Arbitration A Promising Alternative of Dispute

Settlement under the Law of the Sea Convention?

-

Karin Oellers-Frahm"

I. Introduction

Arbitration is
interstate

one

dispute

of the oldest and

settlement.

Support

probably
for this

most

effective methods of

statement can

be found

in

the

"Repertory of International Arbitral Jurisprudence" (edited by V.

Coussirat-Coust and P.M. Eisemann) which comprises two
impressive volumes of cases decided between 1946 and 1988 only. This
collection of arbitral and

quasi-arbitral awards demonstrates not only the

settled by arbitration but also the variety of
of
which
have been settled by arbitration. A further
disputes
categories
confirmation of the statement that arbitration is the primary option for
binding third party dispute settlement is afforded by the fact that bilateral, as well as multilateral, agreements on the one hand increasingly contain dispute settlement clauses and on the other hand opt primarily for
arbitration as the mechanism for dispute settlement. In particular, codifienormous

number of

cases

cation conventions concluded under the auspices of the United Nations

clearly demonstrate the trend towards arbitration clauses. While early in

the practice of the United Nations treaties drafted under its auspices contained clauses conferring jurisdiction on the International Court of justice
decide

disputes concerning interpretation or application', the trend

include instead clauses conferring jurisdiction on arbitral tribunals. There are several reasons for this change: firstly, States had made
reservations concerning clauses conferring jurisdiction on the Internato

now

is

Dr.

to

jur.,

Research Fellow

at

the Institute.

Cf. for further information L.B. Sohn, The Role of Arbitration in Recent International and Multilateral Treaties, Virginia journal of International Law 23 (1982/83), 171 et
seq. and footnote 1 p. 172.

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Oellers-Frahm

458

tional Court of

permissible

Court held that such reservations

justice and the

secondly,

submission

to

the

compulsory jurisdiction

severely limits the

readily accepted by them.

International Court of justice

States and therefore is

Thus,

it can

promising

not

were

of the

sovereign power of

present arbitration represents the most

third
binding
party dispute settlement because it
of
influence
to the parties concerned 3, such as
degree

be stated that

at

method of

rather

large
composition of the tribunal, the choice of the applicable law, the rules
of procedure, the seat of the tribunal and even the limits of the powers of
the tribunal by a narrowly defined request. In addition it can also be said
that because of the necessary cooperation of the parties to the dispute in
creating the arbitral tribunal this positive cooperation is already a sign for
the success of the arbitration while their negative attitude, i.e. any refusal
to cooperate, indicates a possible future unwillingness to accept the award
and, more generally speaking, demonstrates normally a general non-acceptance of third party dispute settlement.
leaves

the

IL State Practice in Law

of the

Sea

Disputes

Looking now more specifically at the practice of dispute settlement in

cases concerning law of the sea disputes, it is clear that the above statements find confirmation also in this particular field of international law.
Here is not the place to review in detail the numerous decisions concerning the law of the sea disputes, but it can be stated that arbitration
has been clearly the preferred dispute settlement mechanism in this field.
The International Court of justice, the most important organ of interjurisdiction, and the alternative forum to arbitration concerning

national

the settlement of international

cide

quite

disputes,

series of law of the

sea

has in fact been

cases,

such

as i.e.

Case4, the Fisheries Case5, the North Sea Continental

Fisheries
2

requested to deCorfu Channel

Shelf CaseS6' the

the

jurisdiction Cases7 and theJan Mayen Case8.

Advisory opinion,

Reservation

to

the Convention

on

the Prevention and Punishment

of the Crime of Genocide, I.C.J. Reports, 1951, 15 et seq.

3
Cf. R.-J. D u p u y/D. V i g n e s, A Handbook on the New Law of the Sea, 1991,
1344.
4

5
6

United KingdomlAlbania, I.C.J. Reports 1949, 4.

United KingdomlNorway, I.C.J. Reports 1951, 116.
Federal Republic of GermanylNetberlands, Federal

I.C.J. Reports 1969,

7

United

Republic of GermanylDenmark,

3.

KingdomlIceland,

Federal

Republic of GermanylIceland, I.C.J. Reports

and 175.
8

DenmarklNorway, LCJ. Reports

1993, 38.

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1974,

Arbitration

The

Promising

AlternatiVe of

Dispute

459

Settlement

interesting aspect of the activity of the Court

disputes has to be seen however in the increased

in

most

maritime

Court for such

cases

since

the amendment of its rules of

use

settling
of the

procedure

in

but

to
so as to permit submission of a case not to the full court
ad hoc chamber in accordance with Art. 26 (2) of the Statute9. The
the fact
most interesting particularity concerning use of these chambers is

1972/78

an

parties to the dispute have some influence, if not a decisive imthe composition of the chamber which will hear the case. This
pact,
similar to the parties' involvement in the composition of an aris
aspect
bitral tribunal. States have voluntarily made use of the Court by submitting to it several maritime boundary delimitation cases to be decided by
ad hoc chambers. This procedure, which had been chosen in a large
number of maritime cases confirms once again the preference States give
that the

on

to

arbitration for the settlement of law of the

It is,

therefore,

not

surprising

that the

the Law of the Sea Convention took

account

settlement

means

of

machinery

of such State

dispute

of

practice by

of substitute

or

settlement is available

or

arbitration, namely the

according special place

default-procedure if no other
to

disputes.

sea

dispute

one

effective.
thus be interpreted as an indication for the
mechanisms of the Law of the Sea
settlement
effective use of the dispute
Convention, in particular, arbitration as the default procedure. In order
to appreciate whether this expectation is well founded we have to look at

The

the

remarks

foregoing

dispute

III. The

can

settlement system of the Convention

Dispute Settlement System under the

in more

Law

of the

detail.

