United Nations Convention on the Law of the Sea (1982) is maybe the
most important global convention just because it deals with world’s largest
resource. Whereas it is most probable and inevitable that, world’s largest
resource, its waters is the very potential area for the emergence of disputes.
In regard to these disputes, by the virtue of peaceful settlement of
international disputes regime created by charter, UNCLOS in Part XV has
established a settlement of disputes mechanism. Part XV foresees a wide range
of dispute settlement method from diplomatic settlement methods such as
diplomatic negotiations, mediation, good office, enquiry or conciliation to
binding jurisdictional methods. It is another importance of the UNCLOS is the
creation of an International tribunal for the law of the Sea disputes
(ITLOS). ITLOS’s main function is to
adjudicate disputes arising out of the interpretation and application of the
Convention. Beyond ITLOS the part XV recognizes other binding adjudication
methods such as settlement of disputes by international court of justice or by
arbitration courts. The paper therefore firstly outline the essential features
of the dispute settlement mechanism put forward by the UNCLOS III, and then
will conclude by questioning why a complex, but flexible dispute settlement
mechanism needed under UNCLOS III.
INTRODUCTION
There is no doubt that seas and oceans which cover enormous parts of
the earth surface has very important role in the economic, social and political
life of the human. That is why the importance of the rule of law governing
these resources of the world can not be underestimated. UNCLOS III therefore
clarifies those rules and norms, and outlines the rights and obligations in
regard to use of world’s largest resources. From territorial sea to internal
waters, from oceans to Exclusive economic zones, from fishing to scientific
research, from sea bed to high seas, it covers every potential usage areas of
the world primary resources; Waters. Besides providing a control mechanism on
waters, the UNCLOS also provides a dispute settlement mechanism by taking into
consideration the very potential nature of the seas for disputed claims. If one
considers that most of the global wars fought in the seas, a dispute settlement
mechanism developed by the UNCLOS III can be easily rationalized, in the era
when the use of force formally prohibited. Part XV of the convention, in this
means provides dispute settlement mechanisms that may be invoked by the state
parties. Simply the section I of the part XV lists the diplomatic means and
section II provides adjudication methods for the dispute settlement mechanisms.
Moreover the Section III of the Part XV provides exceptions and Limitations to
the adjudication methods provided by the convention.
DIPLOMATIC MEANS OF DISPUTE SETTLEMENT
Under the dispute settlement procedure of the UNCLOS, states are
allowed to use their own initiatives for the settle their disputes. There is no
doubt this could be in a peaceful way which has been developed and prescribed
by the international law. That is in one hand while states may invoke to
compulsory jurisdiction mechanism created by the UNCLOS III, they may also use
the traditional methods for the peaceful settlement of dispute. it is known
that besides the judicial settlement of disputes, diplomatic means for the
resolution of dispute might be more preferable. On the other hand sometimes
might be more efficient and practical just because it provides compromise
opportunity among the disputed states. Moreover UNCLOSIII also allowed states
to solve their disputes in particular regions by concluding some bilateral or
multilateral treaties.[1]
For instance the Montreux Convention might be a good example for this. On the
other hand the UNCLOS III embodies a compulsory procedure with its binding
decisions for the dispute settlement. The main reason for this mandatory system
can be understood if one considers the fact that, the primary aim of the UNCLOS
III is to protect the compromise reached in the conclusion of treaty. UNCLOS
III is a product of long historical debates. Therefore its effective
application and interpretation is essential.
Nevertheless before invoking these compulsory procedures provided by
the UNCLOS III, states are encouraged to resolve their disputes in their own
decided means which is comfort to international law. That is the first section
of the Annex XV gives states an opportunity to settle their disputes through
diplomatic means prior to invoking to the procedures laid down under section
II.[2]
As underlined the chosen method should be in conformity of the rules of
international law. In this respect the article 279 of the UNCLOSS III refers to
the article 33(1) of the United Nations Charter.[3]
Moreover the article 280 also confirms and reinforces states flexibility in
their choice of ‘consent-based’[4]
diplomatic methods.
Rather than imposing a valid solution to a dispute; given consent to
a solution by a state might be more reliable, effective and practical. Article
283(1) of the UNCLOS III also emphasises this fact by starting “When a dispute
arises between states parties concerning the interpretation or application of
this Convention, the parties to the dispute shall proceed expeditiously to an
exchange of views regarding its settlement by negotiation or other peaceful
means”[5]
Therefore UNCLOS III requires at least ‘exchange of views’ about a
dispute is essential before invoking any kind of judicial settlement method. This
exchange of vies in particular can as mentioned in the art 283 be negotiation,
also can be advance to the other recognized methods such as inquiry, mediation
and conciliation.
