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An Overview of International Fisheries Disputes and the International Tribunal for the Law of the Sea

Published online by Cambridge University Press:  09 March 2016

Ted L. McDorman
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Summary

Although there have been few international adjudications dealing directly with fishing disputes in the past, all but one of the cases before ITLOS have been fisheries cases. This article first reviews the different ways in which a fisheries dispute can get before ITLOS and considers the disputes that have been on the docket of ITLOS so far. These have resulted in five decisions on requests for prompt release, two decisions on request for provisional measures, but only one decision on the merits of a dispute. The conclusion is that ITLOS has played a useful role in fisheries dispute settlement particularly when contrasted with the history of international dispute settlement for fisheries disputes.

Sommaire

Sommaire

Bien que peu de différends liés aux pêcheries directement ait fait l’objet d’arbitrage international dans le passé, tous les dossiers devant le Tribunal international du droit de la mer, sauf un, avaient trait aux pêcheries. Cet article examine en premier lieu les différentes façons par lesquelles un différend relatif aux pêcheries peut aboutir devant ce Tribunal, puis les dossiers inscrits au rôle de ce Tribunal jusqu’ici. Cela a donné lieu à cinq decisions relatives à des demandes de prompte mainlevée, à deux décisions relatives à des demandes de mesures conservatoires, mais à une décision seulement sur le mérite de l’affaire. En somme, le Tribunal a joué un rôle utile dans le règlement de différends relatifs aux pêcheries, surtout si l’on considère l’historique du règlement international des différends en matière de pêcheries.

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Articles
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 40 , 2003 , pp. 119 - 149
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2003

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References

1 The website for ITLOS is <www.itlos.org>. Not surprisingly, ITLOS has generated a considerable amount of literature. Attention is drawn to Eiriksson, Gudmundur, The International Tribunal for the Law of the Sea (The Hague: Martinus Nijhoff, 2000)Google Scholar; Rao, P. Chandrasekhara and Khan, Rahmatullah, eds., The International Tribunal for the Law of the Sea: Law and Practice (The Hague: Kluwer Law International, 2001)Google Scholar; and Nordquist, Myron H. and Moore, John Norton, eds., Current Marine Environmental Issues and the International Tribunal for the Law of the Sea (The Hague: Martinus Nijhoff, 2001).Google Scholar

2 Annex VI of the United Nations Convention on the Law of the Sea, done at Montego Bay, Jamaica, December 10, 1982, entered into force on November 16, 1994, reprinted in (1982) 21 I.L.M. 1261, also available at <www.un.org/Depts/los/index.htm> [hereinafter LOS Convention].

3 The current status and the parties to the LOS Convention are accessible at <www.un.org/Depts/los/index.htm>.

4 See LOS Convention, supra note a, at Annex VI, Articles 2-5. The current membership and the results of the April aooa election are accessible at <www.itlos.org>.

5 The docket of ITLOS cases is accessible <www.itlos.org>. For an overview of the ITLOS cases, see Rosenne, Shabtai, “The Case-Law of ITLOS (1997–2001): An Overview” in Nordquist and Moore, supra note 1, at 7–40.Google Scholar

6 All the fisheries related cases are discussed in detail later in this article. The one non-fisheries case is the MOX Plant Case (Ireland v. United Kingdom), ITLOS, Provisional Measures Order, November 13, 2001, reprinted in (2002) 41 I.L.M. [hereinafter MOX Plant case]. All the ITLOS decisions are accessible through the ITLOS website at <www.itlos.org>.

7 Bering Sea Fur-Seals (Gr. Brit. v. U.S.), 1 Int’l Envtl. L. Reports 43, 67. The award is reprinted in Moore, J. B., History and Digest of International Arbitrations to Which the United States Has Been a Party, volume 1 (Washington, DC: Government Printing Ofice, 1818) at 945–51.Google Scholar For a recent review of the award, see Romano, Cesare P. R., The Peaceful Settlement of International Environmental Disputes (The Hague: Kluwer Law International, 2000) at 133–50.Google Scholar

8 Filleting within the Gulf of St. Lawrence between Canada and France, 1986, 19 UN Reports of International Arbitral Awards 225. See generally concerning the arbitration Burke, William T., “A Comment on the ‘La Bretagne’ Award of July 17, 1986: The Arbitration between Canada and France” (1988) 25 San Diego L. R. 495–533 Google Scholar; and McDorman, T. L., “French Fishing Rights in Canadian Waters: The 1986 La Bretagne Arbitration” (1989) 4 Int’l J. of Estuarine and Coastal Law 52–64.CrossRefGoogle Scholar

9 Agreement between Canada and France on Their Mutual Fishing Relations, done at Ottawa, March 27, 1972 and entered into force March 27, 1972, reprinted in National Legislation and Treates Relating to the Law of the Sea (New York: United Nations, 1974) at 570.

