1 On the background, see Rosenne, The Settlement of Disputes in the New Law of the Sea, 1978 Iranian Rev. Int'l Rel. 401, 433.

2 Optional Protocol of Signature concerning the Compulsory Settlement of Disputes, opened for signature April 29, 1958, 450 UNTS 169 (in force from September 30, 1960). Reprinted in 38 Dep't State Bull. 1123 (1958), 52 AJIL 862 (1958).

3 See the nine-power working paper on the settlement of law of the sea disputes submitted at Caracas, alternatives B.l and B.2, 3 Third United Nations Conference On The Law Of The Sea: Official Records 85, 92, UN Doc. A/Conf.62/L.7 (1974) [hereinafter cited as OFF. REC.]. And see Reynaldo Galinbo Pohl, one of the sponsors of that document, solución de controversias relacionadas con el derecho Del mar 57 (Publicación del Ministerio de Relaciones Exteriores, San Salvador, 1977). For subsequent evolution, see Informal Single Negotiating Text (ISNT), Pt. IV, Art. 18, 5 OFF. REC 111, UN Doc. A/Conf.62/WP.9 (1975), Reprinted in 15 ILM 61 (1976); revision, 5 OFF. R E C 185, UN Doc. A/Conf.62/WP.9/Rev.l (1976); Revised Single Negotiating Text (RSNT), Pt. IV, Arts. 17, 18, 6 id. at 144, UN Doc. A/Conf.62/ WP.9/Rev.2 (1976); Informal Composite Negotiating Text (ICNT), 8 id. at 1, UN Doc. A/Conf.62/WP.10 (1977), Reprinted in 16 ILM 1108 (1977). On Article 296 and its immediate antecedents, see Adede, Law of the Sea: The Scope of Third-Party Compulsory Procedures for the Settlement of Disputes, 71 AJIL 305 (1977); and Law of the Sea: The Integration of the System of Settlement of Disputes under the Draft Convention as a Whole, 72 AJIL 84 (1978), where the text of ICNT Article 296 is given.

4 In the introduction to the Working Paper of the Second Committee: Main Trends (1974), it is stated that the question of the settlement of disputes would be examined later. Accordingly, only scattered and fragmentary allusions to it appear, for instance in Provisions 21 (delimitation [of the territorial sea] between states with opposite or adjacent coasts); 82 (questions of the delimitation [of the continental shelf] between states; various aspects involved); 109 (fisheries: management and conservation [in the exclusive? economic zone beyond the territorial sea]); 112 (same); 116 (same: delineation between adjacent and opposite states); 127 (coastal state preferential rights or other nonexclusive jurisdiction over resources beyond the territorial sea); and 128 (same: fisheries). 3 OFF. REC. 93, 107, UN Doc. A/Conf.62/L.8/Rev.l, Annex II, App. 1 (1974). ISNT Part II, Article 137, and RSNT Part II, Article 131, simply contained an outline provision to the effect that disputes “arising out of the interpretation or application of articles … shall be resolved in accordance with Part … (Settlement of Disputes).” 4 OFF. R E C 152, UN Doc. A/Conf.62/WP.8/Pt. II (1975); 5 id. at 151, UN Doc. A/Conf.62/WP.8/Rev.l/Pt. II (1976).

5 ISNT Pt. III, 4 OFF. REC. 171, UN Doc. A/Conf.62/WP.8/Pt. III, Pt. 1, Art. 44 (protection of the marine environment); Pt. 2, Art. 37 (marine scientific research) (1975); RSNT, 5 id. at 173, UN Doc. A/Conf.62/WP.8/Rev.l/Pt. III, Arts. 47, 7 6 - 77 (1976); ICNT (supra note 3 ) , Arts. 265, 266. Those are substantive jurisdictional provisions in the part dealing with marine scientific research, but they are not yet fully coordinated with the proposed new texts of Articles 296 and 296 bis.

