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Complementary Agreements and Compulsory Jurisdiction

Published online by Cambridge University Press:  27 February 2017

Bernard H. Oxman
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Extract

Since the founding of the United Nations, the number of treaties and the matters they address have expanded vastly. It is increasingly common to find the same subjects addressed in complementary global, regional, and bilateral treaties. Many of these treaties contain provisions on the settlement of disputes regarding the interpretation or application of that treaty itself. Only some of those provisions establish compulsoryjurisdiction. These circumstances suggest an increasing probability that a dispute will arise between states under the substantive provisions of two complementary treaties with dispute settlement clauses, only one of which provides for compulsory arbitration or adjudication either in general or with respect to that dispute.

Type
Research Article
Information
American Journal of International Law , Volume 95 , Issue 2 , April 2001 , pp. 277 - 312
Copyright
Copyright © American Society of International Law 2001

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References

1 Declarations under the optional clause of the Statute of the International Court of Justice (ICJ), Article 36(2), presumably would fall in this category.

2 The term “regime” is used here in the limited sense of a legally binding system largely established by treaty.

3 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 UNTS 397 [hereinafter LOS Convention].

4 Letter of Submittal from the Secretary of State to the President (Sept. 23, 1994), forwarded with Message from the President of the United States Transmitting the United Nations Convention on the Law of the Sea, S. Treaty Doc. NO. 103–39, at v, vi–vii (1994) [hereinafter Message from the president]. The Department of State distributed copies of these documents, including the extensive executive branch commentary that accompanied them, to foreign governments in capitals and at multilateral meetings, and posted them on its Web site at <http://www.state.gov/www/global/oes/oceans/index.html> (visited Jan. 29, 2001).

5 LOS Convention, supra note 3, Art. 309.

6 There were 135 parties to the Convention as of April 23, 2001. Status of the United Nations Convention on the Law of the Sea and Related Agreements as at 23 April 2001, at <http://www.un.org/Depts/los/status2001.pdf> (visited Apr. 23,2001).

7 “A Constitution for the Oceans” is the title of remarks by Tommy T. B. Koh, president of the Third United Nations Conference on the Law of the Sea, that introduce the LOS Convention in the first edition published by the United Nations. He writes, “The question is whether we achieved our fundamental objective of producing a comprehensive constitution for the oceans which will stand the test of time. My answer is in the affirmative Among the eight reasons given for the affirmative response is the following: “The world community’s interest in the peaceful settlement of disputes and the prevention of use of force in the settlement of disputes between States have been advanced by the mandatory system of dispute settlement in the Convention.” United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5, at xxxiii (1983).

8 See Koh, supra note 7.

9 As chance would have it, while working on these points I had the privilege of attending a faculty seminar at the University of Miami School of Law at which Frank Michelman, reflecting on the insights of Habermas, Rawls, and others, discussed the substantive and procedural functions of municipal constitutions and certain of their implications. While perhaps broadly informed by analogous considerations in constitutional theory, the purposes for which such a distinction is introduced here are decidedly narrower and more tentative. 101 would like to thank Patrick Gudridge for this observation.

11 See Chevron USA v. Natural Res. Def. Council, 467 U.S. 837 (1984).

12 Articles 281 and 282, discussed immediately hereafter, are both in section 1. Section 3 contains limitations and exceptions to compulsory jurisdiction.

13 Article 282 of the LOS Convention, supra note 3, provides:

If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.

