‘Compulsory’ Dispute Settlement under the United Nations Convention on the Law of the Sea – How has it operated? Pt. 1
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.
In my presentation I put forward six propositions. They are partly designed to challenge some common perceptions about the system of dispute settlement set out in United Nations Convention on the Law of the Sea (UNCLOS), and partly to raise questions about how the system has operated in the 22 years since UNCLOS came into force in 1994. My six propositions are as follows:
Although frequently hailed as innovative and ambitious, much of the system of dispute settlement in UNCLOS is quite traditional. Many of the system’s more novel features have yet to be used, and it regrettably lacks some of the innovative features of more recently developed dispute settlement mechanisms.
Although often described as compulsory, the system is some way from having this quality.
The system has not been used for the purposes for which it was chiefly designed.
The system has not functioned as might have been expected.
Judicial means 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.
The UNCLOS dispute settlement system has so far had a limited impact on the development of the law of the sea.
I elaborate on each of these propositions below. The focus of the presentation is on judicial means of dispute settlement, but it must not be forgotten that diplomatic means of settlement remain important. Most disputes are settled by negotiation, although the use of third-party diplomatic means (mediation, conciliation and inquiry) appears to be infrequent. Where appropriate, I make brief comparisons with other dispute settlement mechanisms. For the benefit of those who are not familiar with the UNCLOS dispute settlement system, I introduce the system briefly at the beginning of my first point.
1. Although frequently hailed as innovative and ambitious, much of the system of dispute settlement in UNCLOS is quite traditional; many of its more novel features have yet to be used; and regrettably it lacks some of the innovative features of more recently developed dispute settlement mechanisms.
The system’s traditional quality
The system of dispute settlement is contained in two parts of UNCLOS – in Part XI for disputes relating to mining in the International Seabed Area and in Part XV for all other disputes relating to the interpretation and application of UNCLOS. At the heart of Part XV is a compromissory clause typical of many multilateral treaties, Article 286. It provides that subject to the exceptions set out in Articles 297 and 298 (discussed under point 2 below), any dispute concerning the interpretation and application of UNCLOS that cannot be settled by recourse to the consensual means set out in section 1 of Part XV (which are the traditional diplomatic and judicial means listed in Article 33 (1) of the UN Charter) may be referred unilaterally by any party to the dispute to one of the judicial means provided for in Article 287. These means are the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), an arbitral tribunal constituted in accordance with Annex VII of UNCLOS, and a special arbitral tribunal for certain kinds of dispute (fisheries, environmental, scientific research and navigation) constituted in accordance with Annex VIII. A State party to UNCLOS may specify one or more of those four fora as its preferred means for settling disputes. If the parties to a dispute have specified a preference for the same forum, that will be the forum for hearing the dispute. Where the parties’ choice of forum does not coincide, or where one or more of the parties to the dispute has not made a choice, the dispute will be dealt with by an Annex VII arbitral tribunal.
The compromissory clause in Article 286 is very traditional, similar kinds of clause being found in dozens of multilateral treaties, some of which predate UNCLOS (for an early example, see the compromissory clause at issue in the Mavrommatis case (1924)). Much less traditional is the wide choice of forums for settling disputes, including a new court established by UNCLOS exclusively for settling law of the sea disputes, namely the ITLOS.
Article 286 is, or ought to be, the lynchpin of Part XV, especially for determining whether a court or tribunal has jurisdiction. In practice, and in my view regrettably, Article 286 has largely been ignored by judicial bodies in determining whether they have jurisdiction. Instead of asking whether the parties have failed to settle the dispute by having recourse to consensual means, as Article 286 stipulates, they ignore this and simply ask whether there has been an exchange of views between the parties as to how to settle the dispute, as laid down in Article 283, the bare minimum of an exchange being regarded as sufficient to satisfy the requirement of Article 283. For an extreme example of this approach, see the award of the Annex VII tribunal in the Arctic Sunrise case (Netherlands v. Russia).
