Sohn, Louis B.

English

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PEACEFUL SETTLEMENT OF DISPUTESIN OCEAN CONFLICTS: DOES UNCLOSIII POINT THE WAY?Louis B. SOHN*IINTRODUCTIONOne of the important accomplishments of the Third United Nations Law ofthe Sea Conference is the development of a veritable code for the settlement of thedisputes which may arise with respect to the interpretation and application of theLaw of the Sea Convention.' It was recognized early in the negotiations that if theparties to the Convention had retained the right of unilateral interpretation, thenthe complex text drafted by the Conference would have lacked stability, certainty,and predictability. 2 It is one of the prerogatives of sovereign equality that in theabsence of an agreement on impartial third-party adjudication, the view of onestate with respect to the interpretation of the Convention cannot prevail over theviews of other member states. 3 Each party can claim forever that its view alone iscorrect, but another party can make the same claim, resulting in an impasse.The only effective remedy in such a situation is to provide in advance in theConvention itself for an effective method of settling future interpretation disputes.In the past, several groups of states have usually refused to accept such a solution,and at the 1958 Law of the Sea Conference, agreement was reached only on anoptional protocol which very few states ratified. 4 The general importance of theCopyright © 1983 by Law and Contemporary Problems* Woodruff Professor of International Law, University of Georgia School of Law.1. See Convention on the Law of the Sea openedfor signature Dec. 10, 1982, U.N. Doc. A/CONF.62/122(1982), arts. 279-99, 186-91 [hereinafter cited as Convention], reprinted in 21 I.L.M. 1261 (1982). Con-cerning the evolution of the dispute settlement provisions in the Law of the Sea Convention, see Adede,Prolegomena to the Disputes Settlement Part of the Law of the Sea Convention, 10 N.Y.U. J. INT'L L. & ECON. 253(1977); Adede, Streamlining the System for Settlement of Disputes under the Law of the Sea Convention, I PACE L.REV. 15 (1980); Caflisch, Le riglementjudiciaire et arbitraldes diiTfrinds dans le nouveau droit international de lamer,FESTSCHRIFT FUR RUDOLF BINDSCHEDLER 351 (1980); Rosenne, The Settlement of Dzputes in the iVew Law ofthe Sea, 11-12 REVUE IRANIENNE DES RELATIONS INTERNATIONALES 401 (1978); Sohn, Settlement of DisputesArising out of the Law of the Sea Convention, 12 SAN DIEGO L. REV. 495 (1975); Sohn, Toward a Tribunalfor theOceans, 5-6 REVUE IRANIENNE DES RELATIONS INTERNATIONALES 247 (1975-76).2. In his statement to the U.N. Committee on the Peaceful Uses of the Seabed and the Ocean Floor onAugust 10, 1972, John R. Stevenson stated that effective assurance was needed that the international stan-dards to be agreed upon will be observed. In his words, "Adequate assurance can only be provided by animpartial procedure for the settlement of disputes. These disputes, in the view of my delegation, must besettled ultimately by the decision of a third party. For us, then, the principle of compulsory dispute settle-ment is essential." 67 DEP'T ST. BULL. 382, 384 (1972).3. Cf Jesse Lewis (The David J. Adams) Claim (U.S. v. Great Britain), 6 R. Int'l Arb. Awards 85, 89(1921); McNAIR, THE LAW OF TREATIES 345-50 (1961).4. Optional Protocol of Signature concerning the Compulsory Settlement of Disputes, opened for signa-LAW AND CONTEMPORARY PROBLEMSlatest Law of the Sea Convention and the need to protect the agreed package ofcompromises against destruction through unchallengable unilateral interpreta-tions have led the reluctant states to abandon their opposition to binding provi-sions for the settlement of disputes. 5IITHE GENERAL FRAMEWORK FOR DISPUTE SETTLEMENTThe resulting system for the settlement of law of the sea disputes is at the sametime simple and complex. Its simplicity is due to the fact that the Conventionaccepts as its guiding principle that in general the will of the parties to a disputeshall prevail and that the parties may by agreement select any dispute settlementmethod they wish. 6 The more complex provisions apply only if the parties do notagree upon a dispute settlement method.'Even after a dispute has arisen, and even if one of the procedures provided forin the Convention has been started, the parties can agree "at any time" to adopt aspecial method for settling their dispute. 8 Similarly, if the parties to a dispute havepreviously agreed, in a bilateral, regional, or general international agreement, tosettle disputes (including those relating to the interpretation of international agree-ments between them) by a procedure entailing a binding decision, this proceduresupersedes the procedures provided for in the Law of the Sea Convention. 