Dispute settlement and the law of the sea: The UN convention regime

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Marine Policy, Vol. 21, No. 1, pp. 17-43, 1997 Copyright © 1997 Elsevier Science Ltd Printed in Great Britain. All rights reserved 0308-597X/97 $17.00 + 0.00

Pergamon

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Dispute settlement and the law of the sea: the UN Convention regime

E D Brown

Following the election of members of the new International Tribunal for the Law of the Sea in August 1996, this article outlines the provision made for the settlement of disputes under the UN Convention on the Law of the Sea and related instruments against the background of the earlier regime of dispute settlement under international law. It goes on to review the progress made in bringing the new system into operation and to evaluate the contribution which it is likely to make. Copyright © 1997 Elsevier Science Ltd

E D Brown is Director of the Centre for Marine Law & Policy, University of Wales, Cardiff, UK.

1Law of the Sea Bulletin (Los Bull.) Special Issue IV, 1994, p 10; UK Misc. No 44 (1994),Cm 2705. On the New York Agreement, see further E D Brown, The 1994 Agreement on the Implementation of Part Xl of the UN Convention on the Law of the Sea: breakthrough to universality?, Marine Policy, 1995, 19(1), 5-20. 2A/CONF.164/22/Rev.1, 11 April 1995; International Legal Materials, 1995, 34, 1542.

The 16th of November 1994 was a landmark in the evolution of the law of the sea, not only because it saw the entry into force of the new, comprehensive code for the oceans provided by the United Nations Convention on the Law of the Sea, 1982 (UN Convention), but also because States Parties became bound, as from that date, by a system for the compulsory settlement of law of the sea disputes laid down in the Convention. The general shape of this system has, of course, been known since the UN Convention was adopted in 1982. This is, however, an appropriate time to present an account of the new dispensation for a number of reasons. The first reason is that, following the election of members of the International Tribunal for the Law of the Sea (ITLOS) in August 1996, the system is now almost ready to function. A second reason is that it is now timely, two years after the entry into force of the Convention, to review the emerging pattern in the choice of dispute settlement modes made by States Parties, either expressly in declarations or by implication as a result of the failure so far of some States Parties to make such declarations. Finally, in presenting an up-to-date account of these developments, note has to be taken of the implications of two Agreements adopted in 1994 and 1995 which purport to implement the U N Convention: the Agreement of 28 July 1994 Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 ~ (the New York Agreement) and the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the 'Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 2 (the Fish Agreement). This article falls into five parts. First, by way of background, a brief account is given of the provision made for the compulsory settlement of law of the sea disputes prior to the entry into force of the UN Convention. Secondly, an outline is given of the system established by Part XV of the UN Convention and related articles, as modified by the 1994 New York Agreement, and as supplemented by the 1995 Fish 17

Dispute settlement and the law of the sea: E D Brown

Agreement. Thirdly, an analysis is presented of the choice of fora made in the declarations so far submitted by States Parties and signatories of the UN Convention. Fourthly, an account is given of the provision made in the UN Convention for the actual establishment of the various new institutions which will form part of the machinery for dispute settlement under the Convention and of the progress made in setting up these institutions. Finally, an attempt is made to evaluate the contribution which the new system may be expected to make to the development of the rule of law in international marine affairs.

Dispute settlement pre-1994

3International Court of Justice, Yearbook 1994-1995 (No 49, 1995), pp 60 and 79. The texts of the declarations are reproduced at pp 80-119. 41bid., p 85. ~lbid., p 97, emphasis added. 61bid., p 79, note 1. ~See, eg, the list of such instruments in the Court's Yearbook (op cit in note 3, at pp 119-137). They include the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes of 18 April 1961 (500 UNTS 7312) and the similar Optional Protocol to the Vienna Convention on Consular Relations of 24 April 1963 (596 UNTS 8640) on a pattern similar to the Optional Protocol to the 1958 Geneva Conventions on the Law of the Sea referred to below.

18

It is sometimes difficult to remember that international law is still in large part a system of auto-interpretation in which the unqualified acceptance by States of an obligation to submit their disputes to a binding form of third-party settlement is still highly exceptional. Moreover, even when accepted, such obligations are frequently not honoured. These sobering facts can be illustrated both in relation to international law in general and to the law of the sea, prior to 1994, in particular. On the general level, it is open to States to make a declaration under Article 36(2) (the "optional clause") of the Statute of the International Court of Justice, accepting the Court's compulsory jurisdiction. However, the latest edition of the Court's Y e a r b o o k shows that, as at 31 July 1995, only 59 States out of a total United Nations membership of 185 States had made such declarations. 3 Moreover, many of these States had not seen fit to make a declaration in unqualified form but hedged around their declarations with objective or, much worse, subjective domestic jurisdiction reservations. An example of the objective form of such reservations is provided by the Canadian declaration of 10 May 1994, which reserves from the Court's jurisdiction "disputes with regard to questions which by international law fall exclusively within the jurisdiction of Canada" .4 Under this type of reservation, while it is open to a reserving State to raise a preliminary objection to proceedings brought against it on the ground that they concern matters exclusively within the jurisdiction of the State, it is left to the Court to decide objectively in accordance with international law whether or not such a claim can be sustained. On the other hand, where a subjective domestic jurisdiction reservation has been made, the Court is deprived of this power. For example, Liberia's declaration does not apply "to any dispute which the Republic o f Liberia considers" essentially within its domestic jurisdiction". 5 Given the influential part played by the United States delegation in the design and formulation of the dispute settlement provisions of the UN Convention on the Law of the Sea, it is also of interest to note that the United States is one of 12 States whose optional clause declarations have expired, been withdrawn or been terminated without being subsequently replaced since 1951J' The other 11 are Bolivia, Brazil, China, El Salvador, France, Guatemala, Iran, Israel, South Africa, Thailand and Turkey. It is true, of course, that obligations of compulsory dispute settlement have been accepted in a large number of other instruments but on a highly selective basis. 7 The background in the law of the sea area is similarly uninspiring. As

Dispute settlement and the law o f the sea: E D Brown

8United Nations, Multilateral Treaties Deposited with the Secretary-GeneraL Status as at31 December 1994, 1995 (UN, Multilateral Treaties 1994), at p 849, updated to 1 September 1996 by UN Treaty Section. Moreover, not all of these States were States Parties to all four of the Geneva Conventions. 9In Fisheries Jurisdiction ( U.K. v. Iceland), Jurisdiction of the Court, ICJ Reports 1973, p 3, Iceland simply declared that the Court lacked jurisdiction and declined to be represented in the proceedings or to file pleadings. The Court found that it possessed jurisdiction and gave judgment in 1974 (ICJ Reports 1974, p 3). In the Nuclear Tests cases (Australia v. France; New Zealand v. France), ICJ Reports 1974, pp 253 and 457, France stated that it considered the Court manifestly to lack jurisdiction and refrained from appearing at the public hearings or filing any pleadings. The Court indicated interim measures of protection in 1973 but found in 1974 that, as the application no longer had any object, it was not called upon to give a decision. Finally, in the Aegean Sea Continental Shelf Case (Greece v. Turkey), ICJ Reports 1978, p 3, Turkey informed the Court on 20 April 1978 that it did not accept its jurisdiction and was not represented before the Court. The Court found that it lacked jurisdiction. 1°The Canadian declaration of 10 May 1994 (ICJ Yearbook 1994-1995, No 49, 1995, p 85) replaced a declaration of 10 September 1985 (ICJ Yearbook 19921993, No 47, 1993, p 79) and further reserved from the Court's jurisdiction: "disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area, as defined in the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures". The reservation was clearly designed to prevent the submission to the Court of any dispute over amendments to the Coastal Fisheries Protection Act (text in LOS Bull. No 26, 1994, pp 20-23). The amendments made it an offence for foreign fishing vessels, in the NAFO Regulatory Area, to fish for a straddling stock in contravention of any of the prescribed conservation and management measures and gave protection officers wide-ranging powers of enforcement, including the use of force to disable a foreign fishing vessel. According to a report of the incident in The Times (London, 14 March 1995), the Estai was arrested and towed to a Canadian port following several bursts of machine-gun fire across its bows by a Canadian patrol vessel. Spain nonetheless instituted proceedings against Canada on 28 March 1995. The written proceedings in the Jurisdiction phase of the case were terminated by the Court in Fisheries Jurisdiction Case (Spain v. Canada), Order of 8 May 1996. There are echoes in continued on page 20

at 1 September 1996, only 37 States were bound by the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes associated with the four 1958 Geneva Conventions on the Law of the Sea. s Nor, in cases before the Court, did the attitudes of Iceland in the Fisheries Jurisdiction cases (1973-74), of France in the Nuclear Tests cases (1974), or of Turkey in the Aegean Continental Shelf case (1978) reflect a very positive attitude to international adjudication. 9 More recently, in 1994, Canada revised its optional clause declaration to ensure that any action taken against foreign vessels under its amended fisheries legislation should not be challenged before the Court. It was thus able to rely on this exclusion of the Court's jurisdiction when, in March 1995, it arrested the Spanish trawler Estai for alleged illegal fishing at a point on the high seas reported to be 45 nautical miles outside Canada's 200-mile fisheries zone.~° Does this background have any relevance to the provision now made in the UN Convention for the settlement of disputes? It is submitted that it does. The very fact that the attitude of States to dispute settlement has apparently been radically transformed overnight by the UN Convention must at least suggest the need for caution in assessing the prospects for the successful implementation of the new scheme. To some extent, these prospects have been improved by escape clauses written into the scheme itself, i i However, there is no guarantee that, in relation to other issues, States Parties will faithfully honour their dispute-settlement obligations. Some of the issues which may give rise to problems in the future are suggested by the terms in which declarations made on signature or ratification have been couched. For example, a number of States interpret the UN Convention as excluding any right for a State to conduct military exercises or build or operate an installation or structure of any kind in another State's exclusive economic zone. ~ Several States claim that they are entitled, under the Convention, to require either prior notification of, or their prior consent for, the innocent passage of foreign warships, nuclear-powered ships and ships carrying nuclear or other hazardous substances through the territorial sea. 13 Again, problems may arise over the attitude adopted by the Philippines towards the provisions of the Convention on archipelagic waters 14 or over Yugoslavia's declaration in relation to the unilateral identification of straits to which the regime of innocent passage applies, or in relation to the delimitation of the contiguous zone.15 T h e dispute settlement scheme in outline The general scheme for the settlement of disputes is laid down in Part XV of the Convention and falls into three sections dealing with: (1) the general obligation to settle disputes by peaceful means and preliminary steps to which all disputes are subject; 16 (2) compulsory procedures entailing binding decisions;17 and (3) limitations and optional exceptions to such compulsory procedures. TM Section 1. General pro visions Article 279 of Section 1 is simply a restatement of the obligation upon members of the United Nations under Articles 2(3) and 33(1) of the Charter of the United Nations to settle disputes by peaceful means. It may be marginally useful in that it binds non-Members of the United Nations to undertake the same obligation. It is followed by Article 280,

