Igor V. Karaman-Introduction To Dispute Resolution in The Law of The Sea-Introduction

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Introduction
Dispute Settlement Under the Law of the Sea
Convention: A General Overview
The provision of effective dispute settlement procedures is essen‑
tial for stabilizing and maintaining the compromises necessary for
the attainment of agreement on a convention. Dispute settlement
procedures will be the pivot upon which the delicate equilibrium
must be balanced. Otherwise the compromise will disintegrate
rapidly and permanently.1
Hamilton Shirley Amerasinghe, the first President of the Third
United Nations Conference on the Law of the Sea (1973–
1980)
1. Historical Background
Reportedly, the ratio of the law of the sea disputes to those under general inter-
national law increased from six to seven per cent in the late 1960s to 40–48 per
cent in the 1990s2 and no single category of international disputes since 1945
has generated more litigation than the law of the sea.3 These eloquent figures
demonstrate that one of the main achievements of the Third United Nations
Conference on the Law of the Sea (UNCLOS III) was the elaboration of a
detailed system for the settlement of disputes concerning the application and
interpretation of the 1982 United Nations Convention on the Law of the Sea4
(LOSC/Convention).
1
A/CONF.62/WP.9/Add.1 (1976), paragraph 6, UNCLOS Official Records (UNCLOS Off.
Rec.), Vols. I–XVII, NY: UN, 1973–1982, Vol. III, p. 122 (President).
2
A. Yankov, The International Tribunal for the Law of the Sea: Its Place within the Dispute
Settlement System of the UN Law of the Sea Convention, 37(3) IJIL 1997, pp. 356–371, at
Copyright 2012. Brill | Nijhoff.
p. 359; and The International Tribunal for the Law of the Sea and the Comprehensive Dispute
Settlement System of the Law of the Sea, in: P. Chandrasekhara Rao & R. Khan (eds.), The
International Tribunal for the Law of the Sea: Law and Practice. The Hague: Kluwer, 2001,
pp. 33–37, at p. 39.
3
A. Boyle, Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to
Straddling Fish Stocks, 14(1) IJMCL 1999, pp. 1–25, at p. 2.
4
The United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982,
21(6) ILM 1982, pp. 1261–1354.
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2 Introduction
Although at the outset of the UNCLOS III there was practically no discus-
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sion of the dispute settlement provisions and only some minor aspects were
introduced (seabed, fisheries and the “international maritime court as a prin-
cipal judicial organ of the International Ocean Space Institutions” within the
submitted Draft Ocean Space Treaty as proposed by Malta),5 in 1971 the
United States of America (United States) proposed an overall provision for
dispute settlement and submitted it to the Committee on the Peaceful Uses of
the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction
(SBC). The proposal concerned the disputes relating to seabed mining, in which
the actors could be international organizations and natural or juridical persons.6
In 1974 the Caracas Working Group took the United States proposal into
account, but proceeded independently from it on the basis of a special question-
naire elaborated at one of its early sessions.7 A complete working paper on the
settlement of disputes was introduced for the first time on the last days of the
Caracas session.8 Discussions were also held by unofficial and informal group of
interested delegates, which met in 1974–1976. The UNCLOS III then officially
took up the subject of dispute settlement at the 1976 session, which was dealt
with in the plenary sessions. ‘Settlement of disputes’ then became one of the
25 main items in the agenda of the UNCLOS III.9 In view of the importance
of the dispute settlement system, it was further decided to make it an integral
part of the Convention,10 since many leading negotiators agreed that bind-
ing dispute settlement methods would be critical to the success of the treaty.11
Among the strongest promulgators of the compulsory dispute settlement under
the Convention were Australia, Canada, Japan, New Zealand and the United
States. The latter State, for example, expressed the view that
the purpose of the law of the sea negotiations is to put an end to the direct
relationship that such a system entails between the enjoyment of a right and the
5
Malta: Draft Ocean Space Treaty. UN Doc. A/AC.138/53UN, XXVI, Supp. 21 (A/8021),
pp. 105–193.
6
United States: Draft Articles for a Chapter on the Settlement of Disputes. UN Doc. A/
AC.138/97 (1973).
7
L.B. Sohn, Settlement of Disputes Arising Out of the Law of the Sea Convention, 12 SDLR 1975,
pp. 495–517, at p. 497.

8
UN Doc. A/CONF.62/L.7 (1974).
9
A/Conf.62/29, 21 June 1974, III UNCLOS III Off. Rec., p. 59.
10
M.H. Nordquist et al. (eds.), United Nations Convention on the Law of the Sea 1982: A
Commentary. Vols. I–VI. Dordrecht/Boston/Lancaster: Martinus Nijhoff, 1985–2002 (Virginia
Commentary); Vol. V, 1989, p. 7.
11
J.K. Gamble, The Law of the Sea Conference: Dispute Settlement in Perspective, 9 VJTL
1976, pp. 323–341, at pp. 323–324.
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Dispute Settlement Under the Law of the Sea Convention: A General Overview 3
application of a power. A system of compulsory, impartial, third-party adjudica-

