1. in scholarly writings that the ITLOS

1.     
INTRODUCTION

It has been over two decades since
the 1982 United Nations Law of the Sea1 (UNCLOS or Convention) came into
force. While the convention was hailed at inception as the most comprehensive
multilateral treaty for its provisions on compulsory dispute resolution
mechanisms, a lot of concern has arisen over the years as to the success of the
dispute resolution mechanisms contained in the convention due to the few number
of states who have made declarations choosing particular dispute resolution procedures
as opposed to the compulsory arbitration option which operates as the default
option where parties fail to do so.

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Prior to the 1982 Convention, states were
required to voluntarily opt for an optional protocol on dispute settlement after
ratification of the 1958 UNCLOS2. The alternative option (for states
who did not consent to arbitration) was to resolve disputes through International
Court of Justice (ICJ)3 for states bound by its compulsory
jurisdiction under Article 36(2).

In this essay, I would argue, relying
on facts and surveys evidencing state practices after the convention, that
arbitration (general and special) provided under the convention has not acquired
the status of the most preferred dispute settlement procedure when compared specifically
to the International Tribunal of the Law of the Sea (ITLOS).

In making this point, I will first examine
briefly the dispute settlement procedures under the convention as a background for
the discuss. Thereafter, I shall consider three recent state practices: declarations
under Article 287 and 298 UNCLOS, dispute resolution
under each forum and finally resolution of dispute under external machinery
with reference to the UNCLOS, in arguing that states have shown a continous
preference for other dispute resolution procedures as opposed to arbitration.

The
essay shall conclude by reflecting on the facts examined and agreeing with
opinions in scholarly writings that the ITLOS and not general or special arbitration
is the most preferred dispute settlement procedure according to the state
practices considered. This conclusion specifically refers to the ITLOS as
evidence from the essay confirms an under-utilization of other dispute
resolution procedures (save the ITLOS) under PART XV of the convention

2.      DISPUTE RESOLUTION UNDER
UNCLOS

The
UNCLOS contains 307 articles and 11 annexes.4 Although
dispute settlement is provided under PART XI and PART XV, this essay shall
focus on the dispute settlement provisions under PART XV in determining the
states’ preference under the choice of settlement procedures.

The
extensive debate by both developed and developing countries as to the inclusion
of compulsory dispute settlement mechanisms and choice of procedures were crucial
to the complex provisions under the convention. In addition to incorporating
the dispute settlement procedures under Article 33(1) of the Charter5(UN
Charter) which obliges parties to use either arbitration, judicial settlement,
negotiation, enquiry, mediation, conciliation, regional arrangements, or other
peaceful means of their choosing to resolve disputes, the convention also provided
for several dispute settlement options confirming states preferences in the travaux preparatoires.

While
developed countries preferred the ICJ as the forum for the settlement of
disputes citing its contribution to marine Jurisprudence, majority of developing
countries suggested Arbitration (a form of third party dispute settlement
procedure which gives binding decisions) which they opine involves more party
autonomy and less rigidity associated with standing courts. A third group opted
for the creation of a specialised tribunal on marine disputes while others clamoured
for the retention of negotiation.

The
UNCLOS, in creating what was the most flexible dispute settlement provision at
the time, incorporated all the procedures suggested by parties when in PART XV,
Section 1, Article 279, it obliges parties to first resolve disputes through
peaceful means using the procedures under Article 33(1) of the UN Charter.

Article
281 then provides for situations where parties have failed to resolve disputes
concerning the “interpretation and application of the convention” using the
peaceful means above. It obliges them (except where parties otherwise agree or
are subject to binding procedures in regional/bilateral agreement outside
UNCLOS)6
to resolve the disputes using the four binding dispute settlement mechanisms under
PART XV, Section 2 (Article 286-296),that is: the
ITLOS under Annex VI, the ICJ, an ad hoc arbitral
tribunal in accordance with Annex VII, and a special arbitral tribunal in
accordance with  Annex VIII).These
provisions were however subject to the limitations concerning specific disputes
contained in Section 3,Article 297 (marine
scientific research and certain disputes involving fisheries)
and disputes for which parties have made optional exclusions under Article 298 (maritime
boundaries delimitation, disputes involving historic bays or titles, military
activities, law enforcement activities in the Exclusive Economic Zone and
matters before the United Nations Security Council) excluding
the application of Section 2.This implies that the compulsory settlement
procedures will not apply to the said disputes except where parties by consent
expressly agree to same.

