ABSTRACT
The article has been divided into 2 parts, the former being a brief study about the history and formation of the United Nations Convention on the Law of the Sea (UNCLOS) and the latter being a brief discussion cum overview about the mandatory settlement procedure as provided under Annex VII of the UNCLOS treaty. The article discusses the subject matter of the negotiations held at the UNCLOS I, UNCLOS II and UNCLOS III conferences, which had been organized by the United Nations, and which ultimately led to the formation of a comprehensive text regarding the settlement of disputes arising out of the Law of the Seas. The UNCLOS treaty provides for a mandatory dispute settlement procedure involving arbitral proceedings under Annex VII of the treaty, whose award is binding on the parties. The article discusses the various provisions under Annex VII of the treaty, mainly regarding the constitution of the arbitral tribunal, the jurisdiction of the tribunal and also the nature and enforcement of the award rendered by the honourable tribunal. The article also mentions the landmark Saiga Case decided by the arbitral tribunal.
Historical Aspect of UNCLOS
The United Nations General Assembly convened the first Conference on the Law of the Sea (UNCLOS I) in Geneva (Switzerland), in the year 1958, where the drafts of the articles that the International Law Commission (THELC) had prepared were submitted. The negotiations began on February 24 and April 29, 1958, which led to the signing of the four LOS Conventions, which were suitable to regulate different areas of the law of the sea.
At that time, the UNCLOS I negotiations were considered a great success, but failing to find an agreement, the question of the extension of territorial waters was left unanswered, while the obligatory nature of the instruments for the settlement of disputes remains subject to the ratification of the optional protocol, which the State party to one or more conventions is free to adopt[1].
The Second United Nations Conference on the Law of the Sea (UNCLOS II) was then convened in 1960, mainly to reach an agreement on the question of extension of territorial waters, but even after six weeks of negotiations, no amicable solution could be reached by the parties leading.The General Assembly then convened the first session of negotiations of the Third Conference on the Law of the Sea (UNCLOS III) in 1973 in New York (USA) with the aim of stipulating a new and reformed United Nations Convention on the Law of the Sea (UNCLOS)[2].
The main objectives aimed to be achieved through these negotiations, which in 1982 led to the signing of the new LOS Convention in its current and present form, were to obtain a single text that would encompass every aspect of the law of the seas, whose articles would be shared widely, in a manner to achieve wide acceptance of the text. Moreover, it would be considered a “Complete Package” which would either be ratified or rejected, as a whole by the state parties, without any reserve[3].
Reaching such results necessarily implied defining articles that would be a result of compromises, intrinsically ambiguous and that would give rise to disputes over their interpretations. A mechanism for the settlement of disputes therefore represents the glue that holds the Convention, moreover as the President of the Conference Amera Singhe, remarks in one of his memorandum: “Effective dispute settlement would also be the guarantee that the substance and intention within the legislative language of the convention will be interpreted both consistently and equitably”[4].
From the very first sessions it clearly emerged that in the interpretation and application of the articles that were being elaborated, disputes would arise over their interpretations. Differences could arise in relation to the increased powers and rights that the coastal states would claim as against other countries concerning the declaration of the parts in the seas, as the national jurisdiction of the coastal states[5].
Disputes could also arise about the powers and responsibilities conferred upon the new International Seabed Authority related to its dealings with the public and private entities involved in carrying out activities in the area of the seabed and its subsoil, beyond the limits of the national jurisdictions[6]. Controversies could also arise, not only from new or traditional uses of the marine environment, but also from unpublished concepts such as “human genre”, “common heritage” and “environment”, which had emerged during the negotiations of the articles of the UNCLOS, and had been added to the classic notions of nation and territory, typical of international law. Different state realities, with different obligations and rights would find themselves using the same spaces and this would be impossible without a set of rules in order to regulate their actions, at the same time making it necessary to develop new methods for resolving disputes that would arise between coastal states and the other nations that use the seas, in the interest of the international community[7].