10 Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction, [1973] I.C.J. Rep. 3; Fisheries Jurisdiction (Germany v. Iceland), Jurisdiction, [1973] I.C.J. Rep 49; Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, [1974] I.C.J. Rep. 3; and Fisheries Jurisdiction (Germany v. Iceland), Merits [1974] I.C.J. Rep. 175 [hereinafter Fisheries Jurisdication cases]. See generally Jonsson, Hannes, Friends in Conflict: The Anglo-Icelandic Cod Wars and the Law of the Sea (London: C. Hurst and Company, 1982)Google Scholar; and Hart, Jeffrey A., The Anglo-Icelandic Cod War of 1972–1973, Research Series no. 20 (Berkeley: Institute of International Studies, 1976).Google Scholar For a more recent treatment, see Romano, supra note 7 at 151–76.

11 The seizure of the Estai is vividly portrayed in Harris, Michael, Lament for an Ocean (Toronto: McClelland and Stewart, 1998) at 1–38.Google Scholar The event has resulted in considerable academic literature. A sampling includes Joyner, C. and von Gustedt, A. A., “The Turbot War of 1995: Lessons for the Law of the Sea” (1996) 11 Int’l J. Mar. & Coastal L. 425 Google Scholar; Davies, P., “The EC/Canada Fisheries Dispute in the Northwest Atlantic” (1995) 44 I.C.L.Q. 927 Google Scholar; Springer, Allen L., “The Canadian Turbot War with Spain: Unilateral State Action in Defense of Environmental Interests” (1997) 6 J. Env. & Dev 26–60 CrossRefGoogle Scholar; de Yturriaga, Jose, The International Regime ofFisheries (Boston: Martinus Nijhoff, 1997) at 238–57Google Scholar; and McDorman, T. L., “Canada’s Aggressive Fisheries Actions: Will They Improve the Climate for International Agreements?” (1994–5) 2(3) Can. Foreign Pol. 525–28.Google Scholar

12 Canada-European Community: Agreed Minutes on the Conservation and Management of Fish Stocks and Exchange of Letters, done April 20, 1995, reprinted in (1995) 34 I.L.M. 1260.

13 See Fisheries Jurisdiction (Spain v. Canada), [1998] I.C.J. Rep. 2. In May 1994, Canada had amended its acceptance of the compulsory jurisdiction of the International Court by adding that the Court had jurisdiction over all disputes other than:

(d) disputes arising out of concerning conservation and management measures taken by Canada with respect to vessels ishing in the NAFO Regulatory Area, as deined in the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, 1978, and enforcement of such measures (see Ibid. at para. 14.)

Canada argued that the seizure of the Estai arose out of conservation measures and their enforcement respecting the NAFO waters adjacent to Canadian waters. The court agreed with the Canadian characterization of the dispute and decided that the Canadian wording of its acceptance of the compulsory jurisdiction of the International Court of Justice precluded the court from examining the merits of the Estai controversy (see Ibid. at para. 87). For a review of the case and the surrounding issues, see Romano, supra note 7 at 177–95.

14 For example, Case Concerning the Delimitation of the Maritime Areas between Canada and France, June 10, 1992, reprinted in (1992) 31 I.L.M. 1148 [hereinafter Maritime Areas between Canada and France]. For an excellent analysis of this decision, see Politakis, G. P., “The French-Canadian Arbitration around St. Pierre and Miquelon: Unmasked Opportunism and the Triumph of the Unexpected” (1993) 8 Int’l J. Mar. & Coastal L. 105–34.CrossRefGoogle Scholar Another example is Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), [1984] I.C.J. Rep. 252 [hereinafter Maritime Boundary in the Gulf of Maine]. For an analysis of this decision, see Johnston, Douglas M., The Theory and History of Ocean Boundary-Making (Kingston-Montreal: McGill-Queen’s University Press, 1988) at 178–91.Google Scholar

15 This was unquestionably the case in both the Maritime Areas between Canada and France case, supra note 14, and the Maritime Boundary in the Gulf of Maine, supra note 14. Regarding the Canada-France situation, see McDorman, T. L., “The Canada-France Maritime Boundary Case: Drawing a Line around St. Pierre and Miquelon” (1990) 84 A.J.I.L. 157 at 158–65Google Scholar; and McDorman, T. L., “The Search for Resolution of the Canada-France Ocean Dispute Adjacent to St. Pierre and Miquelon” (1994) 17 Dal. L.J. 35–60.Google Scholar With respect to the Gulf of Maine situation, see Van der Zwaag, David L., The Fish Feud: The U.S. and Canadian Boundary Dispute (Toronto: Lexington Books, 1983).Google Scholar

