1 Dispute Settlement Mechanism under UNCLOS III
This assignment has focused on the procedures which have been applied to settle the dispute under UNCLOS III. For that, we have to know what UNCLOS III really is. UNCLOS, also called the Law of the Sea Convention or the Law of the Sea Treaty, defines the rights and responsibilities of nations in their use of the world’s oceans; it establishes guidelines for businesses, the environment, and the management of marine natural resources. The United States was among the nations that participated in the third United Nations Conference on the Law of the Sea, which took place from 1973 through 1982 and resulted in the international treaty known as the United Nations Convention on the Law of the Sea (UNCLOS). The United States also participated in the subsequent negotiations of modifications to the treaty from 1990 to 1994. The UNCLOS came into force in 1994. Although the United States now recognizes the UNCLOS as a codification of customary international law, it has not yet ratified it.
The United Nations Convention on the Law of the Sea (UNCLOS)1 represents a major advance in international law from a variety of standpoints. The comprehensive nature of the treaty, evinced by its 158 signatories2, governs virtually all aspects of the law of the sea. The substantive provisions of UNCLOS regarding protection and preservation of the marine environment are meaningful, if not ambitious, in their scope.3 Similarly, the dispute settlement mechanisms provided for in Part XV of the Convention, some of which are compulsory and binding, were drafted to allow maximum flexibility for the State parties in their choice of procedure.4 Although little activity thus far has occurred under Part XV, especially in the arena of environmental protection, an understanding of the dispute settlement provisions of UNCLOS is necessary to understand the way in which marine wildlife disputes may be addressed by State parties to the Convention in the future.
1United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 21 I.L.M. 1261 (entered nto force Nov. 16, 1994). 2 Status of the United Nations Convention on the Law of the Sea of 10 December 1982 and of the Agreement elating to the implementation of Part XI of the Convention adopted by the General Assembly on 28 July 1994. 3 Although provisions relating to marine environmental protection can be found in many parts of the treaty the most noteworthy is Part XII, entitled “The Protection and Preservation of the Marine Environment.” UNCLOS, supra note 1, at Part XII. The first two articles of Part XII (arts. 192 and 193) reflect a balancing of interests between “the obligation of States to protect and preserve the marine environment” (art. 192) and “the sovereign right to exploit their natural resources pursuant to their environmental policies . . .” (art. 193). Additional mention of environmental protection can be found in Part XI and the Agreement Relating to the Implementation of Part XI (of UNCLOS). Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, G.A. res. 48/263, U.N. GAOR, 48th Sess., 101st plen. mtg., Agenda Item 36, U.N. Doc. A/RES/48/263 (1994). A comprehensive discussion of the Sea-Bed regime is beyond the scope of this paper. It should be noted, however, that a separate Sea-Bed Disputes Chamber of the International Tribunal for the Law of the Sea was established for disputes under Part XI. See UNCLOS, supra note 1, at arts. 186-191 4UNCLOS, supra note 1, at Part XV.
2 Dispute Settlement Mechanism under UNCLOS III
The Third United Nations Conference on the Law of the Sea (UNCLOS III) was convened in late 1973 in New York. The most significant issues covered were setting limits, navigation, archipelagic status and transit regimes, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes. With more than 160 nations participating, the Conference continued until its final meeting in late 1982, at which time the final act was signed and the Convention was opened for signature. As time went on, it became clear that the United States, among other developed states, was not willing to agree to Part XI of the Convention concerning deep seabed portions and mining of potentially valuable metals.5
The United States objected to Part XI of the Convention on several grounds, arguing that the treaty was unfavorable to American economic and security interests. The U.S. claimed that the provisions of the treaty were not free-market friendly and were designed to favor the economic systems of the Communist states. The U.S. also argued that the International Seabed Authority established by the Convention might become a bloated and expensive bureaucracy, due to a combination of large revenues and insufficient control over what the revenues could be used for.
Revision of the UNCLOS
From 1983 to 1990, the United States accepted all but Part XI as customary international law, while attempting to establish an alternative regime for exploitation of the minerals of the deep seabed. An agreement was made with other seabed mining nations and licenses were granted to four international consortia. Concurrently, the Preparatory Commission was established to prepare for the eventual coming into force of the Convention-recognized claims by applicants, sponsored by signatories of the Convention. Overlaps between the two groups were resolved, but a decline in the demand for minerals from the seabed made the seabed regime significantly less relevant. In addition, the decline of Socialism and the fall of Communism in the late 1980s had removed much of the support for some of the more contentious Part XI provisions.
