Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence

Geneviève Bastid Burdeau

Compulsory Dispute Settlement Methods under the UNCLOS: Scope and Limits under the Scrutiny of the Jurisprudence

Geneviève Bastid Burdeau*

Ensuring the ef f ectiveness of compulsory dispute settlement, which was one of the major innovations of the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”), required to provide preconditions and limitations in order to meet States fears and preventions. A number of compromises had to be found going from the choice of the competent adjudicating body to the limitations of competence concerning sensitive matters. Such concerns result in the rather complicated and sometimes obscure wording of Part XV of the UNCLOS with a first section providing the preconditions to the means entailing binding effects imposed in the second section. The numerous disputes submitted to arbitration or to judicial settlement during the last fi fteen years contributed to the clarif i cation and strengthening of the rules of Part XV of the UNCLOS. Thus the dispute settlement system of the UNCLOS contributes more efficiently to the general application of the substantive rules of the so-called “Constitution of the Oceans”.

Dispute settlement; Compulsory procedure; UNCLOS

The obligation to submit disputes to compulsory means of settlement enshrined in Part XV of the United Nations Convention on the Law of the Sea (hereinafter“UNCLOS”) was one of the most striking features of the major reform of the law of the sea undertaken through the convention. This obligation was negotiated during the Third United Nations Conference on the Law of the Sea (UNCLOS III) in the late 1970s and early 1980s in a context quite dif f erent from the one we live in nowadays. At that time even if Article 33 of the UN Charter established an obliga-tion to settle disputes by peaceful means, this obligation was considered as an obligation to avoid the use of force but was not held as equivalent to an obligation to accept a compulsory settlement. The provisions of Article 36 of the Statute of the International Court of Justice (hereinafter “ICJ” or “the Court”) insist on the consent to be given by the States parties to the dispute to be submitted to judicial adjudication and the Court. Like its predecessor, the Court has always been extremely attentive to respect the will of the defendant State. This results in the most frequent occurrence of preliminary objections with a lengthy jurisdiction phase in cases submitted to the Court.

The inclusion of a provision providing an effective dispute settlement mechanism was already discussed during the First United Nations Conference on the Law of the Sea in Geneva in 1958, especially in relation with the uncertainties of the def i nition of the continental shelf. Some States like Germany would require such a mechanism. However many States, like India, were against the extension of the optional jurisdiction of the ICJ. The debates resulted in an optional protocol on the compulsory settlement of disputes, which revealed not very successful with only 38 parties up to now and no dispute submitted to the ICJ under this protocol. However the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas provided a compulsory mechanism of settlement through a special commission of five members in case the dispute could not be solved by another means of peaceful settlement as provided for in Article 33 of the UN Charter.①Convention on Fishing and Conservation of the Living Resources of the High Seas, Article 9.

It must also be recalled that the UNCLOS III took place during the cold war, when all communist countries adhered to a very restrictive position on the issue of interstate dispute settlement. This position was rooted in a strict conception of the sovereignty of the State in international law, which gives full respect to the will of the State to accept to be submitted to international obligations. But even among many other States there were also strong objections against a system in which they could be sued without having clearly accepted the jurisdiction of the judicial or arbitral body of compulsory settlement.

Since the 1990s, and especially with the compulsory jurisdiction conferred upon the dispute settlement organ of the WTO by the Marrakech Agreements in 1994, the perception of the limits of State sovereignty in the fi eld of peacefulsettlement of disputes has signif i cantly evolved. However this example of a system of State to State dispute settlement in which the defendant is obliged to participate in the proceedings without any possibility of raising preliminary objections to jurisdiction remains unique and limited to trade disputes without a direct impact upon sovereignty issues.

Coming back to the historical context of the UNCLOS III, the provisions of Part XV constituted, without any doubt, long before the Marrakesh Agreements, a most important step in the evolution of State to State settlement of disputes in international law. Many dispute settlement proposals emerged during the early 1970s, principally in the framework of the UN Seabed Committee and in relation to fi sheries. When the UNCLOS III met in Caracas in 1974, it very rapidly appeared that the issue of the settlement of disputes had to be dealt as a whole, separately from other topics under discussion. The fi rst comprehensive proposal for ef f ective settlement procedures was made in 1976 by Hamilton Shirley Amerasinghe, permanent representative of Sri Lanka and fi rst president of the conference, who stated:

The provision on effective dispute settlement procedures is essential for stabilizing and maintaining the compromises necessary for attainment of agreement on a convention […] Effective dispute settlement would be the guarantee that the substance and intention within the legislative language of the convention will be interpreted both consistently and equitably.

