UNCLOS 1982: Forty years for a peace mechanism of maritime dispute settlement

9/11/2022| 17:51

The 1982 UNCLOS has provided flexibility in the maritime dispute settlement, according to Assoc.Prof.PhD. Nguyen Thi Lan Anh, Director of the East Sea/South China Sea Institute (Diplomatic Academy of Vietnam),

The United Nations Charter stipulates the principle of peaceful settlement of international disputes through such means as negotiation, investigation, mediation, conciliation, arbitration, courts and regional and international organizations or any other peaceful means chosen by the relevant parties. The 1982 UNCLOS reaffirmed this spirit, combining different peaceful means to create an appropriate dispute settlement mechanism among member states.

UNCLOS 1982: Forty years for a peace mechanism of maritime dispute settlement

 The 1982 UNCLOS reaffirmed the spirit of using the principle of peaceful settlement of international disputes. Picture: Thanh Dat/VNA.

Accordingly, the 1982 UNCLOS gives priority to agreements on dispute settlement methods that the parties have agreed in advance. If there is no existing agreement, the 1982 UNCLOS requires the parties to negotiate directly through the provision of “view exchange as a mandatory measure”. In addition, the 1982 UNCLOS encourages parties to use conciliation as a voluntary option to facilitate direct negotiations.

However, the mandatory exchange of views is not indefinitely valid. The Convention only requires the parties to exchange views within a reasonable period of time. If the parties do not reach a solution to resolve the dispute within that time, the arbitration will be the next option. For more flexibility, the 1982 UNCLOS specifies that the parties can choose one of four jurisdictions as follows: The International Court of Justice (ICJ), the International Court of the Law of the Sea (ITLOS), Arbitration established under Appendix VII and Arbitration established under Appendix VIII.

This mechanism not only ensures flexibility in choosing a dispute resolution body, but also ensures efficiency when a party can use its right to unilaterally initiate arbitration proceedings established under Appendix VII to settle disputes with another party over disagreements concerning the interpretation and implementation of UNCLOS. The right to unilaterally initiate a lawsuit provided for on the basis of UNCLOS is a package Convention. Countries that ratify the Convention are not allowed to reserve any provision, therefore, voluntarily bounding themselves to the compulsory jurisdiction of the dispute settlement mechanism in Part XV of the Convention.

The 1982 UNCLOS also provides additional exceptions in order to give more flexibility to the dispute settlement mechanism, and to overcome the limitation of unchanged provisions of the 1958 Convention (which led to many countries’ not ratifying). Accordingly, disputes concerning the interpretation or application of the provisions of the 1982 UNCLOS on the exercise of rights under the sovereignty and jurisdiction of the coastal state are naturally excluded from the jurisdictions' compulsory settlement mechanisms. Disputes relating to border delimitation, maritime boundaries, military operations of ships, or disputes being considered by the United Nations Security Council are also subject to this selective exclusion. Therefore, if a party makes a declaration that excludes these three selected types of disputes, the other is not allowed to bring these disputes to arbitration under the provisions of the Convention.

Notwithstanding the ex officio or optional exclusion of some disputes from the scope of compulsory dispute settlement through arbitration, member states are still obligated to settle disputes by amicable means, including the obligation to exchange views. In particular, the 1982 UNCLOS provides that with these excluded disputes, a party can unilaterally request the application of compulsory mediation to make recommendations on dispute settlement measures.

With its flexible and creative provisions, the 1982 UNCLOS has created a dispute settlement mechanism with many layers, while ensuring the parties’ flexibility and freedom of choice of measures and the dispute settlement agency has created favorable conditions to promote the dispute settlement process of the parties. In particular, the dispute settlement mechanism of the 1982 UNCLOS is the first one that provides the right of a member state to unilaterally bring a lawsuit to an international tribunal. Thanks to this provision, many disputes between countries in the sea have been resolved and disagreements between nations have been narrowed down.

Since the birth of UNCLOS in 1982, 29 maritime disputes have been resolved through the ICJ, 18 disputes through ITLOS, and 11 disputes through Arbitration established under Annex VII.

Bao Huy