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Settlement of Disputes Arising Under the Law of the Sea Convention

Published online by Cambridge University Press:  28 March 2017

A. O. Adede
A. O. Adede*
Affiliation:
Ministry of Foreign Affairs, the Republic of Kenya; Member of the Kenya delegation to the Third United Nations Law of the Sea Conference
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Extract

The basic objective of the Third United Nations Conference on the Law of the Sea is to adopt a comprehensive Law of the Sea Convention. From the records of the long preparatory work of the Conference by the UN Seabed Committee and the discussions at both the Caracas and Geneva sessions of the Conference, it is clear that the final product will be a treaty creating new rules of international law and also updating certain traditional ones. In effect, the comprehensive Law of the Sea Convention is intended to establish a new world order in the ocean space.

Type
Research Article
Information
American Journal of International Law , Volume 69 , Issue 4 , October 1975 , pp. 798 - 818
Copyright
Copyright © American Society of International Law 1975

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References

1 For an analytical report of the preparatory work of the UN Seabed Committee see Stevenson, and Oxman, , The Preparations for the Law of the Sea Conference, 68 AJIL 1 (1974)Google Scholar.

2 For a comprehensive analysis of the work of the Caracas session of the Law of the Sea Conference, see Stevenson, and Oxman, , 69 AJIL 1 (1975)Google Scholar. The work of the Geneva session is analyzed by the same authors at supra p. 763.

3 A useful discussion on these methods of settlement of disputes is found in, e.g., Sohn, , The Relation of Arbitration to other Methods of Settling International Disputes, 108 Rec. Des Cours 11 (1963–1)Google Scholar.

4 Early proposals and discussions on the settlement of disputes by the Seabed Committee related only to the activities in the seabed area beyond the limits of national jurisdiction. For a summary and analysis of the early proposal for a Seabed Tribunal see Sohn, A Tribunal for the Sea-Bed or the Oceans, 32 Zeitschbift Für Ausländisches Öffentliches Recht und Völkerecht 253 (1972)Google Scholar.

5 The Working Group elected as Co-Chairmen, Ambassadors R. Galindo Pohl (El Salvador) and R. L. Harry (Australia). When Ambassador Galindo Pohl became Chairman of Committee II at the Geneva session of the Conference, the Working Group elected Dr. A. O. Adede (Kenya) as Co-Chairman. Professor Louis B. Sohn (U.S.A.) has acted as Rapporteur, both at the Caracas session and Geneva session of the Working Group. Since the Working Group does not keep official records of its meetings, the author of this article has relied on his own notes and also on the unofficial minutes of the Geneva proceedings which were diligently prepared by Mr. F. P. Nolan of the Australian Delegation.

6 United States, Draft Articles for a Chapter on the Settlement of Disputes, UN Doc. A/AC.138/97 (1973). Reproduced in 28 UN GAOR Supp. 21, Vol. II, at 22–23, UN Doc. A/9021 (1973).

7 The paper was submitted as UN Doc. A/CONF.62/L.7; reproduced in Third UN Conf. on the Law of the Sea, Off. Recs, Vol. III, at 55–93 (1974). For a useful analysis of this Caracas document on the settlement of disputes, see Sohn, , Settlement of Disputes Arising out of the Law of the Sea Convention, 12 San Diego L. Rev. 495 (1975)Google Scholar.

8 See UN Doc. SD.Gp/2nd Sess./No. 1/Rev. 5, May 1, 1975. Reprinted in 14 ILM 762 (1975). As finally presented, the document has three main annexes. The 17 draft articles are divided into two categories: opening draft Articles 1–4, followed by draft Articles 5–17 as annex I with the three sub-annexes: Annex IA on conciliation; Annex IB on Arbitration; and Annex IC containing the draft Statute of the Law of the Sea Tribunal. Annex II illustrates the functional approach to the settlement of disputes and was submitted by Professor J. P. Queneudec of France. Annex III is a preliminary Chapter on Information and Consultation submitted by the Australian Delegation. [Ed. Note: Subsequent to the writing of this article, the President of the Conference prepared and circulated an Informal Single Negotiating Text on Settlement of Disputes. See UN Doc. A/CONF.62/WP.9, July 21, 1975.]

