UN Convention on the Law of the Sea and the South China Sea

Shicun Wu, Mark Valencia, Nong Hong, Shicun Wu, Mark Valencia, Nong Hong

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317005612
• Edition: 1
• Topic: Politik & Internationale Beziehungen
• Subtopic: Zwischenstaatliche Organisationen

Research on The United Nations Convention on the Law of the Sea (UNCLOS) is a valuable addition to understanding the political situation in the potentially volatile South China Sea region. This book covers topics such as baselines, historic title and rights, due regard and abuse of rights, peaceful use of the ocean, navigation regimes, marine scientific research, intelligence gathering, the UNCLOS dispute settlement system and regional common heritage. In search of varying viewpoints, the authors in this book come from multiple countries, including the Philippines, Australia, Ireland, Mainland China and Taiwan, the United States, and Indonesia, Singapore, UK and Germany. Ongoing events, such as the recent waves made by China in the East China Sea and increasing tensions between the South East Asian countries over the use of South China Sea, make this book especially pertinent.

PART I:
Dispute Settlement Mechanism under UNCLOS

Chapter 1
The Contribution of the Compulsory Jurisdiction Mechanism to the Effective Application of Dispute Settlement System of the 1982 United Nations Convention on the Law of the Sea: The Case of ITLOS

José Luis Jesus

This chapter attempts to assess the contribution of the procedure of compulsory jurisdiction to the effective application of the UNCLOS¹ dispute settlement system, by reference, especially, to the work of ITLOS. I will start by making a few observations related, namely, to the important role of the Convention’s dispute settlement system in ensuring the workability, as well as the integrity, of the Convention’s legal regime. Then, I will attempt to highlight the pivotal role so far played in this regard by the compulsory jurisdiction provisions of that settlement system.

The negotiators of the Convention were fully aware that the great mission they were embarking upon during the Third UN Conference,² of addressing “all issues relating to the law of the sea,”³ meant that a giant step was being taken, as they were negotiating a thorough regulation for the world’s oceans, setting up new frontiers, laying down the main rules for the partition of vast ocean space amongst countries and distributing entitlements to vast resources.

Those negotiators were certainly very much aware that the scope, the structure, and the content of their end-product—that is the Convention—would have enormous implications on States’ relations concerning ocean affairs and, to a great extent, would change, in a fundamental way, the very perception of the sovereignty of the coastal State over vast maritime space or its ownership and control over substantial marine resources.

The mission of the framers of the Convention was, thus, one of enormous responsibility. Responsibility in securing the achievement of a negotiated set of rules that would command the consensual support of States, but also, and most importantly, responsibility in ensuring the creation of conditions that would promote the integrity and the effective application of the Convention.

As the Convention is the fruit of a complex interplay of give-and-take that took place in the Conference, it reflects a delicate balance, translated into a network of different national interests interwoven therein.

Pivotal in maintaining this delicate balance was the design of a carefully crafted dispute settlement system, as the only mechanism put in place that could possibly guarantee the peaceful implementation of such an important international regulation for the seas in its multiple aspects. In a way, the integrity of the balance of interests achieved in the Convention’s legal regime would ultimately be ensured by the activation of this built-in dispute settlement system.

This settlement dispute system, though drawing heavily on past experiences, includes a set of innovative features, never before seen in international adjudication. It did so, I suspect, because otherwise, the workability of this settlement system would probably encounter tremendous hurdles, which, if they were to happen, could eventually compromise the effective and peaceful implementation of the whole legal regime established in the Convention, a situation that would benefit no one, as the Convention is “an important contribution to the maintenance of peace, justice and progress for all peoples of the world.”⁴

I chose to address here today, as my main observation, one of the most salient points of those innovative features of the Convention’s dispute settlement system, from the point of view of its contribution toward making that settlement system both workable and effective: I am referring to the procedure of compulsory jurisdiction.

By compulsory jurisdiction in this context, I mean the possibility that one of the parties to a dispute has to activate one of the means of settlement of dispute referred to in Article 287 of the Convention, by instituting proceedings against the other party.

To be more to the point, I will center my observations on the actual use by States parties of the compulsory procedure in the framework of the law of the sea disputes and the contribution of such procedure not only to ensure the integrity of the Convention’s legal regime, but also to the judicial work of the International Tribunal for the Law of the Sea (the Tribunal).

The Convention’s settlement system marks a departure from past experience, in that it subjects disputes arising out of the application or interpretation of the Convention to the general rule of compulsory jurisdiction, within the meaning stated before.

Of course, the Convention makes some exceptions to this general rule, namely:

a. in cases where parties agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice;⁵

b. in cases where there are limitations on applicability of Section 2 of Part XV;⁶

c. in cases where States may opt out, regarding certain categories of disputes.⁷

I shall not deal with these limitations and exceptions in this chapter, as this would divert me from my chosen theme.