9For example, if the two parties to the dispute have agreed unconditionally toaccept the jurisdiction of the International Court of Justice, either of them canrefer the dispute to that forum. Some African countries have expressed preferencefor submitting the disputes relating to the interpretation or application of the Lawof the Sea Convention to the Commission of Mediation, Conciliation, and Arbitra-tion of the Organization of African Unity;10 if they agree to accept as binding adecision of that Commission, such an agreement will prevail over the Law of theSea Convention provisions for settlement of disputes. If, however, the procedurechosen by the parties does not lead to a binding decision, the jurisdiction of theinstitutions established by the Law of the Sea Convention revives, and a party tothe dispute can resort to these institutions.It Similarly,'the provisions of the Con-vention come into play whenever the parties have not been able to settle the dis-pute by negotiations or conciliation and have not succeeded in agreeing onanother method of settlement.12lure Apr. 29, 1958, 450 U.N.T.S. 169. It was ratified by 37 states, but the United States did not become aparty to it.5. In particular, the Soviet Union and its allies, as well as the African states, have for the first timeagreed to this method of settlement for an important general convention.6. See Convention, supra note 1, art. 280.7. Id art. 281(l).8. Id art. 280.9. Id art. 282.10. For the text of the Protocol of July 1964 establishing that Commission, see I BASIC DocI;MENTSOF AFRICAN REGIONAL ORGANIZATIONS 69 (L. Sohn ed. 1971).11. Convention, supra note I, art. 286.12. Id[Vol. 46: No. 2PEACEFUL SETTLEMENT OF DISPUTESFlexibility does not stop at this stage. Unlike most other international instru-ments, the Law of the Sea Convention does not provide for a unitary system ofdispute settlement. Various groups of states have expressed preferences for dif-ferent methods of settling Convention disputes. Some states have argued for con-ferring the jurisdiction to interpret the Convention on the International Court ofJustice;' 3 others have expressed preferences for arbitration;1 4 while some have sup-ported special technical commissions;' 5 a large group of states has opted for a per-manent International Tribunal for the Law of the Sea.1 6 After many othersolutions were rejected, it was agreed that a state can choose any one of these fourmethods, but if the two states concerned have chosen different methods, the dis-pute may be submitted "only to arbitration. 1 7 All states agreed that if theycannot have the tribunal of their choice they would be willing to go to arbitration.To ensure that this solution will work, an annex to the Convention provides aneffective method for selecting the arbitral tribunal.18IIISETTLEMENT OF SPECIFIC CATEGORIES OF DISPUTESThree categories of cases are subject, however, to different procedures:(a) Article 297 governs disputes relating to the exercise by a coastal state of itssovereign rights or jurisdiction in the Exclusive Economic Zone (EEZ); (b) Article298 governs disputes relating to sea boundary delimitations, to military or lawenforcement activities, or to disputes submitted to the Security Council of theUnited Nations; and (c) Articles 186-91 govern disputes relating to seabed mining.The simplicity of the other provisions of the Convention is matched by the com-plexity of these three exceptions.A. Exclusive Economic Zone.Disputes relating to the Exclusive Economic Zone are in turn subdivided intothree categories: 19(i) Disputes relating to violations by either the coastal state or any other stateof the provisions of the Convention in regard to freedoms and rights of navigation,overflight, the laying of submarine cables and pipelines, or other internationallylawful uses of the sea, as well as those relating to violations by the coastal state ofinternational rules and standards for the protection and preservation of the marineenvironment, are subject to the general system for the settlement of disputes. 20(ii) Disputes relating to marine scientific research are further subdivided intothree categories: some are subject to the general system of dispute settlement;13. E.g., Japan and the Netherlands.14. E.g., France, the United Kingdom, and the United States.15. E.g., the Soviet Union and other Eastern European states.16. Most African states and several Latin American states have supported this idea.17. Convention, supra note 1, art. 287(l), (5).18. Id annex VII.19. Id art. 297.20. Id art. 297(1).Page 195: Spring 19831LAW AND CONTEMPORARY PROBLEMSsome are completely excluded from that system due to their discretionary char-acter; and some are subject to compulsory conciliation (a procedure which can beresorted to by either party to the dispute but which leads only to a report, not to-abinding decision). 