CIL Documents Database - Maritime Boundary Office

International Conference: Maritime Boundaries and the Law of the Sea Dili, 19 May 2016 UNCLOS DISPUTE SETTLMENT MECHANISMS ON MARITIME BOUNDARIES AND THE TIMOR SEA Hao Duy Phan (SJD) Centre for International Law (CIL) National University of Singapore Introduction 1 UNCLOS Dispute Settlement Regime

2 Negotiation 3 Adjudication - Arbitration 4 1 Conciliation 5

Conclusion UNCLOS Dispute Settlement Regime 3 Obligation to Exchange Views Negotiation Example: Indonesia & Timor-Leste Maritime Boundary Negotiation 4

Adjudication - Arbitration Article 286 Articles 74 & 83(2) If no agreement can be If no agreement is reached within a reached, the dispute shall reasonable period of be submitted at the time, the states request of any party to a concerned shall resort to

court or an arbitral compulsory procedures entailing binding tribunal (ITLOS, ICJ, decisions. arbitration). Examples: Bangladesh/Myanmar Bay of Bengal Case (ITLOS); Bangladesh/Myanmar Bay of Bengal Case (Annex VI arbitration) Decisions are legally binding (Article 296). Absence of a party shall not constitute a bar to the proceedings. Optional Exceptions in Article 298 6

Compulsory Conciliation on New Maritime Boundaries Disputes If a dispute arises after UNCLOS entered into force and is not settled by negotiation, and one party to the dispute has made a declaration under Article 298, that party still has an obligation to accept conciliation initiated by the other party (Article 298). Maritime boundary dispute between Timor-Leste and Australia: (i) dispute formed after UNCLOS entry into force; (ii) parties not able to settle dispute by negotiation; (iii) in 2002, Australia made a declaration under Article 298 to exclude maritime boundaries disputes from adjudication or arbitration => compulsory conciliation. 7

Compulsory Conciliation Procedure Commission has 5 members. Unless parties agree otherwise: each party selects 2, and those 4 select the 5th . The failure of a party to reply or participate does not constitute a bar to the proceedings. Commission shall hear the parties, examine their claims, and make proposals with a view to reaching an amicable settlement. Commission shall issue a report within 12 months of its constitution which shall record any agreements or its conclusions on facts or law and recommendations to the parties. Parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an

agreement, they shall, by mutual consent, submit to ITLOS, ICJ or arbitration. 8 Conciliation Procedure: TimorLeste/Australia Timor-Leste Hearings Constitution instituted Examining of the Engaging

Conciliation proceedings with Commission and parties appointed 2 conciliators June or July 2016 Next step Next stepJune or July 2017 11 April 2016 2 May 2016 Australia appointed 2 conciliators

Rules of Procedure: 3rd party, hearings, competence, experts Report Conclusion Negotiation Adjudication-Arbitration

Conciliation Thank you! Hao Duy Phan (S.J.D.) Senior Research Fellow Centre for International Law (CIL) National University of Singapore Website: www.cil.edu.sg 11