Sea Convention

The United Nations Law of the Sea Convention of 1982 contains what
to as a model of a sophisticated system of dispute settle-

has been referred

There

ment.

are

several

1. In the first

of the

problems

place

reasons

for this

assessment:

the 1982 Law of the Sea Convention took

concerning

dispute

resolution

procedures

account

contained

in

F r a h m, Die Verfahrensordnung des IGH

context refer to K. 0 e I I e r s
18
V61kerrechts
des
Archiv
(1979/80), 309 et seq. and 1 d., Die B111978,
April
dung emer ad hoc-Kammer des Internationalen Gerichtshofs gernig Art. 26 Abs.2 des
Statuts, Archiv des V61kerrechts 21 (1983), 316 et seq.
9

vom

Cf. in this

14.

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460

Oellers-Frahm

other

codifying

Law

of the Sea.

treaties in connection with the 1958 Conventions

the

on

the

Convention'O contained

example,
Fishing
provisions for the settlement of certain disputes under that
Convention by ad hoc commissions. Each commission was to be composed of five members and could give binding decisions. However, the
procedure was never applied in practice. For the other three Geneva
Conventions on the Law of the Sea, the 1958 Conference adopted an
optional protocol relating to the settlement of disputes, which was accepted merely by about forty States". The Protocol was not ratified by
the United States nor the Soviet Union. This Protocol provided for the
submission of disputes arising out of the application and interpretation
For

elaborate

of these Conventions

parties

to

the

the International Court of

dispute agreed

mencement to an

to

to

submit the

to

arbitral tribunal.

dispute

it

within

the

Alternatively,

justice, unless the

months of

two

its com-

parties could

agree

conciliation commission, but if the commisaccepted by the parties within two months of its
to a

sion's report was not

delivery, either party could

mechanism of

submit

providing

bring

the

matter

before the Court. The

for the settlement of

disputes by optional proAlthough the optional protocol system provided for a rather watertight system of dispute settlement it had the disadvantage that not all parties to the Convention were also parties to the protocol. Thus, there was no forum available for the settlement of a dispute if not all parties to that dispute
had ratified the protocol. Taking this concern into account the Third
Law of the Sea Conference insisted on including the dispute settlement
system in the Convention whereby each State party to the Convention
was also party to the dispute settlement system13.
2. Another reason for characterising the dispute settlement system
tocols

was

followed in

some

other Conventions12.

under the Law of the Sea Convention

as a model one is the fact of its

and
does
not allow for a detailed reflexibility. Although space
variety
view of the rules of the Convention, a short overview is necessary in

10

Convention

April 29, 1958,

11
Optional
April 29, 1958,
12

Fishing

and the Conservation of

Protocol of

1969 Convention

Cf. L.B.

Living

Resources of the

High Seas,

Signature Concerning

the

Compulsory

Settlement of

Disputes,

450 UNTS 169.

1961 Vienna Convention

Relations;
13

on

559 UNTS 285.

on

on Diplomatic Relations; 1963

Special Missions, to cite only few

Sohn, The Role of Arbitration

in

Convention

on

Consular

of them.

Recent International Multilateral

Treaties, Virginia journal of International Law 23 (1982/83),

171

et

seq.

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Arbitration

order

to

place the r6gime of the

framework of law of the

general

461

Promising Alternative of Dispute Settlement

Law of the Sea Convention

in

the

more

settlement.

dispute
long and difficult discussions which will not be recounted here14,
the dispute settlement mechanism finally agreed to and set forth in Part
XV of the Convention is characterized by the following main features:
a) In the first section, reference is made to the basic obligations of all
States Parties to the Convention to settle all disputes concerning the interpretation and application of the Convention by peaceful means (Art. 279).
This Article thus explicitly confirms the obligation laid down in Art. 33
sea

After

of the Charter of the United Nations. Art. 280 of the Convention

principle making it clear that the parties to a dispute

in choosing the procedure to be used for the settlecompletely
ment of their dispute. Thus the State parties are not bound by the
mechanisms provided for in Part XV of the Convention. However, if the
procedure chosen by the parties does not lead to a settlement of the dispute, the parties may return to the basic procedures of Part XV, Section 1
(Art. 281). A very important provision which insures the efficiency of
the dispute settlement rules in the Convention is Art. 282 which gives
priority to dispute settlement procedures agreed to in other general, regional or bilateral agreements which lead to a binding decision and includes also acceptance of the jurisdiction of the International Court of
justice according to Art. 36 para. 2 of its Statute. A fundamental
provision meant to keep the disputing parties in contact is Art. 283 which
requires the parties to exchange views at any stage of the dispute and even
after the dispute has been resolved in order to implement the final settlement or decision. This obligation corresponds to the basic requirement of
reasonable behaviour during the negotiating process and constitutes an
explicit concretization of the obligation of all parties to the Convention
"to fulfil in good faith the obligations assumed under this Convention" as
laid down in Art. 300 of the Convention. Finally, Section I outlines the
option of non-binding conciliation (Art. 284). A State party may invite
the other party(les) to the dispute to submit the dispute to conciliation.
Both parties must agree on conciliation as a means of resolving the dispute and on the procedure for conciliation. For disputes dealing with
deep seabed mining, non-State parties also may invoke the conciliation
reiterates this basic

free

are

14

Cf.

to

S.

Ros

en n

e/L.B. S o h

Sea, 1982, A Commentary, vol. V,

n,

United Nations Convention

on

the Law of the

seq. and to A.L.C. D e M e s t r a 1, Compulsory

Settlement in the 11ird United Nations Convention on the Law of the Sea: A

Dispute

Canadian
Louis B.

Perspective,

in:

et

Contemporary

Issues

Sohn, ed. by T. Buergenthal, 1984,

171

in

et

International Law,

Essays

in Honour of

seq.

