STUDY ON THE REVISED SINGLE NEGOTIATING TEXTS, BY THE ASIAN-AFRICAN LEGAL CONSULTATIVE COMMITTEE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP82S00697R000400160022-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 93
• Document Creation Date: December 12, 2016
• Document Release Date: December 17, 2001
• Sequence Number: 22
• Publication Date: July 20, 1976
• Content Type: MEMO

NSC 1
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TI P 1' ?~2 gVV OF TH :
C--D/iLoE3 # 601
M&M M or-z,_^_ ID T-TM July 20, 1976
UNCLASSIFIED
TO: Members of the Executive Group of the Interagency
Task Force on the Law of the Sea
SUBJECT: Study on the Revised Single Negotiating Texts,
by the Asian-African Legal Consultative Committee
Attached for your information is a copy of the Study_ on the
Revised Single Negotiating Texts as produced at the
seve~~teenth session of the Asian-African Legal Consultative
Committee, June 28 through July 5, 1976 in Kuala Lumpur.
Otho E. Eskin
Staff Director
Atttachment :
AU,. Stated.
State Dept. review completed
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ASIAN-AFRICAN LEGAL
CONSUL b. 17R--COMxTTTEE
Sj:VENT_E .III SESSION, KUALA LUMPUR (It&LA.YSIA)
FROM 28TII JUNE TD 5TH JULY, 1976
STUDY
ON THE
REVISED SINGLE NEGOTIATING TEXTS
Prepared by:
The Secretariat of the Committee
20 Ring Road, Lajpat Nagar IV,
New Delhi - 24 (India).
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MOTE .5Y. TilDi Si;CRETA.RY-GSNERAL
The Law of the Sea has been under consideration
of this Committee since its ,Twelfth (Colombo) Session
held. in 1971, the main purpose of the Committee's
work being to assist the member Governments of the
Committee and other Asian-African Governments to
prepare themselves for the Third United Nations
Conference on the Law of the Sea. With this in view,
extensive preparatory material and documentation was
prepared, and compiled by the Committee's Secretariat
and discussions were held in the Committee's Thirteenth,
Fourteenth and Fifteenth Regular Sessions held in
Lagos, New Delhi and Tokyo respectively to enable
Governments to have full and frank exchange of views
on some of the important issues. In addition, meetings
of the Sub-Committee of the Whole on the Law of the
Sea were held during inter-sessiorial periods in 1971,
1912 and. 1973 and a, special study group. on landlocked
St;ttos had met and prepared certain draft propositions
on issues relating to that subject whinh were considered
by the Sub-Committee of the Whole and later at the
Tokyo Session. The work during the initial period
followed the pattern of preparatory work in the-
Sea-3od. Committee and some of the proposals on
important issues like the Economic Zone and
Archipelagos had their origin in the deliberations
of this Committee. At the Tehran Session the
Committee reviewed the work of the Third United
Nations Conference done at Caracas and deliberated
upon several issues of importance which arose out
of discussions at the Caracas Session.
During the Geneva Session of the Conference
on tine Law of the Sea held in the spring of 1975,
the Chairmen of the three Main Committees were
requested to prepare Single Negotiating Texts
covering the topics entrusted to each Committee.
It was made clear that the texts should take
account of all the formal and informal discussions
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held upto that time and that the texts would be
informal in character without prejudicing the
position of any Delegation, nor would they represent
any agreed text or accepted compromise. The Single
Nei;otio,ting Texts wore thus intended primarily to
provide a basis for negotiations.
The Secretsr'i.at of the Asian-African Legal
Consultative Committee made e detailed study of
the prcruisjons of. tha Single Negotiating Texts with
the object of bringing out the main issues which
needed to be considered in the process of
negotiations. Detailed analysis of the provisions
of the single texts were attempted in the Secretariat's
Study ,with due reference to the various proposals
made before the United Nations Sea-Bed Committee and
at Caracas4 These studies were taken as the basis
of discussion at the Meting of the Bub-Committee
of the Whole on the Law of the Sea held at New
Delhi during Ibbruary 1976. A consensus was reached
at that meeting that the future consideration of the
subject should be done primarily on the basis of the
Single Negotiating Texts as far as possible and
proposals for alteration or modification of the
provisions of the text should be such as are likely
to he generally acceptable and are not mere
reiteration of the national positions.
At the fourth session of the United Nations
Conference on the Law of the Sea held in New York
from the 15th March to the 7th May, intensive
discussions were held on the basis of the Single
Negotiating aexts leading to the formulation of
certain revised texts in regard to the work of the
three Main Committees known as the Revised Single
Negotiating Texts to serve as the basis for further
negotiations. In addition, the President of the
Conforonce hes drawn up and presented in accordance
with the decision of the Conference a Single
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3
Nogotiating Text on settlement of disputes a topic
which had not been considered earlier.
