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Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction

  • Alan E. Boyle
Extract

The entry into force of the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”), on 16 November 1994, is probably the most important development in the settlement of international disputes since the adoption of the UN Charter and the Statute of the International Court of Justice. Not only does the Convention create a new international court, the International Tribunal for the Law of the Sea (“ITLOS”), it also makes extensive provision for compulsory dispute-settlement procedures involving States, the International Seabed Authority (“ISBA”), seabed mining contractors and, potentially, a range of other entities. Implementation of the Convention has spawned a number of inter-State disputes to add to the cases already before the International Court. The initiation of the ITLOS not only opens up new possibilities for settling these disputes but it also has implications for the future role of the International Court and ad hoc arbitration in the law of the sea and more generally. It contributes to the proliferation of international tribunals and adds to the potential for fragmentation both of the substantive law and of the procedures available for settling disputes. Judges Oda and Guillaume have argued that the ITLOS is a futile institution, that the UNCLOS negotiators were misguided in depriving the International Court of its central role in ocean disputes and that creation of a specialised tribunal may destroy the unity of international law. The law of the sea, both judges argue, is an essential part of international law and any dispute concerning the application and interpretation of that law should be seen as subject to settlement by the International Court.

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1. S. Oda, “The ICJ Viewed from the Bench” (1993) 244–11 Hag.Rec. 127–155, and “Dispute Settlement Prospects in the Law of the Sea” (1995) 44 I.C.L.Q. 863; G. Guillaume, “The Future of International Judicial Institutions” (1995) 44 I.C.L.Q. 848. See also Lauterpacht., E.Aspects of the Administration ofInternational Justice (1991), pp.2022.

2. See UNGA Res.2750 XXV(1970) and 3067 XXVIII(1973); Final Act, 3rd UN Conference on the Law of the Sea (1982); B. de Zulueta, Special Representative of the Secretary- General, in UN, Official Text of the UN Convention on the Law of Sea, Introduction; H. Caminos and M. Molitor, “Progressive Development of International Law and the Package Deal” (1985) 79 A.J.I.L. 871; B. Buzan, “Negotiating by Consensus” (1981) 75 A.J.I.L. 324.

3. Sinclair, I., The Vienna Convention on the Law of Treaties (2nd edn, 1984), p.235.

4. See generally Sohn., L. “Settlement of Disputes Relating to the Interpretation and Application of Treaties” (1976) 150–11 Hag.Rec. 195, and “Settlement of Disputes Arising out of the Law of the Sea Convention” (1975) 12 San Diego L.R. 495, 516; Oxman., B. in Soons, A. (Ed.), Implementation of the Law of the Sea Convention through International Institutions (1989), p.648; Adede, A. O., The System for Settlement of Disputes under the UN Convention on the Law of the Sea (1987), p.241; Chinkin, C., “Dispute Resolution and the Law of the Sea”, in Crawford, J. and Rothwell, D. (Eds), The Law of the Sea in the Asian Pacific Region (1995), p.237; Merrills, J., International Dispute Settlement (2nd edn, 1991), chap.ll; Boyle, A. E., “Settlement of Disputes Relating to the Law of the Sea and the Environment” (1996) Thesaurus Acrosaurium (forthcoming).

5. Adede, , idem, chap.9; L. Sohn, “Settlement of Law of the Sea Disputes” (1995) 10 Int J. Marine and Coastal L. 205.

6. See infra Part III.

7. Adede, , op. cit. supra n.4, at pp.242 el seq., and “Settlement of Disputes Arising Under the Law of the Sea Convention” (1975) 69 A.J.I.L. 798.

8. Art.287.

9. For details see Adede, , op. cit. supra n.4, at pp.53 et seq.; Sohn, , op. tit supra n.5.

10. North Sea Continental Shelf Case I.C.J.Rep. 1969, 3; Fisheries Jurisdiction Cases I.C.J.Rep. 1974,3 and 175; Tunisia/Libya Continental Shelf Case I.C.J.Rep. 1982, 18; Gulf of Maine Case I.C.J.Rep. 1984, 246; Libya/Malta Continental Shelf Case I.C.J.Rep. 1985, 13; Land, Island and Maritime Frontier Case I.C.J.Rep. 1992, 35; Jan Mayen Case I.C.J.Rep. 1993,38.

11. Beagle Channel Arbitration (1977) 52 I.L.R. 93; Anglo-French Continental Shelf Arbitration (1978) Cmnd.7438; Sharjah/Dubai Boundary Arbitration (1981) 91 I.L.R. 543; Guinea/Guinea-Bissau Maritime Boundary Arbitration (1985) 35 I.L.M. 251; Franco-Canadian Fisheries Arbitration (1986) 90 R.G.D.I.P. 151; Guinea-Bissau/Senegal Maritime Delimitation Case (1989) 83 I.L.R. 1; St Pierre and Miquelon Arbitration (1992) 95 I.L.R. 645.

12. J. Chamey, “The Implications of Expanding International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea” (1996) 90 A J.I.L. 69. Cf. Guillaume, op. cit. supra n.1, at pp.861–862.

13. See Birnie, P. W. and Boyle, A. E., International Law and the Environment (1992), chap.7.

14. See Arts.55–75, 192–262; Burke, W. T., The New International Law of Fisheries (1994), pp.5980; Kwiatkowska, B., The 200 Mile EEZ in the New Law of the Sea (1989); Attard, D., The Exclusive Economic Zone (1987); Orrego-Vicuna, F., The Exclusive Economic Zone (1989).

