International Laws of The Sea, The high seas, the sea-bed and dispute resolution

Dispute Settlement Mechanism in the Law of the Sea

April 28, 2022July 25, 2022By Tan Pui Yen
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Dispute settlement mechanism in the law of the sea

1. Background to the dispute settlement mechanism

Traditionally, provisions for the settlement of disputes arising out of an international treaty are contained in a separate optional protocol, giving parties to the treaty the opportunity to choose to be bound by those provisions by accepting it, or not to be bound by not accepting it.

This choice does not often affect their participation in the main treaty. But the 1982 Convention on the Law of the Sea is different in that the mechanism for the settlement of disputes is incorporated into the main Convention, making it obligatory for parties to the Convention to go through the settlement procedure in the case of a dispute with another party. In other words, if a state wishes to participate in the 1982 Convention it must ipso facto accept the dispute settlement mechanism provided for in the Convention, albeit that the Convention itself offers a number of options for the settlement of such disputes. 

During the negotiation of the 1982 Convention at UNCLOS III, many countries were opposed in principle to binding settlements to be decided by third-party judges or arbitrators, insisting that issues could best be resolved by direct negotiations between states without requiring them to bring in outsiders. However, other states pointed to a history of failed negotiations and long-standing disputes and argued that the only sure chance for peaceful settlement lay in the willingness of states to bind themselves in advance to accept the decisions of judicial bodies. Consequently, what emerged from the negotiations was a novel mechanism that combined both of these approaches. This novelty in creating a compulsory dispute settlement mechanism has been regarded by many as a landmark in international law.

2. Compromise

The 1982 Convention gives disputing states a choice of four procedures if direct talks between them fail:

a) submission of the dispute to the International Tribunal for the Law of the Sea (ITLOS)

b) adjudication by the International Court of Justice

c) submission to binding international arbitration procedures

d) submission to special arbitration tribunals with expertise in specific types of disputes.

All these procedures involve binding third-party settlements in which a party other than the disputing parties hands down a decision that the parties are committed in advance to respect.

3. Exceptions

The 1982 Convention makes an exception to these provisions for sensitive cases involving national sovereignty. In such cases, the parties are obliged to submit their dispute to a conciliation commission rather than following any of the four methods outlined above. What is more, the disputing parties will not be bound by any decision or finding of the commission. The Convention also allows for the so-called ‘optional exceptions’ under which a state can specify at the time of signing, ratifying or acceding to the Convention, or at any later time, that it chooses not to be bound by one or more of the mandatory procedures if they involve existing maritime boundary disputes, military activities or issues under discussion in the United Nations Security Council.

There is also a general exception contained in Article 280 of the 1982 Convention according to which nothing in the Convention impairs the right of any states parties to agree at any time to settle a dispute between them concerning the interpretation or application of the Convention by any peaceful means of their own choice. This provision has proved highly significant in at least two cases, Southern Bluefin Tuna and MOX Plant, where parties have insisted on a regional dispute settlement mechanism superseding that established by the Convention.

Similarly, if states parties to the 1982 Convention are parties to a dispute concerning the interpretation or application of the Convention and agree to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in the Convention apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure. 

Another provision concerns the existence of other mechanisms applicable to the dispute. If the states parties to the Convention that are parties to a dispute concerning the interpretation or application of the 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 the Convention, unless the parties to the dispute agree otherwise. 

The choice of states to resort to conciliation has also been preserved in the 1982 Convention for certain cases. A state party to the Convention that is a party to a dispute concerning the interpretation or application of the Convention may invite the other party or parties to submit the dispute to conciliation. If the invitation is accepted and the parties agree upon the conciliation procedure to be applied, any party may submit the dispute to that procedure. If the invitation is not accepted or the parties do not agree upon the procedure, the conciliation proceedings will be deemed to be terminated.

