Commentary - the 1982 United Nations Convention the Law of the Sea and the agreement on implementation of part XI - Law of the Sea Convention

US Department of State Dispatch, Feb, 1995

Article 292 provides specifically for expedited dispute settlement to address allegations that a State Party has not complied with the Convention's provisions for the prompt release of a vessel flying the flag of another State Party and its crew.

Article 293 provides for a court or tribunal having jurisdiction under section 2 to apply the Convention and other rules of international law not incompatible with the Convention.

Any decision rendered by a court or tribunal having jurisdiction under section 2 is final and is to be complied with by all the parties to the dispute; however, the decision has no binding force except between the parties and in respect of that particular dispute (article 296).

Limitations on Compulsory, Binding Dispute Settlement Articles 297-299)

Section 3 provides for limitations on, and optional exceptions to, the applicability of compulsory, binding dispute settlement under section 2.

Limitations. Disputes concerning the exercise by a coastal State of its sovereign rights or jurisdiction are subject to compulsory, binding dispute settlement under section 2 only in certain cases (article 297(l)). These cases involve allegations that:

* A coastal State has acted in contravention of the provisions of the Convention in regard to the freedoms and rights of navigation, overflight or the laying of submarine cables and pipelines, or in regard to other internationally lawful uses of the sea specified in article 58;

* A State, in exercising such rights and freedoms, has violated the Convention or certain laws and regulations adopted by a coastal State; and

* A coastal State has violated specified rules and standards for the protection of the marine environment.

Disputes concerning marine scientific research fall within the scope of compulsory, binding dispute settlement under section 2, with two exceptions (article 297(2)). The first exception involves the exercise by the coastal State of its explicit right or discretion to withhold consent (e.g., with respect to research directly related to resources or involving drilling). The second pertains to the coastal State's decision to exercise its right to suspend or cancel a research project for non-compliance with certain required conditions. There is provision, however, for disputes falling within such exceptions to be addressed through compulsory, nonbinding conciliation under Annex V, section 2.

Under article 297(3), fisheries disputes are subject to compulsory, binding dispute settlement under section 2, except that a coastal State need not submit to such settlement any dispute relating to its sovereign rights with respect to the living resources in its EEZ, or the exercise thereof, including, for example, its discretionary powers for determining the allowable catch. However, such disputes may, under certain conditions, be referred to compulsory, nonbinding conciliation under Annex V, section 2. Conciliation may be invoked if it is alleged that a coastal State has:

* Manifestly failed to comply with its obligations to ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not seriously endangered;