The Exclusion of Compulsory Proceedings Entailing Binding Decisions in Light of the Southern Bluefin Tuna and South China Sea Arbitrations

Abstract

For international disputes covering the same ground under a constellation of complementary and conflicting agreements, mapping the relationship between treaties is critical, especially if each contains compulsory jurisdiction clauses. Their interrelatedness or independence will affect a finding of jurisdiction. This paper considers the procedural effects of treaty parallelism on the exclusion of Part XV compulsory proceedings entailing binding decisions under the UN Convention on the Law of the Sea (UNCLOS), using as examples the Southern Bluefin Tuna and South China Sea arbitrations. The jurisprudence splits on whether an explicit exclusion is necessary in an alternative agreement to remove a dispute from Part XV’s reach. The adoption of either approach depends on how a Tribunal views the Convention. Oxman divides predominant attitudes into separate “substantive and procedural models” which form the bases of diverging lines of authority. This taxonomic exercise is pertinent not only in theory, but in practice, as Klein recognizes “a core tension existing around the operation of Part XV” is whether it is “intended to be as comprehensive and inclusive as possible” or serving “a more limited, albeit still important, purpose.” The “obvious tension between sustaining an integrated global regime and allowing further development on a regional basis” finds specific expression in divided interpretations of Articles 281 and 282, the jurisdictional prerequisites of the UNCLOS Part XV dispute settlement regime. In resolving jurisdictional problems related to treaty parallelism, invocations of lex posterior, lex specialis, and the like, may be misplaced given UNCLOS’ unique dispute settlement provisions and “something more than, or different from, specific affirmation of the effect of certain generally applicable rules of the law of treaties” may be required. Equally important is understanding the limitations in “expansive” approaches to treaty exegesis. This has broader consequences for other long-term agreements in international law’s universe of treaties, including “the ICAO Convention, or those of the GATT and WTO Agreements, or the optional clause of the ICJ Statute.” Caught in the waves of “an international legal system in transition” crashing against volatile political realities increasingly commonplace in recent sea disputes like South China Sea, this paper concludes that the unique dispute settlement regime of the Montego Bay Agreement is best buoyed by a process of harmonization. This is only feasible if fundamental attitudes towards UNCLOS, procedural and substantive model views or otherwise, “suffer a sea change.”