An important opposition existed between dif f erent groups of States about the content of dispute settlement clauses to be included in the convention. As has been underlined at the time of the UNCLOS III and frequently recalled since, a series of essential compromises were found at the basis of Part XV of the UNCLOS.

I. The UNCLOS Compromise and the General Scope of the Dispute Settlement System for the Law of the Sea

A. The Challenges Faced by the UNCLOS

The main idea that emerged from the very beginning of the UNCLOS III was to ensure the compulsory settlement of the largest number of disputes. There were however strong disagreements about the court or tribunal to which the disputeswould be submitted. Another important disagreement emerged about the ambit of the compulsory settlement, some States being reluctant to accept decisions imposed upon them by a tribunal on sovereignty issues.

The first difficulty was to find a formula combining compulsory settlement together with a minimum of constraints for States. So the obligation to accept the principle of compulsory procedures entailing binding decisions finally prevailed but the States did not reach an agreement as for the competent adjudicating body. Some favoured the ICJ, like Sweden and Japan. Others like France and the UK privileged an arbitral tribunal. A third group, including the USSR and Eastern European countries, proposed special arbitral tribunals with specific procedural rules applying in fi sheries, pollution or scientif i c research cases. And fi nally other States in Africa and South America proposed one single tribunal. Among the latter some developing States were reluctant to go to the ICJ and favoured a tribunal also accessible to international organizations, enterprises and individuals.

The second difficulty was to preserve the principle of compulsory settlement of disputes and to avoid reservations on issues considered by many States as highly sensitive. This concern appeared at the very beginning of the UNCLOS III in the informal negotiating group and was shared by a majority of the States. The list of these sensitive matters was agreed upon in 1975 and remained unchanged during the different phases of the Conference.①Myron H. Nordquist ed., United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. V, Dordrecht: Martinus Nijhof f Publishers, 1985, pp. 89～97.It included four categories of disputes concerning :

- The exercise of discretionary rights by a coastal State pursuant to its regulatory and enforcement jurisdiction under the Convention, except in cases involving an abuse of power,

- Maritime delimitations and historic bays and titles

- Military activities

- Situations in which the Security Council exercises its functions pursuant to the UN Charter.

Part XV of the UNCLOS reflects the compromises reached during the UNCLOS III on these two points and gives precisions about the preliminary phase of peaceful settlement by non-judicial means. Part XV is thus composed of three sections, the fi rst one relates to the obligation of peaceful settlement of disputes, the second to compulsory procedures with a large possibility for the parties to thedispute to decide on the judicial or arbitral body to which their dispute will be submitted, and the third one with limitations and exceptions to the applicability of Section 2.

B. The Peaceful Settlement of Disputes under Part XV Section 1: Obligations, Rights, Limits

Section I of Part XV of the UNCLOS provides for the general obligation to settle disputes by peaceful means, by reference to Article 33, Paragraph 1 of the UN Charter and takes over the general principle of freedom for the parties to the dispute to choose the peaceful means. At first sight it does not add much to the list of Article 33 which includes “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means”.

However it must be first underlined that the settlement of disputes by any peaceful mechanism chosen by the parties to the dispute is not only conceived in the UNCLOS as an obligation, pursuant to Article 33(1) of the UN Charter but also as a right available “at any time”. This is a formula which intends to preserve the right of the parties to resort to an agreed means before any jurisdictional or arbitral proceedings has been engaged but also after such a proceeding has been initiated, and also to reserve such agreed means to some aspects of the dispute or to the implementation of a judgment or award. The affirmation by Article 280 of UNCLOS of such a right does not properly constitute an innovation in international law since the priority of solutions reached by agreed means between the parties to a dispute is generally recognized as prevailing. The clear affirmation of a right raises a question about whether such a right could be claimed “at any time” even in the course of an adjudication procedure. Article 297 stating that any dispute shall be submitted to a court or tribunal “where no settlement has been reached by recourse to section I” clearly seems to put an end to the preliminary phase of dispute settlement. This, of course, would not prevent the parties to agree at any time on an alternative means of settlement, even if it does not guarantee to fi nd a solution to the dispute.

