Summary of "Panel II: Choice of Means of Dispute Settlement in the Law of the Sea"

Summary of Panel II: Choice of Means of Dispute Settlement in the Law of the Sea

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Main Ideas and Concepts

The panel discussed the mechanisms and choices available for dispute settlement under the United Nations Convention on the Law of the Sea (UNCLOS), focusing on past, present, and future developments. The session explored the complexity of dispute settlement procedures, the role of compulsory jurisdiction, recent case studies, and ongoing negotiations related to marine biodiversity beyond national jurisdiction.

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Key Points and Lessons

1. Nature of Dispute Settlement under UNCLOS

• UNCLOS provides a compulsory dispute settlement system but offers limited real choice among forums.
• Article 287 allows parties to express preferences for dispute settlement bodies (ICJ, ITLOS, arbitration), but often arbitration is the default.
• The drafters prioritized having a compulsory system over concerns about fragmentation or inconsistent rulings from different tribunals.
• Standing international courts like ITLOS and the ICJ differ from ad hoc tribunals in institutional structure and membership.
• The system aims to ensure peaceful resolution of disputes and authoritative interpretation of UNCLOS provisions.

2. Historical and Institutional Context

• The creation of ITLOS and the inclusion of compulsory jurisdiction faced opposition, notably from France and some ICJ judges.
• ITLOS was given jurisdiction over specific urgent matters (prompt release of vessels, provisional measures, seabed mining interpretation).
• The system allows some flexibility and further agreement between parties after initial forum selection.
• Article 282 requires deferring to other treaty-based dispute settlement mechanisms if applicable.
• Articles 297 and 298 set exceptions and limitations to compulsory dispute settlement but allow for compulsory conciliation as an alternative in some cases.

3. Case Study: Timor-Leste vs Australia (Compulsory Conciliation)

• Timor-Leste initiated the first compulsory conciliation under UNCLOS in 2016 regarding maritime boundaries with Australia.

Background:

• Complex history involving Indonesia, Australia, and Timor-Leste with overlapping maritime claims and treaties (Timor Sea Treaty, CMATS).
• Australia excluded maritime boundary disputes from compulsory ICJ jurisdiction and used Article 298 exceptions.

Compulsory Conciliation under Annex V of UNCLOS:

• Used as an alternative dispute resolution mechanism.
• Conditions for conciliation include:
  • Dispute arose after UNCLOS entry into force.
  • No agreement reached after reasonable negotiations.
  • No overlapping territorial disputes.
  • Dispute not finally settled by binding agreement.
• The conciliation commission actively mediates, examines claims, and issues recommendations.
• The process led to a breakthrough agreement on maritime boundaries and resource sharing (Greater Sunrise gas field).
• Barriers remain for other disputes, including states not party to UNCLOS, territorial disputes, and entry-into-force timing.
• The Timor-Australia case suggests growing momentum and potential success for compulsory conciliation in maritime boundary disputes.

4. Future of Dispute Settlement: Marine Biodiversity Beyond National Jurisdiction (BBNJ)

• Ongoing negotiations on an implementing agreement under UNCLOS for marine biodiversity beyond national jurisdiction are complex and slow.

Key Issues:

• Whether there is a regulatory gap (lack of rules) or implementation gap (poor enforcement) regarding marine biodiversity.
• The package includes:
  • Marine genetic resources
  • Area-based management tools (e.g., marine protected areas)
  • Environmental impact assessments
  • Capacity building
  • Technology transfer
• The relationship between the future agreement and UNCLOS is crucial.
• Dispute settlement mechanisms remain unclear and underdeveloped in preparatory commission reports.

Possible Dispute Settlement Approaches:

• Reference to existing UNCLOS mechanisms (Article 287).
• Creation of specialized chambers or arbitration lists with expertise in marine biodiversity.
• Advisory opinions from ITLOS may be useful.

Additional Challenges:

• Intellectual property rights related to marine genetic resources raise complex issues, including potential overlaps with WTO dispute settlement.
• Conservation and sustainable use goals may conflict, complicating dispute resolution.
• Jurisdictional and procedural questions remain open, including the role of states, international organizations, and possibly private actors.

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Methodologies and Instructions Presented

Conditions for Compulsory Conciliation under UNCLOS (from Timor-Australia case):

• The dispute must have arisen after UNCLOS entry into force.
• No agreement reached within a reasonable period of negotiations.
• The dispute must not involve overlapping land/territorial claims.
• The dispute must not be finally settled by a binding bilateral or multilateral agreement.
• Parties must not have excluded the dispute from compulsory procedures under Article 298.
• The conciliation commission actively engages parties, examines claims, and proposes solutions.
• The commission produces a report with findings and recommendations within one year.
• If no agreement is reached after conciliation, parties are encouraged to proceed to arbitration or adjudication by mutual consent.

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Speakers and Sources Featured

1. Bernard Oxman

   • Scholar and practitioner involved in UNCLOS negotiations.
   • Provided historical and institutional context on dispute settlement under UNCLOS.

2. Natalie Klein

   • Specialist from Macquarie University, Australia.
   • Presented the Timor-Leste vs Australia compulsory conciliation case study and analyzed its implications.

3. Lisbeth L. (Lisbeth Lane Sod)

   • Former Legal Adviser to the Netherlands Foreign Ministry and newly appointed ITLOS judge.
   • Discussed future dispute settlement issues related to the implementing agreement on marine biodiversity beyond national jurisdiction (BBNJ).

4. Moderator/Panel Chair (unnamed in transcript)

   • Introduced speakers and facilitated discussion.

5. Audience Participants

   • Raised questions on intellectual property, WTO overlap, jurisdictional coherence, and interpretation of UNCLOS provisions.

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Summary Conclusion

The panel highlighted that while UNCLOS offers a structured but limited choice in dispute settlement mechanisms, the system balances compulsory jurisdiction with flexibility and institutional diversity. The Timor-Leste vs Australia case exemplifies how compulsory conciliation can successfully resolve complex maritime boundary disputes despite legal and political challenges.

Looking ahead, the evolving negotiations on marine biodiversity beyond national jurisdiction pose new challenges for dispute settlement design, requiring careful integration of scientific, legal, and institutional considerations. The interplay between UNCLOS, other international regimes, and emerging issues like intellectual property rights will shape the future landscape of ocean governance and dispute resolution.

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End of Summary

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Educational

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