Arbitration tribunals under the Annex VII to the UN Convention on the Law of the Sea 1982

Pursuant to Article 287(3) of UNCLOS, arbitration under Annex VII is the default means of dispute settlement if a State has not expressed any preference with respect to the means of dispute resolution available under Article 287(1) of UNCLOS (and has not expressed any reservation or optional exceptions pursuant to Article 298 of UNCLOS). Likewise, pursuant to Article 287(5) of UNCLOS, if the parties have not accepted the same procedure for the settlement of the dispute, arbitration under Annex VII is the default means of dispute settlement (again subject to same exceptions or reservations pursuant to Article 298).

Since the 1982 Convention came into force in 1994, nine cases have been arbitrated under Annex VII of UNCLOS. The PCA is acting, or has acted, as registry in eight of those cases. The cases arbitrated under the auspices of the PCA are the following:

· Philippines v. China, which was instituted in January 2013 and is still pending;

· Argentina v. Ghana, (the "ARA Libertad Arbitration"), which was instituted in October 2012 and is still pending;

· Mauritius v. United Kingdom, which was instituted in December 2010 and is still pending;

· Bangladesh v. India, which was instituted in October 2009 and is still pending;

· Barbados v. Trinidad and Tobago, which was instituted in February 2004 and decided by a final award rendered on April 11, 2006;

· Guyana v. Suriname, which was instituted in February 2004 and decided by a final award rendered on September 17, 2007;

· Malaysia v. Singapore, which was instituted in July 2003 and terminated by an award on agreed terms rendered on September 1, 2005; and

· Ireland v. United Kingdom (“MOX Plant Case”), which was instituted in November 2001 and terminated through a tribunal order issued on June 6, 2008.

Having administered most of the UNCLOS Annex VII arbitrations to date, the PCA has gained unique experience in dealing with, among other things, diverse organizational, procedural, and substantive issues that may arise in such arbitrations.

Through an exchange of letters between the Secretary-General of the PCA and the Registrar of ITLOS, the PCA and ITLOS have agreed to cooperate with respect to relevant legal and administrative matters. Under the arrangement, the PCA and ITLOS have undertaken to exchange documents, particularly those connected with disputes under Annex VII of UNCLOS, and to explore cooperation in other areas of concern.

The flexible formula accommodates the positions of the different groups during theConference, and allows the Parties to choose one or more of the mechanisms enumeratedabove by means of a written declaration to be deposited with the Secretary General of theUnited Nations. Thus, Parties can make their choice at the time of signing, ratifying, acceding or any othermoment thereon. Not making a choice actually entails making a choice for Arbitrationunder Annex VII of the Convention, as paragraph 3 of the Article under discussion presumesso when no declaration has been made. The same “direction” is followed when Parties to adispute have divergent choices. A very special case is that of an InternationalOrganization Party to the Convention and party to a dispute jointly or in the same interestwith its member states, whereby the former has to follow the choice of the latter, with theexception of the case where the choice of the State is for the ICJ alone, and whereby for thereason explained below, both are deem to have chosen Arbitration under Annex VII, unlessotherwise agreed by the parties to the dispute (and presumably always excluding the ICJ asa possibility, following Article 34 paragraph 1 of the Statute of the Court).

Arbitration under Annex VII arises as the default mechanism and currently, taking intoaccount both declarations choosing it expressly and the lack-of-declaration device, coversmost (by far) of the possible disputes falling into binding-decision mechanisms.Paragraphs 6) and 7) of Article 287 require special mention as they appear as “corrections”to the system of declarations of acceptance of compulsory jurisdiction embedded in theStatute of the ICJ. Paragraph 6) indicates that a revocation of a declaration as perparagraph 1 will enter into effect until three months after its effective deposit (avoidingcircumstances as the

Nicaragua Case). Paragraph 7), on the other hand, clarifies that theexpiry, revocation or substitution of a declaration by a new one, does not affectproceedings pending before any of the mechanisms (avoiding claims as the one made byGuatemala in theNottebohm Case).

Date: 2015-12-18; view: 808