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The Way to Promote the Effectivity of the Dispute Settlement System under the UNCLOS Makoto SETA Yokohama City University
The Way to Promote the Effectivity
of the Dispute Settlement System
under the UNCLOS
Makoto SETA
Yokohama City University
Contents
Dispute Settlement System under
the UNCLOS
South China Sea Arbitration
Reactions against Arbitration
International Rule of Law
Conclusion 2
Dispute Settlement System under the UNCLOS (1)
Without their own consents, States are not
pursued their responsibility before court or
tribunal under international law
No States give consent when their lose is obvious
Device to give a prior consent has been invented
System provided in multilateral treaty
e.g. The case of the UNCLOS
Article 286: Application of procedures under this section
Subject to section 3, any dispute concerning the
interpretation or application of this Convention shall, where
no settlement has been reached by recourse to section 1, be
submitted at the request of any party to the dispute to the
court or tribunal having jurisdiction under this section.
Courts and Tribunals under the UNCLOS(1)
4
Article 287: Choice of procedure
1. When signing, ratifying or acceding to this Convention or
at any time thereafter, a State shall be free to choose, by
means of a written declaration, one or more of the
following means for the settlement of disputes concerning
the interpretation or application of this Convention:
(a) the International Tribunal for the Law of the Sea
established in accordance with Annex VI;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with
Annex VII;
(d) a special arbitral tribunal constituted in accordance with
Annex VIII for one or more of the categories of disputes
specified therein.
…
Courts and Tribunals under the UNCLOS(2)
5
Article 287: Choice of procedure
3. A State Party, which is a party to a dispute not covered by
a declaration in force, shall be deemed to have accepted
arbitration in accordance with Annex VII.
4. If the parties to a dispute have accepted the same
procedure for the settlement of the dispute, it may be
submitted only to that procedure, unless the parties
otherwise agree.
5. If the parties to a dispute have not accepted the same
procedure for the settlement of the dispute, it may be
submitted only to arbitration in accordance with Annex VII,
unless the parties otherwise agree.
…
Courts and Tribunals under the UNCLOS(3)
6 Special arbitral tribunal Arbitral tribunal
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Article 3 of ANNEX VII of the UNCLOS
Constitution of arbitral tribunal
For the purpose of proceedings under this Annex, the
arbitral tribunal shall, unless the parties otherwise agree,
be constituted as follows:
(a) Subject to subparagraph (g), the arbitral tribunal shall
consist of five members.
(b) The party instituting the proceedings shall appoint one
member …
(c) The other party to the dispute shall, …, appoint one
member …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).
Constitution of Arbitral Tribunal(1)
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Article 3 of ANNEX VII of the UNCLOS
Constitution of arbitral tribunal
(d) The other three members shall be appointed by
agreement between the parties. ... If, within 60 days of
receipt of the notification referred to in article l of this
Annex, the parties are unable to reach agreement …, the
remaining appointment or appointments shall be made in
accordance with subparagraph (e), at the request of a party
to the dispute. Such request shall be made within two
weeks of the expiration of the aforementioned 60-day
period.
(e) Unless the parties agree that any appointment under
subparagraphs (c) and (d) 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…
Constitution of Arbitral Tribunal(2)
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Constitution of Arbitral Tribunal(3)
State
A
State
B Dispute under the
UNCLOS
Agreement
30 Days
60 Days
ITLOS President
Arbitrator Arbitrator Arbitrator Arbitrator Arbitrator
Dispute Settlement System in the UNCLOS (2)
Jurisdiction of a court or tribunal
Article 288 Jurisdiction
1. A court or tribunal referred to in article 287 shall have jurisdiction
over any dispute concerning the interpretation or application of this
Convention which is submitted to it in accordance with this Part.
2. A court or tribunal referred to in article 287 shall also have
jurisdiction over any dispute concerning the interpretation or
application of an international agreement related to the purposes of
this Convention, which is submitted to it in accordance with the
agreement.