2 1(iii) Disputes relating to fisheries are similarly divided into three categories, 22paralleling those under (ii).B. Sea Boundary Delimitations, Military or Law Enforcement Activities, andDisputes Before the U.N. Security CouncilWhile the exceptions relating to the EEZ are automatic, 23 the exceptions enu-merated in Article 298 are optional. In becoming party to the Convention, a statemay make a declaration that it does not accept the dispute settlement proceduresof the Convention with respect to one or more of the following three categories ofdisputes:24(i) Disputes concerning sea boundary delimitations or involving historic baysor titles are subdivided into four categories. Those which arose before the entryinto force of the Convention are totally exempt from dispute settlement under theConvention; those which shall arise after the entry into force of the Conventionwill be subject to compulsory conciliation; mixed disputes which involve the con-current consideration of sea boundaries and of any unsettled dispute concerningsovereignty or other rights over continental or insular land territory are totallyexcluded from dispute settlement under the Convention; and sea boundary dis-putes which have been finally settled by an arrangement between the parties orwhich are to be settled in accordance with an agreement between them are alsototally excluded from dispute settlement under the Convention.25(ii) Disputes concerning military activities are completely exempt from dis-pute settlement under the Convention; disputes concerning law enforcement activ-ities are exempt if they are connected with disputes involving fishing or marinescientific research 26 since these latter disputes are themselves completely exemptfrom dispute settlement under the Convention.2 7(iii) Disputes which are being dealt with by the U.N. Security Council aretotally exempt from dispute settlement under the Convention as long as they arebefore the Council. 28C. Seabed MiningIn earlier drafts of the Convention, disputes relating to seabed mining were21. Id art. 297(2).22. Id art. 297(3).23. Id art. 297.24. Id. art. 298(1).25. Id art. 298(1)(a).26. Id. art. 298(1)(b).27. Id art. 297.28. Id. art. 298(1)(c).[Vol. 46: No. 2PEACEFUL SETTLEMENT OF DISPUTESoriginally subject to a special Seabed Tribunal.2 9 However, once agreement wasreached on an International Tribunal for the Law of the Sea, composed of twenty-one members elected at a meeting of all the parties to the Convention, 30 manystates became reluctant to maintain two separate tribunals. 31 Further negotiationsresulted in the unification of the two tribunals and the establishment within theInternational Tribunal for the Law of the Sea of a separate Seabed DisputesChamber, composed of eleven members selected by a majority of the Tribunalfrom among its members. 32 The jurisdiction of the Chamber embraces most dis-putes relating to seabed mining, except that some disputes are subject to otherprocedures and some disputes are completely exempt from any dispute settlementprocedure. 33While the general dispute settlement system applies only to disputes betweenstates, the seabed dispute settlement system applies in addition to disputes betweenstates and the International Seabed Authority and to contract disputes involvingstates, the Authority, the Enterprise (the mining arm of the Authority), state enter-prises, and natural and juridical persons. 34 The Seabed Disputes Chamber hasexclusive jurisdiction over most of these disputes, but some disputes between statesmay be submitted instead to a smaller chamber, chosen either from the Tribunalas a whole or from the Seabed Disputes Chamber. 35In view of the technical character of many contract disputes, it was agreed thatat the request of any party to the dispute, such disputes shall be submitted tobinding commercial arbitration, 36 and that such arbitration shall be conducted inaccordance with the generally accepted UNCITRAL Arbitration Rules,37 pre-pared by the U.N. Commission on International Trade Law and approved by theU.N. General Assembly in 1976. Similarly, commercial arbitration may beresorted to in disputes relating to transfer of seabed mining technology and tofinancial terms of mining contracts. 