214
B. Qu
of the instrument and the effect of certain particular therein,
45 the dispute settlement
through negotiation in the DOC is legally binding.
11.3.2 Article 282 Relating to the Substitution
of the Procedures and Compulsory Procedures
Article 282 of UNCLOS provides that “If the States Parties which are parties to a
dispute concerning the interpretation or application of this Convention have agreed,
through a general, regional or bilateral agreement or otherwise, that such dispute
shall, at the request of any party to the dispute, be submitted to a procedure that entails
a binding decision, that procedure shall apply in lieu of the procedures provided for
in this Part, unless the parties to the dispute otherwise agree.”
According to this provision, if the States Parties to a dispute have already agreed
to settle a dispute concerning the interpretation or application of UNCLOS through
compulsory procedure entailing a binding decision, such procedures shall supersede
the dispute settlement mechanism provided for in UNCLOS. Such kinds of agreements include general, regional or bilateral agreement or otherwise. The core element
of article 282 is that the parties to a dispute have agreed to resolve the dispute through
a procedure leading to a binding decision.
46 It means that the agreement between the
parties must be concerning a procedure that entails a binding decision, not mediation
or conciliation that determinates in a non-binding report.
47
Therefore, in cases where article 282 is satisfied, one party shall submit, at the
request of the other party, to the agreed procedure which entails a binding decision,
the dispute settlement mechanism provided for in UNCLOS shall no longer apply.
A typical case is the case of “Romania v. Ukraine”, in which the dispute parties are
parties to UNCLOS and the parties have agreed on the maritime delimitation dispute
that if the dispute cannot be resolved by negotiation, either party may request to
submit the dispute to ICJ.
48
The phrase “unless the parties to the dispute otherwise agree” in article 282 once
again reflects UNCLOS’s full guarantee of the maximum freedom of choice in the
settlement of disputes. Therefore, article 281 shall exclude the application of article
45 See Chinese Society of International Law (2018, paras. 275–328); “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea
Arbitration Initiated by the Republic of the Philippines”, paras. 35–39, https://www.fmprc.gov.
cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_665262/t1217147.shtml, visited on 29
May 2020; Chinese Society of International Law (2016, pp. 79–86).
46 See Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea, New York:
Cambridge University Press, 2005, p. 43.
47 See Myron H. Nordquist (Editor-in-Chief), Shabtai Rosenne and Louis B. Sohn (Volume Editors),
United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. V, Dordrecht: Martinus
Nijhoff Publishers, 1989, p. 27.
48 See Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009,
p. 71.
B. Qu
of the instrument and the effect of certain particular therein,
45 the dispute settlement
through negotiation in the DOC is legally binding.
11.3.2 Article 282 Relating to the Substitution
of the Procedures and Compulsory Procedures
Article 282 of UNCLOS provides that “If the States Parties which are parties to a
dispute concerning the interpretation or application of this Convention have agreed,
through a general, regional or bilateral agreement or otherwise, that such dispute
shall, at the request of any party to the dispute, be submitted to a procedure that entails
a binding decision, that procedure shall apply in lieu of the procedures provided for
in this Part, unless the parties to the dispute otherwise agree.”
According to this provision, if the States Parties to a dispute have already agreed
to settle a dispute concerning the interpretation or application of UNCLOS through
compulsory procedure entailing a binding decision, such procedures shall supersede
the dispute settlement mechanism provided for in UNCLOS. Such kinds of agreements include general, regional or bilateral agreement or otherwise. The core element
of article 282 is that the parties to a dispute have agreed to resolve the dispute through
a procedure leading to a binding decision.
46 It means that the agreement between the
parties must be concerning a procedure that entails a binding decision, not mediation
or conciliation that determinates in a non-binding report.
47
Therefore, in cases where article 282 is satisfied, one party shall submit, at the
request of the other party, to the agreed procedure which entails a binding decision,
the dispute settlement mechanism provided for in UNCLOS shall no longer apply.
A typical case is the case of “Romania v. Ukraine”, in which the dispute parties are
parties to UNCLOS and the parties have agreed on the maritime delimitation dispute
that if the dispute cannot be resolved by negotiation, either party may request to
submit the dispute to ICJ.
48
The phrase “unless the parties to the dispute otherwise agree” in article 282 once
again reflects UNCLOS’s full guarantee of the maximum freedom of choice in the
settlement of disputes. Therefore, article 281 shall exclude the application of article
45 See Chinese Society of International Law (2018, paras. 275–328); “Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea
Arbitration Initiated by the Republic of the Philippines”, paras. 35–39, https://www.fmprc.gov.
cn/mfa_eng/wjb_663304/zzjg_663340/tyfls_665260/tfsxw_665262/t1217147.shtml, visited on 29
May 2020; Chinese Society of International Law (2016, pp. 79–86).
46 See Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea, New York:
Cambridge University Press, 2005, p. 43.
47 See Myron H. Nordquist (Editor-in-Chief), Shabtai Rosenne and Louis B. Sohn (Volume Editors),
United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. V, Dordrecht: Martinus
Nijhoff Publishers, 1989, p. 27.
48 See Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009,
p. 71.