Dispute settlement under the UN Convention on the Law of the Sea: Survey for 2004

International Journal of Marine and Coastal Law

Volumn 21, Issue 1, 2006, Pages 1-14

  Churchill, Robin ^a  

^a CARDIFF UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

INTERNATIONAL LAW; LAW OF THE SEA; LEGAL SYSTEM; MARITIME BOUNDARY; TERRITORIAL DELIMITATION; TERRITORIAL DISPUTE;

EID: 33751104194     PISSN: 09273522     EISSN: None     Source Type: Journal    
DOI: 10.1163/157180806776639457     Document Type: Review

References (71)

1. See S. Rosenne, "International Tribunal for the Law of the Sea: 1996-98 Survey", (1998), 13 IJMCL 487
2. S. Rosenne, "The International Tribunal for the Law of the Sea: 1998 Survey", (1999) 14 IJMCL 453
3. S. Rosenne, "The International Tribunal for the Law of the Sea: Survey for 1999", (2000) 15 IJMCL 443
4. V. Lowe, "The International Tribunal for the Law of the Sea: Survey for 2000", (2001) 16 IJMCL 549
5. V. Lowe and R. Churchill, "The International Tribunal for the Law of the Sea: Survey for 2001", (2002) 17 IJMCL 463
6. V. Lowe and R. Churchill, "The International Tribunal for the Law of the Sea: Survey for 2002", (2003) 18 IJMCL 447
7. and R. Churchill, "The International Tribunal for the Law of the Sea: Survey for 2003", (2004) 19 IJMCL 369.
8. It is not really possible to survey dispute settlement under section 1 of Part XV, which requires the parties to a dispute to settle it by any agreed means of their choice, because such attempts at dispute settlement frequently remain confidential or are not widely publicised.
9. Annual Report of the International Tribunal for the Law of the Sea for 2004, SPLOS/122, 30 March 2005, pp. 5 and 8-9. Available at http://daccessdds.un.org/doc/UNDOC/GEN/N05/290/15/PDF/ N0529015.pdf?OpenElement.
10. Ibid., pp. 9-11.
11. Ibid., p. 13.
12. Report of the 14th Meeting of States Parties to the Law of the Sea Convention, SPLOS/119, 23 July 2004, pp. 6-9. Available at http://daccessdds.un.org/doc/UNDOC/GEN/N04/439/40/PDF/ N0443940.pdf?OpenElement.
13. For a more detailed consideration of budgetary matters relating to the ITLOS, see P. Gautier, "The International Tribunal for the Law of the Sea: Activities in 2004", (2005) 4 Chinese Journal of International Law 183 at 186-18.
14. Annual Report, note 3 above, p. 16
15. and Verbatim Record of the Public Sitting in the Juno Trader case, held on 7 December 2004, ITLOS/PV.04/05, pp. 31-32. The outcome of Guinea-Bissau's application was not known to the writer at the time of writing.
16. Ibid.
17. Ibid., pp. 11-12.
18. See also ITLOS Press Release No. 93 of 15 December 2004.
19. Ibid., p. 12.
20. Churchill and Lowe, note 1 above, pp. 450-455.
21. The Volga case (Russian Federation v Australia), Judgment of 23 December 2002.
22. Olbers v Commonwealth of Australia (No. 4), [2004] FCA 229. Also available at http://www.austlii.edu.au/au/cases/cth/federal_ct/2004/ 229.html. I am grateful to Professor Barbara Kwiatkowska for drawing my attention to this case.
23. Ibid., paras. 76-79.
24. Paras. 84-94.
25. Para. 86. French J also drew support on this point from Re Director of Public Prosecutions, ex p. Lawler (1994) 179 CLR 270
26. and Cheatley v The Queen (1972) 127 CLR 291.
27. A. Serdy and M. Bliss, "Prompt Release of Fishing Vessels: State Practice in the Light of the Cases Before the International Tribunal for the Law of the Sea" in A. G. Oude Elferink and D. R. Rothwell (eds.), Oceans Management in the 21st Century: Institutional Frameworks and Responses (2004), p. 273 at 279
28. and E. J. Molenaar, "Multilateral Hot Pursuit and Illegal Fishing in the Southern Ocean", (2004), 19 IJMCL 19 at 38.
29. Similar provisions exist in the legislation of other states. Cf. the discussion of the Juno Trader below.
30. See Churchill, note 1 above, at pp. 373-380.
31. Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), Request for Provisional Measures, Order of 8 October 2003.
32. See Permanent Court of Arbitration Press Release of 14 January 2005, available at http://www. pca-cpa.org/ENGLISH/RPC/ MASI%20press%20140105.pdf.
33. The Juno Trader case (St. Vincent and the Grenadines v. Guinea-Bissau), Judgment of 18 December 2004, available at http://www.itlos.org/ start2_en.html.
34. The exact provisions of the legislation breached do not appear to have been specified, but it seems that they related to the failure of a vessel associated with fishing to notify its entry into Guinea-Bissau's EEZ and an unauthorised transshipment of catch there.
35. Ibid., para. 63. This is a point that might have arisen in the Volga case, but did not in fact do so.
36. See paras. 3-6 of their Opinion. In his Separate Opinion, Judge Treves also stresses the importance of fairness and due process, and the relevance of these norms to determining whether the obligation of prompt release has been complied with and the reasonableness of any bond.
