2.1 Background to Part ix

During the Preparatory Committee (PrepCom) meetings in 2016 and 2017, dispute settlement was discussed and delegations proposed a variety of options. It is clear from the reports of the Chair that views on the appropriate dispute settlement process varied.⁹ Proposals included adopting Part xv of unclos mutatis mutandis following the unfsa model, creating a new process requiring State consent for each dispute, creating a special chamber of itlos, or using regional dispute settlement mechanisms.¹⁰

Dispute settlement was not discussed in the first sessions of the igc as time was devoted to the four substantive elements of the package and big picture aspects of the institutional framework. It was not until igc3 onwards that dispute settlement was directly addressed, and only in a fairly brief way. At igc 5 and 5bis,¹¹ the President appointed Victoria Hallum of New Zealand as Facilitator to assist in moving delegates to a consensus outcome for Part viii on Implementation and Compliance and Part ix on Dispute Settlement.

Although discussions on dispute settlement were scant in the early sessions, the President did include draft dispute settlement provisions in the early draft texts. These were modelled on some provisions of the unfsa.¹² As in unfsa, the draft provisions applied Part xv of unclos to the Agreement mutatis mutandis (with the necessary changes). Mutatis mutandis was considered a short-hand to mean that the dispute settlement procedure of unclos applies to disputes arising under the Agreement without setting out a whole new dispute settlement process.¹³

When the Further Revised Text¹⁴ was issued in June 2022, provisions had been added addressing prevention of disputes,¹⁵ disputes of a technical nature,¹⁶ provisional arrangements and advisory opinions. Some of these provisions mirrored text in other treaties, most notably unclos and the unfsa.

At igc3, some delegations had called for a provision in the dispute settlement chapter that would allow the Conference of the Parties to the Agreement (cop) to request an advisory opinion from the International Tribunal for the Law of the Sea (itlos). This appeared in Part ix of the Further Revised Text, but was subsequently moved to article 47 that addressed the cop’s mandate.

During igc3 some States called for options that required State consent for dispute settlement. This led to the inclusion in the Further Revised Text of Option ii for article 60 which focused on the settlement of disputes by negotiation and States had to opt in to compulsory jurisdiction. A third option for article 60 was introduced by China during IGC5bis and included in the Updated Draft Text.¹⁷ This option allowed for third-party dispute settlement only if all parties to the dispute agreed. These options are discussed further below.

Attempts to get agreement on the dispute settlement provisions continued through to the negotiations in the final hours of IGC5bis.

2.2 Voluntary v Compulsory Dispute Settlement

The frt contained two options for article 60. The first version referred to compulsory dispute settlement under Part xv of the Convention, as already discussed. The second version, Option ii, provided for a somewhat independent process. A State could, on accession to the Agreement, declare that it accepted compulsory jurisdiction under arbitration, the International Tribunal for the Law of the Sea (itlos) or the International Court of Justice (the icj). A bracketed paragraph directed that if one or both of the States involved had not selected this option, then the dispute could be submitted to conciliation. This option allowed States to avoid compulsory jurisdiction, but kept open a possibility of a dispute being sent to conciliation, although the conditions on which this would be done were not clear.

Option ii was initially supported by some non-Parties to unclos as well as those who were concerned about the implications of compulsory dispute settlement.¹⁸ China made its own proposal in Option iii, discussed below. One or two delegations resisted the removal of Option ii until the end of the process. However, little active discussion of Option ii occured at igc 5bis.