The UNCLOS dispute system does have some features that are novel, or at least that were novel when the Convention was adopted in 1982. They include:
A separate system for dealing with disputes concerning mining in the Area, under which various non-State actors may be parties to proceedings before the sole judicial body that deals with such disputes, the Sea-Bed Disputes Chamber of the ITLOS. Such non-State actors comprise the International Seabed Authority, the Enterprise (the mining arm of the Authority), and State enterprises and natural and legal persons that are parties to a mining contract with the Authority or are prospective contractors. Certain kinds of disputes that concern the interpretation or application of a mining contract may instead be unilaterally submitted to binding commercial arbitration. Disputes between parties that are members of the World Trade Organization (WTO) that concern the application of the rules of GATT to the Authority’s production policy are to be settled in accordance with the WTO’s Dispute Settlement Understanding (DSU).
None of these provisions have yet been used. That is not all that surprising, even though some 24 exploration contracts have so far been signed. The reasons for the non-use of these provisions are probably because of the system of decision-making in the Authority, the procedures by which contracts are drawn up, and the fact that commercial seabed mining in the Area is yet to begin.
Combining fact-finding with arbitration under Annex VIII. Article 5 provides that the parties to a fisheries, environmental, research or navigational dispute may at any time agree to request an arbitral tribunal constituted in accordance with Annex VIII to carry out an inquiry and establish the facts giving rise to the dispute. In addition, it may be requested to ‘formulate recommendations which, without having the force of a decision, shall only constitute the basis for a review by the parties of the questions giving rise to the dispute’. No States have yet availed themselves of these possibilities, probably because only 11 States so far have selected Annex VIII arbitration as one of their preferred means of dispute settlement.
Compulsory conciliation. Where a dispute falls within certain exceptions to unilateral referral to judicial settlement, namely disputes concerning coastal State fisheries management or foreign research authorization in the Exclusive Economic Zone (EEZ) or disputes relating to maritime boundary delimitation, either party to the dispute may unilaterally submit the dispute for settlement by conciliation. Such compulsory conciliation was invoked for the first time only in April 2016 by Timor-Leste against Australia in relation to their undelimited maritime boundary. The reason for the non-use of compulsory conciliation hitherto may be because its utility is perceived to be very limited as the report of a conciliation commission is not binding and in relation to fisheries and scientific research disputes, a commission cannot question the discretion of a coastal State; and because only about 20% of States parties to UNCLOS have exercised their option to exclude maritime boundary disputes from compulsory judicial settlement. Cf. also the very limited use made of conciliation in other fields in contemporary international law.
The competence of the ITLOS (or any other court or tribunal agreed by the parties) to prescribe provisional measures for disputes that are to be dealt with by an Annex VII or Annex VIII arbitral tribunal pending the constitution of that tribunal (Art. 290(5)). The ITLOS has made six such orders of provisional measures. Such orders (which are legally binding) have frequently helped the parties to settle a dispute (examples include the Southern Bluefin Tuna, Land Reclamation and Libertad cases). Nevertheless, the orders of the ITLOS have frequently been intellectually unconvincing, especially on the issues of prima facie jurisdiction and urgency).
Prompt release of vessels. Foreign vessels that have been arrested for alleged fisheries offences in the EEZ or pollution offences shall be released promptly on payment of a bond or other security. Where the arresting State refuses to set a bond or sets a bond that the flag State considers unreasonable, the flag State may apply to the ITLOS (or other agreed court) asking it to order the arresting State to set a reasonable bond (Art. 292). This is a specialized form of diplomatic protection, but without the need for the exhaustion of domestic remedies (see the Camouco case). Nine applications have been made to the ITLOS, although none since 2007. The reason why there have been no applications for almost ten years may be because detaining and flag States have found helpful and acted in accordance with the criteria to be applied in setting a bond that the ITLOS has elaborated in its case law. However, those criteria have been criticised in the academic literature for not showing how the size of bonds actually set by the ITLOS were derived therefrom, with the ITLOS being accused of simply plucking a figure from thin air.