4. Mechanism

According to Article 286 of the 1982 Convention, where no settlement has been reached by recourse to other mechanisms, any dispute concerning the interpretation or application of the Convention will be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under that section. Article 287 outlines the options available to states party to the Convention:

 
Article 287

Choice of procedure

1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:

a. the International Tribunal for the Law of the Sea established in accordance with Annex VI;

b. the International Court of Justice

c. an arbitral tribunal constituted in accordance with Annex VII;

d. a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.

2. A declaration made under paragraph 1 shall not affect or be affected by the obligation of a State Party to accept the jurisdiction of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea to the extent and in the manner provided for in Part XI, section 5.

3. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII.

4. If the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree.

5. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree.

6. A declaration made under paragraph 1 shall remain in force until three months after notice of revocation has been deposited with the Secretary-General of the United Nations.

7. A new declaration, a notice of revocation or the expiry of a declaration does not in any way affect proceedings pending before a court or tribunal having jurisdiction under this article, unless the parties otherwise agree.

8. Declarations and notices referred to in this article shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the States Parties.

Article 288

Jurisdiction

1. A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.

2. A court or tribunal referred to in article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement.

3. The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea established in accordance with Annex VI, and any other chamber or arbitral tribunal referred to in Part XI, section 5, shall have jurisdiction in any matter which is submitted to it in accordance therewith.

4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.

5. Applicable law

The law that a court or tribunal having jurisdiction under the Convention should apply is the provisions of the Convention itself and other rules of international law not incompatible with the Convention. 

The phrase ‘other rules of international law’ should be understood to refer to the sources of international law listed in Article 38 of the Statute of the International Court of Justice. This article reads as follows:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

a. international custom, as evidence of a general practice accepted as law;

b. the general principles of law recognized by civilized nations;

c. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

6. Exhaustion of local remedies

According to Article 295 of the 1982 Convention, any dispute between states parties concerning the interpretation or application of the Convention may be submitted to the procedures provided for in that section only after local remedies have been exhausted, where this is required by international law.

7. Finality and binding force of decisions

Any decision rendered by a court or tribunal having jurisdiction under the 1982 Convention will be final and shall be complied with by all the parties to the dispute. Any such decision will have no binding force except between the parties and in respect of that particular dispute.

8. International Tribunal for the Law of the Sea

One of the significant achievements of UNCLOS III was the creation of an International Tribunal for the Law of the Sea (ITLOS), whose seat is in Hamburg in Germany. The Tribunal is composed of 21 independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognised competence in the field of the law of the sea. The members of the Tribunal are elected for nine years and may be re-elected.

The Statute of the Tribunal establishes a Seabed Disputes Chamber to consider cases concerning the deep seabed provisions of Part XI of the Convention. The Tribunal may form such chambers, composed of three or more of its elected members, as it considers necessary for dealing with particular categories of disputes.

The Tribunal is open to all states parties to the 1982 Convention. It has jurisdiction in all disputes and all applications submitted to it in accordance with the Convention and all matters specifically provided for in any other agreement that confers jurisdiction on the Tribunal. 

Disputes are submitted to the Tribunal, as the case may be, either by notification of a special agreement or by written application addressed to the Registrar, who should in turn forthwith notify the special agreement or the application to all concerned. The Registrar should also notify all states parties. All questions are to be decided by a majority of the members of the Tribunal who are present.

9. Provisional measures

Article 290 of the 1982 Convention empowers a court or tribunal which considers that prima facie it has jurisdiction on the matter referred to it by states party to the Convention, including the International Tribunal for the Law of the Sea, to prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision. Such measures may be modified or revoked as soon as the circumstances justifying them have changed or ceased to exist. 

This article also allows the International Tribunal for the Law of the Sea to prescribe provisional measures in other situations. Pending the constitution of an arbitral tribunal to which a dispute is being submitted under the 1982 Convention, any court or tribunal agreed upon by the parties, including the Tribunal, may prescribe, modify or revoke provisional measures in accordance with this article, if it considers (a) that prima facie the tribunal which is to be constituted would have jurisdiction and (b) that the urgency of the situation so requires. The Tribunal may also prescribe, modify or revoke such provisional measures if, within two weeks of the date of the request for provisional measures, the parties have failed to agree on a court or tribunal.