It would be seen from a perusal of the revised
texts that whilst certain basic changes have been
made in the Revised Text in regard to Committee I
matters and provisions on Settlement of Disputes
arc mow there are no substantial changes in the
Roviood Text in regard to matters considered by
Committees II and III as compared to the proviaion$
of the Original Single Text.
In the present Study an attempt has been
mode to focus attention to some of the important
ehangns made in re,.ard to Committee I matters and
to discuss the main issues on Settlement of Disputes.
This may be considered as a supplementary study to
be taken along with the studies prepared on the
provisions of the Single Negotiating Texts which
were made available to member Governments in
February 1976. The background of the various
provisions in the Single Text, and reference to the
proposals on each issue will be found in the
previous studies prepared by the Secretariat.
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P . T
Part I of the Revised Single Negotiating Text
(hereinafter referred to as the "Revised Text")
relates to the question of exploration and
exploitation of the mineral. xasojareas in situ
of the sea-bed, the ocean floor and the -sub-soil
thereof which lie beyond the limits of national
Jurisdiction and other related activities. This
part has 63 articles, three Annexes and a special
appendix. The Single Negotiating Text prepared by
the Chairman of Main Committee I during the Geneva
Session inr1975 (hereinafter referred to as the
?'Single Text') had 75 articles including the final
provisions of a Convention. The final provisions
have been omitted from the Revised Text as it is
now generally agreed that there is to be one
Convention oovering the entire field of the Law of
the `1oa and the sea-bed. The various provisions in
the Revised Text may be said to fall under the
following heads:-
1. Interpretation (Article 1) ;
2. General Principles concerning the Area and
its resources (Articles 2,3,4,5,6,7,8,13,14,
15,16,17,18,19 and 21);
3. Principles and provisions concerning
activities in the international sea-bed area
in regard to the resources (Artioles 3,7,9,
14,18,21,22 and 23);
4. other related activities in the area
(Articles 10, 11 and 12);
5. Establishment powers and functions of the
international sea-bed authority and its
various organs (krticlee 20, 24 to 32 and
41 to 45);
6. Settlement of Disputes (Articles 33 to 40);
7. Finance (Articles 46 to 51);
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8. gtatue, immunities and privileges of the
authority (Articles 52 to 60);
9. Suspension of the rights of members
(Artiol:s 61 and 62); and
10. Provisional application (Article 63).
Annex I contains the basic conditions for
prospecting, exploration and exploitation in the
area. Annex II contains the Statutes of the
intorprise which is the organ of the Authority
for carrying oitit activities in the area in regard
to the resources. Annex III contains the statutes
of the Sea-Ped Dispute Settlement System and the
Special Appendix which has two alternative
approaches is on financial arrangements' in regard
to contracts for exploration and exploitation of
tho resources.
The scheme of arrangement of the various
articles and annexes in the Revised Text generally
follow the pattern of the Single Text and the
Annuros II and III which were left blank in the
Single Text have now been completed in the Revised
Teat. It has been pointed out in the note of the
Chairman that whilst a good deal of discussion took
place on the provisions of Annex I, the provisions
of .Annexes II and III as also the Spacial Appendix
in the Revised Text had hardly boon discussed.
Although the Revised Text retains the basic
pattern of the Single Text in regard to the
arran;:ement of tho various provisions, there are
certain significant chani;os in the Revised Text,
which require careful eonsidore.tion.
One of the fundamental issues which needs
to be examined is as to how far the concept of
common heritage of mankind in regard to the
resources of the sea-bed area proclaimed in the
Deela.ration adopted by the General Assembly on
TOeoj.tber 17, 1970, has been given effect to in
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>hu pract1.c;~il application of the provisions of the
Convurition in rca,gard to the activities In the area,
that is to say how far the provisions of Article 22
avid pa,:ra,^.raphs 3, 8(d) and 12(2) of annex fare
cornpatiblo with the concept of common heritage of
insraacind . It would also be for coneideratioh as to
whether any portion of annex I, in regard to matters
of priuciplo should not find place in the, main body
of the Convention. The next connected question of
importance is the economic aspects of exploitation
of the mineral resources and the effects of such
exploitation on the economy of the countries who
are producers of landbased minerals (,Article 9).
The other,quostions of importance which may
b(, considered are,-
1 17ofinition given to the oxpi;seion "Activities
in the Area in Article 1 and the Definition
of "Resourc:-,s".
2. Structure, Powers and Functions of the various
organs of the Authority including the
Entorprise (Articles 24 to 32, '41 and
Annex II).