Instead, attention focused on the proposal that China made during IGC5bis. This was referred to as Option iii in the Updated Draft Text (udt)¹⁹ released on 24 February 2023. This proposal was as follows:

1. 1.State Parties to this Agreement shall settle any dispute between them concerning the interpretation or application of this Agreement through friendly consultations and negotiations.
2. 2.In cases where no settlement has been reached by recourse to paragraph 1, any dispute concerning the interpretation or application of this Agreement may be submitted, with prior and explicit consent, on a case-by-case basis, given by all States that are parties to such a dispute, to judicial settlement, arbitration, mediation, conciliation or any other third-party dispute settlement mechanism.
3. 3.In any case, this Article shall not apply to any dispute concerning the land territory, sovereignty, sovereign rights or jurisdiction of a State Party to this Agreement. No action or activity taken on the basis of the Agreement will be construed or considered to be prejudicial to the positions of States Parties to a land, insular or maritime sovereignty dispute or to a dispute concerning the delimitation of maritime areas.
4. 4.Subject to paragraphs 1, 2 and 3 of this Article, the provisions relating to the settlement of disputes set out in Part xv of the unclos may apply mutatis mutandis to any dispute between States Parties to this Agreement and to the Convention concerning the interpretation or application of this Agreement.

Although paragraph 4 of the proposal referred to Part xv applying ‘mutatis mutandis’, this application was subject to the previous paragraphs. Paragraph 2 made it clear that the proposal ruled out compulsory jurisdiction for binding dispute settlement, as it required ‘prior and explicit consent’ for such dispute settlement to proceed. The proposal therefore was seen as removing compulsory dispute settlement from disputes arising under the Agreement. The new proposal did not receive much support apart from one delegation which said it would consider it.

During discussions, China indicated that its key interest was in the narrowing of the jurisdiction of courts and tribunals over disputes arising under the Agreement. Attention therefore turned to whether this interest could be met. Those developments are discussed in the next section.

Overall, opposition to compulsory dispute settlement primarily came from States not party to unclos, and China. China’s concern about consent has arguably been driven by their experience in the South China Sea arbitration. Both the Chinese government and academics have subsequently made arguments about the need for consent in unclos disputes.²⁰ Therefore, the fact that China was willing to back down from that position was significant and possibly reflected an assessment that the majority of the delegations were not willing to move too far from the unclos processes. The issue for non-Parties was dealt with in a different way, and is discussed below.

2.3 Exclusions from Jurisdiction

This paragraph was first included in the Further Refreshed Draft Text following igc5. The language was proposed by Australia and is based on article 298(1)(a)(1). In unclos, this language refers to whether or not compulsory conciliation is available for certain types of dispute. If the dispute involves ‘unsettled dispute[s] concerning sovereignty or other rights over continental or insular land territory’ then compulsory conciliation is not available. Of course, compulsory conciliation only applies if a State has excluded compulsory arbitration via a declaration in article 298(1). So, the relevance of this language is much more limited in unclos, compared to its use in article 60(8) of the Agreement. In the latter, the exclusion applies to all disputes. Nevertheless, it received considerable support and was incorporated into the text without opposition. It seems that it was aimed to provide comfort to States possibly concerned about unclos tribunals exceeding their perceived mandates.

The new paragraph 8bis was intended to replicate the point made in the second sentence of paragraph 3 of Option iii. While paragraph 8 was intended to exclude certain matters from the jurisdiction of courts or tribunals under the Agreement, Paragraph 8bis is intended to confirm that nothing in the Agreement affects sovereignty claims or disputes. The use of ‘for the avoidance of doubt’ is sometimes used in some English-speaking jurisdictions to indicate that the phrase that follows is clarifying the meaning rather than creating a new rule.

In addition to the wording of the prior proposal, the paragraph states that jurisdiction is not available for a dispute that involves ‘the legal status of an area as within national jurisdiction’. Thus, a court or tribunal will not have jurisdiction if one of the issues involves whether or not a particular area is within national jurisdiction or not.

This does exclude potential disputes that could arise under the bbnj Agreement, and it should be noted that other paragraphs of the Agreement also attempt to ensure that issues relevant to national jurisdiction are not considered by the cop.²¹ However, it does not necessarily exclude all disputes that involve areas within national jurisdiction. For example, a State might believe that an action taken by the vessel of another State Party pursuant to measures under an abmt has violated its sovereign rights in the continental shelf under the high seas. If there is no question that the continental shelf belongs to the offended State, then the dispute will not be about ‘the legal status’ of the ‘area as within national jurisdiction’. Jurisdiction is only excluded if the tribunal has to determine whether the area is within national jurisdiction or not.