Several of the cases that the Tribunal has dealt with to date have concerned applications for provisional measures, notably the Blue Fin Tuna cases and the Land Reclamation case between Malaysia and Singapore.

10. Seabed Disputes Chamber

Disputes over seabed activities are to be arbitrated by an 11-member Seabed Disputes Chamber within the Tribunal. The Chamber has compulsory jurisdiction over all conflicts concerning the deep seabed provisions of Part XI of the 1982 Convention. Article 187 of the Convention contains the following provision with regard to the jurisdiction of the Chamber:

Article 187

Jurisdiction of the Seabed Disputes Chamber

The Seabed Disputes Chamber shall have jurisdiction under this Part and the Annexes relating thereto in disputes with respect to activities in the Area falling within the following categories:

a. disputes between States Parties concerning the interpretation or application of this Part and the Annexes relating thereto;

b. disputes between a State Party and the Authority concerning:

i. acts or omissions of the Authority or of a State Party alleged to be in violation of this Part or the Annexes relating thereto or of rules, regulations and procedures of the Authority adopted in accordance therewith; or

ii. acts of the Authority alleged to be in excess of jurisdiction or a misuse of power;

c. disputes between parties to a contract, being States Parties, the Authority or the Enterprise, state enterprises and natural or juridical persons referred to in article 153, paragraph 2(b), concerning:

iii. the interpretation or application of a relevant contract or a plan of work; or

iv. acts or omissions of a party to the contract relating to activities in the Areaand directed to the other party or directly affecting its legitimate interests;

e. disputes between the Authority and a prospective contractor who has been sponsored by a State as provided in article 153, paragraph 2(b), and has duly fulfilled the conditions referred to in Annex III, article 4, paragraph 6, and article 13, paragraph 2, concerning the refusal of a contract or a legal issue arising in the negotiation of the contract;

f. disputes between the Authority and a State Party, a state enterprise or a natural or juridical person sponsored by a State Party as provided for in article 153, paragraph 2(b), where it is alleged that the Authority has incurred liability as provided in Annex III, article 22;

g. any other disputes for which the jurisdiction of the Chamber is specifically provided in this Convention.

It is particularly interesting to note that the Chamber can entertain cases involving not only states and the International Seabed Authority (an intergovernmental organisation), but also companies or individuals with seabed mining contracts. In this respect the jurisdiction of the Tribunal is different from that of the International Court of Justice, before which only sovereign states can appear as disputing parties. The Seabed Disputes Chamber is entitled to give Advisory Opinions at the request of the Assembly or the Council of the International Seabed Authority on legal questions arising within the scope of their activities. The International Tribunal for the Law of the Sea itself is a relatively new tribunal.

11. Reorganisation of the Tribunal

In 2007, the Tribunal decided to form a standing special chamber to deal with maritime delimitation disputes pursuant to Article 15, paragraph 1 of the Tribunal’s Statute. The Chamber, known as the Chamber for Maritime Delimitation Disputes, is available to deal with maritime delimitation disputes which the parties agree to submit to it concerning the interpretation or application of any provision of the 1982 Convention on the Law of the Sea, or any other agreement which confers jurisdiction on the Tribunal.

Further, on 2 October 2008 the Tribunal reconstituted its chambers. It now has the following chambers: 

a) Seabed Disputes Chamber

b) Chamber of Summary Procedure

c) Chamber for Fisheries Disputes

d) Chamber for Marine Environment Disputes

e) Chamber for Maritime Delimitation Disputes.

i. Mauritius takes Chagos Islands dispute to an UNCLOS Annex VII Arbitral Tribunal

By a decision dated 1 April 2010, the UK established a ‘Marine Protected Area’ (MPA) in the ‘British Indian Ocean Territory’ to cover a 200-mile zone that it had declared around the Chagos Archipelago. Mauritius decided to go to the Tribunal in December 2010, alleging that the UK decision violates the 1982 Convention, to which Mauritius and the UK are party, and other rules of international law not incompatible with the 1982 Convention. The dispute over the MPA arises against the background of longstanding differences between Mauritius and the UK.

