A SYNOPSIS OF

EFFECTIVENESS OF THE UNCLOS DISPUTE

SETTLEMENT REGIME VIS- À-VIS ARTICLE 2(3) OF
THE UN CHARTER

A DISSERTATION
to be submitted to the Faculty of Legal Studies, South Asian
University, in partial fulfilment of the requirement for the award
of the degree of LLM

by
GANESH OJHA

Faculty of Legal Studies

South Asian University
New Delhi-110021

JANUARY, 2023
INTRODUCTION 500-1000

UNCLOS i.e. the United Nations Convention on the Law of the Sea of
1982 has emerged as the comprehensive constitutional document
governing the ocean establishing rights and duties of the states over the
sea. It has brought dispute settlement regime where the jurisdiction of
certain international institutions with respect to disputes relating to this
convention is established.

The disputes under UNCLOS being international disputes is guided with

principles and purpose of the UN Charter which obliges member states
to endeavour to resolve their disputes by peaceful means.

This research work aims to reflect on the effectiveness of the dispute

settlement mechanism under UNCLOS 1982 with broad analysis of the
obligation of the member states under UN Charter to tend toward
peaceful settlement of disputes and avoidance of situations which affects
the maintenance of international peace and security.

It also covers analysis of the decisions of the international bodies

regarding disputes which are submitted under UNCLOS mandate. The
international dispute settlement bodies under UNCLOS have contributed
to bring resolution to emerging disputes by offering extensive
interpretation of the provision of the UNCLOS which are not expressly
dealt during the period of its adoption. The significance of UNCLOS
tribunals’ decisions in the development of three main areas of the law of
the sea, respectively the law on fisheries, the law on the outer continental
shelf and the law on marine environmental protection is well established.

The obligation of the parties to settlement disputes by peaceful means is

emphasized under both UN Charter, UNCLOS and other international
instruments.
As States reached an agreement to establish a compulsory dispute
settlement system as an integral part of the Convention in contrast to the
model of the 1958 Conventions where optional protocol provided for
dispute settlement. The rationale for the establishment of a compulsory
dispute settlement system is captured by the following statement made
by the President of the Conference where it was stated that the dispute
settlement procedures would be the pivot upon which the delicate
equilibrium of the compromise must be balanced. Otherwise, the
compromise would disintegrate rapidly and permanently. Therefore,
effective dispute settlement would also be the guarantee that the
substance and intention within the legislative and language of the
convention will be interpreted both consistently and equitably.

The Preamble of the Convention clearly states that the goal of UNCLOS
is to establish ‘a legal order for the seas’ in order to ‘promote the
peaceful uses of the seas and oceans, the equitable and efficient
utilization of their resources’.

Article 283 provides that: When a dispute arises between States Parties
concerning the interpretation or application of this Convention, the
parties to the dispute shall proceed expeditiously to an exchange of
views regarding its settlement by negotiation or other peaceful means

Article 283 only imposed on State parties the obligation to negotiate the
method to resolve the dispute, not the obligation to negotiate the
substance of the dispute. Chagos MPA award
DESCRIPTION OF THE RESEARCH TOPIC AND RELEVANT
ARGUMENTS 1500-2000

Article 1
The Purposes of the United Nations are:
1. To maintain international peace and security, and to that end: to take
effective collective measures for the prevention and removal of threats to
the peace, and for the suppression of acts of aggression or other breaches
of the peace, and to bring about by peaceful means, and in conformity
with the principles of justice and (p. cxxxiv) international law, adjustment
or settlement of international disputes or situations which might lead to a
breach of the peace;

Under Art. 287 of UNCLOS, State parties have the right to choose by means of
written
declaration one or more of the following means for the settlement of disputes
concerning
the interpretation or application of the Convention: (a) the ITLOS; (b) the ICJ;
(c) an arbitral
tribunal constituted in accordance with Annex VII of UNCLOS; (d) a special
arbitral tribunal
constituted in accordance with Annex VIII for one or more of the categories of
disputes
specified therein.

Article 2
The Organization and its Members, in pursuit of the Purposes stated in
Article 1, shall act in accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of
all its Members.
2. All Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfill in good faith the obligations
assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means
in such a manner that international peace and security, and. justice, are
not endangered.

Chapter VI Pacific Settlement of Disputes

Article 33
1. The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, shall, first
of a, seek a solution by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the
parties to settle their dispute by such means.

Article 301 Peaceful uses of the seas In exercising their rights and
performing their duties under this Convention, States Parties shall refrain from
any threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with the
principles of international law embodied in the Charter of the United Nations.

