ARBITRATION UNDER UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS ) PRACTICE PROCEDURE

United Nations Convention on the Law of the Sea (UNCLOS)  An International  Seabed Authority

WHAT IS UNCLOS

The International Seabed Authority (ISA) is an autonomous international organization established under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (1994 Agreement). 

ISA which has its headquarters in Kingston, Jamaica, came into existence on 16 November 1994, upon the entry into force of UNCLOS.  ISA became fully operational as an autonomous international organization in June 1996, when it took over the premises and facilities in Kingston, Jamaica previously used by the United Nations Kingston Office for the Law of the Sea. 

The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.

This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.

The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law

The United Nations Convention on the Law of the Sea (UNCLOS) is the international agreement that resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III), which took place between 1973 and 1982. The convention was opened for signature on 10 December 1982 and entered into force on 16 November 1994 upon deposition of the 60th instrument of ratification.

The convention has been ratified by 168 parties, which includes 167 states (164 United Nations member states plus the UN Observer state Palestine, as well as the Cook Islands and Niue) and the European Union. An additional 14 UN member states have signed, but not ratified the convention.

Subsequently, the “Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea” was signed in 1994, amending the original Convention. The agreement has been ratified by 150 parties (all of which are parties to the Convention), which includes 149 states (146 United Nations member states plus the UN Observer state Palestine, as well as the Cook Islands and Niue) and the European Union. An additional three UN member states (Egypt, Sudan, USA) have signed, but not ratified the agreement.

As per Article 4 of the Agreement, following adoption of the Agreement any state which ratifies the convention also becomes a party to the Agreement. Additionally, only states which are parties to the Convention can ratify the Agreement.

Breadth of the territorial sea

Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.

Outer limit of the territorial sea

The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.

Normal baseline

Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.

Reefs

In the case of islands situated on atolls or of islands having fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward low-water line of the reef, as shown by the appropriate symbol on charts officially recognized by the coastal State.

Constitution of Seabed Chamber

  • The Seabed Disputes Chamber referred to in article 14 of this Annex VII
  • In shall be composed of 11 members, selected by a majority of the elected members of the Tribunal from among them.
  • In the selection of the members of the Chamber, the representation
  • of the principal legal systems of the world and equitable geographical
  • distribution shall be assured.
  • The Assembly of the Authority may adopt recommendations of a general nature relating to such representation and distribution.
  • The members of the Chamber shall be selected every three years and
  • may be selected for a second term.
  • The Chamber shall elect its President from among its members, who shall serve for the term for which the Chamber has been selected.
  • If any proceedings are still pending at the end of any three-year period for which the Chamber has been selected, the Chamber shall complete the proceedings in its original composition.
  • If a vacancy occurs in the Chamber, the Tribunal shall select a successor from among its elected members, who shall hold office for the remainder of his predecessor’s term.
  • A quorum of seven of the members selected by the Tribunal shall be required to constitute the Chamber.

ARBITRATION PROVISION, PRACTICE AND PROCEDURE UNDER UNCLOS

ANNEX VI. STATUTE OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

The International Tribunal for the Law of the Sea is constituted and shall function in accordance with the provisions of this Convention and this Statute. The seat of the Tribunal shall be in the City of Hamburg in the Federal Republic of Germany. The Tribunal may sit and exercise its functions elsewhere whenever it considers this desirable.

A reference of a dispute to the Tribunal shall be governed by the provisions of Parts XI and XV.

ORGANIZATION OF THE TRIBUNAL

Composition

  • The Tribunal shall be composed of a body of 21 independent members, elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea.
  • In the Tribunal as a whole the representation of the principal legal systems of the world and equitable geographical distribution shall be assured.

Membership

  • No two members of the Tribunal may be nationals of the same State.
  • A person who for the purposes of membership in the Tribunal could be regarded as a national of more than one State shall be deemed to be a national of the one in which he ordinarily exercises civil and political rights.
  • There shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations.

ANNEX VII

ARBITRATION

  • Subject to the provisions of Part XV, any party to a dispute may submit the dispute to the arbitral procedure provided for in this Annex by written notification addressed to the other party or parties to the dispute.
  • The notification shall be accompanied by a statement of the claim and the grounds on which it is based.

Article 3 Annex VII

List of arbitrators

  • A list of arbitrators shall be drawn up and maintained by the Secretary-General of the United Nations.
  •  Every State Party shall be entitled to nominate four arbitrators, each of whom shall be a person experienced in maritime affairs and enjoying the highest reputation for fairness, competence and integrity. The names of the persons so nominated shall constitute the list.
  • If at any time the arbitrators nominated by a State Party in the list so constituted shall be fewer than four, that State Party shall be entitled to make further nominations as necessary.
  •  The name of an arbitrator shall remain on the list until withdrawn by the State Party which made the nomination, provided that such arbitrator shall continue to serve on any arbitral tribunal to which that arbitrator has been appointed until the completion of the proceedings before that arbitral tribunal.