…
4. In the event of a dispute as to whether a court or tribunal has
jurisdiction, the matter shall be settled by decision of that court or
tribunal.
compétence de la compétence
Dispute Settlement System in the UNCLOS (3)
Effect of a decision of a court or tribunal
Case of other institutions…
Article 60 of the ICJ Statute
Article 44 of the European Convention on Human
Rights
Article 296: Finality and binding force of decisions
1. Any decision rendered by a court or tribunal having
jurisdiction under this section shall be final and shall be
complied with by all the parties to the dispute.
2. Any such decision shall have no binding force except
between the parties and in respect of that particular
dispute.
Dispute Settlement System in the UNCLOS (4)
Participation in a System means giving a
consent to the system as a whole
Participation in the UNCLOS means accepting the
procedure and effect of the Dispute Settlement System.
South China Sea Arbitration(1):
Philippine’s Claims
Philippine made 15 submissions
1. The “Nine-Dash Line” and China’s Claim to historic rights in the Maritime Area of the South Chin Sea (SUBMISSIONS NO. 1 AND 2)
2. The Status of Features in the South China Sea (SUBMISSIONS NO. 3 TO 7)
3. Chinese Activities in the South China Sea (SUBMISSIONS NO. 8 TO 13) .
4. Aggravation or Extension of the Dispute between the Parties (SUBMISSION NO. 14)
5. The Future Conduct of the Parties (SUBMISSION NO. 15)
South China Sea Arbitration(2):
Chinese Position
Did not participate in the proceeding
Did not select any Arbitrator
Did not appear before the Tribunal
Released “Position Paper of the Government of
the People's Republic of China on the Matter of
Jurisdiction in the South China Sea Arbitration
Initiated by the Republic of the Philippines” in 7
December 2014
Tried to deny the tribunal’s jurisdiction
Tried to justify its non participation in the
proceeding
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Constitution of Arbitral Tribunal(3)
State
A
State
B Dispute under the
UNCLOS
ITLOS President
Arbitrator Arbitrator Arbitrator Arbitrator Arbitrator
16
Fire has been focused on the person who picked the arbitrators –
Japanese judge Shunji Yanai, who has been branded a “rightist” and
“unfriendly to China”.
17
“Before deciding the arbitrators, I sent candidate proposal
to Chinese government to reflect its views, but never got
any reply.”
“The people I chose are impartial and faithful.”
South China Sea Arbitration(3):
Decision of Jurisdiction
Decision of Jurisdiction in October 2015 Submission No. Philippines’ Claim Decision
NO. 1 AND 2 The “Nine-Dash Line” and China’s
Claim to historic rights in the
Maritime Area of the South Chin Sea
Deferred to merits stage
NO. 3 TO 7
The Status of Features in the South
China Sea
Partly deferred to merits
stage
and partly granted
NO. 8 TO 13 Chinese Activities in the South China
Sea
Partly Deferred to merits
stage
and partly granted
NO. 14 Aggravation or Extension of the
Dispute between the Parties
Deferred to merits stage
NO. 15 The Future Conduct of the Parties Deferred to merits stage
South China Sea Arbitration(4):
Decision on Merit Decision of Merits in July 2016
Submission No. Decision
NO. 1 AND 2 Since UNCLOS comprehensively governs the parties’ rights
to maritime areas in the South China Sea, China’s nine-dash
line is invalid.
NO. 3 TO 7
None of the features in the Spratly Islands do not fall within
the scope of island which generates an EEZ and Continental
Shelf.
NO. 8 TO 13 China violated UNCLOS by preventing Philippine fishing
around Scarborough Shoal, giving negative impact on
maritime environment through construction and fishing
activities, and operating law enforcement vessels around
Scarborough Shoal.
NO. 14 China has aggravated and extended the disputes through its
construction activities.