tion is thus an essential element of the overall structure.12

Australia stated that “many provisions of the convention would be acceptable
only if their interpretation and application were subject to expeditious, impar-
tial and binding decisions”.13 Japan attached “a great importance to the estab-
lishment of a satisfactory procedure for compulsory settlement of any disputes”14
and expressed a view that “agreement on a compulsory dispute settlement pro-
cedure must be an essential element in an overall solution of major issues in the
current negotiations”.15 New Zealand expressed concern that “if the Conference
did not provide for such a system, it . . . would have failed to establish a perma-
nent and stable solution to the problems confronting it”.16 Many other States
also supported the compulsory jurisdiction already during the first full debate
on the dispute settlement.17
There was much less agreement as to what the binding dispute resolution body
should be. Some States proposed to empower only the International Court of
Justice (ICJ/Court), whose docket was not really backlogged at the time of the
UNCLOS III, with the additional source of jurisdiction over all of the disputes
under the Convention, and not to create new tribunals, which could allegedly
give rise to conflicting jurisdictions.18 Other States insisted on the establishment
of a new tribunal.19 For instance, the United States first referred to a special
12
Statement of Ambassador Stevenson, 69 DSB 1973, pp. 412–414; Statement of Ambassador Lear-
son of 6 April 1976, paragraphs 17 and 18, V UNCLOS III Off. Rec., p. 31; and J.R. Stevenson
& B.H. Oxman, The Preparations for the Law of the Sea Conference, 68 AJIL 1974, pp. 1–31.
13
Statement of Ambassador Harry of 5 April 1976, paragraph 12, V UNCLOS III Off. Rec., p. 9.
14
Statement of Ambassador Ogiso of 15 July 1974, paragraph 54, I UNCLOS III Off. Rec., p. 182.
15
Statement of Mr Fujisaki of 6 April 1976, paragraph 54, V UNCLOS III Off. Rec., p. 27.
16
Statement of Mr Beeby of 5 April 1976, paragraph 30, ibid., p. 11.
17
Ibid., pp. 8–51.
18
Statements in the Plenary during the Forth Session (1976), 59th Meeting: Switzerland,
paragraph 23, V UNCLOS III Off. Rec., p. 15; Denmark, paragraph 58, ibid., p. 19; 60th
Meeting: Japan, paragraph 58, ibid., p. 27; 61st Meeting: Sweden, paragraph 5, ibid., p. 30;
Turkey, paragraph 11, ibid., p. 31; Nigeria, paragraph 58, ibid., p. 35; 62nd Meeting: Mau-
ritius, paragraph 12, ibid., p. 37; and Uruguay, paragraph 98, ibid., pp. 43 and 44. See also
G. Guillaume, The Future of International Judicial Institutions, 44 ICLQ 1995, pp. 848–862;
M. Lachs, The Revised Procedure of the International Court of Justice, in: F. Kalshoven
et al. (eds.), Essays on the Development of the International Legal Order: In Memory of Haro
F. van Panhuys. Alphen aan den Rijn/Rockville: Sijthoff & Noordhof, 1980, pp. 21–52, at
p. 43; E. Lauterpacht, Aspects of the Administration of International Justice. Hersh Lauterpacht
Memorial Lectures, No. 9. Cambridge: CUP, 1991, pp. 20–22; E. McWhinney, Letter to the
Editor, 82 AJIL 1988, pp. 788–797; and S. Oda, Dispute Settlement Prospects in the Law of
the Sea, 44 ICLQ 1995, pp. 863–872.
19
Statements in the Plenary during the Fourth Session (1976), 58th Meeting: El Salvador, para-
graphs 5 and 11, V UNCLOS III Off. Rec., p. 9; Australia, paragraph 14, ibid., p. 10; 60th
Meeting: Cyprus, paragraph 47, ibid., p. 26; 61st Meeting: United States, paragraph 19, ibid.,
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4 Introduction
tribunal of an International Sea-Bed Resource Authority.20 In August 1973, on

the last day of the last SBC session, it expanded the proposal to a tribunal with
compulsory jurisdiction to deal with all law of the sea disputes.21 Some other
States also supported this proposal. Canada suggested that a tribunal “composed
of a small body of legal (or perhaps technical) experts” be part of the structure
of an international mechanism to give effect to the seabed regime,22 and the
United Kingdom stated that a “tribunal to which parties to a dispute could
have recourse in the absence of a solution by other means” should be created.23
Introduced originally by Malta as the ‘international maritime court’, the name
of the new tribunal evolved through the ‘Law of the Sea Court/Tribunal’ to the
eventual ‘International Tribunal for the Law of the Sea’ (ITLOS/Tribunal), the
latter name underlying its international status.24 One would wonder why States
wished to establish a new tribunal when the ICJ had always been a principal
international adjudicator in law of the sea disputes. Probably the main reason
was the fact that there would be some categories of disputes under the Con-
vention which the ICJ would not have jurisdiction to hear, due to its statutory
restrictions allowing only States to appear before it. Moreover, political reasons
were also of great influence, since many States were not content with the ICJ’s
decisions, both generally and in relation to law of the sea cases.
Some States, on the other hand, completely opposed adjudication, including
both the ICJ and the proposed ITLOS, and were willing to accept arbitra-
tion only.25 Moreover, the need for arbitration in the Convention was also
dictated by the reluctance of the Soviet bloc States to accept the western ‘bour-
geois’ international tribunals. Instead, they favoured arbitration, where they
could have a significant influence on the dispute settlement process by being
pp. 31 and 32; Yugoslavia, paragraph 24, ibid., p. 32; Peru, paragraph 38, ibid., p. 33; 62nd
Meeting: Zaire, paragraph 24, ibid., p. 37; Tunisia, paragraph 30, ibid., p. 38; Ecuador, para-
graph 46, ibid., p. 39; and 64th Meeting: Fiji, paragraph 24, ibid., p. 37.
20
UN Doc. A/AC.138/25 (1970), General Assembly Official Records (GAOR) XXV, Supp. 21
(A/8021), pp. 30–176. Tanzania expressed the view that these disputes may be well decided by
negotiation, mediation or arbitration, or, if they fail, by the ICJ; see UN Doc. A/AC.138/33
(1971), GAOR XXV, Supp. 21 (A/8021), p. 51.
21
UN Doc. A/AC.138/97 (1973), GAOR XXVIII, Supp. 21 (A/9021), Vol. II, pp. 22 and 23.
22
UN Doc. A/AC.138/59 (1971), GAOR XXV, Supp. 21 (A/8021), pp. 205–225.
23
UN Doc. A/AC.138/46 (1971), GAOR XXV, Supp. 21 (A/8021), pp. 83–91.
24
A/CONF.62/L.59 (1980), paragraph 12, XIV UNCLOS III Off. Rec., p. 130 (President). For
the history of the creation of ITLOS, see further: A.R. Carnegie, The Law of the Sea Tribunal,
28 ICLQ 1979, pp. 669–684; G. Eiriksson, Comments on the Origins and Purposes of ITLOS,
in: M. Nordquist & J.N. Moore, Entry into Force of the Law of the Sea Convention: Rhodes Papers.
The Hague/Boston/London: Kluwer, 1995, pp. 57–61; and V Virginia Commentary 1985,
pp. 332–340.
25
Statements in the Plenary during the Fourth Session (1976): France, 59th Meeting, paragraphs
8–10, V UNCLOS III Off. Rec., p. 14; and Madagascar, 61st Meeting, paragraph 44, ibid., p. 34.
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able to select members of an arbitral panel. Thus, arbitration was included “to
ensure that the Soviet bloc came along with the principle of compulsory dispute
settlement”.26
Yet another group of States would prefer special procedures only for certain
categories of disputes. Since such disputes would also include technical mat-
ters, this group suggested that an arbitral tribunal should be selected from the
list of technical experts (rather than lawyers) nominated by the international
organizations concerned.27
Eventually, there was general recognition that it would not be feasible to
envisage in the Convention only one judicial body, since States would be
unwilling to submit their disputes to that sole tribunal.28 As a consequence,
a compromise provision, which catered for the needs of all the participants at
the UNCLOS III, was made. It included the ICJ, ITLOS, general and special
arbitration, all of them now envisaged in Article 287 LOSC.
The most important reason for the inclusion of dispute settlement provisions
in the Convention was the fact that effective binding and legal procedures
were necessary to avoid political and economical pressures. While the developed
States could exert extra-legal, political and economical pressure to achieve their
goals, the developing States were only able to direct disputes into legal channels.
If dispute settlement provisions were to be included in the optional protocol,
this might have jeopardized the ratification and even the signature of the Con-
vention. The dispute settlement Optional Protocol for the 1958 Geneva Law
of the Sea Conventions29 was a failure, because practically no State had chosen
to be bound by it. Without credible avenues for peaceful settlement of disputes
States might have felt obliged or tempted to rely on what has been described as
‘auto-interpretation’ or even use or threaten to use force to assert their rights.30
Finally, the Convention intended not only to modify or update the then exist-
ing law of the sea, but also to create a number of new rules, which could only
26
A.L.C. de Mestral, Compulsory Dispute Settlement in the 3rd U.N. Convention on the Law
of the Sea: A Canadian Perspective, in: T. Buergenthal (ed.), Contemporary Issues in Interna‑
tional Law‑Essays in Honour of Louis B. Sohn. Kiehl: Engel, 1984, pp. 169–88, at p. 185.
27
Statements in the Plenary during the Fourth Session (1976), 59th Meeting: France, paragraph
5, V UNCLOS III Off. Rec., p. 13; Germany, paragraph 70, ibid., p. 20; 60th Meeting: Japan,
paragraph 58, ibid., p. 27; Bulgaria, paragraph 76, ibid., p. 29; 61st Meeting: Poland, para-
graph 30, ibid., p. 32; and 62nd Meeting: Trinidad and Tobago, paragraph 34, ibid., p. 38.
28
T.A. Mensah, The Role of Peaceful Dispute Settlement in Contemporary Ocean Policy and
Law, in: D. Vidas & W. Østreng (eds.), Order for the Oceans at the Turn of the Century. The
Hague: The Fridtjof Nansen Institute, 1999, pp. 81–94, at p. 84.
29
Optional Protocol Concerning the Compulsory Settlement of Disputes of 29 April 1958; 450
UNTS 169.
30
T.A. Mensah, The Role, supra n. 28, p. 82.
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6 Introduction
be acceptable if there was a clear agreement that differences which could arise
would be resolved by resorting to legal and peaceful procedures.