The lack of innovative features
Some dispute settlement mechanisms developed since UNCLOS contain features that it would have been desirable for UNCLOS to have included. I am thinking particularly of:
The non-compliance procedures found in several multilateral environmental agreements (MEAs). [I appreciate that the primary aim of these procedures is not to settle disputes, but in practice they often do.] UNCLOS suffers from widespread systemic non-compliance, e.g. illegitimate baselines, claims to coastal State jurisdiction in the contiguous zone and EEZ in excess of that permitted by UNCLOS, IUU fishing, sub-standard ships etc.). The UNCLOS dispute settlement system has not (yet) really been used to address such non-compliance (see below). To have included in UNCLOS the less confrontational non-compliance procedures (NCPs) of MEAs would have potentially been a very useful tool to address such non-compliance. However, UNCLOS was drafted well before the first NCP was adopted, and the UNCLOS Meeting of States Parties lacks the power (and probably desire) to establish a NCP. Furthermore, many MEA NCPs work on the basis that the parties have to report to an MEA body on fairly precise action (e.g. their production and consumption of ozone-depleting substances in the case of the Montreal Protocol), and it is then a relatively a straightforward task for a NCP to determine whether the specified action has been carried out (or indeed whether a State has reported as required). In fact, UNCLOS does have a reporting system, but it covers only a limited range of matters – certain kinds of baselines, maritime boundaries, and the outer limits of the EEZ and continental shelf (see Arts. 16, 47(9), 75, 76(9) and 84). Details of these matters are to be sent to the UN Secretary-General, but the latter has no power to review the information received for compliance UNCLOS. There is, however, a compliance role for the Authority, which is charged with ensuring compliance with UNCLOS in relation to activities in the Area, and the Commission on the Limits of the Continental Shelf, whose recommendations are designed to ensure compliance with the UNCLOS criteria for determining the outer limit of the continental shelf beyond 200 miles.
It is possibly that some form of NCP could be introduced in any new Implementation Agreement for the conservation of biodiversity in the area beyond the limits of national jurisdiction. This has been advocated by WWF, which presented a briefing paper (of which I am a co-author) to the negotiating session held in March-April 2016.
The mechanisms to secure compliance with judicial rulings in the WTO’s Dispute Settlement Understanding (DSU). The DSU includes elaborate mechanisms for securing compliance with the rulings of panels and the Appellate Body, in particular provision for compensation by the non-complying States and the possibility for the winning State to take retaliatory measures against the non-complying State. It has not clear yet whether non-compliance with the rulings of UNCLOS judicial bodies will be a problem, although there are already some signs that it may be. There is no possible mechanism in UNCLOS to address the question of compliance with judgments (apart from judgments relating to contractual disputes in the Area, which may be enforced in any State party (see Annex III, Art. 21(2)). While in theory the UNCLOS Meeting of States Parties could possibly serve as such a mechanism, it currently lacks an explicit power to do so and is very unlikely to be prepared to consider that it might have an implied competence for this purpose. Of course, as in the case of any inter-State dispute settlement system other than that of the WTO, it would be possible for a winning State to employ counter-measures against a losing State that failed to comply with a judgment, as such failure would be a breach of Article 296(1) of UNCLOS. However, in practice it is difficult for a weaker State to employ counter-measures against a stronger State.
2. Although often described as compulsory, the UNCLOS dispute settlement system is some way from having this quality
Unlike the WTO’s DSU and ICSID, the UNCLOS dispute settlement system does not attempt to establish a monopoly to deal with disputes concerning the interpretation and application of UNCLOS, other than disputes concerning the interpretation of Part XI, for which the Sea-Bed Disputes Chamber has the sole competence (Arts. 187-8). Indeed, UNCLOS emphasises that it is always open to the parties to agree a means of settlement other than that in Part XV (see Arts. 280-2). In practice this possibility is being used. For example, in 2014 Costa Rica and Somalia each chose to refer their maritime boundary delimitation disputes with, respectively, Nicaragua and Kenya to the ICJ under the optional clause (Art. 36(2) of the ICJ’s Statute) rather than under Part XV of UNCLOS. The reasons have not been made public, but it may be that cost was a factor in the Somalia/Kenya case (if the dispute had been referred under UNCLOS, it would have been heard by an Annex VII tribunal, for whose costs the parties would have had to have paid). Costa Rica, on the other hand, had little choice of forum as Nicaragua has made a declaration under Article 298 accepting only the ICJ for the determination of maritime boundary disputes.
