Summary of "UNCLOS III and the LOSC Dispute Settlement Framework"

Summary of “UNCLOS III and the LOSC Dispute Settlement Framework” Webinar

This final webinar in a 2022 series marking the 40th anniversary of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) focused on the unique dispute settlement framework established under Part 15 of the Convention. The session brought together experienced scholars and practitioners to discuss the evolution, mechanisms, practicalities, and challenges of dispute resolution under UNCLOS, including arbitration, conciliation, advisory opinions, and the roles of various institutions such as the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), and the Permanent Court of Arbitration (PCA).

Main Ideas and Concepts

Acknowledgement and Context The session began with a respectful acknowledgment of the Indigenous custodians of the land and sea, emphasizing the long-standing cultural connections to marine environments.
Series Background The webinar was part of a year-long ANU and ANZ Society of International Law (ANZIL) series reflecting on UNCLOS’s negotiation, implementation, and future challenges.
Part 15 Dispute Settlement System Recognized as a unique and robust framework for peaceful resolution of maritime disputes, featuring multiple mechanisms to accommodate states’ preferences and dispute types.

Key Lessons and Observations

1. Australia’s Engagement with Part 15

Australia has been an active participant in UNCLOS dispute settlement, including initiating the first Annex VII arbitration (Southern Bluefin Tuna case) and participating in conciliation (Timor-Leste case).
Australia excludes maritime delimitation disputes from compulsory dispute settlement under Article 298 but fully engages once proceedings start.
Challenges to jurisdiction and admissibility are routine and do not indicate lack of support.
Australia’s nominations to arbitration and conciliation panels reflect its commitment to the system.
ITLOS offers logistical and procedural advantages over ad hoc tribunals like Annex VII arbitration, including standing tribunal status and cost-sharing.
Conciliation can facilitate comprehensive settlements by addressing broader interests beyond strict legal boundaries (e.g., Timor Sea case).
Advisory opinions under Part 15 are limited and controversial; ITLOS’s jurisdiction in advisory matters is narrowly defined, with Australia opposing broad advisory jurisdiction.

2. Dispute Settlement Mechanisms under UNCLOS

Flexibility and Choice: States can choose dispute resolution mechanisms: ITLOS, ICJ, Annex VII arbitration, or Annex VIII special arbitration.
Annex VII Arbitration: Default mechanism if no choice is made; valued for allowing parties to select arbitrators and tailor procedures.
ITLOS: A standing tribunal that is faster and less costly, with established procedural rules and capacity for provisional measures.
ICJ: Offers political weight, UN system integration, and a growing body of maritime jurisprudence, especially in delimitation.
Conciliation (Annex V): Non-binding but useful for facilitating negotiated settlements; its use has been limited but shows promise (Timor Sea case).
Advisory Opinions: Rare and legally constrained; ITLOS advisory jurisdiction is limited to seabed disputes, while ICJ advisory opinions carry broader weight.

3. Institutional Roles and Interactions

Permanent Court of Arbitration (PCA): Although not mentioned in UNCLOS, the PCA serves as the administrative registry for most Annex VII arbitrations, providing logistical support, organizing hearings worldwide, managing costs, and ensuring procedural efficiency.
PCA’s role is administrative, not judicial, but it is closely associated with major cases like the South China Sea arbitration.
Interaction between ITLOS and Annex VII tribunals can raise jurisdictional and procedural issues, especially concerning provisional measures and arbitrator appointments.
The PCA maintains a list of arbitrators, many of whom are also ITLOS judges, contributing to jurisprudential consistency.

4. Practical and Procedural Insights

Cost Considerations: Annex VII arbitration is expensive; ITLOS and ICJ chambers offer cost advantages.
Non-Participation by Respondent States: Tribunals maintain legitimacy by ensuring full procedural fairness, allowing late participation, appointing independent experts, and rigorously testing claims.
Challenges in Interpretation: Differences in jurisprudence and interpretation of UNCLOS provisions exist between fora; cross-fertilization and evolving case law are noted.
Recent Trends: Increasing use of ITLOS chambers post-dispute, limited use of ICJ chambers, and growing confidence in dispute settlement despite some states’ non-participation.

5. Future and Emerging Issues

The future role of UNCLOS dispute settlement is being debated, including its fitness for purpose in light of new challenges like climate change.
Advisory opinions on climate change and ocean issues may become more prominent, with procedural and jurisdictional constraints to consider.
The Timor Sea conciliation model may offer a template for other complex maritime disputes involving broader interests.
Ongoing cases (e.g., Nicaragua-Colombia) continue to shape the law of the sea jurisprudence.

Detailed Bullet Points: Methodologies and Processes

Part 15 Dispute Settlement Options:
- States may choose ITLOS, ICJ, Annex VII arbitration, or Annex VIII special arbitration.
- If no choice or conflicting choices, Annex VII arbitration applies by default.
- Article 298 allows states to exclude certain disputes (e.g., maritime delimitation) from compulsory procedures.
ITLOS:
- Standing tribunal with permanent judges.
- Handles provisional measures quickly.
- Less costly due to shared expenses among states parties.
- Provides procedural clarity and logistical ease.
Annex VII Arbitration:
- Ad hoc tribunals formed per dispute.
- Parties appoint arbitrators; president of ITLOS appoints if parties fail.
- Flexible procedures but costly and administratively demanding.
- PCA acts as registry for administrative support.
Conciliation (Annex V):
- Non-binding recommendations.
- Facilitates communication and negotiation.
- Can address broader interests beyond strict legal claims.
- Example: Timor Sea conciliation commission helped resolve complex resource and boundary issues.
Advisory Opinions:
- ITLOS’s advisory jurisdiction limited to seabed disputes.
- ICJ can issue broader advisory opinions but requires UN or authorized body request.
- Potential future advisory opinions on climate change-related ocean issues.
Role of PCA:
- Administrative registry for Annex VII arbitrations.
- Organizes hearings worldwide.
- Manages communications, evidence, expert appointments.
- Provides financial assistance for developing states.
Dealing with Non-Participation:
- Tribunals maintain procedural fairness.
- Allow participation at any stage.
- Use independent experts and consider informal submissions.
- Ensure full opportunity for appearing party to respond.

Speakers / Sources Featured

Camille Goodman – Senior Lecturer, Australian National Center for Ocean Resources and Security, University of Wollongong; ANZIL co-chair.
Professor Donald Rothwell – ANU College of Law, co-chair of the webinar series.
Bill Campbell – Former senior Australian government international legal advisor.
Judith Levine – Former Senior Counsel at the Permanent Court of Arbitration; international arbitrator.
Kate Pallet – Practitioner at the international bar, United Kingdom.
Professor Don McRae – Based in Ottawa; former member of Timor Sea conciliation commission; judge ad hoc at the ICJ.
Francis and Caroline – Webinar participants who posed questions during the Q&A session.

This webinar provided a comprehensive, multi-perspective examination of UNCLOS Part 15 dispute settlement mechanisms, highlighting their evolution, practical application, institutional interplay, and ongoing challenges, while also reflecting on Australia’s unique role and the broader international context.