commonly the assertions concerning international law are made by states. Despite
the recognised sovereign equality of states under international law, international
politics allows consideration of diverse differences between states, including their
political, economic, military power. This paradigm prompts the following questions:
Is there a way to explain the positioning of superpowers in any particular dispute
settlement mechanism? How different is their position to other actors in the dispute?
Explaining the legal and political factors becomes more challenging the more
legalised the dispute settlement process becomes. In this process, the legal aspects
of a dispute may overshadow the political dimensions. One highly legalised dispute
settlement mechanism is the compulsory procedures under UNCLOS.
1 The purpose
of this chapter is to consider how we might understand the role of superpowers and
other actors in the operation of compulsory arbitration or adjudication under
UNCLOS.
The compulsory dispute settlement procedures under UNCLOS entail both flexibility and complexity. Both elements were necessary to devise an acceptable dispute
settlement regime to address disputes arising from what is often described as ‘the
constitution of the oceans’. In Section 1 of Part XV of UNCLOS, there is acknowledgement that disputes may be resolved through a variety of peaceful means,
2 and in
some limited instances, the dispute settlement procedures available under other
agreements will prevail over those set out in UNCLOS.
3 If a state party to UNCLOS
wishes to refer a dispute to compulsory procedures entailing binding procedures
under Section 2 of Part XV, it may choose between the dispute being heard at the
International Court of Justice (ICJ), the International Tribunal for the Law of the Sea
(ITLOS), ad hoc arbitration under Annex VII of UNCLOS, or special arbitration
under Annex VIII of UNCLOS.
4 If a state has not selected a preferred means of
dispute settlement as between these options, or states differ in their preferred forum,
ad hoc arbitration under Annex VII is the default procedure available unless the
parties agree otherwise.
5 The dispute must be one that concerns the interpretation or
application of UNCLOS,
6 but a court or tribunal may refer to other rules
of international law as part of the applicable law in any such dispute.
7 Section 3 of
Part XV excludes a limited number of disputes from the subject matter jurisdiction of
a court or tribunal constituted under UNCLOS.
8
1 These procedures are contained in Part XV of UNCLOS.
2 Art. 279 and Art. 280, UNCLOS.
3 As set forth in Arts 281 and 282 of UNCLOS.
4 Art. 287(1), UNCLOS.
5 Art. 287(5), UNCLOS.
6 Art. 286, UNCLOS.
7 Art. 293(1), UNCLOS.
8 Arts 297 and 298, UNCLOS. These exceptions include certain fisheries and marine scientific
research disputes in the EEZ; maritime boundary delimitation; military activities and historic bay
disputes.
240
N. Klein
the recognised sovereign equality of states under international law, international
politics allows consideration of diverse differences between states, including their
political, economic, military power. This paradigm prompts the following questions:
Is there a way to explain the positioning of superpowers in any particular dispute
settlement mechanism? How different is their position to other actors in the dispute?
Explaining the legal and political factors becomes more challenging the more
legalised the dispute settlement process becomes. In this process, the legal aspects
of a dispute may overshadow the political dimensions. One highly legalised dispute
settlement mechanism is the compulsory procedures under UNCLOS.
1 The purpose
of this chapter is to consider how we might understand the role of superpowers and
other actors in the operation of compulsory arbitration or adjudication under
UNCLOS.
The compulsory dispute settlement procedures under UNCLOS entail both flexibility and complexity. Both elements were necessary to devise an acceptable dispute
settlement regime to address disputes arising from what is often described as ‘the
constitution of the oceans’. In Section 1 of Part XV of UNCLOS, there is acknowledgement that disputes may be resolved through a variety of peaceful means,
2 and in
some limited instances, the dispute settlement procedures available under other
agreements will prevail over those set out in UNCLOS.
3 If a state party to UNCLOS
wishes to refer a dispute to compulsory procedures entailing binding procedures
under Section 2 of Part XV, it may choose between the dispute being heard at the
International Court of Justice (ICJ), the International Tribunal for the Law of the Sea
(ITLOS), ad hoc arbitration under Annex VII of UNCLOS, or special arbitration
under Annex VIII of UNCLOS.
4 If a state has not selected a preferred means of
dispute settlement as between these options, or states differ in their preferred forum,
ad hoc arbitration under Annex VII is the default procedure available unless the
parties agree otherwise.
5 The dispute must be one that concerns the interpretation or
application of UNCLOS,
6 but a court or tribunal may refer to other rules
of international law as part of the applicable law in any such dispute.
7 Section 3 of
Part XV excludes a limited number of disputes from the subject matter jurisdiction of
a court or tribunal constituted under UNCLOS.
8
1 These procedures are contained in Part XV of UNCLOS.
2 Art. 279 and Art. 280, UNCLOS.
3 As set forth in Arts 281 and 282 of UNCLOS.
4 Art. 287(1), UNCLOS.
5 Art. 287(5), UNCLOS.
6 Art. 286, UNCLOS.
7 Art. 293(1), UNCLOS.
8 Arts 297 and 298, UNCLOS. These exceptions include certain fisheries and marine scientific
research disputes in the EEZ; maritime boundary delimitation; military activities and historic bay
disputes.
240
N. Klein