5.2 Dispute settlement
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Responsible body |
Activities to date |
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5.2.1 The CCAMLR dispute settlement mechanisms appear
to be unsatisfactory. There is an urgent need to take action
to address this situation. In this regard, the binding
procedures for dispute settlement set out in Part XV of UNCLOS
could be considered by CPs in a two-fold manner:
(a) As a benchmark that should be followed for an
eventual amendment of Article XXV of the Convention. This
could allow for compulsory procedures entailing binding
decisions to be followed if no agreement can be reached.
This implies the possibility of submission of a dispute to
the ICJ, the ITLOS or an arbitral tribunal, if no agreement
is reached or any other means are not followed or did not
produce an outcome. In the case of disagreement as to the
procedure to be followed, CPs are deemed to have accepted
arbitration as the residual procedure1. Equally,
Part XV of UNCLOS provides for an efficient provisional
measures mechanism during dispute proceedings, that protects
the rights of the Parties, fish stocks and the marine
environment2. This mechanism should be employed
or copied in any modification of the dispute settlement
scheme of CCAMLR.
(b) As a possibility to be used between CPs that are also
Parties to UNCLOS pending an amendment to the Convention,
and by those CPs with regard to NCPs being also Parties to
UNCLOS whose vessels are engaged in illegal fishing in
CCAMLR waters.
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Commission |
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Commission – not yet considered |
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5.2.2 The Annex for an Arbitral Tribunal appended to
the Convention contains some particularities that should be
maintained, notably with regard to other Parties’ intervention
in the proceedings (Articles 4 and 5 of the Annex). Given the
particular nature of the obligations at stake, which are of
common interest, this particularity of the system is to be
commended and should be maintained. |
Commission |
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Commission – not yet considered |
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5.2.3 As mentioned above (Criterion 4.1.1), in matters
related to the interpretation or application of CMs, the
establishment of a panel constituted by independent experts as
a subsidiary organ of CCAMLR, with capacity to adopt binding
decisions, should be envisaged. The possibility of casting a
decision by such a panel through a ‘negative’ consensus of
CCAMLR, following the WTO dispute settlement mechanism, could
also be envisaged as a possible alternative. |
Commission |
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Commission – not yet considered |
1 See Article 287, paragraphs 3 and 5 of UNCLOS:
www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm
2 See Article 290 of UNCLOS:
www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm
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