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Dispute settlement and the law of the sea: E D Brown

which provides that nothing in Part XV impairs the right of States Parties to agree at any time to settle a dispute between them relating to the interpretation or application of the Convention by any peaceful means of their choice. Such choice may be dictated by the terms of other agreements imposing particular binding procedures upon the parties to them, as recognised in Article 282, or emerge from the obligation to exchange views regarding settlement, as envisaged in Article 283. Section 2. Compulsory procedures entailing binding decisions

continued from page 19 Canada's 1994 declaration of the policy adopted in 1970 when, under a declaration dated 7 April 1970, (ICJ Yearbook 19841985, pp 71-72), Canada ensured that its Arctic Waters legislation would not be tested in the International Court (for the Arctic Waters Pollution Prevention Act 1970 and related documents, see International Legal Materials, 1970, IX, 543 and 598-615). 11See further below. 12See, eg, the declarations made by the following States: Brazil, Cape Verde, Uruguay and Yemen (LOS Bull., No 25, June 1994, at pp 11 and 25 (Brazil); 11 and 26 (Cape Verde); 37 (Uruguay); and 20 and 38 (Yemen); or in United Nations, op cit in note 8, at pp 854 and 865-866). It may be noted that Cape Verde declared, interalia, that it does not accept the procedures provided for in Part V, Section 2 of the UN Convention for the settlement of disputes concerning military activities. 13See, eg, the declarations made by the following States: Iran, Oman, Romania, Sao Tome and Principe, Sudan and Yemen (LOS Bull., No 25, June 1994, at pp 29 (Iran); 16 and 33 (Oman), 33 (Romania); 34 (Sao Tome and Principe); 36 (Sudan); and 20 and 38 (Yemen); or in United Nations, op cit in note 8, at pp 859-866; and Croatia (LOS Bull., No 27, 1995, p 9). Similar declarations have been made in 1996 by Algeria, China and Saudi Arabia (LOS Bull., No 31, 1996, pp 7, 8,

10). 14See declarations made by Philippines on signature and subsequently in response to objections by other States (LOS Bull., No 25, June 1994, pp 18 and 49; or in United Nations, op cit, in note 8, at pp 862 and 870, note 9). ~SSee declaration made by Yugoslavia on signature (LOS Bull., No 25, June 1994, p 20; or in United Nations, op cit, in note 8, at p 866). ~6part XV, Section 1 (Articles 279-285). 17Part XV, Section 2 (Articles 286-296). ~SPart XV, Section 3 (Articles 297-299). ~gSee further E Lagoni, ed, The International Tribunal for the Law of the Sea: Establishment and 'prompt release' Procedures, Int. J. Marine and Coastal Law, 1996, 11, (special issue).

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If no settlement is reached by recourse to Section 1, then, under Article 286, the dispute must be submitted, at the request of any party to it, to the court or tribunal which has jurisdiction under Section 2. Article 287(1) of this Section allows States Parties to make a written declaration choosing one or more of the four procedures specified: the International Tribunal for the Law of the Sea; the International Court of Justice (ICJ); an arbitral tribunal under Annex VII; or a special arbitral tribunal under Annex VIII (but only for categories of disputes specified therein). Where a party or parties to a dispute have made no such declaration or have not accepted the same procedure in their declarations, the dispute must be referred to arbitration under Annex VII. In addition to having a general jurisdiction over any dispute concerning the interpretation or application of the UN Convention, the court or tribunal chosen under Article 287 also has a special role to play in securing the prompt release of foreign vessels and crews detained by a State Party.~9 Earlier provisions of the Convention make provision for such prompt release. For example, under Article 73(1), (2) and (4), the arrest of a foreign vessel by a coastal State in the exercise of its sovereign rights to explore, conserve and manage the living resources of the E E Z must be promptly notified to the flag State and the vessel must be promptly released upon the posting of reasonable bond or other security. Similar safeguards are provided by Article 226(1)(b) in relation to investigatory powers enjoyed by the coastal State and the port State over alleged violations of enviromnetal laws. Where the investigation indicates a violation of the relevant law, release must be made promptly, subject to such reasonable procedures as bonding or other appropriate financial security--unless, under Article 226(1)(c), the release would present an unreasonable threat of damage to the marine environment. It is in relation to the alleged failure by a State Party to comply with such obligations of prompt release that Article 292 endows the court or tribunal concerned with a special jurisdiction. The question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under Article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree. The detaining State is required to comply promptly with any consequent decision concerning release of the vessel or its crew. Provision is also made in Article 290 for the prescription of provisional measures in appropriate cases. Provided a court or tribunal considers that, prima facie, it has jurisdiction, it may prescribe provisional measures to preserve the respective rights of the parties to a dispute or to prevent serious harm to the marine environment, pending a final decision.

Dispute settlement and the law of the sea: E D Brown Section 3. Limitations and exceptions to applicability of Section 2 Section 3 includes three articles: Article 297 embodies general limitations to the applicability of Section 2 procedures, those limitations being "general" in the sense that all State Parties are automatically entitled to invoke opting-out clauses in relation to categories of dispute referred to in Article 297. Article 298 embodies further optional exceptions to the applicability of Section 2 procedures, these exceptions being "optional" in the sense that, if a State Party wishes to exclude any of the specified categories of dispute from the application of Section 2 procedures, it must make a written declaration to that effect. Article 299 recognises the right of States Parties, notwithstanding such limitations or exceptions, to settle disputes by any procedure they wish, so long as they have agreed upon it.

(i) General limitations on applicability of Section 2--Article 297 Article 297 refers to disputes concerning the interpretation or application of the U N Convention with regard to three separate areas: (1) the exercise by a coastal State of its sovereign rights or jurisdiction provided for in the Convention; (2) marine scientific research; and (3) fisheries. So far as marine scientific research and fisheries are concerned, the relevant provisions--Article 297(2) and Article 297(3)--follow the same basic pattern: first, there is a statement of the general rule that disputes shall be settled in accordance with Section 2; and this is followed by a statement of the coastal State's right to exclude specified categories of dispute from submission to such settlement procedures. These rules are relatively straightforward and will be considered first. It will then be necessary to revert to Article 297(1) which does not follow the same pattern and is drafted in a very confusing way.

Marine scientific research disputes. Article 297(2), after providing that marine scientific research disputes will be settled in accordance with Section 2, allows the coastal State to opt out of any such procedure when the dispute arises out of: (1) the exercise by the coastal State of a right or discretion in accordane with Article 246 (governing marine scientific research in the E E Z and on the continental shelf); or (2) a decision by the coastal State to order suspension or cessation of a research project in the E E Z or on the continental shelf under Article 253. If the researching State alleges that the coastal State has not exercised its rights under Articles 246 and 253 in a manner compatible with the Convention, the dispute may be submitted, at the request of either party, to conciliation under Part V, Section 2. However, the report of the commission is not binding 2° and, in any event 2°UN Convention, Annex V, Art 7(2), as applied by Art 14. 21UN Convention, Art 297(2)(b). 22More detailed provision is made for the settlement of disputes concerning the interpretation or application of the Fish Agreement of 4 August 1995 (note 2 above) which implements the provisions of the UN Convention dealing with straddling fish stocks and highly migratory fish stocks. See further below under 'Fishery disputes: the Fish Agreement of 4 August 1995'.

the conciliation commission shall not call in question the exercise by the coastal State of its discretion to designate specific areas as referred to in article 246, paragraph 6, or of its discretion to withhold consent in accordance with article 246, paragraph 5. 21

Fisheries disputes. Article 297(3), after specifying that fisheries disputes must be settled in accordance with Section 2, 22 allows the coastal State to exclude from this obligation any dispute relating to [the coastal State's] . . . sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting

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capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations. Here too, where no settlement is reached by resort to Section 1, the dispute may be referred to conciliation, at the request of either party, in three specified cases. Once again, however, the recommendations of the conciliation commission are not binding 23 and in no case may it substitute its discretion for that of the coastal State. 24

Disputes regarding the exercise by the coastal State of its sovereign rights or jurisdiction provided for in the Convention. It will be recalled that

23Annex V, Art 7(2), as applied by Art 14. 24UN Convention, Art 297(3)(c). 2~lnformal Single Negotiating Text, Part IV (A/CONF.62/WP.9/Rev.1, 6 May 1976), Art 18(1) (UNCLOS III Official Records, Vol V, 1976, p 185, at p 190). 26Revised Single Negotiating Text, Part IV (A/CONF.62/WP.9/Rev.2, 23 November 1976), Art 17(1) (UNCLOS III Official Records, Vol VI, 1977, p 144, at pp 147-148).

22

Article 297(1) is the first paragraph of an article entitled "Limitations on applicability of Section 2". However, in making provision for such "limitations", it does not follow the same pattern as that noted above in relation to marine scientific research and fisheries. There is no statement of the general applicability of Section 2 procedures to such disputes, followed by an opting-out clause. Instead, Article 297(1) simply provides that disputes concerning the interpretation or application of the UN Convention with regard to the exercise by the coastal State of its sovereign rights or jurisdiction provided for in the Convention will be subject to Section 2 procedures in three cases: (1) when the coastal State is alleged to have contravened the provisions of the Convention on the freedoms and rights of navigation, overflight or the laying of submarine cables and pipelines, or in regard to other internationally lawful uses of the sea specified in Article 58--that is, the high seas freedoms imported into the E E Z by Article 58(1); (2) when another State is alleged to have contravened the Convention or related rules when exercising the said freedoms, rights or uses; or (3) when it is alleged that the coastal State has contravened specified environmental rules and standards. The reader may well wonder in what sense this paragraph embodies a limitation upon the applicability of Section 2, since it appears, on the contrary, to be emphasising that Section 2 procedures must apply in these three cases. The mystery is partly explained by the drafting history of Article 297. In an early draft of what became Article 297(1), 25 the principal thrust of the paragraph was to provide for the automatic exclusion from the Convention's dispute settlement procedures of any dispute relating to the exercise of the coastal State's sovereign rights, exclusive rights or exclusive jurisdiction. By way of exception, however, the categories of dispute now included in Article 297(1) remained subject to the applicability of the Convention's procedures. In other words, although formulated as an exception to an exclusion, the result of this provision was to retain the applicability of the Convention's dispute settlement procedures to these categories of dispute. In a later draft, 26 the article was given its present title of "Limitations on applicability of Section 2" and the first paragraph still made sense because it provided that Section 2 procedures would apply to disputes relating to the exercise of a coastal State's sovereign rights, exclusive rights or exclusive jurisdiction "only in the following cases" (emphasis added), that is, the three categories now included in Article 297(1). The applicability of Section 2 was thus "limited" in that it did not apply to other categories of disputes relating to the exercise of the coastal State's sovereignty etc. Unfortunately, the logic disappeared when the final text of Article 297(1) was drafted and the word "only" was omitted. What then, is the meaning of the final formulation of Article 297(1)?

Dispute settlement and the law o f the sea: E D Brown

It is probably best to approach this question by broadening it and asking: (1) What, in the context of Part XV as a whole, is the position regarding the three categories of disputes specified in Article 297(1) and involving the exercise by the coastal State of its sovereign rights or jurisdiction?; and (2) What, in the same context, is the position regarding disputes relating to the exercise by the coastal State of its other sovereign rights or jurisdiction?