5. Financial
(Articles 46 to 51, Annex II and Spacial
Appendix') .
4. Ex:thement of Disputer
(Articles 33 to 40 and Annex III).
CTIVITII S IN T'IB E IN RE ' RD TO R113OURCES
-M= NCIP 'Ill _MMr1MC,N_T-Tr1,R1r
The practical effect of the General Assembly
Declaration of 17th December 1970 which declares e
resources of the international sea-bed area ^a the
common, heritage of mankind is that the rich mineral
deposits in the sea-bed and sub-soil which lie beyond
national jurisdictions should be available for the
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benefit of the international community as a whole
which is now possible due to technological
advances. The primary object of part I of the
Convention is to give effect to the General
Assembly leelaration and work out the details for
the purpose.,
As a result of the discussions in the Sea-bed
Committee'and the three Sessions of the Conference
on the Law of the Sea held at Caracas, Geneva and
New York. ?;,ssr?,a.in ba.sIA eoncepts have oryatall.ized,,
The so are as follows;-
(a) The;reeourcee of the area are the common
heritage of mankind and are vested in
mankind as a whole and consequently no
individual utate can claim or exercise
sovereignty or sovereign rights.over any
part of the area or its resources. These
principles will be found incorporated in_.
Articles 3 and 4(1) of the Revised Text
and paragraph 1 of Annex I;
(b) An international authority which is to be
established under the Convention is the
organization which shall act on behalf of
the mankind as a whole in regard to the.
resources of the area -nd that it is
through this organization that State parties
shall organize and control activities in the
area. This principle can be e~elt out, from
the provisions of Article and paragraph
1 of Annex I;
(e) Activities in the area shall be carried silt
for the benefit of mankind as a.whole and
taking into particular consideration the
interests and the needs of the developing
countries. This would be found in the
provisions of Articles 7 and 18 of the
Revised Text;
(d) Although the resources as such of the area
being vested in the mankind as a hole are
not subject to alienation, the mineral
extracted can be alienated in the manner
provided for in the Convention. This follows
from the provisions of Article 4(2),
paragraph 1 of Annex I and Article 1.
clause p(iii). It is not very oles.r whether
it is necessary from a particulaar point
of view to make any distinction between
resources of the area and the minerals
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extracted from it. It is obvious that in
order to achieve the objective underlined
in the United Nations Declaration, minerals
would have to be extracted, processed and
sold so that the proceeds may be available
for the benefit of the entire international
community; and
(e) The activities of the area in regard to
extraction of the mineral resources have to
be so conducted as to prevent adverse effects
on the general economy of countries, who are
producers of laridbased minerals of similar
type, the object 'being to foster the healthy
development of the world economy and a
balanced growth in,intornationRl trade.
This is clear from the provisions of
Article 9 of the Revised Text.
The above principles being generrilly recognized
and incorporated in Articles 3, 4, 5, 6, 7, 8, 9,
1S, 21 and paragraph I of annex I, it is to be
seen how far these principles are given effect to
in the other provisions of the Revised Text which
give the details regarding the activities to be
undertaken in the international sea-bed area.
Apart from these general principles there is
also a general consensus that there should be
scientific research carried out in the area,
arrangements should be made for transfer of
technology in regof Article 59'{ g.).-,,vhIch. is
new do .not p psr to be open to objection. The
provisions of Articles 60 and 64 hosioer require
eon8i4hurr:tion., Paragraph 2 of Artiolo 60 provides
thi:;L tso Co otvl State shall not witkhbl &? `its
consynt tp,; the conduct of 3b9;antifi,uI+a `5iaro2i uri2e66
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that projoct burrs substantially upon thu
c xpiorc,tion r'nd oxploit,,,tion of thu living ar
non-living ru;sourc,a or invo].v S drilling ox'
use of oxplosivue or unduly inturfores with
economic activities porformod by the Coastal
State or involves the: construction, operation
or u7:; of artificial islando, installations and
structur..ee. This is really bringing in the
concept of a fu:ld:?montr.l r::soaroh without using
that ?.~).;prossion. It is doubtful 'whethur an
obli,r,tion of th? type impo,l;;d by Article 60 is
^pprorris,tc. Article 64 providue that P. State
may commonco scientific res,irxoh aftor giving
th,) :cour months notice, unless the Coastal State
obj,,ots within two months of the rocuipt of the
eommuniention. It is felt that the poriod of
two months might be too short for the: Coastal.
Str.te: to t:tko ito decision. Articles 76 and 77 are
on th.e quostion of sottlouiunt of disputes. Those
provide for a special conciliation procoduro which
in somewhat different from the proocdtre indicated
in A;?.nex 1A of the Single Text on oottl;;-ront of
disputes.
