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Dispute Settlement Provisions of the

United Nations Convention on the Law of the Sea

By Lesther Antonio Ortega Lemus

1. Dispute Settlement Provisions of UNCLOS

One of the main achievements of the Third United Nations Conference on the Law of the
Sea (“the Conference” hereinafter) was to agree on the inclusion of comprehensive
provisions regarding the settlement of disputes that could arise from the interpretation and
application of the 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
1
Nordquist, Myron (Ed.) United Nations Convention on the Law of the Sea 1982 – A Commentary Vol. V P.5
2
Ibid. P.5-15
3
Erasmus. Op. Cit. P.21-22
4
Ibid.
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 de-
colonization process, as well as their numerical superiority, there was a focus on the “new”
law of the sea (opposed to a suspicion towards both the established International Law and
the ICJ), making it clear from, e.g. the provisions of Article 293, which directs the dispute
resolution bodies to apply that “Convention and other rules of international law not
incompatible with this Convention”, when referring to the applicable 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.

5 th
Merrils, J.G. International Dispute Settlement. 4 Ed. Cambridge University Press P. 183
6
Ibid. P.187
7
Klein, Natalie. Dispute Settlement in the UN Convention on the Law of the Sea. Cambridge University Press. P.20-21
8
Adede, A.O. The Basic Structure of the Disputes Settlement Part of the Law of the Sea Convention, P.145 in Ocean
Development and International Law Journal Vol. 11 No. 1/2 (1982)
9
Ibid. P.10

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 297-
299).

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 non-
compulsory conciliation; section 2 comprises compulsory settlement by means of binding-
decision adjudicative bodies, and section 3 refers to compulsory conciliation as the only
10
Adede. Op. Cit. P.131-132
11 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
Churchill & Lowe. Op. Cit. P.454
15
See Peters, Anne International Dispute Settlement: A Network of Cooperational Duties in European Journal of
International Law Vol. 14 No.1 (2003) P.10
16
Although such obligation (in UNCLOS and in general Public International Law)seems to be relative in its extent, as it can
be observed through the dicta of cases as the Southern Bluefin Tuna case or in the Cameroon v. Nigeria Land and Maritime
Boundary case of 1998
17
For more on Conciliation, see Koopmans, Sven Diplomatic Dispute Settlement – The Use of Inter-State Conciliation,
T.M.C. Asser Press, The Hague 2008
18
Mensah, Thomas The Dispute Settlement Regime of the 1982 United Nations Convention on the Law of the Sea in
Max Planck Yearbook of United Nations Law 2 (1998) P.310

Lesther Antonio Ortega Lemus


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 non-
binding means of the latter and Section 2 binding-decision means.

1.1.3. Section 2
The procedures in Section 2 are deem as “…complementary to the traditional means of
dispute settlement which have been hallowed by customary international law…”, “’residual’
procedures, in that they are applicable only in default of other procedures acceptable to the
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

19
Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea,
New York 1994.
20
As it will be discussed hereafter, the Case concerning the Conservation and sustainable Exploitation of Swordfish Stocks in
the South-Eastern Pacific Ocean is (as far as the knowledge of the undersigning reaches) the first case where an
International Organization is “taken to Court” by a State in the context of an international 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

Lesther Antonio Ortega Lemus


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) The International Tribunal for the Law of the Sea,


b) The International Court of Justice,
c) Arbitration under Annex VII of the Convention, and
d) Special Arbitration under Annex VIII of the Convention.

The flexible formula accommodates the positions of the different groups during the
Conference, and allows the Parties to choose one or more of the mechanisms enumerated
above by means of a written declaration to be deposited with the Secretary General of the
United Nations. Practice shows that Parties not only select one or more of the above
mentioned, but creatively put then (when selecting more than one) in a preferential order,
designate mechanisms for certain types of disputes or exclude certain types of disputes
from the jurisdiction of one of them or, as a few countries have done, make a negative
choice by completely denying jurisdiction of one of the mechanisms (e.g. Cuba and Guinea-
Bissau with regards to the 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).

25
Churchill, R. R. Some Reflections on the Operation of the Dispute Settlement System of the UN Convention on the
Law of the Sea During its First Decade in Freestone, Barnes & Ong The Law of the Sea – Progress and Prospects. P.395
26
This may lead to strange outcomes as the case of two States making a choice for different permanent (i.e. one for ICJ
and one for ITLOS) jurisdictions will have to (unless agreement of the parties) use arbitration. See Vukas, Budislav The
Law of the Sea: Selected Writings P.298

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

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.