As for the means to be chosen by the parties, three main possibilities are contemplated in Section 1 of Part XV: means of settlement agreed by them, conciliation in accordance with Annex V, Section I of the UNCLOS and exchange of views. These different mechanisms have been considered as “preconditions”to judicial or arbitral settlement pursuant to Section 2, a qualification which is commonly recalled in the case law.

1. The Right to Choose Alternative Means Entailing Binding Decisions

Pursuant to Articles 281 and 282 the parties to a dispute concerning the interpretation or application of the UNCLOS may agree on peaceful means to be used. Article 281 seems to address a special agreement concluded between the parties in view of a particular dispute, whereas Article 282 provides for the situation where the parties to a dispute have an obligation under general, regional or bilateral agreements to submit their dispute to a procedure entailing a binding decision. The distinction between an “ad hoc agreement” and a general agreement was recalled by the Tribunal in the Barbados/Trinidad and Tobago case in 2006.①Barbados and the Republic of Trinidad and Tobago, Award of the Arbitral Tribunal, PCA, para. 200.However, the difference between the two is not clear cut. Some agreements can be considered as entering in both categories. Such was the case for the Treaty of Amity and Cooperation in Southeast Asia of 24 February 1976, a multilateral treaty to which the Philippines is a party. The Tribunal in the Philippines/China case examined this treaty in the light of Article 281 as well as of Article 282. The main question raised by these articles is to determine when the Part XV procedures are excluded, a solution, under both articles, requiring a clear intention by the parties to submit their dispute to an alternative procedure of their choice entailing a binding decision. However, there is a difference of approach between the two articles even if the result is identical. As the Tribunal clearly showed in the Award on Jurisdiction and Admissibility for the Philippines/China case, Article 281 on the one hand requires an “opting out” of Part XV:②The Republic of the Philippines v. The People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015, para. 224.Part XV procedures will then apply “where no settlement has been reached by recourse to such means” and the parties’ agreement “does not exclude any further procedure”. Pursuant to Article 282 on the other hand, the choice is made by the parties to submit the dispute “to a procedure that entails a binding decision” in lieu of Part XV procedures, which will be excluded unless the parties decide to come back to such procedures. As the Tribunal summarized: “[The] distinction between article 281 and 282 is consistent with the overall design of the Convention as a system whereby compulsory disputeresolution is the default rule”.①The Republic of the Philippines v. The People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015, para. 224.

In most cases the tribunal or the court will have to interpret the provisions of the agreements invoked by the parties as constituting an alternative to the Part XV procedures, fi rst to determine if it constitutes a legally binding agreement and second to appreciate whether such an agreement provides a procedure entailing a binding decision.

2. The Obligation to Exchange Views

Most importantly, a precondition to the resort to Part XV procedures is the obligation to exchange views provided by Article 283. It applies in any case at the very beginning of the dispute, even if there is another peaceful means agreed by the parties. The scope of this obligation seems to be very general as appears in the recent decision of 19 September 2016 on Australia’s objections to competence in the matter of an Annex V conciliation procedure between Timor Leste and Australia established pursuant to Article 298,②Decision on Australia’s Objections to Competence, A Conciliation Commission Constituted under Annex V to the 1982 UNCLOS between the Democratic Republic of Timor Leste and the Commonwealth of Australia, PCA, para. 46.in which the Conciliation Commission stated:

Thus, under the Convention, and particular in Part XV, a party seeking to make use of the dispute provisions of the Convention must first meet the requirements of Section 1 of Part XV to enable access to the binding procedures of Section 2 or the compulsory conciliation procedures provided in Section 3.

