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Maritime Dispute Resolution And Conflict Resolution using Mediation- An Effective Alternative Dispute Resolution Technique
AUTHOR: GAURAV GOEL
WHAT CAN BE MARITIME DISPUTES-Maritime Dispute Resolution And Conflict Resolution using Mediation- An Effective Alternative Dispute Resolution Technique
A maritime boundary dispute is a dispute relating to the demarcation of different maritime zones between or among States.
The dispute over maritime boundaries occurs primarily because of overlapping claims between adjacent or opposing states to 12-nautical-mile territorial seas, 200-nautical-mile EEZs, and continental shelves that may extend beyond 200 nautical miles and due to disputed claims of sovereignty over the same island or mainland area.
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HOW TO SOLVE INTERNATIONAL MARITIME DISPUTES-Maritime Dispute Resolution And Conflict Resolution using Mediation- An Effective Alternative Dispute Resolution Technique
Article 33 of the United Nations Charter provides for the peaceful settlement of disputes by choice of the parties. These means always include negotiation. If negotiations fail, recourse may be had to conciliation, good offices (e.g. of the UN Secretary-General), arbitration (in accordance with Annex VII of UNCLOS, or judicial settlement).
Methods for settling disputes and disputes over overlapping rights include resolving any sovereignty disputes, establishing a full boundary, partial boundary, common area, or a combination of certain of these methods.
Maritime boundaries must be established by agreement in accordance with international law. Sovereignty disputes and differences will be resolved by considering which state has the most activity in the disputed territory.
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ROLE OF MEDIATION IN INTERNATIONAL MARITIME DISPUTE-Maritime Dispute Resolution And Conflict Resolution using Mediation- An Effective Alternative Dispute Resolution Technique
The practice of Mediation as a maritime dispute resolution tool is widespread in the United States and is becoming increasingly popular in the United Kingdom.
We spoke to people familiar with mediation, either as mediators or as participants, to find the keys that can unlock a successful resolution.
Mediation makes more sense as it is relatively cost-effective. According to Dr. Dhananjaya Y. Chandrachud “Mediation at a perceptual level is a way to avoid the pitfalls of litigation”.
The parties are free to choose the mediator and to negotiate, and the best feature is that the reputation and relationship with the other party are usually not hindered as it is settled amicably.
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EXISTING FRAMEWORK FOR INTERNATIONAL MARITIME MEDIATION-Maritime Dispute Resolution And Conflict Resolution using Mediation- An Effective Alternative Dispute Resolution Technique
Article 33 of the Charter of the United Nations directs the parties to the dispute to peaceful settlement by means of their choice and, subject to Article 287 of UNCLOS, The Convention on the Law of the Sea is the key international instrument that regulates virtually all aspects of the law of the sea and sets rules for baselines and internal waters and all maritime areas such as the territorial sea, the contiguous, the EEZ, the continental shelf within 200 nautical miles or beyond, the high seas and the deep seabed area.
Although the United Nations Convention on the Law of the Sea regulates all segments of the maritime issue. If the party to the dispute cannot reach an agreement, it may apply to the dispute settlement procedure under the Convention on the Law of the Sea set out in Part XV of the Convention.
There are two types of dispute resolution procedures in the LOS Convention. Section 1 of Part XV sets out the non-compulsory procedures of negotiation, mediation, and conciliation and Section 2 of Part XV deals with the compulsory settlement procedure which includes ITLOS under Schedule VI.
MEDIATION AS COMPARED TO OTHER ADR MECHANISMS-Maritime Dispute Resolution And Conflict Resolution using Mediation- An Effective Alternative Dispute Resolution Technique
Negotiation is the most important and peaceful way to settle any bilateral or multilateral dispute. The delimitation of maritime borders is no exception. The parties are free to accept or reject the outcome of the negotiations and can withdraw from the process at any time.
Conciliation is another non-judicial procedure for the peaceful settlement of maritime boundary delimitation which is set out in Article 284 (Part XV) of the LOS Convention. The rate of conciliation in maritime border disputes is very low.
Arbitration is the most popular and effective way to settle maritime boundary disputes after the implementation of the LOS Convention in 1994. Arbitration is one of the mandatory methods of maritime boundary delimitation.
Through arbitration, many coastal states have settled their long-standing disputes over the delimitation of maritime boundaries. In 2014, Bangladesh and India resolved their 40-year-long dispute over maritime boundary demarcation that began in 1974.
CHALLENGES IN INTERNATIONAL MARITIME MEDIATION-Maritime Dispute Resolution And Conflict Resolution using Mediation- An Effective Alternative Dispute Resolution Technique
The maritime sector, being a complex sector, requires mediators to be highly qualified in maritime law and mediation skills, qualified people in this field are very hard to find as this combination of people is usually in arbitration due to better rules and the existence of an adequate framework.
Mediation itself as an alternative dispute resolution mechanism still has a long way to go. The lack of an appropriate regulatory framework makes it a difficult choice for implementation in contracts.
The lack of clear distinction in laws relating to arbitration, mediation, and conciliation also poses a challenge as the lack of an appropriate culture of mediation.
ADVANTAGES IN INTERNATIONAL MARITIME MEDIATION- Maritime Dispute Resolution And Conflict Resolution using Mediation- An Effective Alternative Dispute Resolution Technique
Abraham Lincoln, while practicing as a lawyer, once said:
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, expenses, and waste of time”
Mediation is a facilitated negotiation in which the parties to the dispute voluntarily agree to call on a neutral third party to help them find a compromise and avoid litigation.
Mediation is voluntary and confidential. The parties may agree to use mediation at any time during the dispute resolution process.
Mediation can be cost-effective compared to more formal approaches to arbitration and litigation. The success of mediation depends heavily on the willingness of all parties to avoid formal court proceedings and make concessions in order to resolve the dispute.
CONCLUSION-Maritime Dispute Resolution And Conflict Resolution using Mediation- An Effective Alternative Dispute Resolution Technique
Maritime disputes can arise from a variety of factors, but for the most part, maritime mediation is a form of alternative dispute resolution (ADR) that can help the parties involved reach a quick and cost-effective resolution.
Although there are no “winners” or “losers” in maritime mediation, the process involves communication between the two parties in the presence of a neutral third-party mediator who is an expert in maritime law.
The mediator then suggests a way to solve the problem that is fair to everyone involved. The disputing parties then have the option of rejecting or accepting the mediator's proposal.
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