Subject to the provisions of Part XV, any party to a dispute may submit the
dispute to the arbitral procedure provided for in this Annex by written
notification addressed to the other party or parties to the dispute. The
notification shall be accompanied by a statement of the claim and the
grounds on which it is based.
Article 2
List of arbitrators
1. A list of arbitrators shall be drawn up and maintained by the Secretary-
General of the United Nations. Every State Party shall be entitled to
nominate four arbitrators, each of whom shall be a person experienced in
maritime affairs and enjoying the highest reputation for fairness,
competence and integrity. The names of the persons so nominated shall
constitute the list.
2. If at any time the arbitrators nominated by a State Party in the list so
constituted shall be fewer than four, that State Party shall be entitled to
make further nominations as necessary.
3. The name of an arbitrator shall remain on the list until withdrawn by
the State Party which made the nomination, provided that such arbitrator
shall continue to serve on any arbitral tribunal to which that arbitrator
has been appointed until the completion of the proceedings before that
arbitral tribunal.
Article 3
Constitution of arbitral tribunal
For the purpose of proceedings under this Annex, the arbitral tribunal
shall, unless the parties otherwise agree, be constituted as follows:
(a) Subject to subparagraph (g), the arbitral tribunal shall consist of
five members.
(b) The party instituting the proceedings shall appoint one member to be
chosen preferably from the list referred to in article 2 of this
Annex, who may be its national. The appointment shall be included in
the notification referred to in article 1 of this Annex.
(c) The other party to the dispute shall, within 30 days of receipt of
the notification referred to in article 1 of this Annex, appoint one
member to be chosen preferably from the list, who may be its
national. If the appointment is not made within that period, the
party instituting the proceedings may, within two weeks of the
expiration of that period, request that the appointment be made in
accordance with subparagraph (e).
(d) The other three members shall be appointed by agreement between the
parties. They shall be chosen preferably from the list and shall be
nationals of third States unless the parties otherwise agree. The
parties to the dispute shall appoint the President of the arbitral
tribunal from among those three members. If, within 60 days of
receipt of the notification referred to in article 1 of this Annex,
the parties are unable to reach agreement on the appointment of one
or more of the members of the tribunal to be appointed by agreement,
or on the appointment of the President, the remaining appointment or
appointments shall be made in accordance with subparagraph (e), at
the request of a party to the dispute. Such request shall be made
within two weeks of the expiration of the aforementioned 60-day
period.
(e) Unless the parties agree that any appointment under subparagraphs (c)
and (d) be made by a person or a third State chosen by the parties,
the President of the International Tribunal for the Law of the Sea
shall make the necessary appointments. If the President is unable to
act under this subparagraph or is a national of one of the parties to
the dispute, the appointment shall be made by the next senior member
of the International Tribunal for the Law of the Sea who is available
and is not a national of one of the parties. The appointments
referred to in this subparagraph shall be made from the list referred
to in article 2 of this Annex within a period of 30 days of the
receipt of the request and in consultation with the parties. The
members so appointed shall be of different nationalities and may not
be in the service of, ordinarily resident in the territory of, or
nationals of, any of the parties to the dispute.
(f) Any vacancy shall be filled in the manner prescribed for the initial
appointment.
(g) Parties in the same interest shall appoint one member of the tribunal
jointly by agreement. Where there are several parties having separate
interests or where there is disagreement as to whether they are of
the same interest, each of them shall appoint one member of the
tribunal. The number of members of the tribunal appointed separately
by the parties shall always be smaller by one than the number of
members of the tribunal to be appointed jointly by the parties.
(h) In disputes involving more than two parties, the provisions of
subparagraphs (a) to (f) shall apply to the maximum extent possible.
Article 4
Functions of arbitral tribunal
An arbitral tribunal constituted under article 3 of this Annex shall
function in accordance with this Annex and the other provisions of this
Convention.
Article 5
Procedure
Unless the parties to the dispute otherwise agree, the arbitral tribunal
shall determine its own procedure, assuring to each party a full
opportunity to be heard and to present its case.
Article 6
Duties of parties to a dispute
The parties to the dispute shall facilitate the work of the arbitral
tribunal and, in particular, in accordance with their law and using all
means at their disposal, shall:
(a) provide it with all relevant documents, facilities and information;
and
(b) enable it when necessary to call witnesses or experts and receive
their evidence and to visit the localities to which the case relates.