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Oellers-Frahm

462

procedure (Art. 285). However, in order to have the dispute settled by

peaceful means, the failure to resolve disputes using the methods under
Section 1 of Part XV of the Convention leads

to

the

invocable

2 which contains

application of Section
by any party to the

compulsory procedures
dispute.
b) The dispute settlement machanisms envisaged in Section 2 are both
compulsory and binding. Each party to the Convention is bound by the
dispute settlement mechanisms of Section 2 by its ratification of the Convention; no further submission is required. However, these procedures
are subsidiary to the choice left to the states concerning another method
of dispute settlement under Section I and importantly, not all categories
of disputes are covered by Section 2, the exceptions being laid down in
Section 3.

to give a short summary of the sytem laid down in Section 2 it

suffice
to state that the central provision, Art. 287, gives an option
may
the
States
to
parties to the Convention to choose between the following
dispute settlement procedures by means of a written declaration: 1) the

In order

International Tribunal for the Law of the Sea, 2) the International Court
of justice, 3) an arbitral tribunal constituted in accordance with Annex

4) a special arbitral tribunal for the settlement

fisheries,
protection and preservation of the
concerning
marine environment, marine scientific research, or navigation and pollu-

VII

of

to

the Convention, and

disputes

tion

by

of the

vessels. These

sea matters

courts

submitted

the Convention. The

and tribunals have

to

them

applicable

law is

jurisdiction over all law

provisions of

accordance with the

in

not

such other rules of international law which

only

the Convention but also

incompatible

are not

with the

Convention. At the request of the parties, the court or tribunal may even
make its decision ex aequo et bono. The decisions are binding as between

the parties. However, with respect to implementation, there is no provision comparable, for example, to Art. 94 of the Charter which empowers
the Security Council to enforce judgments of the International Court of

justice under

certain

pulsory procedure,

circumstances.

Since all

but have the choice

to

parties

submit

are

bound

by

to one or more

a com-

of the

alternatives of Art. 287, the specific procedure to be applied in case of a

dispute is the one that both parties have chosen. If they have not accepted
the

same

procedure,

the

dispute

is submitted

to

arbitration

in

accordance

with Annex VII, which defines the dispute settlement procedure applicable in any case where the parties have not reached a settlement of the
dispute under Section 1, or where no other category of procedure is ac-

cepted by

both of them.

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Arbitration

Alternative of

Promising

Dispute

463

Settlement

arbitration is the residual

c) Thus,

dispute settlement mechanism. No

peaceful dispute resolution unless one of the exceptions
provided for in Section 3 are present. Those exceptions
types of disputes that arise out of a coastal State's dis-

State may escape

and limitations
concern certain

sovereignty with respect to the uses of its exclusive

as some optional categories of disputes such as sea
boundary delimitation, military activities and certain law enforcement

cretionary

exercise

economic

measures

zone as

of

well

connected with the exercise of sovereignty within the coastal

economic zone and disputes over which the Security

State's exclusive

Council of the United Nations has exercised its

IV.

Importance of Arbitration as
the Law

In

the

evaluating

Metbod

jurisdiction (Art. 298).

of Dispute

Settlement under

of the Sea Convention

importance

of arbitration

on

the basis of the above

dispute settlement system of the Law of the Sea Convention,

three aspects have to be examined:
outlined

1) the actual
limitations and

2) the
ments

compulsory dispute
set out

room

settlement in

light

of the

in Section 3;

dispute settlement
prevail over the dispute
of

clauses contained in other

settlement

machinery

instru-

of the Con-

left for arbitration under the Convention with further

sideration of the

provided

of

exceptions

extent

which

vention;
3) the

extent

advantages

for in Annex VII

or
as

con-

disadvantages of the arbitration procedure

compared with those available under gen-

eral international law.

1. The actual

extent

of

compulsory dispute settlement in light

exceptions according to Section 3 of

of the limitations and

Part XV
to identify maritime disputes which qualify for compulsory
procedures it is necessary to provide an overview of those
of disputes for which limitations and exceptions are admitted

In order

settlement

categories
under Section 3 of Part XV.
For this purpose the

and the relative

31

dispute

following
settlement

classification of categories of
provisions may be useful:

disputes

ZabRV 55/2

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464

a)

Clellers-Frahm

Exercise

by

the coastal State

of its soverez.gn rz.ghts

or

Jurisdiction provided for in

the Convention
In this category the Convention contains an enumeration of those disputes that must be settled by compulsory procedures; all other disputes
are consequently not subject to compulsory dispute settlement. Accordingly, disputes relating to the freedoms and rights of navigation, overflight, laying of submarine cables and pipelines or other internationally
lawful uses of the sea as specified in Art. 58 of the Convention are subject
to compulsory procedures (Art. 297 paragraph 1
a) and b)). The scope of
these disputes, in fact, is very limited, so that recourse to compulsory
jurisdiction will be rather exceptional. The same is true "when it is alleged
that a coastal State has acted in contravention of specified international

rules and standards for the protection

ronment"

(Art.

or

preservation

of the marine envi-

297

Paragraph I c)). Here, too, full protection through

compulsory procedures is provided for. Although in this field disputes
are very likely to arise, it does not seem
very probable that they will be
settled under the rules provided for in Section 2 of Part XV of the Convention, that means arbitration according to Annex VII if no other procedure has been agreed to, as there are many special dispute settlement
mechanisms laid down in other instruments in this field which, according
to Art. 286, have precedence over the mechanisms provided for in the
Convention15.

b) Marine scientific research

In this

area

which States

the Convention

are

According

n o

obliged

enumerates

to

Art. 297

submit

the

categories of disputes

compulsory dispute settlea)(i) disputes concerning the

to

paragraph 2
right or discretion laid down in Art. 246
of the Convention are not subject to compulsory dispute settlement as
well as, according to Art. 297 paragraph a) (ii), disputes
concerning the
decision of a coastal State to order suspension or cessation of a research
project in accordance with Art. 253 of the Convention.
ment.

exercise

15

to

of the coastal State of

Cf. infra IV. 2.

