The Law of the Sea dispute settlement mechanism is an area is of great academic, economic, and political interest where the relationship between public and private law is in full evolution and constantly shows new challenges.
The purpose of the present lecture and analysis is to create a forum for a reflection on recent developments on the interface of public and private international law. Historically, the law of the sea was split between public and private domains. We speak of it mostly in the context of interstate relations and private issues are often relegated to admiralty or maritime law (addressing liens, injury to seamen, etc). However, the law of the sea travels the public and private domains and public international law gradually fuses into the national legal system in ways which affect individuals on a number of issues concerning, for example, safety, navigation, environmental protection, conservation and exploitation of resources, scientific research, civil and criminal jurisdiction. Also, oil companies are very concerned with delimitations of maritime zones and fishing fleets are concerned with rights and obligations in the Exclusive Economic Zone (EEZ). Private activity is often the catalyst for conflicts between States as to rights and obligations on the sea. These conflicts demand methods for dispute settlements and many were borrowed from national legal systems.
In the aftermath of the entry into force in 1994 of the 1982 Law of the Sea Convention (LOSC), dispute settlement methods flourished and the tide is still rising twenty years later. States mostly remain the featured players in these forms of dispute settlement methods but there are some avenues for private actors to engage in as their interests almost always lie behind the interests of State actors.
The following means of dispute settlement under the law of the sea have flourished since 1994 and key developments and cases will be highlighted:
- Negotiation
- Mediation
- Conciliation
- Arbitration
- Judicial Settlement
- Commission on Continental Shelf
Overview of the Law of the Sea Convention (LOSC)
The Law of the Sea Convention seeks to comprehensively regulate virtually all aspects of the law of the seas, set rules on the formation of Baselines and internal waters, and on the several maritime zones (Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone, the Continental Shelf and the Extended Continental Shelf, the High Seas and the Deep Seabed Area).
It is possible for islands to generate some or all of the maritime zones. Article 121 of the Law of the Sea Convention provides that an “island” is a form of land above the water at high tide which can generate all of the maritime zones if it can sustain human habitation and economic life. However, an island which cannot sustain human habitation and economic life on its own is a “rock” which only generates Territorial Seas.
The Law of the Sea Convention also provides rules pertaining to straits, archipelagos, enclosed seas, landlocked states, rules on jurisdiction over ocean vessels.
Part 11 of the Convention attracted much attention during the negotiations as it provides rules pertaining to the exploitation of the Deep Seabed Area and institutional structures (including a Counsel and an Assembly).
Part 12 of the Convention sets forth rules for environmental protection of maritime areas. Some of these rules are regarded as a sophisticated environmental law treaty embedded within the Law of the Sea Convention.
Since 1994, we have acquired a very detailed set of rules relating to the conduct of State and non State actors in relation to the seas. These rules offer a template to evaluate whether a conduct is permissible or not.
Some of these rules are not very clear, such as the rules on delimitation of the zones between States. When we refer to the appropriate rules in case of a dispute on the zones, the Convention provides that the process to delaminate the Economic Zone, Exclusive Economic Zone, Continental Shelf “shall be affected by agreement on the basis of international law in order to achieve an equitable solution”, which is a fairly indeterminate way of saying that states should get together to reach agreements and be guided by equitable ideas, but does not provide how the delimitation process should go forward. If States cannot reach an agreement without a reasonable amount of time, they would then be expected to resort to dispute settlement procedures under the Law of the Sea Convention provided at Part 15 of the Convention.
Part 15 of the Convention establishes a very innovative system for the settlement of disputes. Section 1 includes non-compulsory dispute procedures and calls upon States to pursue negotiations, mediation, conciliation. If these avenues do not solve the dispute, Section 2 sets forth the compulsory dispute procedures which include the International Tribunal for the Law of the Sea (ITLOS) under Annex VI, the International Court of Justice (ICJ), the creation of an Arbitral Tribunal under Annex VII, and the creation of a Special Arbitral Tribunal formed as a panel of experts, not necessarily lawyers, to deal with a dispute arising out of a particular area (e.g. fisheries, marine environment, scientific research, navigation, etc.).
The innovative aspect of dispute resolution under the Law of the Sea Convention is that it does not impose a single method to settle disputes on a compulsory basis but allows for a lot of flexibility. How does one know which avenue to take? When joining the Convention, new members select one of the four mechanisms set out above. When a dispute arises and that both parties have selected the same mechanism upon joining, they are obligated to use it. When a member has failed to make a selection, it is deemed to have selected an Arbitral Tribunal under Annex VII by default. When both parties have selected different options upon joining, they are both deemed to have selected an Arbitral Tribunal under Annex VII. In shirt, arbitration is the default process.
