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 Convention 1. 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 table 2. 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” method 3, therefore demanding a careful exercise of balancing interests and compromising without furnishing a useless product 4. 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
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Nordquist, Myron (Ed.) United Nations Convention on the Law of the Sea 1982 – A Commentary Vol. V P.5 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

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 Nations 5. It has been argued that due to the participation of the countries product of the decolonization 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 law 6. 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 protocol” 7. In addition, the dispute settlement mechanism was seen as the necessary guardian of the delicate equilibrium that most of the provisions of the Convention represent 8. It was also envisaged as the guarantee of a uniform and consistent interpretation of the text 9. 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 party’s preferences.

Merrils, J.G. International Dispute Settlement. 4 Ed. Cambridge University Press P. 183 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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Lesther Antonio Ortega Lemus

Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

Through the negotiation of the dispute settlement provisions, the problem just mentioned became a real one. This potential impasse was solved in Montreux 10 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 interests 11. 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’ disputes 12. 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 297299). This arrangement was the product of many alternate drafting exercises during the Conference and took its actual shape very late in that process 13. 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 noncompulsory conciliation; section 2 comprises compulsory settlement by means of bindingdecision adjudicative bodies, and section 3 refers to compulsory conciliation as the only
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Adede. Op. Cit. P.131-132 rd Churchill, R.R. & A. V. Lowe The Law of the Sea 3 Ed. Manchester University Press P. 455 12 Merrills. Op. Cit. P.207 13 Ibid. P.14

Lesther Antonio Ortega Lemus

Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

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 mechanism 14 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 283 16. 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). Conciliation 17 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 decision 18 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 15

Churchill & Lowe. Op. Cit. P.454 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

Agreement Relating to the Implementation of Part XI of 1994 19 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 Organizations 20. 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 nonbinding 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 parties” 21. 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 unsuccessful 22. 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 mechanism 23, but actually being propelled step by step by the Parties to it. The latter has been characterized as detrimental to the impact of the mechanism 24 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

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 instrument’s dispute settlement mechanism. 21 Vidas, Davor & Willy Østreng (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

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) b) c) d) The International Tribunal for the Law of the Sea, The International Court of Justice, Arbitration under Annex VII of the Convention, and 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 GuineaBissau with regards to the ICJ 25). 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 choices 26. 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).

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

Arbitration under Annex VII arises as the default mechanism 27 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 mechanisms 28. 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 Case 29). 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 Case 30). 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 Court’s 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 Convention’s 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.
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 à vis Arbitration. The reason to this, according to what the President of ITLOS Judge José 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 th Nottebohm Case (Preliminary Objection), Judgment of November 18 , 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

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 Convention 31, 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 competénce 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 SDC 32. 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 Agreement 33). 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 agreements 34 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 Law 35) beyond the provisions of Part XV or even more restricted, those of Article 287 36. Normative novelty 37 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

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 Convention’s 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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legal process” claims, both proprio motu or at the request of a party, and the exhaustion of local remedies (when International Law so requires 38). 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 ICJ 39, the Rules of the Tribunal of the ITLOS 40 (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 answers 41. 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 ICJ’s Statute’s shortcomings, as it states clearly that parties “shall comply promptly” with the prescribed measures 42 (as opposed to the measures “indicated” as per Article 41 paragraph 1 of the Statute of the ICJ 43).

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 Vicuña, 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 Vicuña Op. Cit. P.452

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Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

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 State 44. The negotiation of this procedure 45 proved to be (strangely according to some authors 46) 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 ITLOS 47. The fact that the application can be made either (or just) by the Flag State or on its behalf is a salient feature 48, 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

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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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 cases 49 have been submitted to ITLOS 50, 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 with 51). 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 Case 52 generated against the International Court of Justice on grounds of the assessing of the scientific evidence by International Law experts.

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.icjcij.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 Convention’s 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

Lesther Antonio Ortega Lemus

Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

jurisdiction by the Coastal State 53 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 Convention’s 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 authors 54, 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 excluded 55. 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 Adede 56 and an euphemism, according to Brown 57) following the procedure set forth in Annex V, section 2; however, the commission cannot question or substitute the Coastal State’s 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
For further explanations see Klein Op. Cit. P.140-144 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
54 53

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Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

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 conservation’s 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 contrahendo 58.

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Brown Op. Cit. P.25

Lesther Antonio Ortega Lemus

Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

The natural comment that derives from the scope of the exclusion is that all disputes predating the Convention´s 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 law 59. 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 eroding 60 or inserting serious limitations 61 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
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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Lesther Antonio Ortega Lemus

Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

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 refuse” 62. 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 XI 63, 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 SDC 64 is established by means of Article 186, which directs the reader to Part XV and to Annex VI (Statute of ITLOS). Its jurisdiction’s 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 SDC’s 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 63

Vidas & Østreng Op. Cit. P.93 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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Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

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 ISA’s 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 “shall” 66 give advisory opinions at the request of the ISA’s Assembly or Council, request that has to be treated as urgent. Such procedure has been triggered for the first time by the ISA’s 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,

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 NGO’s statement. See www.itlos.org

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including the World Trade Organization’s case, giving to the international community a case of commonality – or “cross-fertilization” – among international judiciary 68. 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.
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More on commonality in Brown, Chester A common law of international adjudication Oxford University Press 2007

Lesther Antonio Ortega Lemus

Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

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 doesn’t 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 clearly 69 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 time 70.

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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

Lesther Antonio Ortega Lemus

Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

Despite the above indication, there are matters that, although regulated in the ICJ’s 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.

Lesther Antonio Ortega Lemus

Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

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 ICJ’s 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 both 71. 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 demands 72. Access and jurisdiction of the Tribunal is dealt with (as can be seen in the table above) by Articles 20 and 21 of the Statute 73 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-à-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 Tribunal 74, which should be read together with the former 75.

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, Jürgen The Law Applicable to the Substance of Private Litigation before the International Tribunal for the Law of the Sea in Rabels Zeitschrift für Ausländisches 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, Rüdiger 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 performance 76. 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 SecretaryGeneral 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.

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Rosenne, Shabtai Arbitration under Annex VII of the United Nations Convention on the Law of the Sea P.991 in Nyade, Tafsir and Wolfrum, Rüdiger (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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Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

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 disposal 78. 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 ICJ’s. Apparently, the drafting history 79 of this Annex is not as convulse as others 80, and the reasons stem from the long-standing of arbitration itself, the many other international instruments 81 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 Conference 82. 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 all 83, as was the case of the Southern Bluefin Tuna arbitration 84. Third, arbitrators are not required to be lawyers or jurists at all 85, 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)
A reasonable critique to that provision in Merrills Op. Cit. P.194 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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Lesther Antonio Ortega Lemus

Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

has also provided registry services to Annex VII Arbitrations 86 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 Convention’s dispute settlement system, therefore instituting arbitral procedures under Annex VII which do not spawn from the Convention itself 87. 1.3.4. Annex VIII: Special Arbitration As said before, during the Conference 88, dispute settlement provisions were envisaged either as an all-encompassing or a functional solution 89. 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.

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 für ausländisches öffentliches Recht und Völkerrecht 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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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 findings 91. 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 it 92, despite that some matters that can be referred to it are actually subject of Part XV’s Section 3 limitations or exceptions to compulsory dispute settlement, weakening its reach 93. It should also be remembered that the lists of experts also serve as source for experts under Article 289.

See Brown, E.D. Op. Cit. P.39 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
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