The three categories of disputes falling under Article 297(1). Under Articles 280 and 299(2), it is open to the parties to any dispute concerning the interpretation or application of the UN Convention to settle it by any procedure on which they can agree. Article 297(1) comes into play in the absence of such agreement and requires the submission of disputes falling into one of the three categories covered by this paragraph to a Section 2 procedure. Other categories of disputes over the exercise of sovereign rights or jurisdiction. Here too, Article 280 permits the parties to agree upon any procedure for peaceful settlement. If, however, no settlement is thus achieved, Article 286, the opening provision of Section 2, comes into operation and the dispute must be submitted, at the request of any party to the dispute, to the court or tribunal having jurisdiction under Section 2. The provisions of Article 286 are "subject to Section 3", but Section 3 has no relevance in this case. (ii) Optional exceptions to applicability of Section 2--Article 298 As has been seen, the coastal State is not obliged to accept submission of certain disputes over marine scientific research or E E Z fisheries to compulsory procedures entailing binding decisions. On the other hand, it is free to do so if it so wishes. In other words, the coastal State may take advantage of what are, in effect, optional exceptions to the applicability of Section 2. A further set of optional exeptions is offered by Article 298. Under Article 298(1), a State may declare that it does not accept any one or more of the Section 2 procedures for one or more of three categories of disputes: (1) disputes over sea boundary delimitations or historic bays or titles; (2) disputes over military activities and disputes over law enforcement activities concerning the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under Article 297(2) or 297(3); (3) disputes in respect of which the Security Council is exercising functions assigned to it by the United Nations Charter. Such declarations in writing may be made when signing, ratifying or acceding to the Convention or at any time thereafter and may be withdrawn at any time. Since, however, they are "without prejudice to the obligations arising under Section 1", such declarations do not relieve States Parties of the general obligation to settle disputes by some peaceful means. Disputes over sea boundary delimitations or historic bays or titles. So far as "sea boundary delimitations" are concerned, Article 298(1)(a)(i)

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Dispute settlement and the law o f the sea: E D Brown

refers to disputes over the interpretation or application of Articles 15, 74 and 83, which deal respectively with delimitation of the territorial sea, the E E Z and the continental shelf between States with opposite or adjacent coasts. H e r e , attention will be focused on Article 83, which refers to delimitation of the continental shelf, and provides in Paragraph 1 that: The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. Paragraph 2 then goes on, with deceptive simplicity, to provide that, " I f no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV'. The apparent simplicity of these provisions conceals the extensive debate which took place in U N C L O S III on the question of the suitability for application to delimitation disputes of Part X V ' s compulsory mechanisms for the binding settlement of disputes. Despite the complexity of the debate, the basic question was quite simple: were States p r e p a r e d to accept an obligation to submit delimitation disputes to some form of binding third-party settlement? The objective observer might well argue that the degree of need for compulsory settlement machinery is in inverse proportion to the degree of precision and certainty of the criteria of delimitation: the more imprecise and uncertain the criteria, the greater the need for some form of compulsory settlement. This is undoubtedly true if certainty of the boundary and a final settlement of the dispute are the principal objectives of the States concerned. It must be recognised, however, that there are a n u m b e r of States which do not regard compulsory third-party procedures entailing a binding award as an acceptable form of settlement for boundary disputes, be they territorial or maritime. Moreover, the objective observer could hardly deny that there is considerable merit in the view that the acceptance of an obligation to refer delimitation disputes to third-party settlement on the basis of the criteria embodied in Article 83(1) of the U N Convention is tantamount to the allocation to the tribunal concerned of a quasi-legislative role; some might well go further and describe it as a "legal lottery". For those who believe that the law should offer a reasonable degree of precision and predictability in exchange for the acceptance of compulsory settlement procedures, Article 83(1) leaves a great deal to be desired and it is hardly surprising, therefore, that no formula embodying such an obligation was able to provide a basis for consensus at the Conference. For this reason, it was eventually provided that, although States Parties to the U N Convention may accept the Convention's "compulsory procedures entailing binding decisions" as being applicable to their delimitation disputes, they are not bound to do so. They are obliged to accept nothing m o r e than what was euphemistically referred to in the Conference proceedings as "compulsory conciliation". Provision is made for such compulsory conciliation in Article 298(1)(a) of the Convention. After allowing States Parties to opt out of Section 2 procedures, subparagraph (i) adds the proviso that: a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement

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within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2. The obligations incumbent on the parties following the report of the Conciliation Commission are specified in subparagraph l(a)(ii): after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree; Finally, subparagraph l(a)(iii) provides that: this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties;

~Art 298(1 )(a)(i). 2eAnnex V, Art 11(2). agArt 298(1 )(a)(ii). a°lbid. 31Art 298(1 )(a)(i). 32UN Press Release S1=A/102, 24 April 1979, p 2.

A n u m b e r of elements in these provisions call for comment. First, it must be appreciated that States making a declaration under Article 298(1) are compelled only to: (1) "accept submission of the matter to conciliation under Annex V, section 2". 27 This would e m p o w e r the Commission to proceed even if one of the parties declined to take part in the proceedings. 2s (2) "negotiate an agreement on the basis of the report of the Conciliation Commission". 29 That this is no m o r e than a pactum de contrahendo, an agreement to negotiate in good faith with an intent to reach agreement, is evident from the fact that provision is made for the contingency that agreement is not reached in this way. Where this is so, the third element of compulsion is the obligation: (3) "by mutual consent" to submit the question to a Section 2 procedure, unless the parties otherwise a g r e e ) " This again is no more than pactum de contrahendo. There is no guarantee that negotiation in good faith will enable the parties to agree upon a Section 2 procedure or any other form of binding settlement. Secondly, with regard to temporal scope, the obligation to submit to conciliation applies only "when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties". 31 It may be difficult in some cases to determine either the date when the dispute may be considered to have arisen or the length of a reasonable period of time. H o w e v e r , the Commission will be able to rely upon Article 13 of A n n e x V, under which, " A disagreement as to whether a conciliation commission acting under this section has competence shall be determined by the commission". It may well be that some States would not have been p r e p a r e d to accept a binding third-party settlement procedure for such disputes, no matter what delimitation formula was adopted. Mr Figueredo of Venezuela, for example, is reported to have said that his delegation could not agree to a formula which would give a blank cheque to an international jurisdiction "to settle matters affecting the sovereign and vital interest of our countries". 32 On the other hand, it really would be asking a great deal of States to undertake to accept a binding third-party settlement of their disputes when the decision is to be given on the basis of a formula which, in reality, provides nothing more than a vague starting point for the settlement of delimitation disputes. The truth of 25

Dispute settlement and the law o f the sea: E D Brown

the matter probably is that compulsory, binding third-party settlement on the basis of such vague criteria would be an acceptable procedure only for States which neither had nor expected to have such disputes themselves or which accorded a higher priority to the certainty which such a settlement would provide than to its reasonable predictability. It is not difficult to sympathise with those who may feel that to combine a loose compromise formula with a tight dispute settlement procedure is tantamount to giving a wide, quasi-legislative role to the third-party settlement institution concerned. 33

Disputes over military activities and disputes over law enforcement activities concerning the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under Article 297(2) or 297(3). Article 298(1)(b) allows States Parties to opt out of Section 2 procedures in two cases. First, they may declare any one or more Section 2 procedures unacceptable in relation to military activities by government vessels and aircraft engaged in non-commercial service. This would include, for example, disputes over military manoeuvres conducted by one State in another State's E E Z . The second potential opt-out follows from the provisions of Article 297(2)-(3), under which, as was seen above, States Parties may exclude from Section 2 procedures certain categories of disputes concerning marine scientific research or E E Z fisheries. Article 298(1)(b) ensures that disputes concerning the law enforcement activities of the coastal State in relation to such excluded matters may also be excluded from Section 2 procedures.

Disputes in respect of which the Security Council is exercising functions assigned to it by the UN Charter. Such disputes may be excluded from Section 2 procedures "unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this convention". 34

Sea-bed mining disputes 33For a detailed consideration of cases on continental shelf delimitation, see further, E D Brown, Sea-Bed Energy and Minerals: The International Legal Regime, Vol 1: The Continental Shelf. Martinus Nijhoff, Amsterdam, 1992. 34Art 298(1 )(b). aSTitle of Section 5. Under Art 191, the Sea-Bed Disputes Chamber "shall give advisory opinions at the request of the Assembly or the Council [of the Authority] on legal questions arising within the scope of their activities". a6Under Art 188(1)(a), disputes between States Parties concerning the interpretation or application of Part Xl may be submitted to such a chamber at the request of the parties. 37Disputes between States Parties concerning the interpretation or application of Part Xl may be submitted to such an ad hoc chamber at the request of any party to the dispute under Art 188(1)(b). 3aArt 187(c)(i). 39Art 188(2)(a). 4°Art 188(2)(c).

26

So far as sea-bed mining is concerned, Section 5 of Part XI of the U N Convention makes provision for "settlement of disputes and advisory opinions". 35 The principal forum is the Sea-Bed Disputes C h a m b e r of the International Tribunal for the Law of the Sea but certain types of dispute may, alternatively, be submitted to a special chamber of the International Tribunal for the Law of the Sea, 36 to an ad hoc chamber of the Sea-Bed Disputes C h a m b e r Y or to binding commercial arbitration. As regards commercial arbitration, the Sea-Bed Disputes C h a m b e r does have jurisdiction over disputes concerning the interpretation or application of a relevant contract or plan of work 3s but such disputes must be submitted, at the request of any party to the dispute, to binding commercial arbitration unless the parties otherwise agree. 39 No single commercial arbitral tribunal is established but it is provided that, in the absence of any other provision in the contract, the arbitration is to be conducted in accordance with the U N C I T R A L Arbitration Rules prepared by the U N Commission on International Trade Law. 4° Disputes over the financial terms of a contract may also be referred to such commercial arbitration. 41 However, as would be expected, commercial arbitral tribunals have no jurisdiction to interpret the Convention. Where the dispute involves a question of interpretation of Part XI and

Dispute settlement and the law of the sea: E D Brown

the related Annexes, the question must be referred to the Sea-Bed Disputes C h a m b e r for a ruling. 42 The Sea-Bed Disputes C h a m b e r has exclusive jurisdiction to conduct a judicial review of administrative actions of the Authority, where it is alleged by a State Party that (1) the acts or omissions of the Authority are in violation of Part XI, or (2) the acts of the Authority are in excess of jurisdiction, or (3) a misuse of power. 43 H o w e v e r , under Article 189, far-reaching limitations are placed upon this jurisdiction. It is provided that: The Sea-Bed Disputes Chamber shall have no jurisdiction with regard to the exercise by the Authority of its discretionary powers in accordance with this Part; in no case shall it substitute its discretion for that of the Authority. Without prejudice to article 191, in exercising its jurisdiction pursuant to article 187, the Sea-Bed Disputes Chamber shall not pronounce itself on the question of whether any rules, regulations and procedures of the Authority are in conformity with this Convention, nor declare invalid any such rules, regulations and procedures. Its jurisdiction in this regard shall be confined to deciding claims that the application of any rules, regulations and procedures of the Authority in individual cases would be in confict with the contractual obligations of the parties to the dispute or their obligations under this Convention, claims concerning excess of jurisdiction or misuse of power, and to claims for damages to be paid or other remedy to be given to the party concerned for the failure of the other party to comply with its contractual obligations or its obligations under this Convention.

41UN Convention, Annex III, Art 13(15). 42Art 188(2)(a)-(b). 43Art 187(b). 44See the reference to Art 191 in Art 189. 45Art 189.