As a result of enormous compromise, the dispute settlement provisions were
integrated into the Convention opened for signature in Montego Bay ( Jamaica)
on 10 December 1982. The Convention entered into force twelve years later, on
16 November 1994, one year after its sixtieth ratification31 made by Guyana. At
present, the Convention is ratified by 161 States (both coastal and land-locked)
and by one international organization (the European Union),32 thereby repre-
senting one of the most broadly accepted international treaties in the world.
2. General Description of the Dispute Settlement System under the

Convention
The dispute settlement provisions under the Convention make up almost a

quarter (22 per cent) of all of its provisions and account for more than 100
articles of the total of 450 (including the annexes). These provisions are scat-
tered throughout the Convention, but the most important rules and principles
of dispute resolution are to be found in Part XV LOSC (Settlement of Dis-
putes). Part XV is divided into three Sections: general provisions (Section 1),
compulsory procedures entailing binding decisions (Section 2) and limitations
and exceptions to applicability of Section 2 (Section 3). Other provisions are
found in Part XI, which deals with seabed mining activities, and in five annexes
to the Convention.
Section 1 includes seven articles, which mainly epitomize the axioms, prin-
ciples, obligations, rights and freedoms of States existing under general interna-
tional law. These include: (a) the principle of free choice of dispute settlement
means (Article 280), and not necessarily those under the Convention; (b) the
obligation to settle disputes by peaceful means provided for by Articles 2(3)
and 33(1) of the UN Charter (Article 279);33 (c) the obligation to proceed
expeditiously to an exchange of views regarding the settlement of a dispute by
negotiation or other peaceful means (Article 283(1)); (d) the right of a party to
invite another party to settle their dispute by a non-binding conciliation (Article
284(1)); (e) the default role of the Part XV procedures (both under Section 1
31
As required by Article 308(1) LOSC.
32
See the list of these parties at http://www.un.org/Depts/los/reference_files/chronological_lists_
of_ratifications.htm. This and other figures as well as the web pages referred to herein were
last checked or accessed on 10 October 2011.
33
Charter of the United Nations of 26 June 1945, 1UNTS 26. These means include negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means.
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and 2), which means that if the parties have agreed to seek settlement of their
dispute by peaceful means of their own choice, the procedures under the Con-
vention apply only where no settlement has been reached by recourse to such
means and the agreement between the parties does not exclude any further pro-
cedure (Article 281(1)); and (f ) the prevailing role of procedures under general,
regional or bilateral agreements over the dispute settlement procedures under
Part XV LOSC, which means that if the parties to a dispute concerning the
interpretation or application of the Convention have agreed, through a general,
regional or bilateral agreement or otherwise, that such a dispute, at the request
of any party to it, be submitted to a procedure that entails a binding decision,
that procedure must be applied in lieu of the procedures provided for in Part
XV, unless the parties agree otherwise (Article 282).
Obviously, Section 1 of Part XV LOSC enables the parties to decide on the
outcome of their disputes themselves. Since the only real obligation under Sec-
tion 1 is to enter into negotiations when a dispute arises, an obligation which in
any event exists under general international law, the role of this section is very
general and, as was suggested, could for the most part have been omitted.34
In contrast, Section 2 is remarkably innovative. It sanctions the submission
of a dispute to compulsory procedures entailing binding decisions, if a settle-
ment has not been achieved through the application of Section 1. The main
principles of Section 2 are as follows: (a) the procedures provided for in this
Section are compulsory, meaning that when no settlement has been reached
by the parties recourse to Section 2 is obligatory; (b) these procedures are sec-
ondary and are applied only when no settlement has been reached through
recourse to Section 1 (Article 286), in particular, when parties have exchanged
views under Article 283 and the conditions of Articles 281–282 have been
met; (c) local remedies must be exhausted where necessary (Article 295); and
(d) decisions of the procedures under Section 2 are binding upon the parties
and are final (Article 296). Besides, Section 2 regulates the questions of jurisdic-
tion (Article 288), including ratione personae issues (Article 291), applicable law
(Article 293), provisional measures (Article 290), prompt release of vessels and
crews (Article 292) and preliminary proceedings (Article 294).
The main achievement of the dispute settlement system under the Conven-
tion is probably that States cannot opt out of it. It applies to all States Parties
to the Convention ipso facto to their participation in the Convention. Certainly,
an absolute and unqualified acceptance by States of an obligation to submit

