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Twenty years have passed since the entry into force of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the implementation of Part XV, which is one of the more sophisticated and ambitious dispute settlement mechanisms that the world has seen. It provided for compulsory procedures entailing binding decisions (CPBD) for any dispute over the interpretation or application of any provision of UNCLOS, and provided State Parties with an array of dispute settlement options ranging from the International Court of Justice (ICJ) to the International Tribunal for the Law of the Sea (ITLOS) and special arbitral tribunals. This Panel, moderated by Cesare Romano (Loyola Law School, Los Angeles) and featuring Coalter Lathrop (Sovereign Geographic), Joanna Mossop (Victoria University at Wellington), Natalie Klein (Macquarie University, Australia) and Yoshifumi Tanaka (University of Copenhagen), discussed some of the key issues that have arisen in the operation of Part XV of UNCLOS.
Natalie Klein began the discussion by examining how the dispute settlement mechanisms in Part XV of UNCLOS have been used over the years. She first observed that there were two main ways in which the compulsory procedures entailing binding decisions would be necessary. First, CPBD was necessary to safeguard the carefully negotiated balance that has been enshrined in the text. In this regard, she felt that Part XV had been used relatively extensively to safeguard this balance. This was seen in the prompt release cases decided by ITLOS, and their attempts to protect the interests of flag States against the overzealous efforts of coastal States to enforce their fisheries regulations. However, she noted that this had come at the expense of cooperative fisheries regimes and may need to be recalibrated. The provisional measures applications decided by ITLOS can also be viewed as UNCLOS dispute settlement mechanisms working to preserve the balance between various interests as illustrated by the ARA Libertad between Argentina and Ghana and the Arctic Sunrise between the Netherlands and Russia. Second, she explained that CPBD was also necessary to flesh out general understandings of the provisions in UNCLOS, but she commented that the potential for ITLOS and arbitral tribunals to interpret and clarify the sometimes vague provisions in UNCLOS has not been realized.
She then went on to explain how Part XV has been used, and described three categories of cases. First, there were the cases that were submitted to CPBD contrary to expectations, for example, the Chagos Archipelago arbitral proceedings between Mauritius and the United Kingdom which requires the arbitral tribunal to decide whether the United Kingdom was the correct state to establish a marine protected area for the Chagos Archipelago, and may bring in sovereignty considerations not covered by UNCLOS. Similarly, the Philippines/China arbitral proceedings where the Philippines is primarily seeking to challenge China’s u-shaped line. She argued that the Philippines will have to use arguments relating to baselines and rocks without touching sovereignty issues or maritime boundary delimitation which has been excluded by China under Article 298. The Bangladesh/Myanmar Case is another case that was submitted to CPBD contrary to expectations, where the delimitation of the extended continental shelf was at issue.
The second category of cases was cases that could have come under the UNCLOS dispute settlement system but went elsewhere. The ICJ, for example, has maintained an active docket of law of the sea cases, especially when it involves territorial disputes. The Bolivia/Chile Case was submitted to the ICJ under the Pact of Bogota rather then UNCLOS and Australia relied on the compulsory jurisdiction of the ICJ under the International Convention on the Regulation of Whaling (ICRW) to resolve the dispute relating to scientific whaling under Article 8 of the ICRW. The case could have been instituted under UNCLOS but the dispute would have had to have been characterized as conservation of marine mammals on the high seas.
The third category of cases are law of the sea disputes that have not been submitted at all. She gave examples of Singapore’s threat to institute proceedings against Australia over compulsory pilotage in the Torres Strait, Japan’s potential challenge to the flag States of vessels controlled by Sea Shepard. Professor Klein also explained how some disputes cannot be resolved under UNCLOS, such as the East China Sea and the South China Sea disputes, as well as disputes relating to intelligence-gathering activities in the EEZs as the relevant party to such a dispute, the United States, is not a party to the Convention. Professor Klein contended that these cases have not been submitted because of political preferences or because the dispute did not fall under UNCLOS or because the relevant State was not a party, and this must not be perceived as reflecting badly on UNCLOS itself.
She concluded by saying that UNCLOS has reached for the stars and that it is to be lauded that there is a compulsory dispute settlement, but at the same time, there have been less disputes submitted to such compulsory dispute settlement than perhaps envisaged. In her view, the unexpected cases posed the greatest risk to UNCLOS, especially if the judges and/or arbitrators over-reach their jurisdiction.
Coalter Lathrop next discussed the relationship between the Commission on the Limits of the Continental Shelf (CLCS) and dispute settlement. He began with background on the CLCS and explained how it has 21 members with a fairly circumscribed mandate to issue recommendations on the outer limits of the continental shelf, in what he described as a unilateral delineation process. The CLCS has received 71 submissions to date. Lawyers are not part of the Commission, and it is not part of the dispute settlement system but the CLCS does often encounter disputes.
