Chapter III: UNCLOS Dispute Settlement Regime
B. Negotiating History of UNCLOS Dispute Settlement Regime
In Section B, the drafting history of the dispute settlement regime is discussed to lay the foundation for the interpretation and analysis of relevant UNCLOS provisions in the following Chapters. This Section takes into account the negotiating process of Article 288, 293, 297 and 298 as are relevant to compulsory jurisdiction over territorial sovereignty disputes.
142 VIRGINIA COMMENTARY,supra note 109, at 5–15, 41.
143 Id., at 41.
144 Id., at 41–5;MERRILLS, supra note 119, at 179–80.
145 VIRGINIA COMMENTARY,supra note 109, at 41.
146 Id., at 42
147 Id.
148 Id.
149 Id.
1. Negotiating History of Part XV in General
Prior to the 1982 UNCLOS, attempts to establish a system for the settlement of disputes relating to the law of the sea were futile.150 Specifically, the 1958 Conventions on the Law of the Sea retained an optional protocol for the settlement of disputes in Annex 5. Falling short of the goal envisioned for the First UN Conference on the Law of the Sea in Geneva, the 1958 Optional Protocol of Signature concerning the Compulsory Settlement of Disputes was made “option”
and has a modest 37 State Parties.151 The 1958 Optional Protocol has never applied in practice but served as a lesson for the Third United Nations Conference on the Law of the Sea (1973–1982) in drafting the 1982 Convention.152 The settlement of disputes was recognized as one of the items to be addressed early on in the Second Session of the Third United Nations Conference on the Law of the Sea.153
2. Negotiating History of Compulsory Dispute Settlement
a. Article 288
The drafting history of Article 288 itself does not indicate resistance from States over the formulation of “the interpretation or application” in Article 288.154 It was acknowledged that a system of dispute settlement should be incorporated in
150 Id., at 5, ¶ XV.1.
151 Optional Protocol of Signature concerning the Compulsory Settlement of Disputes art 5, 450 U.N.T.S. 169 (Apr. 29, 1958); Optional Protocol of Signature concerning the Compulsory Settlement of Disputes, Status of Treaties, United Nations Treaty Collection,
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXI-5&chapter=21&clang=_en (last visited Aug. 7, 2019).
152 Tullio Treves, Introductory Note to the 1958 Conventions on the Law of the Sea (2008), http://legal.un.org/avl/ha/gclos/gclos.html (last visited Aug. 7, 2019).
153 Organization of the second session of the Conference and allocation of items: report of the General Committee, at 57, ¶ 9, U.N. Doc. A/CONF.62/28 (1974), in [1975] 3 Official Records of the Third United Nations Conference on the Law of the Sea.
154 Virginia Commentary, supra note 109, at 5–15.
UNCLOS. What States had debated on instead was the exclusionary clause of specific categories of disputes from compulsory procedures.155
b. Article 297
When the El Salvador Ambassador (Dr. Reynaldo Galindo Pohl), who was one of the cochairmen to an informal meeting established to attend to issues of dispute settlement,156 introduced the first draft on the settlement of disputes in the Second Session (1974), he highlighted the need for exceptions from obligatory jurisdiction.157 The Ambassador noted with special regard to “the exceptions to which obligatory jurisdiction did not apply were the questions directly related to the territorial integrity of States.”158 It was in consideration for an effective system that he further noted “[o]therwise, the convention would go too far and might dissuade a number of States from ratifying and even signing [UNCLOS].”159 In the subsequent discussions, however, States converged on negotiating exceptions of certain disputes relating to the exclusive economic zone from binding settlement procedures. 160 Some States were concerned that the exceptions would render the dispute settlement ineffective,161 and weaker States would be left “at the mercy of arbitrary interpretation and unilateral measures by States strong enough to impose their will.” 162 Bearing in mind these apprehensions, changes were made as a compromise. While the later revised draft included the broader scope of disputes concerning the sovereign rights of
155 Id., at 85–141.
156 Id., at 7.
157 Id., at 88, ¶ 297.1; 51st Plenary Meeting, supra note 130, at 213, ¶ 10.
158 51st Plenary Meeting, supra note 130, at 213, ¶ 10.
