Dispute settlement mechanisms under UNCLOS and enforcement of

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Dispute settlement mechanisms under UNCLOS and enforcement of Powered By Docstoc
					Dispute settlement
mechanisms under
UNCLOS
  Introduction and overview
1. Introduction

2. General principles

3. Means available

4. Choice by parties (declarations)
1. Introduction
Before UNCLOS
       • 1958 Optional Protocol of
         Signature concerning the
         Compulsory Settlement of
         Disputes, Preamble:
          – [The States Parties,e]xpressing
            their wish to resort, in all matters
            concerning them in respect of any
            dispute arising out of the
            interpretation or application of any
            article of any Convention on the
            Law of the Sea of 29 April 1958,
            to the compulsory jurisdiction of
            the International Court of Justice,
            unless some other form of
            settlement is provided in the
            Convention or has been agreed
            upon by the parties within a
            reasonable period,”
 Overview of UNCLOS III: The need for
Effective Dispute Settlement Mechanisms
                      Conflicting approaches:
                      - Direct involvement of
                        parties in the
                        settlement
                      - Need for binding
                        settlement




                      Result: compromise
                       between the two
                       approaches
2. General principles
       Settlement of Disputes
• States Parties shall settle any dispute
  concerning UNCLOS’ interpretation and
  application by peaceful means (art. 279);

• Right to settle the dispute by means of the
  parties’ choice (art. 280):
  - Non-binding settlement among parties concerned;
  - Binding settlement through third party mechanism
     to be chosen.
3. Available mechanisms
A Flexible Dispute Settlement Regime



      A - CONSENSUAL SETTLEMENT
            Section 1 of Part XV

      B - COMPULSORY SETTLEMENT
            Section 2 of Part XV
        A - Consensual settlement
            exchange of views

•   Obligation to exchange views (art. 283): “the
    parties to the dispute shall proceed expeditiously to
    an exchange of views regarding its settlement by
    negotiation or other peaceful means”

   WHENEVER:
1. a dispute arises;
2. a procedure for the settlement of a dispute has
   been terminated without a settlement; or
3. a settlement has been reached and the
   circumstances require consultation regarding the
   manner of implementing the settlement.
      Consensual settlement:
          mechanisms
• Direct involvement of parties:
  Negotiations

• Third party settlement – non binding:
1. Enquiry
2. Mediation
3. Conciliation

• Regional agencies or arrangements
Dispute Settlement by Procedures of
       Choice of the Parties

• Annex V Conciliation
  – A State Party which is a party to a
    dispute concerning the interpretation or
    application of the Convention may invite
    the other party or parties to submit the
    dispute to conciliation in accordance
    with the procedure under Annex V of
    the Convention or another conciliation
    procedure
Dispute Settlement by Procedures of
       Choice of the Parties

• A list of conciliators shall be drawn up
  and maintained by the Secretary-
  General of the United Nations,
• The conciliation commission shall
  consist of five members,
B – Compulsory Settlement
• Any dispute concerning the
  interpretation or application of the
  Convention shall, where no
  settlement has been reached by
  recourse to consensual mechanisms
  for the settlement of the dispute, be
  submitted at the request of any party
  to the dispute to the court or tribunal
  having jurisdiction under this section
  (article 286).
            Compulsory settlement
                                         An arbitral
                        The
                                           tribunal
                   International
                                       constituted in
                      Court of
                                        accordance
                      Justice;
                                       with Annex VII;


      The                                              A special
 International                                      arbitral tribunal
Tribunal for the                                     constituted in
   Law of the                   Disputes              accordance
     Sea;                      settled by           with Annex VIII.
                               binding 3rd
                                  Party
                              Mechanisms
     Annex VII Arbitration

• A list of arbitrators shall be drawn up
  and maintained by the Secretary-
  General of the United Nations. It can
  be found in the webpage of the Treaty
  Section, Office of Legal Affairs.
• The arbitral tribunal consist of five
  members.
     Annex VII Arbitration
• Constitution of the Tribunal
• Other characteristics:
  – The expenses of the tribunal, including
    the remuneration of its members, shall
    be borne by the parties to the dispute in
    equal shares.
  – The award is final and without appeal,
    unless the parties to the dispute have
    agreed in advance to an appellate
    procedure.
 Annex VII Arbitration
                   ICSID
                   • Australia & New Zealand v. Japan
                     (“Southern Bluefin Tuna Case”)




PCA
• Ireland v. United Kingdom (“MOX
  Plant Case”)
• Malaysia v. Singapore
• Barbados v. Trinidad and Tobago
• Guyana v. Suriname


                   Pending case
                   • Settlement of the maritime boundary
                     dispute between Bangladesh and
                     India in the Bay of Bengal
Annex VII Arbitration: default

