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PART VIII—PEACEFUL SETTLEMENT OF DISPUTES

The US tabled amendments on dispute settlement procedures that included revisions to Article 7, paragraph (4); deletion of Articles 28, paragraph (1), 29 and 30; revisions to Article 28, paragraphs (2) and (3); and a new final paragraph in Article 28, and said the provisions of UNCLOS would simplify the Draft Agreement. Canada said its proposed alternative text is based on a synthesis of the US proposal and the Chair's text, and said disputes may arise in a regional context without being related to the application of the regional agreement or arrangement. Given the time-sensitive nature of most fisheries disputes, it is preferable to go to a pre-chosen forum rather than to waste time deciding on which forum would hear the request for provisional measures.

The EU agreed with the US proposal, but noted one difficulty with the Canadian text, in that Article 7, paragraph (6) is not balanced with respect to the interests of coastal States and those fishing on the high seas. The Russian Federation said the Chair's text was balanced, but he did not exclude the possibility of retaining two regimes for dispute settlement procedures in the Draft Agreement.

Japan agreed with the logic of the US proposal and gave it general support. He said if the purpose of the undertaking is to simplify text without losing substance, then the text should follow the provisions of UNCLOS. Thailand said it does not favor ambitious provisions that go beyond the requirements of the UN Charter and UNCLOS. Uruguay said that the application of regional and subregional arrangements proposed by the US may offer speedier dispute resolution, but that the Canadian reference to the International Tribunal for the Law of the Sea is more effective. The US was not sure the Canadian proposal for Article 28, paragraph (2) could work for good formulation, and said that the organizations become subject to compulsory dispute settlement under the US proposal.

Papua New Guinea said in reference to Annex 3, Articles (7) and (8), the arbitral body could only issue recommendations and hence was not in itself a binding dispute settlement. The Russian Federation emphasized that the international tribunal in UNCLOS was the only body suitable for dispute settlement. Guatemala said that the stipulations in Part XV of UNCLOS lend themselves to the settlement of maritime delimitations, but do not readily resolve the disputes envisioned in Article 7, paragraphs (4) and (5). The delegate supported a combination of the US and Canadian proposals. China felt that the reference to UNCLOS Article 297 in Article 28, paragraph (8) of the Canadian proposal should only apply to Article 297 (3), which concerns fisheries.

PART IX—NON PARTICIPANTS

The Chair said that Article 32, dealing with non-participants in subregional or regional fisheries management organizations or arrangements, would be placed after Article 16, dealing with new participants in his revised text. Brazil expressed doubts concerning the relationship between Article 32 and the General Principles outlined in Article 1. He stated that as non-participating entities are identified in Article 32, they should be similarly identified in Article 1 to ensure comprehensive coverage. The Chair agreed that a mechanism is needed to develop Article 1, paragraph (3), and that a reference might be included in this Article. Peru, supported by New Zealand, stated that paragraph (1) should end "in accordance with the relevant provisions of UNCLOS and this Agreement", thus ensuring that non-participants are obliged to participate in the conservation and management of stocks. The Russian Federation, supporting Peru, said that regional and subregional arrangements must not be threatened by non-participating States and that flags of convenience are of particular concern. China expressed concern that the word "obligation" in paragraph (1) should be followed by "in accordance with the relative provisions of the Agreement". Mexico supported China's proposal and questioned the reference to non-member and non-participating vessels in paragraph (3). The Chair said something must be done to deal with vessels that are non-members and that do not fish in accordance with regional or subregional measures. Lebanon said international agreements should provide the basis for action concerning "any violation by a non-member".

The Chair reminded delegates that the safeguard clause in paragraph (3) requires States to take measures consistent with the Agreement and international law. Indonesia said reference should simply be to UNCLOS. China said the Chair's text in paragraph (2) should remain.

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