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Arbitration

Alternative of

Promising

Dispute

465

Settlement

c) Fisheries
witb respect

living resources in
subject to compulsory settlement (Art. 297 paragraph 3 a)). All other disputes concerning
fisheries, and there remains only fisheries in the high seas, have to be
settled in accordance with the compulsory procedures. In this field, however, disputes will arise mainly over issues relating to the conservation of
fishery resources or the adoption of any scheme for allocation of these
resources
among nations. Thus, disputes will normally not be of a
predominantly legal character suitable for submission to judicial settlement, so that it may be doubtful whether the compulsory dispute settleDisputes concerning

the exclusive economic

ment

sovereign
zone or

of the Convention will be

rights

their

exercise are

applicable to

to

not

those cases16.

d) Sea boundaries
All

disputes

boundary

sea

concerning

historic titles may be

excepted

from

delimitation

compulsory

or

historic

settlement

by

bays

or

declaration

paragraph 1 a)). As State practice shows these are the majority

disputes which have been settled until now by ad hoc arbitration, the

(Art.
of

298

International Court of justice

Court, by

an

or,

since the amendment of the Rules of the

ad hoc chamber created

according

to

paragraph

Art. 26

2 of

the Statute of the Court. Since, however, the provisions concerning the
optional exception relating to sea boundary delimitation are not applicable

to

disputes

which have

before the Convention has entered

arisen

force, there remains considerable

room in

this field for the

into

application

of

compulsory dispute settlement procedures. In the light of the State practice developed to date it seems nonetheless more probable that the States
concerned will find agreement on the particular procedure to be followed
for the settlement of their sea boundary disputes, although, in the event
of the unwillingness of one of the parties concerned to so agree, arbitration

under Annex VII of the Convention may be resorted

lution of this kind of

16

Cf. S.

on

Judge Manfred Lachs,

for the

reso-

disputes.

Oda, Some Reflections

Nations Convention

to

on

the

Dispute
Essays

the Law of the Sea, in:

1984, 645

et

Settlement Clauses in the United

in International Law in Honour of

seq., 654.

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466

Oellers-Frahm

e) Military activities

Military
ercise of

activities and law enforcement activities with

sovereign rights

or

jurisdiction

may be

regard

excepted

the

to

from

ex-

compul-

declaration (Art. 298 paragraph I b)). Since all major

naval powers insisted on such an optional exception, it can be expected
that they will avail themselves of this possibility.
sory settlement

by

Disputes in respect of which

the UN

assigned to

it

Security Council exercises the functions

by

the UN Charter

Disputes of this kind may be declared by States not to be accepted for

compulsory jurisdicton (Art. 298 paragraph 1 c)). This option seems logical because those disputes may be considered to be political by nature.
The prime responsibility of the Security Council in preserving peace and
the fact that the provisions of the United Nations Charter have precedence over all other international instruments explain why this category
of disputes may be excepted from compulsory jurisdiction under the
Convention.

Summarizing the above

disputes
ment

that

include

dispute'7,

are

primarily

those

i.e. certain

as

enforcement

sovereignty,

overview it may be noted that the categories of

or may be excepted from compulsory settle-

excluded

which

the

most likely to lead to

fishing issues, the exercise of coastal State
authority and any decision concerning foreign
matters

are

research within the EEZ.

Finally,
exceptable

in order

from

to complete the picture of the disputes excepted or

compulsory settlement, and in the last resort, arbitral

settlement under the Law of the Sea Convention,

mention must

also be

made of all those types of disputes that have been attributed to the International Sea Bed Disputes Chamber, a special Chamber of the International Tribunal for the Law of the Sea created under the Convention. The

jurisdiction of the Chamber embraces nearly all disputes relating to seabed mining, except some particular kinds of disputes which are subject to
other procedures, however not relating to Section 2 (Annex VI, Art. 36)
and some disputes which are completely exempt from any dispute settlement procedure (Art. 186-191)18.
17

Cf. B

x, The Diminishing Prospects for an Acceptable Law of the Sea Treaty,

of International Law, 19 (1979), 249 et seq., 287
18
Cf. to L.B. S o h n, Peaceful Settlement of Disputes in Ocean Conflicts: Does
UNCLOS III point the way? in: Law and Contemporary Problems 46 (1983), 195 et seq.
r

a u

Virginia Journal

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Arbitration

Promising

Alternative of

Dispute

467

Settlement

Thus, arbitration under the compulsory system of the Convention is

applicable to those kinds of disputes which, in the past, have been
settled by voluntary resort to arbitration, a method which hopefully will
be chosen also for such disputes in the future. From the above discussion,

not

to be drawn is that for some categories of disputes,

which have arisen in the past and probably will arise also in the future,
arbitration under the Law of the Sea Convention will not be applicable
because they are not covered by the compulsory dispute settlement pro-

the first conclusion

cedures.

2. The

extent

of

dispute settlement clauses in other

prevail over the dispute settlement

instruments which

machinery

of the Law of the Sea Convention

categories of disputes that remain for compulsory dispute

they neither fall under the limitations in Art. 297 nor
under the exceptions in Art. 298 of the Convention might not necessarily
be settled by one of the procedures in Section 2 of Part XV of the Convention. As already stated above, the dispute settlement mechanism of the
Convention is subsidiary to other methods agreed upon by the States
Even those

settlement because

(Art.

282 and 286 of the

ered whether and

the

use

of the

tration in

to

dispute

the last

Convention). Consequently, it

must

be consid-

such instruments are likely to pre-empt

settlement mechanism of the Convention, i.e. arbi-

what

extent

resort.

doubt that the number of international agreements containhas increased

ing obligations for the settlement of disputes between States
realm
of general
the
in
is
This
the
last
in
so not only
significantly
years.