6 On the organization of the work of the seventh session, see UN Doc. A/Conf.62/62 (1978). On the negotiating groups and their nucleus composition, see UN Doc. A/Conf. 62/63 (1978). The documents of this session, of which the Official Records were not yet published when this note was written, are conveniently Reproduced in R. Platzöder, Dokumente Der Dritten Seerechtskonferenz Der Vereinten Nationen Genfer Session 1978 (Munich: Stiftung Wissenschaft und Politik, July 1978, 3 vols.) [hereinafter cited as Seerechtskonferenz] . This publication includes the informal proposals submitted in the course of the first part of the session. The work of the first part of the session is summarized in an unnumbered UN document entitled Reports of the Committees and Negotiating Groups on negotiations at the Seventh Session contained in a single document both for the purposes of record and for the convenience of delegations (May 19, 1978, Reproduction number [English version] GE.78-85880), Reproduced in 1 Seerechtskonferenz 88. The Report of the chairman of Negotiating Group 5 (doc. NG5/17) and his Suggestion for a Compromise Formula (NG5/16) appear on pp. 100 and 103 of the unnumbered document. Reproduced in 3 Seerechtskonferenz 820, 824. And see the formal Report by the chairman at the 105th plenary meeting of UNCLOS III (May 19, 1978). The nucleus composition of Negotiating Group 5 consisted of the following 36 states: to Represent the African Group— Algeria, Angola, Egypt, Lesotho, Liberia, Madagascar, Nigeria, Swaziland, Zambia; to Represent the Asian Group—China, Fiji, India, Indonesia, Iran, Oman, Pakistan, Singapore; to Represent the Latin-American Group—Argentina, Chile, Colombia, Ecuador, Guyana, Jamaica, Mexico; to Represent the Socialist Group—Bulgaria, Hungary, USSR, Yugoslavia; to Represent the Western Europe and Others Group—Australia, Canada, Denmark, Federal Republic of Germany, Iceland, Norway, Switzerland; and the United States. It was understood that this allocation of seats among the different regional groups did not follow the established pattern, and was to be regarded as exceptional because of the subject matter of the issues involved. However, all the groups were “open-ended” in the sense that any participant not included in the nucleus was free to join any group with the same status as the original members. About 100 delegations participated in the plenary meetings of Negotiating Group 5. Similarly, its smaller working group was not restricted to the nucleus states. Another aspect of the settlement of disputes, namely disputes concerning sea boundary delimitations, was allocated to Negotiating Group 7. Its work is beyond the scope of this note.

7 Originally issued as Doc. NG5/16, and Repeated in the unnumbered document mentioned in note 6 supra, at 103; Reproduced in 3 Seerechtskonferenz 820.

8 The Report was delivered orally at the 105th plenary meeting (A/Conf.62/SR.105) and is Repeated in the unnumbered document mentioned in note 6 supra, at 100; Reproduced in 3 Seerechtskonferenz 824. Some delegations expressed reservations to that Report at the next meeting (A/Conf.62/SR.106) and during the resumed seventh session. See the document mentioned in note 26 infra.

9 The footnotes to this document are as follows: 1 The chapeau of paragraph 1 is a new draft. Sub-paragraphs (a), (b) and (c) of paragraph 1 are the same as sub-paragraphs (a), (b) and (c) respectively of paragraph 2 of Article 296 of the ICNT. 2 It appears necessary for the competent organ of the Conference to co-ordinate and unify the provisions of paragraph 3 of Article 296 of the ICNT with Articles 265 and 266, the settlement of disputes provisions in Part XIII of the ICNT, as they deal with the same subject matter. Account has been taken of the reference to “paragraph 1” in the chapeau of paragraph 3 of Article 296, as the new draft Article 296 bis corresponds to paragraph 1 of Article 296 of the ICNT. 3 The provisions of this paragraph are Reproduced from the compromise formula submitted by the Chairman of the Negotiating Group to the Group (document NG5/15) and accepted by it as being a proposal that could be used to Replace the present provision of the ICNT and one on which the degree of support is so widespread and substantial as to offer a reasonable prospect of a consensus being reached. 4 The text of this provision is substantially the same as paragraph 5 of Article 296 of the ICNT with the appropriate changes (as underlined in the text) to bring it into Conformity with paragraph 3 above. 5 Paragraph 1 of Article 296 of the ICNT is closely related to paragraph 4 of that Article. Paragraph 4 of Article 296 was reformulated and embodied in paragraph 3 of the redrafted Article 296. Paragraph 1 of Article 296 of the ICNT has also been redrafted and Reproduced as a separate Article 296 bis. The relationship of the new draft Article 296 bis to paragraphs 1 and 2 of redrafted Article 296 has yet to be considered by the appropriate Committee and by the Informal Plenary. 6 This is a new provision which is to be inserted in an appropriate place in the Convention. It has received consensus within the Group.

10 It may be noted, however, that Article 68 provides that the sedentary species of the continental shelf, as defined in Article 77, paragraph 4 (corresponding to Article 2, paragraph 4, of the Convention on the Continental Shelf of 1958), do not come within the regime of the exclusive economic zone, but remain within that of the continental shelf. For the Continental Shelf Convention of 1958, see 15 UST 471, TIAS No. 5578, 499 UNTS 311, 52 AJIL 585 (1958).

11 Oxman, The Third United Nations Conference on the Law of the Sea: The 1977 New York Session, 72 AJIL 57, 67-80 (1978).

