Dislodging the compulsory dispute settlement mechanism: Analysis of Article 281 of UNCLOS

Abstract

Article 281 of UNCLOS allows states parties to a dispute to set aside the compulsory dispute resolution procedures under Section 2 of Part XV. This article discusses the recent jurisprudence that appears in the interpretations of Article 281. It discusses in turn whether, first, Article 281 provides requirements for agreements under Article 281(1) to activate the opt-out procedure from the compulsory dispute settlement mechanism; second, whether such agreements under Article 281(1) must include an explicit exclusion from the procedures under Section 2 of Part XV of UNCLOS; and, finally, whether agreements under Article 281(1) must include a compulsory dispute settlement procedure allowing binding decisions. It is concluded that Article 281 is not designed for compulsory dispute settlement procedures, which is the object and purpose of Article 282. Instead, Article 281 opts for consensual dispute settlement mechanisms which, under certain circumstances, may set aside the compulsory dispute settlement mechanism in Section 2 of Part XV.