9 The Working Group recommended that the Conference consider the desirability of including the following phrase in the preamble to the Convention: “Having regard to the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations . . .” [Footnote to the text of this article as contained in the document cited supra note 8, at 4.]

10 The paper was submitted by Mr. E. Lauterpacht on behalf of the Australian Delegation. The central thesis of the paper is contained in the following excerpt:

The Australian Delegation is influenced in this inquiry by the following considerations:

(i) the obvious desirability of preventing “differences” escalating into “disputes”;

(ii) the fact that there are a number of problems in relation to the law of the sea which are better solved other than on a basis of strict law or, indeed, cannot by their nature be solved on such a basis;

(iii) realization that extensive rights for States in relation to the economic zone, archipelagic waters and straits may be the more acceptable if associated with techniques for reviewing the exercise of regulatory powers; and

(iv) awareness that even the judgment of a court is ultimately dependent for its effective fulfillment upon the consent of the State against which it is given; and that the reasons which lead States to comply with judgments ought to be brought to bear in such a way as to secure at an earlier stage the same willingness to settle disputes.

From Settlement of Disputes, Australian Paper (Mar. 21, 1975).

11 Consider further the Australian elaboration of the scheme explained in note 10 above. Two suggestions of a procedural character which the Australian paper identified as novel with respect to the scheme were expressed as follows:

The first is that at even as early a stage as consultation the parties should be obliged to exchange in writing full statement of their respective positions, setting out the facts and all relevant considerations, of law and otherwise. This is because experience has shown that disputes have often festered for a prolonged period because neither side was aware until too late of the full nature of its own and the other party’s position. The second new feature is the requirement that both in the conciliation and in the judicial settlement procedures, especially the latter, the parties should be required, after the close of the written pleadings and in the full knowledge of the strength and weakness of each other’s case, once again to go through a phase of negotiation.

12 The salient features of the Law of the Sea Tribunal are reflected in the following article of its Draft Statute:

Article 16

1. The Tribunal shall frame rules for carrying out its functions. In particular, it shall lay down rules of procedure.

2. When a dispute involves technical questions, such as safety of navigation, ship construction, pollution, scientific research, fishing, or seabed exploration or exploitation, the Tribunal, or the chamber dealing with the dispute, shall be assisted in consideration of the case by two or more technical assessors sitting with it but without the right to vote. These assessors shall be chosen by the President of the Tribunal from the list of qualified persons prepared pursuant to the Rules of the Tribunal.

3. The Tribunal shall, whenever it deems it desirable or the parties to a case request it, refer technical issues of fact to a fact-finding board for non-binding advice. The members of such a board shall be selected from the list provided for in paragraph 2 of this Article.

Draft Article 14 of the Statute empowers the Tribunal to form one or more chambers for dealing with particular cases, while draft Article 15 provides that the Tribunal be constituted with a view to speedy dispatch of its business. For the competence of the Tribunal, see the text at infra note 28.

13 “This article may be later located in some other chapter or chapters of this Convention.” [Footnote to the text of the article as contained in the document supra note 8, at 5.]

14 Article 26 of Annex 1C containing the draft statute for the proposed Law of the Sea Tribunal gives the tribunal the power to prescribe such interim measures as follows:

Article 26

1. The Tribunal shall have the power to prescribe, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of the parties and to minimize damage to any party pending final adjudication.

2. If the Tribunal is not in session, the provisional measures shall be prescribed by the Chamber of Summary Procedure to be established under Article 15 of this Statute.

3. Notice of the measures prescribed by the Tribunal shall forthwith be given to the parties and to all Contracting Parties.