Article 7
Expenses
Unless the arbitral tribunal decides otherwise because of the particular
circumstances of the case, the expenses of the tribunal, including the
remuneration of its members, shall be borne by the parties to the dispute
in equal shares.
Article 8
Required majority for decisions
Decisions of the arbitral tribunal shall be taken by a majority vote of its
members. The absence or abstention of less than half of the members shall
not constitute a bar to the tribunal reaching a decision. In the event of
an equality of votes, the President shall have a casting vote.
Article 9
Default of appearance
If one of the parties to the dispute does not appear before the arbitral
tribunal or fails to defend its case, the other party may request the
tribunal to continue the proceedings and to make its award. Absence of a
party or failure of a party to defend its case shall not constitute a bar
to the proceedings. Before making its award, the arbitral tribunal must
satisfy itself not only that it has jurisdiction over the dispute but also
that the claim is well founded in fact and law.
Article 10
Award
The award of the arbitral tribunal shall be confined to the subject-matter
of the dispute and state the reasons on which it is based. It shall contain
the names of the members who have participated and the date of the award.
Any member of the tribunal may attach a separate or dissenting opinion to
the award.
Article 11
Finality of award
The award shall be final and without appeal, unless the parties to the
dispute have agreed in advance to an appellate procedure. It shall be
complied with by the parties to the dispute.
Article 12
Interpretation or implementation of award
1. Any controversy which may arise between the parties to the dispute as
regards the interpretation or manner of implementation of the award may be
submitted by either party for decision to the arbitral tribunal which made
the award. For this purpose, any vacancy in the tribunal shall be filled in
the manner provided for in the original appointments of the members of the
tribunal.
2. Any such controversy may be submitted to another court or tribunal under
article 287 by agreement of all the parties to the dispute.
Article 13
Application to entities other than States Parties
The provisions of this Annex shall apply mutatis mutandis to any dispute
involving entities other than States Parties.
ANNEX VIII. SPECIAL ARBITRATION
Article 1
Institution of proceedings
Subject to Part XV, any party to a dispute concerning the interpretation or
application of the articles of this Convention relating to (1) fisheries,
(2) protection and preservation of the marine environment, (3) marine
scientific research, or (4) navigation, including pollution from vessels
and by dumping may submit the dispute to the special arbitral procedure
provided for in this Annex by written notification addressed to the other
party or parties to the dispute. The notification shall be accompanied by a
statement of the claim and the grounds on which it is based.
Article 2
Lists of experts
1. A list of experts shall be established and maintained in respect of each
of the fields of (1) fisheries, (2) protection and preservation of the
marine environment, (3) marine scientific research, and (4) navigation,
including pollution from vessels and by dumping.
2. The lists of experts shall be drawn up and maintained, in the field of
fisheries by the Food and Agriculture Organization of the United Nations,
in the field of protection and preservation of the marine environment by
the United Nations Environment Programme, in the field of marine scientific
research by the Inter-Governmental Oceanographic Commission, in the field
of navigation, including pollution from vessels and by dumping, by the
International Maritime Organization, or in each case by the appropriate
subsidiary body concerned to which such organization, programme or
commission has delegated this function.
3. Every State Party shall be entitled to nominate two experts in each
field whose competence in the legal, scientific or technical aspects of
such field is established and generally recognized and who enjoy the
highest reputation for fairness and integrity. The names of the persons so
nominated in each field shall constitute the appropriate list.
4. If at any time the experts nominated by a State Party in the list so
constituted shall be fewer than two, that State Party shall be entitled to
make further nominations as necessary.
5. The name of an expert shall remain on the list until withdrawn by the
State Party which made the nomination, provided that such expert shall
continue to serve on any special arbitral tribunal to which that expert has
been appointed until the completion of the proceedings before that special
arbitral tribunal.
Article 3
Constitution of special arbitral tribunal
For the purpose of proceedings under this Annex, the special arbitral
tribunal shall, unless the parties otherwise agree, be constituted as
follows:
(a) Subject to subparagraph (g), the special arbitral tribunal shall
consist of five members.
(b) The party instituting the proceedings shall appoint two members to be
chosen preferably from the appropriate list or lists referred to in
article 2 of this Annex relating to the matters in dispute, one of
whom may be its national. The appointments shall be included in the
notification referred to in article 1 of this Annex.
