Helga Law Journal - 01.01.2021, Blaðsíða 93

Helga Law Journal Vol. 1, 2021
94
Helga Guðmundsdóttir
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appointments should preferably be chosen from a list of conciliators maintained
by the Secretary-General of the United Nations (‘the UNSG’) to which each Party
to the Convention may nominate four conciliators.65 The party instituting the
proceedings includes in its notification the two appointed conciliators, while the
other party (or parties) shall, within 21 days of the notification’s receipt, appoint
two conciliators. Should the time expire prior to any appointment, the party
instituting the proceedings may either terminate the proceedings or request that
the UNSG appoint the conciliators from the aforementioned list within 30 days.66
When all conciliators have been appointed they elect a fifth from the list of
conciliators who serves as the Commission’s Chairman.67
Article 4 describes the conciliation procedure, laying down three procedural
rules. Firstly, the Commission decides its own procedure unless the parties agree
otherwise. Secondly, any State Party to the Convention may be invited to submit
its views on the dispute, whether orally or in writing, subject to the consent of the
disputing parties. Finally, the conciliators’ majority vote is required for any decision
on procedural matters, the report and the recommendations.68 The article does
not contain provisions as to how the disputing parties are represented before the
Commission, and this is therefore a matter to be decided by the Commission itself
or by agreement of the parties.69
In accordance with article 5, the Commission may draw the parties’ attention
to any measures which may lead to an amicable settlement of the dispute. There is
only one provision on the role of the conciliators – article 6 – which determines
that the Commission shall, with the objective of reaching an amicable settlement,
hear the parties and examine their claims and objections as well as make
proposals.70 The aim of affirming this right to hear the parties was to emphasize
the Commission’s right to consider both legal and factual arguments. Article 7 then
concerns the Commission’s report, including its record on conclusions on
questions of law and fact, emphasizing the Commission’s quasi-judicial element.71
Article 7 furthermore determines that the Commission shall deliver a report within
12 months of its constitution.72
The Commission’s report should include a record of any agreement reached.
The Commission’s main objective of the proceedings is to secure a settlement

65 Convention, Annex V, articles 2 and 3(1)(a), (b) and (c). See the list here
<treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-
6&chapter=21&Temp=mtdsg3&clang=_en> accessed 23 October 2021.
66 Convention, Annex V, article 3(1)(b), (c) and (e).
67 Convention, Annex V, article 3(1)(d).
68 Convention, Annex V, article 4;
’
Annex V Conciliation (V)’ (n 56) 319.
69 ‘Annex V Conciliation (V)’ (n 56) 319.
70 Ibid 320
71 J. G. Merrills, International Dispute Settlement (2nd ed., Cambridge University Press 1996) 165.
72 Convention, Annex V, article 7. Due to there however not being any sanction should the limit of 12
months be exceeded there is a possibility of the report being delivered at a later period. ‘Annex V
Conciliation (V)’ (n 56) 322.
the Conference’s seventh session in 1978 and the recourse to a compulsory
conciliation procedure was the ‘final and residual means for settling nonjusticiable
disputes’, such as those disputes concerning the coastal State’s exercise of its
sovereign rights in the EEZ.56
The process is described in Annex V to the Convention, which is divided into
two sections. Section 1, articles 1 to 10, lists the provisions governing the
conciliation process when the disputing parties have agreed to this recourse
pursuant to Section 1 of Part XV. Its provisions apply mutatis mutandis to the
compulsory conciliation. Section 2, articles 11 to 14, on the other hand, sets out
the provisions which apply only to the conciliation procedure pursuant to
compulsory submission to conciliation under Part XV, Section 3, of the
Convention. Although the report rendered by the conciliation commission is not
binding on the parties to the dispute, the process itself is binding in the sense that
a party is obliged to accept the Conciliation Commission’s proceedings.57
In accordance with article 11(1) of the Annex the conciliation procedure may
be instituted by any party to a dispute through a written notification to the other
party or parties to the dispute.58 The parties so notified are obliged to submit to
the proceedings.59 Article 12 specifies that it will not constitute a bar to the
proceedings if no reply is provided by the notified party, or if the notified party
does not submit to the proceedings.60 Thus, the failure of a party to submit to the
proceedings will not be an obstacle to the Conciliation Commission’s work.
In accordance with article 13 the Conciliation Commission decides its own
competence if there is disagreement thereon.61 The Commission would
presumably deal with a respondent’s denial of the allegations of its manifest failure
at this stage.62
The constitution of the Conciliation Commission is described in article 3,
although the parties may agree to constitute it differently.63 These provisions
contain a more comprehensive description than did earlier treaties in order to
ensure the continued proceedings rather than risking disagreement on the process
itself contributing to the termination of the case.64 In accordance with article 3,
each party appoints two conciliators, one of whom may be its national. The

56 Myron H. Nordquist, Satya Nandan, and Shabtai Rosenne (eds), ‘Annex V Conciliation (V)’, UN
Convention on the Law of the Sea Commentary 1982 (Martinus Nijhoff Publishers 2013) 325.
57 Ibid 313
58 Convention, Annex V, article 11(1).
59 Convention, Annex V, article 11(2).
60 Convention, Annex V, article 12.
61 Convention, Annex V, article 13. A similar provision does not apply to Section 1 where the recourse
to conciliation is not compulsory, but based on agreement, implying the parties’ acceptance of the
Commission’s competence. ‘Annex V Conciliation (V)’ (n 56) 327.
62 Roberto Lavalle, ‘Conciliation under the United Nations Convention on the Law of the Sea: A Critical
Overview’, Austrian Review of International and European Law, vol. 2 (1997), at 37.
63 Convention, Annex V, article 3(1).
64 ‘Annex V Conciliation (V)’ (n 56) 312.