‘Compulsory’ Dispute Settlement under the United Nations Convention on the Law of the Sea – How has it operated? Pt. 2
By Robin Churchill, Professor of International Law, University of Dundee
Note: This blog post is based on the PluriCourts Annual Lecture, which Professor Robin Churchill gave at PluriCourts Annual Conference 2016.
4. The system has not functioned as might have been expected.
In addition to the non-use of several novel features of the UNCLOS dispute settlement system (discussed under point 1) and the types of case (just discussed), there are a number of other ways in which the UNCLOS dispute settlement system has not functioned as might have been expected. They include:
The low number of declarations under Article 287 choosing a preferred forum, with only just over 25% of States parties having made such declarations. The low number is surprising given that at the time of drafting Part XV, having a choice of forum was said to be of critical importance to acceptance of the proposed dispute settlement system in UNCLOS. Bureaucratic inertia may be a factor for the low number. Whatever the reason, it has meant that most disputes have been referred, and will continue to be referred, at least initially, to an Annex VII tribunal. Five of the 18 disputes so far initiated under Annex VII arbitration were subsequently transferred by agreement to the ITLOS, probably to reduce the cost of litigation. This may suggest that the reason for the low number of declarations under Article 287 is not because States have a genuine preference for arbitration.
The lack of declarations under Article 298 excluding certain types of dispute (just over 20%). Again the low number of declarations is surprising, as for many States the inclusion of Article 298 was a condition for agreeing to have a quasi-compulsory dispute settlement system in UNCLOS. The reasons for the lack of declarations is not obvious. A possible consequence is that there have been more maritime delimitation cases than might have been expected.
No cases have yet been referred under Article 286 to either the ICJ or Annex VIII arbitration. This is probably because of the small numbers of States selecting these fora as their preferred means of settlement and the fact that the inclusion of Annex VIII arbitration in UNCLOS was a concession to the then Soviet bloc.
The competence of the ITLOS to give advisory opinions in relation to matters other than Part XI – though not for matters under the rest of UNCLOS. It was widely considered, and strongly argued by several States parties in the proceedings concerning the advisory opinion requested by the Sub-Regional Fisheries Commission, that UNCLOS could give advisory opinions only in relation to matters concerning the activities of the Authority (see Art. 191). However, in the proceedings referred to, the ITLOS held (in 2015) that it could give an advisory opinion where an agreement other than UNCLOS provides for requests for opinions to be made to it.
(Possibly) The non-appearance of China and Russia in the South China Sea and Arctic Sunrise cases. It might be thought that having ratified UNLOS with its dispute settlement system, States parties would appear in cases brought against them. Cf. China as respondent in the WTO where it appears to have implemented adverse findings against it without problem.
There seems to be something of a tendency for dispute settlement systems not to function as anticipated, e.g.
WTO DSU: It is doubtful whether its drafters expected that there would be a dispute registered every fortnight; a panel ruling every six weeks; 70% of panel decisions appealed; and the EU and the USA to be the most lawless members of the WTO (in terms of the numbers of cases brought against them (they have been respondents in 40% of all cases) and being the respondent States in the handful of cases with serious compliance problems).
5. Judicial methods outside the UNCLOS system have continued to be important for settling law of the sea disputes by applying UNCLOS (either as a treaty or as customary international law) since UNCLOS came into force
As mentioned earlier, UNCLOS allows States parties to settle disputes relating to the interpretation and application of UNCLOS outside the framework of Part XV, e.g. by using the ICJ (if there is a basis for jurisdiction) or ad hoc arbitration, and a number of cases have been so referred (e.g. Costa Rica v. Nicaragua and Somalia v. Kenya, referred to above). In addition, a number of law of the sea cases have been referred to the ICJ or arbitration where one of the parties to the dispute was not a party to UNCLOS but UNCLOS has been applied as customary international law (e.g. Eritrea v. Yemen, Nicaragua v. Honduras, Nicaragua v. Colombia) or where the dispute involved not only an UNCLOS dispute but also a non-UNCLOS dispute, e.g. title to territory (e.g. the currently ongoing and ill-fated arbitration between Croatia and Slovenia).
Most cases so referred have been maritime boundary delimitation cases and the judgments in those cases (especially the Black Sea case) have made a notable contribution to the law on maritime boundary delimitation and put some flesh on the bare bones of Articles 74 and 83 of UNCLOS (dealing with delimitation of EEZ and continental shelf boundaries).
6. Dispute settlement under UNCLOS has so far had a limited impact on the development of the law of the sea
It is not, of course, the primary function of dispute settlement systems to develop the law. Yet such development is a frequent by-product of international dispute settlement. The WTO’s DSU and regional human rights courts are excellent illustrations of this fact.
In the case of the UNCLOS, its dispute settlement system has so far had a limited impact on the development of the law of the sea. This is a function both of the number of cases to date and the types of case. Only eight judgments on the merits have so far been given (five of them since 2012): a further five cases are currently pending. Seven cases were either withdrawn or the tribunal lacked jurisdiction. As for the subject matter of the eight cases, four concern maritime boundary delimitation; three the arrest and detention of vessels; and the other was the Chagos MPA case. It is therefore not surprising that with the exception of the provisions of UNCLOS dealing with maritime boundary delimitation, there has so far been rather little development of the law of the sea by the UNCLOS judicial bodies. If we move beyond dispute settlement in a strict sense and include the two advisory opinions given by the Sea-Bed Disputes Chamber and the ITLOS, the development of the law has been rather greater. Not surprisingly, there is also a rich case law on Part XV, the dispute settlement system itself.
In total the provisions of UNCLOS that have been the subject of significant interpretation/development are as follows:
- Art. 15 – delimitation of territorial sea boundaries
- Art. 33 – contiguous zone
- Art. 62 – coastal State legislative jurisdiction in relation to fisheries in the EEZ and the obligations of the flag States of foreign vessels fishing in the EEZ
- Art. 63 – the management of shared stocks
- Art. 73 – coastal State enforcement jurisdiction in relation to fisheries in the EEZ
- Arts. 74/83 – delimitation of the single maritime boundary and outer continental shelf boundary
- Art. 91 – the nationality of ships, especially the genuine link
- Art. 111 – hot pursuit
- Part XI – obligations of States sponsoring seabed mining by their nationals in the Area
- Art. 194(5) – conservation of ecosystems and habitats