Parties
were upon signature or ratification of the convention, expected to choose all
or any of the procedures under section 2 above through a written declaration7.
This guarantees a right to commence proceedings under the forum through
notification Article 287(4) once there is evidence of an exchange of views (Article
283) in the event of a dispute. However, where parties have not chosen the same
forum or none, the convention provides in Article 287(5) for Arbitration under
Annex VII as the default dispute settlement procedure for such disputes except
those contained in Section 3 above. The decision of the tribunal or court under
PART XV section 2 is binding but only to disputing parties.8

The
Arbitral tribunal under Annex VII and Annex VIII both have 5 arbitrators
(selected by parties from a candidates’ list, including one national each
except where a disagreement occurs, in which case the selection shall be by the
president of the ITLOS) deciding cases brought before it although a significant
distinction is that the former deals with all disputes under the UNCLOS while the
latter deals with only matters under Article V of Annex VIII (fisheries, protection and preservation of the marine
environment, marine scientific research, and navigation, including pollution
from vessels and by dumping under Annex VIII, Article 1).

Under
PART XI of the convention, disputes as to mining of minerals in international
sea bed and disputes between coastal states and Seabed Authority are to be
resolved by a special tribunal set up under Section 5, The Seabed Disputes
Chamber, operating under the ITLOS. It also has jurisdiction to give advisory
opinions on legal questions arising from the activities of the Assembly or
Council of the International Seabed Authority (Article 187,191,285).

 

 

3.     
STATE PRACTICES AND CHOICE OF FORUM UNDER UNCLOS

This section shall consider state practices under
three subheads: Declarations under Article 286, disputes presented before each
forum and dispute resolution under external machineries.

3.1 Declarations
under Article 286 of UNCLOS

In discussing state practices on choice of dispute
settlement procedures under the convention, the essay shall first examine the
declarations of states under Article 286 of Part XV (which provides for
compulsory dispute settlement mechanisms). This is important to show how state parties
who clamoured for its inclusion as a condition for their membership have
utilized the procedures after the convention came into force. Contrary to the
ICJ or Arbitration options provided under the optional protocol in the 1958
UNCLOS, developed states (particularly United Kingdom and Soviet Union) emphasized
the need for compulsory dispute settlement mechanisms to tackle likely issues
that may result from interpreting the complex provisions of the convention. Interestingly,
developing states also agreed that this will grant a necessary protection for
weaker states from the political influence of powerful developed states witnessed
under the ICJ.9

Although
the convention came into force in 1994 with 60 states signatories, the number
has increased to 168 as at the time of this essay10.A
presumption that comes to mind (considering the opinions of states on inclusion
of several dispute resolution options during the preparatory stages) is that
most (if not all) states would have made declarations under Article 287
choosing their preferred choice of procedure upon ratification. However, this
is not the case, a recent survey shows that as at December 2016, only 47 states
and one fifth of the total states (excluding declarations Algeria, Cuba and
Guinea Bissau who all rejected the ICJ as a choice of forum) have made
declarations under Article 287 and Article 298 of the Convention respectively11.

While
this might suggest a preference for Arbitration (being the default procedure
under Article 287(3) where parties have chosen different procedures or none)
when compared with other procedures, a consideration of the principle of
international which prevents states from being compelled to resolve disputes
through a procedure without consent confirms that this cannot be a reliable
source for proving the preference of arbitration.12 The
necessary implication is that ITLOS which has more declarations is the most
preferred.

3.2 Choice of Forum

Although
Oellers-Frahm opines that the number of states who chose a procedure cannot be
a determinant of the procedure’s importance since states cannot be forced to
utilize them13,
33 states have chosen the ITLOS as their preferred settlement procedure while
11 states opted for arbitration under Annex VIII.14The
number of states who chose ITLOS and ICJ have been recorded to be in the
majority.

Robin’s
annual survey on dispute settlement under the UNCLOS however reveals that as at
2016, no dispute relating to the application or interpretation of the
convention has been brought under both the ICJ and the Arbitral tribunal under
Annex VIII.15This
suggests that states do not favour special arbitration (since the disputes to
which it applies are mostly covered by provisions of special instruments). The
ICJ has however dealt with a plethora of cases relating to disputes under the
convention (even those under Part XI) even though they were not commenced under
Part XV.16

General
arbitration under Annex VII (administered by the Permanent Court of
Arbitration) is well utilised by states as evidenced by the 12 decided cases in
its docket (some on merit while others are pursuant to parties’ agreement or
jurisdictional challenges).17A
significant feature of the disputing parties can unilaterally commence
proceedings by notification to the other party as confirmed by the tribunal in
the recent South China Sea Case.18

