Sheehan, Anne --- "Dispute Settlement under UNCLOS: The Exclusion of Maritime Delimitation Disputes" [2005] UQLawJl 7; (2005) 24(1) University of Queensland Law Journal 165

DISPUTE SETTLEMENT UNDER UNCLOS: THE EXCLUSION OF MARITIME DELIMITATION DISPUTES

ANNE SHEEHAN^[*]

I. Introduction

Part XV of the 1982 United Nations Convention on the Law of the Sea^[1] (UNCLOS) establishes a comprehensive system for the settlement of disputes that might arise with respect to the interpretation and application of UNCLOS. It requires States Parties to settle their disputes by the peaceful means indicated in the Charter of the United Nations (UN Charter). However, if parties to a dispute fail to reach a settlement by peaceful means of their own choice, they are obliged to resort to the compulsory dispute settlement procedures entailing binding decisions, subject to certain limitations and exceptions. As of May 2005, 148 States were formally party to UNCLOS and thus bound by its dispute settlement procedures.^[2]

This paper examines the optional exception concerning sea boundary delimitation disputes contained in Article 298(1)(a)^[3] of UNCLOS and discusses the enduring obligations with respect to dispute settlement for States that have lodged declarations under this article. Article 298(1)(a) allows States Parties to declare that they do not accept one or more of the compulsory procedures entailing binding decisions found in section 2 of Part XV, with respect to disputes concerning the interpretation or application of the articles dealing with delimitation of the territorial sea, the exclusive economic zone and the continental shelf. A State may also exclude disputes involving historic bays or titles, however, this paper will not deal with this aspect of the exception.

Whilst it may seem that allowing exceptions to the compulsory and binding dispute settlement procedures detracts from the ‘package deal’ nature of UNCLOS, the fact is that the dispute settlement provisions were a ‘package deal’ themselves. Without the exceptions listed in Article 298, many States would not have been prepared to accept compulsory dispute settlement at all.^[4] Sea boundary delimitation disputes were included as an exception due to their sensitive nature and because of fundamental disagreements between States as to the principles on which such boundaries should be delimited.^[5] Articles 15, 74 and 83 deal with delimitation of the territorial sea, exclusive economic zone and continental shelf between States with opposite or adjacent coasts respectively. Each of these articles establish the principle that sea boundary delimitations are to be effected by agreement between the parties, rather than dictating substantive rules that must be followed when determining such boundaries. The agreement, to be based on international law, is to achieve an ‘equitable solution’. Whilst this formulation is often misinterpreted as requiring delimitation on the basis of equidistance, the phrase ‘equitable’ was used precisely because States could not agree whether the principle of equidistance or natural prolongation should be enshrined in UNCLOS.^[6] Therefore, UNCLOS does not determine the substantive rules for maritime delimitation, leaving States to determine in accordance with international law what would be equitable in the particular circumstances. The ability to exclude sea boundary delimitation disputes from compulsory and binding settlement is particularly important given this background and the fact that there is no consensus between States regarding the substantive rules to be applied to boundary delimitations.

As of May 2005, 21 States had made declarations excluding sea boundary delimitation disputes from one or more of the compulsory and binding procedures provided for in section 2 of Part XV.^[7] On 22 March 2002, Australia lodged a declaration under Article 298(1)(a) stating that it does not accept any of the procedures provided for in section 2 of Part XV with respect to disputes relating to sea boundary delimitations. On the same day Australia also lodged a declaration under Article 36(2) of the International Court of Justice (ICJ) Statute excluding sea boundary delimitation disputes from the ICJ’s jurisdiction. The effect of these declarations on Australia’s dispute settlement obligations under UNCLOS will be examined throughout this paper with respect to Australia’s current sea boundary delimitation dispute with East Timor.^[8] Such analysis assumes that East Timor accedes to UNCLOS, as they have yet to do so.

Before examining the nature and extent of the exception for sea boundary delimitation disputes, it is important to place such an exception in the context of the general dispute settlement provisions of UNCLOS.

II. Overview of the dispute settlement procedures under UNCLOS

Part XV of UNCLOS is divided into 3 sections. Section 1 sets out the fundamental principles concerning dispute settlement; section 2 sets out the compulsory procedures entailing binding decisions; and section 3 sets out the limitations and exceptions to the applicability of section 2.

Subject to the exceptions and limitations contained in section 3, any dispute where no settlement has been reached by recourse to section 1, shall be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under section 2.^[9] Thus, the compulsory dispute procedures detailed in section 2 are of a subsidiary nature. Parties to a dispute must first attempt to reach a settlement by recourse to section 1. This principle contained within Article 286 is emphasised again in Article 298 which provides that the rights of States Parties to exclude sea boundary delimitation disputes from the application of section 2 is without prejudice to the obligations arising under section 1.^[10] Only where no settlement has been reached by recourse to section 1 can a party submit the dispute to the court or tribunal having jurisdiction under section 2. Article 287 provides States Parties with a choice of four alternative forums for the settlement of disputes:

a. the International Tribunal for the Law of the Sea (ITLOS or the Tribunal);

b. the ICJ;

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

d. a special arbitral tribunal constituted in accordance with Annex VIII to UNCLOS.

‘The flexibility in Article 287 is the result of States’ inability’, during the Third United Nations Conference on the Law of the Sea (UNCLOS III) ‘to agree on a single third-party forum to which recourse should be had when informal mechanisms failed to resolve a dispute’.^[11] Article 287 reflects the need to establish a balance between the freedom to choose settlement procedures and the need to reach a binding settlement of the subject of the dispute. A State Party is free to choose one or more of these means by a written declaration to be made when signing, ratifying or acceding to UNCLOS or at any time thereafter.^[12]

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.^[13] 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.^[14] If the parties to a dispute have not accepted the same settlement procedure, the dispute may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree.^[15]

As section 1 always applies to sea boundary delimitation disputes and its application cannot be excluded by a party, the obligations of this section will now be examined.

III. Dispute settlement obligations under Part XV, Section 1 of UNCLOS

The provisions of Part XV, including section 1, are only applicable when there is a ‘dispute’ and it relates to either the ‘interpretation’ or ‘application’ of UNCLOS.^[16] In addition to the requirement that there be a dispute, it is a further principle that the dispute must be ‘legal’ or ‘justiciable’ in that it must be capable of being settled by the application of principles and rules of international law. The classic definition of ‘dispute’ is that given by the Permanent Court of International Justice (PCIJ) in the Mavrommatis Palestine Concessions (Preliminary Objections) case:

A dispute is a disagreement on a point of law or fact, a conflict of legal views or of the interests between two persons.^[17]

The ICJ has stated that the mere assertion or denial that a dispute exists is not conclusive of the existence of a dispute.^[18] Nor is the mere existence of conflicting interests between the parties, a mere institution of proceedings, or a purely theoretical disagreement on a point of law or fact.^[19] In the Southern Bluefin Tuna Cases^[20] before ITLOS, Japan maintained that the dispute was scientific rather than legal.^[21] The Tribunal referred to the Mavrommatis definition and the judgment of the ICJ in the South West Africa Cases in which it was held that ‘it must be shown that the claim of one party is positively opposed by the other’.^[22] The Tribunal concluded that the differences between the parties also concerned points of law, and thus the requirement that there be a dispute was satisfied.^[23]

Whether in fact a dispute exists will be an objective matter for the court or tribunal to determine on a case by case basis.^[24] With respect to the delimitation of maritime boundaries, this is clearly an issue which relates to the interpretation and application of UNCLOS. The determination of whether there is in fact a dispute over a boundary should also be relatively straight forward through an examination of the respective claims of the parties as to where they believe the boundary should be. As to the situation between Australia and East Timor, Australia claims that the boundary should be based upon principles of natural prolongation whereas East Timor favours the use of an equidistance line.^[25] As the claims of Australia and East Timor are positively opposed by each other, it is clear that this preliminary requirement of there being a dispute is satisfied.

