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Dispute Settlement under UNCLOS (Part XV of UNCLOS (Procedures (VOLUNTARY…
Dispute Settlement under UNCLOS
Part XV of UNCLOS
integral part of the Convention
when a state consents to be bound by UNCLOS,
it accepts its detailed regulation of dispute settlement procedures
no reservations to UNCLOS are possible!
basic principle
as long as states resolve their disagreements through peaceful means,
they can freely choose the means of settlement
Procedures
VOLUNTARY (Section 1)
traditional consent-based procedures
negociation
reconciliation
settlement through a separate agreement
a dock arbitration
outside the conventions framework if both parties consent to it
COMPULSORY (Section 2)
binding third-party settlement
International Tribunal for the Law of the Sea
International Court of Justice
Arbiter Tribunal constituted in accordance with Annex VII
default choice of procedure
when the parties to a dispute have chosen different procedures as their preferred method of settlement or have not made a choice at all, the dispute will be dealt with by an Annex VII arbitral tribunal
Annex VII details the procedure to be followed for the constitution and the operation of the arbitral tribunal.
Unless the parties agree otherwise, a tribunal is composed of five members
Each of the parties can appoint a member, and
the other three members are chosen by agreement.
if parties cannot reach agreement
1 more item...
The tribunal determines its own procedure
the tribunal can deliver its award even in case of default of one party
but must satisfy itself that it has jurisdiction and that the claim is well founded in fact and in law.
if the parties disagree on the interpretation or the implementation of an award
they can submit the matter for decision to the arbitral tribunal they rendered the award.
special Arbiter Tribunal constituted in accordance
with Annex VIII for certain categories of disputes
disputes amenable to special arbitration
fisheries
protection and preservation of the marine environment
marine scientific research
navigation
To deal with such technical issues, the tribunal is composed of experts.
its function is not limited to adjudication, but can be broadened to include fact-finding and conciliation
Section 3
exclusions and limitations to
compulsory settlement
Art. 298
categories of disputes the states can exclude
from compulsory settlement by means of a written declaration
maritime delimitation
historic bays or titles
military or law enforcement activities
disputes in relation to which
the Security Council is exercising its functions under the UN Charter
Both procedures can be initiated unilaterally
relationship between voluntary and compulsory procedures
voluntary procedures take precedence over compulsory procedures
example of two states that have
agreed to settle their dispute through negotiation
Either state can resort to the compulsory procedures under Section 2 if two conditions are met
1) if no settlement was reached through the negotiation
2) if the procedure agreed to doesn't exclude
recourse to the compulsory means of settlement under Section 2 of UNCLOS
key point of controversy here is whether there must be
an explicit exclusion of other dispute settlement procedures or not
See South China Sea Arbitration
when the parties to a dispute concerning the interpretation or application of UNCLOS are also parties to an agreement which has its own dispute settlement mechanism entailing binding decisions
Art. 282
the dispute settlement procedures under other agreements
apply instead of the compulsory procedures under UNCLOS
a state party to a dispute cannot resort to the compulsory procedures in Section 2 without having first fulfilled their obligation to exchange views