Article 279 Obligation to settle disputes by peaceful means States Parties

shall settle any dispute between them concerning the interpretation or
application of this Convention by peaceful means in accordance with Article 2,
paragraph 3, of the Charter of the United Nations and, to this end, shall seek a
solution by the means indicated in Article 33, paragraph 1, of the Charter.
Article 280 Settlement of disputes by any peaceful means chosen by the parties
Nothing in this Part impairs the right of any States Parties to agree at any time
to settle a dispute between them concerning the interpretation or application of
this Convention by any peaceful means of their own choice.

to provide an exposition of the topic

describe it as clearly as possible

describe the broad contours of the proposed topic while

emphasizing on specificity

discuss the arguments around the proposed topic briefly

By the end of this section the reader should be able to
understand the specific issues the researcher intends to
research upon.
How is success or effectiveness to be measured?

 The high volume of cases certainly indicates that states

are using and want to use the WTO system to resolve
disputes.
 Scholarly praise of the quality of the analysis by panels
and the Appellate Body and in particular the
approach of the Appellate Body to the interpretation
of the covered agreements suggests that the system has
made an important intellectual contribution to the
development of international trade law.
 The fact that reports of panels and the Appellate Body
are adopted by the Dispute Settlement Body (DSB)
with relatively little critical comment (except in a few
notable cases) suggests that the process is fulfilling its
systemic role.
 the fact that the rate of compliance is generally seen to
be high is also treated as a mark of its success.

In this paper I propose to look at how the effectiveness of dispute settlement might be
measured in the light of the objectives of WTO dispute settlement, and to look at the way
panels deal with factual, technical and scientific questions as a way of measuring the
effectiveness of WTO dispute settlement.
The Objectives of WTO Dispute Settlement The starting point, I think, is to ask, what was
the WTO dispute settlement process set up to do and what is it capable of doing? If we
have a better sense of the goals of the dispute settlement process, perhaps we are in a
better position to ask questions about its effectiveness. After all, 3 Keisuke lida, Is WTO
Dispute Settlement Effective?, 10 GLOBAL GOVERNANCE 207, 207 (2004). 4 Marc L. Busch &
Eric Reinhardt, Testing International Trade Law: Empirical Studies of GATT/WTO Dispute
Settlement, in THE POLmCAL ECONOMY OF INTERNATIONAL TRADE LAW: ESSAYS IN
HONOR OF ROBERT E. HUDEC 457 (Daniel M. Kennedy et al. eds., 2002). [VOL. 3:1
effectiveness has to be measured against something. What, then, was the WTO dispute
settlement system set up to do?

So, what the WTO dispute settlement process was designed to do, and in fact has done, is
to channel the behaviour of states into an orderly way of resolving their differences on
trade matters and ensuring that provisions of the covered agreements are being properly
applied

Channelling behaviour is a valuable function of any legal system whether it results from
rules that provide guidance on how to behave or processes that make certain kinds of
conduct possible. Dispute settlement mechanisms play an important role in our domestic
legal systems by providing an alternative to unilateral and arbitrary behaviour by those who
consider that their rights have been infringed. In this respect, WTO dispute settlement can
be seen as effective. At least some WTO Members are using the system; they are not
ignoring their WTO obligations and looking for other ways to settle disputes that can be
resolved under WTO law.

It provides an orderly mechanism for deciding whether a Member has complied with its
obligations under the covered agreements and an obligation, if a Member is found to be in
breach, to "bring the measure into conformity" with the relevant agreement,18 in effect to
remove the offending measure.

The Vicissitudes of Dispute Settlement under the Law of the Sea Convention Natalie Klein

The South China Sea Arbitration raises important questions about the potential operation
of the dispute settlement system enshrined in Part xv of the United Nations Convention on
the Law of the Sea (LOSc). This article explores the scope and different limitations that we
are seeing in the interpretation of the LOSC dispute settlement regime with a particular
focus on the South China Sea Arbitration. This examination questions the contours of the
LOSC Part xv dispute settlement regime and its utility in resolving disputes relating to the
South China Sea.
 A. Remedies and Sanctions

If we think of the WTO system in terms of providing remedies and imposing sanctions,
as I have outlined here, I think it is possible to make an assessment of the effectiveness
of WTO dispute settlement. First, WTO dispute settlement has limited effectiveness in
respect of remedies because it does not provide any remedy for the complaining
Member other than removal of the offending measure. Second, WTO dispute
settlement is also limited in effectiveness because the forms of sanctioning that are
provided, compensation and retaliation, are largely ineffective.

