
agreement of the Parties no later than 60 days from the original
notification that instituted the arbitration. From those three
arbitrations, none of which can be a national of the parties, the
President of the arbitral tribunal must be elected, again by common
agreement. If one of the above fails in the timeframe above
mentioned, within two weeks of the expiration of the said, any of
the parties can ask the President of ITLOS to make the necessary
appointments as indicated previously, choosing all his nominations
from the referred list and from different nationalities each. So
constituted, the arbitral tribunal must decide on the procedure to
follow assuring the parties the opportunity to be heard and to
present their case. All decisions have to be taken by majority and
the absence or abstention of less than the half of the tribunal is
no bar for the tribunal to take a decision. As in most other
bodies, the President has a casting vote in case of a tie.
76 Rosenne, Shabtai Arbitration under Annex VII of the United
Nations Convention on the Law of the Sea P.991 in Nyade, Tafsir and
Wolfrum, Rdiger (eds.) Law of the Sea, Environmental Law and
Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah 77
Zekos, Georgios Arbitration as a Dispute Settlement Mechanism Under
UNCLOS, the Hamburg Rules, and WTO in Journal of International
Arbitration Vol.19 Issue 5 (2002) P.499
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The Award has to be rendered covering only the subject-matter of
the disputes, be reasoned and include the names of the members that
participated and the date. Opinions (separate or dissenting) can be
appended to it. It is final and without appeal unless beforehand
the parties decided on an appellate procedure. Any of the parties
can request the rendering tribunal to decide on the interpretation
or manner of implementation of the Award. By agreement, such
subsequent controversy can be submitted to another of the
Article-287 body.
Parties owe full cooperation to the tribunal and under such
obligation they have to provide it with all relevant documents,
facilities and information, and to call witnesses, experts an
receive evidence and to visit localities as the case requires, all
of these under each Parties domestic law and all means at their
disposal78. They also have to cover the expenses and remuneration
of the tribunal by equal shares (in principle). If a party does not
appear or fails to defend its case, the tribunal can be asked by
the other party to continue the proceedings and to deliver an
Award, prior to which the tribunal must satisfy itself of having
jurisdiction and that the claim is well based in fact and law. The
latter-provision mirrors Articles 28 of ITLOS Statute and 53 of
ICJs.
Apparently, the drafting history79 of this Annex is not as
convulse as others80, and the reasons stem from the long-standing
of arbitration itself, the many other international instruments81
that invoke it, the work of the International Law Commission and
the fact that it was the preferred method of choice for settlement
of disputes among the parties to the Conference82.
A few additional comments should be noted on Arbitration under
Annex VII, the first being that by its compulsory nature, there is
no requirement of the traditional figure of the compromise but
barely the referred notification. Secondly, the Annex leaves aside
putting any specific additional rules of procedure and leaves the
task to each tribunal, which could even choose not to put any rules
in place at all83, as was the case of the Southern Bluefin Tuna
arbitration84. Third, arbitrators are not required to be lawyers or
jurists at all85, simply experts in maritime affairs, issue that
could have an impact in the outcome of a case. Finally, being an ad
hoc procedure, the parties still need to find suitable registry
services, venues, choose the arbitrators and cover the expenses of
all of the above, resulting in a time-consuming process as well.
Besides ICSID, the Permanent Court of Arbitration (PCA)
78 A reasonable critique to that provision in Merrills Op. Cit.
P.194 79 Nordquist Op. Cit. P.421-440 80 See Adede, A. O.
Prolegomena to the Disputes Settlement Part of the Law of the Sea
Convention in New York University Journal of International Law and
Politics Vol.10 No. 2 (1977) P.354-358 81 Cfr. Sohn, Louis B. The
Role of Arbitration in Recent Multilateral Treaties in Virginia
Journal of International Law Vol. 23 No. 2 (1982-1983) P.176-177 82
Ibid P.421 83 Rosenne Op. Cit. P.997 84 To that case the
International Centre for Settlement of Investment Disputes (ICSID)
provided registry services. The Award and records of the procedure
are available at its website http://www.worldbank.org/icsid 85
Adede Prolegomena P.354 See also Merrills Op. Cit. P.193
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Dispute Settlement Provisions of The United Nations Convention
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Lesther Antonio Ortega Lemus
has also provided registry services to Annex VII Arbitrations86
and it is very likely that will do so for the Bay of Bengal
delimitation case between Bangladesh and India.