IV. Obligation to settle disputes by peaceful means

Assuming that a dispute concerning the interpretation or application of UNCLOS exists, then States Parties are obliged pursuant to Article 279 to settle the dispute by peaceful means in accordance with Article 2(3) of the UN Charter.^[26] To this end, States Parties must seek a solution by the means indicated in Article 33(1) of the UN Charter. The inclusion of the customary law principle of peaceful dispute settlement sets the scene for Part XV by establishing, for States Parties, the obligation to settle disputes by peaceful means of their own choice prior to resorting to the compulsory procedures entailing binding decisions.^[27]

Article 279 incorporates by reference the peaceful means indicated in Article 33(1) of the UN Charter. These means to be used by the parties to the dispute are ‘negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice’. Whilst the sequence of this list reflects an increasing level of involvement by third parties, it does not represent a progression requiring the parties to exhaust each of the possibilities of one procedure before trying another.^[28] Nor does it obligate parties to settle their disputes through negotiations, or through any other peaceful means in particular. In the recent ITLOS case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), provisional measures^[29], the separate opinion of Judge Jesus set forth an analysis of Article 279 in which he noted:

[Article 279] cannot be read as meaning or implying that States are obliged to submit their disputes to the procedure of negotiation, instead of resorting to another peaceful means.

There is nothing in the Convention or for that matter in international law that imposes a general obligation on States to settle their disputes through negotiation, instead of resorting to another peaceful means of their choice.^[30]

As another ITLOS Judge has noted, negotiation may be a means of settlement in itself or it may be simply a prelude to resort to some other means.^[31] Thus, the list contained in Article 279 is more of a ‘menu’ from which States can choose a dispute settlement procedure most suited to the dispute in question.

It should be noted that the reference is only to the ‘means’ referred to in Article 33(1), not to Article 33(1) as a whole. This avoids the restriction in Article 33 that only disputes ‘the continuance of which is likely to endanger the maintenance of international peace and security’ are subject to settlement under Chapter VI of the UN Charter. Under Article 279 of UNCLOS, ‘any dispute’ concerning the interpretation or application of UNCLOS must be settled by peaceful means, whether or not it is likely to endanger the maintenance of international peace and security.

The effect of Article 279 on disputes which are the subject of an Article 298 exception is that the parties are obliged to settle their dispute by peaceful means and not through the use of force. Further, they are obliged to seek a solution through the means listed in Article 33(1) of the UN Charter, to the extent that such means are not inconsistent with their declaration. For example, if a State has declared that it does not accept any of the procedures provided for in section 2 of Part XV, namely ITLOS, the ICJ, an Annex VII Arbitral Tribunal, or an Annex VIII Arbitral Tribunal, as Australia has done, there is still an obligation to resolve the dispute through the other means listed in Article 33, i.e. ‘negotiation, enquiry, mediation, conciliation, arbitration (outside of section 2), resort to regional agencies or arrangements, or other peaceful means of their own choice’.

When a dispute arises, States Parties are obliged pursuant to Article 283, to proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. The obligation specified in this Article is not limited to an initial exchange of views at the commencement of a dispute. As is made clear in paragraph 2, the parties must also exchange views where a procedure for the settlement of a dispute has been terminated without a settlement. In such a case, the parties would have to exchange views again with regard to the next procedure to be used to settle the dispute.

Article 283 ensures that a party may transfer a dispute from one mode of settlement to another, especially one entailing a binding decision, only after appropriate consultations between all parties concerned. The provision also ensures that where settlement cannot be reached using one procedure, the parties must consider what other means could be utilized to settle the dispute. Even when a settlement is reached, the parties might discover that there is a disagreement on the manner of implementation of that settlement. In this situation, a further exchange of views would be required and the parties might have to go through various procedural stages specified in Part XV in order to settle this additional dispute.

The question that often arises with respect to this Article is the extent of the obligation to continue with an exchange of views. This question has most recently been considered by ITLOS in the Malaysia v Singapore Case. In that case, the Tribunal found that ‘Malaysia was not obliged to continue with an exchange of views when it concluded that this exchange could not yield a positive result’.^[32] This finding reaffirmed two previous decisions of the Tribunal in which it held that ‘a State Party is not obliged to pursue procedures under Part XV, section 1, of the Convention when it concludes that the possibilities of settlement have been exhausted’^[33] and that ‘a State Party is not obliged to continue with an exchange of views when it concludes that the possibilities of reaching agreement have been exhausted’^[34].

While Article 279 lays down the obligation to settle disputes by peaceful means and Article 283 creates the obligation to exchange views regarding the mechanism to be used to settle the dispute, Article 280 makes it clear that States Parties may agree at any time to settle a dispute between them by any peaceful means of their own choice. This principle, the crux of which is mutual consent, is intended to make it as clear as possible that the parties to the dispute are complete masters of the procedure to be used to settle it. They can ‘at any time’ agree to depart from the provisions of Part XV and agree to use instead ‘any peaceful means of their own choice’. They have this option even if any procedure under Part XV has been started, whether it is conciliation, arbitration or judicial settlement, and can discontinue it while resorting to some other procedure.^[35] The mutual agreement of all parties to the dispute is of the utmost significance here. Thus, even if a State has made a declaration under Article 298(1)(a), it may at any time withdraw it, or agree to submit a dispute excluded by such declaration to any procedure agreed upon by the parties.^[36]

V. Obligation to settle disputes pursuant to existing ‘agreements’

If the parties to a dispute have agreed to seek settlement by a peaceful means of their own choice, the procedures provided for in Part XV 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.^[37] This provision allowing parties to a dispute to resort to means of settlement outside of UNCLOS was based on the assumption that these other means would result in a settlement of the dispute.^[38] Article 281 makes it clear that when a settlement is not reached through the procedure chosen by the parties, Part XV will become applicable. The Article is qualified by the requirement that the agreement between the parties does not exclude any further procedure. Further, if the parties have also agreed on a time-limit, resort to Part XV procedures will only apply upon the expiration of that time-limit.^[39] This Article raises a number of questions.

At the outset it is necessary to consider whether the parties have in fact agreed to seek settlement of the dispute through a peaceful means of their own choice. What constitutes agreement? And does the agreement provide for the settlement of disputes concerning the interpretation or application of UNCLOS?

This first issue may be easy to identify in a treaty or a memorandum of understanding but less so in the absence of a formal document, for example in the case of diplomatic communications. In the Malaysia v Singapore Case before ITLOS, Singapore maintained that after its invitation to Malaysia to resolve the differences between them was accepted by Malaysia and meetings between the parties were held, a consensual process of negotiation had commenced and, as a legal consequence, both States had embarked upon a course of negotiation under Article 281 of UNCLOS in an effort to arrive at an amicable solution of the dispute between them.^[40] The Tribunal held that Article 281 was not applicable as Malaysia accepted the invitation after it had already instituted proceedings under Annex VII of UNCLOS, and because both Malaysia and Singapore agreed that meetings would be without prejudice to Malaysia’s right to proceed with the arbitration pursuant to Annex VII or to request the Tribunal to prescribe provisional measures.^[41] In summary, there was no ‘agreement’ under Article 281. Despite Singapore’s unsuccessful attempt to claim that the ‘agreement to negotiate’ fell under Article 281, it could be implied from the Order of the Tribunal that an ‘agreement’ under Article 281 does not need to be contained in a formal document such as a treaty. Such an interpretation stems from the reasoning of the Tribunal that Article 281 was not applicable because the negotiations were ‘without prejudice’. The Tribunal did not find that Article 281 was not applicable because of the form of the agreement.