14 Article 287 offers the parties a choice of forum for disputes subject to compulsory and binding settlement under the LOS Convention: the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice, arbitration, or a special arbitration procedure for certain types of disputes. Arbitration is generally the forum if no choice is made or the parties make different choices. The LOS Convention thus rejects the view of those, largely outside governments, who might have sacrificed the principle of compulsory and binding third-party settlement under the Convention if it could be obtained only in conjunction with the simultaneous creation of a new standing tribunal that might compete or disagree with the ICJ. Since the Convention entered into force, a few who held that view have gone out of their way to argue that the scope of compulsory jurisdiction under the Convention is very limited, notwithstanding the fact that a narrow construction would affect not only the ITLOS, but the jurisdiction of arbitral tribunals and even the ICJ itself under the Convention. For a comprehensive review of the question, see Jonathan, I. Charney, Is International Law Threatened by Multiple International Tribunals’? 271 Recueil des Cours 101 (1998).Google Scholar

The debate has continued. Judge Gilbert Guillaume, president of the International Court of Justice, decried the effects of the proliferation of standing tribunals before the UN General Assembly and its Sixth Committee (Oct. 26 & 27, 2001, respectively), at <http://www.icj-cij.org/icjwww/ipresscom/iprstats.htm>. These statements do not elaborate on the implications of Article 95 of the UN Charter or treaties that rely on arbitration. Thus, while the Southern Blue/in Tuna case is mentioned, see infra note 25, there is no reference to the possible tension between the reasoning of the arbitral award, infra note 15, and the reasoning of the Permanent Court of International Justice in up holding jurisdiction in Electricity Co. of Sofia and Bulgaria, Judgment, 1939 PCIJ (ser. A/B) No. 77. See infra note 97.

Not all ICJ judges support Judge Guillaume’s view. Judge Higgins believes that the emergence of “new, highly specialised bodies, whose members are experts in a subject matter which becomes ever more complex, which are more open to non-State actors, and which can respond rapidly” is “an inevitable consequence of the busy and complex world in which we live and is not a cause of regret.” Higgins, Rosalyn, Respecting Sovereign States and Running a Tight Courtroom, 50 Int’l & Comp. L. Q. 121, 122 (2001).Google Scholar

Questions of jurisdiction of other for a under the LOS Convention are inextricably linked to questions regarding the role of the ITLOS, not only with respect to its jurisdiction over the merits in similar cases but in other ways as well. Not many states have filed declarations choosing the ITLOS as the relevant forum under the LOS Convention. Apart from the jurisdiction of its Seabed Disputes Chamber (regarding deep seabed mining under Arts. 186–91 and Annex VI, Arts. 14, 35-40), the compulsory jurisdiction of the ITLOS overall parties to the LOS Convention extends only to cases under Article 292 concerning prompt release of vessels and crew (without regard to jurisdiction over the merits of any underlying dispute) and to provisional measures under Article 290(5) pending the constitution of an arbitral tribunal that prima facie would have jurisdiction. Limiting the jurisdiction of arbitral tribunals under the LOS Convention presumably would make it more difficult for the ITLOS to prescribe provisional measures, which requires a finding that prima facie an arbitral tribunal would have jurisdiction. See infra note 107.

15 Southern Bluefin Tuna Case (Austl. & N.Z. v. Japan), Jurisdiction and Admissibility, 39 ILM 1359 (2000), at <http://www.oceanlaw.net/cases/tuna2a.htm> [hereinafter Award]. See case notes by Kwiatkowska, Barbara, Case Report: Southern Bluefin Tuna (Australia and New Zealand v. Japan), 95 AJIL 162 (2001)CrossRefGoogle Scholar, and by Weckel, Philippe & Helali, Eddin, 104 Revue Generale de Droit International Public 1037 (2000).Google Scholar

16 The arbitral tribunal, however, did consider them relevant to the resolution of other jurisdictional issues. See Award, supra note 15, paras. 60–62; see also infra note 74 and corresponding text.

17 See Award, supra note 15, para. 55.

18 See id., para. 53.

19 Convention for the Conservation of Southern Bluefin Tuna, May 10, 1993,1819 UNTS 360.

20 Id., Article 16 provides:

  • 1.

    1. If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.

  • 2.

    2. Any dispute of this character not so resolved shall, with the consent in each case of all parties to the dispute, be referred for settlement to the International Court of Justice or to arbitration; but failure to reach agreement on reference to the International Court of Justice or to arbitration shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above.

  • 3.