(c) The other party to the dispute shall, within 30 days of receipt of
the notification referred to in article 1 of this Annex, appoint two
members to be chosen preferably from the appropriate list or lists
relating to the matters in dispute, one of whom may be its national.
If the appointments are not made within that period, the party
instituting the proceedings may, within two weeks of the expiration
of that period, request that the appointments be made in accordance
with subparagraph (e).
(d) The parties to the dispute shall by agreement appoint the President
of the special arbitral tribunal, chosen preferably from the
appropriate list, who shall be a national of a third State, unless
the parties otherwise agree. If, within 30 days of receipt of the
notification referred to in article 1 of this Annex, the parties are
unable to reach agreement on the appointment of the President, the
appointment shall be made in accordance with subparagraph (e), at the
request of a party to the dispute. Such request shall be made within
two weeks of the expiration of the aforementioned 30-day period.
(e) Unless the parties agree that the appointment be made by a person or
a third State chosen by the parties, the Secretary-General of the
United Nations shall make the necessary appointments within 30 days
of receipt of a request under subparagraphs (c) and (d). The
appointments referred to in this subparagraph shall be made from the
appropriate list or lists of experts referred to in article 2 of this
Annex and in consultation with the parties to the dispute and the
appropriate international organization. The members so appointed
shall be of different nationalities and may not be in the service of,
ordinarily resident in the territory of, or nationals of, any of the
parties to the dispute.
(f) Any vacancy shall be filled in the manner prescribed for the initial
appointment.
(g) Parties in the same interest shall appoint two members of the
tribunal jointly by agreement. Where there are several parties having
separate interests or where there is disagreement as to whether they
are of the same interest, each of them shall appoint one member of
the tribunal.
(h) In disputes involving more than two parties, the provisions of
subparagraphs (a) to (f) shall apply to the maximum extent possible.
Article 4
General provisions
Annex VII, articles 4 to 13, apply mutatis mutandis to the special
arbitration proceedings in accordance with this Annex.
Article 5
Fact finding
1. The parties to a dispute concerning the interpretation or application of
the provisions of this Convention relating to (1) fisheries, (2) protection
and preservation of the marine environment, (3) marine scientific research,
or (4) navigation, including pollution from vessels and by dumping, may at
any time agree to request a special arbitral tribunal constituted in
accordance with article 3 of this Annex to carry out an inquiry and
establish the facts giving rise to the dispute.
2. Unless the parties otherwise agree, the findings of fact of the special
arbitral tribunal acting in accordance with paragraph 1, shall be
considered as conclusive as between the parties.
3. If all the parties to the dispute so request, the special arbitral
tribunal may formulate recommendations which, without having the force of a
decision, shall only constitute the basis for a review by the parties of
the questions giving rise to the dispute.
4. Subject to paragraph 2, the special arbitral tribunal shall act in
accordance with the provisions of this Annex, unless the parties otherwise
agree.
ANNEX IX. PARTICIPATION BY INTERNATIONAL
ORGANIZATIONS
Article 1
Use of terms
For the purposes of article 305 and of this Annex, "international
organization" means an intergovernmental organization constituted by States
to which its member States have transferred competence over matters
governed by this Convention, including the competence to enter into
treaties in respect of those matters.
Article 2
Signature
An international organization may sign this Convention if a majority of its
member States are signatories of this Convention. At the time of signature
an international organization shall make a declaration specifying the
matters governed by this Convention in respect of which competence has been
transferred to that organization by its member States which are
signatories, and the nature and extent of that competence.
Article 3
Formal confirmation and accession
1. An international organization may deposit its instrument of formal
confirmation or of accession if a majority of its member States deposit or
have deposited their instruments of ratification or accession.
2. The instruments deposited by the international organization shall
contain the undertakings and declarations required by articles 4 and 5 of
this Annex.
Article 4
Extent of participation and rights and obligations
1. The instrument of formal confirmation or of accession of an
international organization shall contain an undertaking to accept the
rights and obligations of States under this Convention in respect of
matters relating to which competence has been transferred to it by its
member States which are Parties to this Convention .
2. An international organization shall be a Party to this Convention to the
extent that it has competence in accordance with the declarations,
communications of information or notifications referred to in article 5 of
this Annex.
3. Such an international organization shall exercise the rights and perform
the obligations which its member States which are Parties would otherwise
have under this Convention, on matters relating to which competence has
been transferred to it by those member States. The member States of that
international organization shall not exercise competence which they have
transferred to it.