Even where the parties to a dispute have not agreed to use some other method to settle their dispute, thus allowing any party to the dispute to make a unilateral referral for binding judicial settlement by invoking Art. 286, the system is not totally compulsory as certain disputes are excluded from such settlement. These exceptions comprise: (1) general exceptions applicable to all parties, namely disputes concerning coastal State fisheries management in the EEZ and coastal State authorization of research in the EEZ (Art. 297); and (2) disputes relating to maritime boundary delimitation, military activities, law enforcements and matters being dealt with by the Security Council which States may choose to exclude from settlement under section 2 of Part XV (Art. 298). In practice, these exceptions have not been invoked in many of the 20 cases that have so far been referred for settlement on the basis of Art. 286 of UNCLOS, and on no occasion have they yet been successfully invoked. Whether the existence of the exceptions has deterred States from instituting proceedings is not clear. Certainly I am not aware of any instances of this having happened. It also needs to be borne in mind that in the case of Article 298, only about 20% of States parties have chosen to avail themselves of the option to exclude some or all of the categories of disputes covered by this Article, and that States can and do make and withdraw declarations under Article 298 at any time, either to prevent a suspected case being brought against them or to allow them to bring a case: examples of the latter, include the withdrawals of declarations by Argentina to bring a case against Ghana relating to the detention of an Argentinian warship, and by Ghana to refer its maritime boundary dispute with Côte d’Ivoire to judicial settlement.
3. The system has not been used for the purposes for which it was chiefly designed
There are various reasons why the Third UN Conference on the Law of the Sea decide to include a quasi-compulsory system of dispute settlement in UNCLOS. First, a number of developed States, including the United Kingdom and the USA, made it clear that they could not accept some of the proposed substantive innovations of UNCLOS, which they thought would produce disputes, without compulsory dispute settlement. Secondly, it was considered that the possibility of compulsory settlement would protect the integrity of the UNCLOS text, particularly the many delicate compromises with which it abounds, from unravelling in the face of unilateral State action and would ensure its uniform interpretation. Thirdly, compulsory dispute settlement was regarded as desirable by many developing and weaker States as a means of countering the political, economic and military pressures of more powerful, developed States.
In practice the UNCLOS system has not so far greatly functioned in line with those expectations. To date 20 cases have referred for judicial determination and decisions on the merits given in eight of them. It is obviously a rather subjective judgment to decide whether a particular case falls within any of the three categories enumerated above. The only case that could conceivably fall into the first category in the Enrica Lexie (Italy v. India) case, but the facts of the case are disputed and yet to be definitely found by the Annex VII tribunal, so that it is not clear yet exactly what provisions of UNCLOS are in issue. Apart from the five maritime boundary cases and the Virginia G case, none of the 20 cases have involved disputes over the application of the innovative and compromise provisions of UNCLOS or over the meaning of its provisions that are unclear or ambiguous: most differences of view on those matters have simply not been litigated at all and remain unresolved. Instead the parties have simply preferred to protest against the claims of others that they consider to infringe UNCLOS and assert their own position. Nor, with the exceptions of the Swordfish (Chile v. EU), Chagos MPA (Mauritius v. UK) and South China Sea (Philippines v. China) cases, have any of the 20 cases involved parties that were markedly unequal. However, while the Chagos MPA case is clearly a David v. Goliath type of case, the essence of the dispute is not really about UNCLOS at all but about sovereignty over the Chagos archipelago, the UNCLOS system being used as one of several possible fora to pursue this dispute, others being domestic courts in the UK and USA and the European Court of Human Rights, albeit that these last for a were used by the former inhabitants of the Chagos archipelago rather than Mauritius itself.