In line with the common requirements of international law, if any such disputes arose, they would be resolved through peaceful means and in such a way that the rights of the contenders would receive adequate protection[8]. Although its importance was recognized, it did not seem realistic to expect that the Contracting States would accept this without any reservation, and would submit all the disputes arising from the interpretation or application of the convention to a particular international court so that it could judge their actions and finally issue a sentence binding on their future behavior. In the UNCLOS III negotiations, the delegates primarily considered the principles of general international law, codified in the Charter of the United Nations in order to ensure that all the parties to the agreement to be concluded would comply with the provisions of the agreement.
The Arbitration Procedure provided under Annex VII
The results of the lengthy negotiations on the “Settlement of Disputes” have been definitively crystallized in the articles of the fifth section of the XI part (Articles 186-191), dedicated to the solution of disputes arising out of the relations between one or more public or private entities and the Authority of the seabed, as well as in articles 279-298 integrated in part XV , addressed entirely the solution of disputes between States which, in turn, is made up of 3 sections:-
1. The First Section: General provisions (Articles 279 to 285), establish an obligation to resolve the disputes through the traditional peaceful methods contemplated by general international law, based on the agreement of the parties, set out in articles 2, 33 and 95 of the Charter.
2. The Second Section: Compulsory procedures leading to binding decisions” (Articles 286 to 296) specifies the procedures that the States will have to follow if there is no agreement on the choice of method of dispute resolution.
3. The Third Section:Limits and exceptions to the applicability of the second section (Articles 297 and 298) sets out the limits of the mandatory system outlined in the articles of the preceding section. These articles also lay “the foundations on which Annexes V, VI, VII and VIII are based.
Striving to find a synthesis, we observe how the truly significant Article is 287 and in particular its paragraphs 3 and 5, which guarantee a “residual jurisdiction” in order to settle a dispute, to an arbitration tribunal to be constituted pursuant to Annex VII.A Contracting State which is a party to a dispute not covered by a valid declaration shall be deemed to have accepted the arbitration in accordance with Annex VII.4.If the disputing parties have not accepted the same procedure for the resolution of the dispute, the dispute may only be submitted to arbitration in accordance with Annex VII, unless otherwise agreed upon by the parties[9].
The first article provides that one of the parties involved in the dispute may unilaterally submit it to an arbitration procedure, such as described in the annex, in order to obtain a binding sentence for both of them. To initiate the procedure, the party must send the other party a written note indicating the claim, the reasons that constitute its basis and the appointment of an arbitrator.The counter party then has30 days, from receipt of the communication to appoint a judge in turn, once the deadline has expired, the other party has two weeks to ask the President of the Court of International Law of the Sea (ITLOS) to appoint from a list of arbitrators that is maintained by the Secretary General of the United Nations.
Subsequently, the parties have 60 days to agree on the appointment of the three other arbitrators and if they fail to reach an agreement, at the request of one of them, the judges would be appointed by the President of the ITLOS, drawing on the same list. Article 9 adds a further element of default where it states that if one of the parties to the dispute decides not to attend the arbitration forum or does not defend its view of the case, the other party may ask the Court to continue the proceedings and draw conclusions [10] meaning that ex-parte consent is sufficient to reach the sentence which will have a definitive and binding character without the possibility of an appeal.
Each arbitrator may attach his opinion separately to the sentence, similar or contrary, and if disagreements arise regarding interpretation or implementation of the sentence, each of the parties may unilaterally submit the dispute to the same arbitral tribunal that previously had been strictly confined to the dispute. Before issuing its judgment, the Arbitral Tribunal must demonstrate not only that it has jurisdiction over the dispute but also that what is requested of it is well-founded in law [or admissible].
This sentence, read in conjunction with the provisions of article 294 (1) of the UNCLOS,to which a request relating to a dispute referred to in Article 297 is submitted, shall decide, at the request of a party or, it may decide ex officio, whether the appeal constitutes an abuse of law or if it prima facie founded. If the court finds that the appeal constitutes an abuse of legal remedies or that it is prima facie unfounded, it ceases to examine the application.