During the negotiations leading to the drafting of the Convention, it was considered important to establish certain automatic and optional carve outs to the compulsory dispute settlement methods. These are provided for in Section 3 of Part 15 and include, inter alia, an automatic exception to compulsory dispute settlement which prevents one to challenge the determination of the allowable catch before the ICJ, ITLOS or an Arbitral Tribunal. There are also optional carve outs which can be invoked by a State upon joining the Convention (e.g. one member might choose not to accept compulsory dispute resolution with respect to a dispute on delimitations, disputes concerning historic bays, or disputes concerning military activities). For example, when China ratified the Law of the Sea Convention, it invoked all three optional exclusions and then claimed that there was no basis to go after China for any claim relating to these matters.
Even when States select some optional carve outs upon joining the Convention, they are nevertheless obligated to pursue non-compulsory dispute resolution methods such as negotiations, mediation and conciliation. These do not however lead to legally binding decisions.
There are now 167 States members to the Law of the Sea Convention and 147 States parties to the 1994 Agreement relating to the Deep Seabed (“Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982”). Since 1994, many more efforts have been made to clarify the law of the sea, some agreements are global (e.g. dealing with fish crossing zones) or regional (e.g. fish resources in a specific area), some are bilateral, others deal with ship wrecks, cultural artifacts, etc. All these agreements constitute a rather complicated web of regulations which are always to be considered against the backdrop of well established rules of customary international law.
When the Law of the Sea Convention was negotiated in the 1970s and 1980s, there was a lot of interest about the exploitation of the resources relating to the Deep Seabed which then decreased as other avenues were considered to replace some minerals to be exploited from the Deed Seabed (e.g. synthetic materials, new sources for minerals on land in particular in the developing countries). However, over the past 10 years, it appears that the interest in the Deed Seabed has grown again as shown by the large increase of applications received by the International Seabed Authority from companies wishing to do Seabed exploration and the progress of technology allowing it.
Forms of Law of the Sea Dispute Settlement
Negotiation
The detailed rules under the contemporary law of the sea, the increasing interest in exploiting resources and the threat of compulsory dispute settlement mechanisms encourage States to enter into negotiations. Identifying the fact that negotiations are going forward is difficult as States often keep them quiet. Studies have however reported 16 negotiations from 1994 to 2012, some of them were successful, such as the 2003 Negotiation between Azerbaijan, Kazakhstan and the Russian Federation, the 2004 Negotiation between Australia and New Zealand, the 2008 Mauritius-Seychelles EEZ Delimitation Treaty, etc.
Negotiations sometimes lead to the resolution of the dispute in the form of a treaty or to other forms of dispute resolution mechanisms. Negotiation is by far the method of dispute settlement preferred by States and other avenues are considered only when negotiations stall.
In the context of boundary delimitation, there are some real disadvantages in pursuing compulsory dispute mechanisms and considerable advantages in negotiating. During negotiations, the parties retain control over a series of very important issues including the precise result of the boundaries delimited, the way the line is being defined, the terms and the timing of the agreement and the way the agreement is presented publically. It is generally believed that litigation always carries risks for the parties and that the range of legal findings available to the tribunal is more restricted than the range of options open to the negotiators. Also, when appearing before a tribunal applying international law, the parties operate within a specific frame which lacks flexibility and leaves little room for creativity and tends to favor always one side while failing to consider the interests of all actors. However, during negotiations, the parties pursue a process of joint development in the maritime space and are able to set aside the legal dispute to focus on practical measures to secure each party’s underlying objective, in particular when each party wishes to pursue different types of exploitation.
Mediation
By contrast, States rarely resort to mediation or good offices. For example, the 2015 OAS Mediation of Belize-Guatemala Border Dispute has not resolved the dispute and has led the parties to taking the matter before the International Court of Justice.
Conciliation
Conciliation is provided for in Part 15 of the Law of the Sea Convention but is almost never used by States. The 1981 Iceland/Norway Continental Shelf Dispute Regarding Jay Mayen Island is one of the few conciliations ever recorded.
States are not inclined to use conciliation because once they decide to give up control over the dispute and allow for a formal decision by a third party body, States prefer to go all the way to an ultimately binding decision. There is not much to gain from a process which looks a lot like arbitration without the benefit of legal certainty flowing from the issuance of an arbitral award. Also, States would also prefer to lose an arbitration and have grounds to set aside the award rather than lose a conciliation and not have any legal basis to set the result aside.