16 McDorman, T. L., Saunders, P. M., and Van der Zwaag, D. L., “The Gulf of Maine Boundary: Dropping Anchor or Setting a Course?” (1985) 9 Marine Policy 90 at 101:CrossRefGoogle Scholar

The second point on which the decision might be queried is the degree to which the decision’s rationale is divorced from the reason for the dispute. On any non-legal analysis of the issue, the case was not about geography but rather was centrally concerned with the allocation of rights to the use of the oceans resources … The decision does not reflect the importance of this aspect of the dispute. Resource-related factors … were considered only in the inal part of the three-stage process … As a result, the elements which contributed most to the creation of the dispute were given the least weight in its resolution.

17 Fisheries Jurisdiction cases, supra note 10 at aa and 66. See the discussion of Romano, supra note 7 at 164–65.

18 Fisheries Jurisdiction (Spain v. Canada), supra note 13, as well as the commentary in note 13.

19 LOS Convention, supra note a at Part XV.

20 See ibid. at section 4.1.1.

21 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, done at New York, August 4, 1995, entered into force December 11, 2001, reprinted in (1995) 34 I.L.M. I542 and at <www.un.org/Depts/los/index.htm> [hereinafter Fish Stocks Agreement].

22 The terms straddling ish stocks and highly migratory fish stocks are undeined in the Fish Stocks Agreement. However, a listing of highly migratory fish stocks is given in the LOS Convention, supra note 2 at Annex I. Straddling stocks are understood to be those stocks that migrate between the national waters of a state and the high seas. Article 3(1) of the Fish Stocks Agreement indicates the restriction on its application.

There are numerous studies of the Fish Stock Agreement. See Stokke, Olav Schram, ed., Governing High Seas Fisheries (Oxford: Oxford University Press, 2001)CrossRefGoogle Scholar; Tahindro, Andre, “Conservation and Management of Transboundary Fish Stocks: Comments in Light of the Adoption of the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks” (1997) 28 Ocean Dev. … Int’l L. 28 Google Scholar; Hayashi, Moritaka, “The Straddling and Highly Migratory Fish Stocks Agreement” in Hey, Ellen, ed., Developments in International Fisheries Law (The Hague: Kluwer Law International, 1999) at 55–83 Google Scholar; and Orebech, Peter, Sigurjonsson, Ketill, and McDorman, T. L., “The 1995 United Nations Straddling and Highly Migratory Fish Stocks Agreement: Management, Enforcement and Dispute Settlement” (1998) 13 Int’lJ. Mar. & Coastal L. 119–41.CrossRefGoogle Scholar

23 See generally McDorman, T. L., “The Dispute Settlement Regime of the Straddling and Highly Migratory Fish Stocks Convention” (1997) 35 Can. YB. Int’l L. 57 at 64–79.Google Scholar See also the discussion later in this article under the headings “1995 Fish Stocks Agreement”; “ITLOS and Provisional Measures”; and “ITLOS and the Prompt Release of Fishing Vessels.”

24 The current status and parties to the Fish Stocks Agreement is accessible at <www.un.org/Depts/los/index.htm>.

25 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, done at Rome, November 24, 1993, not yet in force, reprinted in (1994) 33 ILM 968 and accessible at <www.fao.org/legal/> [hereinafter Compliance Agreement]. See generally Bolton, David A., “The Compliance Agreement” in Hey, , supra note 22 at 31–53.Google Scholar

26 Compliance Agreement, supra note 25 at Article IX:

Settlement of Disputes

  • 1.

    1. Any Party may seek consultations with any other Party or Parties on any dispute with regard to the interpretation or application of the provisions of this Agreement with a view to reaching a mutually satisfactory solution as soon as possible.

  • 2.

    2. In the event that the dispute is not resolved through these consultations within a reasonable period of time, the Parties in question shall consult among themselves as soon as possible with a view to having the dispute settled by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.

  • 3.

    3. Any dispute of this character not so resolved shall, with the consent of all Parties to the dispute, be referred for settlement to the International Court of Justice, to the International Tribunal for the Law of the Sea upon entry into force of the 1982 United Nations Convention on the Law of the Sea or to arbitration. In the case of failure to reach agreement on referral to the International Court ofJustice, to the International Tribunal for the Law of the Sea or to arbitration, the Parties shall continue to consult and cooperate with a view to reaching settlement of the dispute in accordance with the rules of international law relating to the conservation of living marine resources.