In 1990, consultations were begun between signatories and non-signatories (including the United States) over the possibility of modifying the Convention to allow the industrialized countries to join the Convention. The resulting 1994 Agreement on Implementation was adopted as a binding international Convention. It mandated that key articles, including those on limitation of seabed production and mandatory technology transfer, would not be applied, that the United States, if it became a member, would be guaranteed a seat on the Council of the International Seabed
5 Roger Rufe, President of the Ocean Conservancy. Statement before the Senate Committee on Foreign Relations, October 21, 2003
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Authority, and finally, that voting would be done in groups, with each group able to block decisions on substantive matters. The 1994 Agreement also established a Finance Committee that would originate the financial decisions of the Authority, to which the largest donors would automatically be members and in which decisions would be made by consensus.
Thus, modifications to that provision were negotiated, and an amending agreement was finalized in July of 1994. The U.S. signed the Agreement in 1994 and now recognizes the Convention as general international law, but has not ratified it at this time. UNCLOS entered into force in November of 1994 with the requisite sixty ratifications.
On April 24, 2004 Jeane Kirkpatrick (Reagan Administration United Nations Ambassador 1981-1985), testified against United States ratification of the treaty before the Senate Armed Services Committee, in which she argued that “Viewed from the perspective of U.S. interests and Reagan Administration principles, it was a bad bargain,” and that “its ratification will diminish our capacity for self-government, including, ultimately, our capacity for self-defense.” 6
On April 11, 2006, the 5-Member UNCLOS Annex VII Arbitral Tribunal, presided over by H.E. Judge Stephen M. Schwebel, rendered after two years of international judicial proceedings, the landmark Barbados/Trinidad and Tobago Award, which resolved the maritime boundary delimitation (in the East, Central and West sectors) to satisfaction of both Parties and committed Barbados and Trinidad and Tobago to resolve their fisheries dispute by means of concluding a new Fisheries Agreement.
On May 15, 2007, United States President George W. Bush announced that he had urged the Senate to approve the UNCLOS.7
On October 31, 2007, the Senate Foreign Relations Committee voted 17-4 to send the treaty to the full U.S. Senate for a vote.8
On September 20, 2007, an Arbitral Tribunal constituted under UNCLOS issued its decision on a longstanding maritime boundary dispute between Guyana and Suriname, which contained a ruling blaming both nations for violating treaty obligations.9
6 President’s Statement on Advancing U.S. Interests in the World’s Oceans. Office of the Press Secretary. May 15, 2007.
7 Drawbaugh, Kevin (October 31, 2007). “U.S. Senate panel backs Law of the Sea treaty”. Reuters. http://www.reuters.com/article/latestCrisis/idUSN31335584.
8 “Guyana/Suriname.” Permanent Court of Arbitration. September 2007.
9 Transcript of Hillary Clinton’s Confirmation Hearing. Council on Foreign Relations. January 13, 2009.
4 Dispute Settlement Mechanism under UNCLOS III
On January 13, 2009, speaking at her Senate confirmation hearing as nominee for United States Secretary of State, Senator Hillary Clinton said that ratification of the Law of the Sea Treaty would be a priority for her.
International Dispute Settlement
UNCLOS Article 292, which governs the release of vessels where there is an allegation that the detaining state has not complied with the provisions of UNCLOS for prompt release, was expected to be, and has proved to be, a major source of business for the International Tribunal for the Law of the Sea (Tribunal).10Other cases, chiefly on maritime delimitation, are now pending before the International Court of Justice. Arbitration, however, remains the default mechanism for dispute settlement under UNCLOS if states do not agree on another forum. States may opt out of compulsory arbitration in several categories of disputes.
A. INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA
1. Camouco (Panama v. France)
The Tribunal received Camouco (Panama v. France) on January 17, 2000. 11The Panamanian vessel Camouco was arrested by a French frigate for allegedly fishing unlawfully in France’s exclusive economic zone of the Crozet islands (French Southern and Antarctic Territories). Panama applied to the Tribunal for the prompt release of the Camouco under UNCLOS Article 292.