This approach is narrower than one proposal that delegates considered, based on the wording in option iii, paragraph 3. This would have excluded jurisdiction over disputes concerning ‘the concurrent consideration of any dispute concerning sovereignty, sovereign rights or jurisdiction or a claim thereto of a State.’ Such wording would have excluded almost all disputes where flag State jurisdiction was involved on the high seas.

Finally, it is worth noting the final phrase of article 60(9), that ‘nothing in this paragraph shall be interpreted as limiting the jurisdiction of a court or tribunal under Section 2 Part xv of the Convention’. This prevents any inference that the jurisdiction of disputes arising under unclos is affected by the exclusions from jurisdiction under the Agreement.

2.4 Non-Parties to unclos

A number of non-Parties to unclos opposed the use of Part xv ‘mutatis mutandis’, as provided for in the Draft and Revised Draft Texts. Some believed that using ‘mutatis mutandis’ implied that unclos provisions would apply directly to them. There was a strong political opposition to any idea that unclos applied to non-Parties. This lead to a number of proposals that tried to accommodate their position whilst still retaining the use of Part xv in resolving disputes under the Agreement.

One proposal that was made by the clam regional group was to establish a settlement process that mirrored Part xv for the non-Parties to unclos.²² According to this proposal, Part xv would apply mutatis mutandis for Parties to unclos. A new paragraph then provided that ‘[t]he provisions of Part xv and Annexes v, vi, vii and viii of the Convention are incorporated into this Agreement for the purpose of settlement of disputes involving a Party to this Agreement that is not a Party to the Convention’. This was referred to as a ‘mirror’ provision. Colombia, the main proponent of this approach, argued that this would mean that Part xv would apply equally to Parties and non-Parties. However, the incorporation of those provisions into the Agreement would avoid the implication that unclos was directly being applied to non-Parties.

This proposal was objected to by some delegations. The concern expressed during the discussions appeared to rest on the possibility of a divergent interpretation of unclos if mirror provisions were used. The opponents of this proposal wanted to avoid any implication that different rules applied to parties and non-Parties.

The text that resolved the difficulty appears in the Agreement in article 60:

1. 1.Disputes concerning the interpretation or application of this Agreement shall be settled in accordance with the provisions for the settlement of disputes provided for in Part xv of the Convention.
2. 2.The provisions of Part xv of and Annexes v, vi, vii and viii to the Convention shall be deemed to be replicated for the purpose of the settlement of disputes involving a Party to this Agreement that is not a Party to the Convention.

There are a number of key observations to make about the first two paragraphs of article 60. First, the mirroring has disappeared. Article 60(1) is clear that the same process applies to all States, regardless of whether they are Parties or non-Parties to unclos.

Second, there is no reference to ‘mutatis mutandis’. Non-Parties would not have found it acceptable to include this language because of the perception that it directly applied unclos to them. Although most delegations would have preferred to retain mutatis mutandis because they believed it added clarity, there was very little opposition to removing it. The comments in the discussion indicated that the lack of reference to ‘mutatis mutandis’ should not prevent courts and tribunals in reading the application of Part xv with the changes necessary to apply it to the Agreement. It was argued that, in order to apply Part xv meaningfully to disputes arising under the Agreement, tribunals would take a pragmatic approach to applying Part xv and make the necessary changes as a result of treaty interpretation. There is no evidence that States intended for it to apply Part xv in a completely literal manner.

Third, paragraph 2 was inserted to address the concerns expressed by some non-Parties, who wanted it to be clear that the dispute settlement processes derived from the Agreement, rather than unclos. Although the language is somewhat unusual, the fact that the relevant provisions are ‘deemed to be included’ is intended to provide political safety for non-Parties. This was not considered to amount to a separate system that created the concerns that a mirror provisions did. This is because paragraph 1 is clear that the same process applies to all Parties to the Agreement, regardless of their position in relation to unclos.