Dovulor=nt and Trrnof,-~r of TcchnologY
Arti.Cl< 78 to 89 of the Revised Tuxt deal
with this topic. 'Those provisions, except in a
few cr ses, are practically the same as Articles
1 to 11 of part III of the Single Negotiating
Tu:ct. There care only two changes which may be
not ice.d; one is in Article 80(c) of the Revised
Text which provides that Status directly or
through competent in.tera^.tion l organizations
s1aa,11 promote the dev,:lopmu-,.t of the noc;ssary
tuchnologica.l infra--structure to facilitaate thy;
trans for of Mrrinu Scientific Tochriology. In
the corresponding provision of the: Single Text
th,. words "in o01u->ont.nc,: with th;; .economy and
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n,,uds of the rccipiJYlt country" wore found at the
end of th sontonce . The reason for deletion of
them words in the Revised Text does not seam to
b_; cl.,or and it is suggested that those words
should be retained. The provisions of rticlo 87
prrn,raph 2, which provides that all St;n.tos of the
r., glen shall duly co-op .rate with the r.:gional
centres in order to ensure th.; more off.ootivu,
achieva:mont of their objectives and Articlo 89,
which enjoins the competent international
organizations to Dffictivuly discharge thi
functions and responsibilities assiguod to thorn,
are additional provisions which wero xwt to be
found in. the Single Text. Thorn should however
be no objection to their accoptanog. Sinco the
provisions of the Revised Text on this topic aro
oubatantially the same as those in, the Single
T xt, attention id invited to the r8ocretnriat's
Study on the Single `Loxt for commotits on the
various provisions.
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PAR T IV
SETT491ENT-UF vISPUTES
The single negotiating texts which were
prepared by the. Chairmen of the three main
Committees during the Geneva Session did not
bontain any comprehensive provisions on the
settlement of disputes, except in regard to
Committee T matters. During the New York Session
the Conference authorized the Presids it to px`epaxe a
new Single Negotiating Text on the subject.. of.
settlement of disputes which would have the same
status as the other Single Negotiating Texts.
The Single Text drawn up by the Presid4nt
of the Con'erenoe has two sections containing
substantive provisions regarding :obligations o'
parties to settle their disputes'according to
procedures indicated in the Single Text and the
choice in regard i;o the different settlement
procedures outlines therein. The Single Text
contains two sets of annexes; the first set gives
the detail led Procedure to be followed in conciliation
proceedings, in arbitration and before'the law of
the Sea tribunal; whilst the second set gives the
special procedures applicable in regard to settlement
of disputes, through expert bodies in regard to
fisheries, pollu~ion, scientific research and navigation.
The scheme c:nviaaged in the Single Text is
the possibility of having a separate set of dispute
settlement procedures in regard to the:subject matter
of part I of the Convention, namely, activities in
the international sea-bed area although this question
can not be said to be oompl etely sottlesd. Part I of
the Revised Text it has been seen, contains
provisions concerning settlement of disputes in
regard to the interpretation of part I of the
Convention through a machinery provided' for therein.
It also envisages establiohraent of a Tribunal as an
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organ of the international sea-bed authority with
competence to render advisory?opinions, to review
the decisions of the various organs of the autkrity
on a complaint filed before it, to settle disputes
between States parties in regard to interpretation
of part I of the Convention as also to give its
decision on disputes arising out of contracts in
regard to the activities of the area. The Single
Text drawn up by the President contains a note that
the precise relationship of the provisions of the
p.rt on the settlement of disputes with other parts
of the Convention, in particular the provisions on
the settlement of disputes in part I of the Revised
Text was yet to be determined+ Article 8 of. the
President's Single Text accordingly provides that
in cases where. part I of the Convention provides
for un exclusive procedure for the se1;'tletent of disputes
relating solely to the interpretation or application
of the provisions of that part, the dispute settlement
procedure enyjsaged in the President'? s Single Text
would not be applic;able. Incidentally it -,day be
pointed out here that the Single Text uses the
expreosion "Chapter it, for the expression "part ,1"
which terminology has been adopted in the Revised
Sin;;le 2degotiatinn Text.