The UNCLOS Annex VII arbitral tribunal in this dispute came to the view that the parties’ dispute in respect of the MPA related to the preservation of the marine environment (see Chagos MPA Arbitration, Mauritius v the UK, UNCLOS Annex VII Arbitral Tribunal Award, 18 March 2015, at para.319: www.pca-cpa.org). This was despite UK objections, including:

a) the MPA was specifically established for the conservation of living resources, not environmental protection generally (para.304)

b) only disputes involving coastal state measures against marine pollution, as opposed to measures promoting ecosystem protection, triggered the tribunal’s jurisdiction (para.320)

c) Article 297(1)(c) only relates to disputes over substantive, treaty-based international rules and standards outside of UNCLOS (para.321), rather than procedural obligations, such as the general international law requirement to carry out an environmental impact assessment in advance of large scale construction projects (para.322).

In the Chagos MPA tribunal’s view, the obligation to consult with, and have regard for the rights of other states, set out in multiple provisions of the 1982 Convention, is precisely such a procedural rule, and its alleged contravention is squarely within the terms of Article 297(1)(c).

In June 2017, the UN General Assembly took a decision to ask the ICJ to provide an advisory opinion on the legal status of the Chagos Islands. It was a decision taken as a result of the request by Mauritius to refer the matter to the ICJ for its advisory opinion. The British Government reacted stating that it would be an ‘inappropriate’ use of the ICJ. 

ii. M/V ‘Louisa’ Case

On 23 December 2010 the Tribunal handed down an Order on provisional measures in the M/V ‘Louisa’ Case (Saint Vincent and the Grenadines v Kingdom of Spain). The dispute arose out of the boarding, search and detention of the Louisa, a vessel flying the flag of Saint Vincent and the Grenadines, by Spanish authorities in 2006. Saint Vincent and the Grenadines alleged that Spain had violated several articles of the 1982 Convention, including:

a) Article 73 (Enforcement of laws and regulations of the coastal State)

b) Article 87 (Freedom of the high seas)

c) Article 226 (Investigation of foreign vessels)

d) Article 227 (Non-discrimination with respect to foreign vessels)

e) Article 303 (Archaeological and historical objects found at sea). On 28 May 2013 the Tribunal held that it did not have jurisdiction to entertain the Application filed by Saint Vincent and the Grenadines.

iii. Seabed Disputes Chamber Advisory Opinion

On 1 February 2011 the Seabed Disputes Chamber delivered its first Advisory Opinion, which concerns the Responsibilities and obligations of states sponsoring persons and entities with respect to activities in the International Seabed Area. In its Advisory Opinion, the Chamber explained that states sponsoring activities in the Area are under two kinds of obligations:

The first of these is the ‘obligation to ensure compliance by sponsored contractors with the terms of the contract and the obligations set out in the Convention and related instruments’. 

This is an obligation of ‘due diligence’, requiring the sponsoring State ‘to make best possible efforts to secure compliance by the sponsored contractors’ and ‘to take measures within its legal system’, namely, laws and regulations and administrative measures. Obligations of the second kind identified by the Chamber are ‘direct obligations with which sponsoring States must comply independently of their obligation to ensure a certain conduct on the part of the sponsored contractors’. These include, among others, the obligation to assist the Authority, the obligation to apply a precautionary approach, and the obligation to apply the best environmental practices.

