Chapter 9: LOSC Dispute Resolution Provisions

LOSC Dispute Resolution Provisions

Background

The LOSC states that the parties entered into the Convention “prompted by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea and aware of the historic significance of this Convention as an important contribution to the maintenance of peace, justice, and progress for all peoples of the world.”¹ Consistent with those goals, Part XV of the Convention sets forth a comprehensive and complex set of dispute resolution provisions centered around three basic principles: (1) the peaceful resolution of disputes, (2) a high degree of flexibility in choice of dispute resolution mechanisms and (3) compulsory dispute resolution where States are unable to settle a dispute on their own.

Scope of Part XV Provisions

A party to the LOSC may invoke the dispute resolution system if three conditions are met. First, the conflict must fall within the bounds of the Convention. For example, the dispute must not relate to sovereignty or other issues outside the scope of the LOSC dispute resolution provisions.² Second, the States involved in the dispute must not be parties to a general, regional, or bilateral agreement that provides an alternative path for dispute resolution. Third, if required by international law, all local remedies must have been exhausted.³ In accordance with Article 282, if the LOSC members are parties to an applicable general, regional, or bilateral agreement, then the method provided for in the separate agreement shall prevail “in lieu of the procedures provided for” in the LOSC.⁴

For example, in the highly-publicized case between the Philippines and China relating to a range of disputes in the South China Sea, decided in 2016, the arbitral tribunal noted that it did not have the power to consider any claims of sovereignty over specific islands and that the two countries had not (contrary to Chinese assertions) agreed to settle their dispute bilaterally outside of the Convention. See Chapter Ten: The South China Sea Tribunal for additional information about this tribunal. Absent any of the circumstances described above, disputes under the Convention are governed by the following provisions.

Peaceful settlement

At any point in time, the parties may resolve the issue by independently agreeing on a peaceful resolution of the dispute. ⁵ They should follow a series of efforts to reach a resolution.

First, they should have an exchange of views. If a resolution of the dispute, independent of the LOSC procedures, is not pursued or achieved, then the parties have an obligation to “exchange views” as to whether a “settlement by negotiation or other peaceful means” is possible in their view.⁶

Second, in accordance with Article 284, a party to a dispute may “invite the other party or parties to submit the dispute to conciliation.” If the parties agree to submit the dispute to conciliation, they are bound to comply with the rules set out by the conciliatory process of the LOSC and cannot prematurely terminate the conciliation. If the invitation is declined or the parties fail to agree on the conciliation procedure, then the conciliation is considered to have ended.⁷ Conciliation is a process by which the dispute is submitted for consideration by an independent party, but the parties are not obligated to accept the independent party’s conclusions.

If the parties agree to conciliation, then a conciliation commission is formed, composed of five members. The two parties each propose two members, forming a group of four, which selects the fifth member of the commission. Once the commission is established, it determines its own procedures (unless the parties agree to an alternative procedures), and decisions are made by majority votes. The commission “shall hear the parties, examine their claims and objections, and make proposals to the parties with a view to reaching an amicable settlement.” Within 12 months, the commission will issue a non-binding report on the proposals regarding the “questions of fact or law relevant to the matter in dispute” and will make recommendations “as appropriate” for an “amicable settlement.”⁸ The first conciliation case under the LOSC began in 2016, relating to a dispute between Timor-Leste and Australia regarding the maritime boundary between the two States.⁹

Compulsory Procedures

If the procedures discussed above do not lead to the settlement of the dispute, then Part XV of the Convention provides for compulsory dispute settlement. Either party may submit the dispute to the court or tribunal having jurisdiction, as described in the next paragraph. Through their accession to the Convention, parties are obligated to comply with these procedures.¹⁰

Choosing the Procedure

When a member State formally agrees to be bound by the Convention, the State has the right to freely choose “by means of written declaration” any one of the following means of dispute settlement:

(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.”¹¹

If a party has not previously declared a preference for one of the procedures listed above, it “shall be deemed to have accepted arbitration” as a default procedure. If parties to a dispute have declared a preference for the same procedure (from (a) to (d) listed above), the dispute must be heard under that procedure. If they have declared a preference for different procedures, or no procedure at all, the dispute will be heard in arbitration, unless an alternative is agreed to.¹² In essence, arbitration is the default method for compulsory dispute resolution under the LOSC.

