Douglas Guilfoyle and Natalie Klein* – Written evidence (UNC0001)

The UN Convention on the Law of the Sea Dispute Settlement System

Douglas Guilfoyle and Natalie Klein[*]

1. How is UNCLOS enforced?

The UN Convention on the Law of the Sea (UNCLOS) is often referred to as a “constitution for the oceans”. Like most public or constitutional law, it is not directly enforced. Rather, a series of authoritative dispute settlement bodies were established under the Convention in order to make final determinations of rights and obligations under UNCLOS. The parties to UNCLOS are predominantly sovereign, independent States. Therefore, at the international level, constructing direct enforcement mechanisms is difficult. This does not mean, however, that the UNCLOS dispute settlement system was included by the 140 to 160 States that participated in hard-fought negotiations over nine years as an act of idealism. Kingsbury explains the attraction of including dispute settlement systems in a treaty:

Less powerful states in particular require assurances that the promises of powerful states are credible. … [Winning] a case may provide some bargaining leverage, but they rely much more on the prospect that the court process and eventual decision will help mobilise other major states to put pressure on the powerful [respondent] state in order to maintain the rule-governed system [of international law] and respect for its institutions.[1]

In any event, on many matters the dispute settlement system routinely works. While one can readily identify outliers, where governments ostensibly reject the results of dispute settlement in Philippines v China or Somalia v Kenya, the great majority of maritime boundary awards are complied with. This is for the simple reason that commercial actors will not invest in, for example, oil and gas exploitation under conditions of legal uncertainty.

The rest of this submission proceeds as follows:

• it first lays out the background leading to a dispute settlement system being included in UNCLOS (and the reasons for its complexity);
• it then provides an outline of the workings of the dispute settlement system; and
• concludes with observations on what may be considered successes of the UNCLOS dispute settlement procedures.

2. Background: why have a compulsory dispute settlement system in UNCLOS?

It is important to note that the UNCLOS dispute settlement system is compulsory. This was not a foregone conclusion during UNCLOS III negotiations. A.O. Adede, who chaired the dispute settlement working group, recorded vigorous differences of opinion during the negotiations both as to whether the Convention should contain a compulsory dispute settlement system and, if so, which subject matters it should cover.[2] Even on questions as sensitive as maritime boundary delimitation, there were strong calls for a compulsory dispute settlement system to apply. Ambassador Padro argued, for example: “[I]t was difficult to credit the good faith of a country in signing a convention if it then refused to allow conflicts about [any and every part of] the application of that convention to be settled by some independent organ or authority.”[3] Developing States and smaller powers were, however, split. Having just secured jurisdiction over extensive fishing zones through the creation of the Exclusive Economic Zone (EEZ), some developing States were not keen to have their exercise of discretionary powers to regulate EEZ fishing subject to (potentially complex and expensive) judicial review.[4] On the other hand, for some less powerful States the dispute settlement system was a sine qua non of their consent to the whole.[5]

In this case, given that the Convention was negotiated as one grand bargain, any system that allowed States to adopt unilateral and self-serving interpretations risked undermining the integrity of compromises reached on specific issues and the Convention as a whole. A compulsory dispute settlement system was thus seen by many as providing a useful break on the possibility of fragmented and diverse interpretations of the Convention’s provisions. Even major naval powers were, on the whole, in favour of a compulsory dispute settlement system in order to promote consistent interpretation of the Convention and prevent “creeping jurisdiction” being asserted by coastal States in a manner that might impinge upon navigational freedoms. In the end, as “many of the 1982 Convention rules contain lacunae or, inevitably, are generally phrased, and since some state practice is of doubtful consistency with them, the availability of judicial or arbitral proceedings offers an exceptional [and necessary] opportunity to clarify the law and to resolve disputes” between State parties.[6] Thus it was that the President of the Conference, Ambassador Amerasinghe, said that “[d]ispute settlement procedures will be the pivot upon which the delicate equilibrium of the compromise [reached] must be balanced”.[7]

3. The UNCLOS dispute settlement system in outline: what does it cover and how does it work?

The dispute settlement system as established in the Convention is contained in Part XV. It is, in principle, compulsory and comprehensive but contains, nonetheless, a number of wide exceptions. [8] The result is complex.[9] In essence, the starting principle of Part XV is that “any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached … [through preliminary or alternative mechanisms], be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction”.[10] Thus, the dispute settlement procedure is both comprehensive and compulsory, unless an exception applies.

