Peaceful settelment of disputes under the United Nations Convnetion on the Law of the Sea

Peaceful settelment of disputes under the United Nations Convnetion on the Law of the Sea

Olena Ptashenchuk

Attorney at Law,
2014-2015 Fellow of the ITLOS-Nippon Capacity-building and Training Programme on Dispute Settlement under UNCLOS

Economic and legal aspects of the effective functioning of the maritime transport industry: monograph. Under the general ed. D.Eng.Sc., Prof. Miyusov M., D.Sc.Economics, Prof. Primachev N., D.J.S., Prof. Shemyakin O. - Odessa: NU "OMA", 2017. - 315 p. – from p. 280.

This article focuses on analysis of the progressive dispute-settlement mechanism embodied in the United Nations Convention on the Law of the Sea. Special attention is given to the general international law principle of peaceful settlement of international disputes and its reflection in the procedures under consideration. The research is based on the relevant conventional provisions and judicial practice.
Key words: law of the sea, peaceful settlement of international disputes, the United Nations Convention on the Law of the Sea
.

Problem statement. The United Nations Convention on the Law of the Sea was adopted in 1982 [1]. The dispute settlement provisions have formed the essential integral part of the newly established conventional regime. Being of voluntary and compulsory character these procedures aim at finding the balance between the effective resolution of the law of the sea disputes and wider incorporation of the conventional provisions by States Parties. This balance is of vital importance for reaching a compromise in the numerous law of the sea disputes which remain unsettled or continue to occur between States leading to tense conflicts on the international arena. Therefore, the flexible dispute settlement mechanism embodied in the Convention is seen as a positive development and proved to be of high interest nowadays.;
Objectives of the article, setting of tasks. This article provides an analysis of the flexibility of the dispute settlement procedures contained in the United Nations Convention on the Law of the Sea. The research embraces historical evolution of the basic principle of peaceful settlement of international disputes and its actual reflection in the relevant provisions of the Convention.
Analysis of the latest research and publications. There is a wide variety of bibliography on the settlement of disputes concerning the law of the sea. Different aspects of the research topic in question have been addressed in publications of the following international law scholars and experts: Chakraborty A., Rao Ch. P., Gautier Ph., Klein N., Anderson D. H., Boyle Al. E., Churchill R., Kolodkin A. L., Mensah Th. A., Wolfrum R., Kulyk M., Karaman I., etc. This significant theoretical input is aimed at the comprehensive analysis of the available dispute-settlement schemes and mechanisms as well as international judicial practice and pending cases in the law of the sea field.
Body of the article. Since the end of the XIX century procedures for the settlement of international disputes have been based on the ‘peaceful settlement’ principle. The primary international legal instruments comprise inter alia the International Conventions for the Pacific Settlement of Disputes adopted in the Hague in 1899 and 1907 [2]. Both documents relied on arbitration, good offices, mediation, inquiry and conciliation as the preferable mechanisms for international conflicts resolution.
Later, members of the League of Nations in Article 12 of the Covenant of the League of Nations institutionalizing international adjudication agreed that, ‘if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council’ [3]. The General Act for the Pacific Settlement of International Disputes of 1928 [4] as revised in 1949[5] addressed diplomacy and conciliation procedure thereupon.
The provisions of the Charter of the United Nations (hereinafter the Charter) are considered to be broader and clearer in this respect. In the Preamble and Article 2 (3), (4) of the Charter it is expressly stated that all Members shall settle their international disputes by peaceful means refraining from the threat or use of force in their international relations by such a manner that not only international peace and security are not in danger but also justice. In Article 33 (1) of the Charter this provision is elaborated by the way of emphasizing the obligation of the parties to seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice [6].
Subsequently, the principle of the peaceful settlement of disputes has been reaffirmed in a number of General Assembly Resolutions, the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 1970, the Manila Declaration on the Peaceful Settlement of International Disputes, 1982, the Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in this field, 1988 and the Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security, 1991 [7, p. 3-4].
The separate provisions of the Helsinki Final Act, 1975 also emphasize the importance of peaceful settlement of disputes between European States [8].
Being of the general character the abovementioned procedures were used as a central point for the recent establishment of dispute settlement mechanisms under specific treaty regimes. One of such particular examples is provided for by the United Nations Convention on the Law of the Sea 1982 (hereinafter the UNCLOS).
With this respect it is worth to mention that States for the first time agreed on the procedures for the settlement of the law of the sea disputes in 1958 at the First United Nations Conference on the Law of the Sea. Settlement of fishery disputes was regulated by the Convention on Fishing and Conservation of the Living Resources of the High Seas, 1958[9] while settlement of all other disputes ‘arising out of the interpretation or application of any Convention on the Law of the Sea of 1958’ fell under the procedures of the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes [10]. However, the fact that none of these procedures proved to be effective led to the elaboration of the new dispute settlement mechanism within the UNCLOS regime.
Thus, pursuant to Article 279 of the UNCLOS any dispute between States Parties concerning the interpretation or application of the Convention shall be settled in accordance with Article 2 (3) of the Charter by peaceful means indicated in Article 33 of the Charter which list is not exhaustive.
