The International Tribunal for the Law of the Sea and Dispute Settlement under UNCLOS III

Author:Anthony Connerty
Profession:Barrister and member of WIPO arbitration panel
Pages:135-153
SUMMARY

1) Introduction. -2) Historical Overview. -3) The Dispute Resolution Provisions of Part XV of UNCLOS III: Section 1: General Provisions. Section 2: Compulsory Procedures. Section 3: Limitations and Exceptions. -4) The Statute of ITLOS - The Tribunal: Annex VI: Section 1: Organisation of the Tribunal. Section 2: Competence / Jurisdiction of the Tribunal and Applicable Law. Section 3: Procedure of... (see full summary)

 
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Page 135

1) Introduction

The International Tribunal for the Law of the Sea (ITLOS) is the third international dispute settlement body to be considered in this part of the Manual. It was created by the 1982 United Nations Convention on the Law of the Sea (UNCLOS III). The Convention provides for dispute resolution by way of both arbitration and conciliation, permits disputes to be decided ex aequo et bono (provided the parties agree) and makes provisions for the establishment of a fact-finding Tribunal.

Part XV of UNCLOS III contains the provisions relating to the settlement of disputes. Article 284 in Part XV contains provisions dealing with Conciliation (the detail is set out in Annex V). Article 287 contains the choice of four means for the settlement of disputes relating to the interpretation and application of the Convention: through the Tribunal itself (the ITLOS Statute is set out in Annex VI); through the International Court of Justice (ICJ); through Arbitration (the relevant provisions are contained in Annex VII); or through Special Arbitration (the provisions are set out in Annex VIII).

This chapter will look at the Law of the Sea Convention, the Statute of ITLOS, cases decided by the Tribunal, the Conciliation provisions, the Arbitration provisions and the Special Arbitration provisions.

2) Historical Overview

UNCLOS III came into force on 16 November 1994. In October 1996, the Tribunal began to function at its seat in Hamburg.

The other supranational dispute resolution bodies considered in the Manual - the ICJ, the Permanent Court of Arbitration (PCA) and the International Centre for Settlement of Investment Disputes (ICSID) - were all made the primary court or tribunal by the instruments that created them: the United Nations Charter, the 1899 Hague Peace Conference and the ICSID Convention.

UNCLOS III, on the other hand, gave jurisdiction to resolve disputes not only to ITLOS but also to other tribunals. In all, as noted above, there are four procedures for dispute resolution under the 1982 Convention. The UNCLOS dispute settlement procedures are complex. This is hardly surprising given the complexity of the subject matter: two-thirds of the Earth's surface is covered by water, and the Convention contains a universal legal regime dealing with, among other things, the territorial sea, exclusive economic zones, the continental shelf and delimitation.

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3) The Dispute Resolution Provisions of Part XV of UNCLOS III

Parts of UNCLOS III have been considered earlier in the Manual. For example, Part II of the Convention deals with the territorial sea and contiguous zone; Part V with the exclusive economic zone; and Part VI with the continental shelf. The Part to be considered now is Part XV, which is concerned with dispute resolution.

Part XV is divided into three Sections: Section 1 (Articles 279-285) contains general provisions dealing with peaceful settlement by non-binding means such as negotiation and conciliation; Section 2 (Articles 286-296) deals with compulsory procedures entailing binding decisions; and Section 3 (Articles 297-299) deals with limitations and exceptions.

Section 1: General Provisions

Section 1 sets out the requirement that disputes be settled by peaceful means (Articles 279-281). Article 282 deals with the situation where other agreements, such as bilateral agreements, apply:

"If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree."

Article 283 provides that the States Parties are under an obligation to exchange views regarding the settlement of the dispute by negotiation or other peaceful means. They can agree to submit their dispute to conciliation in accordance with the procedures under Annex V or another conciliation procedure (Article 284).

Article 285 deals with disputes under Part XI, which is concerned with the Seabed Disputes Chamber.

Section 2: Compulsory Procedures

Article 286 deals with compulsory dispute settlement procedures. It states that where no settlement has been reached by recourse to the provisions contained in Section 1, the dispute is to be submitted to the court or tribunal having jurisdiction under Section 2. The provisions are important, and deal with the four settlement procedures referred to earlier. Article 287 (1) provides for a choice, by means of a written declaration, of one or more of the following means for the settlement of disputes:

"(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;

(b) the International Court of Justice;

(c) an arbitral tribunal constituted in accordance with Annex VII;

(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein."

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Article 287 (3) provides that a State party that is a party to a dispute not covered by a declaration in force "shall be deemed to have accepted arbitration in accordance with Annex VII".

If the parties have accepted the same dispute settlement procedure, the dispute may be submitted only to that procedure (unless the parties otherwise agree). However, Article 287 (5) states that if the parties to the dispute have not accepted the same procedure, the dispute "may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree".

Declarations may be made when signing, ratifying or acceding to the Convention or at any time thereafter and are to be lodged with the UN Secretary-General.

Article 288 deals with the jurisdiction of the various courts or tribunals referred to in Article 287:

"1. A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.

2. A court or tribunal referred to in article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement.

3. The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea established in accordance with Annex VI, and any other chamber or arbitral tribunal referred to in Part XI, section 5, shall have jurisdiction in any matter which is submitted to it in accordance therewith.

4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal."

The court or tribunal exercising jurisdiction in a dispute involving scientific or technical matters may select no fewer than two scientific or technical experts to sit with the court or tribunal. The experts do not have the right to vote (Article 289).

Article 290 deals with provisional measures. Article 290 (1) provides that the relevant court or tribunal has the power to order provisional measures that "it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision".

Under Article 290 (5), ITLOS is competent to prescribe provisional measures on a mandatory basis pending the constitution of an arbitral tribunal. When arbitral proceedings are instituted (e.g., in the event that the parties did not make a declaration under Article 287 of the Convention), the constitution of the arbitral tribunal may take some months before it becomes effective. In the meantime, since the rights of the parties need to be preserved, it may be necessary to prevent serious harm being caused to the environment. The Tribunal is therefore competent to prescribe provisional measures "within two weeks from the date of the request for provisional measures". To date, four cases have been dealt with by the Tribunal under this paragraph.

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Access to the dispute settlement procedures is only open to States Parties. Entities other than States Parties may use the procedures only as specifically provided for in the Convention (Article 291).

The prompt release of vessels and crews is dealt with in Article 292. The M/V "Saiga" Case and various other cases referred to later in this chapter were concerned with this Article.

Article 293 specifies that the court or tribunal having jurisdiction under the compulsory procedures of Section 2 is to apply "this Convention and other rules of international law not incompatible with this Convention" (Article 293 (1)). However, it may decide a case ex aequo et bono, if the parties agree (Article 293 (2)).

The relevant court or tribunal has power under Article 294 to decide whether a claim made under Article 297 (concerning the exercise by a...

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