The wording of Article 283 is noticeable: it is not an obligation to negotiate, which would imply discussions on the substance of the dispute and an effort by each party to take into account the position of the other in order to possibly obtain an agreement on some points and even on the main object of the dispute. This dif f erence has been taken into account by the commentators of Article 283③See D. Anderson, Article 283 of the United Nations Convention on the Law of the Sea, in T.M. Ndiaye and R. Wolfrum eds., Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A Mensah, Leiden/Boston: Brill, 2007, pp. 847～866.and by the tribunals in the Chagos award,④Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, para. 378.in the Award on Jurisdiction and Admissibilityin the Philippines/China case,①The Republic of the Philippines v. The People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015, para. 349.as well as in the Duzgit Integrity arbitration.②Malta v. Sao Tome and Principe, Award of 5 September 2016, PCA.The requirement to exchange views “was intended to ensure that a State would not be taken entirely by surprise by the initiation of compulsory proceedings”.③Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, para. 382.The Tribunal in the Philippines/China award of 29 October 2015 recognizes the “uncertainty that has sometimes surrounded the intended meaning of that provision”.④The Republic of the Philippines v. The People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015, para. 332.As David Anderson rightly pointed: “The term ‘exchange of views’is descriptive: it is not a term of art” and he added that the word “expeditiously”indicates the limited nature of the obligation.⑤D. Anderson, Article 283 of the United Nations Convention on the Law of the Sea, in T.M. Ndiaye and R. Wolfrum eds., Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A Mensah, Leiden/Boston: Brill, 2007, p. 852.

Thus the obligation to exchange views is not much demanding and it has never been considered as a bar to a tribunal jurisdiction. As a consequence, the positions of different arbitral tribunals, especially in the Chagos Marine Protected Area award, relied mainly on a rather formalistic and procedural approach. The Tribunal of the Chagos Marine Protected Area case made a distinction between two obligations. The fi rst one is the obligation enshrined in Article 283(1) “to proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means”. The requirement is a procedural one. This means fi rst that the parties must “exchange views regarding the means for solving the dispute” and, second, that “Article 283 cannot be understood as an obligation to negotiate the substance of the dispute”.⑥Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, para. 378. This position is approved by the dissenting arbitrators. Dissenting and concurring opinion of Judges Kateka and Wolfrum, para. 66.

However the Tribunal in this case recognizes the difficulty to neatly separate substantive negotiations concerning the parties to the dispute from exchanges of views on the preferred means of solving the dispute.⑦Barbados/Trinidad and Tobago, Award of 11 April 2006, paras. 201～205. “An overly formalistic application of Article 283 does not accord with how diplomatic negotiations are actually carried out.”The Tribunal rightly observes that:

It is unsurprising that in the jurisprudence on Article 283 it is frequently not clear as to whether the communications that were considered sufficient for the purposes of Article 283 were substantive or procedural in nature.①Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, para. 381.

The debate on the interpretation of Article 283 about the exchange of views once again emerged in the Philippines/China dispute and here again the Tribunal adopted the same formalistic approach: the requirement of Article 279 is met if there is evidence that meetings have been held with discussions about the means to solve the dispute. The Tribunal claimed that “Article 283(1) does not require the Parties to engage in negotiations regarding the subject matter of the dispute”.②The Republic of the Philippines v. The People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015, para. 333.The requirement level is not very high:

The Tribunal recognises that even the most formal of these meetings were termed consultations, rather than negotiations, and that any agreement would almost certainly have required more sustained and intensive discussions than in fact occurred.③The Republic of the Philippines v. The People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015, para. 349.

However the Tribunal wants to underline that these exchanges met two decisive requirements to accomplish the principal goals of prior exchanges. First, they succeeded to clarify the Parties’ respective positions on the issues in dispute, and second, both parties “approached them in good faith and were genuinely interested in seeking agreed solutions to the disputes between them”.④The Republic of the Philippines v. The People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015, para. 349.However the ICJ has affirmed,⑤Application of the Convention on the Elimination of All Forms of Racial Discrimina-tion (Georgia v. Russian Federation) Preliminary Objections, Judgment 2011, ICJ, para. 30.followed by arbitral tribunals,⑥Malta v. Sao Tome and Principe, Award of 5 September 2016, PCA, para. 201. “The Tribunal does not consider that it was necessary for Malta to specify the provisions of the Convention that it relied upon”.that it is not necessary for one party to refer to a specif i c treaty in its exchanges with the other.

It can be verif i ed in the most recent cases, such as the Arctic Sunrise①Arctic Sunrise Arbitration (Netherlands v. Russian Federation), Award on the Merits of 14 August 2015, para. 151.and the Duzgit Integrity②Duzgit Integrity Arbitration (Malta v. Sao Tome and Principe), Award, 5 September 2016, para. 199.that the tribunals do not really enter into a strict analysis with precise criteria. Rather they affirm that the requirement for an exchange of views has been satisf i ed in view of the exchange of some official documents but without any serious evidence that this correspondence regards the means to settle the dispute and has even a procedural content.