JUDICIAL MEANS OF DISPUTE SETTLEMENT
When states by invoking to the methods described under section I,
could not managed to reach any settlement, section II of the part XV is put
into use. Since the states by ratifying the UNCLOS III have given their
consents to the convention, the consent of the states is not a precondition for
the compulsory mechanism. To this end Article 287 of the UNCLOS III established
varity of forums that to be invoked for the use of compulsory mechanisms.
Article 287(1) mention that the forums might be one of the followings;
(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.[6]
The UNCLOS III also created a new permanent international court for
the compulsory settlement of disputes. Moreover one of the distinguishing
feature of the ITLOS is, it may also hear the cases coming from the ‘other
entities’ rather than states.[7]
Other than the forums laid down in the article 287, arbitration is
also constitutes another means for the judicial settlement under the UNCLOS
III. That also provides flexibility to the states; when one considers the fact
that by enabling states a kind of control over the settlement procedure and
mechanism, arbitration itself provides a flexile way than the adjudication.
Annex VII in regard to arbitration requires that; arbitration court should be
composed with the ‘persons experiences in maritime affairs and enjoying the
highest reputation for fairness, competences and integrity’[8]
Furthermore Article 287(3) states that; If
the parties to a dispute have not accepted the same settlement procedure, the
dispute may be submitted only to arbitration in accordance with Annex VII,
unless the parties otherwise agree.[9]
That is in a situation where states had chosen different forums for
the adjudication for the settlement of a dispute; arbitration constitutes a
very alternative and reliable forum for the settlement of disputes.
A) Exceptional Circumstances – Limits of Compulsory Jurisdiction –
In some areas where the historical disputes are continuing states
mostly reluctant to bind themselves with the compulsory binding decisions of
the international tribunals. Malanczuk, here points out that; “in areas which
are traditionally sensitive from the viewpoint of territorial sovereignty and
military activities, or with regard to fishing and research (from perspectives
of developing countries), states have shown themselves unwilling to accept
binding third party decisions.”[10]
In this respect the convention itself provides some opportunities to
opt-out jurisdictional clauses in some specific circumstances. These
exceptional disputes are determined in the article 298 of the convention.
Accordingly, disputes related with the ‘sea boundary delimitations’, related to
‘historic bays or titles’, disputes concerning ‘military activities’, ‘disputes
concerning law enforcement activities in regard to the exercise of sovereign
rights or jurisdiction’ and ‘disputes in regard to Security Council of United
nations is exercising the functions assigned to it’[11]
B) Compulsory Conciliation in the Exceptional Disputes
UNCLOS II provides an opt-out regime on specific dispute areas by
considering sensibility of the disputes especially historical disputes. However
some of these exceptions are subject to mandatory conciliation under the UNCLOS
II regime. According to article 297(3b) that in the disputes related; to the
management of living resources in EEZ or fishing mandatory conciliation is
required.[12]
However the mandatory conciliation mechanism does not provides binding
decisions. The main reason for its compulsory nature is may be explained as to
put pressure on the states in order to prevent arbitrary acts. According to
Natalie Klein; “Compulsory conciliation can be viewed as an appropriate
compromise in light of the broad discretionary powers granted to coastal states
and the lack of substantial law on particular question.”[13] On the other hand Article 298 (1a), which is
discussed above, also requires compulsory conciliation. According to Judge
Rüdiger Wolfrum, the president of International Tribunal for the Law of the
Sea; “The fact that a State has excluded maritime delimitation disputes from
compulsory procedures by virtue of article 298, paragraph 1(a) of the
Convention does not mean that the dispute is entirely exempted from settlement
under the Convention The State concerned will be bound to refer the dispute to
compulsory conciliation.”[14]
CONCLUSION
It is also discussed above that the UNCLOS III with itself also
created an international court with compulsory jurisdiction arising from the
application of the convention. However in the dispute settlement mechanisms, it
is also clearly discussed that UNCLOS III provide a very flexible environment
to the state parties for their choice on the settlement of disputes. Nonetheless this flexibility can be rationalized
when one considers the huge application area of the convention. One of the main
significance of the convention is the creation of ITLOS. Main function of the
International Tribunal for the Law of the Sea is ‘to adjudicate disputes
arising out of the interpretation and application of the Convention.’[15]
However the flexibility of choice between the parties among the determined
forums and conditions to exhaust the remedies provided under section I, clearly
limits the adjudication of the tribunal created by the convention itself.