The problem of the WTO in the field of enforcement is a problem that is pervasive in
international law. How are sanctions to be applied to sovereign states? In a system that is
essentially consensual, coercive measures are difficult to apply. As a result, in many
branches of international law discussion is about providing incentives for states to behave
in particular ways rather than talking about sanctioning or punishing behaviour.

Access to Dispute Settlement The concerns of developing countries about the absence of
remedies, apart from removal of the inconsistent measure, and about the ineffectiveness of
the sanctioning system directs attention to another area where I suggest we can also make
judgments about effectiveness. That is the question of access to WTO dispute settlement.
Although it is common for proponents of WTO dispute settlement to point out that
developing countries are actively involved in the process, that bald statement needs some
qualification. Since the dispute settlement system is compulsory, developing countries have
little choice when they are brought to dispute settlement as a respondent. Their confidence
in the effectiveness of the dispute settlement system may therefore be better measured by
the cases in which they come as complainant, and by cases in which they have proceeded
beyond the consultations phase to the appointment of a panel.

In the course of the preliminary discussions, the Group proceeded independently of the
United States draft and, on the basis of a questionnaire distributed to the participating
states, prepared alternative provisions on the following sub- jects: (1) Obligation to settle
disputes under the Convention by peaceful means. (2) Settlement of disputes by means
chosen by the parties. (3) Clause relating to other obligations with respect to dispute settle-
ment. (4) Clause relating to settlement procedures entailing binding de- cisions. (5)
Obligation to resort to a means of settlement resulting in a bind- ing decision. (6) The
relationship between the general and functional approaches. (7) Parties to the dispute. (8)
Local remedies rule. (9) Advisory jurisdiction. (10) Law applicable. (11) Exceptions and
reservations to the dispute settlement provisions.
John King Gamble, Jr.

THE 1982 UN CONVENTION ON THE LAW OF THE SEA: BINDING DISPUTE SETTLEMENT?

Law of the sea dispute settlement would be less confusing if the Montego Bay Convention
had adopted a single organizational approach to dispute settlement. Specifically, the
Convention might have dealt with dispute settlement within each substantive section. This
was not done for most other parts of the treaty. The Convention confronts dispute
settlement in three ways other than those employed in Part XIII. First, Part XI, the
International Sea-bed Area, deals with a new institution, the Sea-Bed Disputes Chamber of
the International Tribunal for the Law of the Sea.2 ' Second, Part XV is an entire section
addressing dispute settlement.' Third, many of the annexes to the Convention deal with the
mechanics of institutional arrangements: conciliation,' Statute of the International Tribunal
for the Law of the Sea,' arbitration' and special arbitration.2

O A ADEDE

while the larger and richer countries can apply extra-legal, political and economic pressures
to achieve t-heir ends, it is especially important for small coun- tries and developing
countries to have disputes directed into legal channels where the principle of equality
before the law prevails."30 Thus, both the substantive law of the Convention and the
procedural mechanisms established therein must protect the rights and interests of all
states and should, accordingly, depart from the traditional systems which were estab-
lished to protect the interests of industrialized Western states

Compulsory Dispute Settlement Methods

under the UNCLOS: Scope and Limits under
the Scrutiny of the Jurisprudence
Genevidve Bastid Burdeau
The numerous disputes submitted to arbitration or to judicial settlement during the last
fifteen years contributed to the clarification and strengthening of the rules of Part XV of the
UNCLOS. Thus the dispute settlement system of the UNCLOS contributes more efficiently to
the general application of the substantive rules of the so-called "Constitution of the
Oceans".

Natalie Klein. Dispute Settlement in the UN Convention on the Law of the Sea. 2005.

Klein in his work maintained that even if Part XV is imperfect, it nevertheless represents a
useful step forward in the application of such a comprehensive treaty. She recognizes that
Part XV had to be constructed to reflect the political dynamic of the Third Conference and
while the result cannot be described as perfect, it is evident that the dispute settlement
regime is carefully tailored to specific issue areas to ensure the greatest workability
possible. Therefore, point is vital and goes a long way toward explaining the context in
which Part XV was developed.

According to her, the ultimate measure of success of Part XV will be the states that utilize
its provisions. Will UNCLOS members participate in dispute settlement under Part XV and
thereby invest it with their confidence? The regime is still too new to adequately assess
this.

Climate Change Challenges and the Law of the Sea Responses Chapter Author(s): Guifang
(Julia) Xue

As one of the most pressing issues confronting human society, climate change has brought
immense challenges to almost all aspects of our lives. This is also the case with the world’s
oceans. In responding to its adverse impacts, the international community has faced legal,
political, and scientific challenges. This also applies to the law of the sea regime
represented by the United Nations Convention on the Law of the Sea (UNCLOS).