• Annex VII arbitration applies:
• If a party to a dispute is not covered by a
  declaration in force
• If parties to a dispute have not accepted
  the same procedure for the settlement of
  the dispute, it may be submitted only to
  arbitration in accordance with Annex VII,
  unless the parties otherwise agree.
Annex VIII Special Arbitration

                       fisheries




     navigation,
      including
                      Types           protection
                                         and
    pollution from
     vessels and
                        of          preservation
                                    of the marine
     by dumping                     environment
                     disputes


                        marine
                       scientific
                       research
Annex VIII Special Arbitration
• Lists of experts shall be kept in the
  expertises of:
   – Fisheries: by the Food and Agriculture
     Organization of the United Nations
   – Protection and preservation of the marine
     environment: by the United Nations
     Environment Programme
   – Marine scientific research: by the
     Intergovernmental Oceanographic Commission
   – Navigation, including pollution from vessels and
     by dumping: by the International Maritime
     Organization, or its appropriate subsidiary body
Annex VIII Special Arbitration
• The arbitral tribunal consist of five
  members.
• Constitution of the Tribunal
• Other characteristics:
   – The expenses of the tribunal, including the
     remuneration of its members, shall be borne by
     the parties to the dispute in equal shares.
   – The award is final and without appeal, unless
     the parties to the dispute have agreed in
     advance to an appellate procedure
                           ICJ
• Located in The Hague,
  Netherlands.
• Established by its Statute,
  annexed the UN Charter.
• 15 Judges who possess
  the qualifications required
  in their respective
  countries for appointment
  to the highest judicial
  offices, or have
  recognized competence
  in international law.
ICJ
                   ITLOS
• Located in Hamburg,
  Germany.
• Established by Annex
  VI of the Convention.
• 21 Judges with
  recognized
  competence in Law of
  the Sea
• Elections for 9 seats
  to be held in 2011
    International Tribunal for the Law of
                   the Sea
•        Organization and functions
     –        Seabed Disputes Chamber
          •     Ad hoc chambers for particular disputes
     –        Chamber of Summary Procedure
     –        Special chambers for categories of disputes
          •     Chamber for Fisheries Disputes
          •     Chamber for Marine Environment Disputes
          •     Chamber for Maritime Delimitation Disputes
     –        Special chambers for particular disputes
International Tribunal for the Law of
               the Sea
• The Tribunal is open to all States
  Parties and entities referred to in Part
  XI,
• Applicable law:
  – The Convention
  – Other rules of international law not
    incompatible with the Convention
• Cases can be decided ex aequo et
  bono,
• Enforcement of decision.
International Tribunal for the Law of
               the Sea
• Jurisdiction
   – Contentious proceedings
      • Disputes concerning the Convention: “any dispute
        concerning the interpretation or application off [the]
        Convention”
      • Disputes concerning other agreements: “all matters
        specifically provided for in any other agreement”
      • Prompt release
      • Provisional Measures
   – Advisory proceedings
      • Advisory opinions given by the Seabed Disputes
        Chamber
      • Advisory opinions given by the Tribunal
International Tribunal for the Law of
               the Sea
 •   Agreement to Promote Compliance with International Conservation
     and Management Measures by Fishing Vessels on the High Seas;
     24 November 1993;
 •   Straddling Fish Stocks Agreement; 4 August 1995;
 •   1996 Protocol to the Convention on the Prevention of Marine
     Pollution by Dumping of Wastes and Other Matter, 1972; 7
     November 1996;
 •   Framework Agreement for the Conservation of the Living Marine
     Resources on the High Seas of the South-Eastern Pacific; 14
     August 2000;
 •   Convention on the Conservation and Management of Highly
     Migratory Fish Stocks in the Western and Central Pacific Ocean; 5
     September 2000;
 •   Convention on the Conservation and Management of Fishery
     Resources in the South-East Atlantic Ocean; 20 April 2001;
 •   Convention on the Protection of the Underwater Cultural Heritage; 2
     November 2001;
 •   Convention on Future Multilateral Cooperation in North-East
     Atlantic Fisheries; 18 November 1980, as amended;
 •   IMO Wreck Removal Convention, 2007.
International Tribunal for the Law of
               the Sea
 Adjudicated cases
 • Substantive cases
      –   The M/V "SAIGA" (No. 2) Case (Saint Vincent and the Grenadines v. Guinea)
      –   Case concerning the Conservation and Sustainable Exploitation of Swordfish
          Stocks in the South-Eastern Pacific Ocean (Chile/European Union)
 •   Provisional measures
      –   Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan)
      –   The MOX Plant Case (Ireland v. United Kingdom)
      –   Case concerning Land Reclamation by Singapore in and around the Straits of
          Johor (Malaysia v. Singapore)
 •   Prompt release
      –   The M/V "SAIGA" Case (Saint Vincent and the Grenadines v. Guinea)
      –   The "Camouco" Case (Panama v. France)
      –   The "Monte Confurco" Case (Seychelles v. France)
      –   The "Grand Prince" Case (Belize v. France)
      –   The "Chaisiri Reefer 2" Case (Panama v. Yemen)
      –   The "Volga" Case (Russian Federation v. Australia)
      –   The "Juno Trader" Case (Saint Vincent and the Grenadines v. Guinea-Bissau)
      –   The "Hoshinmaru" Case (Japan v. Russian Federation)
      –   The "Tomimaru" Case (Japan v. Russian Federation)
International Tribunal for the Law of
               the Sea
Pending cases
• Contentious Case
  – Dispute concerning delimitation of the maritime
    boundary between Bangladesh and Myanmar in
    the Bay of Bengal
  – Dispute concerning the M/V "Louisa" between
    Saint Vincent and the Grenadines and Spain
    (sonar and cesium magnetic surveys of the sea
    floor of the Bay of Cadiz in order to locate and
    record indications of oil and methane gas –
    arrested - violations of Spain’s historical patrimony
    or marine environment laws – permit)
International Tribunal for the Law of
               the Sea
• Upcoming vacancies
  – The current term of seven Judges expire
    on 30 September 2011,
  – Second term of the Registrar to expire on
    21 September 2011,
  – Second term of the Deputy Registrar to
    expire on 25 June 2012.
Proceedings at the Seabed Disputes
            Chamber
  • A Chamber of ITLOS
  • Special jurisdiction
  • Not affected by the declaration
    referred in article 287.
Proceedings at the Seabed Disputes
            Chamber
 Not a an Administrative        Advisory Opinions upon
           Tribunal                        request
• The Seabed Disputes          • The Seabed Disputes
  Chamber shall have no          Chamber shall give
  jurisdiction with regard       advisory opinions at the
  to the exercise by the         request of the
  Authority of its               Assembly or the
  discretionary powers in        Council on legal
  accordance with the            questions arising within
  Convention, and in no          the scope of their
  case shall it substitute       activities. Such
  its discretion for that of     opinions shall be given
  the Authority.                 as a matter of urgency
Proceedings at the Seabed Disputes
            Chamber
 • No contentious cases to date
 • One advisory opinion:
   – Responsibilities and obligations of States
     sponsoring persons and entities with
     respect to activities in the International
     Seabed Area
     Compulsory settlement:
         Exclusions
• General exclusions (297):
  – Exercise of rights/jurisdiction within own EEZ
  – Marine Scientific Research
  – Fishing

