The Dispute Settlement Regime of the 1982 United Nations Convention on the Law of the Sea

in Max Planck Yearbook of United Nations Law Online
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2 Statement reproduced in Doc. A/CONE62/WP9/Add.l, para. 6. Third United Nations Conference on the Law of the Sea, Official Records, Vol. 5, 112. 3 "... international law is still in large part a system of auto-interpretation in which the unqualified acceptance by States of the obligation to submit their disputes to a binding form of third-party settlement is still highly exceptional", E.D. Brown, "Dispute settlement and the Law of the Sea: the UN Convention regime", Mar. Pol'y. 21 (1997), 17 et seq., (18). On the attitude of States to "third-party adjudication'' in general see O. Schachter, "International Law in Theory and Practice", RdC 178 (1982), 21 et seq. Also R. B. Bilder, "International Third Party Dispute Settlement", Den. J. Int'l L. FT Pol'y 17 (1989), 471 et seq., (489-490). 4 Charter of the United Nations, Article 33 para. 1.

5 Article 280. 6 "The world community's interest in the peaceful settlement of disputes ... has been advanced by the Mandatory System of Dispute Settlement of the Convention": T.T.B. Koh, "A Constitution for the Oceans", State- ments of the President of the Conference on 6 and 11 December 1982. Reproduced in: The Law of the Sea: The United Nations Convention on the Law of tbe Sea, United Nations Publication, xxxiii. See also A.O. Ad- ede, The System for Settlement of Disputes Under the United Nations Convention on the Law of the Sea, 1987, 240 et seq. 7 Arts. 279 to 285 of the Convention. 8 Arts. 286 to 296. 9 Arts. 297 to 299. 10 Article 279.

11 Article 284. 12 Annex V, article 7 para. 2. 13 Article 282.

14 Article 296 of the Convention provides that a decision of a court or tribunal having jurisdiction under the Convention "shall be final and shall be complied with by all the parties to the dispute". i5 Article 318 of the Convention. 16 See note 3.

17 "The dispute settlement procedures of the Convention are flexible, in that Parties have options as to the appropriate means and fora for resolution of their disputes, and comprehensive in that the bulk of Conventions provisions can be enforced through binding mechanisms; and accommo- dating of matters of vital national concern, in that they exclude certain sensitive categories of disputes ... from binding dispute settlement ...", Message from the President of the United States Transmitting the United Nations Convention on the Law of the Sea etc.... to the Senate of the United States, US Government Printing Office, 1994, Commentary, 83. 18 Article 287 para. 1, lit. (c) and (d). 19 Annex VII, article 1. 20 Annex VIII, article 1. 21 Annex VII, article 3; and Annex VIII, article 3.

22 Annex VII, article 2. 23 Annex VII, article 3 lit. (d), (e). za Ibid. 25 These organizations are listed in article 2 of Annex VIII. They are, for fisheries the FAO; for the protection and preservation of the marine environment the UNEP; for marine scientific research the Intergovern- mental Oceanographic Commission (IOC); and for navigation, including the prevention of marine pollution from vessels and by dumping the IMO. 26 Annex VIII, article 3.

27 Article 287 para. 1. z8 Ibid., para. 7. 29 Article 287 para. 3 states that '`a State Party which 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"; and para. 5 of the same Article states that "If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree". 30 Article 297 para. 1, lit.(a).

31 Ibid., lit.(b). 32 Ibid., lit.(c). 33 Article 297 para. 2. 34 Ibid., para. 3. 35 Article 298 para. 1 lit.(a). 36 Ibid., para. 1 lit.(b). 3� Ibid., para. 1 lit.(c). 38 See article 297 paras 2 lit.(b) and 3 lit.(b), and article 298 para. 1 lit.(a)(i).

39 The jurisdiction of the Sea-Bed Disputes Chamber are set out in the body of the Convention (Part XI, Section 5 — arts 186 to 191) as well as in the Statute of the Tribunal (Annex VI to the Convention). 40 Para. 2 of article 187 makes it clear that the jurisdiction of the Chamber in respect of these categories of disputes does not depend on the choice of procedure under that article. The paragraph reads: "A declaration made under paragraph 1 shall not affect or be affected by the obligation of the State Party to accept the jurisdiction of the Sea-Bed Disputes Chamber of the International Tribunal for the Law of the Sea to the extent and in the manner provided for in Part XI, Section 5". 41 Article 187 para. (a). 42 Article 187 para. (b).

43 Article 187 para. (c). 44 Article 187 para. (d). 45 Article 187 para. (e). 46 Article 137 para. 2.

47 Article 191.

48 Article 290 para. 6. This is another area in which the jurisdiction of the Tribunal differs from that of the ICJ. See S. Rosenne, "The International Tribunal for the Law of the Sea and the International Court of Justice: Some Points of Difference", in: R. Platzoder and P. Verlaan (eds), The Baltic Sea: New Developments in National Policies and International Cooperation, 1996, 200 et seq. 49 Article 292 para. 1. so Ibid., para. 2.

51 Article 34 para. 1 Statute of the International Court of Justice. 52 On the general subject of the differences between the Tribunal and the ICJ reference may be made to Rosenne, see note 48. Also A. Boyle, "The Proliferation of International Jurisdictions and its implications for the Court", in: Bowett and others (eds), The International Court of Justice: Process, Practice and Procedure, The British Institute of International and Comparative Law, Public International Law Series ,1997, 124 et seq.

53 Article 288 para. 2. But even this limitation is questioned by some com- mentators. See Boyle, see note 52, 129: "... the conclusion I have to come to is that there is a potential for the Tribunal, by agreement of the parties, ... to hear a relatively broad range of disputes, not necessarily or exclu- sively concerned with Law of the Sea". 5a See note 52.

15 On the need to bring "non-state actors" in the international arena within the jurisdiction of international courts, see J. Crawford, "The Interna- tional Court of Justice, Judicial Administration and the Rule of Law", in: Bowett , see note 52. 56 United Nations Charter, Article 2 para. 3.


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