Accordingly, although the C h a m b e r would be entitled to give a nonbinding advisory opinion, at the request of the Assembly or Council, on any legal questions within the scope of their activities, 44 so far as its contentious jurisdiction is concerned, the C h a m b e r is confined to dealing with the following three types of claims: (1) claims that application of the Authority's rules, regulations and procedures in i n d i v i d u a l cases would be in conflict with the contractual or Conventional obligations of the parties; (2) claims concerning excess of jurisdiction or misuse of power; and (3) claims for damages to be paid or other remedy to be given for the failure to comply with contractual or Conventional obligations. While it is clear that the C h a m b e r may not expressly "pronounce itself" on the conformity with the Convention of the Authority's rules, regulations and procedures or declare them invalid, it is equally clear that in exercising jurisdiction in these three types of claim it must have the competence to consider the legal validity of these rules, regulations and procedures as part of its judicial reasoning. So far as remedies are concerned, Article 189 is equally vague. It is, of course, clear that damages may be awarded for failure of the Authority to comply with its obligations under the Convention. 45 Beyond that, there is very little that is certain. What, for example, is the effect in this context of the rule in Article 296(1) of the Convention that the decisions of the C h a m b e r are final and must be complied with by all the parties to the dispute? In the light of this provision, what "other r e m e d y " is available in respect of a finding by the C h a m b e r that a decision or measure of the Authority, applying a rule, regulation or procedure considered by the C h a m b e r to be invalid, is in conflict with the obligations of the Authority under the Convention?; or in respect of a finding of excess of jurisdiction or misuse of power? It would seem to follow from Article 296(1) that the effect of

27

Dispute settlement and the law of the sea: E D Brown

any such finding would be the annulment of the decision or measure in question. But, of course, the Chamber could neither substitute its own decision or measure for that of the Authority nor annul any underlying rule, regulation or procedure. On the other hand, "other remedy" might well embrace the grant of an injunction to prevent the similar application of the suspect rule, regulation or procedure in other individual c a s e s . 46

The effect of the New York Agreement of 28 J u l y 1994 The provisions of the New York Agreement and of Part XI of the UN Convention are to be interpreted and applied as a single instrument and, in the event of any inconsistency between them, the provisions of the Agreement are to prevail. 47 Given this integration of the two instruments, it may be assumed that the dispute settlement provisions of the Convention would apply to disputes arising from the terms of the Agreement, incuding disputes concerning any inconsistency between the two, and that the Sea-Bed Disputes Chamber would have jurisdiction over them. 4s However, the Agreement also makes express provision for application of the dispute settlement provisions of the Convention in the following cases: disputes relating to the disapproval of a plan of w o r k ; 49 disputes concerning the provisions of G A T T and its successor instruments in their application to the production policy of the A u t h o r i t y - - b u t only in cases where one or more of the States concerned are not parties to these agreements; 5° and disputes concerning the interpretation or application of the rules and regulations for financial terms of contracts. 5~

Fishery disputes: the Fish Agreement of 4 August 1995

46As suggested by L C Caflisch, The settlement of disputes relating to the seabed, in C L Rozakis and C A Stephanou, eds, The New Law of the Sea, 1983, pp 304-344, at 309. 47New York Agreement, Art 2(1). 4CArt 187 of the UN Convention, read with Art 2(1) of the New York Agreement. Several States (Austria, Finland, Germany and Sweden), in making their choice of fora under Art 287, expressly refer to disputes arising under both the UN Convention and the New York Agreement. 49New York Agreement, Annex, Section 3, para 12. 5°Annex, Section 6, para 1(f)(ii). Where the States concerned are parties to these agreements, the dispute settlement procedures of these agreement apply (para 1 (f)(i)). 51Section 8, para l(f). 52Loc cit in note 2 above. 53See Art 4(2) of New York Agreement. S4For definition of "arrangement" as distinct from "organisation", see Fish Agreement, Art 1(1)(d).

28

Like the New York Agreement, the Fish Agreement 52 is intended to implement the provisions of the UN Convention and, accordingly, for the most part, applies the dispute settlement regime of Part XV of the U N Convention to disputes concerning the conservation and management of straddling fish stocks and highly migratory fish stocks. However, unlike the New York Agreement, 53 the Fish Agreement allows States to become parties to it even if they are not parties to the UN Convention and special provision had, therefore, to be made to ensure that such parties would also be subject to the same dispute settlement regime.

Obligation to settle disputes by peaceful means. Article 27 embodies a standard formula, similar to that in Article 33(1) of the United Nations Charter and Article 279 of the UN Convention, imposing a general obligation upon States Parties to settle their disputes by peaceful means, but allowing them the freedom to adopt any peaceful means upon which they can agree. Prevention of disputes. Under Article 28, States Parties have also to cooperate to prevent disputes by agreeing on efficient and expeditious decision-making procedures within sub-regional and regional fisheries management organisations and arrangements, 54 and strengthening existing procedures. Procedures for the settlement of disputes. Two types of dispute are envisaged in Article 30(1) and (2) of the Fish Agreement: (1) those

Dispute settlement and the law of the sea: E D Brown

concerning the interpretations or application of the Fish A g r e e m e n t itself; and (2) those concerning the interpretation or application of a sub-regional, regional or global fisheries agreement relating to straddling fish stocks or highly migratory fish stocks to which the disputing States are parties, including any disputes concerning the conservation and m a n a g e m e n t of such stocks. The same rule applies to both: the provisions of Part X V of the U N Convention on the settlement of disputes apply mutatis m u t a n d i s to any such dispute between States Parties to the Fish A g r e e m e n t , whether or not they are also parties to the U N Convention. So far as the actual modes of settlement are concerned, a distinction is m a d e between States which are parties to both the Fish A g r e e m e n t and the U N Convention and States which are parties to the Fish A g r e e m e n t but not to the U N Convention. As regards a State which is a Party to both instruments, the rule is that any procedure accepted by that State pursuant to Article 287 of the UN Convention will apply unless the State has accepted another procedure pursuant to Article 287 for the settlement of disputes under the Fish Agreement. 55 It is free to exercise this option when signing, ratifying or acceding to the Fish A g r e e m e n t , or at any time thereafter. 56 On the other hand, a State Party to the Fish A g r e e m e n t which is not a party to the U N Convention is placed in a similar position by Article 30(4) of the Fish A g r e e m e n t . Such a State is "free to choose", by means of a written declaration, one or m o r e of the means set out in Article 287(1) of the U N Convention for the settlement of disputes under the Fish A g r e e m e n t . 57 Article 30(4) then goes on to provide that: Article 287 [of the UN Convention] shall apply to such a declaration, as well as to any dispute to which such State is a party which is not covered by a declaration in force. Thus, if a non-Party to the U N Convention does not m a k e a declaration, or any such declaration does not cover the dispute in question, Article 287 will apply to the dispute. It would appear that the main implication of this provision is that Article 287(3) would then come into play and the State would be d e e m e d to have accepted arbitration in accordance with A n n e x VII. In order to maintain equality between States Parties to the U N Convention and non-Parties, it is further provided that non-Parties will be entitled to nominate conciliators, arbitrators and experts to be included in the lists referred to in Annexes V, V I I and V I I I to the Convention for the settlement of disputes under the Fish Agreement. 5s A p p l i c a b l e law. The law to be applied by any court or tribunal operating

55Fish Agreement, Art 30(3).

561bid. 5ZUnder Art 30(2), these disputes include those concerning the interpretation of subregional, regional and global fisheries agreements relating to straddling stocks and highly migratory stocks to which the disputing States are parties. 58Fish Agreement, Art 30(4). On the corresponding right of States Parties to the UN Convention, see below under "The establishment of new dispute settlement machinery".

under the provisions of the Fish A g r e e m e n t is specified in Article 30(5). With a view to ensuring the conservation of the fish stocks concerned, the court or tribunal will apply the relevant provisions of the U N Convention, the Fish A g r e e m e n t and any relevant sub-regional, regional or global fisheries agreement, "as well as generally accepted standards for the conservation and m a n a g e m e n t of living marine resources and other rules of international law not incompatible with the [UN] Convention". W h a t precisely is included a m o n g these additional standards and rules of international law is not clear. As has been seen, Article 290 of the U N Convention makes provision for the prescription of provisional meaProvisional measures.

29

Dispute settlement and the law o f the sea: E D Brown

59See above under "The dispute settlement scheme in outline", "Section 2. Compulsory procedures entailing binding decisions". 6°Art 31 (2) of Fish Agreement, referring to circumstances referred to in Art 7(5) and Art 16(2). 61Art 290(3) of UN Convention. 62Art 290(5) of UN Convention. 63See text above at note 22. 64See further text below, following note 148, section on "Ad hoc expert panel under Fish Agreement". 85This analysis is based on declarations reproduced in LOS Bull., No 25, June 1994, at pp 11-41 ; No 27, 1995, at pp 5-8; No 28, 1995, at p 5; No 29, 1995, at pp 6-8; No 30, 1996 at p 6; and No 31, 1996, at pp 7-10; as well as on further information supplied by the UN Treaty Section. Some of these declarations are also reproduced in UN, Multilateral Treaties 1994, at pp 852-866. On the position of the United States, see Transmittal Letter from the President to the US Senate, 7 October 1994 (34 ILM 1393 (1995) at 1396) and Submittal Letter from the Secretary of State to the President, 23 September 1994 (ibid., 1397, at 1399 and 1440-1443). 66LOS Bull., No 25, June 1994, pp 11 and 25-26; UN, Multilateral Treaties 1994, p 854. 67LOS Bull., No 29, 1995, p 8. 68LOS Bull., No 25, June 1994, pp 29-30; UN, Multilateral Treaties 1994, pp 859860. 69LOS Bull., No 25, June 1994, p 32; UN, Multilateral Treaties 1994, p 861. 7°LOS Bull., No 31, 1996, p 7. 71LOSBull., No 25, June 1994, pp 12 and 27-28; UN, Multilatearl Treaties 1994, p 855. 72LOS Bull., No 25, June 1994, p 14; UN, Multilateral Treaties 1994, p 859. 73LOS Bull., No 28, 1995, p 5; UN, Multilateral Treaties 1994, pp 865-866.

30

sures if the court or tribunal concerned considers it appropriate under the circumstances to preserve the respective rights of the Parties to a dispute or to prevent serious harm to the marine environment, pending a final decision. 59 C o m p l e m e n t a r y provision for provisional measures is made in Article 31 of the Fish Agreement. In this case, the object of the provisional measures may be the preservation of the respective rights of the parties or the prevention of damage to the stocks in question. Provisional measures may also be indicated when States have been unable to agree on "provisional arrangements of a practical nature", pending final agreement on conservation and m a n a g e m e n t measures. 6° Article 30 of the Fish A g r e e m e n t , in authorising the prescription of provisional measures, indicates that it is without prejudice to Article 290 of the U N Convention. It follows that provisional measures may be prescribed, modified or revoked only at the request of a party to the dispute and after the parties have been given an opportunity to be heard. 61 States Parties to the Fish A g r e e m e n t which are not parties to the U N Convention have a further safeguard against the issue of unwanted provisional measures under Article 31(3). In the absence of this provision, the International Tribunal for the Law of the Sea would be entitled in certain circumstances to prescribe provisional measures pending the constitution of an arbitral tribunal to which a dispute is being submitted. 62 However, under Article 31(3), the State non-Party to the U N Convention may declare that the tribunal shall not be entitled to so prescribe without the agreement of such State.