The second obligation recalled by the tribunals in the Barbados /Trinidad and Tobago③Barbados and the Republic of Trinidad and Tobago, Award of the Arbitral Tribunal, PCA, para. 205.as well as in the Chagos case,④Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, para. 378.but not by other tribunals, results from Article 283(2), which “requires a further exchange of views upon the failure of the dispute settlement procedure”. Article 283(2) provides:

The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement.

Concerning the end of the exchange of views, the Tribunal in the Chagos case is rather evasive. Referring to the International Tribunal for the Law of the Sea (ITLOS) in the Malaysia/Singapore case,⑤Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, para. 385; Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports, 2003, p. 10, para. 47.the Tribunal states that: “a state is not obliged to continue with an exchange of views when it concludes that the possibilities of reaching agreement have been exhausted”.⑥Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, para. 385.

Finally the Tribunal in the Chagos case concludes without further explanation about Article 283(2) that:

Thereafter, Mauritius determined that the possibility of reaching agreement on the conditions for further negotiations had been exhausted and elected to proceed with compulsory settlement through arbitration […] Accordingly, the Tribunal concludes that Mauritius has met the requirement of Article 283 to exchange views regarding the settlement.①Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, paras. 385～386.

This point of the award could raise some criticism. After having distinguished two distinct obligations to exchange views provided in Article 283(1) and (2), the Tribunal seems to completely drop the second one and leave to the Applicant alone the right to decide that no settlement has been reached. The dissenting arbitrators concur on that point and underline that the situation took a new turn with the creation of the marine protected area and that therefore the decision of Mauritius to resort to arbitration was justified. The fact that no agreement was reached is not decisive as far as “the Parties’ frequent discussions and exchanges left them well positioned to assess the likelihood of any mutually agreeable compromise”.②The Republic of the Philippines v. The People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015, para. 349.The finding that the procedure for the settlement of the dispute has failed is left individually to each party to the dispute (and presumably to the applicant), probably because the arbitral tribunals implicitly consider that the requirement of a second exchange of views is unrealistic.

It can be underlined that apart from the Chagos case, the obligation under Article 283(2) has rarely been invoked in the jurisprudence, probably because the parties do not raise the point. As the Tribunal in the Barbados /Trinidad and Tobago case underlined: “To require such a further exchange of views (the purpose of which is not specif i ed in article 283(2)) is unrealistic”.③Barbados/Trinidad and Tobago, Award of 11 April 2006, para. 205.It seems that, in the jurisprudence, the obligation under Article 283(2) of the UNCLOS is not distinguished from the obligation under Article 283(1) and falls into disuse, leaving the applicant alone to fi nd the failure to reach a settlement under Section 1 of Part XV of the UNCLOS and to decide to institute proceedings under Section 2. These provisions of Section 1 leave the place to the much more innovative obligation to submit the dispute to compulsory procedures resulting in binding decisions.

C. Dif f erent Types of Competences Addressed by Part XV of the UNCLOS

Four main kinds of disputes between States are considered under Section 2 of Part XV of the UNCLOS. They are covered by the general jurisdiction provision of Article 286: “any dispute concerning the interpretation or application of the Convention”.

1. Disputes entering in the general category of disputes concerning the interpretation or application of the Convention and not belonging to one of the specific categories may be submitted to any court or tribunal having jurisdiction along with the choice of the parties as provided in Article 287 according to the so-called Montreux formula which aims at preserving choice of the means of settlement but to ensure a third party mandatory decision. According to this article, a State is free to make a declaration indicating the means of settlement it chooses: the ITLOS, the ICJ, or arbitral tribunals. If the choices of the parties to the dispute correspond, this common choice will prevail. If not, arbitration under Annex VII of the UNCLOS will take place unless the parties decide to recourse to another agreed means, as this was the case in the Bangladesh v. Myanmar dispute.

2. Specif i c competences beyond this general provision are expressly attributed to the ITLOS. The fi rst one is temporary. It concerns provisional measures pending the constitution of an arbitral tribunal to which a dispute is submitted. In that case the provisional measures can be decided by the ITLOS. However as soon as the arbitral tribunal is constituted, it becomes exclusively competent to decide on provisional measures, as this recently occurred in the Enrica Lexie case.

