Dispute Settlement In Unclos Revisi1.docx

STUDENTS ASSIGNMENT SUBJECT: INTERNATIONAL LAW OF THE SEA

RESEARCH PAPER

Dispute Settlement in Law of The Sea

LECTURER: Dra. Sri Wartini S.H., M.Hum., Ph.D.

Name of Student: 1. Ardya Syafhana (16410028) 2. Jeva Fitri F. (17410480) INTERNATIONAL PROGRAM FACULTY OF LAW UNIVERSITAS ISLAM INDONESIA 2018

Introduction "All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered". 1 Conflict of interests always occurs in relations between countries especially regarding heritage of mankind such as the sea and its borders. The United Nations (UN) as the largest inter-State organization requires its members to always seek a peaceful solution in every disputes. United Nations Convention of Law of the Sea (UNCLOS) provides a comprehensive set of dispute settlement mechanisms  address disputes arising from interpretation and application of UNCLOS generally  classified and sequenced: procedures entailing non-binding and binding decisions. “Article 281 Procedure where no settlement has been reached by the parties 1. If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure. 2. If the parties have also agreed on a time-limit, paragraph 1 applies only upon the expiration of that time-limit Article 282 Obligations under general, regional or bilateral agreements If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.

Article 283 Obligation to exchange views 1. When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. 2. The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement. Article 284 Conciliation 1. A State Party which is a party to a dispute concerning the interpretation or application of this Convention may invite the other party or parties to submit the dispute to conciliation in accordance with the procedure under Annex V, section 1, or another conciliation procedure. 1

UN charter, article 2 para.3

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2. If the invitation is accepted and if the parties agree upon the conciliation procedure to be applied, any party may submit the dispute to that procedure. 3. If the invitation is not accepted or the parties do not agree upon the procedure, the conciliation proceedings shall be deemed to be terminated. 4. Unless the parties otherwise agree, when a dispute has been submitted to conciliation, the proceedings may be terminated only in accordance with the agreed conciliation procedure. Article 285 Application of this section to disputes submitted pursuant to Part XI This section applies to any dispute which pursuant to Part XI, section 5, is to be settled in accordance with procedures provided for in this Part. If an entity other than a State Party is a party to such a dispute, this section applies mutatis mutandis. Article 286 Application of procedures under this section Subject to section 3, any dispute concerning the interpretation or application of this 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. Article 287 Choice of procedure 1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: (a) the International Tribunal for the Law of the Sea established in accordance with Annex VI; (b) the International Court of Justice; (c) an arbitral tribunal constituted in accordance with Annex VII; (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. 2. A declaration made under paragraph 1 shall not affect or be affected by the obligation of a State Party to accept the jurisdiction of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea to the extent and in the manner provided for in Part XI, section 5. 3. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII. 4. If the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree. 5. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree. 6. A declaration made under paragraph 1 shall remain in force until three months after notice of revocation has been deposited with the Secretary-General of the United Nations. 7. A new declaration, a notice of revocation or the expiry of a declaration does not in any way affect proceedings pending before a court or tribunal having jurisdiction under this article, unless the parties otherwise agree. 2

8. Declarations and notices referred to in this article shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the States Parties. “ This research paper will describe the dispute settlement in UNCLOS. Content 1. Exhaustion of local remedies “Any dispute between States Parties concerning the interpretation or application of this Convention may be submitted to the procedures provided for in this section only after local remedies have been exhausted where this is required by international law” Prior to the International Court of Justice (ICJ), the municipal court or domestic court is actually the direct enforcer of ICJ decision.2 In practice if there is an individual or some people have a dispute within the jurisdiction of another country, the municipal court is the first organ that can take over this issue. Indeed, the settlement depends on the structure of the country regarding dualism or monism. UNCLOS will be directly implemented in monism countries, meaning that if it is necessary, the judges do not have to go through a long administrative process such as a dualism country. On the other hand, dualism countries depend on the process of adopting UNCLOS in their countries, because in some countries ratification is an important element for a judge to implement international law. In conclusion, the settlement in the municipal court will be ineffective regarding the legal system and the issue of jurisdiction. 2. Negotiations “When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means” Negotiations are the forms most often used in practice, because this form is the easiest and take less attention. Here, the State will send a representative to negotiate in which agreement is the best for disputing parties .However , when disputes have dealt with the sea and borders, everything is complicated, negotiations are difficult to produce unanimous agreements for border cases and matters related to natural resources such as the sea. After all , the matters of law of the sea is directly related to the territorial integrity of a country and natural resources, then to deal with non-binding settlement as negotiations this is not the best and the last method had been taken. 3. Conciliations “The conciliation commission shall, unless the parties otherwise agree, determine its own procedure. The commission may, with the consent of the parties to the dispute, invite any State Party to submit to it its views orally or in writing. Decisions of the