Respecting this compromissory clause and ITLOS, see Eiriksson, supra note 1 at 125–27.

27 The current status and parties to the Compliance Agreement is accessible at <www.fao.org/legal/>.

28 Eiriksson, supra note 1 at 123–25; and Treves, Tullio, “The Jurisdiction of the International Tribunal for the Law of the Sea” in Rao, and Khan, , supra note 1 at 122–23.Google Scholar

29 This exclusion is discussed in detail in Dahmani, M., The Fisheries Regime of the Exclusive Economic Zone (Boston: Martinus Nijhoff, 1987) at 121–3.Google Scholar See also Treves, supra note 28 at 118–20.

30 With respect to Article 298 of the LOS Convention, see Rosenne, Shabtai and Sohn, Louis B., eds. United Nations Convention on the Law of the Sea, 1982: A Commentary, volume 5 (Boston: Martinus Nijhoff, 1989) at 107–41Google Scholar; and Treves, supra note 28 at 120–22.

31 LOS Convention, supra note a at Article 297(3)(b).

32 The negotiators of the 1982 LOS Convention had hoped to entrench compulsory judicial settlement for all oceans disputes into the treaty, but this proved to be unacceptable. See generally Adede, A. O., The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea (Boston: Martinus Nijhoff, 1987).Google Scholar

33 There are numerous examinations of the dispute settlement regime of the 1982 LOS Convention. Attention is drawn to Boyle, Alan E., “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction” (1997) 46 I.C.L.Q. 59–82.CrossRefGoogle Scholar

34 Articles 280, 281, and 282 are complex provisions since they create the possibility of using means to resolve disputes other than those provided for in the LOS Convention. It was the interpretation of Article a8i that was at the heart of the Arbitral Tribunal’s decision in Southern Bluefin Tuna (N.Z. v. Japan; Austl. v. Japan), reprinted in (2000) 39 I.L.M. 1359 and accessible at <www.oceanlaw.net/cases/tunaaa.htm> [hereinafter Southern Bluefin Tuna case, 2000], between Australia/New Zealand and Japan.

The Arbitral Tribunal, pursuant to the LOS Convention dispute settlement procedures, ultimately decided that it did not have jurisdiction over the subject matter of the dispute since the parties (Australia/New Zealand/Japan) had agreed, through the 1993 Convention for the Conservation of Southern Bluein Tuna, 1819 U.N.T.S. 360 [hereinafter SBT Convention], to a separate dispute settlement process that covered the subject matter in dispute and that this agreed-upon dispute settlement process trumped that of the LOS Convention. The tribunal’s award is usually seen as a blow to compulsory adjudication advocates but, perhaps, it supports the effective settlement of disputes by adjudicators. For a brieing on the decision, see Kwiatkowska, Barbara, “Southern Bluein Tuna” (2001) 95 A.J.I.L. 162–71.Google Scholar For a more detailed analysis of the potential impact of the decision, see Oxman, Bernard H., “Complementary Agreements and Compulsory Adjudication” (2001) 95 A.J.I.L. 277–312 Google Scholar; and Colson, David A. and Hoyle, Peggy, “Satisfying the Procedural Prerequisites to the Compulsory Dispute Settlement Mechanism of the 1982 Law of the Sea Convention: Did the Southern Bluefin Tuna Tribunal Get It Right?” (2003) 34 Ocean Dev. & Int’l L. (in press).Google Scholar

35 LOS Convention, supra note a at Article 287 (1). See generally Treves, supra note 28 at 128–31.

36 The declarations of states are accessible at <www.un.org/Depts/los/index.htm>.

37 M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), ITLOS, Judgment, July 1, 1999, reprinted in (1999) 38 I.L.M.1323 and M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Provisional Measures Order, March 11, 1998, reprinted in (1998) 37 I.L.M. 1202, both are accessible at <www.itlos.org> [hereinafter M/V “Saiga” (No. 2)). See also the discussion under the heading “M/V “Saiga” Case” later in this article.

38 Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern PacificOcean (Chile/European Community), ITLOS, Order, Constitution of Chamber, December 20, 2000, reprinted in (2001) 40 I.L.M. 475 and Case Concerning the Conservation and Sustainable Exploitation of Swordish Stocks in the South-Eastern Paciic Ocean (Chile/European Community), ITLOS, Suspension Order, both are accessible at <www.itlos.org> [hereinafter Swordfish Stocks case].