The second specific competence provided by Article 292 is subsidiary. It concerns the prompt release of vessels. The disputes of this kind, unless otherwise agreed by the States parties to the dispute in a delay of 10 days from the time of detention, are submitted to the ITLOS. The experience shows that this is most often the case where the ITLOS has been generally seized instead of other courts or tribunal and has been able to develop an important jurisprudence in this type of disputes. So in practice this competence does not appear any more as subsidiary but on the contrary as the most frequent.

3. The settlement mechanisms under the UNCLOS can be extended to other conventions related with the UNCLOS as provided by Article 288(2). Article 286 addresses disputes arising under the UNCLOS, but other disputes relating to the law of the sea are also covered by the procedures provided in the Convention. For instance, the Straddling Fish Stocks Agreement refers to the procedures providedin the UNCLOS and agreements related with the UNCLOS which do not provide specif i c means of solving disputes are submitted to the same system whose unity is ensured by Article 288(2):

A court or tribunal referred to article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related with the purposes of the Convention, which is submitted to it in accordance with the agreement.

II. Compulsory Procedures Entailing Binding Decisions in the Jurisprudence: Scope, Limitations and Exceptions

As has already been mentioned, apart from the determination of the relevant adjudicating body, the second big debate about the settlement of disputes during the conference concerned the possibility to exclude some kinds of disputes from the compulsory jurisdiction. For many States compulsory jurisdiction was only acceptable if certain issues were excluded. The possibility to make reservations was excluded since the UNCLOS contains a general prohibition of reservations in Article 309: “No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of the Convention.”

This provision was considered as essential to preserve the integrity of the primary rules enshrined in the UNCLOS. But, on the other hand it was necessary to find a compromise opening the permission for some States to reserve some questions. How to allow some fl exibility for the rules concerning the settlement of disputes without entailing the general scope of Article 309?

Such fl exibility was found through Articles 297 and 298, which form the core of Section 3 of Part XV. These articles open the way to limitation and exceptions to the applicability of Section 2 of Part XV.

Before examining these limitations and exceptions provided by these articles, it is necessary to have a look at a general question which was faced by several tribunals: it concerns the possibility for a tribunal to rely on legal sources invoked by the parties outside the UNCLOS itself such as other conventions or even customary rules. To what extent is a tribunal acting under Part XV Section 2 entitled to apply other sources and to take position about the applicability to the dispute of these other sources?

A. Sources to Be Applied Besides the UNCLOS

No doubt that a tribunal or court acting under Part XV has to apply general principles of international law or secondary rules of international law, such as the rules of the Vienna Convention on the Law of Treaties or the rules on international responsibility. In some cases the parties have invoked other sources like conventions, not directly “related to the purposes of this Convention”, pursuant to Article 288(2) but devoted to domains related with the law of the sea such as the protection of environment.

The Tribunal in the Philippines/China Award of 12 July 2016 has addressed extensively the issue of the relationship between the UNCLOS and other sources of rights, mainly customary rules.①The Republic of the Philippines v. The People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015, para. 235.Article 311 provides precise rules about the relationship between the UNCLOS and other conventions which “mirror the general rules of international law concerning the interaction of dif f erent bodies of law”.②The Republic of the Philippines v. The People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015, para. 237.As for Article 293(1), it provides “that a tribunal or a court having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention”.

In the Duzgit Integrity award, the Tribunal considered the combined effect of the provision of Article 288(1) which limits the jurisdiction of the Tribunal to disputes concerning the interpretation or application of the UNCLOS and Article 293(1). It stated that it “does not have jurisdiction to determine breaches of obligations not having their source in the Convention (including human rights obligations) as such”,③Duzgit Integrity Arbitration (Malta v. Sao Tome and Principe), Award, 5 September 2016, para. 207.but that the Tribunal quoting the Arctic Sunrise Arbitration“may have regard to the extent necessary to rules of customary international law (including human rights standards) not incompatible with the Convention”.④Arctic Sunrise Arbitration (Netherlands v. Russia), Award on the Merits, paras. 190～192.

In the Timor-Leste/Australia Conciliation, Timor-Leste invoked the incompatibility of the Treaty between Australia and Timor Leste on Certain Maritime Arrangements in the Timor Sea (CMATS) of 12 January 2006, instituting a moratorium on maritime boundaries delimitation between the two States with the conciliation procedure under Article 298 of the UNCLOS. The Commission rejected theargument, considering that CMATS does not derogate from the terms of the UNCLOS and that the UNCLOS to which Timor became a party on 7 February 2013 was the later treaty between the parties.①Conciliation between Timor-Leste and Australia, Decision on Australia’s Objections to Competence, 19 September 2016, pp. 83～84.

