Academic journal article
By Wolfrum, Rudiger
Proceedings of the Annual Meeting-American Society of International Law , Vol. 106
As agreed with the chairman, I will address several aspects of the dispute settlement mechanism of the UN Convention on the Law of the Sea (the Convention), namely its added value vis-a-vis the traditional international dispute settlement system, the relevance of case law in respect of the delimitation of maritime spaces, and the potential role that provisional measures, as well as advisory opinions, may--or even should--play in the settlement of maritime disputes.
The establishment of a mandatory dispute settlement system is one of the major innovative advances of the Third UN Conference on the Law of the Sea compared to the international dispute settlement system in general. Article 286 of the Convention states in clear terms that
any dispute concerning the interpretation or application of the Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.
If a dispute is not settled by negotiations, conciliation, or other means agreed upon by the parties, and accordingly comes under the dispute settlement procedure as provided for by section 2 of Part XV of the Convention, the parties only have the possibility to choose between the procedures set forth in Article 287 of the Convention.
In this context it is mandatory to mention that Article 287 of the Convention entrusts three institutions with the task and the responsibility of interpreting and, within the framework of the Convention, progressively developing the text: namely the International Tribunal for the Law of the Sea; the International Court of Justice; and arbitration (the fallback position). This diversification of the judicial functions not only is a matter of political compromise to ameliorate the mandatory character of the dispute settlement system under Part XV of the Convention, but should also be seen as a means to broaden the basis for international jurisprudence on law of the sea matters. This requires the institutions concerned to harmonize their jurisprudence with the view to avoiding any fragmentation, in particular in respect of the delimitation of maritime areas. An assessment of the most recent cases--the Black Sea case, (1) the case between Barbados and the Republic of Trinidad and Tobago (Award of April 11, 2006), and the case between Bangladesh and Myanmar (2)--clearly demonstrates that the courts and tribunals are fully aware of this responsibility.
Let me come back to the alternatives the Convention provides for under Section 1 of Part XV. In the past, ITLOS encountered a disagreement concerning the interpretation of Section 1 of Part XV of the Convention, containing the rules governing the alternatives to the judicial settlement of disputes under Section 2 of Part XV of the Convention. Whereas ITLOS accepted--prima facie--its jurisdiction and that of a still to be established arbitral tribunal in the Southern Bluefin Tuna case (3) under Article 290, paragraph 5 of the Convention, the Arbitral Tribunal later denied its jurisdiction. The matter of contention between ITLOS and the Arbitral Tribunal was the interpretation of Article 282 of the Convention, which gives preference over the dispute settlement system under Part XV of the Convention to generally, regionally, or bilaterally agreed dispute settlement mechanisms that entail a binding decision. The bottom line of this controversy was whether states parties to the Convention have the possibility to opt out of the mandatory dispute settlement system by having recourse to procedures not providing for binding decisions. In my view, ITLOS was right not to open the door for an easy way out.
As far as the relevance of case law in procedures on the delimitation of maritime spaces is concerned, the Tribunal in its most recent judgment of March 14, 2012, in the Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh/Myanmar in the Bay of Bengal (Bangladesh/Myanmar) observed in paragraph 184 that
[d]ecisions of international courts and tribunals referred to in article 38 of the Statute of the ICJ, are also of particular importance in determining the content of the law applicable to maritime delimitation under article 74 and 83 of the Convention. …