    3. In cases where the dispute is referred to arbitration, the arbitral tribunal shall be constituted as provided in the Annex to this Convention. The Annex forms an integral part of this Convention.

21 Award, supra note 15, para. 29.

22 Id., para. 62.

23 Voting in favor were Stephen Schwebel (president), Florentino Feliciano, Per Tresselt, and Chusei Yamada. Sir Kenneth Keith dissented.

24 Southern Bluefin Tuna (NZ v. Japan; Austl. v. Japan), Provisional Measures (Aug. 27, 1999), 38 ILM 1624 (1999). ITLOS decisions and other documentation on the Tribunal are available online at <http://www.un.org/Depts/los/index.htm>. Australia and New Zealand appointed Ivan Shearer as judge ad hoc to sit with the twenty one elected judges, including judge Soji Yamamoto of Japan. This was the first case in which the ITLOS was called upon to prescribe provisional measures pending the constitution of an arbitral tribunal under Article 290(5) of the LOS Convention. See Kwiatkowska, Barbara, Case Report: Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), 94 AJIL 150 (2000).CrossRefGoogle Scholar

25 For the prescription of provisional measures, Article 290 of the LOS Convention requires that there be a finding by the tribunal that prima facie it “has” jurisdiction to adjudicate the merits or, under paragraph 5, that an arbitral tribunal “would have” such jurisdiction. The ITLOS applied here, and in its earlier provisional measures decision in the Saiga case, M/V “Saiga,” Provisional Measures (Mar. 11,1998), 37 ILM 1202 (1998), the standard for jurisdiction with respect to provisional measures first articulated by the ICJ in the first Fisheries Jurisdiction cases; namely, that there is a basis upon which jurisdiction on the merits might be founded. Fisheries Jurisdiction (UK v. Ice.; FRG v. Ice.), Interim Protection, 1972 ICJ Rep. 12, 15–16 ( Aug. 17). “Whether ‘might’ means ‘possibly might’ or ‘might well’ or ‘might probably’ is a question of some controversy.” Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Provisional Measures, 1984 ICJ Rep. 169, 207 (May 10) (diss. op. Schwebel, J.) [hereinafter Nicaragua].

In ICJ cases, the Court inquires whether an instrument exists apart from its Statute and the UN Charter upon which its jurisdiction might be founded. Because Article 286 of the LOS Convention establishes compulsory jurisdiction over any dispute concerning the interpretation or application of the Convention not otherwise excluded, depending on how one understands the “might” standard, there may always be a basis upon which jurisdiction “might” be founded under the Convention unless, pursuant to the companion standard indicated in the Fisheries Jurisdiction cases, “the absence of jurisdiction on the merits is manifest” by virtue of the exclusions in the Convention. Thus, by applying the standards articulated in Fisheries Jurisdiction to provisional measures cases under the LOS Convention, a tribunal could well be limiting itself to only the latter test. One may question whether that alone constitutes an appropriate application of Article 290. On its face, Article 290 appears to require an affirmative finding that prima facie there is jurisdiction, not merely a finding that the absence of jurisdiction is not manifest.

Since the jurisdictional standard at the provisional measures stage is not the same as the standard on the merits, and since the LOS Tribunal has consistently applied the ICJ’s articulation of the jurisdictional standard for provisional measures, it is curious that Judge Guillaume chose to cite the difference in result reached by the two S57” tribunals on jurisdiction as an illustration of his concerns regarding proliferation of tribunals. See Guillaume, supra note 14. Moreover, he makes no reference to the elaborate reliance on ICJ precedent in ITLOS opinions. There were some fifty citations to ICJ and PCIJ opinions in the first five decisions of the ITLOS.

26 “[I] t is of the essence of a request for interim measures of protection that it asks for a decision by the Court as a matter of urgency.” Pakistani Prisoners of War (Pak. v. India), Interim Protection, 1973 ICJ Rep. 328,330 (July 13). Article 290(5) of the LOS Convention expressly requires a finding that the urgency of the situation requires the Tribunal to prescribe provisional measures pending the constitution of an arbitral tribunal.