• Optional exclusions (298):
  – Delimitation/claims to historic waters;
  – Military/law enforcement activities
  – Disputes in respect of which the S.C. is
    exercising its functions.
• Reciprocity
        The will of States
• A dispute covered by a limitation or
  excepted by a declaration from the dispute
  settlement procedures provided for in the
  Convention may be submitted to such
  procedures only by agreement of the parties
  to the dispute.
• Nothing in the Convention impairs the right
  of the parties to the dispute to agree to
  some other procedure for the settlement of
  such dispute or to reach an amicable
  settlement.
   Compulsory Conciliation

• In cases in which the aforementioned
  limitations apply, or in which the
  exception concerning the
  interpretation or application of
  provisions relating to sea boundary
  delimitations, or those involving
  historic bays or titles applies
Choice of compulsory procedure
          (article 287)
• ITLOS
  – 27 as first choice
• ICJ
  – 17 as first choice, 4 as second choice, 2 as
    third choice
• Annex VII Arbitration
  – 7 as first choice, 2 as second choice
• Annex VIII Arbitration
  – 5 as first choice, 3 as second choice, 1 as
    third choice
        Provisional measures
• Cases submitted to ITLOS for provisional measures,
  pending the constitution of an arbitral tribunal:
   – Southern Bluefin Tuna Cases (New Zealand v. Japan;
     Australia v. Japan),
   – The MOX Plant Case (Ireland v. United Kingdom),
   – Case concerning Land Reclamation by Singapore in and
     around the Straits of Johor (Malaysia v. Singapore),
            Prompt release
• The M/V "SAIGA" Case (Saint Vincent and the
  Grenadines v. Guinea)
• The "Camouco" Case (Panama v. France)
• The "Monte Confurco" Case (Seychelles v. France)
• The "Grand Prince" Case (Belize v. France)
• The "Chaisiri Reefer 2" Case (Panama v. Yemen)
• The "Volga" Case (Russian Federation v. Australia)
• The "Juno Trader" Case (Saint Vincent and the
  Grenadines v. Guinea-Bissau)
• The "Hoshinmaru" Case (Japan v. Russian
  Federation)
• The "Tomimaru" Case (Japan v. Russian Federation)
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