236
D. Tamada
UNCLOS, for the following reasons. First, Article 16(1) and the first clause
of Article 16(2) require the consent of all parties to the dispute to recourse to
any means of dispute settlement. Second, the second clause of Article 16(2)
expresses an obligation to continue to seek resolution of the dispute through the
means listed under Article 16(1). Consequently, the tribunal concluded:
That express obligation equally imports […] that the intent of Article 16 is to remove
proceedings under that Article from the reach of the compulsory procedures of Sect. 2
of Part XV of UNCLOS, that is, to exclude the application to a specific dispute of
any procedure of dispute resolution that is not accepted by all parties to the dispute
(emphasis added). 78
For the foregoing reasons, the tribunal concluded that Article 16 of CCSBT
‘excludes any further procedure’ within the contemplation of Article 281(1)
of UNCLOS.
79 This means that condition (b) of Article 281(1) had not been
satisfied in this case.
(5) Additional considerations
Subsequently, the tribunal made remarks on two additional considerations in
support of the above conclusion. First, the tribunal stated that, due to limitations (Article 297) and optional exceptions (Article 298), UNCLOS ‘falls significantly short of establishing a truly comprehensive regime of compulsory jurisdiction entailing binding decisions’.
80 As a result, States Parties of UNCLOS
are permitted by Article 281(1) to confine the applicability of compulsory procedures of section 2 to cases ‘where all parties to the dispute have agreed upon
submission of their dispute to such compulsory procedure’.
Second, a significant number of maritime treaties, including the CCSBT, which
entered into after the adoption of UNCLOS, exclude unilateral reference of a
dispute to compulsory adjudication or arbitral procedures, with varying degrees
of explicitness. This treaty practice is compatible with the tribunal’s conclusion
that State Parties to UNCLOS may, by agreement, preclude subjection of their
disputes to section 2 procedures in accordance with Article 281(1).
81
(6) Operative provisions
In the operative part of the award, the Annex VII tribunal concluded as follows:
By vote of 4 to 1,
1. Decides that it is without jurisdiction to rule on the merits of the dispute; and,
Unanimously,
2. Decides, in accordance with Article 290(5) of the United Nations Convention on
the Law of the Sea, that provisional measures in force by Order of the International
Tribunal for the Law of the Sea prescribed on August 27, 1999 are revoked from
the day of the signature of this Award.
78 Award of 4 August 2000, para. 57.
79 Award of 4 August 2000, para. 59.
80 Award of 4 August 2000, para. 62.
81 Award of 4 August 2000, para. 63.
D. Tamada
UNCLOS, for the following reasons. First, Article 16(1) and the first clause
of Article 16(2) require the consent of all parties to the dispute to recourse to
any means of dispute settlement. Second, the second clause of Article 16(2)
expresses an obligation to continue to seek resolution of the dispute through the
means listed under Article 16(1). Consequently, the tribunal concluded:
That express obligation equally imports […] that the intent of Article 16 is to remove
proceedings under that Article from the reach of the compulsory procedures of Sect. 2
of Part XV of UNCLOS, that is, to exclude the application to a specific dispute of
any procedure of dispute resolution that is not accepted by all parties to the dispute
(emphasis added). 78
For the foregoing reasons, the tribunal concluded that Article 16 of CCSBT
‘excludes any further procedure’ within the contemplation of Article 281(1)
of UNCLOS.
79 This means that condition (b) of Article 281(1) had not been
satisfied in this case.
(5) Additional considerations
Subsequently, the tribunal made remarks on two additional considerations in
support of the above conclusion. First, the tribunal stated that, due to limitations (Article 297) and optional exceptions (Article 298), UNCLOS ‘falls significantly short of establishing a truly comprehensive regime of compulsory jurisdiction entailing binding decisions’.
80 As a result, States Parties of UNCLOS
are permitted by Article 281(1) to confine the applicability of compulsory procedures of section 2 to cases ‘where all parties to the dispute have agreed upon
submission of their dispute to such compulsory procedure’.
Second, a significant number of maritime treaties, including the CCSBT, which
entered into after the adoption of UNCLOS, exclude unilateral reference of a
dispute to compulsory adjudication or arbitral procedures, with varying degrees
of explicitness. This treaty practice is compatible with the tribunal’s conclusion
that State Parties to UNCLOS may, by agreement, preclude subjection of their
disputes to section 2 procedures in accordance with Article 281(1).
81
(6) Operative provisions
In the operative part of the award, the Annex VII tribunal concluded as follows:
By vote of 4 to 1,
1. Decides that it is without jurisdiction to rule on the merits of the dispute; and,
Unanimously,
2. Decides, in accordance with Article 290(5) of the United Nations Convention on
the Law of the Sea, that provisional measures in force by Order of the International
Tribunal for the Law of the Sea prescribed on August 27, 1999 are revoked from
the day of the signature of this Award.
78 Award of 4 August 2000, para. 57.
79 Award of 4 August 2000, para. 59.
80 Award of 4 August 2000, para. 62.
81 Award of 4 August 2000, para. 63.