On the question ofa separate dispute
settle aunt system in rer,ard to part I of the
Convention it may be stated that such separate
;)rocoduro can be justified on the ground that a
comprehensive international machinery is contemplated
for the i lternational sea-'bed area and an organ. fpr
,ct'tiejl.nt of Idisputes is a necessary part of an
internationaj machinery of the type envisaged in
part I of the Conventioh, 'which would be cowpeten,#;
to ~.ive advisory opinion to other organs, o.:f the
authority regarding the proper Llterpretat_Lon of
those ,arts of the Convention with which the
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interxiutional machinery and its various organs are
concerned. Secondly, the work relating to prospecting,
exploration and exploitation of the area under.
contractual relationship between the authority and
others inoluding individuals racy give rise to
disputes of a private law nature which have to be
settled under different procedures. However, the
question of interpretation of the Convention whether
related to one part of the Convention or another
involves the same type of work with the same -parties
before a Tribunal, namely, States parties to the
Oonvontion and there can be little justifio.ation for
entrusting the work of interpretation of part x of
the Convention to a different settlement maoh3,no r.
Purtherm4ro ezy interpretation given to a provision
in part I of the Convention may have effect in
interpreting another part of the; Convention and the
possibility of a conflict of decisions cannot be
altogether excluded if different settlement procedures
were to be applicable in regard to the, interpretation
of different parts of the Convention. It may be pointed
out as an example that the. question of scientific
research, transfer of technology and protection of
marine environment from pollution are matters which
arise in regard to the sea-bed area, in the economic
zone and on the hig,_ seas, provisions with respect
to which would be found in three different parts of
the Cunvention. It is desirable that with regard to
these matters the sane dispute settlement procedures
ohould apply. The :P.re;;id...:t I .-p drawing up his single
text has not boon unmindful about the overlapping of
the jurisdiction under the dispute settlement
machinery in part I and the settlement inaehinel.,r
which is envisaged in his Single Text. He has
accordingly provided in paragraijh 2 of Article S that
whore the Tribunal having jurisdiction in accordance
with the provisions of part I in. dealing with a
dispute rolating to tno interpretation or -application
of the pr,,visiox1S of that
;~ar?, deteriirina? that ,.such
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dispute involves also quostionsrelating tc. the
interpretation or application of other parts of the
Convention, it shall require the parties to the
clispuce first to submit; such questions for a finding
to the appropriate forum envisaged in the Single
Text and suspend proceedings pending conclusion of
such determination by the machinery envisaged in the
Single Text on settlement of disputes. This would
mean that when an Arbitral Commission or the
Sea-bed Tribunal is ceased of a dispute it must
postpone its hearing if it finds that the! subject
matter of the dispute also involves interpretation
of the Convention which is not limited to part I
thereof and await the decision of the appropriate
machinery before it can proceed with the hearing of
the dispute before it. Whether this is a practicable
proposition would need to be oxamined'and if the
position envisaged in Article 8(2) of the President's
Single Text is accepted then a corresponding provision
would need to be incorporated in part I of the
Convention.
Suction 1 of the Single Text has six articles.
Article 1 reiterates the general obligation of State
parties to settle their disputes through peaceful
moans indicated in Article 33 of th.c Charter of the
United Nations, Articles 2 and 3 exclude the
operation of the machinery provided for in the Single
Text in regard to settlement of disputes where
contracting parties have agreed or may agree at any
time to settle their disputes through other peaceful
:scans of their own choice and also where the
contracting parties have accepted through a general,
regional or special agreement or some other instrument
or instrunionts an obligation to settle their disputes
through other means. Article 5 however elarifio.s that
if contracting parties have agreed to settle ri dispute
by pee ccfal moans of their own choice and have agrood
on a time limit for such proceedings, the procedure for
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;settlement of disputes providod for in the Single
text shall apply when the time limit has expired
without a settlement being reached, unless the
aagroumcmt botweon the parties preclude any further
procedure.
oizcil anon. rocedure
Article 4 indicates the first step in the
dispute settlement procedure envisaged in the Single
Text, namely, that the parties are obliged to proceed
expeditiously to exchange views regarding settlement
of disputes, Article 6 envisages a conciliation
procedure as the next step. This article provides
that any )arty to a dispute may invite the other
party or .parties to the dispute to submit the
;iamo to conciliation in ao ordanoe with annex IA,
If the other party accepts the invitation then the
conciliation machinery is set in motion. Paragraph 3
of this article specifies the circumstances in which
conciliation proceedings may terminate, namely,
if the other party does not accept the invitation
or after aoceptin the invitation it fails to appoint
its members on the Conciliation Commission or
fell to agree to the appointment of a Chairman.