The court or tribunal in question will apply the LOSC and international law to resolve the dispute. In the case of a conflict between the text of the Convention and international law, the LOSC shall prevail.¹³

Reservations

Reservations are statements made by a State, in this case before becoming a party to the Convention or “at any time thereafter,” through which the State rejects the application of certain treaty provisions to itself or modifies their content.¹⁴ The LOSC prohibits States from asserting reservations. However, Article 298 of the Convention explicitly allows them to reject any or all of the compulsory settlement mechanisms listed above for disputes regarding the following issues:

Disputes concerning the interpretation or application of provisions relating to delimitation of territorial sea, exclusive economic zone or continental shelf as well as those involving historic bays or titles. However, if no agreement is reached through negotiations, conciliation can be invoked under the LOSC;
Disputes concerning military activities and law enforcement activities regarding sovereign rights, marine scientific research or fishing; and
Disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, except the case in which the Security Council decides otherwise.¹⁵

China made all three reservations in 2006, after it ratified the LOSC. Under the LOSC, parties may agree to alternative forms of dispute resolution. If a party made a reservation regarding one of the categories above, it is permitted to waive the reservation if a second party wishes to engage in a dispute resolution procedure about the topic covered by the reservation. Parties are also permitted to agree on dispute settlement procedures that differ from those provided by the LOSC. This is consistent with the LOSC goal of giving parties flexibility in how they choose to settle a dispute.

The LOSC also provides that disputes about fishing and marine scientific research in the EEZ are exempt from compulsory dispute resolution, given the special concerns and rights of coastal States regarding those issues. Such disputes may, however, be subject to compulsory conciliation in certain circumstances.¹⁶

Jurisdiction

As outlined above, States can choose from the four procedures for relief made available by the LOSC. The courts and tribunals available are described briefly below.

The International Tribunal for the Law of the Sea (ITLOS)

The LOSC established The International Tribunal for the Law of the Sea (ITLOS). This tribunal, located in Hamburg, Germany, specializes in disputes regarding the interpretation and application of LOSC. ITLOS has 21 members whose selection is based upon two criteria.¹⁷ First,they should enjoy “the highest reputation for fairness and integrity and [be] of recognized competence in the field of the law of the sea.” Second, their election should assure that there is “a representation of the principal legal systems of the world” and an “equitable geographical distribution.” No country can have two nationals as members and “each geographical group” should have a minimum of three members.¹⁸ It is interesting to note that “permanent members of the Security Council have no guarantee of a seat on the Tribunal.”¹⁹ ITLOS makes decisions by majority vote and if the votes are evenly split, the President breaks the tie.

The International Court of Justice (hereinafter “ICJ”)

The International Court of Justice (ICJ) is located in The Hague, Netherlands.²⁰ It is composed of 15 members, and no State can have more than one member. The Court makes decisions by majority vote, and if votes are evenly split, the President breaks the tie. In contrast with ITLOS, members of the ICJ are “elected by the General Assembly and by the Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration.”²¹ This distinction is important, as Security Council members can appoint judges from their countries, while with ITLOS this is not assured.

The Arbitral Tribunal Constituted in Accordance with Annex VII of the LOSC

A key aspect of the arbitral tribunal contemplated by LOSC is that a State’s failure to appear before the tribunal does not prevent the continuation of the arbitration process.²² If a party to the LOSC fails to agree to an alternative peaceful means to settle the dispute in question, arbitration can be instituted without any consent other than that found in accession to the LOSC. Most notably, this occurred in the South China Sea (SCS) case, where China refused to appear and the tribunal nevertheless proceeded to a ruling after implementing certain procedural and evidentiary steps to address China’s absence.²³ For additional details on the South China Sea arbitration, see Chapter Ten: The South China Sea Tribunal.

The arbitral tribunal is made up of five members, with each party appointing one member and the initial two members agreeing on three additional members, one of whom shall be appointed president of the tribunal. A separate tribunal membership is appointed for each dispute. The decisions of the tribunal are made by majority vote, with at least half of the members present, and, in case of a tie, the president’s vote shall be decisive.²⁴ The President of the Permanent Court of Arbitration in The Hague appoints members where a party fails to appear, as occurred in the SCS case.