Mr. Lathrop explained how the drafters anticipated that there would be an overlap between extended continental shelf claims and that the delimitation disputes would potentially hinder the delineation process by the CLCS. Therefore, Article 76 (10) provided that the limits of the outer continental shelf are without prejudice to delimitation. The CLC should be able to move forward irrespective of the existence of overlapping claims. He described how the CLCS attempted to address the problem of delimitation disputes through its own Rules of Procedure in Annex 1, which were adopted in September 1998, three years before the first submission was received. Paragraph 5 (a) provides that in a case where a land or maritime dispute exists, the CLCS shall not consider or qualify a submission by any of the States concerned in the dispute unless prior consent is given by all States. In this way, Professor Lathrop argued that the CLCS flipped the presumption – it was clear from Article 76 (10) that the delineation process could not prejudice delimitation but now through the CLCS Rules of Procedure, the disputant States could prejudice the delineation process. While the CLCS rightly acknowledged that it was not competent to decide the disputes, it in effect gave disputant States a veto over the Commission process. Thus, while the CLCS is not a dispute settlement body, when a dispute arises, it sends it back to States and this raises the question of whether the CLCS has created a new right for States that went beyond what was envisaged in UNCLOS.
Professor Yoshifumi Tanaka examined the effectiveness of the use of provisional measures by ITLOS in relation to marine environmental protection. He noted that under Article 290, there are two functions of ITLOS provisional measures, first, to preserve the respective rights of the parties to the dispute and second, to prevent serious harm to the marine environment. By referring to marine environmental protection as a justification for provisional measures, Article 290 is a textual expression of the community interest in marine environmental protection. Professor Tanaka explained in several of the provisional measures cases, the Tribunal ordered environmental impact assessments to be carried out, but the question is how to get the parties to comply with the orders for provisional measures. He argued that while the Tribunal has repeatedly affirmed the binding nature of its provisional measures orders, they would be pointless if they were not complied with by the parties. Professor Tanaka then outlined how ITLOS has enforced its provisional measures orders through judicial supervision which requires parties to submit a report, and which is enshrined in Article 95 of the Rules of ITLOS. For example, in the cases of MV Saiga, the Southern Bluefin Tuna Cases, the Mox Plant Case, the ARA Libertad and Arctic Sunrise, the Tribunal decided that each party should submit report. Professor Tanaka also noted that judicial supervision is consistent with the practice of other courts, for example, the ICJ had also requested it in the dispute between Thailand and Cambodia.
Professor Tanaka argued that judicial supervision contains some issues, such as standardization of procedures and verification of the accuracy of information, the possible differences with regard to the manner of implementation and consequences of non-compliance with request to submit a report. That said, he concluded that the provisional measures authority of ITLOS is a useful method for the protection of the marine environment in that it could enforce the obligations of States to carry out EIAs, as well as ensure conservation and optimum utilization of a fish stock or prevent land-based pollution.
Joanna Mossop was the last presentation and her focus was the recent decision of the ICJ in the dispute between Australia and Japan with regard to the latter’s whaling activities in the Southern Ocean. She first provided the audience with background on the dispute and explained that it stemmed on the interpretation of Article VIII of the International Convention on the Regulation of Whaling (ICRW) which allowed contracting parties to grant a special permit authorizing its nationals to kill, take and treat whales for purposes of scientific research subject to certain conditions. Since the International Whaling Commission (IWC) introduced a moratorium in 1986, Japan has conducted scientific whaling programs pursuant to Article VIII of the ICRW which Australia alleged was a breach of the ICRW. Japan argued that it should be accorded considerable discretion under Article VIII given its broad phrasing and the Convention anticipates the development of the whaling industry.
The Court essentially found that Japan had violated the ICRW by conducting large scale whaling in violation of the moratorium on all commercial whaling, the moratorium on the use of factory ships to process whales and the prohibition of whaling in the Southern Ocean Sanctuary. It found that Article VIII would not be interpreted restrictively or expansively but in light of the text and the object and purpose of the ICRW. There were two issues, first, was there evidence of scientific research and second, what was the purpose of the program, in other words, was the design and implementation of the scientific whaling program reasonable in relation to its stated objectives. With regard to the first question, the Court was satisfied that there was a broad objective of research objectives but declined to define the definition of marine scientific research which was criticized by the minority. With regard to whether the design and implementation of the program was reasonable, the Court found that important aspects of Japan’s whaling program were not reasonable. This included the fact that Japan had not considered non-lethal methods of research and that a scientific whaling program had been immediately initiated after the first one had ended and that there was no justification given as to why the second scientific research program doubled the number of whales killed.
In her concluding remarks, she observed that the outcome was not predictable and that there was a possibility that the Court would have adopted a relaxed approach to the discretion in Article VIII. She noted that the Court did not rule out lethal whaling under scientific permit and the real issue was related to whether the design and implementation was reasonable in light of the objectives of the program. She said that Japan had made it clear that it intends to be a good citizen and that it has suspended next year’s whale hunt, but that the Court’s decision still left it open for Japan to revise its scientific whaling program to meet the conditions set out by the Court. Lastly, she hoped that the case would help alleviate some of the dysfunction in the IWC which was characterized by divisive politics, and which left Japan feeling criticized at both a cultural and national level. The case could potentially be a game-changing moment and allow Japan to step back from its assertive position, which could also be driven by a drop in demand for whale meat. She concluded by saying that while she could foresee potential changes, it was too early to tell.
Tara Davenport is a Global Associate at the Centre for International Law, National University of Singapore and is presently undertaking graduate studies at Yale Law School.