1982 Law of the Sea Convention

摘要

While general international law provides the necessary underpinnings for maritime dispute settlement, the LOSC has developed a specialised dispute settlement mechanism that is quite flexible in many aspects. It embodies, on the one hand, the subtle compromise of interests mainly between coastal or port states and flag states in the dispute resolution process. On the other, it is designed to provide some assurance that the delicate balance of rights and duties established by the Convention would be upheld in their interpretation and application. The establishment of compulsory procedures under Articles 286-296 constitutes one of the major achievements of the Convention. Special credit should be given to the unique provisions in Article 292 for the prompt release of vessels and crews. In addition, the procedure of provisional measures under Article 290, which can be prescribed by the ITLOS or other appropriate fora when delays over an arbitral tribunal are anticipated, deserves full recognition as well. The compulsory procedures have already demonstrated their practical importance in international adjudication in the last few years. Whereas an international court or tribunal will no doubt apply the provisions of the Convention, it will apply other rules of international law or may, at least theoretically, even decide a case ex aequo et bono if the parties so agree. Therefore, notwithstanding lack of express provisions on the applicability of compulsory procedures in some cases, any disputes with respect to foreign merchant ships can be submitted to the compulsory procedures if the parties jointly so choose. Additionally, given the rapid development of port state control in the last two decades, the resolution of disputes in the port state deserves more attention. Appeals arising from port state control detentions may be addressed to a court or tribunal by applying, mutatis mutandis, Article 292 of the LOSC, if the member authorities of a regional arrangement on port state control reach such an agreement. The court or tribunal referred to will decide by itself whether it has jurisdiction in case of a dispute as to jurisdiction. Nevertheless, disputes involving foreign merchant ships always turn out not to be purely legal, but also involve highly complex political, economic and even social interests that may well be better addressed elsewhere than in a court. At all events, the successful and enduring resolution of disputes relies not only on a well-established legal system, but ultimately also on political will, economic trade-offs and a spirit of co-operation.