Ad Hoc Arbitration Under Annex VII of the United Nations Convention on the Law of the Sea
The 1982 United Nations Convention on the Law of the Sea (UNCLOS), which came into force on November 16, 1994, is an international treaty that provides a regulatory framework for the use of the world’s seas and oceans, inter alia, to ensure the conservation and equitable usage of resources and the marine environment and to ensure the protection and preservation of the living resources of the sea. UNCLOS also addresses such other matters as sovereignty, rights of usage in maritime zones, and navigational rights. As of January 10 2014, 166 States have ratified, acceded to, or succeeded to, UNCLOS. The full text and status of UNCLOS can be accessed through the United Nations Division for Oceans Affairs and the Law of the Sea.
UNCLOS sets forth in Part XV rules for the resolution of disputes between State Parties arising out of the interpretation or application of UNCLOS. Pursuant to Article 287(1) of UNCLOS, when signing, ratifying, or acceding to UNCLOS, a State may make a declaration choosing one or more of the following means for settling such disputes:
- the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany;
- the International Court of Justice in The Hague, The Netherlands;
- ad hoc arbitration (in accordance with Annex VII of UNCLOS); or
- a “special arbitral tribunal” constituted for certain categories of disputes (established under Annex VIII of UNCLOS).
Pursuant to Article 287(3) of UNCLOS, arbitration under Annex VII is the default means of dispute settlement if a State has not expressed any preference with respect to the means of dispute resolution available under Article 287(1) of UNCLOS (and has not expressed any reservation or optional exceptions pursuant to Article 298 of UNCLOS). Likewise, pursuant to Article 287(5) of UNCLOS, if the parties have not accepted the same procedure for the settlement of the dispute, arbitration under Annex VII is the default means of dispute settlement (again subject to same exceptions or reservations pursuant to Article 298).
Since the 1982 Convention came into force in 1994, twelve cases have been arbitrated under Annex VII of UNCLOS. The PCA is acting, or has acted, as registry in eleven of those cases. The cases arbitrated under the auspices of the PCA include the following:
- The Duzgit Integrity Arbitration (Malta v. São Tomé and Príncipe), which was instituted in October 2013 and is still pending;
- The Arctic Sunrise Arbitration (the Netherlands v. the Russian Federation), which was instituted in October 2013 and is still pending;
- The Atlanto-Scandian Herring Arbitration (Denmark in respect of the Faroe Islands v. the European Union), which was instituted in August 2013 and which was terminated through a tribunal order issued in September 2014, following an agreement between the Parties reached in August 2014;
- Philippines v. China, which was instituted in January 2013 and is still pending;
- Mauritius v. United Kingdom, (the “Chagos Marine Protected Area Arbitration”), which was instituted in December 2010 and decided by a final award rendered on 18 March 2015;
- Bangladesh v. India (the "Bay of Bengal Maritime Boundary Arbitration"), which was instituted in October 2009 and decided by a final award rendered on July 7, 2014;
- Argentina v. Ghana, (the "ARA Libertad Arbitration"), which was instituted in October 2012 and terminated through a tribunal order issued in November 2013 following an agreement between the Parties reached in September 2013;
- Barbados v. Trinidad and Tobago, which was instituted in February 2004 and decided by a final award rendered on April 11, 2006;
- Guyana v. Suriname, which was instituted in February 2004 and decided by a final award rendered on September 17, 2007;
- Malaysia v. Singapore, which was instituted in July 2003 and terminated by an award on agreed terms rendered on September 1, 2005; and
- Ireland v. United Kingdom (“MOX Plant Case”), which was instituted in November 2001 and terminated through a tribunal order issued on June 6, 2008.
Having administered most of the UNCLOS Annex VII arbitrations to date, the PCA has gained unique experience in dealing with, among other things, diverse organizational, procedural, and substantive issues that may arise in such arbitrations.
Through an exchange of letters between the Secretary-General of the PCA and the Registrar of ITLOS, the PCA and ITLOS have agreed to cooperate with respect to relevant legal and administrative matters. Under the arrangement, the PCA and ITLOS have undertaken to exchange documents, particularly those connected with disputes under Annex VII of UNCLOS, and to explore cooperation in other areas of concern.