However,
the contributions of the ITLOS under PART XV readily rebuts the presumption in
favour of arbitration as the preferred choice of procedure. The tribunal’s docket
presently consists of 25 cases (5 of which were transferred by agreement of
parties from general arbitration) involving disputes on prompt release of ships
(Article 292), grant of provisional measures Article 290(5) as a prophylactic
measure between parties pending hearing of cases on merit and rendering of
advisory opinions on issues submitted to it19.
While the genre of issues presented before the ITLOS might be viewed as
preliminary as opposed to substantial issues on application and interpretation
of UNCLOS, Robin argues that the grant of provisional measures in addition to
its speedy adjudication by the tribunal has resulted in final settlement of disputes
in several cases presented before the tribunal including the recent Southern
Bluefin Tuna Case.

Lastly,
the compulsory conciliation procedure under Annex V and ordinary conciliation
under PART XV of UNCLOS have not been explored by states in the resolution of
disputes for which it was created. Until recently in 2016 when Timor-Leste sued
Australia under the compulsory conciliation proceedings after ratifying the
convention in 2013, none of the state parties had commenced any dispute
resolution under the forum. The non-binding nature of the forum’s decision has
been suggested as the reason why states have not used it as often as expected.20

3.3 Dispute Resolution Under External Machinery

Earlier in the essay, I
stated that the procedures under Part XV have jurisdiction on matters relating
to the application and interpretation of the convention or “other agreements
relating to the scope of the convention” in which the procedures under Part XV
has been adopted by the signatories Article 288(2). This practice is
important because a survey of disputes under the UNCLOS shows a progressive
adoption by multilateral treaties (including the International Maritime
Organisation) of the dispute resolution procedure in UNCLOS, particularly in
2015 where 7 out of the 13 cases recorded commenced under multilateral treaties
which adopted the UNCLOS dispute settlement procedures as opposed to the 6 commenced
under the convention itself.21

The number of multilateral
treaties which have adopted the dispute resolution mechanisms under UNCLOS is arguably
up to 15 presently22 and a significant number of
these treaties opted for the ITLOS instead of arbitration as their preferred
forum for settlement of disputes for reasons including the expertise under
ITLOS, the speedy resolution of disputes and the lower costs associated with
the proceedings when compared to arbitration. This also confirms that
arbitration only as a secondary alternative where parties have not decided
otherwise.

Before drawing necessary
conclusive remarks on the above highlighted state practices, I shall state
categorically that the argument whether arbitration is the preferred dispute
settlement mechanism under the convention has been subject of scholarly debate
particularly for the reasons stated earlier in this essay.

While Oellers-Frahm
canvassed heavily in support of arbitration as the preferred procedure under
UNCLOS because of its inclusive nature in allowing parties decide members of
the panel and relative ease of proceedings23(even though she finally
concluded that arbitration is not the preferred option) , Robin Churchill, a
renowned international dispute lawyer, argued against the presumption that
arbitration is the most preferred dispute settlement procedure citing among
other reasons, the transfer of five cases from the arbitral tribunal to ITLOS,
the relative speed with which disputes are resolved under the tribunal and the
associated costs which is significantly cheaper than what obtains under
arbitration.24

In the same vein, Vinai
Singh, while commenting on the recent trend of states as to choice of forum
under the UNCLOS emphasized that arbitration as a preferred forum is in the
past citing among other reasons, the several jurisdictional challenges against
the arbitral tribunals by parties, timing, cost and
delay of  constituting the tribunal,
flexibility, political factors and lack of effective enforcement mechanism that is
associated with arbitration as a forum.25 Singh further stated that
the state practices suggests a favourable shift from arbitration to ITLOS as
the preferred choice of dispute settlement procedure due to the reasonable costs
associated with its proceedings and the tribunals expeditious adjudication
processes.

Lastly, the facts above may appear
to have paid little attention to the declarations of states under Article 298 which
relates to the exercise of optional exclusion by states of specific disputes
from the compulsory jurisdiction under PART XV. The reason is because the said
declarations have not only been made by only one fifth of the parties to the
convention, it has also not significantly affected the nature of cases so far
decided by the fora under consideration as only 3 cases including the recent
South China Sea Arbitration has raised it as a ground of objection.26

4.     
CONCLUSION

While celebrating the two
decades since the convention came into force, many have lamented that the
dispute resolution provisions have not achieved the purpose for which they were
created. These comments would not seem out of place if one considers the amount
and type of cases that have been presented before the dispute settlement
mechanisms.

