is confidential to the disputing parties. Therefore, resolving disputes by international arbitration will ensure the honor and reputation of the disputing parties (especially the losing parties).
In addition to the above-mentioned outstanding advantages, the measure of resolving international disputes by arbitration also has limitations in terms of the mechanism to ensure enforcement and compliance with the arbitration award, which is not as strong as the mechanism to enforce and comply with the award of the International Court of Justice. In reality, the enforcement and compliance with the award of international arbitration depends entirely on the dedication and goodwill of the disputing parties. Because international arbitration is not a judicial body of the United Nations, the United Nations Security Council will not be able to ensure the enforcement of international arbitration awards, especially those of Ad Hoc Arbitrators.
2.2.4. Dispute settlement at the Arbitral Tribunal established under Annex VII of the 1982 Convention on the Law of the Sea
The Arbitral Tribunal for the Law of the Sea is the judicial body with the function of resolving international maritime disputes under the 1982 Convention. Accordingly, any party to a dispute may submit the dispute to arbitration by written notice to the other party or parties involved in the dispute. This notice must be accompanied by a statement of the claims and the grounds on which those claims are based.
2.2.4.1. Composition and organization of the Arbitration Court
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Pursuant to Article 3, Annex VII of the 1982 Convention, an arbitral tribunal shall be constituted with five members. The claimant shall appoint one member from the list of arbitrators, who may be its national. The defendant in the dispute, within 30 days from the date of receipt of the claimant's notice of arbitration, shall also have the right to appoint an arbitrator, who may be its national.
If the defendant fails to appoint a member within the above-mentioned period (30 days), the plaintiff may request that the appointment of that member be made within 2 weeks after the expiration of the 30-day period.
The remaining three members shall be appointed by agreement between the parties. They shall be chosen from the list of arbitrators and shall be nationals of third States, unless the parties otherwise agree. The parties shall appoint the President of the Tribunal from among these three members. If, within 60 days of receipt of the notice of request for arbitration by the claimant, the parties to the dispute are unable to agree on the appointment of one or more of the members of the Tribunal to be appointed by mutual agreement or in connection with the appointment of the President, the President of the International Tribunal for the Law of the Sea shall, at the request of any party to the dispute, do so, unless the parties otherwise agree. If the President is busy or is a national of one of the parties to the dispute, the appointment of the arbitrator shall be made by the most senior member of the International Tribunal for the Law of the Sea who is not a national of one of the parties to the dispute.
The above arbitrators must have different nationalities, must not work for any party in the dispute, must not be citizens of one of the parties to the dispute, and must not have permanent residence in the territory of the country in dispute [13].
2.2.4.2. Establishing the jurisdiction of the Arbitral Tribunal
In accordance with Article 287 of the 1982 Convention, the Arbitral Tribunal has jurisdiction to resolve disputes as agreed by the parties or in the following cases:
Firstly, when a member state participates in a dispute without being protected by a valid declaration, it is considered to have accepted arbitration procedures (when joining, it has not declared its choice of dispute resolution method or procedure);
Second, if the parties do not accept the same procedure for resolving the dispute, the dispute will be resolved by arbitration. Thus, the way the arbitral tribunal establishes its jurisdiction under the 1982 Convention is different from that of the International Tribunal for the Law of the Sea. This difference is reflected in the fact that the parties are automatically considered to have chosen the arbitral tribunal if they fall into one of the above cases. This means that there will be no other measure that can replace an arbitral tribunal established in accordance with Annex VII of the 1982 Convention applied to resolve the dispute.
2.2.4.3. Arbitration proceedings
Arbitration proceedings are commenced by a written notice from one party to the other. The notice shall be accompanied by a statement of the claims and the grounds on which they are based.
Unless the parties otherwise agree, the Arbitral Tribunal shall determine its own procedure, allowing each party to defend its rights and grounds. As with the Tribunal for the Law of the Sea, the Arbitral Tribunal shall hear and render an award when there is a legal basis for asserting the Tribunal's jurisdiction and the claim is well-founded in fact and argument.
When a party to a dispute fails to appear in court or fails to present its case, the other party may request the court to continue the proceedings and make a decision. The absence or failure of a party to present its case does not bar the proceedings of the arbitral tribunal.
2.2.4.4. Value of the Arbitral Award
The Court's decision is made by a majority of its members. The absence or abstention of less than half of its members does not prevent the Court from making a decision (i.e. the number of arbitrators present must be more than half of the Court's arbitrators, with a minimum of 3/5 of the arbitrators). In the event of an equal number of votes for and against, the vote of the President of the Court shall be decisive.