12 This has had a checkered history in UNCLOS III. Section 8 of the Caracas working paper on the settlement of disputes was devoted to the exhaustion of local remedies. In the initial and revised versions of ISNT Part IV, this appeared as Article 14. It was dropped in the RSNT, only to be reinstated in the ICNT. References in note 3 supra. In the meantime, the rule has been considered by the International Law Commission in the context of its work on state responsibility. Report of the International Law Commission on the Work of its 29th session, [1977J 2 Y.B. INT'L L. COMM'N 1, 30, Pt. 2 (UN Doc. A/32/10), ch. II, Art. 22. The subsequent debate in the Sixth Committee of the General Assembly showed the ILC's treatment of the rule to be highly controversial. Report of the Sixth Committee (Agenda Item 112), UN Doc. A/32/ 433, paras. 77-115 (1977).

13 This idea, too, has appeared throughout, but is probably still not finally settled. Article 297 contains a cross-reference to Article 296 in paragraph 1(b), which would permit the exclusion of disputes “concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service and, subject to the exceptions referred to in article 296, law enforcement activities in the exercise of sovereign rights or jurisdiction provided for in the present Convention.” Negotiating Group 5 was not required to examine that provision, which is one of the issues still outstanding. See the Report by the president of the Conference on the settlement of disputes in the unnumbered document mentioned in note 6 supra, at 99. As indicated, part of Article 297 is under examination in Negotiating Group 7.

14 The conciliation procedure of Annex IV is closely modeled on that of the Annex to the Vienna Convention on the Law of Treaties of May 23, 1969, in which it is expressly stated that the Report of a conciliation commission “shall not be binding.” United Nations Conference On The Law Of Treaties, First & Second Sessions, Off. Rec, Documents Of The Conference 289, UN Doc. A/Conf.39/27 (1969), Reproduced in 63 AJIL 875 (1969). An informal suggestion has been submitted by the Netherlands and Switzerland, but not yet discussed, that would allow any party to a dispute before a conciliation commission to “declare unilaterally that it will abide by the conclusions or recommendations of the Report as far as it is concerned.” Doc. SD/1, Reproduced in 3 Seerechtskonferenz 1099. That suggestion is based on Article 85, paragraph 5, of the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character of March 14, 1975, 2 United Nations Conference On The Representation Of States In Their Relations With International Organizations, Off. Rec. 207, UN Doc. A/Conf.67/16 (1975), also in U.S. DEPT. OF STATE, PUB. No. 8865, 1975 Digest Of United States Practice In International Law 41 (1976). But the maintenance of the exclusively nonbinding character of the Report of the conciliation commission is an essential element of the near-consensus reached in Negotiating Group 5.

15 The Representative of Madagascar, 5 OFF. REC. 33-34 (1976). That and the following statements were made in the course of a general debate in the plenary meetings on the topic of the settlement of disputes.

16 The Representative of Kenya, id. at 34. Similarly, the Representative of Mauritius, id. at 36.

17 Supra note 3.

18 8 OFF. REC. 65, 70, UN Doc. A/Conf.62/WP.10/Add.l (1977), 16 ILM 1099 (1977).

19 The following dictum of the Permanent Court of International Justice illustrates the point: It would no doubt be desirable that a State should not proceed to take as serious a step as summoning another State to appear before the Court without having previously, within reasonable limits, endeavoured to make it quite clear that a difference of views is in question which has not been capable of being otherwise overcome. Interpretation of Judgments Nos. 7 and 8 (The Chorzow Factory), [1927] PCIJ, ser. A, No. 13, at 10. ICNT Part XV, section 1 (Articles 279-284) is designed to give substance to that established principle.

20 Notably by Switzerland, the Federal Republic of Germany, and Israel, in working papers NG5/7, NG5/8, and NG5/12, Reproduced in 3 Seerechtskonferenz 808, 809, 812.

21 See, e.g., the orders indicating interim measures of protection in the Nuclear Tests cases, [1973] ICJ Rep. 9®, 103, paras. 21 ff.; id. 135, 139, paras. 22 S.

22 See S. Rosenne, 1 Law and Practice of the International Court 363 (1965).

23 ICJ, Acts And Documents Concerning The Organization Of The Court, Charter Of The United Nations, Statute And Rules Of Court and other Documents 93 (4th ed. 1978). Compare the new provision with Article 35, paragraph 2, of the 1972 Rules of Court, id. (2nd and 3rd eds., 1972 and 1977).

24 Supra note 8.

25 Unnumbered document mentioned in note 6 supra, at 99.

26 Report (UN Doc. NG5/18) submitted at the 108th meeting (A/Conf.62/SR.108, September 15, 1978). At the next meeting it was decided that the unnumbered document mentioned in note 6 supra, and the corresponding document of the resumed seventh session, would be included in the Official Records of UNCLOS III, despite their informal character. They appear in the 10th volume, which is now available, as UN Docs. A/Conf.62/RCNG/1 at 13, and A/Conf.62/RCNG/2 at 126.