Howard

An interesting point. My understanding of Article 282 is that it only defers
to regional or bilateral arrangements where those measures entail submission
to a binding procedure at the request of ANY party to the dispute. As such,
the LOSC Convention would override Article 16(2) of the CCSBT, which
provides for settlement by the ICJ or arbitration only with the consent of
ALL the parties to the dispute.

This view was of course the position of Australia and New Zealand in the SBT
cases. This position was noted in the ITLOS decision but not really
addressed in the Arbitral Award (only Sir Kenneth supported the applicants'
view). There has also been some discussion of Article 282 in the recent
Ireland/UK MOX case (this time looking at the dispute settlement procedures
in the OSPAR Convention - see paras. 38-54) which indicates that ITLOS
disagrees with the approach taken in SBT2, although the circumstances were
slightly different. (Although I have to confess I have not read the MOX
decision fully).

I have just received a paper for the website from Prof. Barbara Kwiatkowska
which discusses this issue and SBT2 generally. I will keep the list posted
when I add it to the website.

Chris


-----Original Message-----
From: The OceanLaw Mailing List [mailto:[log in to unmask]]On
Behalf Of Howard S. Schiffman
Sent: 12 December 2001 04:28
To: [log in to unmask]
Subject: Re: UN Fish Stocks Agreement


Dear Chris,

I think this list is an excellent idea and commend you for doing the
necessary preparation for it. I also like your website very much and feature
the link to it on my own site: www.InternationalLawHelp.com.

I certainly agree that the entry into force of the Straddling Stocks
agreeement is a milestone of some note and may go a way toward addressing
two of the inherent weaknesses of the LOSC (or UNCLOS as we yanks typically
refer to it:)). That is, the management of straddling fish stocks and the
problem of "free-riders".

I would like to raise another issue. I recently spoke at a conference where
the impact of the Southern Bluefin Tuna (SBT) Cases was discussed. While
there may be an instinct to conclude that the force in law of the Straddling
Stocks agreement might have led to a different result (laying aside Japan's
status in the treaty for a moment) would the fact of the Straddling Stocks
agreement have really changed the result in the SBT Cases? Even though
Article 30 the Straddling Stocks agreement incorporates by reference Part XV
(Settlement of Disputes) under LOSC, this includes LOSC Article 282. LOSC
Article 282 specifically defers to regional or bilateral agreements for the
purpose of dispute settlement. Therefore, isn't the combined force of both
UNCLOS and the Straddling Stocks treaty in the area of dispute settlement
only as strong as the dispute settlement provisions of the most applicable
regional agreement?

I welcome any discussion on this point.

Cheers,

Howard S. Schiffman

At 12:11 AM 12/12/01 -0000, you wrote:
>Dear list-members (again!)
>
>As I mentioned in my previous message, the UN Fish Stocks Agreement enters
>into force today and this appears to me an appropriate starting point for
>the OceanLaw discussion list. It hardly needs to be said that this is a
>highly significant event for international fisheries and a major step
>forward (even if long overdue). At the same time, however, there remains a
>number of concerns, not least (for me) the continued non-participation of
>certain States/entities - in particular Japan and the European Union.
>
>Another interesting issue is the one raised by Andrew Serdy in an article
in
>"Int-Fish Bulletin". In this article, he argues that the agreement should
>have entered into force some time ago, because of the ratifications of
>Luxembourg and Italy (later withdrawn) and the United Kingdom (never
>counted). This article is available freely at:
>www.oceanlaw.net/bulletin/sample/focus/2001/22.htm. I am sure Andrew (who
is
>a list member) will not mind me encouraging everyone to read this article
>and to share any views they have on this issue.
>
>I am keen to encourage some discussion on the list, so please feel free to
>share any views/comments you have on any of the issues raised in this
>message. Also, in order to develop some sense of "community" it would be
>interesting if you could provide a short sentence or two about your
>background, so we have an idea of who we are communicating with.
>
>Chris
>
>______________________________________________
>
>Chris Hedley LLB    E-mail: [log in to unmask]
>Editor, OceanLaw    Tel: +44 707 432 3000
>www.oceanlaw.net    Fax: +44 870 705 2343
>
>Resources on OceanLaw:
>
>Int-Fish Bulletin: new monthly current affairs journal on fisheries, marine
>mammals and other marine life conservation
>
>Internet Guide to International Fisheries Law: the web's leading resource
>for marine living resource law, policy and management - more than 1000
pages
>of information
>
>OceanLaw Mailing List: a discussion list open to anyone with an interest in
>marine living resource law and management and related law of the sea issues
>
Howard S. Schiffman, J.D., LL.M.
Adjunct Assistant Professor
New York University
School of Continuing and Professional Studies
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(718) 258-7253 (phone/fax)
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