Even if there is a formal agreement such as a treaty in existence between the parties, it is necessary to examine whether the agreement seeks to settle disputes concerning the interpretation or application of UNCLOS. This raises the issue of treaty parallelism. This issue was raised in the Southern Bluefin Tuna Cases between Australia, New Zealand (ANZ) and Japan. ANZ and Japan negotiated the Convention for the Conservation of Southern Bluefin Tuna^[42] (CCSBT) in anticipation of the entry into force of UNCLOS and intended the CCSBT to implement the provisions of UNLCOS calling for cooperation regarding conservation. A dispute arose with respect to Japan’s experimental fishing program. After no settlement was reached through the dispute settlement provisions of the CCSBT, ANZ instituted proceedings pursuant to Part XV of UNCLOS.^[43] Japan challenged the jurisdiction of firstly ITLOS and then the Annex VII arbitral tribunal on the basis that the dispute should be governed by the CCSBT and not UNCLOS, because the CCSBT is the lex specialis which supplants the UNCLOS provisions. Japan were not successful on this point at either ITLOS or the Annex VII arbitral tribunal. In the Southern Bluefin Tuna (Jurisdiction and Admissibility) Award, the Annex VII arbitral tribunal rejected Japan’s lex specialis argument and accepted that there is frequently a parallelism of treaties such that the conclusion of an implementing convention does not necessarily vacate the obligations imposed by the framework convention.^[44] Therefore, the mere fact that the parties entered into the CCSBT did not make UNCLOS nugatory. As pointed out by Australia, this would make the mandatory dispute settlement provisions of UNCLOS a ‘paper umbrella which dissolves in the rain’.^[45] As the Annex VII arbitral tribunal viewed the dispute under the CCSBT as the same dispute under UNCLOS, it was necessary to examine the terms of the CCSBT to see whether the parties intended to exclude the UNCLOS dispute settlement process.

These issues become particularly important when the agreement purports to exclude further procedures, as it may bar the States to the agreement from unilaterally resorting to the procedures in section 2 of Part XV. The last phrase of Article 281(1) envisages the possibility that the parties, in their agreement to resort to a particular procedure, may specify that this procedure shall be an exclusive one and that no other procedures may be resorted to even if the chosen procedure should not lead to a settlement.

In the Southern Bluefin Tuna (Jurisdiction and Admissibility) Award, despite the fact that ITLOS had decided that there was prima facie jurisdiction so as to impose provisional measures,^[46] the Annex VII arbitral tribunal viewed Article 281 as a bar to its jurisdiction to hear the dispute, as it concluded that the dispute settlement provisions of the other convention (the ‘281 agreement’) did exclude further procedures. This Award has been criticized as the dispute settlement provisions of the other convention in question did not expressly exclude further procedures.^[47] The MOX Plant case between the United Kingdom and Ireland, only one year after Southern Bluefin Tuna Award, presented ITLOS with the opportunity to add to the jurisprudence on this issue. Whilst the MOX Plant case was concerned with whether an agreement between the parties fell within Article 282, a number of the judges in their separate opinions made statements regarding the interpretation of Part XV that would also be applicable to Article 281. Judge Wolfrum in his separate opinion noted:

If the objective of Part XV of the Convention is taken into account such agreement among the parties to a conflict cannot be presumed. An intention to entrust the settlement of disputes concerning the interpretation or application of the Convention to other institutions must be expressed explicitly in respective agreements.^[48]

It would therefore seem that if the issue of an Article 281 agreement arose in the future, the court or tribunal deciding the matter might depart from the reasoning in the Southern Bluefin Tuna Award in light of the ‘guidance’ of ITLOS in the MOX Plant Order.

A further issue to consider when applying this Article is how to determine that no settlement has been reached. Can one party to the dispute determine this fact on its own, or is it necessary for the parties to agree that there is no chance for them to reach a settlement? If a party submits a case to one of the procedures specified in Part XV and the other party objects and claims that there is still a chance to reach a settlement by the chosen procedure, the tribunal or court to which the matter is submitted will have to decide this preliminary objection to its jurisdiction. This was done, for instance, by the ICJ in the North Sea Continental Shelf cases.^[49] More recently, the issue has been considered by ITLOS in the Malaysia v Singapore Case.^[50] The Tribunal reiterated its previous findings in the Southern Bluefin Tuna Cases in which it held that ‘a State Party is not obliged to pursue procedures under Part XV, section 1, of the Convention when it concludes that the possibilities of settlement have been exhausted’.^[51] This finding was in the context of an exchange of views under Article 283, however, the principles would appear to be the same.

The effect of Article 281 on disputes which are the subject of an Article 298 exception is that if there is a ‘281 agreement’ in place between the parties and it does exclude further procedures, then the procedures in Part XV will not apply to the settlement of the dispute. Thus, the dispute settlement obligations contained within Article 298 itself, which will be discussed below, will also not apply to the dispute.

VI. Obligations under general, regional or bilateral agreements

Article 282 takes into account obligations that States Parties may have under general, regional or bilateral agreements. However, the article only applies when the previously accepted procedure ‘entails a binding decision’. There has been some disagreement as to whether Article 282 should apply only in cases where the other agreement for the settlement of disputes has been concluded prior to the entry into force of UNCLOS.^[52] It is submitted that the better view is that it would apply in all cases in which the other agreement has entered into force before a party has decided to submit a dispute to a dispute settlement procedure. Accordingly, even if the other agreement has been concluded after the entry into force of UNCLOS, it may be invoked instead of Part XV by any party to the dispute.

In addition, the parties to the dispute can always agree to conclude a special agreement submitting the dispute to a particular tribunal. This is consistent with the basic principle contained in Article 280 that the parties can agree at any time to settle a dispute between them by any peaceful means of their own choice. The other consequence of this right is that the parties are not bound to use the procedure under some other agreement if both of them agree to use a procedure under Part XV. The consultations that are mandated by Article 283 which was discussed above, may facilitate such an agreement.

Article 282 mentions that an agreement to submit a dispute to a specified procedure may be reached ‘otherwise’. This phrase was added specifically to include the acceptances of the jurisdiction of the ICJ by declarations made under Article 36(2) of the Statute of that Court.^[53] Thus, the acceptance by all parties to a dispute of the ICJ’s compulsory jurisdiction can be considered the ‘agreement’ mentioned in Article 282.^[54] While this interpretation would appear to defeat the purpose somewhat of making a choice of forum under Article 287, it would seem that this effect was clearly the intent of the drafters of UNCLOS and therefore must be examined. Such an interpretation has a significant effect with respect to the exclusion of sea boundary delimitation disputes pursuant to Article 298.

If all parties to a sea boundary delimitation dispute have accepted the ICJ ‘optional clause’, an Article 298 declaration would be irrelevant as the ‘agreement reached otherwise’ under Article 282 ‘shall apply in lieu of the procedures provided for in Part XV’. Thus, unless the party which has made the Article 298 declaration has also excluded sea boundary delimitation disputes from the jurisdiction of the ICJ in their Article 36(2) declaration, then the ICJ will have jurisdiction to hear the dispute, effectively circumventing the exception under Article 298. From the nature of declarations lodged under the ICJ Statute and UNCLOS, it would seem that either most countries don’t agree with the above interpretation or that the relationship between the two articles is surprisingly unknown.

As illustrated by the table below, of the twenty-one States that have made declarations under Article 298(1)(a) of UNCLOS, nine have also made declarations under Article 36(2) of the ICJ Statute. Out of these nine, only Australia has explicitly excluded sea boundary delimitation disputes from the jurisdiction of the ICJ. Norway has referred to its declaration under UNCLOS, however, as its Article 298 declaration only excludes arbitration under Annex VII, this would not affect the jurisdiction of the ICJ. Canada and Spain have both included statements in their Article 36(2) declarations to exclude from the jurisdiction of the ICJ ‘disputes in regard to which the parties have agreed or shall agree to have recourse to some other method of peaceful settlement’. Whilst this language may have been included with the dispute settlement procedures of UNCLOS in mind, it is not clear whether an attempt to exclude the jurisdiction of the ICJ on this basis would be successful. As Article 282 of UNCLOS provides that where the parties have agreed that a dispute shall be submitted to a procedure which entails a binding decision, ‘that procedure shall apply in lieu of the procedures provided for in this Part’. Therefore, the ICJ might well find that UNCLOS does not represent an ‘agreement to have recourse to some other method of peaceful settlement’. It is to some extent a circular argument, but one that remains untested.