At the same time, according to Articles 280, 281 of the UNCLOS none of the aforementioned means is compulsory as well as no preference is given to any of them. Parties may agree at any time, even after the procedure offered by the Convention has been actually commenced, to settle a dispute between them by other peaceful means of their own choice. The procedures provided for in Part XV of the UNCLOS apply only where no settlement has been reached by recourse to such means, the agreement between the parties does not exclude any further procedure and the time-limit if such was agreed on by the parties has expired.
In cases when parties to a dispute cannot find consensus on the further possibility by the chosen means to reach the dispute final settlement the tribunal if it is addressed has to decide on this matter [11, p. 47-48].   
Moreover, Article 282 prescribes that if parties to a dispute have agreed to submit the dispute to a settlement which entails a binding decision, such procedure shall apply in lieu of the procedures provided for in Part XV, unless the parties otherwise agree.
In any instance, following Article 283 of the UNCLOS when a dispute concerning the interpretation or application of the Convention arises the parties shall ‘proceed expeditiously to an exchange of views’ regarding peaceful means of its settlement. The same way the views have to be exchanged between the parties when the settlement of a dispute has been terminated prior reaching a positive result or circumstances require consultation regarding the manner of implementing the settlement already reached. In other words, Article 283 embraces provisions that oblige States parties to a dispute to negotiate on the specific means to be used for its settlement or implementation of the resolution already achieved. According to the International Court of Justice States are under the obligation to conduct ‘meaningful’ negotiations ‘with the view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition’[11, p. 47].
The dispute may also be submitted to conciliation according to the rules of Article 284.
In general, the abovementioned procedures are considered to be voluntary. Pursuant to Article 285 of the UNCLOS they inter alia apply to any dispute with respect to activities in the Area as well as mutatis mutandis to any dispute to which an entity other than a State Party is a party. Thus, relying on Article 279 it may be concluded that the means indicated in Article 33 (1) of the Charter are applicable to disputes arisen between non-State entities as well as between such entities and States on the interpretation or application of the Convention.
Another progressive procedure was adopted in Section 2 of Part XV. Thus, pursuant to Article 286 any dispute concerning the interpretation or application of the UNCLOS, where no settlement has been reached by recourse to the abovementioned provisions, shall be submitted at the request of any party to a dispute to the court or tribunal having jurisdiction under this section. The relevant dispute settlement procedure is compulsory and entails binding decision. It can be invoked without necessity to conclude any additional agreement between the parties to a dispute, and the final decision may be rendered despite nonparticipation of the other party in the proceedings[12, p. 4-5, 12-14].
Nevertheless, the provisions of Section 2 are not absolute. Their application is limited subject to provisions of Articles 280-283 of the UNCLOS which entitle parties at their discretion to choose other peaceful means of dispute settlement and Section 3 of Part XV which gives the opportunity to exempt certain categories of disputes from the compulsory jurisdiction of the courts and tribunals under  Section 2.
Moreover, Article 287 provides options with regard to the choice of procedure.  Parties to the Convention upon submitting a declaration are allowed to select a court or tribunal they prefer from the following list: the International Tribunal for the Law of the Sea (hereinafter the ITLOS), the International Court of Justice (hereinafter the ICJ), an arbitral tribunal constituted in accordance with Annex VII or a special arbitral tribunal constituted in accordance with Annex VIII for specified categories of disputes. Respective declaration can be submitted by a State Party when signing, ratifying or acceding to the UNCLOS or any time thereafter.
In those cases when parties to a dispute have selected different procedures or one of the parties concerned has not submitted any declaration, arbitration under Annex VII was chosen to be an alternative. Otherwise, a dispute has to be submitted to the commonly agreed procedure. In every instance, the choice of procedure under Article 287 shall not affect the obligation of States Parties to accept the jurisdiction of the Seabed Disputes Chamber of the ITLOS pursuant to Part XI, Section 5 of the UNCLOS.
Whatever choice is made, a court or tribunal referred to above shall have jurisdiction over any dispute concerning the interpretation or application of the UNCLOS or of an international agreement related to the purposes of the UNCLOS, which is submitted to it in accordance with the agreement between parties to a dispute, that actually extends the scope of dispute settlement mechanism of the Convention comparing to provision of Article 279. In the event of a dispute with respect to the jurisdictional matters this issue has to be decided by the court or tribunal in question (Article 288). The ITLOS pending case Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC) is an illustrative example that addresses jurisdictional matters of the court [13].
In accordance with Article 290 the recognition of prima facie jurisdiction of one the courts or tribunals considered above may also be used as a basis for provisional measures prescription. For this purpose the urgency of the situation is crucial. Moreover, the relevant measures have to be requested solely by a party to a dispute and after the parties have been given an opportunity to be heard. Finally, provisional measures shall be aimed at preservation of the respective rights of the parties to the dispute or prevention of serious harm to the marine environment, pending the final decision [14] including those of the later constituted arbitral tribunal [15, p. 23].