Concerning the combination of the UNCLOS with customary rules of international law, the Tribunal in the Philippines/China Award addressed the issue regarding historic rights claimed by China. The Tribunal devoted a long passage of the award to examine the meaning of the expression of “historic rights”, the dif f erence with historic titles and the nature of the rights claimed.②The Republic of the Philippines v. The People’s Republic of China, Award, 12 July 2016, paras. 215～262.The crucial point was to determine whether such rights were recognized prior to the UNCLOS and whether the UNCLOS provides for the continued existence of historic rights. Without entering here in the substance of the debate, it must be underlined that the Tribunal considered that it entered in its mission to establish the existence of customary rules in order to determine, if such existence is proved, how it combines with the UNCLOS rules.

B. The Exemptions Authorized by Article 298

The technique adopted in Article 298 is aimed at limiting and regulating the exemptions to the compulsory jurisdiction. A list of well-defined matters is provided, which may be exempted by a declaration fi led in advance by any State party. Article 298 permits State parties to exclude a limited number of categories of disputes from binding dispute settlement. These exclusions result from declarations which may be made by the Parties to the UNCLOS and may be invoked later in a def i nite dispute. The dif f erence with reserves is important since the States parties are not entitled to draft the text but can only choose the formulation proposed by the dif f erent items of Article 298. The list provided by Article 298 is a list of authorized exceptions to the compulsory adjudication. It corresponds to three of the four above mentioned issues which had been identif i ed during the conference: (1) disputes concerning the interpretation or application of Articles 15, 73 and 83, relating to sea boundary delimitations or those involving historic bays and titles; (2) disputes concerning military activities; (3) disputes in respect of which the Security Council is exercising functions assigned to it by the UN Charter. As exceptionsare provided by the UNCLOS, and not drafted by the States parties, they have to be interpreted narrowly and uniformly. Does this mean that an interpretation given for instance about the ambit of “military activities” will be opposable to all States having made the same declaration? Would it be possible for another tribunal to give another interpretation?

Section 3 of Part XV contains a few rules about the procedural aspects of these unilateral declarations. These declarations may be made upon signature, ratif i cation or accession to the UNCLOS or at any moment and may be withdrawn at any moment. They have to be deposited with the Secretary-general of the UN. The way the declaration should be drafted seems to be clearly def i ned in the chapeau of Article 298 which states:

a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes.

Most States, including China, deposited declarations using the whole range of exclusions. With a strict reference to the exclusions permitted by sub-paragraphs a), b) and c) of Article 298(1), the task of a tribunal will then be to appreciate whether the subject matter of the dispute falls within the authorized exceptions. The exclusion will be of course invoked by the author of the declaration but it belongs to the tribunal, in application of the rule Kompetenz-Kompetenz, to appreciate the scope of its own jurisdiction and whether the subject matter of the dispute clearly relates to the exclusion as permitted by Article 298.

Such an appraisal will be operated at the jurisdiction phase if the issue is clear enough to be answered at this stage. This will be the case for submissions clearly falling outside the scope of Article 298(1). In the Award on Jurisdiction and Admissibility for the Philippines/China case of 29 October 2015, the Tribunal thus considered that Philippine submissions concerning the status of some maritime features as “islands” or “rocks” within the meaning of Article 121 of the UNCLOS or “low-tide elevations” within the meaning of Article 13 did not fall within any of the exclusions permitted by Article 298. This appreciation is a fi nal one and the Tribunal does not have to reconsider it at the merits stage.

However some States, like the Federation of Russia, have made declarations in order to exclude some matters from the compulsory settlement mechanism beyondthe issues listed in Article 298. Thus after a reference to the list of Article 298, the declaration by the Federation of Russia added:

in accordance with article 298 of the [Convention], it does not accept the procedures provided for in section 2 of Part XV of the Convention, entailing binding decisions with respect to ... disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction.