27 The need for urgency is reflected in the Statute of the ITLOS, which permits provisional measures to be prescribed by a chamber of summary procedure formed under Article 15(3)” [w]ith a view to the speedy dispatch of business” if a quorum is unavailable. LOS Convention, supra note 3, Annex VI, Arts. 15 (3), 25. It is also reflected in Article 90 of the Rules of the Tribunal, which, but for prompt-release proceedings, affords a request for provisional measures priority over all other proceedings before the Tribunal.

28 Sec Award, supra note 15, para. 37. Australia and New Zealand notified Japan on July 15,1999, of their intent to institute arbitral proceedings under the LOS Convention and to seek provisional measures from the ITLOS pending constitution of the arbitral tribunal. They filed the requests for provisional measures on July 30. Hearings were held from August 18 to 20 on all issues relevant to the question of provisional measures. The ITLOS rendered its decision on August 27, 1999.

The parties then had many months to prepare for the jurisdictional hearings before the arbitral tribunal. Japan filed its objections to jurisdiction and admissibility on February 11, 2000, and then had over a month to digest the reply of March 30 before the oral hearings devoted only to jurisdiction and admissibility, which lasted from May 7 through May 11. The award was rendered on August 4, 2000.

29 Article 290(1) of the LOS Convention states that the purpose of provisional measures is “to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.” Although it doubtless could be read into the classic purpose of preserving the rights of the parties, the express reference to environmental protection notably follows “or.” In die context of this Convention, it should be understood to include protection of the environmental interests of all states in preventing serious harm to the marine environment, not just the interests of the parties to the case.

30 A well-known example is Anglo-Iranian Oil Co. (UK v. Iran), Jurisdiction, 1952 ICJ Rep. 93 (July 22).

31 Paragraph 37 of the award refers to the difference in time available in the two proceedings and the different standard applicable to jurisdictional questions at the provisional measures stage.

32 The arbitral tribunal was presided over by a judge who, among other things, had devoted considerable attention to arbitration as both a scholar and an arbitrator and who had addressed numerous jurisdictional questions in that context and during a long and distinguished tenure on the ICJ culminating in his service as its president. Moreover, while many of the judges of the ITLOS had been active and prominent participants in the negotiation of the LOS Convention over many years, of the arbitrators only Per Tresselt had played such a role. Whether judges are at their best when dealing with issues to which they have devoted great attention in the past is a question not easily resolved. I first encountered the question as a law student when Professor Herbert Wechsler told our class that he and Professor Henry M. Hart, Jr., had informed Justice Frankfurter, then serving on the U.S. Supreme Court, that they proposed to dedicate their casebook, The Federal Courts and the Federal System (1953), “to Felix Frankfurter who first opened our minds to these problems,” a reference to the Justice’s prior scholarship and teachings. On the copy returned to the authors, at the end of the dedication Justice Frankfurter had penned in the words “and closed his own.”

33 Nicaragua, Provisional Measures, supra note 25, 1984 ICJ Rep. at 207 (diss. op. Schwebel, J.).

34 Quite apart from die contention that no presumption in favor of die respondent is evident in the subsequent jurisdictional decision of the Court in die Nicaragua case itself, it might be argued that no such presumption is apparent from die reasoning of the Court in other cases. See Nicaragua, supra note 25, Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Nov. 26); see also Oil Platforms (Iran v. U.S.), Preliminary Objections, 1996 ICJ Rep. 803 (Dec. 12); Fisheries Jurisdiction (Spain v. Can.), Jurisdiction (ICJ Dec. 4, 1998); Aerial Incident of 10 August 1999 (Pak. v. India), Jurisdiction (ICJ June 21, 2000), 39 ILM 1116 (2000); Peter H. F. Bekker, Case Report: Aerial Incident of 10 August 1999 (Pakistan v. India), 94 AJIL 707 (2000). ICJ decisions are available online at <http://www.icj-cij.org>. The absence of a presumption may even extend to whether there is a compromissory instrument at all. See Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, 1995 ICJ REP. 6 ( Feb. 15).