The conciliation procedure as envisaged in Annex IA
cont xaplnites maintenance of a list of conciliators
by tie Registrar of the Taw of the Sea Tribunal,
the constitution of which i-3 provided for in
Suction IT of the Single Text. The list of
c.nciliators is to consist of ?arsons nominated
,,y the contracting parties in accordance with the
:provisions of Article 2 of annex IA. Article 3 of
the ?,iniex sets out the procedure for initiation of
conciliation proceedings and appointment of
.conciliators. The pattern followed here is that
each party is to nominate two conciliators on the
Commission, one of whom shall be-of the nationality
of the partly who may or may not be in the list
nu,,iirt,iined by the Registrar and the other conciliator
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is not to be of the nationality of the party
and is to be chosen from the list. The four
conoili ,tors so appointed are to choose a fifth
conciliator from the list who shall be the Chairman
and failing such appointment by agreement within a
.period of thirty days, the nomination is to be
made by the Secretary 4.encra.'of the United. Nations
within a. further period of thirty days: The
conciliation Commission is to decide its own
procodure and Article 6 of the annex provides for
hearing of the parties by the Commission, examination
of their claims and objections with a view to
reaching an amicable settlement of the dispute.
Pa:cagra,)h 7 of the annex is important which provides
th t the Commission shall make its report within
twelve months of its constitution and makes it clear
that the Report Of the Commission is not binding
upon the parties which shall have no other character
than that of recommendations submitted for
consideration of the parties in order to facilitate
an amicable settlement of the dispute.
The provisions .;f Articles 4 and. 6 in section
I of the Single Text as also anaiex IA should be
acceptable because they do not impose any compulsory
procedure but a e aimed at resolving disputes by
aagrecancnt or settlement through the good offices
of a Conciliation Commission, The rooc1mzendations
of the Conciliation Commission though: not binding
is bound to have weight in the negotiations
between parties for aan amicable settlement.
CL1Vxg1, Og P, ZQCA7)U4&
The provisions of Section II of the Single
Text consisting of Articles 7 to 18 require
careful scrutiny because they sot in motion a
compulsory proce?lure for settlement of disputes.
Article 7 clarifies that the provisions of
section II will apply only where no settlement
has beers roaohed through negotiations or through
conciliation as provided for in Articles 4 and 6
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in section I or through other methods of settlement
contc:rlpla'i:ed in Articles 2, 3 aand 5 of section I.
Article 8 a),aragraphs 1 an(P 2 :u-dce provision for
settlement of disputes through the raachiacry
pr.ov.ded for in part I of the Convention relating
to the iritorrnationca seabed ;area. Paragraph 3
proviuos that if special procedures for settlement
of disputes arc provided for in any other part of
the Convention ra;;ardi e, i,iterpretation or application
of that part of the Convention the proceituro
contcsnplatod in erection II of the Single Text presented
by the Prosidunt will apply only when such special
procedure has beau concluded without any settlement
reached nd provided the special procedure
dices not preclude r~ny further procedure. These
provisions of Qrtioles 7 and 8 hove also to be read
in conjunction with Article 14 and Article 18 of
the Single Tcxt.
Paragraph 4 of this article deals :pith the
case wi.icrc special Committees have jurisdiction
ver disputes cone ?rn .ng ccrtai.n provisions of the.
Convuntion and t'3 s would be dealt A?ti?th separately.
Thu affect of the provisions of Article 7
ad1,ccrugr..iphs 1, 2 and 3 of Articlo 8 read with
Articles 1.,! ca..id 13 is chat compulsory achinery
for aettlancnt of disputes provided for in the
Sid, ie Text can be resorted to by nn party to r
dispute concerning interpretation or application
of the previsions of the Couvo;.rtion in the following
cases:
(~) Where conciliation proccduro has failed
without ranching a settlement;
b) Whore parties have taken rooourse to
iizchincry of their own choice but no
settlement has been reached within a time
limit specified by them provided their
agreement sloes not preclude further
proc ccdinga;
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(c) Where parties hvving accepted through a
E;mural, regional or speei,-l agreement for
J'ufuroneo of t 4e.ir di,~,putce to ,,rbitration or
judiojai).. settlement'; rat;;rcc to be governed by
he provisiun1s of the dispute settlement
s>roce(luro provided for in the Single Text;
(d) Where different parts of the Convention
pruvido for cepooreto machinery but sottlomcnt
Is not reached through that machinery provided
that the separate; procedure does not preclude
any further pruecedings;
(o) Thu, machinery provided for in the Single Text
will not be ,tpplicablu in rogurd to the clc:3ssos
of disputoc in regard to which rosorvetions
4rtvu boon nt,udo in aocordLuioc with Article 18t
(f) Thu machinery for settlement of disputes can
only be set in motion after loc L remedies have
been exhausted. Where the dispute is in relation
to matters falling within the exclusive rights,
jurisdiction or competance of the oovitai state
as contemplated in Article 14.
If a compulsory dispute settlement procedure
is lis 1, 2 ;and 3, subject to the c:oliUtjcnts
'1rcadiy ,made on the need and desirability of different
>ettle:.,i,. it machinery -under clifforciit parts of the
Convelii;ion. Thu provisions of Articles 14 and 18
will be scp;ratoly discussed.
