A comparative analysis of compulsory conciliation under the United Nations Convention on the Law of the Sea

Abstract

Compulsory conciliation is featured as a residual means in the United Nations Convention on the Law of the Sea, yet it is still an important dispute settlement procedure. In terms of jurisdiction and settlement of competence disputes, compulsory conciliation is closely related to arbitration and litigation under Article 287. The recommendations and reports of the Conciliation Commission are not legally binding. Compared with arbitration and litigation, compulsory conciliation has advantages in the form of procedural flexibility and controllability of results. Concerning the number of maritime delimitation cases referred to the International Court of Justice (ICJ), International Tribunal for the Law of the Sea (ITLOS) and Annex VII arbitral tribunals, all of them do not have a significant advantage over conciliation. The Conciliation Commission enjoys greater flexibility in the application of law and procedures, and its recommendations may even go beyond the request of the parties. Given that the procedure has a nonadversarial character, and the conciliation agreements are typically based on the voluntariness of the disputing parties, the willingness to comply and enforce is better than arbitration and litigation. It also has advantages over arbitration and litigation in terms of the political and time cost. Thus, with greater understanding and practice of the procedure, it will play a more important role in maritime dispute settlements.