their disputes to a binding third-party settlement is ‘highly exceptional’,35 and
it would be naïve to expect States to unconditionally agree on compulsory
34
Gamble, The 1982 UN Convention on the Law of the Sea: Binding Dispute Settlement? 9 BUILR
1991, pp. 39–58, at p. 44.
35
E.D. Brown, Dispute Settlement and the Law of the Sea, 21 MP 1997, pp. 17–43, at p. 18.
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8 Introduction
jurisdiction. This is why, under Article 287(1) LOSC, States when signing, rati-
fying or acceding to the Convention are entitled to make declarations choosing

one or more of the tribunals envisaged therein. Article 287 (Choice of Proce-
dure), also known as ‘Montreux/Riphagen formula/compromise’,36 is one of
the central provisions of Section 2. It offers an option between two permanent
judicial tribunals (ITLOS and ICJ) and two arbitrations (an arbitral tribunal
constituted in accordance with Annex VII LOSC having general jurisdiction
and a special arbitral tribunal constituted in accordance with Annex VIII LOSC
for one or more categories of disputes specified therein). If States chose the
same tribunal, it would be the only forum to hear their possible disputes;37 if
they opted for different tribunals or made no declarations at all, the arbitration
would have compulsory default jurisdiction.38
Of 162 current Parties to the Convention only 44 (about a quarter) have
made declarations under Article 287 LOSC.39 Accordingly, the disputes with
and between the remaining Parties will have to be submitted to arbitration,
unless any alternative agreement is reached. The reluctance of States to make
declarations gives arbitration a large jurisdictional potential. It is precisely due
to the absence of declarations or their incompatibility that seven cases have been
submitted to arbitral tribunals since the entry into force of the Convention.40
Of those States which made declarations, 31 have chosen ITLOS (some of
them for specific purposes only) and 24 the ICJ. Arbitration and special arbi-
tration have been chosen by nine States each. Many of the States have chosen
the Tribunal, the Court and/or arbitration with a different level of preference.
For example, Portugal has chosen all four tribunals without giving superiority
to any of them, while Germany has selected the Tribunal, arbitration and the
Court in decreasing order of precedence. Analysis of declarations under Article
36
During the UNCLOS III (1975) the informal working group on the settlement of disputes
was reorganised as the Settlement of Disputes Group with Mr Adede becoming its third co-
chairman. A special weekend meeting of the Group was held in Montreux, where the Dutch
Professor Riphagen suggested a formula, the basic part of which was subsequently adopted; see
Rosenne, UNCLOS III – The Montreux (Riphagen) Compromise, in: A. Bos & H. Siblesz
(eds.), Realism in Law-Making: Essays on International Law in Honour of Willem Riphagen. The
Hague: Martinus Nijhoff, 1986, pp. 169–178; and V Virginia Commentary 1989, p. 8.
37
Article 287(4) LOSC.
38
Ibid., Article 287(3) and (5). When the Convention was under discussion, it was initially
suggested that the parties would apply to the tribunal chosen by the respondent. However,
dissatisfaction was expressed because some States were not prepared to accept the jurisdiction
of the ICJ if the respondent opted for it. Therefore, arbitration was a preferred alternative; see
further Sohn, Settlement of Disputes Relating to the Interpretation and Application of Trea-
ties, 150–II RCADI 1976, pp. 195–294, at p. 206.
39
See these States and their declarations at http://www.itlos.org/fileadmin/itlos/documents/
basic_texts/287_declarations_June_2011_english.pdf.
40
See Annex I.
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287 LOSC demonstrates that at present the most popular forum has been
ITLOS. This suggests that a number of States trust it. Furthermore, the absence
of ITLOS in a declaration does not always mean that a State Party does not
trust it. For example, the United Kingdom in its declaration expressed the hope
that ITLOS would make a significant contribution to the peaceful settlement
of disputes concerning the law of the sea, and that it would remain ready to
consider the submission of disputes to ITLOS, as may be agreed on a case-by-
case basis.41
The Article 287 LOSC declarations under which 24 States have chosen the
ICJ may also be viewed vis-à-vis the declarations, which 17 of them have made
under Article 36(2) of the ICJ’s Statute.42 If the concurrent choice of the Court
under Article 36(2) of its Statute is indeed a ‘bilateral agreement’ under Article
282 LOSC, as is at times submitted,43 the LOSC disputes between those 17
States must be referred then to the ICJ under its Statute, rather than under
Part XV LOSC.
There are several categories of disputes which, due to their nature involving
the issues of sovereignty, certain States will never agree to submit to compul-
sory procedures with binding decisions. Keeping this in mind, it was agreed
at the UNCLOS III to subject the scope of applicability of the compulsory
procedures under Section 2 to limitations and exceptions covered by Section 3.
Article 297(1) LOSC exempts the disputes relating to the exercise by a coastal
State of its rights and jurisdiction in its exclusive economic zone (EEZ) from
the scope of application of Section 2, with the exception of two categories of
disputes in respect of which the compulsory procedures under Article 287 will
still apply. These are disputes over the exercise of a freedom of navigation, over-
flight or laying of submarine cables and pipelines by other States in the EEZ44
and disputes over allegations that a coastal State has acted in contravention of
specified international rules and standards for the protection and preservation
41
See the Declaration of the United Kingdom, supra n. 39.
42
See the list of these States at http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3.
43
See e.g. R.J. McLaughlin, Settling Trade-Related Disputes over the Protection of Marine
Living Resources: UNCLOS or the WTO? 10 GIELR 1997–1998, pp. 29–96, at p. 71;
Treves, The Law of the Sea Tribunal: Its Status and Scope of Jurisdiction after November
16, 1994, 55 ZAÖRV 1995, pp. 421–451, at p. 438; and V Virginia Commentary 1989,
pp. 26–27. But see Rosenne, one of the editors of the Virginia Commentary, according to
whom the mere acceptance of the ICJ under Article 36(2) of its Statute does not constitute
an Article 282 LOSC agreement; Rosenne, The Case-Law of ITLOS (1997–2001): An Over-
view, in: M.H. Nordquist and J.N. Moore (eds.), Current Maritime Environmental Issues and
the International Tribunal for the Law of the Sea. The Hague: Kluwer, 2001, pp. 113–139, at
p. 139, f.n. 17.
44
Article 297(1)(a)–(b) LOSC.
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10 Introduction
of the marine environment.45 All other disputes concerning the interpretation