Opt-out clause. As noted above, Article 297(3) of the UN Convention allows coastal States to exclude disputes relating to their E E Z fisheries from the various procedures for binding settlement. 63 Article 31 of the Fish A g r e e m e n t adds that, "The provisions of Article 297 shall also apply to this A g r e e m e n t " . Accordingly, it will be open to any coastal State Party to the Fish A g r e e m e n t to exclude from the compulsory settlement mechanisms of Article 297, any dispute concerning its rights over straddling stocks or highly migratory stocks in its E E Z . It will, however, be bound by an obligation to refer the dispute to conciliation under Annex V of the UN Convention. Disputes of a technical nature. As will be seen below, provision is made in Article 28 of the Fish A g r e e m e n t for the submission of disputes of a technical nature to an ad hoc expert p a n e l J '4

Fora selected in declarations or by default As at 1 S e p t e m b e r 1996, 31 States had included in declarations made on signing, ratifying or acceding to the UN Convention, statements relevant to dispute settlement matters. 65 In four cases (Brazil, 6~' India, 67 Iran 68 and Nicaragua69), the States concerned simply reserved their right to indicate their choice in a later declaration. In three further cases (Algeria, 7° Cuba 71 and Guinea-Bissau72), there is only a negative indication that the jurisdiction of the International Court of Justice is not accepted. Vietnam's declaration, 73 referring to peaceful negotiations as a vehicle for resolving a limited category of disputes, does not amount to a choice of fora under Article 287. The analysis presented below is based on the remaining 23 declarations made by the following States: Argentina, Austria, Belarus,

Dispute settlement and the law o f the sea: E D Brown

e4For the texts of these declarations made on signature (S), ratification (R) or accession (A), see the issues of LOS Bull. indicated. The declarations made by Finland, the Netherlands, Norway and Sweden have not been published in LOS Bull. as at 1 October 1996 and the writer is indebted to the UN Treaty Section for these texts. Argentina, No 30, p 6 (R); Austria, No 29, p 6 (R); Belarus, No 25, p 23 (S); Belgium, No 25, p 23 (S); Cape Verde, No 25, p 11 (R); Egypt, No 25, p 12 (R); Finland, (R); France, No 31, p 9 (R); Germany, No 27, p 6 (A); Greece, No 29, p 6 (R); Iceland, No 25, p 14 (R); Italy, No 27, p 5 (R); Netherlands (R); Norway (R); Oman, No 25, p 16 (R); Philippines, No 25, p 18 (R); Russia, No 25, p 34 (S); Spain, No 25, p 35 (S); Sweden (R); Tunisia, No 25, p 19 (R); Ukraine, No 25, p 37 (S); Tanzania, No 25, p 20 (R); Uruguay, No 25, p 37 (S); or UN, Multilateral Treatires 1994, pp 852-866. ZSThat is, the 106 "States Parties" at 1 September 1996 minus the 23 States referred to in note 74. Under Art 2 of the UN Convention, the term "States Parties" includes entities other than States "which become Parties to [ t h e ] . . . Convention in accordance with the conditions relevant to each...". 7eSee text above at note 75.

Belgium, Cape Verde, Egypt, Finland, France, Germany, Greece, Iceland, Italy, Oman, the Netherlands, Norway, Philippines, Russia, Spain, Sweden, Tunisia, Ukraine, Tanzania and Uruguay. 74 As has been seen, States Parties may include in declarations made on signature, ratification or accession, or later, inter alia: (1) a choice of fora under Article 287. In practice, this choice is in some cases made in two ways. First, a general or basic choice is made of one or more of the fora available under Article 287, with or without an order of preference. Secondly, a particular forum is identified in relation to specified issues such as, for example, "fisheries, protection and preservation of the marine environment, marine scientific research or navigation, including pollution from vessels and by dumping"; (2) an indication that they wish to exclude issues referred to in Article 297(2) and (3) from the application of Section 2 binding procedures; (3) an indication that they wish to exclude issues referred to in Article 298 from the application of Section 2 binding procedures; and (4) a choice of forum to deal with disputes over the prompt release of detained vessels and crews under Article 292. It has to be remembered too that, under Article 287(3), any State Party which has not made a choice under Article 287(1) and thus finds itself "a party to a dispute not covered by a declaration in force", will be deemed to have accepted arbitration in accordance with Annex VII. Pending any later submission of a declaration, this would apply to 83 of the 106 "States Parties" which had become parties to the Convention by 1 September 1996. 75 The practice of the 23 States is summarised in Table 1. The data presented in this table can be summed up as follows: General choice of fora under Article 287: Of the 23 States surveyed, 4 expressly opted for arbitration under Annex VII (Belarus, Egypt, Russia and Ukraine). A further 6 States (France, Iceland, Italy, Philippines, Spain and Tunisia) made no express choice of fora under Article 287, but, under Article 287(3), will be deemed to have accepted arbitration under Annex VII for any "dispute not covered by a declaration in force". If, in addition, account is taken of the 83 States Parties which have not included in declarations any statement relevant to dispute settlement 76 and are, therefore, also deemed to have accepted arbitration under Annex VII, the number committed to such arbitration rises to 93. Of the remaining States Parties, one State (Argentina) chose ITLOS and Annex VIII in order of preference. Two States (Austria and Germany) opted for ITLOS, Annex VIII and the ICJ in that order, while a third, Belgium, selected the same fora but in a different order: Annex VIII, ITLOS and the ICJ. Three States (Greece, Tanzania and Uruguay) chose ITLOS alone (in the case of Uruguay, without prejudice to its recognition of the jurisdiction of the ICJ). Another three States (The Netherlands, Norway and Sweden) chose the ICJ alone. Finally, Finland and Oman opted for the ICJ and ITLOS without stating any order of preference. It would seem, therefore, that the clear preference at the moment is for arbitration under Annex VII. However, it has to be borne in mind that most of the States which have already made a choice did so prior to the election of the members of ITLOS. Now that the composition of the Tribunal is known, some States may decide to choose it and others may join them later, once the tribunal has had time to establish its reputation.

31

Dispute settlement and the law of the sea." E D Brown Table 1. Declarations relating to dispute settlement

State Party

General

Specialised

Argentina

ITLOS and Annex VIII in order of preference

Annex VIII for fisheries, protection and preservation of the marine environment, marine scientific research and navigation, including pollution from vessels and by dumping

Austria

ITLOS, Annex VIII and ICJ in that order

Same as Argentina

Belarus

Annex VII

Same as Argentina

Belgium

Annex VIII, ITLOS and ICJ in order of preference

Same as Argentina

Cape Verde

ITLOS and ICJ in order of preference

Egypt

Annex VII

Finland

ICJ and ITLOS; no order of preference stated

Art 292 disputes (release of vessels)

Opt-out clauses

Choice of fora under Art 287 Art 297

Art 298 Opt-outs on delimitation of marine limits, military activity and Security Council functions

Opt-outs on delimitation of marine limits, military activity and Security Council functions

ITLOS

Opt-outs on military activities and law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded under Art 297(2) and

(3) Excludes disputes contemplated in Art 297 from application of Annex VII

Opt-outs on delimitation of marine limits, military activity and Security Council functions

France

Germany

ITLOS, Annex VIII and ICJ in that order

Greece

ITLOS

Same as Argentina

Iceland

Reserves right to submit Art 83 disputes to conciliation under Annex V, Section 2

Italy

Opt-outs on delimitation of marine limits and disputes involving historic bays or titles

Netherlands

ICJ for disputes with States Parties accepting ICJ jurisdiction

Norway

ICJ

Oman

ITLOS and ICJ; no order of preference stated

Excludes arbitration under Annex VII for any category of dispute mentioned in Art 298

"The agreement.., to the submission for peaceful resolution, under any of the procedures provided in the Convention, of disputes under Article 298 shall not be Considered as a derogation of Philippine sovereignty".

Philippines

Russia

Annex VII

Same as Argentina

Opt-outs on sea boundary delimitations, military activities and Security Council functions

ITLOS

continued on page 33

32

Dispute settlement and the law of the sea: E D Brown Table 1. continued from page 32 Choice of fora under Art 287 State Party

General

Specialised

Art 297

Spain

Sweden

Opt-out clauses Art 298

Art 292 disputes (release of vessels)

Without prejudice to Art 297, considers that Arts 56, 61 and 62 preclude considering as discretionary the powers of the coastal State to determine the allowable catch, its harvesting capacity and the allocation of surpluses to other States ICJ

Tunisia

Opt-outs on delimitation of maritime boundaries, military activities, enforcement activities and Security Council functions by incorporating in declaration text of Art 298(1 )(a)(b) and (c)

Ukraine

Annex VII

Tanzania

ITLOS

Uruguay

ITLOS without prejudice to its recognition of the jurisdiction of the ICJ

Same as Argentina

Opt-outs on sea boundary delimitations, military activities and Security Council functions

ITLOS

Opt-outs on law enforcement activities

Abbreviations: Annexes V, VII and VIII refer, respectively, to conciliation under Annex V of the UN Convention, arbitration under Annex VII, and special arbitration under Annex VIII. ICJ and ITLOS refer, respectively, to the International Court of Justice and the International Tribunal for the Law of the Sea.

77LOS Bull. No 25, June 1994, p 35, para 8.

Choice of fora for specialised disputes under Article 287: Special arbitration under Annex VIII has been chosen by 7 States (Argentina, Austria, Belarus, Belgium, Germany, Russia and Ukraine) for disputes concerning fisheries, protection and preservation of the marine environment, marine scientific research and navigation, including pollution from vessels and by dumping. Opting out under Article 297: Egypt alone excludes from arbitration under Annex VII (its choice of forum under Article 287) disputes contemplated in Article 297. Mention should be made under this heading of the interesting declaration made by Spain to the effect that, without prejudice to Article 297, Articles 56, 61 and 62 of the Convention preclude considering as discretionary the powers of the coastal State to determine the allowable catch, its harvesting capacity and the allocation of surpluses to other States. 77 At first sight, it is not difficult to sympathise with the Spanish view of the powers of the coastal State over its EEZ fisheries. Although it has sovereign rights over these fisheries under Article 56(1), their exercise is limited by the obligation under Article 56(2) to have due regard to the rights of other States and by the conservation and utilisation duties placed upon it by Articles 61 and 62. Given the detailed criteria to be observed by the coastal State in determining the allowable catch under Article 61 and the existence and allocation of surplus stock under Article 62, it might seem inappropriate at first sight to describe the coastal State's powers as "discretionary". However, in reality, the application of the criteria requires the coastal State to make a series of judgements and interpretations and it seems fair to describe the process of implementing these articles as the exercise in good faith of a discretion; and, as will be seen below, this is borne out by the terms of Article 297(3). 33

Dispute settlement and the law of the sea: E D Brown The more important question is whether the exercise of the discretion is open to binding third-party review and Article 297(3) gives a clear answer. The coastal State is not obliged to submit to a Section 2 compulsory-settlement mechanism any dispute relating to its sovereign rights over E E Z fisheries, "including its discretionary powers for determining the allowable catch, its harvesting capacity, [and] the allocation o f surpluses to other States . . ." What, then, is the effect of the Spanish declaration? Given the fact that it is expressed to be without prejudice to Article 297, it appears to be no more than an attempt to place a gloss upon Articles 56, 61 and 62 in the interest of maximising access for the large Spanish fishing fleet to the E E Z fisheries of other States Parties. Opting out under Article 298: Twelve of the 23 States surveyed exclude specified issues from the application of Section 2 compulsory procedures. Maritime delimitation is excluded by 9 States; military activities are excluded by 8 States; 3 States exclude law enforcement activities in relation to marine scientific research in the E E Z or on the continental shelf, and E E Z fisheries; and, finally, 7 States exclude disputes where the Security Council is acting. Reference is made to Article 298 in the Philippines declaration but its impact is unclear. Choice for disputes over release o f vessels and crew under Article 292: T h r e e States (Belarus, Russia and Ukraine) have chosen I T L O S as their prefered forum for the resolution of disputes concerning the p r o m p t release of vessels and crews detained by another State Party.