It investigates possible responses with particular reference to UNCLOS in addressing the

damages and assessing the extent to which potential means and mechanisms may be
available to protect the affected states.

The author made an analysis on whether and how the UNCLOS provisions pertaining to the
protection and preservation of the marine environment, coupled with those relating to
compulsory dispute settlement, may be of use in combating the climate crisis.

THE 1982 UN CONVENTION ON THE LAW OF THE SEA: BINDING DISPUTE SETTLEMENT?
John King Gamble, Jr.
There are arguments against creating new dispute settlement fora instead of relying on
existing ones. Judge Lachs believes that precedent exists for creating a special law of the
sea chamber of the International Court of Justice."3 He fears that setting up new tribunals
may complicate the quest for a unified, consistent international law."a Perhaps the whole
exercise confuses cause and effect. The principal problem with binding dispute settlement
is not the existing institutions, but the hesitancy of states to use those institutions. Will
these new institutions and procedures overcome this reluctance? The dispute settlement
provisions of the 1982 UN Convention on the Law of the Sea stand as an important
accomplishment for international law. Not only is the Convention itself important, but the
binding modes of dispute settlement incorporated into the treaty, rather than ignored
entirely or delegated to an optional protocol, are significant. But the provisions are complex
and ponderous while providing a myriad of ways to avoid dispute settlement entirely if
disputants so choose. The decision to establish a new institution, the International Tribunal
for the Law of the Sea, may create more confidence by assuring expertise in the law of the
sea. However, progress is often illusory.

Climate Change and the Law of the Sea: Adapting the Law of the Sea to Address the
13Challenges 14 March 2018 Singapore Conference Report of Climate Change

Climate Change Challenges and the Law of the Sea Responses

Guifang (Julia) Xue
RESEARCH QUESTIONS AND HYPOTHESIS

What are the parameters needed to be examined for the determination of the
effectiveness of the dispute settlement mechanism or methods provided under the
United Nations Convention on the law of the sea (UNCLOS)?

Whether the dispute settlement regime, incorporated under the UNCLOS, has
substantially been effective to address the challenges posed by disputes between
states over matters relating to the laws and regulations governing the ocean in a
manner consonance with the principle of UNs obliging peaceful settlement of
international disputes?
OBJECTIVE AND SCOPE OF THE RESEARCH WORK

mention the scope of the study by way of stating that what it is going
to cover.

also state what it is not going to cover, especially the related areas
LIMITATION OF THE RESEARCH WORK
PRELIMINARY LITERATURE REVIEW 1500-2000

The research proceeds with the study of various textbook on the subject dealing with
law of the sea, international dispute settlement methods, and articles dealing

Strength and weakness of previous related research

Justification of own research

What is known or what have been done by others?

Why your research is still necessary?

to know the latest views and arguments on the proposed

topic

Preferably review of literature should be conducted

thematically i.e., broadly highlighting the literature related
to the research questions.
RESEARCH METHODOLOGY