Articles 9 and 10 contain the most crucial
provisions of the Single Text. Article 9 gives
,_e choice to the parties in regard to the compulsory
procedure which they would accept for settlement
of disputes. It provides that a contracting party
when rata?sring or otherwise expressing its consent
be be bound by the Convention or at any time
thereafter shall be free to choose by moans of a
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IS
specie] dec1;rutiuil, one or more of the compulsory
procedures set out in the article. The choice is
givers as between:-
(,.) The Law of the Sea Tribunal whose constitution
is prcvideed for in annex 10;
(b) The Intone tioniil Court of Justio("(c) An Arbitrnnl Tribunal conctitutod in ecoordr.nce
with annex 1R-, raid
(d) The system of Special procedures in regard to
fisheries, scientific research, pollutions
control and navigation as provided for in annex II.
It is clarified in paragraph 2 of this article
that if a ,r.;rty chooses the system of special
procedures it dust also indicate its choice in ro,_;ard
to one or more other procedures, namely, the Law of
the Sea Tribunal, the International Court of Justice
and the Arbitral Tr:Lbuncxl in regard to settlement of
disputes on maters where the apecial procedures
indicated III Annex II do not ;.a_Liply. It is provided
in p;.r;_lgraph 3 of this article that if a contracting
party does not. take a special (1e0le:ration in regard
to its choice botwe an d:i.f:,_ feast procedures indicated
;,bovo ar if its declaration containing that choice
l.;;Ls oLther c)qdirc~ or boon revoked a;td no new
declaration 1ad boon made, it would be doomed that
c::c colutractiilg party has accepted the jurisdiction
of the IllturJ1rtion.l Court of Justice if it has mada a
declaration under Article 36 of the statute of the
Court and otherwise the Law of the Sea Tribunal as
cunstl.tuted in clunex IC of the Single Te.-.ct. Pcragraph 4
snakes it possible fora contracting party to choose
the system of special procedures provided for in
annex II at any time in regard to settlement of
disputes on fisheries, navigation, pollution and
;sci orltific research even during the subsistence
of _.ts choice or d,_,a,iod choice of any other
procedur@ indicated in paragraph 1 in which case the
other 1preoedurc would govern all disputes except those
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which are covered by the spcei 'L procedures
prov.Lducl for in annex 2.
Paragraphs 5, 6 and 7 of this article may be
Lund together. These provide that if both the
parties to ; dispute have chosen or oxo deemed to
h,-ve chosen the same procedure for the settlement of
the dispute, disputes between them may only be
;;ub attcd to that procedure unless the parties othc;rwiee
a?;ree. If however the choice or deemed choice
exorcised by ,he parties to tae dispute as regards
the forum are different, then the dispute con be
submi_ttod my to the forum chosen by the party
d ,f..udant, namely, the party against which the
proccoclizhgs are instituted.
Paragraphs 8, 9 and 10 may be regarded as
aupplccecntary provisions which state that the
declaration regarding the choice of forum shall be
d ;poroited with the Secretary General of the United
Nations, that declarations regarding such choice shall
be valid until revoked b, notice in writing to the
Socrot;,ry General, such revocation taking effect
thruo months after receipt of such notice a .lad that
revocation or expiration of a declaration shoal not
affect the Jurisdiction of the forum in pending
proceedings unless the parties agree otherwise.
Th(; main criticism about the provisions of
Article 9 is that even if the; concept of compulsory
procedure for settlement of disputes be ;accepted,
there are too many forums provided here for
sottlemuirt of disputes. This may not be 'very dosiroble
in regard to disputes concerning interpretation
of the provisions of as Convention, because there may
bqa possibility of conflict of decisions by different
forums on the interpretation of the same provisions
of the constitution. There may be justification
for constitution of special ferns in regard to
raetl,lemcnt of dial:autcs in technical matto:rs by
expert bodies as cnvisagod in annex II but there should
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ror:,lly 'be ono effective forum for adjudication on
;o,,U curs concerning the interpretation of the
Convention. furthermore the choice given to the
jx.rticp in regard to the forum in the xnc.,nner
indicated. in Article 9 may lead to uncertainties and
a certain degree of confusion.
