Settlement of International Dispute:
12. United Nation Convention on Laws of Sea (UNCLOS)
Prepared and Presented
by
Manish Nepal
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12. Dispute Settlement under UNCLOS:
Oceans cover five-sevenths of the total earth's surface & it play a vital role in
supporting the human population through its resources. Every State has
economic, political, strategic, & social interests in the oceans.
These interests are manifest in a variety of maritime activities – including
fishing, shipping of goods, hydrocarbon & mineral extraction, naval missions, &
scientific research.
The uses of the oceans have significantly evolved from times when maritime
areas were primarily important as trading routes & considered as a common
resource of limitless quantities of fish.
These changes have led to the development of a complex pattern of
ownership & control of maritime activities. The multiplicity of maritime claims
has resulted in a high degree of regulation in the international system.
The UN Convention on the Law of the Sea (UNCLOS), 1982 came into force on
November 16, 1994. It has 320 Articles & 9 Annexes. 2
UNCLOS provides a regulatory framework for the use of the world’s
seas & oceans, & to ensure the conservation & equitable usage of
resources & the marine environment. It also ensure the protection &
preservation of the living resources of the sea.
UNCLOS is a constitutive treaty, setting out the rights and obligations
of States and other international actors in different maritime areas and
in relation to various uses of the oceans.
UNCLOS also addresses such other matters as sovereignty, rights of
usage in maritime zones, & navigational rights.
As of July 2022, 168 States have ratified, acceded to, or succeeded to,
UNCLOS.
Dispute Settlement under UNCLOS is an integral part of the
Convention. However, it is not a comprehensive regime as it allows the
Parties to freely choose the various means for the settlement of 3
disputes.
Part XV of UNCLOS sets forth rules for the resolution of disputes between
State Parties arising out of the interpretation or application of UNCLOS.
Under UNCLOS (Art. 279- 280), dispute about interpretation or applicability
of treaty provision could be settled by any peaceful means.
Art. 279 states that, States parties shall settle their any dispute between
them concerning the interpretation or application of this Convention by
peaceful means.
UNCLOS states that, “as long as States resolve their disputes in peaceful
means they can freely choose the means of settlement”. ie. peaceful
settlement with free choice of means.
So, diplomatic initiatives & negotiation have been the most efficient way to
resolve a conflict. Resolution through political channels prior to judicial
settlement is promoted in UNCLOS
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Procedure for the settlement of disputes:
States also retain the right to resolve conflicts through alternative (bilateral,
regional, or general) agreements. This allowance was necessary in light of the
large number of treaties that are specific to a particular issue area in the law of
the sea & that incorporate their own dispute settlement systems.
So, there are two procedure for the sttlement of disputes under UNCLOS:
i. Voluntary Procedure; &
ii. Compulsory Procedure
i) Voluntary Procedure (Traditional Method):
is a consent based approach. Example: Negotiation, Mediation, or Settlement
through Sepaerate Agreement. It is mentioned in Sec.1 of Part XV of the
Convention. Accprding to this Convention, “Voluntary Procedure” may also
include the arbitration outside Convention framework if both Parties agree to
do so.
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ii) Compulsory Provision (binding to third parties):
Article 287(1) of UNCLOS provides that, when signing, ratifying, or
acceding to UNCLOS, a State may make a declaration choosing one or
more of the following means for settling such disputes:
the International Tribunal for the Law of the Sea (ITLOS) in Hamburg,
Germany;
the International Court of Justice in The Hague, The Netherlands;
ad hoc arbitration (in accordance with Annex VII of UNCLOS); or
a “special arbitral tribunal” constituted for certain categories of
disputes (established under Annex VIII of UNCLOS).
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“Special Arbitration” to the Convention includes to the disputes relating
to the application of treaty provision to:
(1) fisheries,
(2) protection & preservation of the marine environment,
(3) marine scientific research, &
(4) navigation, including pollution from vessels & by dumping.
Seabed Dispute Chamber: There also include seabed dispute chamber
in UNCLOS dispute settlement mechanism which handles the dispute
related to seabed mining. Art. 186 estabilish seabed dispute chamber.