2

Mutsa Mangezi , “International Law before Municipal Courts: The Role Of International Court Of Justice Decisions In Domestic, Court Proceedings With Specific Reference To United States Case Examples “, Thesis , Master Of Laws Of Rhodes University , February 2007.

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commission regarding procedural matters, the report and recommendations shall be made by a majority vote of its members.”3 4. International Court of Justice International Court of Justice (ICJ) jurisprudence is quite strong and contributes greatly to the step of dispute settlement in International Law. There is a lot of flexibility in the court's approach and contemporary jurisprudence shows that context, especially in the presence of islands or other features, many problems. Depending on their size, the island will sometimes care a lot and will be a determination of where temporary equidistant lines are drawn, or sometimes will be eliminated by the court and will not be used in deciding cases.4 “For instance, case of territorial and marine disputes between Nicaragua v. Colombia in 2012.5 On 28 April 2003, Nicaragua filed its Memorial within the time-limit laid down by the Court.On 21 July 2003, Colombia filed preliminary objections to jurisdiction, leading to the suspension of the proceedings on the merits. On 25 February 2010, Costa Rica filed an Application for permission to intervene in the case. In its Application it contended, among other things, that oth Nicaragua and Colombia, in their boundary claims against each other, claim maritime area to which Costa Rica is entitled» and indicated that it wished to intervene in the proceedings as a non-Stateparty. Honduras stated in its Application that it was seeking primarily to intervene in the proceedings as a party. The Court concluded that Costa Rica’s interest of a legal nature could not be affected by the decision in the proceedings between Nicaragua and Colombia. This exercise of sovereign authority had been public and there was no evidence that it had met with any protest from Nicaragua prior to 1969, when the dispute had crystallized. The Court concluded that Colombia, and not Nicaragua, had sovereignty over the islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla. The Court next noted that the relevant maritime area, i.e., the area in which the potential entitlements of the Parties overlapped, extended 200 nautical miles east of the 3

UNCLOS Annex V ,article 4

4

Aceris Hukum LLC, “Hukum Mekanisme Penyelesaian Sengketa Laut” , [Website],https://www.international-arbitration-attorney.com/id/law-of-the-sea-dispute-settlementmechanism/ ,( Accessed on 4 November 2018) 5

ICJ Judgement, Nicaragua v. Colombia , Territorial and Maritime Disputes ,2012.

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Nicaraguan coast. First, it selected the base points and constructed a provisional median line between the Nicaraguan coast and the western coasts of the relevant Colombian islands opposite the Nicaraguan coast. It observed that the substantial disparity between the relevant Colombian coast and that of Nicaragua, and the need to avoid a situation whereby the line of delimitation cut off one or other of the Parties ties from maritime areas into which its coasts projected, constituted relevant circumstances. In the relevant area between the Nicaraguan mainland and the western coasts of the Alburquerque Cays, San Andrés, Providencia and Santa Catalina, where the relationship was one of opposite coasts, the relevant circumstances called for the provisional median line to be shifted eastwards. It concluded that that line did not entail such disproportionality as to create an inequitable result. Third, and finally, the Court checked that, taking account of all the circumstances of the case, the delimitation thus obtained did not create a disproportionality that would render the result inequitable. It concluded that that line did not entail such disproportionality as to create an inequitable result.” Some ICJ decisions on marine law since 1994 include: 1. 1998 Fisheries jurisdiction (Spain v. Canada) 2001 Maritime Delimitation and Territorial Questions (Qatar v. Bahrain) 2. 2002 Land and Marine Boundaries (Cameroon v. Nigeria: Equatorial Guinea intervention) 3. 2007 Territorial and Marine Disputes in the Caribbean Sea (Nicaragua v. Honduras) 4. 2012 Territorial and Marine Disputes (Nicaragua v. Colombia) 5. 2009 Maritime Delimitation in the Black Sea (Romania v. Ukraine) 6. 2014 maritime dispute (in Peru. Chile) 7. 2014 Whaling in Antarctica (in Australia. Japan: New Zealand intervention)