The Special Arbitral Tribunal

In addition to the general arbitral tribunal, the Convention provides for a “Special Arbitral Tribunal” for issues involving “fisheries, protection and preservation of the marine environment, marine scientific research or navigation, including pollution from vessels and by dumping” due to the expertise necessary to consider these subjects. A special tribunal will have five members, two appointed by each party and a president appointed by both parties according to their agreement. The members should be “chosen preferably from the appropriate list” of experts on the specific topics which necessitate the Special Arbitral Tribunal. The lists of experts are maintained by appropriate UN agencies, and each State party can nominate experts to the lists.²⁵

The Rulings and Their enforcement

Decisions issued by a court or tribunal with jurisdiction are binding between the parties in accordance with the provisions of Article 296 of the LOSC. In contrast with the U.S. legal system, decisions made under the LOSC dispute resolution procedures cases do not have the legal value of a precedent and therefore are not binding on any third party.

History has taught that despite having a “binding” effect between the parties, enforcing these rulings can be difficult. China has refused to comply with rulings against it in the SCS case, and there are no easy ways to enforce compliance. When a great power loses in an international dispute, such as the case between the U.S. and Nicaragua in the ICJ or the Chagos Island case between Mauritius and the United Kingdom (which was heard by the Permanent Court of Arbitration) there is no effective enforcement mechanism. Other powerful countries are usually reluctant to intervene.²⁶

Nevertheless, the dispute resolution provisions of the LOSC have often proven effective and will continue to be a critical component of the Convention framework. Proponents of the LOSC highlight the Convention as unique in its flexibility regarding how parties can resolve their disputes in conjunction with the compulsory provisions essential to resolve disputes. For example, disputes between Eritrea and Yemen regarding the Hamish Islands in the Red Sea, and between India and Bangladesh relating to maritime zone boundaries in the Bay of Bengal were successfully resolved in 1998 and 2014 through arbitration, ending years of conflict without resort to the use of force.^A However, critics perceive those same provisions as a threat to national sovereignty. This tension continues to influence the U.S. attitude towards the LOSC, but is mitigated by the careful balance struck in the treaty, including its basic jurisdictional boundaries (i.e., it does not cover territorial sovereignty), its encouragement of bilateral agreements, and the reservations States are permitted under Article 298.

United Nations Convention on the Law of the Sea, Preamble, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter LOSC] (available at: http://www.un.org/depts/los/convention_agreements/texts/unclos/preamble.htm).
Beckman, Robert. 2013. “The UN convention on the law of the sea and the maritime disputes in the south china sea.” American Journal of International Law 107 (1): p142.
LOSC, Article 295.
LOSC, Article 282.
LOSC, Articles 279-280.
LOSC, Article 283.
LOSC, Article 284.
LOSC, Annex V.
“The Permanent Court of Arbitration. Conciliation between The Democratic Republic of Timor-Leste and The Commonwealth of Australia. Second Press Release ”Accessed January 21, 2017. (available at https://pcacases.com/web/sendAttach/1869).
LOSC, Article 286.
LOSC, Article 287.
LOSC, Article 287.
LOSC, Article 293.
As defined in art.2.1.d by the Vienna Convention on the Law of Treaties.
LOSC, Article 298.1.
LOSC, Article 297
LOSC, Article 2.1 Annex VI.
LOSC, Annex VI Articles 2-3 (containing the articles that govern ITLOS).
Merrills, J. G. 1998. International dispute settlement. 3rd ed. New York; Cambridge, U.K: Cambridge University Press, p185.
Article 22.1, ICJ Statute.
Article 3.1, 4.1, ICJ Statute.
LOSC, Annex VII Article 9.
“Permanent Court of Arbitration. The South China Sea Arbitration (The Republic of The Philippines v. The People’s Republic of China. Third Press Release.” Accessed January 21, 2017. (available at https://pcacases.com/web/sendAttach/1295).
LOSC, Annex VII contains the articles that govern the Arbitral Tribunal (Article 8 Annex VII).
LOSC Annex VIII governs Special Arbitral Tribunals.
The Diplomat, Graham Allison, “Of Course China, Like All Great Powers, Will Ignore an International Legal Verdict.”The Diplomat. Accessed January 21, 2017. (available at http://thediplomat.com/2016/07/of-course-china-like-all-great-powers-will-ignore-an-international-legal-verdict/).
“Eritrea/Yemen – Sovereignty and Maritime Delimitation in the Red Sea.” Cour Permanente D’Arbitrage | Permanent of Court Arbitration. Accessed July 06, 2017. (available at https://pca-cpa.org/fr/cases/81/); “Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India.” PCA :: Case view. Accessed July 06, 2017. (available at https://www.pcacases.com/web/view/18).