Paragraphs 5 to 7 of article 60 were inserted to enable non-Parties to unclos to make similar declarations and choices that are available to Parties to unclos under Part xv. For example, a non-Party to unclos can, on ratifying the Agreement, make a declaration as to the type of forum it wishes to use in dispute settlement. These are taken from article 287 of unclos. The fact that they are included in the text of the Agreement again reinforces the non-Parties’ position that the dispute settlement provisions apply to them through the operation of the Agreement rather than unclos. The formulation here differs from article 30(4) of the unfsa, which allows non-Parties to make a declaration under article 287. The unfsa formulation was rejected by non-Parties on the basis that it again implies that unclos applied directly to them.

As can be seen, significant effort went into trying to address the concerns of non-Parties. The basic approach that seemed to prevail during the discussions was a desire to ensure that the dispute settlement provisions would not prevent any State from ratifying the Agreement. The final result is not particulary tidy, but it will hopefully provide the political space for non-Parties to join the bbnj Agreement, in contrast to the unfsa, to which only the United States has acceded.

2.5 Without Prejudice

Paragraph 8 of article 60 provides that ‘The provisions of this article shall be without prejudice to the procedures on the settlement of disputes to which Parties have agreed to as participants in a relevant legal instrument or framework, or as members of a relevant global, regional, subregional or sectoral body concerning the interpretation or application of such instruments and frameworks.’

The primary intention of this paragraph was to ensure that unclos dispute settlement processes would not override dispute settlement provisions in other agreements such as multilateral environmental agreements. The provision reserves dispute settlement process in those agreements for disputes ‘concerning the interpretation or application’ of those instruments and frameworks.

One potential interpretative question is whether this paragraph operates as an opt-out clause under article 281. Following the Southern Bluefin Tuna arbitration,²³ there is the possibility that a tribunal or court might consider the paragraph rules out application of Part xv of unclos in disputes that arise both under the Agreement and another instrument or framework. However, there is currently no consistent approach to this issue that can be discerned from the jurisprudence, with the tribunal in the South China Sea arbitration preferring a different approach.²⁴

2.6 Advisory Opinions

A further question was whether the cop would be able to request itlos deliver advisory opinions on the request of the cop. Despite some strong support, there was also strong opposition. Some delegations were concerned about the possibility that advisory opinions could be used to substitute for contentious cases, a concern that appears to arise from the practice of the International Court of Justice.²⁵ Another view expressed was that itlos does not have the ability to consider requests for advisory opinions beyond those authorised by unclos. This is despite the fact that itlos has already established that it does have jurisdiction in some cases.²⁶

This option is clearly circumscribed. First, the advisory opinion may only be requested on a legal question ‘on the conformity with this Agreement of a proposal before the Conference of the Parties on any matter within its competence.’ This prevents a general question about the interpretation of the Agreement from being put to itlos. Second, it prevents an advisory opinion from being sought on a matter that involves the consideration of a matter within the competence of other bodies. This would potentially prevent the advisory opinion from touching on matters that involves both the Agreement and another organisation. Depending on how this phrase is interpreted, it may even prevent the Tribunal from considering whether a proposal under the cop would undermine the other organisation. However, it is possible that the Tribunal may consider such an issue if it involves the question of what is ‘within the competence’ of another body. Finally, the request may not touch on matters regarding sovereignty or territorial claims.

This circumscribed jurisdiction to request an advisory opinion is less than the broad mandate envisaged by some delegations. However, considering that a number of States maintain that the itlos cannot have an advisory jurisdiction beyond that provided for in unclos,²⁸ this compromise represents a useful tool for the cop to use in future if necessary.