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Exclusion & Limitations of Compulsory Method:
By written declaration, States can refute to compulsory procedure of
the following cases:
i. Disputes concering Maritime Delimitation;
ii. Military or Law enforcement Activities;
iii. Disputes on which UNSC is exercising its Jurisdiction.
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Features of UNCLOS:
Voluntary procedure take preference to Compulsory procedure. ie.
dispute should be settled though voluntary method as far as possible.
However, Compulsory procedure takes place if:
(a) no settlement is prefered by the Parties
(b) agreement does not exclude further procedure
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Part XV of UNCLOS is a complex dispute settlement system that entails
both traditional consent-based processes as well as mandatory
procedures.
In both respects, flexibility for States parties is a key feature.
Section 1 of Part XV anticipates that States will pursue a range of
dispute settlement options both within & outside the UNCLOS
framework, reflecting that States have been accustomed to settling
disputes in a variety of ways as those disputes arose & as demanded by
the situation – not through predetermined means.
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One of the distinctive features of UNCLOS is that it has a compulsory
binding dispute settlement mechanism, so if any dispute arises
between two states party to the convention on its interpretation or
application, either party has the right to unilaterally take the other one
to dispute settlement.
Pursuant to Article 287(3) of UNCLOS, arbitration under Annex VII is
the default means of dispute settlement if a State has not expressed
any preference with respect to the means of dispute resolution
available under Article 287(1) of UNCLOS (& has not expressed any
reservation or optional exceptions pursuant to Article 298 of UNCLOS).
ie. if parties have not agreed on specific means than they have resolve
disputes through arbitration.
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Jurisdiction of UNCLOS:
There are two types of jurisdiction of UNCLOS:
i) Contentious Jurisdiction; &
ii) Advisory Opinion.
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i) Contentious jurisdiction (Art. 297 & Art. 298) of UNCLOS:
The Tribunal has jurisdiction over all disputes concerning the
interpretation or application of the Convention.
Article 297 & declarations made under article 298 of the Convention
do not prevent parties from agreeing to submit to the Tribunal a
dispute otherwise excluded from the Tribunal's jurisdiction under
these provisions. [Art. 299] ie. parties can suggest for other methods of
dispute settlement.
The Tribunal also has jurisdiction over all disputes & all applications
submitted to it pursuant to the provisions of any other agreement
conferring jurisdiction on the Tribunal.
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ii) Advisory jurisdiction:
The Seabed Disputes Chamber is competent to give an advisory
opinion on legal questions arising within the scope of the activities of
the Assembly or Council of the International Seabed Authority [Art.
191]
The Tribunal may also give an advisory opinion on a legal question if
this is provided for by "an international agreement related to the
purposes of the Convention." [Rules of the Tribunal, article 138]
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Some Important Cases:
Mauritus v. U.K (2015)- Case concering the building of “maritime
protected area” in the “Chagos Archipelogo” of Mauritus by U.K. The
act was considered to be the act of violation of soverignty of Mauritus
by the U.K.
Philippines v. China (2016)- Case was about claiming the part of South
China Sea by Philippines & asked Tribunal to order to stop China on
building of artificial island in South China Sea. China claiming the
almost entire region of South China Sea by the imaginary 9-Dash line.
The UNCLOS tribunal awarded the case in favour of Philippines. To
which China claims that, the Tribunal has no jurisdiction to hear the
case as China has not accepted it jurisdiction.
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References:
• Malcom N. Shaw, International Law, Sixth Edition, 2008, Cambridge.
• Sir Robert Jennings & Sir Arthur Watts (eds.), Oppenheim's International Law, Ninth
Edition, First Indian Reprint, 2003, Universal Law Publishing Co. Pvt. Ltd.
• J. G. Starke, Introduction to International Law, Tenth Edition, 1994, Butterworths.
• Michael P. Scharf, Customery International Law in Times of fundamental Changes:
Recognizing Grotian Moments, First Edition, 2013, Cambridge University Press.
• Cases decided by ICJ and other International Tribunals.
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