37. Para. 10 of their Opinion.
38. This does not mean that St. Vincent would have been without a remedy. If the dispute could not have been settled by consensual means between the parties, St. Vincent could have invoked the ordinary dispute settlement provisions of section 2 of Part XV and applied for an order of provisional measures for the release of the vessel.
39. The Camouco case (Panama v France), Judgment of 7 February 2000, (2000) 39 ILM 666.
40. The Saiga case (St. Vincent and the Grenadines), Judgment of 4 December 1997, 37 (1998) ILM 360.
41. Note 27 above, para. 67.
42. The Monte Confurco case (Seychelles v France), Judgment of 18 December 2000, available at http://www.itlos.org/start2_en.html, para. 76.
43. In their Joint Declaration, Judges Kolodkin, Anderson and Cot suggest that an offence is less likely to be found to be "grave" if it is not supported by evidence (see para. 2). A somewhat similar point is made by Judge Lucky in his Separate Opinion (see paras. 40-44).
44. Para. 95.
45. This was also the approach taken in the Volga case (see para. 83). In the Monte Confurco case, however, the ITLOS appeared to suggest that the circumstances surrounding the arrest and detention could be taken into account: See para. 74.
46. This was also the form that was prescribed in the Camouco, Monte Confurco and Volga cases.
47. On this issue, see further Lowe, note 1 above, pp. 561 and 565-6
48. and N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea (2005), pp. 115-117.
49. Art. 111(4) of the Rules provides that the defendant "may" put in a statement.
50. Verbatim Record of the Public Sitting in the Juno Trader case, held on 7 December 2004, ITLOS/PV.04/04, p. 14.
51. Para. 19 of Judge Chandrasekhara Rao's Separate Opinion. See also paras. 23-26 of Judge Lucky's Separate Opinion.
52. http://www.parismou.org/upload/monthly%20detentionlists/apr05.pdf, pp. 29-30.
53. Between the entry into force of the Convention and the beginning of 2004, three cases concerning the law of the sea were referred to the Court, but none of them were brought under Part XV of the Convention because one of the parties to the case was not a party to the Convention at the relevant time. Thus, Canada was not a party to the Convention in the Fisheries Jurisdiction case brought by Spain, Nicaragua was not a party at the time when it referred a maritime boundary dispute with Honduras to the Court, and Colombia was not a party when it was the subject of a similar case also brought by Nicaragua.
54. See further ICJ Press Release 2004/31 of 16 September 2004.
55. See Churchill, note 1 above, p. 372.
56. The MOX Plant case (Ireland v United Kingdom), Order No. 4 of 14 Nov. 2003: Further Suspension of Proceedings on Jurisdiction and Merits. Available at http://www.pca-cpa.org/ENGLISH/RPC/MOX/ MOX%20Order%20No4.pdf.
57. Case C-459/03, Commission v Ireland, OJ 2004 No. C7/24.
58. On the background to the dispute, see "Barbados Takes Trinidad & Tobago to Arbitration" in Boundary Bits, www.boundaries.com/bits.htm.
59. The information in this paragraph is taken from the PCA's web-site, http://www.pca-cpa.org/ENGLISH/.
60. On the background to the dispute, see T.W. Donovan, "Guyana Invokes Annex VII of the United Nations Convention on Law of the Sea Against Suriname for Disputed Maritime Boundary" at http://www.asil.org/ insights/insigh131.htm
61. "Guyana Takes Suriname to Arbitration Over Offshore Dispute" in Boundary Bits, www.boundaries.com/bits.htm
62. and Address to the Nation by His Excellency Bharrat Jagdeo, 25 February 2004, www.cgxresources.com/press% 20releases/040225.htm.
63. The information in this paragraph is taken from the PCA's web-site, http://www.pca-cpa.org/ENGLISH/.
64. A similar provision relating specifically to ITLOS is found in Art. 21 of Annex VI.
65. The other three treaties are the 1995 Agreement for the Implementation of the Provisions of the UN Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (hereafter the UN Fish Stocks Agreement), (1995) 34 ILM 1542
66. the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, (1994) 33 ILM 968
67. and the 2001 Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean, (2002) 41 ILM 257.
68. In addition, there are three other treaties of the kind referred to in Art. 288(2) that are not in force, namely the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, (1997) 36 ILM 1
69. the 2000 Framework Agreement for the Conservation of Living Marine Resources on the High Seas of the South Pacific, (2001) 45 Law of the Sea Bulletin 70
70. and the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, (2002) 41 ILM 40.
71. For details of the dispute settlement provisions of these treaties, see Churchill, note 1 above, pp. 380-382. 51 (2001) 40 ILM 278. The Convention came into force on 19 June 2004.