The Seabed Disputes Chamber addressed questions relating to the responsibility and potential liability of states that sponsor seabed mining activities while rendering its Advisory Opinion in this case. It was under the provisions in Part XI of the 1982 Convention on the Law of the Sea which provides for jurisdiction over seabed mining issues (see 50 ILM 458 (2011)).

iv. Bangladesh/Myanmar

The Tribunal rendered a major decision in the Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) – the first maritime delimitation case to have come before the Tribunal. By a letter dated 13 December 2009, the Minister for Foreign Affairs of Bangladesh notified the President of the Tribunal of declarations made under Article 287 of the 1982 Convention by Myanmar and Bangladesh on 4 November and 12 December 2009, respectively, whereby the two states accepted the jurisdiction of the Tribunal for the settlement of the dispute relating to their maritime boundary. By that same letter, the Minister for Foreign Affairs invited the Tribunal to exercise jurisdiction to settle the dispute. In the light of the parties’ agreement, as evidenced by their declarations, and of the notification made by Bangladesh, the case was entered in the List of cases of the Tribunal as Case No.16 on 14 December 2009.

The International Tribunal for the Law of the Sea rendered its judgment in the Dispute concerning delimitation of the maritime boundary between

Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) on 14 March 2012. The judgment delimited the whole of the maritime boundary between the two states in the Bay of Bengal: in the territorial sea, the exclusive economic zone, and throughout the continental shelf, and thus resolving a long-standing international dispute.

v. Bangladesh/India

In July 2014, an arbitral tribunal established under Annex VII of the 1982 Convention delivered its award in the Dispute concerning the maritime boundary between Bangladesh and India (Bangladesh v India). The tribunal delimited the maritime boundary between the territorial sea, the exclusive economic zone and the continental shelf within and beyond 200 nautical miles of the People’s Republic of Bangladesh and the Republic of India in the Bay of Bengal. The arbitral tribunal determined the terminus of the land boundary/starting point of the maritime boundary in an area where the coast is highly unstable.

vi. Order to release the Argentine frigate ARA Libertad

The International Tribunal for the Law of the Sea delivered its Order in the ‘ARA Libertad’ Case (Argentina v Ghana) on 15 December 2012. The Argentine frigate ARA Libertad had arrived in the port of Tema, near

Accra, Ghana, on 1 October 2012. However, the vessel’s departure from this port, which was scheduled for 4 October 2012, was prevented by Ghanaian authorities pursuant to a decision of the High Court of Accra. On 30 October 2012 Argentina instituted arbitration proceedings against Ghana concerning the detention of the frigate. In addition, on 14 November 2012, Argentina submitted a request to the Tribunal for the prescription of provisional measures under Article 290, paragraph 5, of the 1982 Convention on the Law of the Sea. 

vii. ‘Arctic Sunrise’ Case

A useful summary of the ‘Arctic Sunrise’ Case can be found in the January 2014 issue of ASIL Insights:

On 22 November 2013, the [Tribunal] announced its Order in The ‘Arctic Sunrise’ Case (Kingdom of the Netherlands v Russian Federation). The case focuses on the Netherlands’ request for provisional measures in relation to the Russian Federation’s arrest and continuous detention of thirty Greenpeace International (Greenpeace) crew members (the so-called Arctic 30) on board the vessel Arctic Sunrise. The ship, operated by Greenpeace, was flying the flag of the Netherlands. At the time of arrest it was within Russia’s Exclusive Economic Zone to protest against the operation of the offshore fixed oil platform Prirazlomnaya. The Arctic Sunrise was towed to the Russian port of Murmansk and was subsequently seized by the Leninsky District Court… ITLOS ordered that Arctic Sunrise and all detained persons be released and be allowed to leave the territory of the Russian Federation upon the Netherlands’ posting of a financial security in the amount of 3,600,000 euros with the competent authority of the Russian Federation.

viii. Sub-Regional Fisheries Commission request for an Advisory Opinion from the Tribunal

On 28 March 2013, the Tribunal received a request from the Sub- Regional Fisheries Commission (SRFC) to render an Advisory Opinion.