5. Arbitral tribunal Since 1994, arbitration has become the most popular way to solve maritime disputes. Under Annex VII of the Law of the Sea Convention, a court consists of 5 arbitrators, each party to the dispute appoints an arbitrator and they together designate the remaining three. In the event that is needed, the President of ITLOS functions as the appointment authority. The arbitral tribunal decides on its own procedure which provides for a great deal of flexibility.6 6

Ibid 5

Arbitral tribunal cannot do it on their own initiative. Plea as to the lack of jurisdiction has to be submitted by the respondent in due time – under Art. 16(2) not later than the statement of defense. Belated objections regularly cannot be taken into account, as the lack of objection has to be construed as the waiver of the right to object and conclusion of a valid arbitration agreement. Still, the arbitrators have the right to admit the plea if the delay in their submission is considered justified7. For example, case between Mauritius v. United Kingdom, Mauritius contends that the United Kingdom is not entitled to declare an MPA or other maritime zones because it is not the «coastal State» within the meaning of, inter alia, Articles 2, 55, 56 and 76 of the Convention. In bringing these proceedings Mauritius has invoked Articles 286 and 287 of the Convention. The United Kingdom challenges the Tribunal’s jurisdiction over all aspects of the dispute. With respect to the merits of Mauritius’ claims, the United Kingdom asserts that it acquired sovereignty over the Chagos Archipelago in 1814, continued to exercise sovereignty at all relevant times, and is therefore unquestionably the coastal State for the purposes of the Convention. The United Kingdom also denies that the MPA is incompatible with the rights of Mauritius under the Convention. Finally, the United Kingdom contends that it has complied fully with its obligations under the Convention and international law to consult and co-operate. The arbitration award mainly decide 8 “In relation to its jurisdiction, the Tribunal, (1) FINDS, by three votes to two, that it lacks jurisdiction with respect to Mauritius’ First and Second Submissions; (2) FINDS, unanimously, that there is not a dispute between the Parties such as would call for the Tribunal to exercise jurisdiction with respect to Mauritius’ Third Submission; (3) FINDS, unanimously, that it has jurisdiction pursuant to Article 288(1), and Article 297(1)(c), to consider Mauritius’ Fourth Submission and the compatibility of the MPA with the following provisions of the Convention: a. Article 2(3) insofar as it relates to Mauritius’ fishing rights in the territorial sea or to the United Kingdom’s undertakings to return the Archipelago to Mauritius when no longer needed for defence purposes and to return the benefit of any minerals or oil discovered in or near the Chagos Archipelago to Mauritius; b. Article 56(2), insofar as it relates to the United Kingdom’s undertakings to return the Archipelago to Mauritius when no longer needed for defence purposes and to return the benefit of any minerals or oil discovered in or near the Chagos 7

Alan Uzelac, ‘Jurisdiction of The Arbitral Tribunal’, Academia.edu, Germany, 2005, p. 4 Reports of International Awards , Award in the Arbitration regarding the Chagos Marine Protected Area between Mauritius and the United Kingdom of Great Britain and Northern Ireland ,18 March 2015 , VOLUME XXXI pp. 359-606 , United Nations ,2015. 8

