USCSCAP / CSCAP-PHL UNCLOS and Maritime Security in East Asia
Manila Hotel, 27 May 2014
Session 1
UNCLOS and Dispute Settlement
Jay L. Batongbacal, LLB, MMM, JSD Asst. Professor, UP College of Law
Director, UP Institute for Maritime Affairs & Law of the Sea
Notable Recent Events
Ayungin Shoal incidents, 2013-present
Notable Recent Events
Scarborough Shoal incidents, 2013-2014
Notable Recent Events
Obama visit / EDCA signing
Notable Recent Events
HS 981 drilling on VN continental shelf, 2014
Notable Recent Events
PH arrest of PRC (as well as PH) fishermen in Hasa-hasa Shoal
Notable Recent Events
Rapid reclamation/build-up of Johnson South Reef (2013-2014)
Dispute Settlement under UNCLOS
State Parties have express obligation to seek settlement by peaceful means (279)
comprehensive set of dispute settlement mechanisms
address disputes arising from interpretation and application of UNCLOS generally
classified and sequenced: procedures entailing non-binding and binding decisions
Dispute Settlement under UNCLOS
Generally, parties should try to settle first by “peaceful means chosen by the parties” (280)
IF there is another agreement between them which provides for submission to binding dispute settlement procedure, they such other agreement applies (282)
If not settled, and other procedures not precluded by initial means, then Part XV applies (281.1)
Step 1: Exchange of Views
1st recourse is to “proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means” (283.1)
also applies if procedure is terminated without settlement, or if settlement is reached (283.2)
bilateral process: negotiations, diplomatic intercourse
Step 2: Conciliation
One party may invite other to conciliation
if accepted, parties proceed under UNCLOS Annex V or other conciliation procedure of choice (284.1-2)
if not accepted, deemed terminated (284.3)
Conciliation mandatory if other party exercises UNCLOS Art 298 exceptions to procedures entailing binding decisions
Step 3: Compulsory Procedures
Four mechanisms available (287.1)
ITLOS Adjudication, Annex VI
ICJ Adjudication, Statute of the ICJ, UN Charter
Arbitration, Annex VII
Special Arbitration, Annex VIII
fisheries, MSR, MEP, navigation
Step 3: Compulsory Procedures
States-Parties should select procedure upon ratification/accession, or any time thereafter (287.1)
if no selection made, then deemed to have chosen Arbitration under Annex VII (287.3)
“Compulsory”
if parties selected same procedure, disputes submitted only to that procedure (287.4)
if parties selected different procedure, disputes submitted only to Arbitration under Annex VII (287.5)
parties may however agree to other procedure
decisions final and shall be complied with by all parties (296.1)
Dispute Settlement in SEA Region
Bilateral negotiations – esp. with close neighbours, border issues (eg. Indonesia, Malaysia, Vietnam, Philippines)
Adjudication
Singapore / Malaysia
Malaysia / Indonesia
Thailand / Cambodia
ASEAN mechanism – anticipative/preventive?
Issues in Use of UNCLOS Part XV
Prior to Resort to Procedure
recognition of the existence of a dispute
legitimacy of disputes
distinction between political disputes and legal disputes
framing of the legal dispute
Issues in Use of UNCLOS Part XV
Pending the Procedure
preservation of status quo pending proceedings
unilateral responses to the dispute
limits of self-restraint
preservation of relations
Issues in the Use of UNCLOS Part XV
After the Procedure
acceptance by respective constituencies
compliance (in case of compulsory procedures entailing binding decisions)
Role of Regional Organizations
advocacy for resort to dispute settlement procedures
moderation of extremist behaviour
acting as bridges between parties
support for parties resort to dispute settlement procedures