There

is no

agreements for the settlement of disputes, but in particular as to special

fields of disputes, inter alia those concerning the law of the sea. While it
is not possible and not necessary to give a complete overview of these
agreements, a review of some particular examples will help to indicate the
likelihood of the application of Part XV, Section 2 of the Convention.
a) Considering first general agreements relating to dispute settlement
mention

can

be made

on

the multilateral

level,

to

e.g. the

Hague

Conven-

Disputes of 1907, the General Acts for the Pacific Settlement of International Disputes of 1928 and
1949, the European Convention for the Peaceful Settlement of Disputes

tion

on

the Pacific Settlement of International

of 1957, the new CSCE Conciliation and Arbitration Convention of

1992, and, last but not least, the Statute of the International Court of
justice; on the bilateral level reference may be made particularly to the

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468

Oellers-Frahm

treaties of

numerous

friendship,

into further detail it

ing

can

treaties for the settlement of

be discussed here

not to

aimed

the

never met

overcoming

at

has

disputes

such treaties. The failure of such

treaties

commerce

and

be stated that the

treaties

navigation.

application

for several

expectations

has led

to

Without go-

of those

reasons

general

which

are

of the authors of

the conclusion of

the weaknesses of the former

ones.

new

Despite

these efforts, however, an acceptable and universally workable solution

has not been found, since it is not the treaties on dispute settlement which
blame for

are to

but the attitude of States towards any general

by requiring them to

non-use,

which limit their sovereign powers

third party dispute settlement.

obligations
submit

to

b) Thus, States
ment of disputes

normally

are
in

relation

more

to

inclined

special

to

matters.

accept third party settleAccordingly, there is a

great number of multilateral and bilateral agreements in the field of the

law of the sea containing dispute settlement procedures. Examples include

the

agreements concluded under the auspices of the International

Maritime Organization (IMO), which provide for arbitration of disputes

under them.

arising

Of greater importance, however, are those agreements which relate

marine matters and contain special dispute settlement procedures, such
the

European Fisheries

tion

Relating

to

to
as

Convention of 1964, the International Conven-

Intervention

on

the

High

Seas in Cases of Oil Pollution

Casualties of 1969, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters of 1972, the Agreement
for the Reduction of

Dolphin Mortality

in the Eastern Pacific Ocean of

1992, the Convention on the Protection of the Marine Environment of

the North-East Atlantic of 1992, the Antarctic Treaty Convention on the
of Antarctic Mineral Resource Activities of 1988 and the
Environmental Protection to the Antarctic Treaty of 1991, to
mention only the most significant ones. Although not all of them are in

Regulation
Protocol

on

force

will

Treaty

or

not enter

Convention

on

into force

the

at

all, like for example the Antarctic

Regulation

of Antarctic Mineral Resources Ac-

tivities of 1988, they may serve as a model for future

therefore are of interest in this context.
Since it

the

topics

is

particularly in
explicitly to

left

the field of the marine environment

the

dispute

and

one

of

settlement mechanism under Sec-

that multilateral agreements have been concluded, this

subject-matter may serve as a good example of the probable impact of
arbitration under Section 2 of Part XV of the Convention as a means of
tion

of Part XV

conventions

dispute

settlement.

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Arbitration

The

awareness

of the

Promising Alternative

common

469

Dispute Settlement

responsibility

of the

for the

of

of the international

environment has

com-

only renavigation,

protection
operational standards with respect to
off-shore mining industries, dumping of wastes and other uses of the sea,
but also in efforts to find an adequate dispute settlement approach. In
marked contrast to the rules on pollution in international watercourse
law, the rules applicable to marine pollution are mostly not part of cusin particular treaties on the
tomary international law but are contained
universal, regional and bilateral level. These treaties take into account the
particularities of the protection of marine environment, incorporating
munity
sulted

in more

marine

not

stringent

environmental stanconcepts with respect to the enforcement of

dards. This has resulted in a shift from the traditional system of jurisdiction of the flag State or the coastal State for ensuring compliance with the
environmental standards established by international conventions to the

new

creation

of

In the

jurisdiction

particular

of

an

field of

international

marine

body19.

environmental

protection

enforcement

obligations (and thus disputes involving violations of such obligations)

differs from traditional international legal disputes and consequently
needs special provisions for enforcement. Claims involving environmental
disputes aim normally not only at affirming that a breach of an obligation
has taken place, but moreover at according compensation. In this context
of

special expertise

is

needed

in

order

to

evaluate the facts of the

case;

on

the

hand, environmental disputes are in general not strictly interstate

disputes, but sometimes involve a non-State party, the polluter, since it is
primarily industrial enterprises, who use the seas. Even though this issue
might be overcome by means of diplomatic protection (the State of the
other

polluter taking over the case for his national), it seems more appropriate
to provide for direct dispute settlement between the State concerned by
the pollution and the polluting entity or individual. The foregoing remarks suggest that traditional patterns of dispute settlement may not be
sufficient

in

marine environmental protection cases, a fact

has been addressed in the Law of the Sea Conven-

the field of

which, incidentally,
tion.

provides for a special mechanism conenvironmental

disputes. This takes into
cerning the settlement of marine
account the particular expert knowledge needed and also the fact that
The Law of the Sea Convention

For more details cf. to JJ.A. S a I m o n, Marine Environment, Protection and Preservation, in: Encyclopedia of Public International Law, Instalment 11, 1989, ed. R. Bernhardt, 200 et seq.
19

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470

Oellers-Frahm

these

disputes

generally purely interstate disputes. Originally, the

adopt the same procedure envisaged for the settlement of
disputes involving the international sea-bed area for marine environmental disputes. Since agreement in this sense could not be obtained, an alternative solution was found by providing for special arbitration (Art. 287
paragraph 1 d) and Annex V111) for cases relating to fisheries, protection
idea had been

are not

to

and preservation of the marine environment, marine scientific research or

navigation, including pollution from vessels and by dumping20. By preparing special lists of experts for each of these categories and by making
Art. 13 of Annex VII applicable to these disputeS21, special arbitration is
a means of dispute settlement designed after the experience in this field
evidenced in state practice. The term "special" arbitration as opposed to
general" arbitration under the Convention recognizes the fact of the particular composition of this kind of arbitral tribunals, composed of members with special expertise in the relevant subject-matter of the dispute.
Technical expertise is thus regarded as the main criterion for the settlement of marine environmental disputes.
This follows the approach adopted by State practice in the, somewhat
reticent, development of peaceful dispute settlement mechanisms in the
marine environmental field. As a general rule, the agreements in this field
which contain dispute settlement provisions, all provided for arbitration.
The arbitrators in these cases were to be selected from special lists of
acknowledged experts in the special subject matter of the agreement. As
different agreements had been concluded for specific pollution sources
respectively, there exist a variety of dispute settlement provisions; the
Law of the Sea Convention represents thus the first comprehensive, uni11

versal instrument

in

this field.