The establishment of new dispute settlement machinery

781n accordance with Annex VI, Art 1(2). 79Annex Vl, Art 2(1). Although all 21 members of the Tribunal have to be elected at the first election it has been proposed that, in the interests of economy, a phasing-in scheme might be adopted during the initial phase of the tribunal. The variant of this proposal which seems to have attracted most support is for 11 members to serve actively for a fixed period, with the remaining members in reserve. The figure of 11 (including president and vice-president) would be large enough to constitute a quorum (Annex Vl, Art 13(1)) and to include representatives of the five UN geographical groups. It would also allow the Chamber of Summary Procedure, special chambers and the Sea-Bed Disputes Chamber to be constituted. See further, Provisional Report of Special Commission 4, Addendum (Administrative Arrangements, Structure and Financial Implications of the International Tribunal for the Law of the Sea), LOS/PCN/SCN.4/WP. 16/ Add.6, 15 October 1993, at pp 18-24. 8°Annex Vl, Art 3(1). 81Annex VI, Art 3(2). 82Annex VI, Art 2(2). 83Annex Vl, Art 4(1). 84Annex VI, Art 4(4).

34

In order to bring the U N Convention's system of dispute settlement fully into operation, several new institutions or mechanisms have to be established: the International Tribunal for the Law of the Sea (ITLOS) and its Sea-Bed Disputes Chamber; a list of arbitrators from which arbitral tribunals will be constituted to hear particular cases under Annex VII; lists of experts from which special arbitral tribunals may be constituted for particular cases under A n n e x VIII: and a list of conciliators from which conciliation commissions may be constituted in particular cases under A n n e x V. Mention will also be made of the Commission on the Limits of the Continental Shelf, to be established under Annex II, although strictly speaking, it is not concerned with dispute settlement. The International Tribunal f o r the L a w o f the Sea ( I T L O S ) Provision is made for the establishment of I T L O S in Article 287(1)(a) of the U N Convention and its Statute, which in many respects has clearly been modelled on the Statute of the International Court of Justice, is to be found in Annex VI to the Convention. Composition o f Tribunal The new Tribunal has its seat in H a m b u r g 78 and consists of 21 i n d e p e n d e n t 79 m e m b e r s , no two of w h o m may have the same nationality, s° It must include not less than three m e m b e r s from each of the five United Nations regional groups 81 and the representation of the principal legal systems must be assured, as must be equitable geographical distribution, s2 Each State Party may nominate not more than two persons 83 and election is by secret ballot at a meeting of States Parties on the basis of a list of nominees. 84 Those nominees are declared

Dispute settlement and the law of the sea: E D Brown

851bid. 86Report on the Committee on Law of the Sea of the American Branch of the International Law Association, March 1978, p 15. 871bid., p 42 (separate statement of Luke W Finlay). 88Report of the Meeting of States Parties (on 21 and 22 November 1994), SPLOS/3, 28 February 1995, p 7, para 16. 891bid. 9°Source: Election of the Members of the International Tribunal for the Law of the Sea. List of Candidates submitted by Governments, SPLOS/10, 2 July 1996. 91France had apparently decided against nominating a French national. The United Kingdom was unable to make a nomination because of the failure to accede to the UN Convention before 1 July 1996, due to concern over the implications for UK fishery zone limits in the Rockall area which accession might have. See further the explanation given by Baroness Chalker (Minister of State, Foreign and Commonwealth Office) in the House of Lords on 20 June 1996 (House of Lords Weekly Hansard, No 1671, 17-20 June 1996, Cols 455-457). 92Source: Division for Ocean Affairs and the Law of the Sea, Office for Legal Affairs, United Nations. 93See Provisional Report of Special Commission 4, Addendum: Final Draft Rules of the International Tribunal for the Law of the Sea, LOS/PCN/SCN.4/WP.16/Add.1, 19 January 1994; and Provisional Report of Special Commission 4, LOS/PCN/SCN.4/ WP.16, 12 October 1993. The UN Legal Counsel presented to the Meeting of States Parties held from 15-19 May 1995 the comprehensive record of the work of the Preparatory Commission in pursuance of its mandate to make recommendations on practical arrangements for the establishment of the Tribunal. The four-volume composite publication (LOS/PCN/152, vols I-IV) would serve as part of the archives of the Tribunal (Report of the Meeting of States Parties of 15-19 May 1995, SPLOS/4, 26 July 1995, p 5, para 13). 94Revised Budget Estimates for the International Tribunal for the Law of the Sea Covering the Period 1996-1997, SPLOS/ WP.3/Rev.1, 10 April 1996, p 4, para 7. 95SPLOS/4, 26 July 1995, p 8. 96Loc cit. in note 94, at p 4, para 8. 97SPLOS/4, 26 July 1995, p 11. 981bid., p 10, para 34, as required by Art 12(3) of the Statute of the Tribunal (Annex VI to UN Convention).

elected who obtain the largest number of votes and a two-thirds majority of the State Parties present and voting, provided that such majority includes a majority of the States Parties. 85 Given the preponderant voting strength of the developing States, it was thought unlikely that the Group of Western European and Other Countries would ever have more than three of their nationals on the tribunal and some of these States regarded this as a less than satisfactory "representation" of their interests. It was suggested during U N C L O S III that greater recognition of these interests might be gained if the voting requirements were raised from two-thirds to four-fifths, s6 The Group of 77, voting together, could easily muster two-thirds but would be hard pushed to raise four-fifths without allies. It was also suggested that minority interests would be better protected by a system of elections which required that judges should be nominated by a Council, itself so designed as to assure protection of minority interests, s7 However, neither proposal persuaded the Conference to change the formula and, indeed, as will be seen below, the results of the first elections have shown that the fears of the Group of Western European and Other Countries were groundless; four of their nationals were elected. In accordance with Annex VI, Article 4(3), the election of judges was supposed to have taken place within 6 months of the entry into force of the UN Convention, that is, by 16 May 1995. However, at a meeting of States Parties to the UN Convention on 22 November 1994, it was decided to defer the first election of judges until 1 August 1996, although the nomination of candidates was to commence on 16 May 1995. 88 This allowed time for more States to become parties to the UN Convention and thus qualify to take part in the election. A State in the process of becoming a party to the UN Convention was permitted to nominate candidates provisionally but they were to be included in the final list of candidates only if ratification or accession took place before 1 July 1996. 89 The list of candidates so nominated is given in Table 2. 90 Thirty-three candidates were n o m i n a t e d for the twenty-one places available. Although three candidates were nominated by States other than their own (Anderson by France, 91 Kolodkin by Georgia and Rosenne by Austria), it is notable that no United States jurist was nominated. The election results are shown in Tables 3 and 4. 92 Inevitably, it will be some time before the Tribunal can be fully operational. Fortunately, Special Commission 4 of the Preparatory Commission had already drafted a set of Rules for the Tribunal and made recommendations on the practical arrangements for the establishment of the Tribunal. 93 Nonetheless, much remains to be done. It has been agreed that for budgetary purposes, there will be an initial period running from 1 August 1996 through to the end of 1997. 94 Similarly, so far as the judiciary is concerned, there will be a 15-month preliminary organisational phase commencing on 1 October 1996-when members of the Tribunal were due to hold their first organisational session95--and terminating also at the end of 1997. 96 It is thus anticipated that ITLOS will enter into its first functional phase in January 1998, although its permanent headquarters in Hamburg will not be ready for occupation until the end of 1998. 97 During the preliminary phase, the President of the Tribunal will be resident at the seat of the Tribunal 98 and will preside over the

35

Dispute settlement and the law o f the sea: E D Brown Table 2. Elections for International Tribunal for the Law of the Sea: list of candidates Name and nationality

Nominated by

Akl, Joseph (Lebanon) Anderson, David Heywood (United Kingdom of Great Britain and Northern Ireland) Attard, David J (Malta) Bula-Bula, Raymond Sayeman (Zaire) Caminos, Hugo (Argentina) Degni-S6gui, Rene (COted'lvoire) Eiriksson, Gudmundur (Iceland) EI-Hussein, All Khalid (Sudan) Engo, Paul Bamela (Cameroon) Fomba, Salifou (Mall) Hakapaa, Karl (Finland) Jacovides, Andreas (Cyprus) Kolodkin, Anatoly Lazarevich (Russian Federation) Laing, Edward Arthur (Belize) Marotta Rangel, Vicente (Brazil) Marsit, Moharned Mouldi (Tunisia) Mensah, Thomas A (Ghana) Ndiaye, Tafsir Malick (Senegal) Nelson, L Dolliver M (Grenada) Ochan, Ralph W (Uganda) Park, Choon-Ho (Republic of Korea) Pinto, Moragodage Christopher Walter (Sri Lanka) Rao, P Chandrasekhara (India) Rosenne, Shabtai (Israel) Shearer, Ivan Anthony (Australia) Treves, Tullio (Italy) Vukas, Budislav (Croatia) Warioba, Joseph Sinde (United Republic of Tanzania) Wolfrum, R0diger (Germany) Yamamoto, Soji (Japan) Yankov, Alexander (Bulgaria) Yorac, Haydee B (Philippines) Zhao, Lihai (China)

Lebanon France Malta Zaire Argentina CSte d'lvoire Iceland Sudan Cameroon Mali Finland Cyprus Georgia Belize Brazil Tunisia Ghana Senegal Grenada Uganda Republic of Korea Sri Lanka India Austria Australia Italy CroatiaJAustria United Republic of Tanzania Germany Japan Bulgaria Philippines China

99Pending this appointment, and in accordance with General Assembly Resolution 49/28 of 6 December 1994, Mr G Chitty (a UN Secretariat staff member with experience as Secretary of PrepCom's Special Commission 4 and Secretary of UNCLOS III plenary meetings dealing with dispute settlement) has been charged with making preparations of a practical nature for the organisation of the Tribunal, with necessary Secretariat support (SPLOS/4, 26 July 1995, p 5). I°°SPLOS/5, 22 February 1996, p 5, para 10.

organisational work which remains to be done. This will include the election of officers from among the members of the Tribunal, the appointment of an Acting Registrar 99 and the adoption of the Rules of the Tribunal. The budget for the initial period makes on provision for the exercise by the Tribunal of its adjudicative functions during this time. The UN Legal Counsel, referring to the possibility that the Tribunal might receive applications or requests for advisory opinions during this period, indicated that the Tribunal would have to respond on an ad hoc basis, with special arrangements having to be made to meet the costs. ~00 Table 3. Election for International Tribunal for the Law of the Sea: elected members

Akl, Joseph Anderson, David Heywood Caminos, Hugo Eiriksson, Gudmundur Engo, Paul Bamela Kolodkin, Anatoly Lazarevich Laing, Edward Arthur Marotta Rangel, Vicente Marsit, Mohamed Mouldi Mensah, Thomas A Ndiaye, Tafsir Malick Nelson, L Dolliver M Park, Choon-Ho Rao, P Chandrasekhara Treves, Tullio Vukas, Budislav Warioba, Joseph Sinde Wolfrum, RSdiger Yamamoto, Soji Yankov, Alexander Zhao, Lihai

36

Lebanon United Kingdom of Great Britain and Northern Ireland Argentina Iceland Cameroon Russian Federation Belize Brazil Tunisia Ghana Senegal Grenada Republic of Korea India Italy Croatia United Republic of Tanzania Germany Japan Bulgaria China

Dispute settlement and the law of the sea: E D Brown Table 4. Election for International Tribunal for the Law of the Sea: elected members by regional group

African States

Engo, Paul Bamela Marsit, Mohamed Mouldi Mensah, Thomas A Ndiaye, Tafsir Malick Warioba, Joseph Sinde