Moving with great speed for an international tribunal, the Tribunal issued its judgment on February 7, 2000.12 The Tribunal voted 19-2 that it had jurisdiction to hear the application to release the vessel. Neither party contested that jurisdiction.
There was some dispute on whether or not the Master of the vessel had been seized. His passport was taken from him by French authorities and he was under court “supervision.” The Tribunal felt this prevented him from traveling, and thus he was effectively seized.
10The International Tribunal for the Law of the Sea is a forum established by UNCLOS for the peaceful settlement of disputes. Its seat is at the Free and Hanseatic City of Hamburg, Germany. The Tribunal may sit and exercise its functions elsewhere whenever it considers this desirable. See Oceans and Law of the Sea, Settlement of Disputes, available at http://www.un.org/Depts/los/los_disp.htm (last updated Feb. 17, 1999). 11See International Tribunal for the Law of the Sea, Application Filed Against France for Release of Arrested Panamanian Fishing Vessel Camouco and its Master (Jan. 17, 2000), available at http://www.pict-pcti.org/news/archive/January/ITLOS.01.17.Camouco.html. 12Panama v. France (The “Camouco” Case) (Feb. 7, 2000), available at http://www.pictpcti.org/news/archive/february/ITLOS.02.07.Camouco.html.
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The release of a vessel and crew could be conditioned on the posting of a bond. In fact, the local French court set a bond at Fr 20,000,000.13 This amount was not reasonable according to Panama, who requested a bond of Fr 1,300,000. As the Tribunal ultimately determined by a vote of 15-6, the amount of the bond should be a bank guarantee of Fr 8,000,000.14 Once this was posted, the vessel and its crew would be free to leave.
The court fulfilled its obligations under UNCLOS Article 292(3) to resolve these types of questions “without delay.” 15 If only domestic courts could respond as quickly!
2. Monte Confurco (Seychelles v. France)
Monte Confurco (Seychelles v. France) was brought to the Tribunal on December 6, 2000. 16 The Seychelles’ vessel Monte Confurco was seized by France in the exclusive economic zone of the Kerguelen Islands (French Southern and Antarctic territories). The vessel was taken to Reunion where it and its Master were detained. The Master was placed under judicial supervision. The local court required the posting of a Fr 56,400,000 bond 17 before the vessel and its Master would be released.
The Seychelles brought this matter to the Tribunal pursuant to UNCLOS Article 292. Once again, the Tribunal demonstrated its commitment to proceed without delay. The Tribunal issued its decision on December 18, 2000, 18 taking only twelve days from the date the case was filed to issue a decision.
Once again, there was no serious contest to the Tribunal’s jurisdiction. Provisions to release the Monte Confurco had not been made within ten days of its seizure, allowing the Tribunal to hear the case. The Tribunal found it had jurisdiction.
The Seychelles requested the Tribunal set a bond for Fr 2,200,000. France continued to claim an Fr 56,400,000 bond was reasonable. The Tribunal noted there were two competing interests. First, France could expect its rules and regulations concerning fishing had to be complied with. Second, the Seychelles had a right to secure the release of its vessel after posting a bond of such a magnitude as to protect France’s interests. This means the amount of security must be proportionate to the offense (and the penalties for the offense). In light of all the circumstances of the case, the Tribunal set the bond amount at Fr 18,000,000.
13Under local rules, the French court did not have to explain how it determined the amount of the bond. 14The Tribunal interestingly noted the maximum fine was Fr 5,000,000. If so, why was such a large bond required? 15 UNCLOS, supra note 1, art. 292(3). 16 International Tribunal for the Law of the Sea, Application for Release of Fishing Vessel “Monte Confurco” and its Master 17 This time the French court carefully explained how it determined the amount of the bond–Fr 1,000,000 to secure the appearance of the vessel’s Master, Fr 400,000 to secure payment for damages, and Fr 55,000,000 to secure payment of fines and confiscation of the vessel. 17 Tribunal for the Law of the Sea, Application for Release of Fishing Vessel “Monte Confurco” and its Master (Dec. 6, 2000), available at http://www.pictpcti.org/news/archive/months2000/december/ITLOS.12.06. monteconfurco.html.