or application of the Convention with regard to the exercise by a coastal State

of its sovereign rights or jurisdiction are not subject to procedures under Sec-
tion 2 of Part XV LOSC. Article 297(2) generally obliges States to submit
their marine scientific research related disputes to Section 2 procedures, unless
these disputes relate to the rights and discretions of coastal States specified in
Articles 246 and 253 LOSC.46 However, these categories of disputes are sub-
ject to compulsory conciliation.47 Lastly, Article 297(3) LOSC obliges States to
submit fisheries disputes to Section 2 procedures, unless these disputes relate
to the coastal State’s sovereign rights with respect to the living resources in its
EEZ or their exercise, including its discretionary powers to determine the allow-
able catch, its harvesting capacity, the allocation of surpluses to other States
and the terms and conditions established in its conservation and management
laws and regulations.48 Such categories of fisheries disputes are also subject to
compulsory conciliation.49 In essence, Article 297 LOSC exempts States from
submitting some categories of disputes to compulsory procedures without any
specific action (declaration) to be made.
In contrast, Article 298 LOSC, which further truncates the scope of applica-
bility of Section 2, exempts States from the submission of certain types of dis-
putes (concerning maritime boundaries delimitation,50 military activities51 and
disputes in respect of which the UN Security Council exercises the functions
assigned to it by the UN Charter)52 to compulsory procedures, but only if an
express declaration is adopted excluding one or all of these categories. Once a
declaration under Article 298 has been made, States are not obliged to subject
the disputes they have indicated in their declarations to the compulsory pro-
cedures under Section 2. At present, 33 States have made such declarations.53
Some of them have excluded only one or two categories of disputes and some
all three categories of disputes, as provided for by Article 298 LOSC. Further-
more, some States have opted out of those disputes only in respect of certain
tribunals under Article 287. All other disputes concerning the interpretation or
application of the Convention, which are not covered by the Articles 297–298
45
Ibid., Article 297(1)(c).
46
Ibid., Article 297(2)(a).
47
Ibid., Article 297(2)(b).
48
49
50
51
52
Ibid., Article 298(1)(c).
53
See these States and their declarations at http://www.itlos.org/fileadmin/itlos/documents/
basic_texts/298_declarations_June_2011_english.pdf.
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LOSC exceptions, are subject to compulsory jurisdiction under Article 288

LOSC exercisable by the Article 287 LOSC tribunals.

Although Articles 297 and 298 LOSC may appear to significantly limit the
application of Section 2 of Part XV LOSC, such limitations constitute only five
per cent of all possible disputes under the Convention.54 On the other hand,
these five per cent are reportedly among the most frequent disputes which have
emerged after the entry of the Convention into force (e.g. maritime boundaries
delimitation).55 Compulsory procedures entailing binding decisions under Sec-
tion 2 cover 90 per cent of the LOSC provisions and the remaining five per
cent are covered by compulsory conciliation.56
The scope of application of compulsory jurisdiction under Part XV LOSC
is also limited in respect of those States Parties to the Convention which are
also EU members, as pursuant to Article 292 of the Treaty Establishing the
European Community (EC),57 they have an obligation to submit disputes aris-
ing between them only to the Court of Justice of the European Union (ECJ).
As will be demonstrated infra, the overwhelming majority of the LOSC-related
disputes between such States must be submitted to the ECJ, and not to the Part
XV LOSC procedures, unless the dispute concerns the exclusive competence of
the EU Members exercised under the Convention.
As can be seen from the above, the scope of application of the compulsory
procedures under Section 2 of Part XV LOSC is curtailed both ratione personae
and ratione materiae. Apart from these limitations, it should be mentioned that
even if a dispute under the Convention arises, States are not obliged to settle
it by recourse to Section 2, since they can agree on any dispute settlement
means of their preference. As a result, many law of the sea disputes may be
settled by negotiations, and may never reach the compulsory procedures under
the Convention.
As far as different dispute settlement means are concerned, by referring to
Articles 2(3) and 33(1) of the UN Charter, the Convention operates the same
mechanisms as those existing under general international law.58 In particular,
the Convention recognises the central role of negotiations, with the appropriate
emphasis being made on the role of informal dispute settlement means, which
are envisaged in Section 1 of Part XV LOSC. Negotiations are mentioned in
54
L.B. Sohn, Dispute Settlement, in: L. Juda (ed.), The United States Without the Law of the Sea
Treaty: Opportunities and Costs. Wakefield: University of Rhode Island, 1983, p. 126 et seq.,
at p. 129.
55
J. Bréaux, The Diminishing Prospects for an Acceptable Law of the Sea Treaty, 19(2) VIJIL 1979,
pp. 257–299, at p. 87.
56
Sohn, Dispute Settlement, supra n. 54.
57
Treaty Establishing the European Community of 25 March 1957, consolidated version; C 325
OJEU 2002.
58
Article 279 LOSC.
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12 Introduction
the Convention 13 times59 and the most pertinent provisions are as follows:
(a) when a dispute arises, States must proceed expeditiously to an exchange