Arbitration pursuant to Annex VII of the UNCLOS therefore allows a certain control over the composition and precise timing, so much so that it is sometimes argued that the parties, if they want to reach a solution quickly, prefer to instruct an arbitration panel, which they would be able to direct why it is concluded within a certain date[11].
Nevertheless, it must be considered that, once established, all the procedures of the Arbitral Tribunal must be agreed between the parties and this can take a long time. On the merits, we can remember the Saiga case, which in 1997 saw Saint Vincent and the Grenadines opposed to Guinea. The parties despite starting the arbitration procedures, clashed with the real difficulties of defining a process shared and probably considered the rising costs of the mechanism, thus they agreed to refer the dispute to ITLOS[12].
In this context, the fifth paragraph of article 290 on precautionary measures is therefore particularly interesting, where it allows ITLOS to adopt, modify or revoke interim measures if it considers prima facie that the competent court will establish itself, pending its formal constitution, perfects the procedures ensuring, pursuant to article 5 of Annex VII, that all the parties involved can present their own views on the case, and arrive at issuing their own judgment.
References:
1. The optional protocol reserved to the International Court of Justice the task of settling disputes between the States regarding the interpretation or application of the Conventions, which was also signed in Geneva (Switzerland) on 29 April 1958 and entered into force on 30 September 1962.
2. The United Nations Convention on the Law of the Sea (UNCLOS) was provisionally adopted on April 30, 1982 and opened for ratification on December 10, 1982. Also in this specific case (as for the previous ones that covered the same area) it is alargely acknowledgment of the customary law. UNCLOS entered into force on 16 November 1994 and in January 2016 it was ratified by 166 States and an international organization of a supranational nature, the European Union.
3. ALAN E. BOYLE, Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction , in International and Comparative Law Quarterly , Volume 46,January 1997, pp 37-54.
4. HAMILTON SHIRLEY AMERASINGHE, Para. 6, in doc: A/CONF.62/WP.9/ADD.1, Memorandum by the President of the Conference on document A/CONF.62/WP.9, in Third United Nations Conference on the Law of the Sea, Official Records Vol. V , 31 March 1976.
5. ROSEMARY RAYFUSE,The future of compulsory dispute settlement under the Law of the SeaConventioninVictoria University of Wellington Law Review Journal 36, New Zealand, 2005, pp.683-711.
6. THOMAS A. MENSAH, The Dispute Settlement Regime of the 1982 United NationsConvention on the Law of the Sea , in Max Planck Yearbook of United Nations Law , 1997, pp. 307-323.
7. WILLEM RIPHAGEN, in doc: A/CONF.62/SR.60, 60th Plenary debate on Settlement ofdisputes (continued), in Third United Nations Conference on the Law of the Sea, Official Records,Vol. V,Tuesday 6 April 1976, p. 21.
8. Supra
9. Article 287 (3) and (5),UNCLOS.
10.Article 9 Annex VII UNCLOS.
11.ANTHONY AUST, Peaceful Settlement of Disputes: a Proliferation problem? , in Law of theSea, Environmental Law and Settlement of Disputes, Netherlands, 2007, pp. 131-141.
12.ITLOS, M/V SAIGA CASE (No. 2),Saint Vincent and the Grenadines v. Guinea, 1999.
BIBLIOGRAPHY
ALAN E. BOYLE, Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction, in International and Comparative Law Quarterly , Volume 46, January 1997.
Memorandum by the President of the Conference on document A/CONF.62/WP.9, in Third United Nations Conference on the Law of the Sea, Official Records Vol. V.
ROSEMARY RAYFUSE, The future of compulsory dispute settlement under the Law of the Sea Convention in Victoria University of Wellington Law Review Journal 36, New Zealand.
THOMAS A. MENSAH, The Dispute Settlement Regime of the 1982 United Nations Convention on the Law of the Sea , in Max Planck Yearbook of United Nations Law , 1997.
ALAN E. BOYLE, Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction , in International and Comparative Law Quarterly , Volume 46, January 1997.
About the author –
This article is authored by Varun Aryan Sharma, 3rd year B.com.LLB (Hons.) student at University Institute of Legal Studies, Panjab University