The SRFC is located in Dakar, Senegal and comprises seven member states: Cape Verde, the Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra Leone. The request for an Advisory Opinion was made by resolution pursuant to Article 33 of the 2012 Convention on the Determination of the Maritime Areas under Jurisdiction of the Member States of the Sub-Regional Fisheries Commission. 

The resolution requested an Advisory Opinion on the following four matters: 

a) What are the obligations of the flag state in cases where illegal, unreported and unregulated (IUU) fishing activities are conducted within the exclusive economic zone of third party states?

b) To what extent shall the flag state be held liable for IUU fishing activities conducted by vessels sailing under its flag?

c) Where a fishing licence is issued to a vessel within the framework of an international agreement with the flag state or with an international agency, shall the state or international agency be held liable for the violation of the fisheries legislation of the coastal state by the vessel in question?

d) What are the rights and obligations of the coastal state in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna?

12. Maritime boundary dispute between Ghana and Cote d’Ivoire

On 23 September 2017, the Special Chamber of ITLOS delivered its judgment in the Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire). It was in 2014 that Ghana and Côte d’Ivoire had agreed to submit the dispute concerning their maritime boundary to an ITLOS Special Chamber. The Special Chamber ruling largely in Ghana’s favour created a definitive single maritime boundary for the territorial sea, the exclusive economic zone and the continental shelf within and beyond 200 nautical miles.

13. Developments within the International Court of Justice

In June 2010 Australia instituted proceedings before the International Court of Justice (ICJ) against the government of Japan, alleging that Japan’s continued pursuit of a large-scale programme of whaling was in breach of obligations assumed by Japan under the International Convention for the Regulation of Whaling.

i.Territorial and maritime dispute (Nicaragua v Colombia)

In a landmark judgment of 19 November 2012, the ICJ unanimously ruled that Colombia, not Nicaragua, has sovereignty over a number of contested islands and maritime features forming part of the San Andrés Archipelago in the western Caribbean. In doing so, the Court also unanimously fixed the course of the single maritime boundary between the two countries largely based on a simplified weighted line favouring Nicaragua.

In September 2013, Nicaragua instituted proceedings against Colombia asking the ICJ to: definitively determine the question of the delimitation of the continental shelf between Nicaragua and Colombia in the area beyond 200 nautical miles from the Nicaraguan coast.

This was with regard to a: dispute [which] concerns the delimitation of the boundaries between, on the one hand, the continental shelf of Nicaragua beyond the 200-nautical-mile limit from the baselines from which the breadth of the territorial sea of Nicaragua is measured, and on the other hand, the continental shelf of Colombia.

In its Application, Nicaragua requests the ICJ to determine: [t]he precise course of the maritime boundary between Nicaragua and Colombia in the areas of the continental shelf which appertain to each of them beyond the boundaries determined by the Court in its Judgment of 19 November 2012 [Territorial and maritime dispute (Nicaragua v Colombia)]. 

As the basis for the jurisdiction of the Court, Nicaragua invokes Article XXXI of the American Treaty on Pacific Settlement (officially known as the Pact of Bogotá), signed on 30 April 1948, to which both Nicaragua and Colombia are parties.

14. The disputes in the South China Sea

A major case concerning the disputes in the South China Sea received much publicity in 2016. The disputes in the South China Sea, concerning the sovereignty over the islands and other maritime features therein and the legal status of the waters around them, have raised the political temperature in the region. The states in the region have made overlapping territorial or sovereignty claims over the islands and other maritime features, as well as competing claims in the maritime zones such as the exclusive economic zone and continental shelf in the South China Sea, and they have been increasingly assertive in establishing their claims. Consequently, there has been an escalation in tension between the states in the region.

As nearly 30 per cent of world trade passes through the waters of the South China Sea, other world powers are deeply concerned about the rise in tension in the region and its impact on the future of freedom of navigation through the waters of the Sea. Therefore, they too are drawn into the affairs of the region, which include:

a) maritime territorial or sovereignty disputes

b) issues with the delimitation of maritime zones

c) disputes concerning the enjoyment of the rights and freedoms, including the freedom of navigation, of both coastal and non-coastal states concerned under the 1982 Convention on the Law of the Sea.