The essay, in arguing that
arbitration is not the preferred choice of dispute resolution procedure, laid a
background study by briefly examining the dispute settlement practices before
the 1982 UNCLOS and the impact of states in shaping what was later known as the
PART XV of UNCLOS.

A discussion of the dispute
settlement provisions under the convention was examined in explaining how the convention
incorporated the opinions of the states on dispute settlement. In considering
the role of arbitration vis a vis other settlement options under the UNCLOS, three
state practices (declarations, choice of forum and external machinery) were
critically analysed.

The essay presented facts to
show that the trend which is believed to favour arbitration as a favoured
procedure did not emanate from declarations by state parties but from the lack
thereof citing Article 287(3). The essay also considered the case dockets of
each forum under the convention and elicited facts to support that the
arbitration tribunal under Annex VII and the ITLOS are the two main procedures
while acknowledging the role the ICJ has played outside the legal framework of
the UNCLOS.

Referral of disputes to the
mechanisms under the UNCLOS by states who are parties to other external
machineries (multilateral treaties) was the last point considered in the essay
in supporting its observations.

From the above facts, the
author agrees with the scholarly arguments of Robin Churchill and Vinai Singh that
arbitration under Annex VII (though a default dispute resolution mechanism) is
not the most preferred choice of dispute resolution procedure under the UNCLOS.
The reasons for this conclusion draw from evidence revealed from recent trend
in state practices which suggests a shift from arbitration to the ITLOS for reasons
including the expensive costs associated with arbitration, the delay in proceedings
under arbitration, lack of evidence showing declarations by parties opting for
the forum and activities of states in choosing the ITLOS for speedy resolution
of disputes (especially its provisional measures).

The essay partly agrees that
the Arbitral tribunal under Annex VIII and the ICJ under Part XV have been
rendered obsolete but asserts that the ITLOS (not arbitration) continues to
gain more ground as the preferred dispute resolution mechanism for the
resolution of Law of the Sea Disputes.

 

1 United Nations
Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16
November 1994) 1833 UNTS3.

2 Optional
Protocol of Signature concerning the Compulsory Settlement of Disputes arising
from the Law of the Sea Conventions (adopted 29 April 1958, entered into force
30 September 1962), 450 U.N.T.S. 169.

3 Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 933.

4
Merrills, J. G., and Ebooks Corporation Limited., ‘International Dispute
Settlement’, Anonymous Translator (5th edn, Leiden, Cambridge University
Press, 2011).

5 United Nations, Charter of the United Nations, 24
October 1945, 1 UNTS XVI

6
UNCLOS (n.1) Article 282; Southern Bluefin Tuna Case (Australia v. Japan; New Zealand
v. Japan) (Jurisdiction and Admissibility,) (2000) 23 U.N.R.I.A.A. 1

7
Ibid. Article 287.

8
Ibid. Article 296.

9
Merrills (n.4).

10
Wikipedia, List of parties to the United Nations Law of the sea accesed 18 December,2017.

11
Robin, Churchill. The general dispute settlement system of the UN convention on
law of the sea: Overview, context and Use
accessed 22 December,2017.

12
Karin Oellers-Frahm. Arbitration-A Promising Alternative of Dispute Settlement
under the law of the Sea Convention? www.zaoerv.de/55_1995_a_457_478.pdf
accessed on 13 January,2018.

13
Ibid.

14 Vinai Kumar Singh, Analysis of advantages and disadvantages of forums prescribed under the
UNCLOS and state practice: the way ahead for India (Revista De Dereiro
internacional, Brasilia) vol.13.2016 313-336 accessed 18 December,2017.

15 Churchill, Robin. ‘Dispute Settlement in the Law of
the Sea: Survey for 2015-Part i’, The International Journal of Marine and
Coastal Law, vol. 31/no. 4, (2016), pp. 555-582.

16
Robin, Churchill, “Compulsory” dispute settlement under the United Nations
convention of the law of the sea-how has it operated?”
accessed 18 December,2017.

17
UNCLOS annex VII cases arbitrated under the auspices of PCA
accessed 22 December,2017.

18
The South China Sea Arbitration (The Republic of Philippines v. The People’s
Republic of China) Case No. 2013-19 Env. L. Rev. 2017, 19(1), 48-56.

19
ITLOS list of cases
accessed 22 December,2017.

20
Churchill (n.15).

21
Churchill (n.14).

22
Churchill (n.11).

23
Oellers-Frahm (n.12).

24
Churchill (n.10).

25
Singh (n.11).

26 Keyuan, Zou; Qiang, Ye. Interpretation and Application of
article 298 of Law of the Sea convention in Recent Annex VII tribunals: An
appraisal accessed 23 December,2017.

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