International law, Sixth edition
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International Law MALCOLM N. SHAW
Settlement of disputes
403 The 1982 Convention contains detailed and complex provisions regarding the resolution of law of the sea disputes. Part XV, section 1 lays down the general provisions. Article 279 expresses the fundamental obligation to settle disputes peacefully in accordance with article 2(3) of the UN Charter and using the means indicated in article 33, 404 but the parties are able to choose methods other than those specified in the Convention. 405 States of the European Union, for example, have agreed to submit fisheries disputes amongst member states to the European Court of Justice under the EC Treaty. Article 283 of the Convention provides that where a dispute arises, the parties are to proceed ‘expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means’ and article 284 states that the parties may resort if they wish to conciliation procedures, in which case a conciliation commission will be established, whose report will be non-binding. 406 Where no settlement is reached by means freely chosen by the parties, the compulsory procedures laid down in Part XV, section 2 become operative. 407 Upon signing, ratifying or acceding to the Convention, or at any time thereafter, a state may choose one of the following means of dispute settlement: the International Tribunal for the Law of the Sea, 408 the International Court of Justice, 409 an arbitral tribunal 402 See article 170 and Annex IV. 403 See e.g. N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea, Cambridge, 2005; J. G. Merrills, International Dispute Settlement, 4th edn, Cambridge, 2005, chapter 8; Churchill and Lowe, Law of the Sea, chapter 19; J. Collier and A. V. Lowe, The Settlement of Disputes in International Law, Oxford, 1999, chapter 5; A. E. Boyle, ‘Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction’, 46 ICLQ, 1997, p. 37; R. Ranjeva, ‘Le R`eglement des Diff´erends’ in Trait´e du Nouveau Droit de la Mer (eds. R. J. Dupuy and D. Vignes), Paris, 1985, p. 1105; J. P. Qu´eneudec, ‘Le Choix des Proc´edures de R`eglement des Diff´erends selon la Convention des NU sur le Droit de la Mer’ in M´elanges Virally, Paris, 1991, p. 383, and A. O. Adede, The System for the Settlement of Disputes under the United Nations Convention on the Law of the Sea, Dordrecht, 1987. 404 See further below, chapter 18. 405 Article 280. 406 See Annex V, Section 1. 407 See articles 286 and 287. 408 Annex VI. 409 See below, chapter 19. 636 i n t e r nat i o na l l aw under Annex VII 410 or a special arbitral tribunal under Annex VIII for specific disputes. 411 There are some exceptions to the obligation to submit a dispute to one of these mechanisms in the absence of a freely chosen resolution process by the parties. Article 297(1) provides that disputes concerning the exer- cise by a coastal state of its sovereign rights or jurisdiction in the exclusive economic zone may only be subject to the compulsory settlement pro- cedure in particular cases. 412 Article 297(2) provides that while disputes concerning marine scientific research shall be settled in accordance with section 2 of the Convention, the coastal state is not obliged to accept the submission to such compulsory settlement of any dispute arising out of the exercise by the coastal state of a right or discretion to regulate, autho- rise and conduct marine scientific research in its economic zone or on its continental shelf or a decision to order suspension or cessation of such research. 413 Article 297(3) provides similarly that while generally disputes with regard to fisheries shall be settled in accordance with section 2, the coastal state shall not be obliged to accept the submission to compulsory settlement of any dispute relating to its sovereign rights with respect to the 410 This procedure covers both disputes concerning states and those concerning international organisations, such as the European Union. A five-person tribunal is chosen by the parties from a panel to which each state party may make up to four nominations. Annex VII arbitrations have included Australia and New Zealand v. Japan (Southern Bluefin Tuna), Award of 4 August 2000, 119 ILR, p. 508; Ireland v. UK (Mox) 126 ILR, pp. 257 ff. and 310 ff.; Barbados v. Trinidad and Tobago, Award of 11 April 2006 and Guyana v. Suriname, Award of 17 September 2007. The latter cases may be found on the Permanent Court of Arbitration website, www.pca-cpa.org. 411 I.e. relating to fisheries, protection and preservation of the marine environment, ma- rine scientific research, or navigation, including pollution from vessels and by dumping: see article 1, Annex VIII. The nomination process is slightly different from Annex VII situations. 412 That is, with regard to an allegation that a coastal state has acted in contravention of the provisions of the Convention in regard to the freedoms and rights of navigation, overflight or the laying of submarine cables and pipelines, or in regard to other internationally lawful uses of the sea specified in article 58; or when it is alleged that a state in exercising these freedoms, rights or uses has acted in contravention of the Convention or of laws or regulations adopted by the coastal state in conformity with the Convention and other rules of international law not incompatible with the Convention; or when it is alleged that a coastal state has acted in contravention of specified international rules and standards for the protection and preservation of the marine environment which are applicable to the coastal state and which have been established by the Convention or through a competent international organisation or diplomatic conference in accordance with the Convention. 413 In such a case, the dispute is to be submitted to the compulsory conciliation provisions under Annex V, section 2, provided that the conciliation commission shall not call in question the exercise by the coastal state of its discretion to designate specific areas as re- ferred to in article 246, paragraph 6, or of its discretion to withhold consent in accordance with article 246, paragraph 5. t h e l aw o f t h e s e a 637 living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvest- ing capacity, the allocation of surpluses to other states and the terms and conditions established in its conservation and management laws and reg- ulations. 414 There are also three situations with regard to which states may opt out of the compulsory settlement procedures. 415 The Convention also provides for a Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, 416 which under article 187 shall have jurisdiction with regard to matters concerning the Deep Seabed and the International Seabed Authority. By article 188, inter-state disputes concerning the exploitation of the international seabed are to be submitted only to the Seabed Disputes Chamber. One problem that has arisen has been where a dispute arises under one or more conventions including the 1982 Law of the Sea Convention, and the impact that this may have upon dispute settlement. In the Southern Download 7.77 Mb. Do'stlaringiz bilan baham: |
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