the traditional

approach of exclusive jurisdiction of the

regard to disputes concerning the marine
environment without providing in the same time for compensation of
damages, the first Conventions for the protection of the marine environment only contain incomplete provisionS22.
Following

coastal State

20

Cf.

or

flag

State with

Dupuy/Vignes (note 3),

21

1367

Art. 13 of Annex VII reads: "The provisions of this Annex shall

mutandis to any dispute involving entities other than State Parties".
22

Cf. for

apply

mutatis

the International Convention for the Prevention of Pollution of the

over by IMCO and amended in 1962 and 1969; the
1958 Geneva Convention on the High Seas, which provides in Art. 24 and 25 for the
protection of pollution of the seas but does not include any provision concerning the
enforcement of the obligation of States parties to the Convention set forth in these articles;
Sea

by

Oil

example

(OILPOL) of 1954, taken

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Arbitration

The first
mechanism
Seas

in

the

such

for

471

Promising Alternative of Dispute Settlement

containing an improved dispute settlement

the Convention Relating to Intervention on the High

Convention
was

Cases of Oil Pollution Casualities of November 29,

provides
to

special dispute

196923, which

VIII and Annex

settlement mechanism (Art.

to this Convention, the parties may take
seas as they consider necessary in order to

Convention). According

measures

the

on

high

danger to their coasts from pollution or the

by oil, following maritime casualities. Any
such
acted
has
which
dangers in violation of, or beyond the
against
party
the
Convention
of
must pay compensation for
the
provisions
scope of,
the resultant damage. Disputes concerning the question of whether the
eliminate

prevent, mitigate
threat of pollution of the
or

measures

taken

were

in contravention of the Convention

be

compensation must
ciliation has failed,

seas

to

or

paid, may be submitted to conciliation,

arbitration. Conciliators or arbitrators

whether

or,
are

if

con-

chosen

the parties from a list of qualified persons drawn up by the parties to

the Convention, which provides, however, for the selection of conciliators or arbitrators if the parties to the dispute are unable to agree on

by

the members.

slightly different model, which also leads to arbitration in the final

phase, has been adopted by the Convention on the Prevention of Marine
Pollution by Dumping of Wastes and Other Matters of December 19,
1972 as amended in 1978 and followed by a series of subsequent ConventionS24. These Agreements provide for the submission of any dispute
A

which the parties have been unable to settle by agreement, to the International Court of justice or to arbitration, arbitration being the default procedure. The arbitrator or arbitrators have to be chosen from a list of
persons drawn up by the parties. The Convention
the selection of experts by a third organ if the parties to the
not reach agreement on this issue.

qualified

The few
cerning the

provides for
dispute can-

discussed above demonstrate that, in disputes conenvironment, arbitration by experts has become the

examples
marine

of Operators of Nuclear Ships. For further informak o v, United Nations Convention on the Law of the Sea
1982, A commentary, Vol. IV, Articles 192 to 278, Final Act, Annex VI, 1991, 7 and
Appendix, 23 containing a list of multilateral treaties dealing with the protection of the

the 1962 Convention

tion

cf.

marine
23

to

S. R o

on

s e n n

the

Liability

e/A. Ya

environment.

970 UNTS 212.

24
Le. the International Convention for the Prevention of Pollution from Ships of
November 2, 1973; Convention for the Prevention of Marine Pollution from Land-Based
Sources of June 4, 1974; Convention for the Protection of the Mediterranean Sea against
Pollution of February 16, 1976.

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472

Oellers-Frahm

preferred mechanism, a fact that has found as noted earlier confirmation in the relevant provisions of the Law of the Sea Convention.
While at first sight, arbitration under the Convention may thus appear
promising for the resolution of disputes in these particular fields, a more
thorough look leads to the opposite conclusion. It must be borne in mind
that special arbitration under the Convention requires first that both parties have opted for it and that the other means of dispute settlement
agreed to in other instruments have failed. As special arbitration is the
dispute settlement approach adopted in numerous international agree-

ments

concerning the protection of the marine environment, it seems

States will apply those mechanisms, if they are not even

likely that
obliged to apply
more

The

recourse

to

them because number of them

for

for these

opting
special arbitration

reason

special

are

mandatory

ones.

mechanisms instead of

having

under the Convention resides in the fact

that these

instruments are more narrowly suited to a specific dispute arising under that particular convention and that experience by a body constituted under the respective convention may already exist and may make
the outcome of the dispute settlement more predictable. Since consent of
the States parties to a dispute is explicitly required for special arbitration
under the Convention, this consent will be given more easily for special
dispute settlement procedures under special agreements, if it is not al-

together mandatory.
Thus, special arbitration
be

under the Law of the Sea Convention does

very promising alternative for the settlement of marine

environmental disputes, not because it would not be suitable, but only
not seem to

because of the great number of special instruments in this field

over the dispute settlement procedures of the Convention.

priority
Only
able

in the

event

that these mechanisms fail

which is

and where agreement

under the Convention cannot be reached does the

"general"

general

arbitration

the field of marine environment

ever is

the actual

subject of

discussed above have been

on

arbitration under the Convention become

The fact that

in

mandatory

as most are

the

not

special

very

having
prob-

arbitration

default-procedure
applicable.

