The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea: A Drafting History and a Commentary

301 Pages·1987·32.117 MB·English

by  A.O. Adede

THE SYSTEM FOR SETTLEMENT OF DISPUTES UNDER THE
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
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Publications on Ocean Development
Volume 10
A series of studies on the international, legal, institutional and
policy aspects of ocean development
General editor: Shigeru Oda
1. Anand, R.P.: Legal regime of the seabed and the developing countries. ISBN 90-286-0616-5
2. Papadakis, N.: The international legal regime of artificial islands. ISBN 90-286-0127-9
3. Oda, S.: The law of the sea in our time I - New developments, 1966-1975. ISBN 90-286-0277-1
4. Oda, S.: The law of the sea in our time II - The United Nations Seabed Committee, 1968-1973.
ISBN 90-286-0287-9
5. Okidi, C.O.: Regional control of ocean pollution: legal and institutional problems and prospects.
ISBN 90-286-0367-0
6. Rembe, N.S.: Africa and the international law of the sea: a study of the contribution of the Afri
can states to the Third United Nations Conference on the Law of the Sea. ISBN 90-286-0639-4
7. Anand, R.P.: Origin and development of the law of the sea: history of international law revisited.
ISBN 90-247-2617-4
8. Post, A.M.: Deepsea mining and the law of the sea. ISBN 90-247-3049-X
9. Jagota, S.P.: Maritime boundary. ISBN 90-247-3J33-X
10. Adede, A.O.: The system for settlement of disputes under the United Nations Convention on the
Law of the Sea. ISBN 90-247-3324-3
A.O. Adede - 978-90-04-48233-3
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The System for Settlement
of Disputes under the
United Nations Convention
on the Law of the Sea
A Drafting History and a Commentary
A.O. ADEDE
1987 MARTINUS NIJHOFF PUBLISHERS
a member of the KLUWER ACADEMIC PUBLISHERS GROUP
DORDRECHT / BOSTON / LANCASTER
A.O. Adede - 978-90-04-48233-3
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Distributors
for the United States and Canada: Kluwer Academic Publishers, P.O. Box 358,
Accord Station, Hingham, MA 02018-0358, USA
for the UK and Ireland: Kluwer Academic Publishers, MTP Press Limited,
Falcon House, Queen Square, Lancaster LAI lRN, UK
for all other countries: K1uwer Academic Publishers Group, Distribution Center,
P.O. Box 322, 3300 AH Dordrecht, The Netherlands
Library of Congress Cataloging in Publication Data
Adeje, A. O.
The system for settlement of disputes under the
United Nations convention on the law of the seae
(Publications on ocean development ; v. 10)
1. Maritime law. 2. International courts.
3. Arbitration, International. I. Title. II. Series.
JX4411.A34 1986 341.4'5 86-5373
ISBN 90-247-3324-3
ISBN 90-247-3324-3 (this volume)
ISBN 90-247-2616-6 (series)
Copyright
© 1987 by Martinus Nijhoff Publishers, Dordrecht.
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system, or transmitted in any form or by any means, mechanical,
photocopying, recording, or otherwise, without the prior written permission of
the publishers,
Martinus Nijhoff Publishers, P.O. Box 163, 3300 AD Dordrecht,
The Netherlands.
PRINTED IN THE NETHERLANDS
A.O. Adede - 978-90-04-48233-3
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To my wife Grace, son Kenneth and daughters Ruth
and Achieng, who cheerfully accepted numerous
broken family engagements during the period of
preparation of the present volume
A.O. Adede - 978-90-04-48233-3
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A.O. Adede - 978-90-04-48233-3
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Acknowledgements
The original idea of producing, since 1975, a series of law review articles on
this subject of law of the sea, which has culminated in the preparation of the
present volume came from Professor Louis B. Sohn, then of Harvard Law
School. I have continued to benefit from such practical ideas from Professor
Sohn from the time he agreed to supervise both my Masters Thesis and
Doctoral Dissertation at the Harvard Law School on procedural aspects of
international law , written for the Fletcher School of Law and Diplomacy,
thereby enabling me to take full advantage of the co-operation which
existed between the two institutions. My long-standing interest in the legal
issues relating to peaceful settlement of international disputes, demon
strated by the undertaking to prepare this book, is thus traced back to him.
His earlier critical comments on parts of the manuscript have been of great
value to me.
I also wish to thank most sincerely both Dr. C. Odidi Okidi of the Univer
sity of Nairobi, Institute for Development Studies and Dr. S. Arungu
Olende, a colleague in the United Nations in New York, for the specific
encouragements they constantly gave me to continue my efforts in keeping
track of the developments in this subject through professional articles.
My thanks are also due to numerous other colleagues who participated in
the law of the sea negotiations and who gave me their comments on the
basis of my earlier analyses of several aspects of the subject matter of this
book in professional journals. The preparation of the volume has greatly
benefitted from such views and comments. To all those colleagues I say:
while they graciously offered me their useful suggestions, only I assume full
responsibility for any defects or shortcomings which this book may contain.
Lastly, I wish to point out with appreciation that without a modest grant
from the Rockefeller Foundation which helped towards defraying the cost
of typing and proof-reading of the manuscript, it would not have been pos
sible for me to maintain the necessary momentum to complete the manus
cript at this time. In this context, I wish to thank especially Dr. John Strem
lau of the International Division of the Foundation who arranged for the
grant in question.
A.O.ADEDE
Vienna
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Contents
PART i. THE EVOLUTION AND DEVELOPMENT OF THE
SYSTEM
CHAPTER I. Prolegomenon 3
CHAPTER II. The 1974 Caracas Session and identification of issues 13
A. The United States proposal as an initial basis for consultation 13
B. Eleven issues and draft articles by the informal working group 16
I. Obligation to settle disputes under the Convention by peace-
ful means 17
2. Settlement of disputes by means chosen by the parties 18
3. Clauses relating to other obligations with respect to disputes
settlement 19
4. Clauses relating to settlement procedures not entailing a
binding decision 22
5. Obligation to resort to a means of settlement resulting in a
binding decision 23
6. The relationship between general and functional approaches 27
7. Parties to a dispute 30
8. Local remedies 31
9. Advisory jurisdiction 33
10. Equity jurisdiction 36
II. Exceptions and reservations to disputes settlement provi-
sions 36
C. A summary ofthe fundamental ideas in the 1974 Caracas Docu-
ment on disputes settlement 39
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x
CHAPTER III. The 1975 Geneva Session: the emergence of a
framework for the settlement system 43
A. The working group's framework in brief 43
B. Draft articles which offer wide choices of modes of settlement 44
C. Draft articles concerning procedures entailing binding decisions
- Compulsory jurisdiction 49
1. Multiplicity of jurisdiction as a permanent feature 49
2. The Montreux formula on the choice of compulsory proce-
dures 53
3. The scope of the compulsory procedures: Four types of juris-
dictions under the comprehensive approach 54
D. Draft articles on exclusion of certain issues from the compulsory
settlement procedures 56
1. The three views on the subject 56
2. Designation of category of disputes to be settled by compul-
sory procedures and those excluded from such procedures 58
E. Draft article on the question of access to the third-party proce-
dures 61
F. Draft articles on interim measures, accelerated procedures and
applicable law 63
G. The working group's Geneva Document in perspective 67
CHAPTER IV. The 1976 New York Sessions: President Amera
singhe's informal document and consideration of the subject by the
conference as a whole 71
A. The President's informal document 71
1. Retention of the Working Group's general framework for the
settlement system 71
2. Departure from the Montreux formula and treatment of the
Law of the Sea Tribunal as the dominant forum 73
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