This refers to the fourth category of exclusions which had been considered during the UNCLOS III but which have fi nally been included under Article 297. In the Arctic Sunrise dispute between the Netherlands and the Federation of Russia, the tribunal stated in its award on jurisdiction that: “Russia’s Declaration can only apply to an exception that is permitted under article 298”①Arctic Sunrise Award on Jurisdiction, 26 November 2014, para. 72.and it considered that“Russia’s Declaration must be interpreted with due regard to the relevant provisions of the Convention”.②Arctic Sunrise Award on Jurisdiction, 26 November 2014, para. 70.With regard to the prohibition of reservations by Article 309 of the Convention, “a State party may only exclude the legal ef f ect of a provision of the Convention when such exclusion is expressly permitted by a provision of the Convention”.③Arctic Sunrise Award on Jurisdiction, 26 November 2014, para. 70.As far as the dispute concerned law enforcement activities in the EEZ, the only limits to the jurisdiction of the Tribunal would thus result only from the limitations admitted by Article 297(2) and (3).

In disputes relating to the first category (disputes concerning maritime delimitations or involving historic bays) the exception to the applicability of section 2 procedures provided by Article 298(1)(a)(i) does not mean that the parties do not have the duty to solve their dispute. They have an obligation to negotiate and if no settlement has been reached within a reasonable period of time, they have to accept submission of the matter to conciliation under Annex V, Section 2 at the request of any party to the dispute. It is interesting to underline that such a conciliation started between Timor Leste and Australia and that the conciliation commission recently declared itself competent. If this fi rst experience is followed, conciliation could help States to solve their delimitation disputes and this could be a new step towards the compulsory settlement even if the solution proposed is only a basis for negotiations between the parties.

C. The Limitations Provided by Article 297

Generally speaking, Article 297 deals with disputes which may arise about the way a coastal State exercises its freedoms and rights of navigation or over-f l ight in cases in which this use is alleged to be incompatible with the Convention. Such limitations would apply automatically.

Article 297(1) affirms the principle of the applicability of the compulsory procedures provided in Section 2 when it is alleged that a coastal State has acted in contravention with the UNCLOS or with other rules of international law. As the Tribunal mentioned in the Chagos case: “Article 297(1), however, is phrased entirely in affirmative terms and includes no exceptions to the jurisdiction the Tribunal may exercise”.①Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, para. 307.

The provisions of Article 297(2) and (3) confirm the principle: Disputes concerning the interpretation or application of the provisions of this Convention with regard to marine scientific research (Article 297(2)) or to fisheries (Article 297(3)) shall be settled in accordance with section 2. However the same subparagraphs introduce limited exceptions permitting a coastal State not to be obliged to accept the submission to such settlement in three limited cases which concern:

1) disputes arising out of the exercise by the coastal State of a right or discretion with respect to marine scientif i c research in the EEZ and on the continental shelf (Articles 297(2)(a)(i) and 246);

2) disputes arising out of a decision by a coastal State to order the suspension or cessation of a marine scientif i c research project (Articles 297(2)(a)(ii) and 253); and,

3) disputes related to a coastal State’s sovereign rights with respect to living resources in the exclusive economic zone or the exercise of such rights (Article 297(3)(a)).

In the Chagos Marine Protected Area case a discussion arose about the limita-tive character of Article 297(1). The Tribunal declared, on the basis of an extensive survey of the travaux préparatoires: “textually, therefore, Article 297(1) reaffirms, but does not limit, the Tribunal’s jurisdiction pursuant to Article 288(1).”②Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, para. 308.Consequently “it is not necessary that the Parties’ dispute […] fall withinone of the cases specified in Article 297(1)”①Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, para. 317.to allow the tribunal to proceed. The Tribunal even comes to the conclusion that Article 297(1), which appears in an article devoted to limitations to jurisdiction, was modified several times with the result that “it expands the Tribunal’s jurisdiction to certain disputes involving the contravention of legal instruments beyond the four corners of the Convention itself”.②Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, para. 316.

As can be seen the principle of compulsory jurisdiction has considerably expanded with the entry into force of the UNCLOS. The law of the sea is one of the important matters of international law where adjudication developed considerably during the recent decades. Even if issues related with maritime delimitations and military activities are still very sensitive and if the exceptions provided by Article 298 are considered as essential by many States, numerous other disputes are now brought to adjudication under Part XV progressively strengthening the bold system established by the UNCLOS.

* Geneviève Bastid Burdeau, Professor Emeritus of International Law at the Sorbonne Law School (University Paris I). Her research interests include: international economic law, law of international organizations, law of the sea. Email: Genevieve.Burdeau@wanadoo.fr.

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