of

(with possible
or

non-expert arbitrators)
marine scientific research or what-

dispute applies only

where the conditions

may make hesitant

parties to a dispute
prefer special arbitration so that experts might decide the case.
Finally, there is one further argument which supports the unlikelihood
of general arbitration under the Law of the Sea Convention to be frequently used. This argument is drawn from a recently introduced
mechanism for the settlement of disputes in a particular Convention
met

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Arbitration

simply leaves

which

no room

the Sea Convention. The

namely

Promising Alternative

the Convention

for the

reason

on

the

Dispute

application

473

Settlement

of Part XV of the Law of

for this situation is that this Convention,

Regulation

June 2, 1988, reflects

Activities of

of

to a

of Antarctic Mineral Resource

considerable

degree

the

provisions

of Part XV of the Law of the Sea Convention 25. The same pattern has been
followed by the Protocol on Environmental Protection to the Antarctic
Treaty of October 4, 1991 which, in Art. 18-20 and in the Schedule to the
Protocol

on

Arbitration contains similar

the

Regulation
concerning the dispute
on

provisions. While

the Convention

of Antarctic Mineral Resources will, for

settlement mechanism,

not enter

reasons

into

not

force, the

the Environmental Protection foreseeably will enter into

force. Thus, in the broad field concerning the Antarctic scientific research
and environmental protection there is no doubt that the dispute settlement
mechanism under Section 2 of Part XV of the Law of the Sea Convention
Protocol

will

not

on

apply.

and that
allowed

likely

is

to

not

The

If this

rather

an

room

is followed

by parties

to

other

conventions

likely because of the flexibility and variety of choices

general arbitration under the Convention will very

the parties

play

example
-

important role in the settlement of marine

left

to

disputes.

arbitration under Part XV, Section 2 of

the Convention

The arguments used in the above examples apply

of law of the sea disputes, such as marine scientific

equally

to

other

areas

research, fisheries and

navigation. Here too, several international conventions with particular

dispute settlement procedures apply and these take priority over the proceedings provided for in the Convention. These Agreements provide at
least for arbitration, which generally is the default option if other means
fail. Consequently, the conclusion that general arbitration under the
Convention will rather be the exception than the rule in law of the sea
disputes leads to the more important question of what is the real possibility of arbitration under the Convention and, further, what are the advantages or disadvantages of such recourse.
There are apparantly only three situations which might lead to compulsory dispute settlement, and thus arbitration in the final resort, under

the Law of the Sea Convention:

25

See

Chapter

The Convention

VI of the Convention. Cf. for detailed information to R. Wo I f r u m,

the Regulation of Antarctic Mineral Resource Activities, Beitrage zurn

on

auslandischen 6ffentlichen Recht und V61kerrecht 102, 1991, 74

et

seq.

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474

Oellers-Frahm

The

a)

evident

most

possibility

PartXV of the Convention is the

for

having

where

to

recourse

Section 2 of

other

dispute settlement
mechanism is provided for and the parties to the dispute do not agree ad
hoc to some procedure outside or under the Convention. This alternative
limited however

case

no

disputes concerning the alleged non-observance of

compulsory dispute settlement procedure is limited to disputes relating to the interpretation or application of the Convention. In addition, the parties to the dispute must clearly be parties to
is

the Convention,

as

to

the

the Convention.
The second category of disputes which may lead to compulsory dissettlement
under the Convention are those cases where not all of the
pute
the
parties to
dispute are bound by the agreement containing the dispute

b)

settlement

procedure.
parties to the

must

be

other

means to

Also in this

settle their

c) And finally there

than

subject

one

particular

have failed

In these

by

the

cases

the

recourse

unlikely since the parties

convention even though it does not

under the Convention

parties

agree upon any

disputes which involve more

dispute settlement provisions of

seems

particular
dispute.
To fully appreciate

all of the

to

those "mixed"

covered

matter

must

dispute.

are

conventions.

the Convention

hypothetical example

Convention and

the

to

arbitration under

might prefer
cover

possible significance

of

to

apply

the whole of the

general arbitration
disputes, the fol-

the above noted categories of

considerations may be of relevance:
in

lowing
a) Firstly the fact that third party dispute
parties to the Convention may encourage
settlement mechanism under
to

the residual

procedure

attitude

negative
may prefer

or

settlement is
States

to

compulsory for
agree to a dispute

outside of the Convention. The

of arbitration

might

be considered

recourse

sign of

the part of at least one of the disputants, and States

be blamed openly for such an attitude. It is, however,

on

not to

that arbitration is

only the mechanism available to States that do

formerly agreed upon any mechanism to settle
their disputes but also the applicable procedure under the Convention
where States have not opted for the same procedure or procedures for the
settlement of their disputes under the Convention. As indicated above,
the existence of special mechanisms for the settlement of particular disputes will generally encourage States prepared to accept third party settlement to agree to one of those special procedures. If States refuse to do so,
such action may be taken to be a sign of unwillingness to accept third
party dispute settlement at all. Therefore, the above arguments are, to a
true,

not

agree,

or

have

not

not

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Arbitration

Promising

Alternative of

Dispute

475

Settlement

considerable extent, valid also for the alternative of the applicability of

the arbitration procedure in case of different options of the States under
Section 2 of Part XV of the Convention.
b) Secondly, it seems likely that States parties to an actual dispute will
for the
to proceed before one of the specialized bodies
more

readily

agree

settlement of marine disputes under the Convention, such as the Tribunal

for the Law of the Sea or special arbitration or the International Court of
If
justice, rather than leave the case to be resolved by general arbitration.
third party dispute settlement cannot be avoided, States may prefer to
select themselves the most appropriate mechanism to resolve their discase-law developed already by these bodies
pute, having due regard to the
for the moment only the International Court of justice. It seems evident that a
experienced in deciding marine disputes, as for example
-

body

the International Court of justice or an ad hoc chamber of the Court,

forum for the parties because the result would
may be a more attractive
than that of an arbitral tribunal under Art. 287 parabe more