The award of the Arbitral Tribunal shall be final and not subject to appeal, unless the parties have agreed on this procedure.
2.2.4.5. Arbitration fees
Unless the arbitral tribunal decides otherwise because of the particular circumstances of the case, the fees of the Tribunal, including the remuneration of its members, shall be borne in equal parts by the parties to the dispute.
As with the general method of resolving international disputes, resolving international disputes by international arbitration has the advantage that the disputing parties will be proactive in selecting the composition of the arbitrators as well as the regulations related to the duties and procedures of the arbitration. In case of necessity, the
The disputing parties will find it easier to agree to amend and supplement the working procedures and composition of the Arbitration Court. Thus, compared to the proceedings at the International Tribunal for the Law of the Sea, the proceedings at the Arbitration Court for the Law of the Sea are much more flexible and supple. Therefore, the settlement of the dispute will be quick and timely, and thus will limit external influences. On the other hand, settling the dispute at the Arbitration Court for the Law of the Sea will save time and costs for the disputing parties. Finally, settling the dispute at the Arbitration Court for the Law of the Sea will ensure the honor and reputation of the disputing parties, especially the losing party.
Besides the above advantages, the Law of the Sea Arbitration Tribunal also has the following limitations:
Although the arbitral award is final, like the International Tribunal for the Law of the Sea, its enforcement is largely based on the goodwill of the losing party. Because there are no measures to ensure the enforcement of the award under the 1982 Convention. On the other hand, if the parties agree on an appeal procedure in the dispute settlement process, it will make the dispute more complicated.
Finally, according to the provisions of Annex VII of the 1982 Convention, the selected arbitrator may be a citizen of the disputing parties, so when resolving a dispute it will be very difficult to ensure objectivity and impartiality because the arbitrator may be influenced by the rights and interests of the country of which he or she is a national.
2.2.5. Dispute settlement at the Special Arbitral Tribunal established under Annex VIII of the 1982 Convention on the Law of the Sea
Like the Law of the Sea Arbitration Tribunal, the Special Arbitration Tribunal is a judicial body established by agreement between the disputing parties under Annex VIII of the 1982 Convention. The Special Arbitration Tribunal was established to investigate and establish facts from the origin of the dispute relating to the fields of fishing; protection and preservation of the marine and maritime environment, including pollution from vessels or dumping.
2.2.5.1. Composition and organization of the Special Arbitration Court
The composition and structure of the Special Arbitral Tribunal are essentially the same as those of the
The difference between the two Courts is that the list of experts (called arbitrators by the Arbitral Tribunal) of the Special Arbitral Tribunal is divided into the following four areas:
- The list of experts related to fisheries will be established and maintained by the Food and Agriculture Organization of the United Nations (FAO).
- List of experts on marine scientific research established and maintained by the Intergovernmental Oceanographic Commission;
- A list of experts on shipping and pollution from ships or dumping issued by the International Maritime Organization (IMO) or, as the case may be, by the appropriate subsidiary body to which the said organization, programme or committee has delegated this function.
Pursuant to the provisions of Annex VIII to the 1982 Convention, unless otherwise agreed by the parties, the Special Arbitral Tribunal is constituted as follows:
- The special arbitration court consists of 5 members;
- The two disputing parties each nominate two members from the lists introduced by the countries (each country nominates two experts with high professional qualifications and integrity in the fields under the jurisdiction of the Special Arbitration Court).
- The President of the special arbitral tribunal shall be chosen by agreement of the disputing parties and shall be a national of a third country, unless the parties otherwise agree. If the disputing parties fail to agree on the appointment of the President within 30 days, either party may request a third person or country of its choice or the Secretary-General of the United Nations to make the appointment within 30 days of receipt of the request.
2.2.5.2. Jurisdiction of the Special Arbitration Court
Pursuant to Annex VIII of the 1982 Convention, the Special Arbitral Tribunal has the authority to conduct an investigation and establish the facts at the origin of the dispute. Unless the parties otherwise agree, the facts established by the Special Arbitral Tribunal shall be considered as established between the parties concerned. If all
If requested by the parties to the dispute, the Special Arbitral Tribunal may make recommendations. The recommendations of the Special Arbitral Tribunal do not have the value of a decision but only serve as a basis for the parties to review the issues giving rise to the dispute.
Thus, unlike the International Tribunal for the Law of the Sea and the Arbitral Tribunal for the Law of the Sea, the Special Arbitral Tribunal will only resolve the dispute if all parties clarify the origin of the dispute, rather than resolving the dispute by issuing a legally binding judgment that the disputing parties must comply with and implement.