However this does not reduces the significant of the tribunal. For example in
comparison to the International Court of Justice, the tribunal have more
expertise composition. According to Alan Boyle;
“Most obviously, the composition of the Tribunal is different. The
judges must have ‘recognised competence in the field of the law of the sea’
.They may thus have greater expertise in that area than some judges of the
Court”[16]
Another important example may be, as discussed above, access to the
tribunal is also open to the entities else than states. This feature provides
the tribunal with an important distinction than such adjudication of the
International Court of Justice. Article
20 of the convention states that: “The Tribunal shall be open to entities
other than States Parties in any case expressly
provided for in Part XI or in any case submitted pursuant to any other
agreement conferring jurisdiction on the Tribunal which is accepted by all the
parties to that case.”[17]
REFERENCES
- Peter Malanczuk, Akehurst’s Modern Introduction to International Law, (7th ed.) , London: Routledge, 1997
- Klein Natalie, “Dispute Settlement in the UN Convention on the Law of the Sea”, Cambridge: Cambridge University Press, 2005
- Alan E. Boyle Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction, International and Comparative Law Quarterly, 1997; 46: 37 - 54.
- H.E. Judge Rüdiger Wolfrum, The competence of the Tribunal in maritime delimitation cases, New York, [online] 23 October 2006 ttp://www.itlos.org/news/statements/Wolfum/Wolfrum%20Statement%20Legal%20Advisors%2023.10.06%20E.doc, accessed on 12-12-2007
- United Nations Convention on the Law of the Sea of 10 December 1982
- Statute of the International Tribunal for the Law of the Sea
- International Tribunal for the Law of the Sea General Information – Overview - Introduction [Online] 26.11.2002, http://www.itlos.org/start2_en.html, accessed on 12-12-2007
[1] Klein Natalie, “Dispute
Settlement in the UN Convention on the Law of the Sea”, Cambridge:
Cambridge University Press, 2005, p 30
[2] Klein Natalie, “Dispute Settlement in the UN Convention on the Law
of the Sea”, Cambridge: Cambridge University
Press, 2005, p 31
[3] Klein Natalie, “Dispute Settlement in the UN Convention on the Law
of the Sea”, Cambridge: Cambridge University
Press, 2005, p 32
[4] Klein Natalie, “Dispute Settlement in the UN Convention on the Law
of the Sea”, Cambridge: Cambridge University
Press, 2005, p 26
[6] United Nations Convention on the Law of the Sea of 10 December
1982, Art 287
[7] Klein Natalie, “Dispute Settlement in the UN Convention on the Law
of the Sea”, Cambridge: Cambridge University
Press, 2005, p 52
[8] Klein Natalie, “Dispute Settlement in the UN Convention on the Law
of the Sea”, Cambridge: Cambridge University
Press, 2005, p 53
[9]International Tribunal for the Law of the
Sea General Information – Overview -
Introduction [Online] 26.11.2002, http://www.itlos.org/start2_en.html,
accessed on 12-12-2007
[10] Peter Malanczuk, Akehurst’s Modern
Introduction to International
Law, (7th ed.) , London: Routledge, 1997, p.300
[11]Peter Malanczuk,
“Akehurst’s Modern Introduction to
International Law”, (7th ed.) , London: Routledge, 1997, p.300
[12] United Nations Convention on the Law of the Sea of 10 December 1982,
Art 297
[13] Klein Natalie, “Dispute Settlement in the UN Convention on the Law
of the Sea”, Cambridge: Cambridge University
Press, 2005, p 122
[14]H.E. Judge Rüdiger Wolfrum, The competence
of the Tribunal in maritime delimitation cases, New York, [online] 23 October 2006 ttp://www.itlos.org/news/statements/Wolfum/Wolfrum%20Statement%20Legal%20Advisors%2023.10.06%20E.doc,
accessed on 12-12-2007
[15] International Tribunal for the Law of the Sea General Information –
Overview - Introduction [Online]
26.11.2002, http://www.itlos.org/start2_en.html,
accessed on 12-12-2007
[16] Alan E. Boyle Dispute Settlement and the
Law of the Sea Convention: Problems of Fragmentation and Jurisdiction,
International and Comparative Law Quarterly, 1997; 46: 37 - 54.
[17] Statute of the International Tribunal for
the Law of the Sea, Art. 20
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