Dear Chris,

Thanks for this. Of course, you are 100% correct about Article 282. In my
haste, I did not include mention of Article 281 (thankfully, Andrew Surdy
mentioned it in his response). The difference between the two is key as 282
requires the availability of a binding decision under the other arrangement
while 281 doesn't. In addition, 281 requires exhaustion of the procedure
under the other treaty which realistically can itself be a matter of some
dispute between the parties. I will definitely look at the MOX case more
closely and I suspect the relationship between Part XV and the dispute
settlement mechanisms of other fishery agreements is something we will be
considering for some time.

Regarding your question about the article, the particular paper I presented
was on the status of scientific whaling. SBT came up in related discussions.
If you are interested in posting the scientific whaling piece, it is pending
publication in the ILSA Journal of International and Comparative Law. When
it clears editing, you can certainly inquire of the editorial board about
reproducing with permission. Perhaps of more interest, I have an article
pending publication in JIWLP 4:3 that is basically a review of Part XV
activity and ITLOS jurisprudence. It should be out in a couple months.

Thanks again for setting up the list. I look forward to further discussions
with list members.

All the best,

Howard

At 10:30 AM 12/12/01 -0000, you wrote:
>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
>[log in to unmask]
>(718) 258-7253 (phone/fax)
>www.InternationalLawHelp.com
>
Howard S. Schiffman, J.D., LL.M.
Adjunct Assistant Professor
New York University
School of Continuing and Professional Studies
[log in to unmask]
(718) 258-7253 (phone/fax)
www.InternationalLawHelp.com