2.2.5.3. Issues not within the scope of resolution by judicial method
As mentioned above, if a dispute relating to the interpretation and implementation of the 1982 Convention has been resolved by the parties through negotiation or conciliation (voluntary) but still fails to produce results, then at the request of any party to the dispute, the dispute will be brought before a Court and the Court's decision will be binding on the parties to the dispute.
However, according to the provisions of Article 287 of the 1982 Convention, cases that can and cannot be resolved by compulsory means (resolved before the judicial bodies established under the 1982 Convention) are specifically stipulated:
2.2.5.4. Disputes over scientific research
Pursuant to Article 297, paragraph 2(a), disputes concerning the interpretation or application of the provisions of the 1982 Convention on Scientific Research shall be settled in accordance with section 2, unless the coastal State does not accept that settlement in respect of a dispute arising out of:
- The exercise of their right to decide whether or not to allow foreign countries to conduct scientific research in their exclusive economic zone or continental shelf;
- The decision to force a foreign country, after being allowed to conduct scientific research, to suspend or terminate the implementation of a research project in accordance with Article 253 [42].
2.2.5.5. Disputes over fishing
According to point a, paragraph 3, Article 297 of the 1982 Convention, disputes
All disputes relating to fishing are settled under the compulsory procedure of Part XV, Title II. However, a coastal State is not obliged to submit to this procedure disputes relating to sovereign rights over the living resources in the exclusive economic zone or the exercise of those rights. These rights include the determination of the allowable catch and the fishing capacity of the coastal State, the right to distribute surplus fish to foreign fishing parties and to prescribe the terms and conditions of such fishing.
However, legally, according to the provisions of the 1982 Convention, coastal countries must also accept conciliation when requested by a foreign country in cases where the coastal country:
- Failure to fulfill obligations in conservation and management causes serious damage to biological resources in the exclusive economic zone;
- Arbitrarily and arbitrarily refuse to comply with foreign requests regarding the permitted catch and the fishing capacity of the coastal State;
-Arbitrarily refusing to allow landlocked countries and countries with unfavorable geography to exploit all or part of the surplus living resources as prescribed in Articles 62, 69, and 70 of the 1982 Convention [42].
In addition to the above exceptions, according to Clause 1, Article 298, when signing, ratifying, or acceding to the Convention, or at any time, a country has the right to declare that it does not accept one or more compulsory settlement methods in Section 2, Part XV on dispute settlement to settle disputes related to national sovereignty such as: the determination of maritime zones under national sovereignty when two countries have the coast of the coastal country, or the movement of submarines, nuclear ships, ships carrying radioactive substances, nuclear energy in the territorial waters of coastal countries... Specifically, it is not mandatory to apply Section 2, Part XV on dispute settlement related to:
- Interpretation or application of the Convention with respect to the delimitation of maritime boundaries or disputes over historic bays or waters;
- Military activities, including military activities of state vessels and aircraft used for a non-commercial service, and disputes
enforcement actions relating to enforcement actions, and taken in the exercise of sovereign or jurisdictional rights which are excluded from the jurisdiction of a Court by paragraphs 2 and 3 of Article 297;
- Disputes that the United Nations Security Council is responsible for resolving, unless the Security Council decides to remove the dispute from its agenda or requests the parties to the dispute to resolve it by means provided for in the Convention. In essence, these are disputes related to the interpretation and application of the Law of the Sea that are likely to threaten international peace and security. Although the 1982 Convention is very limited, it is mainly related to the exercise of the coastal state's sovereign rights over maritime economic activities in the exclusive economic zone.
2.3. Dispute resolution at international organizations
Article 33, Clause 1 stipulates that the settlement of international disputes by peaceful means through regional international organizations or by mediation, regional agreements and conventions are considered one of the forms of settlement recommended by the United Nations to member countries.
The charters of international organizations all stipulate that the use of peaceful measures to resolve international disputes is a mandatory condition for members when participating in those organizations, for example:
- The Organization of African Unity (OAU-1963) considers the settlement of disputes between member countries by negotiation, mediation, conciliation and arbitration as a mandatory principle of this organization. The Charter of the OAU has provisions on mediation, conciliation, conciliation and arbitration to promptly intervene in disputes in the region. The main organs of the OAU such as the Permanent Council, the Consultative Conference of Foreign Ministers, the Regular Conference of Heads of State and Government play a decisive role in resolving disputes between countries, especially disputes over national borders and territories.
- The 1945 Charter of the Arab League stipulates that the League Council has the function of mediating disputes between member countries. League Council