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Archipelago to Mauritius; c. Article 194; and d. Article 300, insofar as it relates to the abuse of rights in connection with a violation of one of the foregoing articles; (4) AND DISMISSES, unanimously, the United Kingdom’s objection to the jurisdiction of the Tribunal over Mauritius’ Fourth Submission with respect to the aforementioned provisions of the Convention. B. In relation to the merits of the Parties’ dispute, the Tribunal, having found, inter alia, (1) that the United Kingdom’s undertaking to ensure that fishing rights in the Chagos Archipelago would remain available to Mauritius as far as practicable is legally binding insofar as it relates to the territorial sea; (2) that the United Kingdom’s undertaking to return the Chagos Archipelago to Mauritius when no longer needed for defence purposes is legally binding; and (3) that the United Kingdom’s undertaking to preserve the benefit of any minerals or oil discovered in or near the Chagos Archipelago for Mauritius is legally binding; DECLARES, unanimously, that in establishing the MPA surrounding the Chagos Archipelago the United Kingdom breached its obligations under Articles 2(3), 56(2), and 194(4) of the Convention. C. In relation to the costs of these proceedings, the Tribunal DECIDES that each Party shall bear its own cost” Some examples of LOSC Annex VII arbitration include: 1. Australia and New Zealand v. Japan ("South Bluefin Arbitration Tuna") 2. Ireland v. UK ("Mox Plant Arbitration") 3. Malaysia v. Singapore ("Land of Arbitration Reclamation") 4. Barbados. Trinidad and Tobago Maritime Delimitation Arbitration 5. guyana v. Suriname Maritime Delimitation Arbitration 6. bangladesh v. India ("Bay of Bengal Maritime Boundary Arbitration") 7. Mauritius v. UK ("Chagos Archipelago Arbitration") 8. Ghana v Argentina. ("ARA Libertad Arbitration") 9. Philippines v. China ("South China / West Philippines Sea Arbitration") 10. Malta v. Sao Tome and Principe ("Duzgit Arbitration Integrity") 11. Netherlands v. Russian Federation ("Arctic sunrise Arbitration") 12. Denmark with respect to the Faroe Islands v. European Union ("AtlantoScandian Herring Arbitration" Arbitration is often the last choice, where it is far more effective than a long and very administrative judicial process. Countries often choose this in addition to arbitration giving a lot of control to litigant countries, arbitration decisions also have binding powers that are fast decision processes. In addition, Combining fact finding with arbitration under Annex VIII ,Article 5 provides that the parties to a fisheries, environmental, research or navigational dispute may at any time agree to request an arbitral tribunal constituted in accordance with Annex VIII to carry out an inquiry and establish the facts giving rise to the dispute. 7

Sample Case

Through the 1982 Sea Law Convention, the International Tribunal for the Law of the Sea was formed (international Tribunal for the Law of the Sea). This tribunal was formed on August 1, 1996 and is located in Hamburg, Germany. The aim is to resolve disputes relating to the interpretation and implementation of the Convention. It can be said that the establishment of this Tribunal reflected that the sea legal dispute was placed on a separate system considering the special character possessed by the law of the sea. The Tribunal has 21 independent judges, each chosen for a period of 9 years and divided into 5 rooms (Chambers); the Chamber of Summary Procedure, the Chamber for Fisheries Disputes, the Chamber for Marine Environmental Disputes, the Seabed Disputes Chamber and a Special Room which addresses the issue of Conservation and Sustainable Exploitation of Swordfish Stock in South-Eastern Pacific Ocean. This Special Room concerns the conservation and sustainable exploitation of swordfish stocks9.

The Tribunal began operations in 1966 and until now has examined 12 cases. The first case decided by the Tribunal on 1 July 2999 was the case between Saint Vincent and the Grenadines and Guinea about the M / V Saiga ship. The second case was between Panama and Yeman to immediately examine the Chaisiri Reefer 2 and its crew. Shortly after Panama brought its dispute to the Tribunal, its hearing was told as a follow-up chase the two parties. Yemen agreed to accept ships, service and build ships and Panama to end the process in the Tribunal10.

The Tribunal has jurisdiction over all disputes concerning the interpretation or application of the Convention, subject to the provisions of article 297 and to the declarations made in accordance with article 298 of the Convention. Article 297 and declarations made under article 298 of the Convention do not prevent parties from agreeing to submit to the Tribunal a dispute otherwise excluded from the Tribunal's jurisdiction under these provisions (Convention, article 299). The Tribunal also has jurisdiction over all disputes and all applications submitted to it pursuant to the provisions of any other agreement conferring jurisdiction on the Tribunal. A number of multilateral agreements conferring jurisdiction on the Tribunal have been concluded to date.