35 S.S. Lotus (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10, at 18–19.

36 That view remains widely accepted notwithstanding die continuing erosion of the immunity of states from die jurisdiction of die municipal courts of other states, which in some ways is a more intrusive development because of die absence of influence of the defendant over the composition and procedures of the tribunal as well as die municipal law that die tribunal ordinarily applies.

37 Bronstein & Constitutional Tribunal, Inter-Am. Ct. H.R. (ser. C), Nos. 54 & 55 (Sept. 24, 1999), at <http://corteidh-oea.nu.or.cr/ci/Jurisprudencia/Juris.htm>; see Karen, C. Sokol, Case Report: Ivcher Bronstein Be Constitutional Tribunal, 95 AJIL 178 (2001).Google Scholar

38 See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 31, 1155 UNTS 331.

39 For the United States, see Statement of Ambassador Stevenson, 69 Dep’t. ST. Bull. 412, 414 (1973)Google Scholar; Statement of Ambassador Learson (Apr. 6, 1976), 5 Third United Nations Conference on the Law of the Sea, Official Records 31, paras. 17, 18 Google Scholar [hereinafter OFF. REC.]. The basis for this position was summarized as follows:

The developing factual (as distinguished from legal) situation in the oceans is one in which every country increasingly believes that it has, in effect, the option of pronouncing and attempting to achieve relevant acquiescence in its interpretation of the law . . . . Given the current trends in the law of the sea, there is reason to believe the process might continue even if a treaty were widely ratified. In the broadest sense, the purpose of the law of the sea negotiations is to put an end to the direct relationship that such a system entails between the enjoyment of a right and the application of power. A system of compulsory, impartial, third-party adjudication is thus an essential element of the overall structure.

John, R. Stevenson & Bernard, H. Oxman, The Preparations for the Law of the Sea Conference, 68 AJIL 1, 31 (1974).Google Scholar (At the time, the authors were, respectively, special representative of the president for the law of the sea conference, and assistant legal adviser for ocean affairs of the Department of State. Copies of this article were circulated to foreign governments by the United States.)

For Australia, see Statement of Ambassador Harry (Apr. 5, 1976), 5 Off. Rec, supra, at 9, para. 12 (“[M]any provisions of the convention would be acceptable only if their interpretation and application were subject to expeditious, impartial and binding decisions.”). For Japan, see Statement of Ambassador Ogiso (July 15, 1974), 1 id. at 182, para. 54 (“Japan attached great importance to the establishment of a satisfactory procedure for compulsory settlement of any disputes which might arise out of the interpretation or application of the new convention.”); Statement of Mr. Fujisaki (Apr. 6,1976), 5 id. at 27, para. 54 (“Agreement on a compulsory dispute settlement procedure must be an essential element in an over-all solution of major issues in the current negotiations.”). For New Zealand, see Statement of Mr. Beeby (Apr. 5, 1976), 5 id. at 11, para. 30 (“[I]t would be essential to include, as an integral part of the convention, machinery for the compulsory third party settlement of disputes arising out of the interpretation or application of the convention If the Conference did not provide for such a system, i t . . . would have failed to establish a permanent and stable solution to the problems confronting it”).