If Canada and Spain and, for that matter all of the countries bar Australia that have made Article 298(1)(a) declarations, really intend to exclude sea boundary delimitation disputes from the jurisdiction of the ICJ, it would be prudent for them to modify their Article 36(2) declarations to this effect. The effect of Australia’s declaration under Article 36(2) on its current dispute with East Timor is that even if East Timor were to make an Article 36(2) declaration, thereby fulfilling the reciprocity requirement for ICJ jurisdiction, it would not be able to institute proceedings before the ICJ relying upon Article 282, as Australia specifically excluded sea boundary delimitation disputes in its Article 36(2) declaration.

VII. Summary of Section 1 obligations

It is noteworthy that Article 298 does not permit sea boundary delimitation disputes to be excluded from all of the dispute resolution provisions of UNCLOS. Thus, making a declaration under Article 298 does not mean that there is no longer an obligation to settle the dispute. It simply means that there is no obligation to settle the dispute through compulsory procedures entailing binding decisions. As evidenced above, section 1 of Part XV imposes some significant obligations on parties to a dispute concerning sea boundary delimitation. The parties are under an obligation to settle their dispute by peaceful means and must exchange views regarding its settlement. Further, if there is an ‘agreement’ between the parties, the obligations under Articles 281 and 282 may also be relevant.

VIII. Dispute settlement obligations under Article 298

This paper will now examine the dispute settlement obligations which are contained within Article 298 itself. Declarations under Article 298 may be deposited either at the time of signing, ratifying or acceding to UNCLOS, or at any time thereafter.^[55] However, if a declaration is made when a proceeding has already commenced before a court or tribunal, it has no retrospective effect on the proceeding.^[56] A declaration by a State Party under Article 298(1)(a) does not mean that the State Party is no longer obliged to resolve sea boundary delimitation disputes at all. Whilst States Parties may exclude the application of compulsory procedures entailing binding decisions, they are still required to comply with the dispute settlement obligations arising under section 1 of Part XV as well as the obligations which arise under Article 298 itself. Both section 1 and Article 298 impose a number of significant obligations on parties to a dispute and will now be examined in detail. Article 298(1)(a)(i) provides that where no agreement within a reasonable period of time is reached in negotiations between the parties to the dispute, either party may institute conciliation proceedings under Annex V, section 2.

Thus it would appear that there is a specific obligation to negotiate, notwithstanding the obligations arising under section 1 examined above. To the extent that there is an obligation to negotiate, the issue has arisen as to the nature of this obligation. The PCIJ stated in the Railway Traffic between Lithuania and Poland Case, that the parties have a duty ‘not only to enter into negotiations, but also to pursue them as far as possible, with a view to concluding agreements’. At the same time the Court made it clear that ‘an obligation to negotiate does not imply an obligation to reach an agreement’.^[57] A party should make reasonable proposals for the settlement of a dispute. It should not, however, present ultimatums to the other party, or demand that it unconditionally surrender its point of view. In the context of a maritime delimitation dispute, the ICJ has stated that:

the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it.^[58]

The implicit requirement of reasonable behaviour during the negotiating process is, of course, general in character and does not impose any specific obligation to accept any particular settlement, however reasonable it may be either from the point of view of the party proposing it or even from a more objective point of view. Consequently, this obligation might be difficult to implement in any precise manner.

As to the qualification that conciliation may be instituted only after the parties have not reached an agreement within a ‘reasonable time’, it seems likely that a court or tribunal would examine firstly, whether there have in fact been ‘meaningful’ negotiations and secondly, whether a party has concluded that the possibilities of reaching agreement have been exhausted, rather than imposing a fixed time limit.^[59]

This preliminary obstacle to conciliation is interesting in light of the dispute between Australia and East Timor. East Timor has requested that negotiations be held monthly whereas Australia’s position is that negotiations approximately every six months would be more appropriate.^[60] As at May 2005, six rounds of discussions have been held.^[61] At what point could East Timor claim that it has concluded that all possibilities of reaching agreement have been exhausted so it could move onto the next step of compulsory conciliation? Arguably, East Timor would not be successful in claiming that the possibilities of reaching agreement have been exhausted due to the length of time in between the negotiations. Australian officials have noted that similar negotiating schedules have been the experience in Australia’s other maritime boundary negotiations, and the experience of other countries as well.^[62] It would be more likely that East Timor would be successful in claiming that the possibilities of reaching agreement have been exhausted due to Australia’s actions in continuing to grant licences in the disputed area extending beyond the joint development area.^[63] It is submitted that an analogy could be drawn between this situation and the Southern Bluefin Tuna Cases before ITLOS where Australia and New Zealand claimed that negotiations had terminated due to Japan’s refusal to cease their experimental fishing program. Similarly, in the Malaysia v Singapore Case before ITLOS, Malaysia claimed that the possibilities of reaching agreement were exhausted due to Singapore’s refusal to cease its land reclamation works. In effect, a failure to exercise restraint by one party was the trigger for the other party to claim that the possibility of reaching agreement was exhausted. In both of those cases, ITLOS held that the requirements for moving onto the next phase in dispute settlement had been fulfilled. While both of these cases concerned an exchange of views under Article 283, it is submitted that a court or tribunal would take into account similar issues in deciding whether the negotiation requirement under Article 298 had been fulfilled.

IX. Compulsory conciliation

Of the three categories of disputes covered by an optional exception under Article 298, only disputes concerning sea boundary delimitation are subject to compulsory conciliation. This reflects the importance of finally settling maritime boundaries. Compulsory conciliation was the compromise reached between those States that believed that sea boundary delimitation disputes should be finally settled by binding decision and those States that opposed binding settlement.

The text of Article 298(1)(a) prepared by the UNLCOS III informal working group on the settlement of disputes originally included the following proviso:

provided that the State making such a declaration shall indicate therein a regional or other third-party procedure, [whether or not] entailing a binding decision, which it accepts for the settlement of these disputes. ^[64] (brackets in the original)

This proviso curtailed the possibility of making this exception by allowing it only in cases where a State was a party to an alternative procedure outside the framework of UNCLOS, or was willing to accept such an alternative procedure ad hoc for this particular purpose. The phrase in square brackets reflected the fact that some members of the group would have been satisfied with resort to conciliation, while others insisted that boundary disputes were likely to be more frequent when the zones under the jurisdiction of the coastal States were more extensive, and that those zones would create a danger to peace if they were not definitely settled by a binding decision.^[65]

This formulation also raised the issue of access to the tribunal chosen by the declarant State. It was pointed out that the other party to the dispute (for instance, one not belonging to a particular regional organization) may not be entitled to bring a dispute before the tribunal chosen by the declarant State. It was agreed that ‘where a party has chosen a procedure not specified in this Convention, the other party to the dispute must have access to such procedure’. A clause was added, therefore, specifying that the forum indicated by the declarant State must be one ‘to which all parties to the dispute have access’.^[66]

However, the fundamental issue remained as to whether the procedure chosen by the declarant State should entail binding decisions. Prior to the eighth session of UNCLOS III, the working group met in Geneva for informal consultations to explore possible approaches to the solution of this problem. It became apparent that among the many possible combinations proposed to deal with this issue, only those applying compulsory conciliation offered the prospect of a consensus.^[67]

X. Exclusion of certain disputes from compulsory conciliation

As noted above, any State making an Article 298 declaration is, nevertheless, obliged to submit to conciliation. However, there are a number of exceptions to this obligation. Completely excluded from the obligation to submit to conciliation are disputes that arose before the entry into force of UNCLOS.^[68] It is thus necessary to examine the distinction between ‘past’ and ‘future’ disputes.