39 Several of the paragraphs in this section are drawn, with modiication, from McDorman, T. L., “Global Ocean Governance and International Adjudicative Dispute Resolution” (2000) 43 Ocean & Coastal Management 255 at 260–61CrossRefGoogle Scholar and from McDorman, supra note 23 at 70–71.

40 See McDorman, supra note 23 at 67–68. Regional fisheries management agreements are treaties entered into by states to promote the conservation and management of straddling and highly migratory fish stocks. It is through these agreements that many of the obligations of the Fish Stocks Agreement are to be carried out. See Orebech et al., supra note 22 at 121–24; and Hayashi, supra note aa at 66–68. For a general discussion of regional fisheries management organizations and a listing of them, see Sydnes, Are K., “Regional Fisheries Organizations: How and Why Organizational Diversity Matters” (2001) 32 Ocean Dev. & Int’l L. 349–72.CrossRefGoogle Scholar

41 McDorman, supra note 23 at 67. The more interesting question is the situation where a regional fisheries management organization has dispute settlement procedures that do not involve compulsory adjudication and whether Article 30(2) of the Fish Stocks Agreement, which directs that the compulsory adjudication provisions of the LOS Convention, would be applicable. In the Arbitral Tribunal Southern Bluefin Tuna case, 2000, supra note 34, the non-compulsory adjudication provisions prevailed over the compulsory adjudication provisions of the LOS Convention. It has been argued that the application of Article 3o (a) would lead to a different result. See Oxman, supra note 34 at 306.

42 The declarations of states are accessible at <www.un.org/Depts/los/index.htm>.

43 See Burke, William T., The New International Law of Fisheries (Oxford: Clarendon Press, 1994) at 124 Google Scholar; Dahmani, supra note 29 at 121; and Boyle, supra note 33 at 43.

44 McDorman, supra note 23 at 73–75. For a more detailed examination of the issues noted in this section, see Treves, supra note 28 at 148–52; Eiriksson, supra note 1 at 121–23 and 216–23; Wolfrum, Rodiger, “Provisional Measures of the International Tribunal for the Law of the Sea” in Rao, and Khan, , supra note 1 at 173–86Google Scholar; and Ndiaye, Tafsir Malick, “Provisional Measures before the International Tribunal for the Law of the Sea” in Nordquist and Moore, supra note 1 at 95–101.Google Scholar

45 LOS Convention, supra note a at Article 290(5). Once a tribunal has been established it may modify, revoke, or afirm any provisional measures ordered by ITLOS.

46 The non-fisheries case was the MOX Plant case, supra note 6.

47 M/V “Saiga” (No. 2), supra note 37.

48 Southern Bluefin Tuna (N.Z. v. Japan; Austl. v. Japan), ITLOS, Provisional Measures Order of August 27, 1999, reprinted in (1999) I.L.M. 38 1624 [hereinafter Southern Bluefin Tuna, 1999, cases]. See also the discussion under the heading “Southern Bluein Tuna Cases” in this article.

49 As noted in McDorman, supra note 23 at 73–74:

Article 31 (2) refers to two additional circumstances when provisional measures may be prescribed. First, Article 7(2) of the 1995 Agreement obliges states harvesting straddling stocks both within and without a national ishing zone to adopt “compatible” conservation and management measures. Article 7 (5) directs that, pending agreement on such compatible measures, states are to attempt to establish “provisional arrangements of a practical nature.” Where no such arrangements are made, an aggrieved state can submit the dispute to the appropriate court or tribunal “for the purpose of obtaining provisional measures.” Second, in the circumstance of a high seas enclave surrounded by the national jurisdiction of a single state, where the coastal state and the ishing states cannot agree on appropriate conservation and management measures, an aggrieved state, using Article 7(5), can seek provisional measures from the appropriate court or tribunal. The intent of the additional circumstances for the possibility of provisional measures is to pressure reluctant states to agree to interim arrangements for high seas fishing.

50 See Brown, E. D., “Dispute Settlement and the Law of the Sea: the UN Convention Regime” (1997) 21 Marine Policy 17 at 30.CrossRefGoogle Scholar

51 Several of the paragraphs in this section are drawn, with modiication, from McDorman, supra note 23 at 75–78. For a more detailed examination of the issues noted in this section, see Treves, supra note 28 at 159–55; and Eiriksson, supra note 1 at 118–21.