40 Evidence of other early support for compulsory jurisdiction can be found in the statements made in plenary during the first full debate on dispute settlement. See 5 Off. Rec, supra note 39, at 8–9 (El Salvador), 10 (Singapore), 10-11 (USSR, implicitly), 13-14 (France, arbitration), 12-13 (Federal Republic of Germany), 14–15 (United Kingdom), 15–16 (Switzerland), 16-17 (Sri Lanka), 18-19 (Argentina), 19-20 (Chile), 20–21 (German Democratic Republic, implicitly), 21–22 (Belgium, Luxembourg, the Netherlands), 22–23 (Colombia), 23–24 (Spain), 24–25 (Italy), 25–26 (Portugal, Cyprus), 26–27 (Thailand, implicitly), 27–28 (Austria), 28-29 (Republic of Korea), 29 (Bulgaria, implicitly), 30 (Sweden), 32 (Yugoslavia), 32–33 (Poland, implicitly), 35 (Nigeria), 38–39 (Tunisia, Trinidad and Tobago), 41 (Bangladesh), 42–43 (Philippines, implicitly), 43–44 (Uruguay), 47–48 (Ireland, Iraq), 48–49 (Fiji), 49-51 (Canada), 51 (Greece, Senegal). A significant number of other delegations joined these in supporting compulsory jurisdiction beyond the limits of coastal state jurisdiction. “The Convention is unique among the major law-making treaties in establishing, as an integral part of its provisions, a comprehensive system for the settlement of disputes.... That such a result was attained represented a reversal of the trend then prevailing in international negotiations.” Eiriksson, Gudmundur, The International Tribunal for the Law of the Sea 11 (2000).Google Scholar

41 Award, supra note 15, para. 58.

42 Similar developments occurred in contemporaneous negotiations under the auspices of the International Maritime Organization. See International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Nov. 29, 1969, Art. 8, 26 UST 765, 970 UNTS 211; International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, Art. 10, 12 ILM 1319 (1973), 1313 UNTS 3. Regular consultations between the Soviet Union and the United States regarding the objectives of a possible third UN Conference on the Law of the Sea, led by the heads of the respective foreign ministry legal offices and including senior representatives of various ministries, had already begun when these instruments were negotiated.

43 Those familiar with the history of Soviet resistance to compulsory jurisdiction will appreciate the astonishment of many individuals present when a Soviet Foreign Ministry lawyer denounced, as a wholly inadequate formula that was more likely to perpetuate than settle disputes, a suggestion to deal with the matter in the LOS Convention by reaffirming Article 33 of the UN Charter. See Bernard, H. Oxman, From Cooperation to Conflict: the Soviet Union and the United States at the Third U.N. Conference on the Law of the Sea 13–14 (1985).Google Scholar

44 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, para. 40 (May 24); Nicaragua, Jurisdiction and Admissibility, supra note 25, paras. 93–98.

45 LOS Convention, supra note 3, Art. 298(1) (c).

46 Id., Art. 189. In cases excluded from compulsory arbitration or adjudication but subject to compulsory conciliation, there are analogous requirements that a conciliation commission defer to the discretionary rights of the coastal state regarding scientific research and fisheries management in areas subject to coastal state jurisdiction. See id., Art. 297, paras. 2(b), 3(c).

47 Id., Art. 188(2).

48 To some extent the LOS Convention anticipates this issue. Article 2(1) of Annex VII provides for a list of arbitrators to be drawn up and maintained by the UN Secretary-General. Each state party is entitled to nominate four arbitrators “experienced in maritime affairs.” Article 3(b)-(d) provides that arbitrators appointed by the parties shall be “preferably from the list.” Failing the requisite appointments by the parties, those appointments “shall be made from the list” by the president of the ITLOS. Governments have been slow to make their nominations to the list. In the SBT case, the parties to the dispute agreed on distinguished individuals who were not on the list.

49 The LOS Convention is by no means the only regulatory treaty to employ arbitration as a principal means of compulsory dispute settlement between states. In other areas—trade readily comes to mind—one does not seem to encounter many complaints about a lack of a sense of participation in the regulatory and dispute settlement regime under which arbitrators are appointed. Some environmentalists argue that the problem with trade arbitration is the reverse.

50 While the balance struck is substantially different, the LOS Convention employs the same two jurisdictional elements (plus a third, port state jurisdiction) to deal with what was a less widespread, but equally destabilizing, problem under the traditional regimes, namely, regulation of pollution from ships. Freedom of fishing was a consequence of Grotius’s conception of mare liberum; freedom of navigation was its raison d’être. Freedom of navigation is directly implicated by unilateral coastal state claims of control over pollution from ships, dramatized by the dispute over navigation through Arctic waters that engaged the highest levels of the Canadian and United States governments in connection with Canada’s unilateral claim of jurisdiction over foreign ships for pollution control purposes.

