b. Annex VII Arbitration

Annex VII Arbitration

Concept

Annex VII arbitration is one of the procedures a State may choose for settling a dispute concerning the interpretation or application of UNCLOS. It also operates as the procedure deemed accepted when a State Party has no declaration covering the dispute, and as the procedure available when the parties have not accepted the same procedure, unless they otherwise agree. (Art. 287, UNCLOS)¹

Governing provisions

Article 279 requires States Parties to settle disputes concerning the interpretation or application of UNCLOS by peaceful means. Under Article 286, subject to section 3, a dispute not settled by recourse to section 1 shall, at the request of any party, be submitted to a court or tribunal having jurisdiction under the relevant section. Articles 287 and 288 govern the choice of procedure and the jurisdiction of the chosen court or tribunal. (Art. 279, UNCLOS)² (Art. 286, UNCLOS)³ (Art. 287, UNCLOS)¹ (Art. 288, UNCLOS)⁴

Requisites / Rules

• A State may choose one or more Article 287 procedures by written declaration when signing, ratifying, or acceding to UNCLOS, or at any time thereafter. Annex VII arbitration is one of the listed choices. (Art. 287, UNCLOS)¹
• If a State Party is involved in a dispute not covered by a declaration in force, it is deemed to have accepted Annex VII arbitration. (Art. 287, UNCLOS)¹
• If the parties accepted the same procedure, the dispute may be submitted only to that procedure, unless they otherwise agree. If they did not accept the same procedure, it may be submitted only to Annex VII arbitration, unless they otherwise agree. (Art. 287, UNCLOS)¹
• An Article 287 court or tribunal has jurisdiction over a dispute concerning the interpretation or application of UNCLOS submitted in accordance with the applicable Part. It also has jurisdiction over a dispute concerning the interpretation or application of an international agreement related to UNCLOS purposes when submitted in accordance with that agreement. (Art. 288, UNCLOS)⁴

Distinctions

Annex VII arbitration is distinct from the other Article 287 choices: the International Tribunal for the Law of the Sea, the International Court of Justice, and Annex VIII special arbitration for specified categories of disputes. The choice of one of these procedures must be distinguished from the separate question whether the court or tribunal has jurisdiction over the submitted dispute. (Art. 287, UNCLOS)¹ (Art. 288, UNCLOS)⁴

Key doctrines

The court or tribunal itself decides a dispute over whether it has jurisdiction. An Article 287 declaration neither affects nor is affected by a State Party’s obligation to accept the jurisdiction of the Seabed Disputes Chamber to the extent and in the manner provided in Part XI, section 5. (Art. 288, UNCLOS)⁴ (Art. 287, UNCLOS)¹

Exceptions

The Article 286 route is expressly subject to section 3. Further, the Article 287 rules directing parties with the same or different accepted procedures to a particular procedure allow the parties to agree otherwise. (Art. 286, UNCLOS)³ (Art. 287, UNCLOS)¹

Bar tip

Check the parties’ declarations first: no covering declaration means deemed acceptance of Annex VII arbitration; different accepted procedures also point to Annex VII, unless the parties otherwise agree. Then address submission and jurisdiction separately. (Art. 287, UNCLOS)¹ (Art. 288, UNCLOS)⁴