of views regarding its settlement by negotiation or other peaceful means;60
(b) States must delimit their EEZs61 and continental shelf (shelf )62 by a negoti-
ated agreement; (c) if a State has not accepted compulsory procedures under
Article 287 LOSC with respect to maritime delimitation disputes or those
involving historic bays or titles, it is still obliged to enter into negotiations with
the other party;63 and (d) with respect to certain categories of disputes, if no
agreement within a reasonable period of time is reached, at the request of any
party to the dispute, a State must accept compulsory submission of the dispute
to conciliation commission, which will present its report, on the basis of which
the parties must negotiate an agreement. If the negotiations do not result in
an agreement, the parties must, by mutual consent, submit the question to the
Section 2 of Part XV LOSC procedures, unless they otherwise agree.64
Consultations are mentioned in the Convention 24 times,65 and the most
relevant provisions are as follows: (a) with respect to fishing of anadromous
stocks beyond the outer limits of the EEZ, the States concerned must maintain
consultations with a view to achieving agreement on terms and conditions of
such fishing;66 (b) States conducting activities on the seabed and ocean floor
and in the subsoil thereof beyond the limits of national jurisdiction (Area),
with respect to resource deposits which lie across the limits of national jurisdic-
tion, must maintain consultations, including a system of prior notification, with
the State concerned, with a view to avoiding infringement of such rights and
interests;67 (c) if a dispute arises, the parties must, inter alia, proceed expedi-
tiously to an exchange of views where a procedure for the settlement of such
59
Ibid., Articles 74(1), 83(1), 118, 187(d), 283(1), 298(1)(a)(i), 298(1)(a)(ii); Article 19(1) of
Annex II, Article 6 of Annex IV; and paragraph 5(c) of Resolution II of the Final Act of the
UNCLOS III (The Law of the Sea. Official Texts of the United Nations Convention on the
Law of the Sea and of the Agreement relating to the Implementation of Part XI of the United
Nations Convention on the Law of the Sea with Index and excerpts from the Final Act of the
Third United Nations Conference on the Law of the Sea. NY: UN, 2001, pp. 197–204, at
p. 200).
60
61
Ibid., Article 74(1).
62
63
Ibid., Article 298(1)(a)(i).
64
Ibid., Article 298(1)(a)(ii).
65
Ibid., Articles 41(5), 66(2), 66(3)(a), 142(2), 163(13), 165(2)(c), 169(1), 211(6)(a), 283(2),
289; Articles 2(2), 5(5), 13(8), 13(9)(a) of Annex II, Articles 3(e), 6(1), 17(4), 36(2) of
Annex V, Article 3(e) of Annex VII, Article 3(e) of Annex VIII, paragraph 1(b) of Resolution
III of the Final Act of the UNCLOS III, supra n. 59, p. 204.
66
Article 66(3)(a) LOSC.
67
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a dispute has been terminated without a settlement or where a settlement has

been reached and the circumstances require consultation regarding the manner
of implementing the settlement;68 and (d) where a dispute exists over the sover-
eignty of a territory to which Resolution III of the Final Act of the UNCLOS
III applies, in respect of which the UN has recommended specific means of set-
tlement, consultations must be held between the parties to that dispute regard-
ing the exercise of the rights referred to in Article 1(a) of the aforementioned
Resolution.69
Exchange of views also plays an important role in the dispute settlement
system under the Convention. Once a dispute arises, the parties are required
to proceed expeditiously to an exchange of views regarding its settlement by
negotiation or other peaceful means.70 States cannot resort to compulsory pro-
cedures without having exchanged views. The parties must also proceed expedi-
tiously to an exchange of views where a procedure for the settlement of such
a dispute has been terminated without a settlement or where a settlement has
been reached and the circumstances require consultation regarding the manner
of implementing the settlement.71
Fact finding and inquiry are mentioned in the Convention on one72 and
four occasions,73 respectively. The most important provisions are as follows:
(a) the flag State is required to cause an inquiry to be held by or before a
suitably qualified person or persons into every marine casualty or incident of
navigation on the high seas involving a vessel flying its flag and causing loss of
life or serious injury to nationals of another State or serious damage to ships
or installations of another State or to the marine environment; (b) the flag
State and the other State must cooperate in the conduct of any inquiry held
by that other State into any such marine casualty or incident of navigation;74
and (c) parties to a dispute relating to fisheries, protection and preservation
of the marine environment, marine scientific research or navigation, including
pollution from vessels and by dumping, are permitted to agree at any time to
request a special arbitral tribunal to carry out an inquiry and establish the facts
giving rise to the dispute.75
68
69
Article 1(b) of Resolution III of the Final Act of the UNCLOS III, supra n. 65.
70
71
72
Article 5 of Annex VIII LOSC.
73
Ibid., Articles 94(7) and 111(7); and Article 5(1) of Annex VIII LOSC.
74
Article 94(7) LOSC.
75
Article 5(1) of Annex VIII LOSC.
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14 Introduction
Mediation and good offices are not mentioned in the Convention. How-
ever, reference is made to Article 33(1) of the UN Charter, which envisages

mediation (but not good offices).76
Conciliation is mentioned in up to fifty provisions of the Convention. In
particular, both non-binding (Article 284 and Section 1 of Annex V LOSC)
and compulsory conciliations (Articles 297, 298 and Section 2 of Annex V
LOSC) are envisaged. Non-binding conciliation does not differ from that exist-
ing under general international law: any State Party to the Convention may
invite another party to conciliation and the other party may either accept or
decline it. If the other party accepts it, the conciliation commission may report
within twelve months of being set up.77
As far as compulsory conciliation is concerned, it is one of the major novel
aspects of the dispute settlement system under the Convention. Any party to a
dispute, which in accordance with Section 3 of Part XV LOSC may be submit-
ted to conciliation under Section 3, may institute proceedings by written noti-
fication addressed to the other party or parties to the dispute.78 For example, if
the maritime delimitation dispute between the parties to the Convention arose
after its entry into force and the parties have failed to negotiate an agreement,
while they have opted out of maritime delimitation under Article 298 LOSC,
either party may unilaterally submit the dispute to compulsory conciliation
under Section 2 of Annex V LOSC.79 In the event of disagreement between
the parties as to the jurisdiction of the conciliation commission, the latter will
decide this question.80 After the conciliation commission presents its report,
the parties must negotiate an agreement based on it. If they fail to do so, they
must, by mutual consent, submit the question to one of the procedures under
Section 2 of Part XV LOSC, unless they otherwise agree.81 Thus, while resort to
conciliation under Section 2 of Part XV LOSC is mandatory, compliance with
its report is not. In essence, if the parties fail to comply with the conciliation
report, their dispute reverts to the beginning.
Under Article 2 of Annex V LOSC, each State Party may nominate up
to four conciliators, whose roster is maintained by the UN Secretary-General.
When the conciliation commission is set up by the parties, they can (but are
not obliged to) choose the conciliators from this roster. At present, 19 States
76
Article 279 LOSC.
77
Article 7(1) of Annex V LOSC.
78
79
Article 298(1)(a)(i) LOSC.
80
Article 13 of Annex V LOSC.
81
Article 298(1)(a)(ii) LOSC.
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Parties have nominated 48 conciliators,82 but no conciliations under the Con-

vention have taken place as yet.