52 With respect to Article 73 of the LOS Convention, see Burke, supra note 43 at 312–18. Specifically regarding the issue of “reasonable bond,” see Laing, Edward Arthur, “ITLOS Procedures and Practices: Bonds” in Nordquist and Moore, supra note 1 at 113–20.Google Scholar As will be noted later in this article, all of the ITLOS prompt release cases have involved questions of the reasonableness of the bond. For a detailed analysis, see Franckx, Erik, “‘Reasonable Bond’ in the Practice of the International Tribunal for the Law of the Sea” (2002) 32 California Western Int’l L. J. 303–42.Google Scholar

53 LOS Convention, supra note a at Article 111, codifies the criteria that must be met for hot pursuit. See Brown, E. D., The International Law of the Sea (Aldershot: Dartmouth, 1994) at 295–99Google Scholar and Reuland, Robert C., “The Customary Right of Hot Pursuit onto the High Seas: Annotations to Article 111 of the Law of the Sea Convention” (1993) 33 Virginia J. Int’l L. 557–89.Google Scholar Hot pursuit was an issue dealt with by ITLOS in the M/V “Saiga” (No. 2) case, supra note 37, Judgment, at paras. 139–52.

54 High seas arrests for activities that take place on the high seas are only sanctioned by the LOS Convention for piracy (Article 105) and unauthorized broad-casting (Article 109(3)). However, the right to visit a vessel on the high seas (Article 110) may also lead to seizures respecting vessels engaged in the slave trade and vessels without nationality. See generally Brown, supra note 53 at 299–314; and Hayashi, Moritaka, “Enforcement by Non-Flag States on the High Seas under the 1995 Agreement on Straddling and Highly Migratory Fish Stocks” (1996) 9 Georgetown Int’l Env. L. Rev. 1 at 4–10.Google Scholar

55 Treves, Tullio, “The Proceedings Concerning Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea” (1996) 11 Int’l J. Mar. & Coastal L. 179 at 186.CrossRefGoogle Scholar

56 M/V “Saiga” Case (Saint Vincent and the Grenadines v. Guinea), ITLOS, Prompt Release Judgment, December 4, igg7, reprinted in (1998) 37 I.L.M. 360, accessible at <www.itlos.org> [hereinafter M/V “Saiga” case]. See also the discussion under the heading “M/V “Saiga” Cases” later in this article

57 Dolliver, L. Nelson, M., “The International Tribunal for the Law of the Sea: Some Issues” in Rao, and Khan, , supra note 1 at 55.Google Scholar

58 M/V “Saiga,” supra note 56. See also the discussion under the heading “M/V “Saiga” Cases” later in this article.

59 “Camouco” Case (Panama v. France), ITLOS, Prompt Release Judgment, February 7, 2000, reprinted in (2000) 39 I.L.M. 666. See also the discussion under the heading ““Camouco” Case” later in this article

60 “Monte Confurco” Case (Seychelles v. France), ITLOS, Prompt Release Judgment, December 18, 2000 [hereinafter “Monte Confurco” case]. See also the discussion under the heading ““Monte Confurco” Case” later in this article

61 “Grand Prince” Case (Belize v. France), ITLOS, Prompt Release Judgment, April 20, 2001 [hereinafter “Grand Prince” case]. See also the discussion under the heading ““Grand Prince” Case” later in this article

62 “Chaisiri Reefer 2” Case (Panama v. Yemen), ITLOS, Press Release 51, 5 July 2001, and Press Release 52, 16 July 2001 [hereinafter “Chaisiri Reefer” case]. See also the discussion under the heading ““Chaisiri Reefer 2” Case” later in this article.

63 “Volga” Case (Russian Federation v. Australia), ITLOS, Prompt Release Judgment, December 23, aooa [hereinafter “Volga” case]. See also the discussion under the heading ““Volga” Case” later in this article.

64 The issue of non-flag state enforcement on the high seas was highly contentious during the negotiation of the Fish Stocks Agreement. See Hayashi, supra note 54 at 10–27, who describes the negotiations about this issue in detail. The final result is that, without the consent of the lag state, a ishing vessel allegedly in breach of the Fish Stocks Agreement or an appropriate regional isheries arrangement cannot be arrested or seized on the high seas. However, Article ai of the Fish Stocks Agreement creates the possibility of a foreign fishing vessel on the high seas being boarded, inspected, and, where “clear grounds” exist of “a serious violation,” the offending vessel may be brought into port for further investigation. While “clear grounds” is not deined in the agreement, “a serious violation” is deined in detail in Article 21 (11). The keys to the exercise of these powers are: that the boarding/inspection state must be a member of a regional isheries management arrangement; that there exist clear grounds for believing that the offending vessel is violating the regional isheries management regulations; and that the lag state does not intervene. For a detailed description of the enforcement provisions of the Fish Stocks Agreement, see Hayashi, supra note 54 at 10–27; and Tahindro, supra note 22 at 37–40. It is important to reiterate that even under Article 21 , without lag state consent, an inspected vessel cannot be prosecuted. Note also Treves, supra note 55 at 186–87; and Anderson, David H., “Investigation, Detention and Release of Foreign Vessels under the UN Convention on the Law of the Sea of 1982 and Other International Agreements” (1996) 11 Int’l J. Mar. & Coastal L. 165 at 171–74.Google Scholar

65 Treves, supra note 55 at 187.

66 Article 30(2) also integrates the LOS Convention dispute settlement regime into disputes regarding regional isheries management arrangements.

