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Development and Settlement of Disputes

The General Dispute Settlement System of the UN Convention on the Law of the Sea: Overview, Context, and Use

Author: Robin Churchill

Ocean Development & International Law, 2017

Abstract

This article provides an introduction to the contributions in this special issue of Ocean Development & International Law. It offers an overview of the dispute settlement provisions of the UN Convention on the Law of the Sea, placing them in the context of dispute settlement in international law generally, and explaining the extent to which they have been used so far.

Introduction

The UN Convention on the Law of the Sea (LOSC) contains three distinct, albeit interrelated, systems of dispute settlement. These systems govern the following types of dispute:

  1. Disputes between states parties relating to the interpretation and application of the LOSC, other than disputes falling in categories 2 and 3 below. The system for settling such disputes, referred to hereafter as the general dispute settlement system of the LOSC, is set out in Part XV of the LOSC.
  2. Disputes relating to the mining of minerals in the International Seabed Area (the Area). Unlike the general dispute settlement system, the system for settling disputes relating to mining in the Area is applicable not only to disputes concerning the LOSC but also to disputes over the interpretation and application of various other instruments, such as the regulations and contracts made by the International Seabed Authority (the Authority). Furthermore, potential parties to such disputes include not just states parties but a range of nonstate actors, including the Authority, the Enterprise (the Authority’s mining arm), state enterprises, and natural and legal persons. Moreover, although the general system of dispute settlement gives the disputants a consider- able choice of fora for settling a dispute (as discussed later in this article), disputes relating to mining in the Area are, subject to some limited qualifications, dealt with exclusively by a single body, the Sea Bed Disputes Chamber. The system for settling disputes relating to mining in the Area is set out in section 5 of Part XI of the LOSC, rather than Part XV.
  3. Disputes between a flag state, exercising diplomatic protection on behalf of a natural or legal person owning a ship having its nationality, and a state that has detained such a ship for alleged illegal fishing in its exclusive economic zone (EEZ) or for a pollution offense, where the dispute concerns the alleged failure by the detaining state promptly to release the vessel on payment of a bond or other security. The procedure for dealing with such disputes is set out in Article 292 of the LOSC.

This article does not deal with categories 2 and 3 of dispute settlement. The second has yet to be used. This is probably because there has yet to be any commercial mining in the Area and because the decision-making processes of the Authority are designed to minimize the chances of a dispute arising.2 The specialized prompt release procedures of Article 292 are the subject of a separate article by Seline Trevisanut in this collection.

This article does not deal with categories 2 and 3 of dispute settlement. The second has yet to be used. This is probably because there has yet to be any commercial mining in the Area and because the decision-making processes of the Authority are designed to minimize the chances of a dispute arising.2 The specialized prompt release procedures of Article 292 are the subject of a separate article by Seline Trevisanut in this collection.

I begin with a brief overview of the relevant provisions of the LOSC governing the general dispute settlement system, explaining the reasons for their inclusion in the LOSC and plac- ing them in the context of dispute settlement in international law generally. This is followed by an analysis of the use so far made of judicial settlement under Part XV.

Download the full paper at https://www.tandfonline.com/doi/full/10.1080/00908320.2017.1349529

An electronic copy can be downloaded at Robin Churchill (2017)- The General Dispute Settlement System of the UN Convention on the Law of the Sea- Overview, Context, and Use [PDF]

 

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