159 Id.
160 Virginia Commentary, supra note 109, at 88–103.
161 Id., at 88–94.
162 Id., at 194, ¶ 297.6.
States, the exceptions were made “more explicit by defining more precisely the questions that would remain subject to the [compulsory] jurisdiction.”163
c. Article 298
From the outset, the idea for exemption clause for specific categories of disputes was recognized in the Conference by the informal working group on the settlement of disputes in 1974.164 Some States voiced their objection for the preservation of the integrity of the compromise packages of the Convention;165 however, the majority of States considered certain disputes so sensitive as to require exclusion from the far-reaching dispute settlement system.166 The types of disputes subject to optional exemption related to the exercise of States’
regulatory or enforcement jurisdiction, sea boundary delimitation, historic bay, vessels and aircraft entitled to sovereign immunity under international law, and military activities.167
Issues also arose regarding the excluded procedure. Some criticized sea boundary delimitation disputes being excluded only from Section 2 (i.e. compulsory procedures entailing binding decision) and called for the procedures in Section 1 of Part XV (i.e. voluntary dispute settlement procedures) to be equally excluded upon declaration.168 Others insisted on the inclusion of maritime boundary delimitation disputes in Section 2 of Part XV.169 The President of the Conference found neither view had received majority support so as to revise the substance of
163 Id., at 94, ¶ 297.7.
164 Id., at 109, ¶ 298.2.
165 Id.
166 Id., at 110, ¶ 298.2
167 Id.
168 Id., at 112, ¶ 298.8.
169 Id.
the article.170 The text was revised and explicit in reserving the right of Parties to take recourse to procedures under Section 1, unless the Parties agree otherwise.171 Another issue arose in relation to “mixed disputes” of maritime boundary delimitation and sovereignty disputes. 172 Some States were wary of the possibility that “under the guise of a dispute relating to sea boundary delimitation, a party to a dispute might bring up a dispute involving claims to land territory or an island.”173 The concern was addressed and Article 298(1) was amended accordingly.174 Thus, one of the key elements incorporated with respect to maritime delimitation disputes was the exclusion of territorial claims.175
The provision on maritime delimitation remained controversial throughout the negotiating process. The suggestion to exclude disputes relating to sovereignty over land or insular territories from the compulsory dispute settlement procedures entirely and list such dispute among those in Article 297 (i.e.
automatic exceptions) was proposed in the informal plenary meetings.176 The proposal was not reflected in the final text of UNCLOS.177 The President of the Conference noted that given the “delicate compromises that had been very
170 Id.
171 Id., at 113, ¶ 298.9.
172 Id., at 117, ¶ 298.20.
173 Id.
174 Id., at 112, ¶ 298.9; Memorandum by the President of the Conference on document A/CONF.62/WP.10, at 65, 70, U.N. Doc. A/CONF.62/WP.10/Add.1 (1977), in [1978] 8 Official Records of the Third United Nations Conference on the Law of the Sea.
175 Memorandum by the President of the Conference on document A/CONF.62/WP.10, supra note 174, at 70.
176 Report of the President on the work of the informal plenary meeting of the Conference on the settlement of disputes, at 130, ¶¶ 6–7, U.N. Doc. A/CONF.62/L.59 (1980), in [1982] 14 Official Records of the Third United Nations Conference on the Law of the Sea; Virginia Commentary, supra note 109, at 131–2, ¶ 298.28.
177 Report of the President on the work of the informal plenary meeting of the Conference on the settlement of disputes, supra note 176, ¶¶ 6–7.
carefully negotiated […], any attempt to raise these questions should be avoided.”178