51 LOS Convention, supra note 3, Arts. 63(2), 64–67, 116–19.

52 Id., Art. 297(3) (a).

53 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Aug. 4, 1995, 34 ILM 1542 (1995) [hereinafter Straddling Stocks Agreement]. See infra note 145.

54 For relevant background, see Balton, David, Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, 27 Ocean Dev. & Int’l L. 125 (1996)CrossRefGoogle Scholar; Francisco, Orrego Vicuña, The Changing International Law of High Seas fisheries (1999).Google Scholar

55 See infra notes 145–53 and corresponding text.

56 In private law, the point of according legal effect to the avant-contrat is presumably to permit judicial intervention, not the reverse. See infra note 110.

57 See supra note 43.

58 As the arbitral tribunal noted, the dispute settlement provisions of the CSBT Convention are largely derived from those of the Antarctic Treaty, Dec. 1, 1959, Art. XI, 12 UST 794, 402 UNTS 71. Award, supra note 15, para. 58. The approach of the Antarctic Treaty was repeated in the Convention on the Conservation of Antarctic Living Marine Resources, May 20, 1980, Art. XXV, 33 UST 3476, 19 ILM 841 (1980).

59 In some states, the agreement, especially if approved by the parliament, might be viewed as authorizing the government to submit a dispute arising there under to arbitration or adjudication without specific parliamentary approval, thus facilitating resort to such procedures in states where parliamentary approval is ordinarily sought for legal or political reasons. That result would depend not only on the precise text of the agreement but on the constitution, laws, and traditions of the state concerned, as well as the political context in which the issue arises.

60 The term “covenant not to sue” is not used in the award. That, however, is largely its effect.

61 It is not necessarily the case that what is viewed as the same dispute for res judicata purposes should be regarded as die same dispute for jurisdictional or similar purposes. Whether a party should have options as to where to sue is a different question from whether a party should have the option to try again.

62 See Vienna Convention on the Law of Treaties, supra note 38, Art. 30 (3) (compatibility test for successive treaties relating to the same subject matter). Article 311(2) of the LOS Convention also employs the compatibility test.

63 Article 36(2) of the ICJ Statute refers to “legal disputes concerning . . . the interpretation of a treaty.”

64 Treaties that provide for express waiver of alternative remedies are presumably distinguishable. See North American Free Trade Agreement, Dec. 17,1992, Can.-Mex.-U.S., Art. 1121, 32 ILM 605 (1993); see also infra note 71.

65 Article 296 of the LOS Convention applies to any adjudication and arbitration under the Convention the rule that the “decision shall have no binding force except between the parties and in respect of that particular dispute.” The rule applies to a decision “rendered by a court or tribunal having jurisdiction under this section”; the reference to “jurisdiction” in this context presumably includes competence de la competence. The rule is derived from Article 59 of the ICJ Statute.

66 International tribunals are not composed exclusively of judges whose training in and understanding of law are rooted in common-law techniques of distinguishing holding from dictum and discerning the possibility of narrow holdings anchored to the particular facts of a case. Moreover, the absence of a rule of stare decisis can make a court less cautious about reading precedent broadly.