Even when one takes into account these limitations and exceptions to the applicability of the compulsory procedure set forth in Section 2 of Part XV, there remains a great number of potential disputes that inexorably fall within that compulsory jurisdiction, if States have not chosen the same means of dispute settlement referred to in Article 287;⁸ in the cases involving seabed activities related disputes; and in the special cases of urgent proceedings.⁹ This is what, in my view, maintains the vitality of the Convention’s dispute settlement system and, by implication, the integrity of the delicate balance of States’ rights and interests translated into the Convention’s provisions.

This compulsory procedure mechanism made it possible for the filing of all cases that so far have been submitted to the Annex VII arbitration. It is also the reason why the Tribunal has so far received 22 cases in a relatively short period of time since its entry into operation. Indeed, the majority of these cases submitted to the Tribunal were based, directly or indirectly, on the compulsory procedure provisions of the Convention.

Although Annex VII arbitration is the default procedure, and therefore it is the means of settlement of disputes chosen by Article 287 of the Convention to receive the disputes submitted under the compulsory jurisdiction procedure, exception being made, of course, for seabed activities related disputes, the Tribunal shares with the Annex VII arbitration the default status, albeit in a more limited way, and to this extent the Tribunal’s judicial work is and has been the beneficiary of the compulsory jurisdiction mechanism established in the Convention.

Indeed, some provisions of the Convention grant to the Tribunal a special treatment in, at least, four circumstances. These four circumstances are:

a. the exclusive jurisdiction of the Tribunal’s Seabed Disputes Chamber regarding disputes and requests for advisory opinions related to activities in the Area;¹⁰

b. the residual jurisdiction of the Tribunal in prompt release cases;¹¹

c. the special and unique jurisdiction, conferred on the Tribunal by the Convention, to entertain requests for provisional measures pending the constitution of an arbitral tribunal under Annex VII of the Convention;¹²

d. the authority, expressly granted to the President of the Tribunal by Annex VII, to appoint arbitrators to an arbitral tribunal at the request of a party and in consultation with both parties.¹³

On the Exclusive Jurisdiction of the Tribunal’s Seabed Disputes Chamber

The Convention recognizes the exclusive jurisdiction of the Tribunal’s Seabed Disputes Chamber to entertain both disputes arising out of interpretation or application of the provisions of the Convention concerning activities in the Area, and requests for advisory opinions made by the Assembly or the Council of the Authority “on legal questions arising within the scope of their activities.”¹⁴ Thus, the framers of the Convention granted an important preferential treatment to the Tribunal, via its Seabed Disputes Chamber. Indeed, none of the other “means of dispute settlement” referred to in Article 287 of the Convention has jurisdiction to deal with such disputes or requests.^{15, 16}

Thus, a whole set of potential disputes or requests for advisory opinions concerning an important Part of the Convention¹⁷ dealing with the Seabed activities is reserved for the Tribunal Seabed Disputes Chamber. Recently, this special treatment given to the Seabed Chamber by the Convention made it possible for the advisory case, Case N. 17, to be filed with that Chamber.

Prompt Release of Vessels and Crews

The Convention confers on the Tribunal a residual jurisdiction to entertain cases of prompt release of vessels from detention, either for alleged non-compliance with laws and regulations concerning living resources in the exclusive economic zone that are adopted by the coastal State in conformity with the Convention or for pollution of the marine environment. Other courts and tribunals referred to in Article 287 may exercise jurisdiction in cases of prompt release of vessels and crews if the parties so agree. If, however, as is usually the case, no such agreement is reached within 10 days from the date of the detention of the vessel,¹⁸ the flag State may institute a prompt release case on a compulsory basis only before the Tribunal.

This residual jurisdiction gives the Tribunal an edge over other courts or tribunals referred to in Article 287, by conferring upon it, after the 10-day period, an exclusive compulsory jurisdiction to entertain vessels prompt release cases under Article 292 of the Convention.

The flag State has thus the option of bringing a prompt release case before the Tribunal 10 days after the detention of the vessel, irrespective of whether the detaining State agrees or not with the flag State’s choice of the Tribunal as the forum to entertain the prompt release case.

As a result of this residual jurisdiction, the Tribunal has received nine cases of prompt release of vessels and crews from detention for alleged violation of fisheries regulations in the exclusive economic zone. All these cases were introduced by the flag State or on its behalf. No such cases have been instituted before any other court and tribunal referred to in Article 287 of the Convention.

Provisional Measures Pending the Constitution of an Annex VII Arbitral Tribunal

Provisional measures pending the constitution of an Annex VII arbitral tribunal is another ...