It i o out,, Gstc:d on the accumptiors that compulsory
procedures for roottlement of f Lsputes ;tiro acceptable
in prineiplo, that all d.toputoe concurring technioul
mr.,tters should be decided upon by expert bodies of
the typo envisaged in annex II, which would not
deal with any substantial question as regards the
int orprot it ion of the Convention for which there
? should be a separate for=. The Jurisdiction with
regard to interpretation may be given to the Tribunal
constituted in part I of the Convention or to a now
forum like the Law of the Sea Tribunal if it is found
impracti.oable to confer this jurisdiction on the
:Corner, Parties, ]i 7wovor, should be given the
choice by agrc acnt to resort to e bitre.tion by an
arbitral tribunal in rc rard to ;111 di.i; jutos oat any
time. The ouggustion which is being put forward will
really mean one act of compulsory procedures,
namely, the oxciport bodies for settlement of
technical Cai.oputos and a Tribunal for settlement of
disputes regarding interpretation of the Convention.
The alternative cnoico would be available if both
parties ;ao agree to resort to an Arbitral Tribunal.
Article 10 paragraph I enunzcrates the typos of_
disputes in which the forum constituted under
Article 9 would have; jurisdiction. There appears to
be some confuion in the drafting of this article
because the distinction between the nature of
jurisdiction in epucial procedures contemplated in
Ar'ticlc 9 paragraph 1(d) and other forums have
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not been indicated. For exaunplr:, jurisdiction in
ro;,a,rd to matters cnurnor}.atod in claupos (c) road
(cl) of par;.jraph 1 of irtic].a 10 can only be
oxorcicod by the forums contemplated in Article 9
~rr.,,raph 1 clauses (a), (b) .and (o) and not by
the slpooiul procedures provided for in annex II.
Paragraph 1 of Article 10 would therefore food
rc:dra:tLing in order to bring out clearly the
respective jurisdictions of the forums contemplated
in Article 9 paragraph I clauses (c,), (b) and (o)
on the one hand said of the special procedures
contemplated in clause (d) of that article. One
other matter to which attention may be drawn is
contained in clause (f) of, paragraph 1 of Article 10
which confers jurisdiction in any dispute relating
to the interpretation or application of an inter`
nation:.l ,agreement related to the purpose of the
Convention which provides that any such dispute
,hall be decided in a ,ccordaiico.,odth the machinery
~rovidud for in the C.)nvc,ntion.
:P;urrigraph 2 of Article 10 also needs drafting
cluaniges. WJi,~,t ceppoars to be contemplated in this
pr.ovicion is that an appeal will tic against a
(L ci pion given by .an expert forum constituted under
annex II where it is c)mplainod that 'the forum has
exceeded its jurisdiction or infringed basic
procedural rules or has violated the Convention.
It is not very clear as to which forum the appeal
will lie that is, whether it is the International
Court of Justice or the Law of the Sea Tribunal or
,i.i iirbitral Tribunal. It also seems doubtful
about the provision for an appeal against decisions
of expert bodies.
.Article 11 provides for the Law of the
Sea Tribunal, tho International Court of Justice
or ~a Arbitral Tribunal to have recourse to expert
opinion when dealing with a dispute involving
technical or scientific matters. The provisions
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of this c~rciclc arc unexceptionable in principle.
liuwcvur, is io for conoidcration whether the forwas
mcntiuncd here oiiould deal ~dth disputes on
technical matters at all.
4.rticlc 12 which em;,owers the various forums
to apply provisional measures contains the usual
powers which arc given to tribunals in ca compulsory
settlement procedure. Articles 16 and 17 which
provide for the applicable law in the settlement of
disputes and the binding force of decisions are also
normal provisions in a compulsory dispute settlariont
procedure.
There arc three important provisions which
ti could require scrutiny, namely, the provisions of
Articloo 14, 15 and 18. Article 14 provides that
in the; case of a dispute between oontraoting.ppaties
i:ulating to the; exercise of sovereign rights,
:.:elusive rights -or exclusive jurisdiction of a
Co,;st,Jl State:, ,a contracting party sha ll not be
o.ititled to oubmit such dispute to a forum contemplated
tu:idur Article 9, until local rencdios have boun
e-h au:3tod as required by international law. An
exception is however ,!hide in paragraph 2 of this very
article that in any )ther kind of dispute relating
Lo tic iiz?verprctation or application of the Convention
the rule o s to exhaustion of local remedies need
,lot be appliod. Thu context in which the rule of
uxh,Lustion of local remedies has been invoked
in not vary clear because that normally applies to
time question of st,Lte res.)ontisibility mind not in
ru,::rd to i;ator;,rut,~tion of - Convonti.on between
can t7 ,acting States. What however seems to be
contumpi2ted in this articlc is that if in the
exorcise of sov reign rights, c,xclusive rights
u: oxclu;.;ivu jurisdiction of a Cor.stn.l. State such
~Ia in the terr,'itori,.t:L rfua, 'c]r.c oxe:lurjivc: economic
:_iune cr. the Coll .1. trh.ull', ; any lo;;e3, h:1cn or.