Arbitration
Sometimes, the parties will reach an impasse during the negotiations but nevertheless need to resolve the dispute as they might not otherwise be able to exploit resources. They will then turn to compulsory dispute resolution. Some countries, such as Nicaragua, are very familiar with the process and have appeared on several occasions before the ICJ on numerous occasions. The more familiar States become with the process, the more likely they are to prefer compulsory Law of the Sea dispute resolution in the future.
Since 1994, arbitration has become the most popular means to solve maritime disputes. Under Annex VII of The Law of The Sea Convention, the tribunals are composed of 5 arbitrators, each party to the dispute appoints an arbitrator and they jointly appoint the remaining three. In the event that it is needed, the President of ITLOS serves as the appointing authority. The arbitral tribunal decides on its own procedures which provides for a lot of flexibility.
Some examples of the LOSC Annex VII Arbitrations include:
- Australia and New Zealand v. Japan (“southern Bluefin Tuna Arbitration”)
- Ireland v. UK (“Mox Plant Arbitration”)
- Malaysia v. Singapore (“Land Reclamation Arbitration”)
- Barbados v. Trinidad and Tobago Maritime Delimitation Arbitration
- Guyana v. Suriname Maritime Delimitation Arbitration
- Bangladesh v. India (“Bay of Bengal Maritime Boundary Arbitration”)
- Mauritius v. UK (“Chagos Archipelago Arbitration”)
- Argentine v. Ghana (“ARA Libertad Arbitration”)
- Philippines v. China (“South china / West Philippines Sea Arbitration”)
- Malta v. Sao Tome and Principe (“Duzgit Integrity Arbitration”)
- Netherlands v. Russian Federation (“Arctic sunrise Arbitration”)
- Denmark in respect of the Faroe Islands v. European Union (“Atlanto-Scandian Herring Arbitration”)
The Law of the Sea Convention does not, by itself, seek to address issues of sovereignty over territory. It is therefore important to keep in mind, in the analysis of the Annex VII arbitrations, that jurisdictional problems arise whenever the tribunals are asked to rule on what State has sovereignty over a specific territory.
For example, in the Chagos Archipelago Arbitration, Mauritius claimed that the UK administration of the Archipelago was unlawful and that Mauritius territory should include the Chagos Archipelago. When Mauritius brought the proceeding in 2010, it tried to frame it in a way that only indirectly touched sovereignty issues. However, in March 2015, the tribunal found that it lacked jurisdiction as the dispute directly concerned sovereignty, which is not within the scope of its jurisdiction. The tribunal nevertheless stated that some minor issues of sovereignty, ancillary to the underlying claims, could be ruled upon.
In the Philippines v. China arbitration, the Philippines are challenging China’s activity in the South China Sea and Seabed Area and argues that China’s claims over the area delimited by the “Nine-Dash Line” are not lawful under the Law of the Sea Convention. The Philippines are therefore seeking a finding that China’s claims over this area is unlawful. The Philippines are also asking the tribunal to determine whether some features claimed by both the Philippines and China qualify as islands, and a finding regarding the Philippines’ rights beyond its exclusive economic zone. China rejects the tribunal’s jurisdiction inter alia on the ground that the essence of the subject matter of the dispute is sovereignty. A hearing on jurisdiction was scheduled for July 2015 and, if jurisdiction is found, a hearing on the merits will take place later in 2015.
States are using arbitration more and more because tribunals are quick are issuing decisions and give the parties a lot of control over the procedure. A downside of arbitration is the fact that it is more expensive than court proceedings.
Judicial settlement
- ITLOS
One significant feature of the Law of the Sea Convention is the creation of a new institution, the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, which may hear both contentious and non-contentious cases for law of the sea dispute resolution.
21 judges elected for 9 years by the State parties serve on ITLOS. Each State party can nominate up to two candidates. There is a process to ensure equitable distribution among the judges and the term of one third of them expires every three years. ITLOS operates somewhat in similar way to the ICJ in terms of having some permanence to the institution and a rotation system.
ITLOS has the particularity of being able to hear “prompt release” cases taking place on an expedited basis when a coastal State has seized a foreign vessel and its crew (usually in its Exclusive Economic Zone) and brought it into its ports.
Standing is not limited to State actors and natural or juridical persons may appear before ITLOS (although they have to obtain permission of their flag State).
Despite the availability of this very robust court in Hamburg capable of hearing contentious and non contentious cases, litigation before ITLOS has been very modest. The 22 cases registered are almost all related to “prompt release” matters and ITLOS very rarely decides cases on the merits. Although States mostly prefer going before the ICJ, more and more cases are registered before ITLOS (such as ITLOS Case No. 16 “Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal” and ITLOS Case No. 23 “Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean”).
