Summary of "DISPUTE SETTLEMENT IN THE LAW OF THE SEA : CHALLENGES AND PROSPECTS"

Summary of the Video

“DISPUTE SETTLEMENT IN THE LAW OF THE SEA: CHALLENGES AND PROSPECTS”

Main Ideas and Concepts

1. Context and Importance of the Law of the Sea (UNCLOS)

UNCLOS (United Nations Convention on the Law of the Sea) is described as a “constitution for the oceans,” providing a comprehensive legal framework for maritime activities such as navigation, resource exploitation, environmental protection, and dispute settlement.
Indonesia and the UK, both archipelagic island nations, share common maritime challenges and demonstrate strong commitments to UNCLOS and peaceful dispute resolution.

2. Historical and Diplomatic Background

The webinar commemorates Indonesia’s Juanda Declaration (1957), which laid the foundation for the archipelagic state concept now enshrined in UNCLOS.
The Mokhtar Kusuma Atmaja Award honors Professor Mokhtar Kusuma Atmaja, a key figure in Indonesia’s maritime diplomacy and legal scholarship, who helped translate Indonesia’s archipelagic concept into international law.

3. Dispute Settlement Mechanisms under UNCLOS

UNCLOS provides multiple compulsory dispute settlement options if peaceful means fail:
- International Tribunal for the Law of the Sea (ITLOS)
- International Court of Justice (ICJ)
- Annex VII Arbitration (default)
- Special Arbitration under Annex VIII (for fisheries, environment, marine scientific research, navigation)
States may choose one or more forums via declarations; if no choice is made, Annex VII arbitration applies by default.
Some exceptions exist where compulsory adjudication does not apply, e.g., military activities, maritime delimitation disputes, or where the UN Security Council is involved.

4. Challenges in Jurisdiction and Mixed Disputes

Difficulties arise when maritime disputes overlap with territorial sovereignty issues, which are outside UNCLOS jurisdiction.
Tribunals generally avoid ruling on sovereignty but may have incidental jurisdiction if sovereignty issues are ancillary.
Cases involving Mauritius-UK (Chagos Islands), Philippines-China (South China Sea), and Ukraine-Russia (Crimea) illustrate this challenge.
The relationship between ITLOS jurisdiction and ICJ jurisdiction (especially under the ICJ’s optional clause) has been clarified by recent ICJ rulings, with ICJ jurisdiction often taking precedence.

5. Indonesia’s Experience and Regional Approach

Indonesia historically moved from unilateral claims (Juanda Declaration) to full compliance with UNCLOS through diplomatic negotiation and legal transformation led by Professor Kusuma Atmaja.
Indonesia prefers negotiation, cooperation, and regional mechanisms (“ASEAN way”) over third-party dispute settlement, especially for sovereignty and political disputes.
Indonesia has settled some disputes peacefully (e.g., Sipadan and Ligitan islands via ICJ) but continues active maritime boundary negotiations with neighbors.
Indonesia has not made reservations under Article 298 of UNCLOS (exceptions to compulsory dispute settlement), signaling commitment to UNCLOS mechanisms.

6. Role of ITLOS in Marine Environmental Protection

ITLOS plays a significant role in enforcing marine environmental protection under UNCLOS, including issuing provisional measures to prevent serious harm to the marine environment.
Jurisprudence includes cases on fisheries (Southern Bluefin Tuna), pollution (MOX Plant), and land reclamation (Malaysia-Singapore).
Advisory opinions have reinforced principles like due diligence, precautionary approach, and state responsibility.
Challenges remain regarding jurisdiction and willingness of states to bring environmental disputes before ITLOS.

7. Key Legal and Political Issues Discussed

The legal status and validity of China’s “Nine-Dash Line” in the South China Sea, which was ruled to have no legal basis by the South China Sea Arbitration Tribunal.
The ICJ advisory opinion on the Chagos Islands, which ruled UK administration unlawful and obligated the UK to complete Mauritius’s decolonization, though the UK has not complied.
Piracy and armed robbery issues in Indonesian waters, clarifying that piracy under UNCLOS applies only to high seas, not territorial waters, affecting cooperation and information sharing.
Challenges posed by “flags of convenience” in maritime labor rights enforcement.

8. Future Prospects and Challenges

UNCLOS’s flexible and ambiguous terms will continue to require interpretation by judicial bodies and be influenced by state practice.
Increasing importance of environmental protection, climate change, and sustainable use of marine resources in dispute resolution.
Need for greater use and acceptance of compulsory dispute settlement mechanisms balanced with regional diplomatic approaches.

Methodology / Instructions (Key Points on Dispute Settlement under UNCLOS)

Dispute Settlement Options:
- Parties can choose one or more forums: ITLOS, ICJ, Annex VII Arbitration, Annex VIII Special Arbitration.
- If no choice is made, Annex VII Arbitration applies by default.
- States may exclude certain disputes under Article 298 exceptions, but Indonesia has not made such exclusions.
Handling Mixed Disputes:
- Tribunals generally avoid ruling on sovereignty issues but may address ancillary sovereignty questions if closely linked to maritime claims.
- Parties should clarify claims and consider negotiations before third-party adjudication.
Negotiation Hierarchy (Indonesia’s Approach):
1. Start with technical negotiations.
2. Escalate to senior officials, ministers, special envoys if unresolved.
3. Resort to third-party adjudication (e.g., ICJ) only as a last option.
Environmental Dispute Resolution:
- Use ITLOS’s provisional measures and advisory opinions to prevent environmental harm.
- Encourage cooperation and information sharing among states.
- Recognize evolving scope of marine environmental law beyond pollution to include biodiversity, climate change, and sustainable resource use.

Speakers / Sources Featured

Mr. Owen Jenkins – British Ambassador to Indonesia and Timor-Leste
Professor Dapo Akande – Professor of Public International Law, University of Oxford; Keynote Speaker
Dr. Desra Parchaya – Indonesian Ambassador to the UK, Ireland, and IMO
Professor Armida Celsia Alicia Bana – Professor of Economics, Universitas Pajajaran; Under Secretary-General of the United Nations and Executive Secretary of UNESCAP (via recorded video)
Dr. Damos Dumouli Agusman – Director General for Legal Affairs and International Treaties, Indonesian Ministry of Foreign Affairs
Dr. Guzman Chatur Siswandi – Director, Indonesian Center for the Law of the Sea, Universitas Pajajaran
Mr. Haden Spicer – Political Counselor, Foreign and Security Policy Team, British Embassy Jakarta
Moderator: Mr. Haden Spicer
Master of Ceremony: Rati Mulia

This summary captures the core themes, legal frameworks, Indonesia’s regional approach, and challenges in dispute settlement under the Law of the Sea as discussed in the webinar.