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Background1
4.1

This chapter contains the results of the Committee’s review of two declarations by Australia to multilateral agreements namely:
T

Australian Declarations under Articles 287(1) and 298(1) of the United
Nations Convention on the Law of the Sea 1982 (UNCLOS declarations); and T

an Australian Declaration under Paragraph 2 of Article 36 of the Statute of the
International Court of Justice 1945 (ICJ declaration).

4.2

These treaty actions have already been put into place prior to Committee consideration to avoid any other country pre-empting the declarations and commencing proceedings against Australia prior to the lodgement of the declaration. Both the treaty actions took place on 22 March 2002 with immediate effect.

4.3

On 25 March 2002 the Minister for Foreign Affairs wrote to the Chair of the Joint Standing Committee on Treaties advising the Committee that the treaty action had taken place.

1

Unless otherwise specified the material in this and the following section was drawn from the
National Interest Analysis (NIA) for the declarations relating to UNCLOS and the declaration relating to the ICJ. The full text of the NIAs can be found at the Committee’s website on www.aph.gov.au/house/committee/jsct. 18

Treaty actions
The UNCLOS Declaration
4.4

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides a universal legal framework for the rational management of marine resources and their conservation for future generations. The
Convention is the central instrument for promoting stability and peaceful uses of the seas and oceans. It is not a static instrument, but rather a dynamic and evolving body of law.

4.5

Australia ratified UNCLOS on 5 October 1994 and in 1999 ratified an associated Convention on the conservation of straddling fish stocks.
UNCLOS provides for the compulsory settlement of disputes between parties over the interpretation and application of the Convention. By means of a written declaration, a State is free to choose one or more of the means for the settlement of disputes concerning the interpretation or application of the Convention.

4.6

Under Article 287(1) states can nominate their preferred dispute resolution mechanism from the following choices:
a) the International Tribunal for the Law of the Sea (ITLOS) established in accordance with Annex VI of UNCLOS;
b) the International Court of Justice (ICJ);
c)

an arbitral tribunal constituted in accordance with Annex VII of
UNCLOS; or

d) a special arbitral tribunal constituted in accordance with Annex VIII of
UNCLOS for specific categories of disputes.
4.7

By making this declaration under Article 287(1) Australia has selected its preferred means of dispute resolution under UNCLOS as ITLOS and the
ICJ. The Australian Government chose this option because there are advantages in taking disputes to existing, internationally recognised forums. 4.8

The NIA states that the government considered that the procedures for arbitral panels are both time consuming and difficult and the parties to disputes have to pay the full cost of both the tribunal and the arbitration.
The Committee notes that Australia already contributes to the cost of the
ICJ and ITLOS and no additional costs are incurred by taking a dispute to the Court or the Tribunal.

TWO DECLARATIONS BY AUSTRALIA

4.9

19

Australia has chosen, however, not to accept any of the dispute resolution mechanisms with respect to disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations as well as those involving historic bays or titles.2 The NIA suggests that the Government has taken this action because it is of the view that maritime boundary disputes are best resolved through negotiation and not litigation.

The ICJ Declaration
4.10

The ICJ, also known as the World Court, was founded in 1946 as the principal judicial body of the United Nations. It decides disputes between