27
This of course applies if the parties do not make any other decision, as the freedom to choose the mechanisms to settle
a dispute is maintained throughout the totality of the process and has actually happened in two cases which were
originally directed to Annex VII Arbitration but were “transferred” by choice of the parties to ITLOS (situation that
happened after the approximations that the President of the latter holds with both parties when the constitution of the
arbitral tribunal is about to take place, moment when they learn more about the Tribunal and the benefits vis 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

Lesther Antonio Ortega Lemus


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

31
For a thorough discussion on the topic see Treves, Tullio A System for Law of the Sea Dispute Settlement in Freestone
et al. Op Cit. P.417
32
There is also an “applicable law” Article in Annex III, nevertheless not related to dispute settlement (in principle).
33
Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10
December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish
Stocks. United Nations General Assembly A/CONF.164/37
34
Examples of that situation are provided in Treves Op. Cit. A relevant list is to be found at www.itlos.org
35
See inter alia Macrae, Leslie M. Customary International Law and the United Nations’ Law of the Sea Treaty in
California Western International Law Journal Vol. 13 (1983)
36
Professor Treves seems to hold a different view (Cfr. Op. Cit. P.428), as he purports that actually the 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.

Lesther Antonio Ortega Lemus


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

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).

38
This particular provision is inserted due to the nature of the possible subjects to the jurisdiction of the adjudicatory
bodies, being States, International Organizations, private companies and even individuals.
39
Available at www.icj-cij.org
40
International Tribunal for the Law of the Sea Basic Texts 2005 P.16-70 at P.53 also available at www.itlos.org
41
Some of the answers to the first question included the very suggestion of that faculty falling under the inherent powers
doctrine (especially for ITLOS that has no more basis than the Convention), as well as a reply to that suggestion as being
contra legem and therefore not ascertainable. To the second question, the answers were more ambivalent. For that issue
see Orrego 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

44
A well-detailed account of the matter at Mensah, Thomas The Tribunal and the Prompt Release of Vessels in The
International Journal of Marine and Coastal Law, Vol. 22 No. 3 (2007) P.425
45
The drafting history of the said Article available at Nordquist Op. Cit. P.66-71
46
Inter alia Merrills, Op. Cit. P.186
47
ITLOS publication A Guide to Proceedings before the International Tribunal for the Law of the Sea P.23-27 offers a
simplified explanation of the procedure as well as models for the documents to be submitted.
48
For justification and drafting history of that feature see Nordquist Op. Cit. P.70-71

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

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.

49
To the date of conclusion of this paper, ITLOS had dealt with the following cases of prompt release of vessels and crews:
1. The M/V “Saiga” (Saint Vincent and the Granadines v. Guinea), 2. The “Camouco” (Panama v. France), 3. The “Monte
Confurco” (Seychelles v. France), 4. The “Grand Prince” (Belize v. France), 5. The “Chaisiri Reefer 2” (Panama v. Yemen) ,
6. The “Volga” (Russian Federation v. Australia), 7. The “Juno Trader” (Saint Vincent and the Granadines v. Guinea Bissau),
8. The “Hoshinmaru”(Japan v. Russian Federation, and 9. The “Tomimaru” (Japan v. Russian Federation). See
www.itlos.org
50
It appears, both to the opinion of the interviewed experts and to the undersigning, that it is rather unlikely that State
Parties will ever resort to any other of the 287 possibilities for the prompt release of vessels and crews, due to the speed
requirement of the procedure, the fact that only ITLOS has tested criteria and shown capacity to deliver judgment on time
(even when seised with two cases simultaneously, i.e. the Tomimaru and Hoshinmaru Cases). It will be very difficult that
with the time-constraint of 10 days from the detention of the vessel, that the parties will agree to something else than
ITLOS, if they could not agree on the release of the vessel against the posting of a security.
51
Those procedures will usually include i.e. fines or even criminal investigation/prosecution to or against the Captain,
crews, or owner of the vessel.
52
Case Concerning Pulp Mills in the River Uruguay (Argentina v. Uruguay). Available at http://www.icj-
cij.org/docket/files/135/15877.pdf

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

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

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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

53
For further explanations see Klein Op. Cit. P.140-144
54
See Brown, E.D. Dispute Settlement and the Law of the Sea: the UN Convention Regime P.22 in Marine Policy, Vol.
21 No.1 (1997)
55
Ibid.
56
Adede Op. Cit. P.148
57
Brown Op. Cit. P. 24

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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.