As far as future disputes are concerned there are three further exclusions from compulsory conciliation:

(a) Mixed disputes^[69] (that is, disputes that necessarily involve the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory);

(b) Disputes finally settled by an arrangement between the parties^[70] (probably also including an arrangement resulting from acceptance by the parties of an arbitral or judicial decision, such as those rendered by the ICJ in disputes between Libya and Tunisia, and between Libya and Malta)^[71]; and

(c) Disputes that are to be settled in accordance with a bilateral agreement binding upon the parties to the dispute.^[72]

From these exclusions, the issue of past disputes raises the most questions. Because every dispute may have some roots in the past, particularly sea boundary delimitation disputes, a clear distinction is not easy to draw. As to this difficulty, it was pointed out during the intersessional consultations of the working group at UNCLOS III that according to international jurisprudence and rules of jurisdiction there is a large discretionary element in the decisions about the so-called crucial date of when a dispute arises.^[73] Delegations that opposed the exclusion of ‘past’ disputes from compulsory procedures underlined the difficulties caused by the vagueness of the criteria the proposed distinction would be based on. On the other hand, those who preferred to limit compulsory conciliation to ‘future’ disputes only, were afraid of the creation of a system which might incite States to re-open past disputes or revive old territorial claims, and in such a way to destabilize existing conditions.^[74]

The determination of the date of a dispute has been a decisive factor in the issue of jurisdiction in a number of PCIJ and ICJ cases.^[75] The interpretation of the elements of the dispute, by tracing the chronological development of events and the causal relationship between them and the conflict of views expressed in the controversy, along with the ascertainment of the link between the rise of such a conflict and the exclusion date, serves as the major technique in determining jurisdictional issues.^[76] Such interpretations have been made free from the application of any rigid criteria and have been considered as a question to be decided in regard to each specific case.^[77]

This exclusion of past disputes is particularly interesting in light of the current dispute between Australia and East Timor. Is this a dispute that arose before or after the entry into force of UNCLOS? In order to determine the date of the dispute, it is necessary to examine the background to this matter.

The question of delimitation of the maritime boundaries in the Timor Sea was first dealt with by Australia and Indonesia in the wake of Portugal’s withdrawal as the administering authority, and Indonesia’s subsequent annexation of East Timor in 1975. Australia’s de jure recognition of Indonesian sovereignty over East Timor in 1979 paved the way for negotiations between Australia and Indonesia on the area known as the ‘Timor Gap’ which had been left undelimited by the 1972 seabed treaty between Australia and Indonesia.^[78] As Australia and Indonesia could not agree on a permanent seabed boundary, they entered into a joint development agreement which provisionally dealt with the area in dispute. The so-called ‘Timor Gap Treaty’^[79] was specifically stated to be without prejudice to the positions of the parties with respect to permanent continental shelf delimitation.

Indonesia relinquished its control over East Timor in October 1999. Pursuant to UN Security Council resolution 1272/1999 of 29 October 1999 the United Nations Transitional Administration in East Timor (UNTAET) assumed responsibility for administration of East Timor from that date. Thus, the Timor Gap Treaty ceased to be in force between Australia and Indonesia on this date. In order for East Timor to share the benefits of resource exploitation in the Timor Gap, Australia and UNTAET exchanged notes on behalf of the people of East Timor in February 2000 to effectively continue, mutatis mutandis, the terms of the Timor Gap Treaty without prejudice to the position of the future independent government of East Timor.

Upon East Timor’s independence on 20 May 2002, Australia and East Timor signed the ‘Timor Sea Treaty’ which entered into force in April 2003.^[80] Whilst there are a number of differences between the former ‘Timor Gap Treaty’ with Indonesia and the new ‘Timor Sea Treaty’ with East Timor, the concept is similar in that it creates a joint development area to enable exploitation to continue pending final delimitation of the maritime boundary. As mentioned earlier, negotiations are currently being held between Australia and East Timor regarding the final boundary.

Noting the definition of dispute discussed earlier in this paper, it appears quite clear that there was in fact a dispute between Australia and Indonesia in that each State’s claim regarding the boundary was opposed by the other. The Timor Gap Treaty did not resolve this dispute as it was merely a provisional agreement without prejudice to the positions of the parties as to the final boundary. This dispute arose in the early 1980’s and thus clearly before the entry into force of UNCLOS. The question to consider is whether the current dispute with East Timor is merely a continuation of the old dispute with Indonesia and thus a past dispute excluded from compulsory conciliation, or whether East Timor’s independence creates a break in the chain. The effect of state succession on the question of ‘past disputes’ has not been tested. However, it would appear from an examination of the definition of dispute, that as a new State is involved in the matter, it would be considered a new dispute. It is relevant here that UNCLOS excludes past disputes rather than ‘past facts and situations’. In relation to a reservation ratione temporis which referred to disputes only and did not exclude the consideration of past facts or situations, the PICJ held that the Court’s jurisdiction over disputes arising subsequent to the exclusion date is not limited to situations or facts subsequent to that date.^[81] As will be seen below, if the jurisdiction of the conciliation commission were to be challenged on this basis, the conciliation commission would have to determine for itself whether it has jurisdiction and thus would have to rule on this issue.

XI. The process of compulsory conciliation

If the preliminary requirement of prior negotiation has been satisfied, and if none of the above exclusions apply, conciliation can be instituted by written notification addressed by one party to the dispute to the other party or parties.^[82] The other party to the dispute is obliged to submit to such proceedings.^[83] A disagreement as to whether the conciliation commission has competence shall be decided by the commission.^[84] This competence provision essentially extends the scope of Article 288(4) to cases of compulsory recourse to conciliation. The conciliation commission can be established under Article 3 of Annex V whether or not the other party is willing to cooperate in the appointment of the members of the commission.

The function of the commission is to hear the parties, examine their claims and objections, and make proposals to the parties with a view to reaching an amicable settlement.^[85] The commission is required to report within 12 months of its constitution.^[86] Its report shall record any agreements reached and, failing agreement, its conclusions on all questions of fact or law relevant to the matter in dispute and such recommendations as the commission may deem appropriate for an amicable settlement. The report shall be deposited with the Secretary-General of the United Nations and shall immediately be transmitted by him to the parties to the dispute. Article 298(1)(a)(ii) provides that after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report. The report of the commission, including its conclusions and recommendations, is not binding upon the parties. However, such a report would carry with it significant political pressure.

XII. Obligations where no agreement reached through compulsory conciliation and subsequent negotiations

If no agreement is reached through negotiations on the basis of the conciliation commission’s report, there is also the further obligation to reach an agreement to select one of the procedures under Part XV, section 2, or some other procedure for settling the dispute. This agreement must also be negotiated in good faith, but it can come into effect only by mutual consent.

Because conciliation is a procedure not entailing a binding decision, it was noted by the working group of UNCLOS III that States Parties to a dispute would have to continue their efforts, on the basis of the report of the conciliation commission, for reaching an agreement. The compulsory conciliation approach was adapted by the so-called Bulgarian formula.^[87] According to this proposal, the parties to the dispute should, if the negotiations do not result in an agreed delimitation within a fixed period, submit the question of delimitation, by mutual consent, to the procedures provided for in section 2 of Part XV, unless the parties otherwise agree.

This compromise was attacked by both supporters of compulsory and binding dispute settlement as well as those against third party settlement. Supporters of compulsory and binding settlement procedures argued that if no agreement could be reached after the compulsory conciliation, each party to the dispute should have the right to request a final and binding determination by an international tribunal.^[88] Other delegations expressed reservations regarding the use of the phrase in the proposal that in case of no settlement by negotiations after conciliation, the parties ‘shall, by mutual consent’ submit the question to one of the procedures entailing a binding decision. Some States considered that this phrase combined two incompatible elements: an obligatory ‘shall’ and a consensual ‘by mutual consent’. Others explained that the purpose of the phrase was to oblige the parties to the dispute to make a good faith effort to select one of these procedures.^[89] This interpretation is strengthened by Article 299(1) which makes it clear that any dispute excluded by a declaration under Article 298 from the dispute settlement procedures provided for in section 2 may only be submitted to such procedure ‘by agreement of the parties to the dispute’.

Article 299 does not, however, remove the good faith obligation to mutually agree upon one of the procedures in section 2. This obligation is an important one and warrants further examination. Article 300 of UNCLOS provides that:

States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.

