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PART VIII—PEACEFUL SETTLEMENT OF DISPUTES
The US introduced amendments on dispute settlement procedures and said the adoption of the dispute settlement provisions of UNCLOS avoids the onerous task of creating a multiplicity of dispute settlement fora and simplifies the draft agreement. States participating in those regions are free to create their own procedures. The US amendments 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. Canada explained important similarities between the US and Canadian proposals. Canada said its proposed alternative text is based on a synthesis of the US proposal and the Chair's text. It deletes Article 28 paragraph (1). Disputes may arise in a regional context without being related to the application of the regional agreement or arrangement. Paragraph 4 of the Canadian proposal is based on Article 29 of the Chair's text. Canada said that regional arrangements through which decisions are made that are not binding on members need their own internal dispute settlement mechanisms. If it is not possible for parties to a dispute to agree on provisions of a practical nature, any party can request the International Tribunal for the Law of the Sea to prescribe provisional measures. 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 said the US proposal was complete. He 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. Peru supported both the US and Canadian proposals, but favored Canada's. He said some States are not parties to UNCLOS and that they should be free to adopt more appropriate provisions, but the amendment to said Article 7 paragraph (6) is reasonable. The Russian Federation said the Chair's text was balanced and acceptable. 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 what UNCLOS provides. He reserved indicating preference for any particular dispute settlement procedure as specified in the draft agreement. New Zealand said that the US, Canadian, and Chair's texts have common elements among them. Dispute settlement procedures in Part XV of UNCLOS are important in each of the texts put forward. He supported the streamlining of the text. Poland favored the US proposal and asked for more time to study the Canadian proposal. Chile supported the US proposal but expressed concern over possible conflict with other regimes. The Canadian proposal does not run counter to regional organizations, but a clause is needed that preserves regional organizations. Consideration of regional measures adopted within UNCLOS is needed. Existing measures must not be ignored just because they find their basis in national application. He suggested merging Article 7 paragraphs (5) and (6). Canada, referring to regional organizations, pointed out that disputes may arise in the regional context because decisions made may not be binding on non-member States. He agreed with New Zealand that Article 297(3) is so important to UNCLOS that it must be referred to in the draft text. Other paragraphs in Article 297 are not related to fisheries and therefore are not relevant here. Thailand stated that it does not favor ambitious provisions that go beyond the requirements of the UN Charter and UNCLOS. Australia was concerned that valuable elements of the Chair's text would be discarded. There is a need for timely setting of provisional measures and the issue is whether or not organizations are required to adopt procedures including a binding dispute settlement mechanism. Australia supported amendments to ensure that provisions encompass a large range of disputes and that there should be reference to Article 297 of UNCLOS. Uruguay said that extent of the scope of application in the US proposal to all disputes of conservation and management of HMFS and SFS is important. He felt 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. Coordination and the standardization of rules for EEZs and high seas needs to strike a balance. The Canadian draft makes important contributions in this area. The Republic of Korea also spoke in favor of a simpler formulation, and expressed support for the EU position. China stated that the basis must be UNCLOS and that the US text is more relevant. The draft should not be limited to Article 297(3) of the Convention. The US was not sure the Canadian draft for Article 28 paragraph (2) could work for good formulation. He pointed out that the organizations become subject to compulsory dispute settlement under the US proposal. He expressed concern that the Canadian proposal for separate procedures for provisional measures should not undermine the integrity of Part XV of UNCLOS. He had doubts about relying on the International Tribunal. India asked what the term "generally accepted standards" meant and supported the Canadian proposal to amend Article 7 paragraphs (4) and (6). The EU said that if there is no statement of declaration explicitly stating a choice, the EU would follow Article 287(1)(d) of UNCLOS. Article 30 paragraph (6) of the Chair's text draws on reference to measures compatible with UNCLOS. Argentina supported the Canadian proposal because it has a broader scope of application and a greater definition of international law. There is a need to include an obligation to strengthen existing decision-making in some regions and arrangements and a provision on precautionary measures. Mexico supported the use of UNCLOS in dispute settlement and agreed with deletion of Article 28 paragraph (1). He favored maintaining the original drafting of Article 29 and supported redrafting Article 31, as proposed by the US. Japan was concerned that there be equal treatment for dispute settlement in all regional organizations and arrangements. He further stated that the Tribunal should apply not only norms and standards but also the function of international law.
Papua New Guinea stated that it was unable to support the EU proposition. In reference to Annex 3, Articles (7) and (8), the delegate cited the fact that the arbitral body could only issue recommendations and hence was not binding dispute settlement. The Russian Federation emphasized that the international tribunal in UNCLOS was the only body suitable for dispute settlement. He said that the treatment of non-party States under UNCLOS provisions could present a problem, and questioned the effects and rights on States that are not party to the Convention. A balance must be achieved that includes effective implementation for all States without undermining UNCLOS. He supported in principal the use of Part XV and the Chair's text. The Chair pointed out the need to harmonize the Convention provisions and the choice of procedures for dispute settlement. Guatemala said that the stipulations in Part XV lend themselves to the settlement of maritime delimitations but do not readily resolve the disputes envisioned in Part II, Article 7, paragraphs (4) and (5). The delegate supported a combination of the US and Canadian proposals, taking into account the amendments of the EU. Canada clarified its proposal that if dispute settlement mechanisms established in a region provide provisional measures, then these shall be used as stated in Article 282. If not, then the dispute would be referred to the International Tribunal. 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. India expressed concern with the use in both proposals of the term "generally accepted standards," and supported the EU wording "other rules of international law not incompatible with the convention".