Maritime boundary disputes pose the most dangerous potential for conflict between States. Article 298 of UNCLOS was designed as a safety valve to allow exclusion of sensitive disputes arising out of contested maritime boundaries—but also to provide a safety net for peaceful resolution of all UNCLOS disputes. This paper offers views on four questions which remain unresolved. First, may States exclude obligations of restraint and cooperation under Articles 74(3) and 83(3) of UNCLOS from compulsory dispute settlement by an Article 298 declaration? Second, for submission to compulsory conciliation, what criteria should be used to decide if the dispute arose subsequent to the entry into force of UNCLOS? Third, does a court, arbitral tribunal or conciliation commission have jurisdiction to consider ‘mixed disputes’ involving land sovereignty or other rights? Fourth, what is the meaning of “shall, by mutual consent”—when conciliation fails to reach an agreement, are the parties bound to refer their dispute back to compulsory third party dispute settlement under section 2 of Part XV of UNCLOS?
The general principle governing dispute settlement in the United Nations Convention on the Law of the Sea (unclos)1 is that if a dispute between two parties on the interpretation or application of a provision in the convention cannot be resolved through negotiation, either party may unilaterally invoke the compulsory binding dispute settlement procedures in Section 2 of Part xv. Because maritime boundary disputes raise sensitive issues of sovereignty, unclos contains an exception which permits States Parties to declare that they do not accept the compulsory binding dispute settlement procedures for disputes on the interpretation or application of the provisions of unclos on the delimitation of maritime boundaries.2
Although unclos has been in force for more than 20 years, it is only recently that State Parties have begun to invoke the compulsory binding dispute settlement procedures in Part xv for the compulsory settlement of maritime boundary disputes. Several recent cases have interpreted and developed the provisions in unclos relating to compulsory dispute settlement procedures for maritime boundary disputes, including the Philippines v. China arbitration.3 In addition, the unclos conciliation process instituted by Timor Leste against Australia in 2016 raises interesting issues on provisions in unclos on the referral of certain types of maritime boundary disputes to compulsory non-binding conciliation.4 The decisions of courts and tribunals in these cases are likely to make the rules and procedures more clear and certain, which could result in more cases being instituted.