67 The author provides short notes on the ITLOS cases to the Yearbook of International Environmental Law. What follows in this section is drawn, with modification, from these contributions.

68 See McDorman, supra note 39 at 266–67. See also Eiriksson, supra note 1 at 287–309; Oxman, Bernard H., “The M/V Saiga” (1998) 92 A.J.I.L. 278–82Google Scholar; and Oxman, Bernard H. and Bantz, Vincent, “The M/V Saiga (No. a)” (2000) 94 A.J.I.L. 140–50.Google Scholar

69 M/V “Saiga,” supra note 56.

70 The agreement was through an exchange of letters set out in M/V “Saiga” (No. 2), supra note 37, Provisional Measures, at para. 14.

71 Ibid., Provisional Measures.

72 Ibid., Judgment, at paras. 55–74. The issue of vessel flag arose because of the appearance that the M/V “Saiga” was only provisionally registered in Saint Vincent and the Grenadines and that the time period for the registration had expired.

73 Ibid., Judgment, at paras. 75–88. In regard to the genuine link concept generally, see Brown, supra note 53 at 286–91.

74 Ibid., Judgment, at paras. 103–9.

75 Ibid., Judgment, at paras. 110–38. This was the core issue of the judgment.

76 Ibid., Judgment, at paras. 139–52. In regard to hot pursuit, see note 53 in this article.

77 See McDorman, T. L., “International Tribunal for the Law of the Sea (ITLOS)” (1999) 10 YB. Int’l Env. L. 632 at 634–35.Google Scholar See also Eiriksson, supra note 1 at 309–19; Kwiatkowska, supra note 34; Morgan, Donald L., “A Practitioner’s Critique of the Order Granting Provisional Measures in the Southern Bluein Tuna Cases” in Nordquist and Moore, supra note 1 at 173–213 Google Scholar; Kwiatkowska, Barbara, “Southern Bluein Tuna” (2000) 94 A.J.I.L. 150–55Google Scholar; and Romano, Cesare, “The Southern Bluefin Tuna Dispute: Hints of a World to Come … Like It or Not” (20001) 32 Ocean Dev. & Int’l L. 313–48.CrossRefGoogle Scholar

78 Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Joint Proceedings Order, August 16, 1999, accessible at <www.itlos.org>.

79 The Commission for the Conservation of Southern Bluefin Tuna was the organization established by the SBT Convention, supra note 34.

80 See Southern Bluein Tuna cases, 1999, supra note 48 at paras. 31–35.

81 Ibid. at para. 71.

82 Ibid. at paras. 79–80.

83 Ibid. at para. 80.

84 Ibid. at para. 90.

85 Southern Bluefin Tuna cases, 2000, supra note 34, Arbitral Tribunal.

86 See McDorman, T. L., “International Tribunal for the Law of the Sea (ITLOS)” (2000) 11 Y.B. Int’l Env. L. 582 at 582–83.Google Scholar See also Eiriksson, supra note 1 at 319–30 and Oxman, Bernard H. and Bantz, Vincent P., “The Camouco (Panama v. France)” (2000) 94 A.J.I.L. 713–21.Google Scholar

87 “Camouco” case, supra note 59 at para. 54.

88 Ibid. at para. 56.

89 Ibid. at para. 58.

90 Ibid. at paras. 70 and 74.

91 See McDorman, , supra note 86 at 584.Google Scholar

92 “Monte Confurco” case, supra note 60 at para. 41.

93 Ibid. at paras. 89 and 93.

94 Ibid. at paras. 79–80.

95 See McDorman, Google Scholar, supra note 86 at 585; and McDorman, T. L., “International Tribunal for the Law of the Sea (ITLOS)” (2001) 12 Y.B. Int’l Env. L. 589–97.Google Scholar

96 Swordfish Stock case, Order, Constitution of Chamber, supra note 38.

97 Ibid., Suspension Order.

98 See McDorman, , “International Tribunal for the Law of the Sea,” supra note 95Google Scholar. See also Oxman, Bernard H. and Bantz, Vincent P., “The Grand Prince” (2002) 96 A.J.I.L. 219–95.Google Scholar

99 “Grand Prince” case, supra note 61 at para. 42.