The Philippines resorted to the dispute settlement mechanism contained in the 1982 Convention against the People’s Republic of China, and an arbitration tribunal operating under the rules of the Permanent Court of Arbitration in The Hague was constituted to hear the case. It was a tribunal constituted under Annex VII to the 1982 Convention. 

However, the People’s Republic of China refused to recognise the competence of the arbitration tribunal to hear the case and did not participate in the proceedings of the tribunal. After hearing the case ex parte, in October 2015 the tribunal came to the conclusion that it had jurisdiction to hear the case. The Republic of China (or Taiwan) (ROC) was not made a party to the case. Both the People’s Republic of China (the mainland) and the ROC refused to accept that the tribunal had jurisdiction on the matters referred to it by the Philippines.

The tribunal delivered its rulings on merits in July 2016, finding that China was in breach of its obligations under the 1982 Convention on the Law of the Sea vis-à-vis the claims brought to it by the Philippines.

However, since the tribunal did not have competence to adjudicate on the questions of sovereignty or maritime boundary delimitation, the findings of the tribunal were without prejudice to these questions.

The main findings of the tribunal were that many of the maritime features claimed by China were low-tide elevations and were thus not islands for the purposes of Article 121 of the Convention.

Consequently, such maritime features did not have the capacity to generate an entitlement to a territorial sea or exclusive economic zone or continental shelf. With regard to the status of China’s nine-dash lines, the tribunal held that:

“…as between the Philippines and China, China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention.”

The tribunal went on to declare that:

“…the Convention [the 1982 Convention on the Law of the Sea] superseded any historic rights, or other sovereign rights or jurisdiction, in excess of the limits imposed therein.”

With regard to the Spratly group of maritime features, which includes the Itu Aba (or Taiping) Island claimed by Taiwan, the tribunal held that: 

“…none of the high-tide features in the Spratly Islands, in their natural condition, are capable of sustaining human habitation or economic life of their own within the meaning of Article 121(3) of the Convention.” 

Accordingly:

“…none of the high-tide features in the Spratly Islands generate entitlements to an exclusive economic zone or continental shelf.”

However, before, during and after the proceedings in The Hague – including after the tribunal’s rulings – both China and the ROC have taken a similar position on the legal status of the islands and other maritime features in the South China Sea based on ‘historic rights’. 

Both countries have said that since the tribunal lacked competence to adjudicate on these matters, the decision of the tribunal is not binding on them and they will not accept it.

Now questions arise about the implementation of the award of the tribunal if China does not recognise it. There is no mechanism created under the 1982 Convention capable of enforcing such awards, and general international law lacks any executive or execution agency that can enforce the rulings of international courts and tribunals.

15. Deep seabed mining closer to becoming reality

Plans to open the world’s first mine in the deep ocean moved closer in 2014 when a Canadian mining company finalised an agreement with Papua New Guinea to start digging up an area of the seabed.

The project aims to extract ores of copper, gold and other valuable metals from a depth of 1,500m. Under the agreement reached, Papua New Guinea will take a 15 per cent stake in the mine by contributing $120m towards the costs of the operation. It should be recalled that for decades, the idea of mining these deposits – and mineral-rich nodules on the seabed – was dismissed as unfeasible because of the engineering challenge and high cost. The mine, known as Solwara-1, will be excavated by a fleet of robotic machines steered from a ship at the surface. The construction of the largest machine, a bulk cutter weighing 310 tonnes, has been completed by an underwater specialist manufacturer, Soil Machine Dynamics (SMD), based in Newcastle, UK. The plan is to break up the top layer of the seabed so that the ore can be pumped up as slurry. 

So far, 19 licences to search for seabed minerals have been awarded by the International Seabed Authority (ISA), the UN body policing this emerging industry. The ISA is currently drawing up guidelines for the environmental management of future seabed mining.

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