The reference to good faith in Article 300 reflects Article 2(2) of the UN Charter and the fundamental rule pacta sunt servanda. The 1969 Vienna Convention on the Law of Treaties contains this rule in Article 26 which provides that ‘every treaty in force is binding on the parties to it and must be performed by them in good faith’.

Keeping in mind this requirement of good faith, it would appear that the obligation contained Article 298(1)(a)(ii) to ‘by mutual consent, submit the question to one of the procedures provided for in section 2’, would not be fulfilled if one party refused to entertain the idea of settlement by binding decision. Thus, if a State maintained a position that sea boundary delimitation disputes should only be settled by negotiation between the parties, arguably they would be in breach of their obligations under UNCLOS.

It is Australia’s current position that maritime boundary disputes are best resolved through negotiation and not litigation.^[90] It is not submitted that Australia is in breach of its obligations under UNCLOS at this point in time as Australia and East Timor are still at the first phase of what is essentially a four step process under Article 298. The first phase is negotiation. Where no agreement within a reasonable period of time is reached in negotiations, then the second phase of compulsory conciliation may be instituted. If no agreement is reached during the conciliation process, then the parties must negotiate an agreement on the basis of the conciliation commission’s report (the third phase). If there is still no agreement, then the parties shall, by mutual consent, submit the question to one of the procedures in provided for in section 2 (the fourth phase). It is submitted that if the current dispute between Australia and East Timor were to go through the above three phases without resulting in an agreement, and Australia maintained the position that maritime boundary disputes are best settled through negotiation and refused to entertain the idea of third party binding settlement, then Australia would be in breach of its obligations under UNCLOS. The effect of this hypothetical situation will now be examined.

What avenue, if any, could East Timor take to have this matter determined? Could East Timor institute proceedings in the court or tribunal having competence under Article 287 claiming that Australia had not fulfilled its obligations of good faith under Article 300 in relation to its obligations under Article 298(1)(a)(ii) to mutually agree on one of the procedures under section 2? As to the competence of the Article 287 court or tribunal, East Timor could rely on Article 288 which provides that a court or tribunal referred to in Article 287 shall have jurisdiction over any dispute concerning the interpretation or application of UNCLOS.

This raises the fundamental principle that a State cannot be brought before an international court or tribunal without its consent.^[91] However, it is submitted that consent has been given by the ratification of UNCLOS. As a State Party to UNCLOS, consent has been given to Article 288, which would be the source of the jurisdiction here. UNCLOS does not contain the two-step procedure with respect to consent to jurisdiction that is found in the ICJ Statute. There is no equivalent to the ICJ Statute’s Article 36 within UNCLOS. A party accepts the dispute settlement procedures of UNCLOS through ratification alone. It is submitted that Australia could not claim that jurisdiction of the court or tribunal is ousted by virtue of its Article 298 declaration, as the declaration under Article 298 only concerns ‘disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitations’. This dispute would not concern Articles 15, 74 or 83 but would relate to Article 298 itself. In any event, Article 288(4) provides that 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. In Australia and New Zealand’s response on jurisdiction before the Annex VII arbitral tribunal in the Southern Bluefin Tuna Case, it was stressed that:

These provisions [Part XV] clearly imply that a tribunal exercising jurisdiction to determine its jurisdiction under Article 288(4) of UNCLOS should lean in favour of the effectiveness and comprehensive character of the dispute settlement regime, itself a key aspect of the UNCLOS regime. It should not accept arguments which would minimise the effectiveness of Part XV, lending themselves to easy evasion of its provisions.^[92]

It would also be necessary to determine whether in fact a legal dispute exists, which was discussed above. In so far as the proceedings have been politically inspired, as a means of exerting pressure of a State, this does not affect the legal character of the dispute. In the Border and Transborder Armed Actions Case the ICJ stated:

The Court is aware that political aspects may be present in any legal disputes brought before it. The Court, as a judicial organ, is however only concerned to establish, first, that the dispute before it is a legal dispute, in the sense of a dispute capable of being settled by the application of principles and rules of international law, and secondly, that the Court has jurisdiction to deal with it, and that that jurisdiction is not fettered by any circumstance rendering the application inadmissible. The purpose of recourse to the Court is the peaceful settlement of such disputes; the Court’s judgment is a legal pronouncement, and it cannot concern itself with the political motivation which may lead a State at a particular time, or in particular circumstances, to choose judicial settlement.^[93]

The dispute in question here would concern the interpretation and application of Article 298(1)(a)(ii) and Article 300 of UNCLOS and would seem capable of being settled by the application of principles and rules of international law. Thus, the requirement of there being a legal dispute would seem to be satisfied.

The next question would be that of the remedy. Could a court or tribunal order Australia to choose a particular dispute settlement procedure under Part XV, section 2? Such an order seems highly unlikely given the fundamental principle that a State cannot be brought before an international court or tribunal without its consent. It seems more likely that an order might require Australia and East Timor to continue to negotiate in order to agree on a procedure. However, failure to negotiate in good faith would be precisely why the parties were before the court or tribunal in the first place. Regardless of the remedy, the international attention to the dispute that would result in the institution of proceedings alone, might also attract the necessary political pressure on the parties to resolve the dispute.

Finally, if no such agreement can be reached regarding the selection of one of the procedures under Part XV, section 2, the only requirement that would seem to remain is the obligation to proceed expeditiously to an exchange of views regarding the settlement of the dispute by further negotiations or other peaceful means,^[94] which brings us full circle.

XIII. Conclusion

The effect of the exception for sea boundary delimitation disputes to compulsory and binding settlement is that the majority of such disputes will be settled by direct negotiation between the parties, as has always been the case regardless of whether there is an Article 298 declaration in force. What is critical is that States settle their disputes peacefully: the means by which they do so are of secondary importance. However, this assumes that settlement can be reached through direct negotiations. UNCLOS would be of little practical value unless it included an effective system for settling conflicts and resolving disputes that cannot be resolved by the parties themselves. As evidenced above, sea boundary delimitation disputes which are the subject of an Article 298 declaration are still subject to a dispute settlement regime. It is not the case that a State which has made an Article 298 declaration is no longer obliged to resolve sea boundary disputes at all.

A State making an Article 298 declaration is obliged to negotiate in good faith with a view to reaching agreement. Where no agreement is reached within a reasonable time, then the dispute may be submitted to conciliation. Whilst conciliation is not binding, the parties must negotiate an agreement on the basis of the conciliation commission’s report. Finally, there is the fourth phase of Article 298 which requires the parties to agree on one of the compulsory procedures entailing a binding decision under section 2. If the parties negotiate in good faith, then the option of third party binding settlement of the maritime delimitation dispute would be available at this stage. It is submitted that the State making the Article 298 declaration has an obligation at this stage to suggest one of the four procedures in section 2. Therefore, if the other State was prepared to accept the proposed procedure, be it the ICJ, ITLOS or an Annex VII or VIII Arbitral Tribunal, then the dispute could be submitted to that procedure and the exception would no longer be relevant. If the declarant State is not willing to consider any of the procedures in section 2, then the other State would still have the option of instituting proceedings before the court or tribunal having jurisdiction under Article 287. However, these proceedings would not concern the substantive issue of delimitation but would concern the obligations under Article 298. Nevertheless, a party might consider that the international attention that would result from any proceedings could be politically advantageous in assisting to settle the dispute.

The dispute settlement process contained in Article 298 is a balancing act representing a compromise between the right of a State to consent before being brought before an international court or tribunal and the need to settle sea boundary delimitation disputes that cannot be resolved by the parties themselves. This painfully worked out compromise seeks to strike the right theoretical balance. However, in practice, in the case of delimitation of maritime areas that are rich in natural resources, which are of course the areas which are more likely to be in dispute, by the time all the preliminary hurdles of Article 298 have been jumped, the resources in question may have already been exploited. In this sense, the dispute settlement procedures seem to fail countries seeking binding settlement of sea boundaries.

