3. Dispute Settlement under UNCLOS

Dispute Settlement under UNCLOS

Concept

Part XV of the United Nations Convention on the Law of the Sea (UNCLOS) provides a framework for settling disputes concerning the interpretation or application of the Convention. It preserves the parties’ freedom to resolve a dispute by peaceful means of their choice while providing compulsory procedures that may lead to a binding decision when settlement is not otherwise reached, subject to the Convention’s limits. (UNCLOS, Arts. 279–280, 286)

Governing provisions

Part XV has three parts: general provisions on peaceful settlement; compulsory procedures entailing binding decisions; and limitations and exceptions to those procedures. Annex VI establishes the International Tribunal for the Law of the Sea (ITLOS), while Annex VII governs arbitration. These are two procedures within the same UNCLOS framework, not separate bodies of substantive law. (UNCLOS, Part XV, Arts. 279–299) (UNCLOS, Annex VI) (UNCLOS, Annex VII)

Requisites / Rules

• The subject of a Part XV dispute is the interpretation or application of UNCLOS. When a dispute arises, the parties must proceed expeditiously to exchange views on its settlement by negotiation or other peaceful means. (UNCLOS, Arts. 283, 286)
• A State Party may choose ITLOS, the International Court of Justice, an Annex VII arbitral tribunal, or an Annex VIII special arbitral tribunal for specified categories of disputes. If the parties have not accepted the same procedure, the dispute generally goes to Annex VII arbitration, unless they agree otherwise. (UNCLOS, Art. 287)
• The availability of compulsory procedures must be checked against the limitations and optional exceptions in Articles 297 and 298. An optional exception depends on a State Party’s declaration; neither the existence of a dispute nor a party’s preferred forum alone establishes jurisdiction. (UNCLOS, Arts. 286, 297–298)

Distinctions

ITLOS is a standing tribunal established under Annex VI. An Annex VII tribunal is constituted to hear a particular dispute. Article 287 treats them as alternative choices for proceedings on the merits, but the Convention also assigns ITLOS certain functions connected with an Annex VII case, including provisional measures pending constitution of the arbitral tribunal when the prescribed conditions are met. (UNCLOS, Arts. 287, 290(5)) (UNCLOS, Annex VI) (UNCLOS, Annex VII)

Key doctrines

Jurisdiction under Part XV concerns UNCLOS disputes; it does not, merely because a maritime dispute is presented, confer authority to decide sovereignty over land territory. A decision rendered by a court or tribunal with jurisdiction under the compulsory procedures is final and must be complied with by the parties to that dispute. (UNCLOS, Arts. 288, 296)

Bar tip

Identify the UNCLOS issue first, then check the parties’ agreed means of settlement, their Article 287 choices, and any applicable limitation or exception. Only then determine whether ITLOS or Annex VII arbitration is the proper procedure. (UNCLOS, Arts. 280, 286–287, 297–298)