predictable

graph 1c) of the

c) Finally, it

Convention.
may be

argued

that the law

applicable by

the

dispute

settlement bodies under the Convention may lead the parties to prefer a
mechanism other than those contained in the Convention. The underlying reasons for this are, on the one hand, that only disputes relating to

interpretation and application of the Convention may be submitted to

the procedures of Part XV, and, on the other hand, that the court or
tribunal has to "apply the Convention and other rules of international law
This
not incompatible with this Convention" (Art. 293 paragraph 1).
the
means that the rules contained in the Convention have priority over
rules of general or customary international law, since recourse can be had
to these categories only if there are lacunae in the Convention26. In conthe
trast to the foregoing there may also exist cases where it is exactly

the

reliance
the

law that encourages States to have recourse to one of

settlement bodies of the Convention. However, also in this

on written

dispute
hypothesis, general

arbitration will

probably

not

be the

preferred option.

26 Cf. G.
J a e n i c k e, Dispute Settlement under the Convention on the Law of the Sea,
Zeitschrift ftir ausiHndisches bffentliches Recht und V,51kerrecht 43 (1983), 813 et seq., 822.

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476

Oellers-Frahm

V. Conclusion

On the basis of the above remarks, the

under the Law of the Sea Convention is
resolution of

question of whether arbitration

a promising alternative for the

under the law of the

disputes

negative.
As has been shown
primary and preferred
in the field of marine

above, arbitration
means

sea must

be answered in the

and

probably remains, the

dispute settlement, not only
dispute settlement system estabis,

of international

disputes,

and the

lished in the Law of the Sea Convention itself supports this result.
In any event, third party settlement of disputes constitutes an interference with the sovereign powers of the disputing States and this is
why it

dependant upon the consent of the parties to the dispute. However, as

long history of international dispute settlement illustrates only too
clearly, consent by States to a particular dispute settlement mechanism is
no guarantee that this obligation will be honoured. In international law
is

the

there

is no means

possible
depends

to

enforce the decisions of

courts

and tribunals,

as

is

in national laW27 and thus the final resolution of the

dispute
precisely, cooperation and good
will of the parties involved. Therefore, it is only logical that the Law of
the Sea Convention leaves as much choice as possible to States in the area
of dispute settlement and offers a great variety of mechanisms which recognizes the sensitivities of sovereign States. This latitude does not, however, go so far as to finally lead to the failure of peaceful dispute settlement. The fact that States cannot avoid third
party dispute settlement and
that a variety of refined and appropriate mechanisms to each category of
disputes is available under and outside of the Convention, will likely encourage States to have recourse to one of those procedures.
Thus, the dispute settlement mechanism of the Convention is designed
itself to considerably reduce the occurrence of general arbitration under
on

the actual

consent or, more

Annex VII of the Convention. This statement, and that has to be stressed
explicitly, does not express or imply any negative judgement concerning

the

suitability of arbitration
quality of the system of Part
Recourse

to

27

or

as

disputes

or the

arbitration under Art. 287

tion will thus be had

reasons,

for the settlement of marine

XV of the Convention.

only

in very
consequence of

paragraph 1 e) of the Convenexceptional cases, either for very special

a general unwillingness to
accept third

Only for decisions of the International

provides for action of the Security Council.

Court of

Justice

Art. 94 of the UN Charter

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Arbitration

party
more

Promising

Alternative of

Dispute

dispute settlement since, for the reasons

likely that States that have not opted for

477

Settlement

stated above, it seems even

the same mechanism under

event of an actual dispute, will prefer to

special body more suited for their case will hear the matter.
This conclusion, i.e. that general arbitration will only be used in exceptional cases for the settlement of marine disputes invalidates in the same
time, to a certain degree, the fear that has been expressed with regard to
the possibility that not only a separate branch of law but also a separate
judicial authority concerning law of the sea disputes may develop by having recourse to the dispute settlement mechanisms of the Convention 28
Given the structure of the dispute settlement system of the Convention,
especially the priority given to other conventional mechanisms for the
settlement of marine disputes, the actual situation will not be changed
profoundly. As is the case today, it will be, in the first place, the Interna-

Section 2 of Part XV, in the

agree that

tional Court of
marine

justice

disputes.

The

or

arbitral tribunals that will

possible impact

of the

new

continue to

decide

International Tribunal

not yet forseeable and neither is its relationship

the International Court of justice which, until now, has fulfilled the

for the Law of the Sea is

to

functions of the

new

tribunal. But,

even

if the

impact

of the

new

organs

under the Convention will be important, the fear that this will separate
this branch of law from general international law is not a real one. Firstly,

incompatible with the Convention

such as those rules that have developed through state
may be applied
practice and in international courts and tribunals. Secondly, the dispute
settlement system of the Convention is only subsidiary to all other disthus it depends on the
pute settlement mechanisms separately agreed to
States concerned to develop any possible separation of this particular
branch of international law from the corpus of general international law.
And finally, and this argument is apt to minimize the above mentioned
fear considerably, the law as codified in the Convention has already been
applied by international courts or tribunals because the parties to a dispute had explicitly so agreed or because the rules of the Convention had
been applied as rules of customary international laW29. Thus, the only
remaining question relates to the possible use of the International Trithe Convention

provides

that rules

not

bunal for the Law of the Sea and its

28
29

Cf. 0 d a (note 16), 645 et seq., 649.

Cf. E.J. d e A r 6 c h a g a, Customary International Law and the Conference

Law of the
575

Deep Sea-Bed Chamber for the

et

Sea, in: Essays

in

International Law

in

Honour of

Judge

on

the

Manfred Lachs, 1984,

seq.

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Oellers-Frahm

478

settlement of marine

disputes

since neither

VIII

nor

special

arbitration under An-

arbitration under Annex VII will, for the

general
given above, play a considerable
nex

role in the settlement of

marine

reasons

disputes.

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