The prescription of provisional measures has to be distinguished from the procedure of the prompt release of vessels and crews addressed in Article 292 of the UNCLOS.  Thus, prompt release procedures may be initiated by the flag State [16] or on its behalf [17] when detention was exercised under Articles 73 (2), 220 (7) and (8), 226 (1) "b" and "c" of the UNCLSO. With this question any court or tribunal agreed upon the parties may be addressed unless parties failed to reach such agreement within 10 days from the time of detention. In this event a court or tribunal accepted by the detaining State under Article 287 or the ITLOS will have jurisdiction of compulsory nature. In any case, the release shall be conducted without prejudice to any merits of the case and only upon the posting of reasonable bond or other financial security determined by the court or tribunal.
Parties to a dispute shall also take into account general provisions of Articles 291, 293, 295 and 296 of the UNCLOS.
Thus, all the dispute settlement procedures specified in Part XV of the UNCLOS are opened to States Parties as well as to entities other than States Parties when specifically provided for in the Convention (see Article 187, Article 37 of Annex VI, Article 13 of Annex VII, Article 4 of Annex VIII and Annex IX).
Law applicable by the respective courts and tribunals shall comprise not only the UNCLOS but also other rules of international law not incompatible with the conventional provisions. Moreover, if parties so agreed the courts and tribunals are entitled to decide a case under their jurisdiction ex aequo et bono. Incorporation of this possibility into the UNCLOS dispute settlement procedures was based on Article 38 (2) of the Statute of the ICJ. Additional provisions on the applicable law appear in Article 21 of Annex III and Articles 24, 38 of Annex VI of the Convention.
In any events, the above analyzed dispute settlement procedures shall be invoked only after exhaustion of local remedies where this is required by international law. Exceptions are, for instance, when there is no adequate local remedy available in the State concerned, the dispute is of the purely interstate character or the procedure of the prompt release of vessels and crews shall be exercised pursuant to Article 292 of the UNCLOS. In these cases no exhaustion of local remedies is required.
As a result of dispute resolution a court or tribunal renders a decision which is considered to be final and binding between the parties in respect of this particular case.
However, not all disputes concerning interpretation and application of the UNCLOS are subject to the compulsory dispute settlement procedures of Section 2 entailing binding decision. The relevant exclusions and exceptions are contained in Articles 297 and 298.
Thus, Article 297 while guaranteeing protection of the basic freedoms and rights over the sea and other its uses under Section 2 of Part XV completely excludes number of disputes in the field of marine scientific research and fisheries from this compulsory adjudication leaving parties to a dispute with the right in these cases to invoke either Section 1of Part XV or conciliation procedures.
In its turn, Article 298 entitles States Parties at the time of signing, ratifying, acceding to the UNCLOS or any time thereafter to declare exceptions to applicability of Section 2 of Part XV towards the settlement of particular disputes relating to maritime delimitations, historic bays or titles, military and law enforcement activities as well as disputes in respect of functions of the Security Council of the UN assigned by the Charter of the UN. Such declarations shall be made in writing and be deposited with the Secretary-General of the UN. After excepting on the basis of Article 298 a particular category of dispute such State Party loses its right to bring to compulsory adjudication such category of dispute against any other State Party even when the later has not made any similar declaration.
Moreover, not all of the exceptions under Article 298 are absolute. Disputes under subparagraph 1 (a) of this article if excepted are still subject to compulsory conciliation procedures. At the same time all three categories of disputes addressed as optional exceptions in Article 298 remain subject to Section 1 of Part XV.
It is also important to emphasize that the validity and applicability of these exceptions shall not be judged by States Parties themselves but shall be thoroughly considered and decided upon by the relevant court, tribunal or conciliation commission in every case under consideration (see Article 288 (4) and Article 13 of Annex V).
In any event, pursuant to the provisions of Article 299, derived from the general rule of Article 280, any dispute excluded or excepted under Articles 297 and 298 may still be submitted to compulsory adjudication or any other peaceful dispute settlement procedure by an agreement of the parties to a dispute.
In addition, the UNCLOS contains provisions regarding the settlement of disputes in Articles 186 – 191, 264, 265, Annexes V, VI, VII, VIII and Article 7 of Annex IX. They also have to be considered thoroughly if any relevant dispute arises or particular judicial body is chosen for deciding on a case.
Conclusions. The adoption of the UNCLOS is a significant development in the settlement of the law of the sea disputes which relies on justice, peace and security. As an innovation, the Convention provides for dispute settlement procedures not only of consensual but also of compulsory nature. Aiming at the specialization of international adjudication, on the basis of the UNCLOS provisions a new international tribunal was established, i.e. the ITLOS. Moreover, certain dispute-settlement schemes embodied in the Convention apply to disputes which involve not only States but also other entities such as, for instance, international organizations parties to the Convention, International Seabed Authority and seabed mining contractors. In principle, a wide choice of forum and flexibility of the procedures offered by the UNCLOS if applied truly strengthen cooperation and friendly international relations among States Parties.

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26 February, 2018
Ukrainian maritime bar association