^[*] Senior Legal Officer, Australian Department of Defence. This paper was written as part of a Master of Laws (Maritime Law) at the University of Queensland. The views expressed in this paper are those of the author and should not be construed as necessarily reflecting in any way the policies or views of the Australian Department of Defence.

^[1] Opened for signature 10 December 1982, 21 ILM 1261, (entered into force 16 November 1994).

^[2] See the Table recapitulating the status of the Convention and of the related Agreements (2005) United Nations Division for Ocean Affairs and the Law of the Sea <http://www.un.org/Depts/los/reference_files/status2005.pdf> .

^[3] Article 298(1)(a) provides as follows:

‘1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:

(a) (i) disputes concerning the interpretation or application of Articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission;

(ii) after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree;

(iii) this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties’.

^[4] For the negotiating history of the dispute settlement provisions of the Law of the Sea Convention, see A.O. Adede, The System for Settlement of Disputes Under the United Nations Convention on the Law of the Sea: A Drafting History and Commentary (1987); and Myron H. Nordquist, Shabtai Rosenne and Louis B. Sohn eds, United Nations Convention on the Law of the Sea 1982: A Commentary (Volume 5) (1989) [hereinafter Virginia Commentary].

^[5] The other categories of disputes covered by Article 298 are disputes concerning military activities, disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under Article 297(2) or (3), and disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the UN Charter.

^[6] Robin R. Churchill and A. V. Lowe, The Law of the Sea (3^rd ed, 1999) 191.

^[7] Argentina, Australia, Belarus, Canada, Chile, Cuba, Denmark, Equatorial Guinea, France, Guinea-Bissau, Iceland, Italy, Mexico, Nicaragua, Norway, Portugal, Russian Federation, Slovenia, Spain, Tunisia, Ukraine, see Settlement of Disputes Mechanism: Recapitulative Tables (2004) United Nations Division for Ocean Affairs and the Law of the Sea <http://www.un.org/Depts/los/settlement_of_disputes/choice_procedure.htm> For full texts of declarations, see <http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXI/chapterXXI.asp> .

^[8] East Timor’s conventional long form name is the Democratic Republic of Timor-Leste, however, the conventional short form name of East Timor will be used in this paper.

^[9] UNCLOS, opened for signature 10 December 1982, 21 ILM 1261, art 286 (entered into force 16 November 1994).

^[10] Ibid art 298(1).

^[11] John E Noyes, ‘The International Tribunal for the Law of the Sea’ (1998) 32 Cornell International Law Journal 109, 119.

^[12] UNCLOS, opened for signature 10 December 1982, 21 ILM 1261, art 287(1) (entered into force 16 November 1994).

^[13] Ibid art 287(3).

^[14] Ibid art 287(4).

^[15] Ibid art 287(5).

^[16] For further discussion of ‘disputes’ in international law, see Chittharanjan Amerasinghe, Jurisdiction of International Tribunals (2002) 225.

^[17] The Mavrommatis Palestine Concessions (Greece v United Kingdom) [1924] PCIJ (ser A) No 2, 11. There are several ICJ cases in which this view was adopted: see, eg, Case Concerning Right of Passage Over Indian Territory ( Portugal v India ) (Merits) [1960] ICJ Rep 34; South-West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 328, 343; Case Concerning East Timor (Portugal v Australia) [1995] ICJ Rep 99.

^[18] Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Merits) [1980] ICJ Rep 3; Case Concerning the Northern Cameroons (Cameroon v United Kingdom) (Preliminary Objections) [1963] ICJ Rep 27.

^[19] South-West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections) [1962] ICJ Rep 328, 547, 566.

^[20] Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional Measures) ITLOS Case Nos. 3 & 4. The Pleadings of the parties and the Order of the Tribunal are available on the Tribunal’s website at <www.itlos.org>.

^[21] Ibid, Order of 27 August 1999 [42].

^[22] South-West Africa Cases (Ethiopia v South Africa; Liberia v South Africa) (Second Phase) [1966] ICJ Reports 33.

^[23] Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional Measures) ITLOS Case Nos. 3 & 4 Order of 27 August 1999 [43].

^[24] Interpretation of Peace Treaties with Bulgaria, Hungary and Romania [1950] ICJ Rep 65; See also Nii Lante Wallace-Bruce, The Settlement of International Disputes: The Contribution of Australia and New Zealand (1998) 4.

^[25] See generally, Senate Foreign Affairs, Defence and Trade Legislation Committee, Australian Senate, Official Committee Hansard Budget Estimates Hearing, 2 June 2004,159

<http://www.aph.gov.au/hansard/senate/commttee/S7648.pdf> .

^[26] UNCLOS, opened for signature 10 December 1982, 21 ILM 1261, art 279 (entered into force 16 November 1994).

^[27] The ICJ characterised the principle of peaceful dispute settlement as jus cogens in the Nicaragua Case (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14; See also Louis B. Sohn, ‘Settlement of Disputes Arising Out of the Law of the Sea Convention’ (1975) 12 San Diego Law Review 495, 497-498; and Wallace-Bruce, above n 24, 29 and 34.

^[28] Churchill, above n 6, 449.

^[29] Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore) (provisional measures) [2003] ITLOS Case No 12.

^[30] Ibid Separate Opinion of Judge Jesus, 2.

^[31] David Anderson, ‘Negotiation and Dispute Settlement’ in Malcolm D Evans (ed), Remedies in International Law: The institutional dilemma (1998), 111.

^[32] Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore) [2003] ITLOS Case No 12, Order of 8 October 2003 [48].

^[33] Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional Measures) ITLOS Case Nos. 3 & 4, Order of 27 August 1999 [60].

^[34] Mox Plant Case (Ireland v United Kingdom) (Provisional Measures) ITLOS Case No 10, Order of 3 December 2001 [60].

^[35] Article 88 of the Rules of the International Court of Justice and Article 105 of the Rules of the International Tribunal for the Law of the Sea allow parties to discontinue the proceedings ‘at any time before the final judgment on the merits’ if they so agree. This option has been utilized by Chile and the European Community in the Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community) ITLOS Case No 7.

^[36] UNCLOS, opened for signature 10 December 1982, 21 ILM 1261, art 298(2) (entered into force 16 November 1994).

^[37] Ibid art 281.

^[38] A/CONF.62/L.7 (1974), section 4, III Off. Rec. 85. An earlier draft of this article would have allowed a party to the dispute to resort to Part XV at any time, if the procedure chosen by the parties did not entail a binding decision. See also the Virginia Commentary, above n 4, 22-23.

^[39] UNCLOS, opened for signature 10 December 1982, 21 ILM 1261, art 281(2) (entered into force 16 November 1994).

^[40] Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore) [2003] ITLOS Case No 12, Response of Singapore 20 September 2003, 23-26.

^[41] Ibid Order of 8 October 2003, [53-57].

^[42] The Convention for the Conservation of Southern Bluefin Tuna, opened for signature 10 May 1993, [1994] ATS 16 (entered into force 20 May 1994).

^[43] Deborah Horowitz, ‘Southern Bluefin Tuna Case (Australia and New Zealand v Japan) (Jurisdiction and Admissibility): The Catch of Poseidon’s Trident: The Fate of High Seas Fisheries in the Southern Bluefin Tuna Case’ (2001) 25 Melbourne University Law Review, 810, 814.

^[44] Southern Bluefin Tuna (Jurisdiction and Admissibility) Award of 4 August 2000, reprinted in 39 ILM 1359, 1388 (2000); and available on the website of the International Centre for Settlement of Investment Disputes (ICSID) <http://www.worldbank.org/icsid/bluefintuna/main.htm> . The ‘parallelism of treaties’ finding reflects Judge ad hoc Shearer’s earlier view in the ITLOS Order that ‘the separate dispute resolution procedures provided for by article 16 of the CCSBT can be regarded as establishing a parallel but not exclusive dispute resolution procedure’.

^[45] Ibid 1384.

^[46] Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional Measures) ITLOS Case Nos. 3 & 4, Order of 27 August 1999.