Reaction against the Award(1):
Chinese government
With regard to the award rendered on 12 July 2016 by the
Arbitral Tribunal in the South China Sea arbitration
established at the unilateral request of the Republic of the
Philippines (hereinafter referred to as the "Arbitral Tribunal"),
the Ministry of Foreign Affairs of the People's Republic of
China solemnly declares that the award is null and void and
has no binding force. China neither accepts nor recognizes it.
Critique of the reaction of Chinese government
Article 296: Finality and binding force of decisions
1. Any decision rendered by a court or tribunal having
jurisdiction under this section shall be final and shall be
complied with by all the parties to the dispute.
2. Any such decision shall have no binding force except
between the parties and in respect of that particular
dispute.
Article 288 Jurisdiction
4. In the event of a dispute as to whether a court or
tribunal has jurisdiction, the matter shall be settled by
decision of that court or tribunal.
2. Japan has consistently advocated the importance of the
rule of law and the use of peaceful means, not the use of
force or coercion, in seeking settlement of maritime disputes.
3. As the Tribunal’s award is final and legally binding on the
parties to the dispute under the provisions of UNCLOS, the
parties to this case are required to comply with the award.
Japan strongly expects that the parties’ compliance with this
award will eventually lead to the peaceful settlement of
disputes in the South China Sea.
Reaction against the Award(2): Japanese government
9. The Russian Federation and the People’s Republic of China emphasize
the important role of the 1982 United Nations Convention on the Law of
the Sea in maintaining the rule of law relating to activities in the Oceans.
It is of utmost importance that the provisions of this universal treaty are
applied consistently, in such a manner that does not impair rights and
legitimate interests of States Parties and does not compromise the
integrity of the legal regime established by the Convention.
Position of Chinese government against the UNCLOS
International rule of law from Chinese view(1)
Fourth, we must uphold the authority of international law, so
as to maintain the credibility of international rule of law.
Laws must be enforced in a just manner. All countries must
make international law their common yardstick, exercise
their rights in its accordance, fulfill their obligations in good
faith and ensure the equal and universal application of
international law. National and international judicial
institutions should avoid overstepping their authority in
interpreting and applying international law. Still less should
they encroach on the rights and interests of other countries
under the pretext of “the rule of law” in total disregard of
objectivity and fairness.
WANG Yi, “China: a Staunch Defender and Builder of the
International Rule of Law”, Chinese Journal of International
Law, Vol. 13 (2014), p. 638.
Chinese Society of International Law published a
paper named “South China Sea Arbitration Awards: A
Critical Study” in May 2018.
The relationship between this paper and
government’s view is unclear.
The paper refers the rule of law in the following
manners:
The Tribunal’s awards contravene the law, set an ill precedent,
and threaten to undermine the international rule of law.
China’s policies and practice show that China has been making
strong efforts to uphold the integrity and authority of the
Convention, champion the international rule of law, and promote
a peaceful and stable regional maritime order, and that this
position will strengthen.
International rule of law from Chinese view(2)
Different View on International Rule of Law
State Parties do not need
to comply with wrong
decisions of international
courts and tribunal,
because it undermines the
international rule of law
Whatever decisions are
made, it is important to
comply with decisions of
international courts and
tribunals, for the sake of
international rule of law.
To share the understanding of
“international rule of law” is important
Conclusion (1)
It is natural that the parties have dissatisfaction with
decisions of international courts and tribunals,
especially when they lose the case
It is also true that to some extent those
dissatisfactions are reasonable
Even if some decisions in the awards are wrong, this
fact does not make the decision of courts and
tribunals null and void.
Participation in the UNCLOS means accepting the
procedure of the Dispute Settlement System.
However
Conclusion (2)
The understanding of “the rule of law” seems
different.
In order to make the dispute settlement
system under the UNCLOS more effective,
understanding of the notion of “the
international rule of law” must be shared.
Given the important role of the third party,
acceptance of decisions of international courts
and tribunals seems an important factor to
promote this share.