100 Ibid. at para. 54.

101 Ibid. at para. 89.

102 Ibid. at para. 93.

103 See McDorman, “International Tribunal for the Law of the Sea,” supra note 95.

104 “Chaisiri Reefer 2” case, supra note 62, Press Release 51.

105 Ibid., Press Release 52.

106 See McDorman, , “International Tribunal for the Law of the Sea (ITLOS)” (2002) 13 Y.B. Int’l Env. L. (in press).Google Scholar

107 “Volga” case, supra note 63 at para. 77.

108 Ibid. at para. 77.

109 Ibid.

110 Ibid. at para. 80.

111 Ibid.

112 M/V “Saiga” (No. 2), Judgment, supra note 37.

113 ITLOS, “Resolution on the Chamber for Fisheries Disputes,” October aooa, accessible at <www.itlos.org>. This aooa resolution continues the Chamber for Fisheries Disputes, which was irst established in 1997 and is to be in place for three years (until the end of 2005). See Eiriksson, supra note 1 at 83–84 and more generally at 76–87.

114 LOS Convention, supra note 2.

115 Fish Stocks Agreement, supra note 21 .

116 Compliance Agreement, supra note 25.

117 See the section in this article entitled “Case Concerning Swordfish Stocks in the South-Eastern Pacific Ocean!”

118 See the section in this article entitled “Southern Bluein Tuna Cases.”

119 MOX Plant case, supra note 6.

120 Australia has, however, pre-selected both ITLOS and the International Court of Justice. See note 35 in this article.

121 In regard to the procedure and timing for prompt release and provisional measures, see Eiriksson, supra note 1 at 205–13 and 223–25; and Treves, Tullio, “The Rules of the International Tribunal for the Law of the Sea” in Rao, and Khan, , supra note 1 at 148–55.Google Scholar

122 LOS Convention, supra note 2, at Article 293(1), indicates that ITLOS is to apply the LOS Convention “and other rules of international law not incompatible with” the LOS Convention. Eiriksson, supra note 1 at 145–47. In regard to the law to be applied in a dispute arising under the 1995 Fish Stocks Agreement, see Article 30(5) of the Fish Stocks Agreement, supra note 21; and McDorman, supra note 23 at 72–73.

123 The question of when or if an international dispute can be said to be resolved is a complex one. The tip of this iceberg is noted in Christine Chinkin and Sadurska, Romana, “The Anatomy of International Dispute Resolution” (1991) 7 Ohio State J. Dispute Resolution 39 at 77–78.Google Scholar

124 See the section in this article entitled ““Grand Prince” Case.”

125 See Mansfield, Bill, “Southern Bluefin Tuna-Comments,” paper presented at the SEAPOL Inter-Regional Conference on Ocean Governance and Sustainable Development in East and Southeast Asian Seas: Challenges in the New Millennium held in Bangkok, March 21–23, 2001, accessible at <www.mft.govt.nz/support/legal/seapol.html>.Google Scholar Mansfield comments:

[A] year and three quarters after the legal proceedings were filed the atmosphere in [Southern Bluefin Tuna] Commission meetings is constructive, considerable progress has been made on a number of important issues, the most important non party ishing state has given formal notice of its intention to become party to the Convention and a mechanism involving independent external scientists has been agreed for the development of a scientiic programme that will help to resolve the uncertainties about the future prospects for the stock.

Few of those who have been involved would have any doubt that the legal proceedings have played a major role in this turn around and yet the only formal outcome of those proceedings is a decision by the Arbitral Tribunal that it did not have jurisdiction to hear the merits of the case.

[A]ll three of the parties have in fact heard and responded to the message from the Tribunal. Following the Award by the Tribunal, Japan advised Australia and New Zealand that it wished to see a return to consensus and cooperation in the Commission. It proposed high level negotiations for that purpose and indicated that it did not intend to conduct a further unilateral EFP. The subsequent negotiations were held in a positive and constructive atmosphere and considerable further progress was made. In particular it was agreed that the way to resolve the disagreement about the appropriate nature and extent of experimental fi shing was to engage independent external scientists to devise a scientiic programme which would best contribute to reducing the uncertainties in relation to the stock.

In regard to the continuing work of the Commission for the Conservation of Southern Bluefin Tuna, supra note 79, see its website at <www.ccsbt.org>