Settlement of Disputes

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Settlement of Disputes

• MS205 Implementing the Law of the Sea Convention

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UN Charter

• The parties to any dispute, the continuance of
  which is likely to endanger the maintenance of
  international peace and security, shall, first of
  all, seek a solution by negotiation, inquiry,
  mediation, conciliation, artbitration, judicial
  settlement, resort to regional agencies or
  arrangements, or other peaceful means of their
  own choice. (article 33)

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Objective of Dispute Settlement

• Maintenance of international peace and security.
• Previously, war was an extension of diplomacy by
  other means (Carl von Clause-witz).

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Dispute Settlement

• If parties to a dispute fail to reach a
  settlement by peaceful means of their own choice,
  they are obliged to resort to the compulsory
  dispute settlement procedures entailing binding
  decisions, subject to limitations and exceptions
  contained in the Convention.

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Part XV Settlement of Disputes

• State Parties shall settle any dispute between
  them concerning the interpretation or application
  of this Convention by peaceful means in
  accordance with article 2, paragraph 3, of the
  Charter of the United Nations, and shall seek a
  solution by means indicated in article 33,
  paragraph 1, of the Charter. (art. 279)

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Part XV Settlement of Disputes

• Choice of procedure to be made by written
  declaration when signing, ratifying or acceding
  or any time after. (art. 287)

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Part XV Settlement of Disputes

• Choice of one of more of the following means
  (Article 287)
• ITLOS
• International Court of Justice
• An arbitral tribunal in accordance with Annex VII
• A special arbitral tribunal in accord with Annex
  VIII.
• Only form of compulsory jurisdiction relates to
  deep seabed mining disputes under Part XI of the
  Convention.

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What if there is no agreed dispute mechanism?

• Article 287
• State not covered by declaration, deemed to
  accept arbitration (Annex VII)
• Parties agree to same procedure, that procedure
  applies unless agreed otherwise
• Parties not agreed, submit to arbitration (Annex
  VII)

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What if there is no agreed dispute mechanism?

• SOUTHERN BLUEFIN TUNA CASES (NEW ZEALAND v.
  JAPAN AUSTRALIA v. JAPAN) ITLOS Cases 3 4
  Provisional Measures pending decision of arbitral
  tribunal
• THE MOX PLANT CASE (IRELAND v. UNITED KINGDOM)
  ITLOS Case 10 - not accepted the same procedure
  for the settlement of disputes - deemed to have
  accepted arbitration in accordance with Annex VII
  to the Convention

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• Based in Hamburg, Germany.
• Established in accordance with Annex VI.
• Statute of ITLOS.
• Functions in accordance with 1982 UNCLOS and the
  Statute.

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• 21 Judges
• Persons enjoying the highest reputation for
  fairness and integrity and of recognized
  competence in the field of the law of the sea.
• http//www.itlos.org/start2_en.html

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• 3 Chambers
• Seabed Disputes (art. 186, 1982 UNCLOS)
• Jurisdiction
• Advisory Opinions
• Fisheries Disputes
• Marine Environmental Disputes

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ITLOS

• Judge Rüdiger Wolfrum (Germany) was today elected
  as President of the ITLOS for the period
  20052008 by the 21 members of the Tribunal.
• Judge Joseph Akl (Lebanon), also a member of the
  Tribunal since 1996, was elected for a period of
  three years.

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Seabed Disputes Chamber

• President Judge Caminos
• Members Judge Kolodkin
• Judge Park
• Judge Treves
• Judge Jesus
• Judge Lucky
• Judge Pawlak
• Judge Yanai
• Judge Türk
• Judge Kateka
• Judge Hoffmann

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Chamber for Fisheries Disputes

• President Judge Treves
• Members Judge Marotta Rangel
• Judge Chandrasekhara Rao
• Judge Jesus
• Judge Pawlak
• Judge Yanai
• Judge Kateka

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Chamber for Marine Environment Disputes

• President Judge Lucky
• Members Judge Yankov
• Judge Park
• Judge Xu
• Judge Türk
• Judge Kateka
• Judge Hoffmann

