ENB:07:10
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DISPUTE SETTLEMENT
As an introduction to the discussion on this issue, the Chair circulated a paper, "Procedures for the Settlement of High Seas Fisheries Disputes." This paper, which focusses on the UNCLOS provisions on dispute settlement, is divided into four sections: Procedures under Regional Arrangements; Compulsory Conciliation; Special Arbitration; and Fact-Finding Procedures. Parties to the Convention are constrained to settle disputes by peaceful means and they are also required to submit to final and binding third-party procedures if all others fail. Dispute settlement procedures agreed upon by this Conference must be consistent with the Law of the Sea. There are formal institutionalized dispute settlement procedures, such as the Tribunal, the International Court of Justice and arbitration, and the Convention itself provides practical and expeditious means to settle disputes of a technical nature.
The section "Procedures under Regional Arrangements" states that if the management regimes for stocks is primarily regional, regional dispute settlement procedures could be appropriate. The Convention recognizes the importance of regional dispute settlement mechanisms and procedures under regional agreements (Article 282). However, States fishing on the high seas include those to whom regional procedures may not apply and, therefore, alternative means for dispute resolution will have to be provided.
Under "Compulsory Conciliation", the management regime for straddling and highly migratory fish stocks on the high seas interacts with the EEZ regime for such fisheries. A coastal State in the exercise of its sovereign rights in the EEZ, with respect to living resources, is not subject to binding procedures, except in the case when a coastal State "has manifestly failed to comply with its obligations to ensure through proper conservation and management measures that the maintenance of the living resources in the EEZ is not seriously endangered" (Article 297.3(b)(i)).
Resolution of issues of a technical nature is included in the "Special Arbitration" section. This special procedure is flexible and permits variations of the procedure by agreement on an ad hoc basis for each case.
The Convention also provides for a special fact-finding approach, which could be conclusive or persuasive, whichever the parties agree to. The Special Arbitral Tribunal could also formulate recommendations (which do not have the force of decisions) based on the findings of fact (Annex VIII, Article 5.3), and would be intended to provide the basis for review by the parties in question.
In the discussion, several countries agreed that UNCLOS provides a good mechanism for dispute resolution. Some argued against creating new procedures or mechanisms since agreed-upon procedures already exist in UNCLOS. Others stated that the 1982 Convention does not have adequate measures for conflict resolution on fishing matters. It was pointed out that UNCLOS has not yet entered into force and certain countries experiencing problems with straddling stocks and highly migratory species may not be party to the Convention. The authors of A/CONF.164/L.11 (Draft Convention on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks on the High Seas) pointed out that Article 25 contains mechanisms for dispute settlement. Its arbitration measures are fast-acting, follow UNCLOS, and are specifically adapted to the needs of this Conference. A contradiction in L.11 was pointed out -- it provides for three arbitrators (one nominated by each party and one neutral member), but does not provide for cases where there are more than two parties to a dispute. The response was that parties can always turn voluntarily to the UNCLOS provisions.
Some developing countries expressed concern about arbitration costs. The Law of the Sea provides for equal sharing of costs, except under certain circumstances. L.11 does not mention this issue.
One delegation expressed concern that the focus was not on the real problem -- the need for better decision making in existing regional organizations to avoid the need to settle disputes. A number of delegates agreed that dispute settlement mechanisms should be a last effort to solve a problem, not a first. It was suggested that a specific tribunal composed of legal and technical experts should be created. There was concern, however, that a global dispute settlement mechanism would increase the number of disputes, cost, time, etc. Disputes should be dealt with by the appropriate regional organizations. However, since some disputes occur between a party in a regional organization and a non-party, there should be some type of a global mechanism. There was agreement that the priority should be given to regional settlement when possible. Several delegations said that no agreement on mandatory dispute resolution is necessary at this time. Finally, some said that since disputes should be resolved by regional organizations, this Conference should only give recommendations.