Part XV of the Convention leaves open the door for Arbitration
to participate in the rendering of provisional measures and prompt
release of vessels and crews as well, as Section 2 substantive
provisions are to be taken into account when reading Annex VII. It
must also be kept in mind the possibility of other agreements using
the Conventions dispute settlement system, therefore instituting
arbitral procedures under Annex VII which do not spawn from the
Convention itself87.
1.3.4. Annex VIII: Special Arbitration
As said before, during the Conference88, dispute settlement
provisions were envisaged either as an all-encompassing or a
functional solution89. Special arbitration under Annex VIII is the
survivor of the latter.
Thus, special arbitration covers four areas: a) fisheries, b)
protection and preservation of the marine environment, c) marine
scientific research, and d) navigation, including pollution from
vessels and by dumping. Following the track of Annexes V and VII, a
list of experts in each field of the above-mentioned has to be
maintained, respectively by: a) the Food and Agriculture
Organization (FAO), b) the United Nations Environmental Programme,
c) the Intergovernmental Oceanographic Commission (IOC), and d) The
International Maritime Organization (IMO)90. Each State Party can
nominate two experts in each area, with legal, scientific or
technical expertise.
The procedure follows Annex VII arbitration mutatis mutandis
(explicitly by Article 4 of Annex VIII). Article 1 mirrors that of
Annex VII arbitration in the manner of instituting proceedings.
Despite the above mentioned similarity with Annex VII, the
constitution of the arbitral tribunal actually follows Annex V
conciliation procedure, changing only the time-limits to a 30-day
maximum. As in Annex V, the appointing authority is the
Secretary-General of the UN.
86 The PCA website
(http://www.pca-cpa.org/showpage.asp?pag_id=1288) lists the
following: a) The Mox Plant Case (Ireland v. United Kingdom), b)
The Land Reclamation in the Straits of Johor Case (Malaysia v.
Singapore), c) the Barbados v. Trinidad and Tobago maritime
delimitation case, and d) the Guyana v. Suriname maritime
delimitation case. 87 See discussion in Oellers-Frahm, Karin
Arbitration A Promising Alternative of Dispute Settlement under the
Law of the Sea Convention in Zeitschrift fr auslndisches
ffentliches Recht und Vlkerrecht Vol. 55 (1995) P.457-478. 88
Drafting history and discussion in Nordquist. Op. Cit. P.441-445 89
Early discussion on the matter at Sohn, Louis B. Settlement of
Disputes Arising out of the Law of the Sea Convention in San Diego
Law Review Vol. 12 (1974-1975) at P.506-507 90 The lists are
available at
http://www.un.org/Depts/los/settlement_of_disputes/experts_special_arb.htm
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Dispute Settlement Provisions of The United Nations Convention
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Lesther Antonio Ortega Lemus
Article 5 introduces the possibility of asking a
special-arbitration-tribunal to conduct an inquiry/fact-finding
procedure, which in principle should be conclusive in its
findings91. The parties (by agreement) might also request the
latter to issue non-binding recommendations which they later on can
review. This process is also guided by Annex VII.
No special arbitration procedure has been established so far,
although there is a huge potential for it92, despite that some
matters that can be referred to it are actually subject of Part XVs
Section 3 limitations or exceptions to compulsory dispute
settlement, weakening its reach93. It should also be remembered
that the lists of experts also serve as source for experts under
Article 289.
91 See Brown, E.D. Op. Cit. P.39 92 See Merrills Op. Cit. P.197
93 Another argument against special arbitration usage is the fact
that until now only 9 parties to UNCLOS have chosen it as dispute
settlement mean. See French, Duncan et al (eds.) International Law
and Dispute Settlement New Problems and Techniques P.146
By Lesther Antonio Ortega Lemus1. Dispute Settlement Provisions
of UNCLOS1.1. Part XV1.1.1. Structure1.1.2. Section 11.1.3. Section
21.1.4. Section 31.1.4.1. Article 297: Automatic Exceptions1.1.4.2.
Article 298: Optional Exceptions1.1.4.3. The effect of Section
3
1.2. Part XI1.3. Annexes1.3.1. Annex V: Conciliation1.3.2. Annex
VI: ITLOS1.3.3. Annex VII: Arbitration1.3.4. Annex VIII: Special
Arbitration