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ITLOS Decisions Case No. 1 The M/V "SAIGA" Case
(Saint Vincent and the Grenadines v. Guinea),
Prompt Release Case No. 2 The M/V "SAIGA"
(No. 2) Case (Saint Vincent and the Grenadines v.
Guinea) Cases Nos. 3 and 4 Southern Bluefin
Tuna Cases (New Zealand v. Japan Australia v.
Japan), Provisional Measures Case No. 5 The
"Camouco" Case (Panama v. France), Prompt Release

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ITLOS Decisions Case No. 6 The "Monte
Confurco" Case (Seychelles v. France), Prompt
Release Case No. 7 Case concerning the
Conservation and Sustainable Exploitation of
Swordfish Stocks in the South-Eastern Pacific
Ocean (Chile/European Community) Case No. 8
The "Grand Prince" Case (Belize v. France),
Prompt Release Case No. 9 The "Chaisiri
Reefer 2" Case (Panama v. Yemen), Prompt Release
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ITLOS Decisions Case No. 10 The MOX Plant
Case (Ireland v. United Kingdom), Provisional
Measures Case No. 11 The "Volga" Case
(Russian Federation v. Australia), Prompt Release
Case No. 12 Case concerning Land Reclamation
by Singapore in and around the Straits of Johor
(Malaysia v. Singapore), Provisional Measures
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• Provisional Measures - Article 290, paragraph 5,
  of the Convention
• The Saiga case, the Camouco, the Monte Confurco,
  the Grand Prince, the Volga and the Juno Trader
  cases prompt release all concern reflagged
  ships.

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• Latest case
• Juno Trader (Saint Vincent and the Grenadines v
  Guinea-Bissau) Application for Prompt Release
  Judgment 18 December 2004.

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International Court of Justice

• Charter provides that the ICJ is the principal
  judicial organ of the United Nations and all
  members are ipso facto parties to the Statute of
  the Court (art. 92 93)

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International Court of Justice

• Established 1945
• Continued same function as PCIJ which began in
  1922.
• The Hague, Netherlands
• 15 Judges
• Court empowered to hear matters under 3 different
  jurisdictional heads contentious jurisdiction
  advisory jurisdiction (advise UN organs) and
  incidental jurisdiction (interim orders).

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International Court of Justice
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International Court of Justice
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International Court of Justice
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International Court of Justice
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International Court of Justice

• Examples of Decisions
• East Timor (Portugal v. Australia) (1991-1995)
• Certain Phosphate Lands in Nauru (Nauru v.
  Australia) (1989-1993)
• Nuclear Tests (Australia v. France) (1973-1974)
• Nuclear Tests (New Zealand v. France) (1973-1974)

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International Court of Justice

• http//www.icj-cij.org/

• Fisheries Jurisdiction (United Kingdom v.
  Iceland) (1972-1974)
• Fisheries (United Kingdom v. Norway) (1949-1950)
  
• Corfu Channel (United Kingdom v. Albania)
  (1947-1949)
• Maritime Delimitation in the Area Between
  Greenland and Jan Mayen (Denmark v. Norway)
  (1988-1993)
• North Sea Continental Shelf (Federal Republic of
  Germany/Denmark Federal Republic of
  Germany/Netherlands) (1967-1969)

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Other dispute settlement means

• Arbitral Tribunal (annex VII)
• Determines its own procedure
• 5 members (1 each, remaining 3 by agreement)
• List of arbitrators (with SG-UN)
• Award final and without appeal unless agreed
  otherwise (Ann. VII, art. 11)

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Other dispute settlement means

• Special Arbitral Tribunal (annex VIII)
• Fisheries
• Marine Environment Protection
• MSR
• Navigation including pollution by dumping
• 5 members (2 from each party, both for 1)
• List of experts

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Part XVI General Provisions

• States shall refrain from any threat or use of
  force against the territorial integrity or
  political independence of any State, or in any
  manner inconsistent with IL principles in the
  Charterof the UN (art. 301).