The major such exceptions are now found in Articles 297(2) and (3) of the Convention. They expressly exclude from compulsory dispute settlement disputes over marine scientific research (as an EEZ or continental shelf activity) and fisheries regulation (within the EEZ) but provide for a system of compulsory but non-binding conciliation in such cases. In addition, States may also choose to make an elective declaration that they do not accept the application of Part XV to certain sensitive subject matters, principally: maritime boundary disputes (which are again subjected to an alternative and mandatory conciliation procedure) military activities and EEZ law enforcement activities in respect of marine scientific research or fisheries management.[11]

Notably, however, all of these exceptions are subject to a further exception. Article 297(1) contains a jurisdiction affirming provision listing categories of disputes which can never be excluded from Part XV dispute settlement: disputes concerning either freedom of navigation or “specified international rules and standards for the protection and preservation of the marine environment”.[12] The subject matter scope of the dispute settlement system is thus one in which all conflicts concerning the Convention are covered (everything is in), unless an exception excludes them (some things are out), unless a further jurisdiction affirming provision applies (some things can be brought back in). 

Finally, there were divisions of opinion among States as to which body should have jurisdiction to hear such disputes during UNCLOS III negotiations. There were differences of opinion as to whether to entrust such a function: only to the International Court of Justice (an idea unpopular with developing States); only to a new International Tribunal for the Law of the Sea (ITLOS) established under the Convention (unpopular with developed States that did not wish their disputes heard by an untested, and potentially expensive, new body); or only to ad hoc arbitral tribunals (to maximize party choice over the composition of the arbitration panel). In the end, the system adopted was to make all three mechanisms available.[13] Parties to the Convention may make a declaration as to their preferred dispute settlement forum. However, in the absence of such declarations by parties to a dispute, or where the parties have expressed different preferences, the system defaults to arbitration.

The complexity of this system lends itself to States carefully framing their dispute as being about subject matters within Part XV jurisdiction, even if logically this results in only one aspect of a broader dispute being presented. Boyle has referred to this approach as “salami-slicing” and, as he predicted, States have used the technique to bring proceedings against recalcitrant respondent States on sensitive issues in a number of cases.[14] Nonetheless, the validity of this approach and its consistency with the letter and spirit of the Convention has generated a degree of controversy.[15]

4. Successes of UNCLOS dispute settlement

After a relatively quiet start, the use of Part XV dispute settlement appears to have been expanding in recent years (see Annex).[16] Relative to some other international courts or dispute settlement processes, such as those in regional human rights mechanisms or under the World Trade Organisation, the case load under UNCLOS remains modest. It has been suggested that the ‘shadow’ of compulsory dispute settlement moderates State decision-making and behaviour.[17] In some instances, cases have not proceeded beyond the provisional measures stage before being settled.[18] The very existence of compulsory jurisdiction in a highly-subscribed multilateral treaty regulating issues of critical importance is notable in its own right.

It is possible to speculate that smaller States (or the lawyers representing them) have found the (in principle) compulsory nature of Part XV, coupled with the near universal membership of UNCLOS, attractive given the general difficulties of bringing litigation at the international level in what is generally a consent-based system.[19] There have undoubtedly been instances where smaller States have been able to ‘level the playing field’, or at least tilt it slightly more in their favour, through the compulsory procedures.[20]

The compulsory dispute settlement regime has allowed for the advancement of the law of the sea. Judicial interpretation has elucidated some provisions of the Convention, such as the meaning of rocks and islands under Article 121, and accounted for changing technology, as recognized in the methods of signaling ships during a hot pursuit under Article 111. The decisions sometimes reflect an understanding of ‘the package deal’ involved in concluding UNCLOS. For example, some cases have provided opportunities for affirming the balances that must exist between coastal State rights in the EEZ and other State’s interests in the freedom of navigation within that maritime zone.[21]

The operation of the UNCLOS dispute settlement regime has occasionally been called into question. As noted above, the ‘salami slicing’ litigation tactics have occasionally resulted in one complex dispute being heard in several different fora.[22] While UNCLOS contains provisions designed to accommodate the resolution of maritime disputes in alternative fora,[23] it has been more common for tribunals constituted under UNCLOS to exercise jurisdiction than defer to those other dispute settlement procedures.[24] The scope of the exceptions to compulsory jurisdiction has also been tested in different cases and most commonly been drawn narrowly to maximise opportunities to exercise jurisdiction. Nonetheless, no serious backlash against the UNCLOS dispute settlement regime, or UNCLOS itself, has eventuated to date.[25]

ANNEX

Disputes heard under UNCLOS Part XV (excluding cases brought before the ICJ)

Concluded disputes heard by Annex VII arbitration (Permanent Court of Arbitration)

Concluded disputes heard by the International Tribunal for the Law of the Sea

Received 2 November 2021

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