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18 Seychelles v. France (The Monte Confurco Case) (Dec. 18, 2000), available at http://www.pictpcti.org/news/archive/months2000/december/ITLOS.12.18.judg.pdf.
Once again, there was a question of whether or not the Master of the vessel had been detained. The Seychelles said he was. France said he was not. While the conclusion was debated, the underlying facts were not really in dispute. The Master’s passport was taken from him by the French authorities and he was under “court supervision.” While the Master could apparently come and go on Reunion Island, he was not free to leave the island. The Tribunal held this was detention within the meaning of UNCLOS. Therefore, the Master must be allowed to leave once the bond was posted.
3. Swordfish Stocks (Chile v. European Community)
On December 20, 2000, the Tribunal established its first special chamber 19 at the request of Chile and the European Community. 20 It is too early to tell how the chamber will function, but it may provide a model for such disputes in the future. It should be noted the President of the Tribunal used his good offices to assist the parties in deciding to use a special chamber.
4. The Permanent Headquarters of the Tribunal
On July 3, 2000, the Tribunal moved into its permanent building in Hamburg. 21 U.N. Secretary-General Kofi Annan spoke on the occasion, praising the Tribunal as a modern court that can respond quickly. 22
5. Trust Fund to Assist in Litigation
On May 25, 2000, the parties to UNCLOS established a trust fund to assist states in proceedings before the Tribunal. The U.N. Secretary-General will administer the fund. Contributions are voluntary and can be received from states, intergovernmental institutions, non-governmental organizations, and any other person.
The fund will be used as a device to overcome financial impediments to the judicial settlement of disputes. In this sense, it is similar to a trust fund established to assist states in proceedings before the International Court of Justice. Interestingly, the fund is not intended to be used where the jurisdiction of the Tribunal is being disputed.
19 The special chamber consists of Rao (India), Caminos (Argentina), Yankov (Bulgaria), Wolfrum (Germany), and Vicuna (ad hoc for Chile). 20 See International Tribunal for the Law of the Sea, Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Dec. 20, 2000), available at http://www.un.org/Depts/los/ITLOS/Order3_2000Eng.pdf. 21 See Oceans and Law of the Sea, Secretary-General Opens Law of the Sea Tribunal in Germany (July 28, 2000), available at http://www.un.org/Depts/los/ITLOS/Hdqrts/Hdqrpix.htm.
22 See International Tribunal for the Law of the Sea, Official Opening of the Headquarters Building of the Tribunal (July 17, 2000), available at http://www.un.org/Depts/los/Press/ITLOS/ITLOS_36.htm.
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B. AN ARBITRAL TRIBUNAL
1. Southern Bluefin Tuna Case (Australia and New Zealand v. Japan)
The Tribunal originally issued an interim order of protection in Southern Bluefin Tuna Case (Australia and New Zealand v. Japan). 23 The case was ultimately referred to an arbitral tribunal 24 that issued its jurisdiction decision on August 4, 2000, revoking the Tribunal’s provisional measures in the August 1999 case and ruling that the arbitral tribunal lacked jurisdiction to decide the case.
Japan was accused of violating its obligations under UNCLOS Articles 64 and 116-19 concerning the Southern Bluefin Tuna (a highly migratory species used in sashimi). Australia and New Zealand requested an award of interim measures, which was granted by the Tribunal. As part of its award of interim measures, the Tribunal found the arbitral tribunal (specially formed to determine the merits of the decision under UNCLOS 3, Annex VII) would have jurisdiction to determine the case.
This finding did not prevent Japan from raising the jurisdiction issue before the arbitral tribunal itself. The arbitral tribunal found the dispute between the parties really arose out of the 1993 Convention for the Conservation of Southern Bluefin Tuna 25 rather than UNCLOS. Since the parties had not exhausted their dispute resolution remedies under the Bluefin Convention, they were not able to use the UNCLOS 3 dispute resolution procedures. Therefore, the case was dismissed and the interim order of protection was dissolved.
There were some interesting issues the arbitral tribunal did not explicitly consider: What is the level of proof necessary to sustain an interim order of protection? Is it probable cause? Is it a preponderance of the evidence? Is it clear, cogent, and convincing evidence? Should the parties be free to re-litigate the question of jurisdiction after an interim order of protection has been entered?