Cameroon Tunisia Ghana Senegal United Republic of Tanzania

Asian States

Akl, Joseph Park, Choon-Ho Rao, P Chandrasekhara Yamamoto, Soji Zhao, Lihai

Lebanon Republic of Korea India Japan China

Eastern European States

Kolodkin, Anatoly Lazarevich Vukas, Budislav Yankov, Alexander

Russian Federation Croatia Bulgaria

Latin American and Caribbean States

Caminos, Hugo Laing, Edward Arthur Marotta Rangel, Vicente Nelson, L Dolliver M

Argentina Belize Brazil Grenada

Western European and Other States

Anderson, David Heywood Eiriksson, Gudmundur Treves, Tullio Wolfrum, R0diger

United Kingdom of Great Britain and Northern Ireland Iceland Italy Germany

Special chambers As will be seen below, the Tribunal has to establish a Sea-Bed Disputes C h a m b e r but it is also e m p o w e r e d to form special chambers of various kinds:

(1) Summary procedure chamber. First, it is required annually to form a special c h a m b e r for the speedy dispatch of business by s u m m a r y procedure. 1°~ This chamber is to consist of five m e m b e r s of the Tribunal, with two alternates. 102 National m e m b e r s retain their right of participation in cases involving their h o m e States 1°3 and, as in the full Tribunal, an ad hoc m e m b e r may be substituted for a regular m e m b e r if one of the parties to the case does not have a m e m b e r of its nationality in the chamber, t°4 Such an ad hoc m e m b e r will be drawn from the m e m b e r s h i p of the Tribunal if it includes a m e m b e r of the required nationality. Failing this, or if such m e m b e r is unable to be present, a n o n - m e m b e r of the tribunal may be specially chosen by the parties. ~05 It follows that a judgment may be given by a five-member s u m m a r y procedure chamber on which only three regular m e m b e r s of the Tribunal are sitting, t°6

1°1Annex Vl, Art 15(3). 1021bid"

1°3Annex Vl, Art 17(1) and (4). 1°4Annex VI, Art 17(2)-(6). l°SAnnex VI, Art 17(4). 1°6The other two being ad hoc judges not regular members of the Tribunal. ~°eAnnex Vl, Art 15(1). ~°SAnnex Vl, Art 17(2)-(6). ~°gAnnex Vl, Art 15(2).

(2) Particular category chambers. Secondly, the Tribunal may form such special chambers, composed of three or more of its members, as it considers necessary for dealing with particular categories of disputes. 107 Given the fact that such a chamber might consist of only three m e m b e r s and that two of them might in certain circumstances be ad hoc judges,l°8 it is possible that a judgment might be given by a chamber having only one regular m e m b e r of the Tribunal amongst its members. (3) Ad hoc chambers. Finally, the Tribunal may form a special chamber to deal with a particular dispute if the parties so request. 1°9 The composition of such a c h a m b e r would be determined by the Tribunal 37

Dispute settlement and the law o f the sea: E D Brown

with the approval of the parties.ll° Here too, there is a possibility of having a three-man chamber including only one regular member of the Tribunal. It is provided that the judgment of a special chamber is to be considered as rendered by the Tribunal itself.~l Needless to say, the safeguards concerning representation of the principal legal systems and equitable geographical distribution are unlikely to be operative in these circumstances; and yet, certain disputes must be heard by such a chamber if the parties so request. ~2 Such a system seems ill-designed to produce a consistent and uniform jurisprudence. Sea-Bed Disputes Chamber As has been seen, the principal forum for the settlement of sea-bed mining disputes is to be the Sea-Bed Disputes Chamber which is to be established in accordance with Annex VI, Section 4.1~3 Composition The Chamber will be composed of 11 members of ITLOS selected by a majority of the members of ITLOS ~4 to serve for a 3-year term, renewable for a second term. ~5 As was the case with the parent tribunal, in the selection of members of the Chamber, the representation of the principal legal systems of the world and equitable geographical distribution must be assured, ll~ Given the fact that the Chamber will decide all questions by a simple majority vote, there have been doubts raised here too about the adequacy of the "representation" of the industrially advanced States. As in the case of the special chambers referred to above, provision is made for the appointment of ad hoc judges 117 and judgments given by the Chamber are to be considered as rendered by the Tribunal.~La Ad hoc chambers

1 l Olbid"

111Annex Vl, Art 15(5). 112See Art 188(1)(a). 113Annex Vl, Art 14. 114Annex Vl, Art 35(1). 115Annex Vl, Art 35(3). 116Annex Vl, Art 35(2). l~TAnnex Vl, Art 17. ~18Annex Vl, Art 15(5). 119Annex Vl, Art 36(3).

38

Not content with having a Tribunal, a Sea-Bed Disputes Chamber and a variety of special chambers including an ad hoc special chamber of the Tribunal, the fathers of the Convention heaped complexity upon complexity by providing for one more sub-organ--an ad hoc chamber of the Sea-Bed Disputes Chamber. While the temptation to solve political problems through institutional proliferation may be understandable, it was nevertheless a temptation which should have been firmly rejected. In the interests of simplicity, and of certainty and uniformity of interpretation, it is to be hoped that common sense in the employment of these various organs will establish the Sea-Bed Disputes Chamber itself as the pre-eminent forum. The provision for ad hoc chambers of the Sea-Bed Disputes Chamber is made in Annex VI, Article 36. An ad hoc chamber of three members of the Chamber may be formed to deal with a particular dispute submitted to the Chamber in accordance with Article 188(1)(b). The composition of the ad hoc chamber is to be determined by the Chamber with the approval of the parties, though provision is made for cases of disagreement. That ad hoc judges may not be appointed to such ad hoc chambers seems to be implied by the exclusion of nationals of the parties to the dispute. ~19 Arbitral tribunals under Annex VII As has been seen, one of the means of dispute settlement for which

Dispute settlement and the law of the sea: E D Brown

States Parties may opt under Article 287 of the UN Convention is arbitration by an arbitral tribunal established under Annex VII. Under Article 2(1) of Annex VII, provision is made for the establishment of a list of arbitrators. Each State Party is entitled to nominate four arbitrators and the persons so nominated constitute the list. When a tribunal has to be set up to hear a particular case, normally a five-member tribunal is appointed, lz° The two parties to the dispute each appoint one member and together have to agree on the appointment of the remaining three members, who must be nationals of third States unless the parties otherwise agree. 121 Rather surprisingly, none of the five members has to be chosen from the above-mentioned list; it is simply provided that they are to be "chosen preferably from the list". 122 Decisions are to be taken by a majority vote 123 and a tribunal's award is final unless the parties have agreed in advance to an appellate procedure. 124 The provisions of Annex VII apply not only to disputes between States Parties but also, mutatis mutandis, to any dispute involving entities other than States Parties. Special arbitral tribunals under Annex VIII

12°Annex VII, Art 3. The pattern may be varied (i) if the parties otherwise agree (Art 3, chapeau) or (ii) more than two parties are involved (Art 3(g) and (h)). 121Annex VII, Art 3(b)-(d).

l~21bid. ~23Annex VII, Art 8. 124Annex VII, Art 1 1. ~25Annex VIII, Art 2(1). 126Annex VIII, Art 2(3). ~27Annex VIII, Art 2(2). 128Unless the parties otherwise agree under Art 3, chapeau. The pattern may also be varied if more than two parties are involved (Art 3(g)-(h)). ~e9Annex VIII, Art 3(b), (c) and (d). ~3°Annex VIII, Art 4. ~3~Annex VIII, Art 5(1). Such findings will be considered as conclusive "unless the parties otherwise agree" (Art 5(2)). 132Annex VIII, Art 5(3).

States Parties may also opt for "special arbitration" as a means of dispute settlement under Article 287 of the UN Convention. As has been seen, this option is available for disputes concerning the interpretation or application of the provisions of the UN Convention in four specified fields. Accordingly, Annex VIII makes provision for the establishment of four lists of experts from which special arbitral tribunals may be constituted to hear particular cases. 125 The procedure is that each State Party may nominate two experts in each of the fields concerned and the persons so nominated in each field will constitute the appropriate list. 126 The lists are to be established and maintained by specified international institutions as follows: (1) on fisheries by the Food and Agricultural Organisation (FAO); (2) on protection and preservation of the marine environment by the United Nations Environment Programme (UNEP); (3) on marine scientific research by the Inter-Governmental Oceanographic Commission (IOC); and (4) on navigation, including pollution from vessels and by dumping, by the International Maritime Organisation (IMO). 127 When a special arbitral tribunal has to be set up to hear a particular dispute, normally a five-member tribunal is appointed.12s The parties each appoint two arbitrators and have to agree on a fifth who will act as President. All five are to be chosen preferably, but not necessarily, from the appropriate list of experts. 129 The general provisions of Annex VII are also applicable, mutatis mutandis, to special arbitration under Annex VIII. 1311 Varying the dispute-settlement theme yet further, Annex VIII goes on to give these special arbitral tribunals a "fact-finding" role. Under Article 5, the parties to a dispute in one of these four specialised fields may agree at any time to request a tribunal "to carry out an inquiry and establish the facts giving rise to the dispute". 131 They can also go further and ask the tribunal to formulate non-binding recommendations which "shall only constitute the basis for a review by the parties of the questions giving rise to the dispute". 132 Conciliation commissions under Annex V Submission of a dispute to conciliation may take place in one of two 39

Dispute settlement and the law o f the sea: E D Brown

ways. First, Part XV, Section 1 of the U N Convention makes general provision in Article 284 for the agreed submission of any dispute concerning the interpretation or application of the Convention to conciliation under Annex V, Section 1, or another agreed conciliation procedure. Secondly, as was seen above, 133 under Part XV, Section 3 of the U N Convention, certain disputes concerning marine scientific research, fishing and maritime boundaries, which have been excluded from the application of the "compulsory procedures entailing binding decisions" in Part XV, Section 2, must be submitted to conciliation under Annex V, Section 2. In this case, no mention is made of any other "agreed conciliation procedure". Provision is made in Annex V, Article 2 for a list of conciliators to be drawn up and maintained by the U N Secretary-General. Each State Party is entitled to nominate four conciliators for inclusion in the list. When a conciliation commission is required for a particular case, a five-member commission will normally be constituted as follows: each party will appoint two conciliators, one of whom may be its national, and the four so appointed will choose from the list a fifth conciliator who will act as chairman. 134 The commission has to report within 12 months of its constitution but neither its conclusions on questions of fact or law, nor its r e c o m m e n d a tions for an amicable settlement are binding on the parties. 135 For the most part, the procedure is the same for both agreed conciliation under Article 284 and a compulsory submission under Annex V, Section 2.136 In the latter case, however, any disagreement as to whether a Commission has competence will be decided by the Commission. 137

Commission on Limits of Continental Shelf

133See: The dispute settlement scheme in outline: Section 3. Limitations and exceptions to applicability of Section 2. ~34Annex V, Art 3. The commission may be constituted differently if the parties so agree (Art 3, chapeau) or more than two parties are involved (Art 3(g)-(h)). ~35Annex V, Art 7. Cf. the fact-finding role of special arbitral tribunals under Annex VIII. As noted in note 131, their findings are normally considered as conclusive. 136Annex V, Art 14. 137Annex V, Art 13. 138Annex II, Art 3. ~39Annex II, Art 8. ~4°UN Convention, Art 76(10) and Annex II, Art9. 14~UN Convention, Art 76(8).