^[47] David Colson and Peggy Hoyle, ‘Satisfying the Procedural Prerequisites to the Compulsory Dispute Settlement Mechanisms of the 1982 Law of the Sea Convention: Did the Southern Bluefin Tuna Tribunal Get It Right?’ (2003) 34(1) Ocean Development and International Law 59, 67; see also Barbara Kwiatkowska, ‘The Southern Bluefin Tuna Arbitral Tribunal Did Get It Right: A Commentary and Reply to the Article by David A Colson and Dr. Peggy Hoyle’ (2003) 34(3-4) Ocean Development and International Law 369; Jon M Van Dyke, ‘Louis B Sohn and the Settlement of Ocean Disputes’ (2000) 33 George Washington International Law Review 31.

^[48] Mox Plant Case (Ireland v United Kingdom) (Provisional Measures) ITLOS Case No 10, Separate Opinion of Judge Wolfrum, [5] (emphasis added).

^[49] North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany /Netherlands) (Merits) [1969] ICJ Rep 3, 47-48, [87].

^[50] Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore) [2003] ITLOS Case No 12, Order of 8 October 2003, [47-48], [52].

^[51] Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Provisional Measures) ITLOS Case Nos. 3 & 4, Order of 27 August 1999, [60].

^[52] Vigni P, ‘The Overlapping of Dispute Settlement Regimes: An Emerging Issue of International Law’ (2001) 11 The Italian Yearbook of International Law 139, 144-147.

^[53] Report of the Chairman of the Drafting Committee to the Plenary, Recommendations of the Drafting Committee, Part XV, UN Doc A/CONF.62/L.75/Add.1 (1981); Report to the Plenary on the recommendations of the Drafting Committee / presented by the Chairman of the Drafting Committee on behalf of the President and the Chairman of the First Committee, UN Doc A/CONF.62/L.82 (1981); see also Virginia Commentary, above n 4, 26-27.

^[54] Tullio Treves, ‘Conflicts between the International Tribunal for the Law of the Sea and the International Court of Justice’ (1999) 31 New York University Journal of International Law and Politics 809, 812. See also Tullio Treves, ‘The Jurisdiction of the International Tribunal for the Law of the Sea’ (1997) 37 Indian Journal of International Law 396, 416; and Robin R Churchill ‘Dispute Settlement in the Law of the Sea – the Context of the International Tribunal for the Law of the Sea and Alternatives to it’ in Malcolm D Evans, (ed) Remedies in International Law: The institutional dilemma (1998) 85, 99-100.

^[55] UNCLOS, opened for signature 10 December 1982, 21 ILM 1261, art 298(1) (entered into force 16 November 1994).

^[56] Ibid art 298(5).

^[57] Railway Traffic between Lithuania and Poland Case [1931] PCIJ (ser A/B) No 42, 116.

^[58] North Sea Continental Shelf Cases [1969] ICJ Rep 3, 47, [85(a)]. Although the Court in that case quoted with approval the PCIJ ruling in the Railway case (above n 57), it found that the parties had actually tried, but were not able, to reach agreement in the North Sea cases.

^[59] Proposals for specifying a fixed time limit for reaching agreement were put forth by Chile during the working group meetings at UNCLOS III, however, a consensus on this issue was not reached. Second Committee, 57^th meeting (1979), para. 49, XI Off. Rec. 60. See also Virginia Commentary, above n 4, 127.

^[60] Hansard, above n 25, 171.

^[61] The Hon. Alexander Downer MP Minister for Foreign Affairs Australia, ‘Timor Sea Talks to Resume’ (Press Release, 20 April 2005) <http://www.foreignminister.gov.au/releases/2005/fa045_05.htm.> .

^[62] Hansard, above n 25, 171.

^[63] Ibid 160.

^[64] SD.Gp/2^nd Session/No.1/Rev.5 (1975, mimeo.), article 17; reissued as A/CONF.62/Background Paper 1 (1976, mimeo.), article 17 (Co-Chairman, SD.Gp). See also Virginia Commentary, above n 4, 116.

^[65] UN Doc A/CONF.62/WP.10/Add.1 (1977), VIII Off. Rec. 65, 70 (President); see also Virginia Commentary, above n 4, 117.

^[66] UN Doc A/CONF.62/WP.10 (ICNT, 1977), article 297, VIII Off. Rec. 1, 48; see also Virginia Commentary, above n 4, 117.

^[67] Virginia Commentary, above n 4, 123.

^[68] UNCLOS, opened for signature 10 December 1982, 21 ILM 1261, art 298(1)(a)(i) (entered into force 16 November 1994).

^[69] Ibid.

^[70] Ibid art 298(1)(a)(iii).

^[71] Continental Shelf (Tunisia/Libyan Arab Jamahiriya) [1982] ICJ Rep 3; Continental Shelf (Libyan Arab Jamahiriya/Malta), [1985] ICJ Rep 13.

^[72] UNCLOS, opened for signature 10 December 1982, 21 ILM 1261, art 298(1)(a)(iii) (entered into force 16 November 1994).

^[73] Virginia Commentary, above n 4, 124.

^[74] Ibid.

^[75] Phosphates in Morocco (Preliminary Objections) [1938] PCIJ (ser A/B) No 74, 34-5; Electricity Company of Sofia and Bulgaria Case (Preliminary Objection) [1939] PCIJ (ser A/B) No 77, 142-4; Interhandel Case [1959] ICJ Rep 6, 21-3; Right of Passage Case [1960] ICJ Rep 6, 33-4.

^[76] Ibrahim Shihata, The power of the International Court to determine its own jurisdiction: Competence de la Competence (1965) 216.

^[77] Ibid 216; See also Sir Hersch Lauterpacht, The Development of International Law by the International Court (1958) 99; and Phosphates in Morocco (Preliminary Objections) [1938] PCIJ (ser A/B) No 74, 24.

^[78] Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, supplementary to the Agreement of 18 May 1971, opened for signature 9 October 1972, 1973 ATS 32 (entered into force 8 November 1973).

^[79] Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia [Timor Gap Treaty], opened for signature 11 December 1989, 1991 ATS 9 (entered into force 9 February 1991).

^[80] Timor Sea Treaty between the Government of East Timor and the Government of Australia [Timor Sea Treaty], opened for signature 20 May 2002, 2003 ATS 13 (entered into force 2 April 2003).

^[81] The Mavrommatis Palestine Concessions (Greece v United Kingdom) [1924] PCIJ (ser A) No 2, 35.

^[82] UNCLOS, opened for signature 10 December 1982, 21 ILM 1261, Annex V, Section 2, art 11(1) (entered into force 16 November 1994).

^[83] Ibid art 11(2).

^[84] Ibid art 13.

^[85] Ibid art 6.

^[86] Ibid art 7.

^[87] Second Committee, 57^th meeting (1979), para. 41, XI Off. Rec. 60; See also Virginia Commentary, above n 4, 125-127.

^[88] See the statement of the Netherlands, 125^th plenary meeting (1980), para. 34, XIII Off. Rec. 9; see also Virginia Commentary, above n 4, 129.

^[89] 126^th plenary meeting, para. 92, XIII Off. Rec. 17; See also Virginia Commentary, above n 4, 130.

^[90] National Interest Analysis tabled on 18 June 2002, Australian declarations under Articles 287(1) and 298(1)(a) of the United Nations Convention on the Law of the Sea 1982, lodged at New York on 22 March 2002 <http://www.austlii.edu.au/au/other/dfat/nia/2002/21.html> .

^[91] Eastern Carelia Opinion [1923] PCIJ (ser B) No 5, 27.

^[92] Southern Bluefin Tuna (Jurisdiction and Admissibility) Award, Reply on Jurisdiction of Australia and New Zealand, 31 March 2000 <http://www.worldbank.org/icsid/bluefintuna/replyonjurisdictionofANZ.PDF> .

^[93] 1988 ICJ Reports at 91; See also the Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Rep 3; and Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) [1984] ICJ Rep 392.

^[94] UNCLOS, opened for signature 10 December 1982, 21 ILM 1261, art 283 (entered into force 16 November 1994).