4. Participation of such an international organization shall in no case
entail an increase of the representation to which its member States which
are States Parties would otherwise be entitled, including rights in
decision-making.
5. Participation of such an international organization shall in no case
confer any rights under this Convention on member States of the
organization which are not States Parties to this Convention.
6. In the event of a conflict between the obligations of an international
organization under this Convention and its obligations under the agreement
establishing the organization or any acts relating to it, the obligations
under this Convention shall prevail.
Article 5
Declarations, notifications and communications
1. The instrument of formal confirmation or of accession of an
international organization shall contain a declaration specifying the
matters governed by this Convention in respect of which competence has been
transferred to the organization by its member States which are Parties to
this Convention.
2. A member State of an international organization shall, at the time it
ratifies or accedes to this Convention or at the time when the organization
deposits its instrument of formal confirmation or of accession, whichever
is later, make a declaration specifying the matters governed by this
Convention in respect of which it has transferred competence to the
organization.
3. States Parties which are member States of an international organization
which is a Party to this Convention shall be presumed to have competence
over all matters governed by this Convention in respect of which transfers
of competence to the organization have not been specifically declared,
notified or communicated by those States under this article.
4. The international organization and its member States which are States
Parties shall promptly notify the depositary of this Convention of any
changes to the distribution of competence, including new transfers of
competence, specified in the declarations under paragraphs 1 and 2.
5. Any State Party may request an international organization and its member
States which are States Parties to provide information as to which, as
between the organization and its member States, has competence in respect
of any specific question which has arisen. The organization and the member
States concerned shall provide this information within a reasonable time.
The international organization and the member States may also, on their own
initiative, provide this information.
6. Declarations, notifications and communications of information under this
article shall specify the nature and extent of the competence transferred.
Article 6
Responsibility and liability
1. Parties which have competence under article 5 of this Annex shall have
responsibility for failure to comply with obligations or for any other
violation of this Convention.
2. Any State Party may request an international organization or its member
States which are States Parties for information as to who has
responsibility in respect of any specific matter. The organization and the
member States concerned shall provide this information. Failure to provide
this information within a reasonable time or the provision of contradictory
information shall result in joint and several liability.
Article 7
Settlement of disputes
1. At the time of deposit of its instrument of formal confirmation or of
accession, or at any time thereafter, an international organization shall
be free to choose, by means of a written declaration, one or more of the
means for the settlement of disputes concerning the interpretation or
application of this Convention, referred to in article 287, paragraph 1
(a), (c) or (d).
2. Part XV applies mutatis mutandis to any dispute between Parties to this
Convention, one or more of which are international organizations.
3. When an international organization and one or more of its member States
are joint parties to a dispute, or parties in the same interest, the
organization shall be deemed to have accepted the same procedures for the
settlement of disputes as the member States; when, however, a member State
has chosen only the International Court of Justice under article 287, the
organization and the member State concerned shall be deemed to have
accepted arbitration in accordance with Annex VII, unless the parties to
the dispute otherwise agree.
Article 8
Applicability of Part XVII
Part XVII applies mutatis mutandis to an international organization, except
in respect of the following:
(a) the instrument of formal confirmation or of accession of an
international organization shall not be taken into account in the
application of article 308, paragraph 1;
(b) (i) an international organization shall have exclusive capacity with
respect to the application of articles 312 to 315, to the extent that
it has competence under article 5 of this Annex over the entire
subject matter of the amendment;
(ii) the instrument of formal confirmation or of accession of an
international organization to an amendment, the entire subject-matter
over which the international organization has competence under
article 5 of this Annex, shall be considered to be the instrument of
ratification or accession of each of the member States which are
States Parties, for the purposes of applying article 316, paragraphs
1, 2 and 3;
(iii) the instrument of formal confirmation or of accession of the
international organization shall not be taken into account in the
application of article 316, paragraphs 1 and 2, with regard to all
other amendments;
(c) (i) an international organization may not denounce this Convention in
accordance with article 317 if any of its member States is a State
Party and if it continues to fulfil the qualifications specified in
article 1 of this Annex;
(ii) an international organization shall denounce this Convention
when none of its member States is a State Party or if the
international organization no longer fulfils the qualifications
specified in article 1 of this Annex. Such denunciation shall take
effect immediately.