38Some states strongly opposed the idea that should a dispute be a mixed one,involving the interpretation of both a contract and the Convention, the interpreta-tion of the Convention would be referred to a commercial arbitral tribunal.39 Itwas agreed, therefore, that in such a case the arbitral tribunal would refer thequestion of Convention interpretation to the Seabed Disputes Chamber for aruling and that the tribunal's award should be rendered in accordance with such29. See, e.g., Informal Single Negotiating Text, U.N. Doc. A/CONF.62/WP.8/Part I, arts. 32-34(1975); 4 UNCLOS III, at 137, 144 (1975).30. Convention, supra note 1, annex VI, arts. 1, 4.3 1. See Adede, Law of the Sea- The Integration of the System of Settlement of Dsputes under the Draft Conventionas a Whole, 72 AM. J. I.NT'L L. 84, 84-95 (1978). See also Sohn, Settlement of International Disputes relating toDeep Sea-bed Mtnig, FESTSCHRIF-r FOR RUDOLF BINDSCHEDLER 443, 445 (1980).32. Convention, supra note 1, annex VI, art. 35.33. See id arts. 186-91.34. Id art. 187.35. Id art. 188(1).36. Id art. 188(2).37. Report of the U.N. Commission on International Trade Law, 31 U.N. GAOR Supp. (No. 17) at35, U.N. Doc. A/31/17 (1976); 7 UNCITRAL Y.B. 22 (1976).38. Convention, supra note 1, annex IIl, arts. 5(5), (13), (15).39. E.g., the Soviet Union, India, and several Latin American states.Page 195: Spring 1983]LAW AND CONTEMPORARY PROBLEMSruling.40Another difficulty arose concerning the power of the Seabed DisputesChamber to declare that certain acts of the Authority were invalid. It was madeclear that the Chamber would have no jurisdiction with respect to the exercise bythe Authority of its discretionary powers, and that in no case should it substituteits discretion for that of the Authority. 4 1 But if the Authority should act outsidethe limits of its discretion, lack competence, or misuse its powers, the Chamberwould have jurisdiction to deal with such issues since such acts would not be con-sidered discretionary. While the Chamber would have no power to declare anyrules, regulations, or procedures invalid, it would be permitted to grant reparationor provide other remedies to the party which had suffered damage as a result ofanother party's failure to comply with its obligations under the Convention or acontract.42Despite the complexity of these provisions, in the last sessions of the Conferencethere was no disposition to challenge them, and it can be assumed that withrespect to them a consensus has been reached. Of course, most of the substantiveprovisions of the Convention might come to reflect customary international law, sothat nonparties to the Convention might be able to invoke them; yet the disputesettlement provisions will be available only to parties to the Convention. 43 Shoulda dispute arise between a state party to the Convention and a state not a partythereto, such a dispute would have to be resolved in accordance with proceduresavailable to the parties to the dispute outside the Convention. At present, suchprocedures are seldom available. As the United States has found out in its disputeswith Canada and Latin American states in the last decades, without a satisfactorydispute settlement system even a powerful nation cannot adequately protect itscitizens and ships against harmful acts of foreign governments who are not willingto submit to impartial adjudication. 44 On the other hand, for disputes betweenparties to the Convention the system of dispute settlement provided by the Con-vention, though it appears extremely flexible and provides several options, in thegreat majority of cases can lead to a binding decision likely to be accepted andcomplied with by the parties to the dispute. This is the way to the rule of law andto ensuring that the peace of the world will not be jeopardized by a dangerousescalation of law of the sea controversies.40. Convention, supra note 1, art. 188(2).41. Id art. 189.42. Id arts. 187(b), 189.43. The provisions of part XV of the Convention relating to settlement of disputes apply only to"States Parties [to the Convention]." See id art. 279. As the Permanent Court of International Justice hasstated in the Eastern Carelia Case, "[i]t is well established in international law that no State can, withoutits consent, be compelled to submit its disputes with other States either to mediation or arbitration, or toany other kind of pacific settlement." P.C.I.J., Series B, No. 5, at 27 (1923).44. See 4 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW 1101-03 (1965) (United States-LatinAmerican fishing disputes); Beasley and Bourne, Canadian Practice in International Lau during /970 as RelkciedMainy in Pubhc Correspondence and Statements of the Department of External Affairs, 9 CAN. Y.B. INT'L L. 276, 287-94 (1971) (United States-Canadian dispute about the Arctic pollution control zone).[Vol. 46: No. 2

Peaceful Settlement of Disputes in Ocean Conflicts: Does UNCLOS III Point the Way?

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Peaceful Settlement of Disputes in Ocean Conflicts: Does UNCLOS III Point the Way?

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