58
Brown Op. Cit. P.25

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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

59
See Janis, M.W. Dispute Settlement in the Law of the Sea Convention: the Military Activities Exception, in Ocean
Development and International Law Vol. 4 (1977) P.51-65
60
Merrills Op. Cit. P.189
61
Kwiatkowska, Barbara Peaceful Settlement of Oceans and Other Environmental Disputes Under International
Agreements P.22

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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
Vidas & Østreng Op. Cit. P.93
63
For a detailed account of the development of the regime see Klein Op. Cit. P.317-348
64
See Mensah Op. Cit. P.316-319

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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,

65
El-Baghdadi Mahdi The Binding Nature of the Disputes Settlement Procedure in the Third U.N. Convention On the
Law of the Sea: The International Seabed Authority (Sic) in Journal of Mineral Law & Policy Vol. 6 (1990-1991) P.180-181
66
This expression apparently wipes out any shadow of doubt about the alleged discretionary power that the ICJ holds with
regards to giving or not an advisory opinion.
67
Until the date of conclusion of this paper, twelve State Parties (United Kingdom of Great Britain and Northern Ireland,
Nauru, Korea, Romania, the Netherlands, the Russian Federation, Mexico, Germany, China, Australia, Chile, Philippines)
three intergovernmental organizations and one NGO’s statement. See www.itlos.org

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

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.

68
More on commonality in Brown, Chester A common law of international adjudication Oxford University Press 2007

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d) Within 30 days of the last nomination, the four conciliators have to nominate a
chairperson, from the list of conciliators above mentioned, completing the
conciliation commission. As above, if the nomination 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.

69
Although in the beginning there were several proposals which differ largely from Annex VI final text, including the
separate Statute of the SDC which was intended to have a distinct existence.
70
For the full drafting history see Nordquist Op. Cit. P.331-399

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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.

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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.

71
This situation derives of the original intention of establishing two tribunals, which was abandoned for the current
solution by 1977. See Nordquist Op. Cit. P.335-337
72
Although it has been argued that ITLOS could entertain a private dispute and apply private law as well: Basedow, 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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Dispute Settlement Provisions of The United Nations Convention on the Law of the Sea

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 Secretary-
General of the United Nations indicated in Article 2 of the Annex, and can be nationals of
the nominating State. If the notified party does not act within those 30 days, the other
Party can request the President of ITLOS, as appointing authority, to make the necessary
appointment, who has to do so, in consultation with the parties, in the following 30 days.

The three remaining arbitrators have to be nominated by agreement of the Parties no later
than 60 days from the original notification that instituted the arbitration. From those three
arbitrations, none of which can be a national of the parties, the President of the arbitral
tribunal must be elected, again by common agreement. If one of the above fails in the
timeframe above mentioned, within two weeks of the expiration of the said, any of the
parties can ask the President of ITLOS to make the necessary appointments as indicated
previously, choosing all his nominations from the referred list and from different
nationalities each. So constituted, the arbitral tribunal must decide on the procedure to
follow assuring the parties the opportunity to be heard and to present their case. All
decisions have to be taken by majority and the absence or abstention of less than the half
of the tribunal is no bar for the tribunal to take a decision. As in most other bodies, the
President has a casting vote in case of a tie.

76
Rosenne, Shabtai Arbitration under Annex VII of the United Nations Convention on the Law of the Sea P.991 in
Nyade, Tafsir and Wolfrum, 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)

78
A reasonable critique to that provision in Merrills Op. Cit. P.194
79
Nordquist Op. Cit. P.421-440
80
See Adede, A. O. Prolegomena to the Disputes Settlement Part of the Law of the Sea Convention in New York
University Journal of International Law and Politics Vol.10 No. 2 (1977) P.354-358
81
Cfr. Sohn, Louis B. The Role of Arbitration in Recent Multilateral Treaties in Virginia Journal of International Law Vol.
23 No. 2 (1982-1983) P.176-177
82
Ibid P.421
83
Rosenne Op. Cit. P.997
84
To that case the International Centre for Settlement of Investment Disputes (ICSID) provided registry services. The
Award and records of the procedure are available at its website http://www.worldbank.org/icsid
85
Adede Prolegomena… P.354 See also Merrills Op. Cit. P.193

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.

86
The PCA website (http://www.pca-cpa.org/showpage.asp?pag_id=1288) lists the following: a) The Mox Plant Case
(Ireland v. United Kingdom), b) The Land Reclamation in the Straits of Johor Case (Malaysia v. Singapore), c) the Barbados
v. Trinidad and Tobago maritime delimitation case, and d) the Guyana v. Suriname maritime delimitation case.
87
See discussion in Oellers-Frahm, Karin Arbitration – A Promising Alternative of Dispute Settlement under the Law of
the Sea Convention in Zeitschrift 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

Lesther Antonio Ortega Lemus


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

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.

91
See Brown, E.D. Op. Cit. P.39
92
See Merrills Op. Cit. P.197
93
Another argument against special arbitration usage is the fact that until now only 9 parties to UNCLOS have chosen it as
dispute settlement mean. See French, Duncan et al (eds.) International Law and Dispute Settlement – New Problems
and Techniques P.146

Lesther Antonio Ortega Lemus