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