As for the formal dispute settlement means, the Convention provides for
adjudication and arbitration. Adjudication includes the ICJ and ITLOS83 and
arbitration includes arbitral tribunal and special arbitral tribunal.84 The peculiar-
ity of the formal means of dispute settlement under the Convention is that, in
certain cases, their jurisdiction is compulsory (for the respondents) irrespective
of the contents of the declarations made under Article 287 LOSC. In particular,
ITLOS exercises compulsory residual jurisdiction in respect of the prescription
of provisional measures and prompt release of vessels and crews.85 Besides, its
Seabed Disputes Chamber exercises compulsory jurisdiction over all sea-bed
mining disputes.86 Lastly, resort to arbitration is compulsory in respect of all
disputes between the States Parties, which have not made declarations under
Article 287 LOSC or which have made declarations which are at variance with
each other, unless they agree otherwise.
Pursuant to Article 3(b) of Annex VII LOSC, in the event of a dispute sub-
mitted to arbitration each party may appoint one arbitrator, preferably (but not
necessarily) from the list of arbitrators maintained by the UN Secretary-General
according to Article 2 of Annex VII LOSC. Each Party to the Convention may
appoint up to four arbitrators to this list. At present, 29 States Parties have
nominated 78 arbitrators.87 Of seven Annex VII arbitrations instituted after the
entry of the Convention into force, only several arbitrators have been taken up
from this roster. Pursuant to Article 2(3) of Annex VIII LOSC, each States Party
may likewise nominate experts in the fields of fisheries (maintained by the UN
Food and Agriculture Organisation (FAO)), protection and preservation of the
maritime environment (maintained by the United Nations Environment Pro-
gramme (UNEP)), marine scientific research (maintained by the International
Oceanographic Commission (IOC)), and in the field of navigation, including
pollution from vessels and by dumping (maintained by the International Mari-
time Organization (IMO)), who can be chosen for the constitution of special
arbitral tribunal. Around 180 experts in the above-referred fields have already
been nominated,88 but no cases have been submitted to special arbitration.
82
See the list of conciliators at http://www.un.org/Depts/los/settlement_of_disputes/conciliators
_arbitrators.htm.
83
Article 287(1) and Annex VI LOSC.
84
Article 287(1) LOSC and Annexes VII and VIII LOSC.
85
Articles 290(5) and 292(1) LOSC, respectively.
86
Article 187 LOSC, subject to Articles 188 and 189 LOSC limitations.
87
See the list of arbitrators at http://www.un.org/Depts/los/settlement_of_disputes/conciliators
_arbitrators.htm.
88
See the lists of experts at http://www.un.org/Depts/los/settlement_of_disputes/experts_special
_arb.htm.
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16 Introduction
3. Review of Literature, Methodology and Structure

Of all areas of the law of the sea, dispute resolution has attracted probably the
keenest interest on the part of academia. A number of contributions focusing on
certain theoretical aspects of the dispute resolution had already appeared prior
to the adoption of the Convention.89 Others emerged in the period between its
adoption and entry into force.90 Some of these publications thoroughly exam-
ine travaux préparatoires concerning the dispute settlement provisions under
the Convention or represent an invaluable reference material.91 In view of this
literature, this monograph does not intend to reiterate the history and theory,
while certain historical and theoretical aspects are inevitably looked at for intro-
ductive purposes only. Lastly, a number of academic writings have seen the
light since the entry into force of the Convention.92 The majority of them focus
either on the analysis of certain aspects concerning the functioning of ITLOS93
89
See e.g. Adede, Law of the Sea – The Integration of the System of Settlement of Disputes under the
Draft Convention as a Whole, 72(1) AJIL 1978, pp. 84–95; Prolegomena to the Dispute Settle-
ment Part of the Law of the Sea Convention, 10 NYUJILP 1977, pp. 253–392; J.K. Gamble, supra
n. 11; Rosenne, The Settlement of Disputes in the New Law of the Sea, 12 RIRI 1978, pp. 401–
433; Sohn, Settlement of Disputes Arising Out of the Law of the Sea Convention, supra n. 7; and
Settlement of Disputes Relating to the Interpretation and Application of Treaties, supra n. 38.
90
See e.g. S. Gurdip, United Nations Convention on the Law of the Sea: Dispute Settlement
Mechanism. New Delhi: Academic Publications, 1985.
91
See e.g. A.O. Adede, The System for Settlement of Disputes under the UN Convention on
the Law of the Sea: A Drafting History and a Commentary. Dordrecht/Boston/Lancaster:
Martinus Nijhoff, 1987; E.L Miles, Global Ocean Politics. The Decision Process of the Third
United Nations Conference on the Law of the Sea, 1973–1982. The Hague: Martinus Nijhoff,
1998; R. Platzöder, Third United Nations Conference on the Law of the Sea: Documents,
Vols. I–XIX. NY: Oceana Publications, 1982–1988; and V Virginia Commentary 1989, pp.
3–142 and 309–449.
92
See e.g. A.E. Boyle, Settlement of Disputes Relating to the Law of the Sea and the Environment,
in: K. Koufa (ed.) International Justice. XXVI Thesaurus Acroasium. Thessaloniki: Sakkoulas, 1997,
p. 295; E.D. Brown, Dispute Settlement and the Law of the Sea: the UN Convention Regime,
21(1) MP 1997, pp. 17–43; C.M. Chinkin, Dispute Resolution and the Law of the Sea, in:
J. Crawford & D. Rothwell (eds.), The Law of the Sea in the Asian Pacific Region. Dordrecht:
Martinus Nijhoff, 1995, pp. 237–262; and Sohn, The Importance of the Peaceful Settlement of
Disputes Provisions of the United Nations Convention on the Law of the Sea, in: Nordquist &
Moore (eds.), Rhodes Papers, supra n. 24, pp. 265–277.

93
See e.g. G. Eiriksson, The International Tribunal for the Law of the Sea. The Hague/London/
Boston: Martinus Nijhoff, 2000; I. Karaman, The International Tribunal for the Law of the
Sea: Regulation of Activities and Jurisprudence. Odessa: Phoenix, 2007 (in Russian); Nordquist
& Moore (eds.), Current Marine Environmental Issues, supra n. 43; Chandrasekhara Rao
& Khan, The International Tribunal for the Law of the Sea, supra n. 2; and F. Rocha, The
International Tribunal for the Law of the Sea: Jurisdictional and Procedural Issues Relating to
Compliance with and Enforcement of Decisions. Hamburg: University Publisher, 2001.
OF TANZANIA
or on some particular categories of disputes.94 In the meantime, after 16 Novem-

