A Research On The Competence Of Compulsory Conciliation Under UNCLOS

The first case of compulsory conciliation under the United Nations Convention on the Law of the Sea(hereinafter referred to as "the UNCLOS")-the case of East Timor and Australia,is the first successful practice of the compulsory conciliation system under the UNCLOS.The decision on the preliminary issue of competence in this case has sparked widespread discussion.The case has been praised for its achievements in conciliation,but there has been much controversy over how the conciliation commission handled Australia’s objection to competence.As a third-party dispute resolution mechanism,compulsory conciliation differs fundamentally from other binding decision-making dispute resolution mechanisms under the UNCLOS.This is reflected in that it is a non-confrontational,friendly mechanism for facilitating negotiations.Its conciliation report is not binding and,in essence,the competence is a right to propose solutions to disputes rather than a decision-making right.Based on these significant distinctions,this paper attempts to answer: What is the competence of compulsory conciliation under the UNCLOS?How does it differ from the competence of international dispute resolution institutions that we are familiar with? If there are differences,in what aspects do they manifest?By answering these questions,we can better use this dispute resolution mechanism under the UNCLOS to better safeguard our maritime rights and interests.The first chapter of this paper first expounds the background and characteristics of the compulsory conciliation system.The UNCLOS’s original intention in designing compulsory conciliation is to use it as a last resort under Annex XV.Its important features are third-party assisted negotiation,limited application of the dispute range,compulsory process,and non-binding results.Then it brings out the essence of compulsory conciliation competence,which is a right of non-binding recommendation.The competence of compulsory conciliation refers to the power that the contracting states confer on the conciliation commission to conciliate specific disputes and make necessary non-binding conciliation reports through the conclusion of the UNCLOS.Article 13 of Annex V of the UNCLOS,although short,reveals many aspects of the competence of compulsory conciliation,and the range of disputes it can handle is gradually determined in the process of balancing with disputes that do not accept any compulsory jurisdiction and disputes that apply to binding decision-making compulsory procedures.The second chapter of this paper first introduces the basic theoretical framework of international dispute competence.On this basis,a theoretical perspective for analyzing compulsory conciliation competence is established,and a competence-admissibility framework needed to analyze compulsory conciliation competence is constructed.For the conciliation commission,competence is a question of whether its power is established,while the admissibility of a dispute is a question of competence,and different means should be used to deal with these two types of disputes.Finally,as a means of politically resolving disputes,compulsory conciliation can break the opposing structure of the two parties,reconcile competence conflicts,and provide new ideas and plans for solving competence problems.The third chapter,through the case analysis of East Timor and Australia,re-examines the decision on competence in the case from a new perspective.By proposing competence issues that conform to the characteristics of compulsory conciliation,new ideas are put forward for resolving the dispute over competence in the case.The fourth chapter,from the aspects of improving the legislation of compulsory conciliation competence,strengthening theoretical research,and paying attention to the procedural characteristics of compulsory conciliation,proposes countermeasures for dealing with disputes over compulsory conciliation competence in legislation,theory,and practice.The conclusion is that compulsory conciliation is an alternative approach for our country to actively safeguard maritime rights and interests.If a foreign country initiates compulsory conciliation,it should actively deal with the competence issue within the framework of competence-admissibility proposed in this paper.