Proceedings: Article 3

For the purpose of proceedings under this Annex, the arbitral tribunal shall, unless the parties otherwise agree, be constituted as follows:

  • Subject to subparagraph (g), the arbitral tribunal shall consist of five members.
  • The party instituting the proceedings shall appoint one member to be chosen preferably from the list referred to in article 2 of this Annex, who may be its national. The appointment shall be included in the notification referred to in article l of this Annex. 
  • The other party to the dispute shall, within 30 days of receipt of the notification referred to in article l of this Annex, appoint one member to be chosen preferably from the list, who may be its national.
  • The other three members shall be appointed by agreement between the parties. They shall be chosen preferably from the list and shall be nationals of third States unless the parties otherwise agree;
  •  The other three members shall be appointed by agreement between the parties. They shall be chosen preferably from the list and shall be nationals of third States unless the parties otherwise agree;
  • If the appointment is not made within that period, the party instituting the proceedings may, within two weeks of the expiration of that period, request that the appointment be made in accordance with subparagraph (e);
  •  The  parties to the dispute shall appoint the President of the arbitral tribunal from among those three members within 60 days of receipt of the notification referred to in article l of this Annex;
  • If the parties are unable to  agree that any appointment be made by a person or a third State chosen by the parties, the President of the International Tribunal for the Law of the Sea shall make the necessary appointments.
  • If the President is unable to act under this subparagraph or is a national of one of the parties to the dispute, the appointment shall be made by the next senior member of the International Tribunal for the Law of the Sea who is available and is not a national of one of the parties.
  • The appointments referred to in this subparagraph shall be made from the list referred to in article 2 of this Annex within a period of 30 days of the receipt of the request and in consultation with the parties.
  • The members so appointed shall be of different nationalities and may not be in the service of, ordinarily resident in the territory of, or nationals of, any of the parties to the dispute.
  • Any vacancy shall be filled in the manner prescribed for the initial appointment.
  •  Parties in the same interest shall appoint one member of the tribunal jointly by agreement. Where there are several parties having separate interests or where there is disagreement as to whether they are of the same interest, each of them shall appoint one member of the tribunal.
  • The number of members of the tribunal appointed separately by the parties shall always be smaller by one than the number of members of the tribunal to be appointed jointly by the parties.
  • In disputes involving more than two parties, the provisions of shall apply to the maximum extent possible.

Procedure:

Unless the parties to the dispute otherwise agree, the arbitral tribunal shall determine its own procedure, assuring to each party a full opportunity to be heard and to present its case.

Duties of parties to a dispute

The parties to the dispute shall facilitate the work of the arbitral tribunal and, in particular, in accordance with their law and using all means at their disposal, shall:

(a) provide it with all relevant documents, facilities and information; and

(b) enable it when necessary to call witnesses or experts and receive their evidence and to visit the localities to which the case relates.

Expenses

Unless the arbitral tribunal decides otherwise because of the particular circumstances of the case, the expenses of the tribunal, including the remuneration of its members, shall be borne by the parties to the dispute in equal shares.

Required majority for decisions

Decisions of the arbitral tribunal shall be taken by a majority vote of its members. The absence or abstention of less than half of the members shall not constitute a bar to the tribunal reaching a decision. In the event of an equality of votes, the President shall have a casting vote.

Default of appearance

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend its case, the other party may request the tribunal to continue the proceedings and to make its award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.

Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.

Award

The award of the arbitral tribunal shall be confined to the subject-matter of the dispute and state the reasons on which it is based. It shall contain the names of the members who have participated and the date of the award. Any member of the tribunal may attach a separate or dissenting opinion to the award.

Finality of award

The award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute.

Interpretation or implementation of award

1. Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the award may be submitted by either party for decision to the arbitral tribunal which made the award. For this purpose, any vacancy in the tribunal shall be filled in the manner provided for in the original appointments of the members of the tribunal.

2. Any such controversy may be submitted to another court or tribunal under article 287 by agreement of all the parties to the dispute.

Application to entities other than States Parties

The provisions of this Annex shall apply mutatis mutandis to any dispute involving entities other than States Parties.

ANNEX VIII.

SPECIAL ARBITRATION

Institution of proceedings

Subject to Part XV, any party to a dispute concerning the interpretation or application of the articles of this Convention relating to

(1) fisheries,

(2) protection and preservation of the marine environment,

(3) marine scientific research, or

(4) navigation, including pollution from vessels and by dumping, may submit the dispute to the special arbitral procedure provided for in this Annex by written notification addressed to the other party or parties to the dispute. The notification shall be accompanied by a statement of the claim and the grounds on which it is based.

Lists of experts

1. A list of experts shall be established and maintained in respect of each of the fields of

(1) fisheries,

(2) protection and preservation of the

marine environment,

(3) marine scientific research, and

(4) navigation,

including pollution from vessels and by dumping.

2. The lists of experts shall be drawn up and maintained, in the field of fisheries by the Food and Agriculture Organization of the United Nations, in the field of protection and preservation of the marine environment by the United Nations Environment Programme, in the field of marine scientific research by the Intergovernmental Oceanographic Commission, in the field of navigation, including pollution from vessels and by dumping, by the International Maritime Organization, or in each case by the appropriate

Shruti Desai

6th August,2020

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