3.1 Reference Back to Part xv of unclos

One potential issue is how the courts and tribunals will approach the formulation in article 60(1) and (2). Without the express use of ‘mutadis mutandis’, will they consider a different approach is required? It is clear that Part xv cannot apply directly to disputes arising under the Agreement. For example, article 288 of unclos on jurisdiction, and 293 on applicable law, refer to the Convention. Presumably these provisions would need to be adapted to apply in the context of the Agreement.²⁹

Nothing should be read into the decision not to use ‘mutatis mutandis’ in article 60(1). While this is one formulation that has been employed in the past, nothing in the debate around that paragraph indicated that delegates envisaged Part xv applying without the necessary changes – this would be absurd and rid the provisions of their meaning. The phrase was removed due to concerns expressed by non-Parties to unclos.

Of course, one problem facing future courts and tribunals interpreting Part ix of the Agreement is that some provisions from other treaties have been incorporated into the text, while others have not. One example are provisional arrangements as provided for in article 61 of the bbnj Agreement. In the unfsa, the first paragraph of article 31 contains the sentence that appears in article 61. However, article 31 of unfsa goes on to provide for provisional measures to be granted by the court or tribunal, with an option for non-parties to opt out. These provisions were not included in article 61. What does this mean for the availability of provisional measures in disputes under the bbnj?

There are two ways of interpreting the failure to include the unfsa provisions on provisional measures. First, the decision not to explicitly refer to provisional measures could reflect an intention that a court or tribunal cannot prescribe provisional measures in a bbnj dispute. This comes from the fact that article 31(2) and (3) were omitted from article 61, when it would have been possible to include them.

However, a better interpretation is that article 61 refers only to arrangements between the parties, and does not rule out provisional measures, which are, after all, contained in Part xv which is incorporated in article 60. This example indicates the potential challenges for negotiators in picking and choosing which articles from unclos and unfsa to incorporate directly rather than by reference.

3.2 Limitation on Jurisdiction

A second issue arises from the limitations placed on jurisdiction of courts and tribunals under the Agreement. The desire on the part of some States to restrict the potential jurisdictional application of dispute settlement probably reflects a certain level of dissatisfaction with the broad approach to jurisdiction taken by tribunals under Part xv of the Convention. The provisions in articles 60(8) through (10) clearly impose limitations that go beyond what exist in the Convention. While paragraph 8 is related to the obligation not to undermine other instruments, paragraphs 9 and 10 place restrictions that may need to be interpreted by a tribunal before we know what they mean in practice.

Paragraph 9 of article 60 is very important in that it limits significantly the jurisdiction a court or tribunal may have where a dispute concerns or necessarily involves the concurrent consideration of two types of dispute.

The first is a dispute about whether a particular area is within national jurisdiction or beyond. Two examples come immediately to mind. One is the South China Sea, where the tribunal in the South China Sea arbitration found that no features generated an eez, which has the effect of potentially creating a high seas pocket there. This exclusion would mean that no State could argue under the bbnj Agreement that the Agreement applies to that area. Another potential example is the Southern Ocean, where a number of Antarctic Treaty Parties have territorial claims to Antarctica that are held in abeyance. This provision would probably mean that a dispute could not be brought to a tribunal about whether the bbnj Agreement applies to the Southern Ocean where a tribunal would have to determine whether the Ocean is high seas or falls within national jurisdiction.

The second dispute that is excluded from jurisdiction involves those concerning sovereignty or other rights over consular or insular land territory. This language comes from article 298(1)(a)(i) which excludes this type of dispute from compulsory conciliation. However, the effect of including it in paragraph 8 has raised the importance of this exception as it automatically excludes any disputes concerning or necessarily involving a dispute over sovereignty or rights to territory. This is in contrast to judicial opinions under unclos, which indicated that a tribunal might consider disputes over territory if it is incidental but necessary to resolve a dispute under unclos.³⁰ This inclusion was probably an attempt by some delegations to reign in what they might consider overreach by tribunals under unclos.

The effect of these exclusions may not be significant, although I think the first is more important than the second. One concern might be that it could result in States artificially inflating their maritime claims to include areas otherwise beyond jurisdiction in order to exclude the dispute settlement process in the Agreement. This cannot be ruled out, but is probably unlikely to occur.