15. See Meltzer., E. “Global Overview of Straddling and Highly Migratory Fish Stocks: The Non-Sustainable Nature of High Seas Fisheries” (1994) 25 O.D.I.L. 255; Burke, Ibid; Ulfstein, G., Andersen, P. and Churchill, R., The Regulation of Fisheries: Legal, Economic and Social Aspects (1986).

16. See Davies, P. “The EC/Canadian Fisheries Dispute in the Northwest Atlantic” (1995) 44 I.C.L.Q. 927. In 1995 Canada and the EC concluded an Agreed Minute on the Conservation and Management of Fish Stocks: see (1995) 34 I.L.M. 1260.

17. Arts.27–32. Art.30 is summarised infra n.24. Art.32 imports the same exclusions from compulsory jurisdiction as are found in Art.297(3) of the Convention.

18. United Australia Ltd v. Barclays Bank Ltd [1941] A.C. 1,29: “When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course for the judge is to pass through them undeterred.”

19. Art.76(8) and Annex II. Art.7.

20. Annex II, Art.9. See also Art.76(10) and Art.134(4). “The phrase ‘matters relating to delimitation of boundaries’ emphasizes that the Commission is not to function in determining, or to influence negotiations on, the continental shelf boundary between states with overlapping claims … It also indicates that the Commission is not to be involved in any matters regarding the determination of the outer limits of a coastal state's continental shelf where there is a dispute with another state over that limit. The Commission's role is to make recommendations on the outer limits of a coastal state's continental shelf, not to be involved in matters relating to delimitation of the continental shelf between States”: Nordquist, M. (Ed.), UNCLOS 1982 Commentary, Vol.II (1993), p.1017.

21. (1992) 95 I.L.R. 645, paras.75–82.

22. For analysis of this problem see McRae, D. M., “The Single Maritime Boundary: Problems in Theory and Practice”, in Brown, E. D. and Churchill, R. (Eds), The UN Convention on the Law of the Sea: Impact and Implementation (1987), p.225.

23. Art.187. However, it might possibly be argued that the ISBA would have authority to bring proceedings by virtue of Art.187(b)(i), on the basis that a shelf claim which does not comply with Art.76 is a violation of Art.137 of Part XI.

24. Related agreements under which compulsory jurisdiction may exist include the 1995 Agreement on Straddling and Highly Migratory Fish Stocks. Art.30 of which applies the provisions of Part XV of the Convention mutatis mutandis to disputes concerning interpretation and application of the Agreement or of any subregional. regional or global fisheries agreement relating to straddling or highly migratory stocks; and the 1994 Agreement on the Implementation of Part XI of the UNCLOS 1982, Art.2 of which provides for the Convention and the Agreement to be read as a single instrument and by implication would seem to import the dispute settlement procedures of Part XI. Ss.6 and 8 of the Agreement also do so explicitly for those matters to which they relate.

25. Art.9 of the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Vessels on the High Seas provides for parties to a dispute to refer it by agreement to ITLOS, the ICJ or arbitration. The possibility of consensual references under the 1995 Agreement on Straddling Fish Stocks would seem to be implicit in Arts.27–32 of that Agreement.

26. “A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.”

27. Annex VI, Art.2.

28. Annex VI, Art.2(2) provides for representation of the principal legal systems and equitable geographical representation. At the first election it was decided that 5 seats would be allotted to Africa, 5 to Asia, 4 to Latin America and the Caribbean, 4 to Western Europe and others, and 3 to Eastern Europe. Judges elected in 1996 are: Akl (Lebanon), Anderson (UK), Caminos (Argentina), Eiriksson (Iceland), Engo (Cameroon), Kolodkin (Russia), Laing (Belize), Marotta (Brazil), Marsil (Tunisia), Mensah (Ghana), N'Diaye (Senegal), Nelson (Grenada), Park (South Korea), Rao (India), Treves (Italy), Vukas (Croatia), Warioba (Tanzania), Wolfrum (Germany), Yamamoto (Japan), Yankov (Bulgaria), Zhao (China).

29. Art.290 and Annex VI, Arts.15, 25, 31, 32.

30. Annex VI, Art.33.

31. ICJ Statute, Art.34.

32. R. Y. Jennings, “The ICJ After 50 Years” (1995) 89 A.J.I.L. 493.

33. European Convention on Human Rights and Freedoms, Art.25; American Convention on Human Rights, Art.44.

34. 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States.

35. See D. Caron, “The Nature of the Iran–US Claims Tribunal and the Evolving Structure of International Dispute Resolution” (1990) 84 A.J.I.L. 104; Mapp, W., The Iran–US Claims Tribunal (1993); J. Crook, “The UN Claims Commission” (1993) 87 A.J.I.L. 144 and 1992 UN Claims Commission Report (1992) 31 I.L.M. 1018.

36. See Art.187.

37. See also Art.1(2) of the 1995 Agreement on Straddling and Highly Migratory Fish Stocks.

38. See Annex IX, Art.7.

39. Supra Part III.A.3.

40. Art. 1(3).

41. Even NGOs can be parties to international arbitration with States: see the Rainbow Warrior Arbitration (Greenpeace v. France). For details see C. Gray and B. Kingsbury, “Developments in Dispute Settlement: Inter-State Arbitration Since 1945” (1992) 63 B.Y.I.L. 104, n.39.

* Professor of Public International Law, University of Edinburgh. This is a revised version of a paper delivered at the Annual Conference of the British Branch of the ILA in Edinburgh in 1996. I am grateful to His Excellency Judge Dolliver Nelson for some very helpful comments but the views expressed here are mine alone.

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International & Comparative Law Quarterly
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