- ICJ
Undoubtedly, the number one forum for States seeking judicial settlement concerning the Law of the Sea is the International Court of Justice (ICJ) which is not limited to law of the sea issues and may then decide maritime and sovereignty issues.
Some of the ICJ Judgments on the law of the sea since 1994 include:
- 1998 Fisheries Jurisdiction (Spain v. Canada) 2001 Maritime Delimitation and Territorial Questions (Qatar v. Bahrain)
- 2002 Land and Maritime Boundary (Cameroon v. Nigeria: Equatorial Guinea intervening)
- 2007 Territorial and Maritime Dispute in the Caribbean Sea (Nicaragua v. Honduras)
- 2012 Territorial and Maritime Dispute (Nicaragua v. Colombia)
- 2009 Maritime Delimitation in the Black Sea (Romania v. Ukraine)
- 2014 Maritime Dispute (Peru v. Chile)
- 2014 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)
The ICJ jurisprudence is fairly robust and contributes greatly to our understanding of how Law of the Sea disputes should be decided. For example, for many years, the methodology used for delimiting was quite uncertain but in the past decades the jurisprudence, in particular in relation to Black Sea disputes, has established a three-part approach to delimitation (first, the tribunal draws a provisional equidistant line from base points on the coasts of both States parties to the delimitation dispute; second, the tribunal considers factors calling for adjustments such as a small bump on the coast of one State which drastically impacts the provisional equidistant line; third, the tribunal conducts a proportionality analysis whereby it looks at the two parts of water delimited, looks at the ratio and at the coastlines and decides whether there is a significant disproportion in the maritime spaces awarded to each State). There is a lot of flexibility in the tribunal’s approach and the contemporary jurisprudence shows that context, in particular in the presence of islands or other features, matter a lot. Depending on their size, islands will sometimes matter a great deal and will be determinative of where the provisional equidistant line is drawn, or will sometimes be pushed aside by the tribunal and will not be used in deciding the case.
Geographic considerations are the dominant force driving these cases. Issues about which State entity should be entitled to which area, economic resources and which actor is more environmentally sound are not considered.
- Advisory Opinions
The ICJ or ITLOS may render Advisory Opinions. ITLOS recently issued its first Advisory Opinion for the West African Sub-Regional Fisheries Commission. The Commission asked ITLOS four questions which relate, inter alia, to the rights and obligations of flag and coastal States regarding fishing in the Exclusive Economic Zone. The backdrop to the request was allegations by African States that third States were not properly regulating their vessels. Twenty-two States parties to the Convention filed written statements before ITLOS. Undoubtedly, more Advisory Opinions will be requested in the future to obtain further guidance as to rights and obligations of States under international law.
There is also a possibility to obtain an Advisory Opinion from the Seabed Dispute Chamber, a sub unit of ITLOS which can both hear disputes between State and non State actors and issue Advisory Opinions. In 2011, it rendered its first Advisory Opinion on Seabed Mining.
- Continental Shelf Commission
Under the LOSC, virtually every State gets a Continental Shelf up to 200 nautical miles but States sometimes argue that their Continental Shelf continues past this line. Extending a State’s Continental Shelf allows it to exploit resources further but also takes away other States’ ability to exploit resources in the area.
The Law of the Sea Convention created a Commission to hear the numerous Extended Continental Shelf Claims and their underlying scientific arguments. The Commission consists of 21 members, experts in the field of geology and physics, who will rule on the claims and issue a Recommendation as to where the limit of the Continental Shelf should be drawn and which, if followed, is considered a binding delimitation vis-à-vis all the parties to the LOSC.
Seventy-seven States have filed submissions before the Commission to obtain such Recommendations and twenty-two Recommendations have been issued so far.
Conclusion Regarding Law of the Sea Dispute Settlement
There is indeed a rising tide in dispute settlement under the law of the sea driven by the amount of detailed rules now available, the increasing interest in the resources at sea and in conserving these resources, and the prospect of compulsory dispute settlement hanging over State actors.
New forms of dispute are now starting to emerge. Global climate change is generating a significant amount of disputes as seas are rising from the melting of glaciers, arctic ice and the expansion of water generally. Baselines are therefore changing. Some nations, island States, may one day even disappear.
Source: Lalive Lecture, 15 July 2015, Geneva, A Rising Tide: Dispute Settlement under the Law of the Sea, by Professor Sean Murphy
Speakers: Marcelo Kohen, Michael Schneider, Sean Murphy
- Summary by Olivier Marquais, Aceris Law LLC