12 UNCLOS Dispute Settlement Mechanism: Japan’s Experience and Contribution
235
the former.
72 The tribunal concluded consequently that ‘the dispute […] while
centered in the 1993 Convention [CCSBT], also arises under the UNCLOS’
(emphasis added).
73
(3) Article 16 of CCSBT
Article 16 of CCSBT—the most important clause in relation to the procedural
requirements under UNCLOS-DSM—reads as follows:
1. If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among
themselves with a view to having the dispute resolved by negotiation, inquiry,
mediation, conciliation, arbitration, judicial settlement or other peaceful means of
their own choice.
2. Any dispute of this character not so resolved shall, with the consent in each case
of all parties to the dispute, be referred for settlement to the International Court
of Justice or to arbitration; but failure to reach agreement on reference to the
International Court of Justice or to arbitration shall not absolve parties to the
dispute from the responsibility of continuing to seek to resolve it by any of the
various peaceful means referred to in paragraph 1 above.
3. […] (emphasis added).
(4) Procedural conditions of Article 281(1)
The tribunal turned to the procedural conditions under UNCLOS, Part XV,
especially 281(1), which requires two conditions to be fulfilled, namely, that
(a) no settlement has been reached by recourse to such means, and (b) no prior
agreement between the parties excludes any further procedure.
With regard to condition (a), the tribunal accepts that Article 16 of CCSBT,
referring to a list of various procedures of peaceful settlement, constitutes ‘an
agreement by the Parties to seek settlement of the instant dispute by peaceful
means of their own choice’
74 and thus ‘falls within the terms and intent of
Article 281(1), as well as Article 280’.
75 Taking into account the fact that the
parties have had recourse to means set out in Article 16 of CCSBT, including
negotiations, and that no settlement has been reached by this means, the tribunal
admitted the fulfilment of condition (a) of Article 281(1).
76 Regarding condition
(b), the tribunal admits, on the one hand, that Article 16 of CCSBT does not
expressly exclude the applicability of any procedure, including the procedures
of Sect. 2 of Part XV of UNCLOS.
77 On the other hand, the tribunal concluded
that Article 16 of CCSBT excludes the applicability of Sect. 2 of Part XV of
72 Award of 4 August 2000, para. 52.
73 Award of 4 August 2000, para. 52.
74 Award of 4 August 2000, para. 54.
75 Award of 4 August 2000, para. 55.
76 Article 16(2) of the CCSBT requires parties continuously seek peaceful dispute settlement, even
in the case of failure to reach agreement on reference of a dispute to the ICJ. The tribunal, however,
did not find that this provision requires parties to ‘negotiate indefinitely’. Award of 4 August 2000,
para. 55.
77 Award of 4 August 2000, para. 56.
235
the former.
72 The tribunal concluded consequently that ‘the dispute […] while
centered in the 1993 Convention [CCSBT], also arises under the UNCLOS’
(emphasis added).
73
(3) Article 16 of CCSBT
Article 16 of CCSBT—the most important clause in relation to the procedural
requirements under UNCLOS-DSM—reads as follows:
1. If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among
themselves with a view to having the dispute resolved by negotiation, inquiry,
mediation, conciliation, arbitration, judicial settlement or other peaceful means of
their own choice.
2. Any dispute of this character not so resolved shall, with the consent in each case
of all parties to the dispute, be referred for settlement to the International Court
of Justice or to arbitration; but failure to reach agreement on reference to the
International Court of Justice or to arbitration shall not absolve parties to the
dispute from the responsibility of continuing to seek to resolve it by any of the
various peaceful means referred to in paragraph 1 above.
3. […] (emphasis added).
(4) Procedural conditions of Article 281(1)
The tribunal turned to the procedural conditions under UNCLOS, Part XV,
especially 281(1), which requires two conditions to be fulfilled, namely, that
(a) no settlement has been reached by recourse to such means, and (b) no prior
agreement between the parties excludes any further procedure.
With regard to condition (a), the tribunal accepts that Article 16 of CCSBT,
referring to a list of various procedures of peaceful settlement, constitutes ‘an
agreement by the Parties to seek settlement of the instant dispute by peaceful
means of their own choice’
74 and thus ‘falls within the terms and intent of
Article 281(1), as well as Article 280’.
75 Taking into account the fact that the
parties have had recourse to means set out in Article 16 of CCSBT, including
negotiations, and that no settlement has been reached by this means, the tribunal
admitted the fulfilment of condition (a) of Article 281(1).
76 Regarding condition
(b), the tribunal admits, on the one hand, that Article 16 of CCSBT does not
expressly exclude the applicability of any procedure, including the procedures
of Sect. 2 of Part XV of UNCLOS.
77 On the other hand, the tribunal concluded
that Article 16 of CCSBT excludes the applicability of Sect. 2 of Part XV of
72 Award of 4 August 2000, para. 52.
73 Award of 4 August 2000, para. 52.
74 Award of 4 August 2000, para. 54.
75 Award of 4 August 2000, para. 55.
76 Article 16(2) of the CCSBT requires parties continuously seek peaceful dispute settlement, even
in the case of failure to reach agreement on reference of a dispute to the ICJ. The tribunal, however,
did not find that this provision requires parties to ‘negotiate indefinitely’. Award of 4 August 2000,
para. 55.
77 Award of 4 August 2000, para. 56.