40

Functions of the Commission, Provision is made for the setting up of a Commission on the Limits of the Continental Shelf in Article 76 of the U N Convention and Annex II. Under Article 76(8) of the Convention and Article 4 of Annex II, a coastal State intending to establish the outer limits of its continental shelf beyond 200 miles is required to submit particulars of such limits to the Commission as soon as possible, but in any case within 10 years of the entry into force of the Convention for that State. The functions of the Commission are to make recommendations in accordance with the formula contained in Article 76 and to provide any scientific and technical advice requested by the coastal State during the preparation of its submission to the Commission.~38 Under Article 76(8), the coastal State has to establish the limits on the basis of the Commission's recommendations. If the coastal State disagrees with the recommendations of the Commission, it may, within a r e a s o n a b l e time, m a k e a revised or new submission to the Commission. t39 The Commission is not concerned with the delimitation of boundaries between States with opposite or adjacent coasts. 14° Although the Commission is not part of the dispute-settlement machinery of the U N Convention, the role it plays as an objective, expert body will help to ensure that disputes will not arise over the determination of the outer limit of the continental shelf. Limits established by the coastal State on the basis of the Commission's recommendations are final and binding.14~ Establishment of the Commission. The 21-member Commission is to

Dispute settlement and the law of the sea: E D Brown

consist of experts in the field of geology, geophysics or hydrography. Though elected by States Parties from among their nationals, having due regard to the need to ensure equitable geographical representation, they will serve in a personal capacity. 142 The initial election was supposed to have been held "as soon as possible but in any case within 18 months of the entry into force of" the U N Convention. 143 H o w e v e r , following a Secretariat suggestion, 144 States Parties agreed that the election would be postponed until March 1997, with the proviso that should any State which is already a Party to the Convention by 16 May 1996 be affected adversely in respect of its obligations under Article 4 of Annex II to the Convention as a consequence of the change in the date of the election, States Parties, at the request of such a State, would review the situation with a view to ameliorating the difficulty in respect of that obligation. 145 The election will eventually be held at a meeting of States Parties and on the basis of a list made up of nominations submitted by States Parties. The successful nominees will be those obtaining a two-thirds majority vote of States Parties present and voting. Not less than three m e m b e r s must be elected from each geographical region. 146 Unless the Commission decides otherwise, it will function by way of sub-commissions of seven members, "appointed in a balanced manner taking into account the specific elements of each submission by a coastal State". 147 H o w e v e r , the recommendations of the sub-commission have to be approved by the full Commission by a majority of two-thirds. 148 Ad hoc expert panel under Fish Agreement. Finally, to complete this account of the range of dispute settlement machinery available to States under the U N Convention and related Agreements, reference has to be made to the provision made for the establishment of ad hoc expert panels under the Fish A g r e e m e n t . U n d e r Article 29 of the A g r e e m e n t , it is provided that, where a dispute concerns a matter of a technical nature, the States concerned may refer the dispute to an ad hoc "expert panel" established by them. The panel has then to confer with the States concerned and "shall endeavour to resolve the dispute expeditiously without recourse to binding procedures for the settlement of disputes". No further details are provided as to what constitutes a matter of a technical nature, or on the composition or mode of establishment of the ad hoc expert panel. It would seem that the States concerned have complete freedom to decide the details for themselves. Certainly, such expert panels are different from the list of experts on fisheries which has to be established by the F A O under A n n e x V I I I to the U N Convention. That list is associated with a binding procedure for the settlement of disputes, namely, special arbitration. H o w e v e r , no doubt, States could refer to this list when considering the establishment of an expert panel under Article 29. 1"2Annex II, Art 2(1). 143Annex II, Art 2(2). I"SPLOS/CRP.2. 14SReport of the Third Meeting of States Parties, SPLOS/5, 22 February 1996, p 7, para 20. 146Annex II, Art 2(2)-(3). l"TAnnex II, Art 5. ~"SAnnex II, Art 6.

Evaluation: an over-complex structure? In evaluating the dispute settlement system in the U N Convention, it is interesting to start by adopting the perspective of the draftsman who, in the early 1970s, had to think about how best to ensure that the substantive rules in a comprehensive new convention on the law of the sea would be c o m p l e m e n t e d by a dispute settlement system designed to 41

Dispute settlement and the law of the sea: E D Brown

ensure that disputes over the interpretation or implementation of these rules would be resolved by reference to compulsory third-party procedures entailing binding decisions. As has been demonstrated by the brief review of State practice on dispute settlement prior to 1994, presented at the beginning of this article, States have shown little enthusiasm in the past for such procedures, either generally or in relation to the law of the sea. In that context, it is hardly surprising, therefore, that many delegates to U N C L O S III were attracted by the approach pioneered by Professor Sohn. In essence, he argued that States would be more likely to enter into an obligation to accept some dispute settlement mechanism if they were offered a range of different mechanisms as part of a flexible, multi-faceted system of dispute settlement. 149 As has been seen above, the system embodied in the UN Convention is indeed flexible and multi-faceted. However, in reviewing its future prospects, two fundamental questions have to be posed in this final section: (1) How far has U N C L O S III succeeded in including in the UN Convention a comprehensive dispute-settlement system which places an obligation upon States Parties to resolve disputes by reference to compulsory procedures entailing binding decisions?; and (2) Is the system incorporated in the Convention well designed to achieve the two principal objectives of any such system: the definitive settlement of disputes; and the development of a uniform and consistent jurisprudence?

The limited scope of compulsory procedures entailing binding decisions

149Seefurther the following writings of L B Sohn, A Tribunal for the sea-bed of the oceans, Zeitschrift for ausl~ndisches 6ffentliches Recht und V61kerrecht, 1972, 32, 253-264; Towards a tribunal for the oceans, Revue-iranienne des relations internationales, 5-6, 1975-1976, 247-260; US policy toward the settlement of law of the sea disputes, Virginia J. Int. Law, 1967, 17, 9-21; Peaceful settlement of disputes in ocean conflicts: does UNCLOS III point the way?, Law and Contemporary Problems, 1983, 46, 195-200; Virginia J. Int. Law, 1983, 23, 171-189. See also E L Richardson, Dispute settlement under the Convention on the Law of the Sea: a flexible and comprehensive extension of the Rule of Law to ocean space, in T Buergenthal, Contemporary Issues in International Law: Essays in Honor of Louis B Sohn, 1984, pp 149-164.

42

The answer to the first question is clear. The Convention permits States Parties to exclude disputes over several important areas from the scope of the obligation to submit disputes to compulsory procedures entailing binding decisions. As seen above, they include certain disputes relating to marine scientific research, fisheries, maritime boundaries, military activities and enforcement activities and disputes where the Security Council is acting. The degree to which States may exclude the application of the Convention's dispute settlement system varies from subject to subject. Thus, where under Article 298 a State Party opts-out in relation to military activities, enforcement activities and disputes where the Security Council is acting, there is no consequential obligation to refer the dispute to conciliation under Annex V. On the other hand, where under Article 297 a State Party opts-out in relation to marine scientific research disputes or disputes over E E Z fisheries, there is a consequent obligation to refer the dispute to conciliation under Annex V. Similarly, where a State opts-out in relation to boundary disputes under Article 298 there is a consequent obligation to refer the dispute to conciliation. In this case, however, it is added in Article 298(1)(a)(ii) that, if negotiations based on the conciliation Commission's report do not result in an agreement, the parties are subject to a pactum de contrahendo to submit the dispute to a Section 2 procedure, unless they otherwise agree (another pactum de contrahendo). The strongest of these obligations is that arising under Article 298(1)(a) (ii), but amounts to no more than an obligation to seek in good faith to agree upon a Section 2 procedure or to "otherwise agree". In all of these opting-out situations, there remains an obligation to settle the dispute by some peaceful means under Section 1 of Part XV but, as has been seen, that is a very general obligation.

Dispute settlement and the law o f the sea: E D Brown

Will the system achieve the definitive settlement of disputes and the development of a uniform and consistent jurisprudence?

15°For differing views on the merits of introducing this new system of dispute settlement, see S O d a (ICJ Judge), Dispute settlement prospects in the law of the sea, International and Comparative Law Quarterly, 1995, 44, 863-872; and in response J I Charney, The implications of expanding international dispute settlement systems: The 1982 Convention on the Law of the Sea, Am. J. Int. Law, 1996, 90, 69-75. More generally, see L Boisson de Chazournes et al., Implications of the proliferation of international adjudicatory bodies for dispute resolution, ASIL Bulletin, No 9, 1995. 15~See text above, at note 75. ~52Annex Vl, Art 15(4)-(5). 53The question was considered in Special Commission 4 during its examination of the draft Rules of the Tribunal in 1985. See LOS/PCN/SCN.4/L.3, 3 April 1985 (R PlatzOder, ed, The Law of the Sea: Documents 1983-1989, Vol VII, 1990, pp 29-42), at pp 41-42, paras 99-100. It was suggested that, "A conceivable way of meeting such a situation could be for the Chamber to relinquish jurisdiction to the Tribunal in order to achieve a continuous and reliable development in the interpretation of the Convention" (ibid., para 99). The Provisional Report of Special Commission 4 (in Preparatory Commission, Consolidated Provisional Final Report, Vol I, LOS/PCN/130, 17 November 1993, pp 99-114) refers to this suggestion (at p 105) but reports no further progress on the question.

The answer to the first part of this question is that, no matter which of the various fora is employed, the system does offer States Parties the opportunity to settle disputes definitively. However, this is, of course, subject to the m a j o r qualification that this is so only if the dispute concerns an area of the Convention not subject to one of the opt-outs referred to in the previous section. More difficult to answer is the question whether such a multi-faceted system can achieve a uniform and consistent jurisprudence. 15o Much will depend on the pattern of choice of fora which will eventually emerge from declarations made by States Parties. As was noted above, 83 States Parties are d e e m e d to have accepted arbitration under Annex VII simply because they have not so far submitted a declaration expressly choosing any other option. ~5~ If this practice is indicative of the final pattern, the prospects for the development of a uniform and consistent jurisprudence are poor. There will then be no limit to the n u m b e r of different arbitral tribunals which may be set up and no way, therefore, in which uniformity and consistency may be guaranteed. Moreover, even if the pattern changes and 1TLOS is able to establish itself as the principal judicial organ in law of the sea matters, it will still be difficult to ensure a uniform and consistent jurisprudence. As has been seen, if the parties to a dispute so request, the judgment of the tribunal may, in fact, take the form of one rendered by any one of the variety of special chambers or ad hoc chambers which I T L O S may form. 152 The need to provide a means to achieve harmonisation of the jurisprudence of the tribunal and its chambers was discussed in the Preparatory Commission and one delegation suggested the inclusion in the Rules of the Tribunal of an article providing for a kind of harmonisation procedure when there were different views between either two or more chambers or between a chamber and the Tribunal.153 In one sense, the scheme for settlement of disputes embodied in Part XV of the U N Convention has already been successful. The fact is that States, by ratifying or acceding to the Convention, are demonstrating that they are prepared to accept a conventional obligation to comply with a dispute settlement system which includes compulsory procedures entailing binding decisions. In that sense, Part XV has broken the mould and established a more positive attitude to compulsory thirdparty settlement than previously existed. However, this advance has been gained at a cost. As has been seen, the obligation to accept such compulsory procedures is subject to a variety of important exceptions. Moreover, the very feature which may have persuaded some States to accept Part X V - - t h e prolifation of dispute-settlement mechanisms on o f f e r - - m a y lead to a fragmented system in which uniformity and consistency of jurisprudence will be seen to have been sacrificed to the primary objective of ensuring that disputes arising from the Convention may be finally and peacefully settled. However, if over time, I T L O S establishes itself as the central tribunal to which law of the sea disputes are referred and the full Tribunal is employed when important points of interpretation are at stake, there is no reason why both certainty and uniformity cannot be achieved. Much now depends upon State practice and the performance of the new Tribunal.

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