ber 1994 there has been no single consolidated research, which would examine
the functioning of the whole dispute settlement system under the Convention
in a holistic way. The only related work produced since then95 examines the
LOSC dispute settlement system mainly through the prism of the exceptions
and limitations under Section 3 of Part XV LOSC. Hence the relevance and
timeliness of this monograph.
It is submitted that the most rewarding method of establishing how the
dispute settlement system under an international treaty operates is the examina-
tion of the disputes, which have arisen under that treaty. As far as the Conven-
tion is concerned, after its entry into force a number of disputes or situations
potentially leading to disputes have emerged, have been pending or have been
resolved.96 Quite logically, the majority of them have been resolved or have
been in the process of the resolution through bilateral negotiations between the
States Parties. Mediation and good offices, albeit not mentioned in the Conven-
tion, have also been involved in the resolution of the law of the sea disputes on
several occasions. The inquiry, fact-finding and conciliation cases have not been
reported. Arbitration under the Convention has been involved in the resolu-
tion of seven disputes. No law of the sea disputes have been submitted to the
ICJ under Part XV LOSC (the law of the sea disputes submitted to it other
than under Part XV LOSC are not the focus of this monograph). Similarly,
no disputes have been submitted to special arbitration under the Convention.
ITLOS has been involved in the resolution of 18 disputes and in giving one
advisory opinion.
As the majority of disputes under the Convention have been settled or are in
the process of being settled directly by States, it is difficult to establish how and
to what extent Part XV LOSC has been involved. In view of this fact, the most
feasible way to see how the LOSC dispute settlement system has been func-
tioning is, admittedly, through the examination of the resolution of disputes
by compulsory procedures entailing binding decisions. Thus, this monograph
mainly covers the analysis of the resolution of LOSC-related disputes by those
procedures. Where appropriate, however, the resolution of disputes by informal
means is also looked at.
94
See e.g. K. Escher, Release of Vessels and Crews before the International Tribunal for the Law
of the Sea, 3 LPICT 2004, pp. 205–374; and Rosenne, Provisional Measures in International
Law: The International Court of Justice and the International Tribunal for the Law of the Sea.
Oxford: OUP, 2005.
95
N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea. Cambridge: CUP,
2005.
96
See Annexes I and II.
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18 Introduction
The disputes which have been submitted to compulsory procedures under the
Convention can be divided into three categories. The first two categories cover
those disputes, which have been resolved by specific mechanisms established by
the Convention. Those mechanisms were designed for the speedy resolution of
exigent disputes without the necessity (and possibility) to examine their merits.
Thus, the first two chapters deal with the procedures established for the settle-
ment of disputes, which require immediacy of action: Chapter One (Prompt
Release of Vessels and/or Their Crews) and Chapter Two (Provisional Measures).
Both chapters examine common aspects of these procedures (nature, purpose,
historical background, jurisdiction, admissibility of claims and procedure) and
analyse the peculiarities of each procedure. The prompt release procedure is a
novel in the law of the sea, while provisional measures are well known in inter-
national law and jurisprudence. In this context, Chapter Two also compares
provisional measures under the Convention with those under other treaties.
The research made in these chapters is mainly based on nine prompt release
applications and six provisional measure requests made under the Convention.
The third category of disputes which have been dealt with by compulsory
procedures under the Convention covers the disputes submitted for adjudica-
tion on the merits. Chapter Three (The Convention in Practice: Dispute Settle-
ment and Maritime Boundary Delimitation) examines the resolution of the
maritime boundary delimitation disputes. This particular category of disputes
was chosen because they have admittedly been the most important and frequent
disputes under the Convention. Given the scope of the monograph, Chapter
Three focuses only on the examination of those maritime delimitation disputes
which have been submitted for settlement under Part XV LOSC. Other dis-
putes (e.g. those submitted to the ICJ under its Statute or special agreements
rather than under Part XV LOSC) are referred to for comparative purposes
only. In the period under review, four maritime delimitation disputes have
been referred to the LOSC arbitral tribunals due to their automatic compulsory
jurisdiction and one case to ITLOS on the basis of an agreement between the
parties. In one of these cases a friendly settlement was reached by the parties
and the LOSC proceedings were discontinued, two cases were fully adjudicated
on the merits, and two others are pending. Apart from these cases, the role of
various informal and formal means of dispute resolution in the context of Part
XV LOSC as well as certain topical issues appertaining to maritime delimita-
tion and maritime delimitation process as applied by the LOSC tribunals are
discussed and analysed.
Chapter Four (The Convention and Its Dispute Settlement in the Context of
General International Law) covers the issues of interrelation of the law of the
sea with general international law. Certain concerns were expressed due to the
multiplication of international adjudication, as evidenced by Article 287 LOSC
and its alleged side effects. Therefore, the purpose of this chapter is to establish
OF TANZANIA
whether those concerns were justified and whether the related fears about the
fragmentation of international law have materialized in the law of the sea dis-
pute settlement. The dispute settlement mechanism under the Convention is
compared with other regimes in order to reveal whether they conflict with
each other and, if so, how to prevent or unravel possible jurisdictional intrica-
cies. The jurisprudence of the LOSC tribunals, and above all of the permanent
ITLOS, and their approaches to treaty interpretation and certain general inter-
national law areas, are examined in order to establish whether they have acted
in harmony with general international law and jurisprudence and whether the
relative uniformity of international law has been affected by their functioning.
Lastly, Annex I represents a compendium of the LOSC-related disputes which
have reportedly emerged or have been pending after the entry of the Conven-
tion into force. It also highlights the various means involved in their resolu-
tion – successfully or otherwise. Annex II comprises the maritime delimitation
agreements (i.e. the potential maritime delimitation disputes which have been
successfully resolved) negotiated directly by States as well as the provisional
arrangements as envisaged in Articles 74(3) and 83(3) LOSC. The complete
exhaustiveness of these annexes should be disclaimed, as a certain number of
disputes and agreements may not even be reported.
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1. Historical Background

pp. 495–517, at p. 497.

application of a power. A system of compulsory, impartial, third-party adjudica-

tion is thus an essential element of the overall structure.12

tribunal of an International Sea-Bed Resource Authority.20 In August 1973, on

would be resolved by resorting to legal and peaceful procedures.

2. General Description of the Dispute Settlement System under the

The dispute settlement provisions under the Convention make up almost a

an absolute and unqualified acceptance by States of an obligation to submit

fying or acceding to the Convention are entitled to make declarations choosing

of the marine environment.45 All other disputes concerning the interpretation

or application of the Convention with regard to the exercise by a coastal State

LOSC exceptions, are subject to compulsory jurisdiction under Article 288

LOSC exercisable by the Article 287 LOSC tribunals.

(a) when a dispute arises, States must proceed expeditiously to an exchange

a dispute has been terminated without a settlement or where a settlement has

ever, reference is made to Article 33(1) of the UN Charter, which envisages

Parties have nominated 48 conciliators,82 but no conciliations under the Con-

vention have taken place as yet.

3. Review of Literature, Methodology and Structure

Moore (eds.), Rhodes Papers, supra n. 24, pp. 265–277.

or on some particular categories of disputes.94 In the meantime, after 16 Novem-

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