23 Australia and New Zealand v. Japan (Southern Bluefin Tuna Case) (Aug. 27, 1999), available at http://www.un.org/Depts/los/ITLOS/Order-tuna34.htm. 24 The tribunal consisting of Judge Stephen Schwebel, Judge Florentino Feliciano, Justice Sir Kenneth Keith KBE, Judge Per Tresselt, and Professor Chusei Yamada. 25 Convention for the Conservation of Southern Bluefin Tuna, done at Canberra, May 10, 1994, available at http://www.oceanlaw.net/texts/ccsbt.htm (last visited May 16, 2001).
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Human life and existence on this planet has reached such a level that it is impossible for humans to continue surviving and not negatively affect the oceans. The living environment, marine or otherwise, continues to suffer at the hands of humans, directly and indirectly.26 Dire consequences have been predicted for the future of humankind and the world in general if the oceans are not governed in a sustainable manner.27 Such a bleak future, if humankind were to see one, would be accompanied by nations playing the blame game and giving rise to increased disputes relating to the oceans.
An examination of the meanings of governance and its links with law and dispute settlement served as the background for the analysis of the connotations of oceans governance, and its connections with law and dispute settlement. There are plenty of potential for dispute settlement to play a role in oceans governance in diverse ways, including the (i) enforcement and implementation of the Convention, (ii) maintenance of the integrity of the principles governing the Convention, (iii) unification of the substantive legal provisions of the Convention, (iv) provision of protection from abuse, (v) regulation and allocation of resources, (vi) maritime boundary delimitation, (vii) strengthening of regimes and institutions, (viii) interpretation of the law and development of rules, (ix) facilitation of cooperation, (x) reduction of tension andmaintenance of peace, (xi) ensuring compliance with laws and norms, and (xii) management of multiple ocean use conflicts.
For strengthening the role of dispute settlement in oceans governance, a number of factors must contribute. First, concerned states and other entities must be willing to utilise the dispute settlement mechanisms to settle their disputes, and clarify grey areas of the law. Secondly, the political will must be ready to enforce and carry out any directions emerging from the dispute settlement process. Thirdly, scientific findings that measure the state of the oceans must maintain sufficient credibility in the understanding of all interested parties having a say in the oceans governance process. Finally, domestic and international pressure should be available toensure that enforcement of decisions by the dispute settlement bodies are effectively carried out in the best manner possible. In conclusion, it is asserted that, given the fulfilment of the requirements stated in the above-mentioned recommendations, dispute settlement will in the future have a greater and more significant role to play in oceans governance.
26 See Paul and Anne Ehrlich Extinction: The Causes and Consequences of the Disappearances of Species (Random House, New York, 1981) 103 – 176. 27 See Anne W Simon Neptune’s Revenge: The Ocean of Tomorrow (Franklin Watts, New York, 1984) 177.
9 Dispute Settlement Mechanism under UNCLOS III
1. Roger Rufe, President of the Ocean Conservancy. Statement before the Senate Committee on Foreign Relations, October 21, 2003.
2. Jeane J. Kirkpatrick. Testimony before the Senate Armed Services Committee. April 8, 2004.
3. President’s Statement on Advancing U.S. Interests in the World’s Oceans. Office of the Press Secretary. May 15, 2007.
4. Drawbaugh, Kevin (October 31, 2007). “U.S. Senate panel backs Law of the Sea treaty”. Reuters. http://www.reuters.com/article/latestCrisis/idUSN31335584.
5. “Guyana/Suriname.” Permanent Court of Arbitration. September 2007.
6. Transcript of Hillary Clinton’s Confirmation Hearing. Council on Foreign Relations. January 13, 2009.1.0
7. Andrew C. Revkin. “As Polar Ice Turns to Water, Dreams of Treasure Abound.” NY Times. 10-10-2005.
8. a b David A. Ridenour. “Ratification of the Law of the Sea Treaty: A Not-So-Innocent Passage.” The National Center for Public Policy Research. August 2006.
9. Amy Ridenour. “Amy Ridenour’s National Center Blog: Bush Administration Law of the Sea Treaty Defense Inaccurate.” The National Center for Public Policy Research. June 18, 2007.