4. The interim measures prescribed by the Tribunal, or its chamber, shall be binding upon the parties.

15 The question of prior demonstration of prima facie jurisdiction is a troublesome one in this context. It is arguable that the application of that principle may lead to further delays in the prescription of interim measures, if the issue of jurisdiction is also to be contested and resolved first.

16 An earlier version of this important draft article contained a formulation which left room for the court having jurisdiction and the power to prescribe such interim measures to act propio motu, taking as an example the similar power of the International Court of Justice under Article 41 of the Statute of the Court and the Rules of Procedure of the Court.

17 It is clear that, without drastic changes in the procedures, functions, and jurisdiction of the International Court of Justice, the Court cannot deal with all disputes arising under the Law of the Sea Convention. This is one of the reasons why the creation of another tribunal—a Law of the Sea Tribunal with broader jurisdiction—is worthy of support. The argument that the creation of a new tribunal would result in a plurality of jurisprudence does not seem persuasive.

18 See Sohn, supra note 7, at 509.

19 “The precise drafting and implications of this Article, in particular of paragraph 3 (a), will require further examination in the light of the substantive provisions of this Convention.” [Footnote to this article as contained in the document supra note 8, at 6.]

20 The third view is contained, for example, in the paper submitted to the Working Group by Professor Andrés Aramburú of Peru, suggesting the following text for Article 17:

When ratifying the present Convention or expressing in another manner its consent to be considered as bound under this Convention, any State will be entitled to declare that it does not accept any of the proceedings for the solution of controversies, specifically provided for in this Convention, to be applied to those raised as a consequence of events that took place in areas subject to its sovereignty and/or jurisdiction, such as the territorial sea, the exclusive economic zone or the continental shelf, or having connection with such areas, including those referring to the boundaries or the extension of such areas and to the resources, living or not living, existing in the same, and that such controversies will belong to the exclusive competence of the jurisdictional bodies of the coastal State.

[Unofficial translation: not checked for accuracy]

21 What constitutes abus ou détournement de pouvoir will require further examination. See note 19 supra.

22 For an extensive analysis of the origin, nature, and scope of this rule see, e.g., Adede, A. O. , Exhaustion of Local Remedies as a Precondition of International Proceedings, Doctoral Dissertation in the libraries of the Fletcher School of Law and Diplomacy and of Harvard Law School (1971)Google Scholar. See also sources cited in Sohn, supra note 7, at 510 n. 43.

23 A brief discussion on the origin of the concept of denial of justice, relating it to the local remedies rule, is found in Sohn, L. & Buergenthal, T., International Protection of Human Rights 32–40 (1973)Google Scholar.

24 See also paper by Ambassador Galindo Pohl, R. , (El Salvador), The Settlement of Disputes on the Law of the Sea, presented in Boston, Feb. 2, 1975 Google Scholar.

25 Sohn, supra note 7, at 516.

26 After the Mixed Arbitral Tribunals, established by the 1919 Peace Treaties, ran into difficulties, a special appeal procedure was established, allowing recourse to the Permanent Court of International Justice.

27 ICJ Statute, Article 34 (1).

28 Article 20 of the Draft Statute of the Law of the Sea describes the competence of the Court as follows:

States, international organizations, and natural and juridical persons may be parties before the Tribunal in any case expressly provided, for in this Convention or in an international agreement, public or private, accepted by all the parties to the dispute.

See supra note 8, at 6. See also, in this connection, draft Article 13 of the Working Document, supra pp. 811–12.

29 Since many of the developing countries have not accepted the compulsory jurisdiction of the International Court of Justice and since there has been general discontent with that court as a result of its earlier decisions on the South West African cases, the developing countries may consider accepting the jurisdiction of a new tribunal created through a process in which they actively participated. Thus the option for the establishment of such a tribunal should be left open. A categorical rejection of the establishment of the tribunal would be unwise.

30 Sohn, supra note 7, at 516.