Optional Exceptions from the Dispute Settlement Procedures in UNCLOS
Because certain categories of disputes are very sensitive in some countries, Article 298 of UNCLOS provides that States may make a formal declaration to the UN secretary-general, giving notice that they do not accept the compulsory procedures entailing binding decisions in Section 2 of Part XV for certain categories of disputes. These categories are (Art. 298(1), UNCLOS):
- (a) disputes concerning the interpretation or application of Articles 15, 74, and 83 relating to sea boundary delimitations, or those involving historic bays or titles;
- (b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service;
- (c) disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations.
In 1996, China made a formal declaration under Article 298 stating that it does not accept the system of compulsory procedures entailing binding decisions in Section 2 of Part XV of UNCLOS for any of the categories of disputes listed in Article 298.3 It is the only State bordering the South China Sea that has made such a declaration.4
Disputes Concerning unclos Provisions Not Excluded by China's Declaration
If a dispute arises between one of the Association of Southeast Asian Nations (ASEAN) claimants and China concerning the interpretation or application of provisions of UNCLOS which are not within the categories excluded by China's declaration under Article 298, and which cannot be resolved through consultations and negotiations, such disputes are subject to the compulsory procedures entailing binding decisions in Section 2 of Part XV of UNCLOS.