What to do

How to solve the problem and achieve proposed objectives

Which research methods

to identify the methodology she intends to adopt in conducting

the proposed research

describe the methodological framework

describing the research technics and theoretical tools in the

form of research methods
PROPOSED CONTENTS OF THE DISSERTATION

DEDICATION

DECLARATION AND CERTIFICATE

ACKNOWLEDGEMENT

ABSTRACT

TABLE OF CONTENTS

LIST OF ABBREBIATIONS

TABLE OF TREATIES AND DOCUMENTS

TABLE OF CASES

CHAPTER 1

INTRODUCTION

1.1

1.2

CHAPTER 2

2.1

2.1.1

2.1.2

2.2

2.3
CHAPTER 3

3.1

3.2

CHAPTER 4

4.1

4.2

4.3

CHAPTER 5

CONCLUSION

5.1

5.2

5.3

ANNEXURE A

ANNEXURE B

BIBLIOGRAPHY
Chapter 1: Introduction

1.1 Obligation to pacific settlement of disputes: UN charter and UNCLOS

1.1.1 International disputes

1.1.2 Threat to international peace

1.2 UNCLOS dispute settlement regime

1.2.1 Obligation to refer dispute

1.2.2 Nature of disputes

1.2.3 Selection of dispute settlement forum

Chapter 2: Dispute settlement methods and mechanism under UNCLOS

2.1 Revocation of Dispute settlement procedure so far

2.1.1 Resolving maritime disputes voluntarily

2.1.2 Compulsory Dispute settlement

2.2 Disputes resolved by UNCLOS dispute settlement bodies

2.2.1 Conciliation
2.2.2 ITLOS
2.2.3 Arbitration

2.2.4 Special Arbitration

2.2.5 Sea Bed Dispute Chamber

Chapter 3: Effectiveness of the UNCLOS dispute settlement mechanism

3.1 Parameters measuring effectiveness

3.2 Legitimacy of dispute settlement bodies

3.3 Its enforceability

3.4 Competence of the bodies under UNCLOS

Chapter 4: UNCLOS AND EMERGING PROBLEMS WITH THE

EXPLOITATION OF THE OCEAN

4.1 Creating customary international law through judicial activism

4.2 Emerging nature of issues with exploitation of ocean

4.3 Challenges before the disputes settlement bodies

Chapter 5: Conclusions and Suggestions

Appendices

A: Relevant UNCLOS provisions

B: Relevant UN Charter provisions

DEDICATION
DECLARATION AND CERTIFICATE
ACKNOWLEDGEMENT
ABSTRACT
TABLE OF CONTENTS
LIST OF ABBREBIATIONS
TABLE OF TREATIES AND DOCUMENTS
TABLE OF CASES
BIBLIOGRAPHY

Primary Sources

Treaties

Agreetment Relating to the Implementation of Part SI of the United Nations

Convention on the Law of the Sea, 1994

United Nations Convention on the Law of the Sea, 1982

Resolutions of the United Nations and other International organizations

UNGA Resolution 54/54-Q of 1 December 1999 on Follow-Up to the

Advisory Opinion of the ICJ on the Legality of the Threat or Use of Nuclear
Weapons,

Reports of the United Nations and other International organizations

National legislation

Judgments of the international courts and tribunals

Corfu Channel (Merits) ICJ Rep. 1949, 4 - Judgment, 30-31, 34-35, Individual
O. Alvarez, 42, 47, Dissent Krylov, 76-77, Dissents Azevedo, 108-109, 112,
Ecer, 115-116, 129-131

Nuclear Tests (Interim Measures) Dissents Ignacio-Pinto, ICJ Rep. 1973, 132, 163

Aegean Sea
(Interim Measures) Order, ICJ Rep. 1976, 6-8, 11-13, Separate Os President de
Arechaga, 16, Mosler, 26, Elias, 27-30, Dissent Stassinopoulos, 35-40,
(Jurisdiction) Dissent Stassinopoulos, ICJ Rep. 1978, 79
Libya/Malta (Merits)
Judgment, ICJ Rep. 1985, 42

Nicaragua v. USA (Provisional Measures) Order,

ICJ Rep. 1984, 170, para.l(b) and (e), 181, para.28, 187, para.41(B)(l), Dissent
Schwebel, 190, 199, (Jurisdiction and Admissibility) Judgment, ICJ Rep. 1984,
424, para.73, as reaffirmed by Nicaragua v. USA (Merits) Judgment, ICJ Rep.
1986, 93, para.174

Nuclear Weapons (UNGA) Advisory Opinion, ICJ Rep.

1996, 244-247, Dissents Vice-President Schwebel, 322-329, Koroma, 557.

Legality of the Use by a State of Nuclear Weapons In Armed Conflict ICJ Rep.
1996 - Advisory Opinion, 66, Declaration Ranjeva, 86, Declaration Ferrari
Bravo, 87, Separate O. Oda, 88, Dissents Shahabuddeen, 97, Weeramantry, 101,
Koroma, 17

Bosnia and Herzegovina v. Yugoslavia (Provisional Measures) Orders, ICJ

Rep. 1993, 3, 325, (Preliminary Objections) Judgment, ICJ Rep. 1996, 595,
(Counter-Claims) Order, ICJ Rep. 1997,

Iran v. USA Oil Platforms

(Preliminary Objection) Judgment, ICJ Rep, 1996, 803, (Counter-Claim) Order,
ICJ Rep. 1998, 190

Cameroon v. Nigeria (Provisional Measures) Order, ICJ

Rep. 1996, 13, (Preliminary Objections) Judgment, ICJ Rep. 1998, 275, Nigeria
v. Cameroon (Interpretation) Judgment, ICJ Rep. 1999, 31

Spain v. Canada
Fisheries (Jurisdiction) Judgment, ICJ Rep. 1998, 432, paras 24, 35, 53, 78-84,
Separate O. President Schwebel, 470
Judgments of the national courts and tribunals

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