One of cases which very interesting is about land reclamation activities carried out by Singapore in the straits that separate Singapore and Malaysia. On September 5, 2003 in the case of land reclamation by Singapore around the Straits of Johor, Malaysia requested that the Tribunal decide on temporary measures to prevent Singapore from 9

Reza Rahmat, ‘Penyelesaian Sengketa Menurut Konveksi Hukum Laut 1982’, [web blog], 4 Agustus 2012, http://reza-rahmat.blogspot.com/2012/08/penyelesaian-sengketa-menurut-konvensi. (accessed in 4 November 2018). 10

Ibid.

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continuing land reclamation activities until the case was brought to an independent arbitration tribunal in accordance with Annex VII of the Law of the Sea Convention.

In examining land reclamation activities carried out by Singapore in the Tua area, one of the two reclamation sites called Malaysia, the Tribunal concluded that Malaysia did not show the urgency of the problem or did not prove the possibility of fatal damage before the Annex VII Tribunal examined the case. Therefore, the Tribunal does not order temporary measures to be taken at the reclamation site.

Regarding the location of the second reclamation, Pulau Tekong, the Tribunal noted the Singaporean commitment not to carry out activities that could cause fatal damage to Malaysia while awaiting the results of independent studies by experts financed by the two countries. On the basis of this commitment, the Tribunal called on the two countries to form a panel consisting of independent experts who will examine the land reclamation activities by Singapore and propose actions that should be taken especially concerning the island of Tekong. While awaiting a decision from the Annex VII Tribunal, the Tribunal requested Singapore not to carry out activities that could cause fatal harm to Malaysian rights or to marine environments. With these interim measures, Malaysia will continue its efforts to obtain a final decision through an independent arbitration tribunal on the basis of Annex VII11.

Conclusion

Sea dispute resolution mechanisms are large, economical, and political interests in areas where the relationship between public and private law in full evolution and continues to show new challenges. This paper has described settlement in the general form and specifically under UNCOS. Each mechanism has its own shortcomings, but the mechanism with arbitration and ICJ is a favorite. One of cases which very interesting is about land reclamation activities carried out by Singapore in the straits that separate Singapore and Malaysia. While awaiting a decision from the Annex VII Tribunal, the Tribunal requested Singapore not to carry out activities that could cause fatal harm to Malaysian rights or to marine environments. With these interim measures, Malaysia will continue its efforts to obtain a final decision through an independent arbitration tribunal on the basis of Annex VII.

References Aceris Hukum LLC, “Hukum Mekanisme Penyelesaian Sengketa Laut” , [Website],https://www.international-arbitration-attorney.com/id/law-of-the-sea-disputesettlement-mechanism/ ,( Accessed on 4 November 2018) 11

Ibid.

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Dhiana Puspitawati , Hukum Laut Internasional , Kencana Press , Depok, 2017. Mutsa Mangezi , “International Law before Municipal Courts: The Role Of International Court Of Justice Decisions In Domestic, Court Proceedings With Specific Reference To United States Case Examples “, Thesis , Master Of Laws Of Rhodes University , February 2007. Reza Rahmat, ‘Penyelesaian Sengketa Menurut Konveksi Hukum Laut 1982’, [web blog], 4 Agustus 2012, http://reza-rahmat.blogspot.com/2012/08/penyelesaian-sengketamenurut-konvensi. (accessed in 4 November 2018). Robin Churchill ,Published June 9, 2016, Compulsory’ Dispute Settlement under the United Nations Convention on the Law of the Sea – How has it operated? Pt. 1 University of Dundee ,https://www.jus.uio.no/pluricourts/english/blog/guests/2016-0609-churchill-unclos-pt-1.html (Accessed on 4 November 2018) R.R. Churchill and A.V. Lowe ,The Law of the Sea , Manchester University Press , 1991. United Nations Charter United Nation Convention of Law of The Sea 1982 ICJ Judgement, Nicaragua v. Colombia , Territorial and Maritime Disputes ,2012. Reports of International Awards , Award in the Arbitration regarding the Chagos Marine Protected Area between Mauritius and the United Kingdom of Great Britain and Northern Ireland ,18 March 2015 , VOLUME XXXI pp. 359-606 , United Nations ,2015. Uzelac, Alan, ‘Jurisdiction of The Arbitral Tribunal’, Academia.edu, Germany, 2005, p. 4

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