67 Award, supra note 15, para. 29.

68 The precise legal basis of the award is the conclusion that the parties agreed to exclude compulsory jurisdiction in the CSBT Convention. In that case the effect of the award arguably could be avoided if the applicant, or perhaps one of the applicants, were not party to such an agreement. This circumstance, however, might pose new difficulties. Where high seas fisheries conservation is concerned, all the interested states—both the coastal states and those whose vessels are engaged in the relevant fishery—are supposed to enter into cooperative arrangements with each other. That duty is even stronger under Article 8 of the Straddling Stocks Agreement. Thus, one might not often find a state interested enough to complain in court about overfishing that was not interested enough to participate in cooperative conservation efforts. Moreover, if the nonparty applicant were a directly interested fishing state, it would have a duty to cooperate directly with the states that were party to the relevant agreement. Under Article 8 of the Straddling Stocks Agreement, the duty would be either to join the organization or arrangement or to apply the conservation and management measures adopted pursuant thereto. See infra note 130. If such a state were the applicant, a tribunal might be compelled to confront deeper structural questions, namely, the underlying relationship between political negotiations and compulsory jurisdiction in giving effect to the high seas conservation and management norms of the LOS Convention and the Straddling Stocks Agreement.

69 Award, supra note 15, para. 29.

70 Article 116(a) of the LOS Convention provides, inter alia: “All States have the right for their nationals to engage in fishing on the high seas subject to: (a) their treaty obligations . . . . “ See also infra note 125. “ It seems likely that an empirical review would reveal that the first of the latter three characteristics is shared by a fair number of agreements, that the second does not necessarily follow in those agreements that mention arbitration but have the first characteristic, and that the third is unusual (especially in an article that begins by repeating the basic obligation of Article 33 of the UN Charter). In this connection one might consider the emphasis placed on the second and especially the third characteristics in paragraph 57 of the award (quoted below).

The tribunal observed, with respect to the third characteristic, that “this provision does not require the Parties to negotiate indefinitely while denying a Party the option of concluding, for purposes of both articles 281 (1) and 283, that no settlement has been reached.” Award, supra note 15, para. 55. The tribunal also noted that the “terms of article 16 of the 1993 [CSBT] Convention [quoted supra note 20] do not expressly and in so many words exclude the applicability of any procedure, including the procedures of section 2 of Part XV” of the LOS Convention. Id., para. 56. Paragraph 57 of the award continues (footnotes omitted):

Nevertheless, in the view of the Tribunal, the absence of an express exclusion of any procedure in Article 16 is not decisive. . . . The ordinary meaning of [the] terms of Article 16 makes it clear that the dispute is not referable to adjudication by the International Court of justice (or, for that matter, ITLOS), or to arbitration, “at the request of any party to the dispute” (in the words of UNCLOS Article 286). The consent in each case of all parties to the dispute is required. Moreover [t]he effect of th[e] express obligation to continue to seek resolution of the dispute by the listed means of Article 16(1) is not only to stress the consensual nature of any reference of a dispute to either judicial settlement or arbitration. That express obligation equally imports, in the Tribunal’s view, that the intent of Article 16 is to remove proceedings under that article from the reach of the compulsory procedures of section 2 of Part XV of UNCLOS, that is, to exclude the application to a specific dispute of any procedure of dispute resolution that is not accepted by all parties to the dispute. Article 16(3) reinforces that intent by specifying that, in cases where the dispute is referred to arbitration, the arbitral tribunal shall be constituted as provided for in an annex to the 1993 Convention, which is to say that arbitration contemplated by Article 16 is not compulsory arbitration under section 2 of Part XV of UNCLOS but rather autonomous and consensual arbitration provided for in that CCSBT annex.

72 Award, supra note 15, para. 28.

73 Id., para. 29.

74 The arbitral tribunal noted the problem posed by Article 297(3). In its words, “this is an important ‘but’ “qualifying compulsory jurisdiction under the LOS Convention. Id., para. 61. Australia and New Zealand had argued that this was not a problem in the instant case. Be that as it may, this problem is not negligible where the jurisdictional limitations of Article 297(3) are invoked either in the claim itself or in response to a counterclaim. There is an express duty to conserve highly migratory species both within the EEZ and on the high seas. If that duty is enforced only on the high seas, either its object may be frustrated or its implementation may transform a conservation principle into an allocational preference for coastal states that transcends the duty under Article 116 to conduct high seas fishing in a manner compatible with coastal state rights and interests in the EEZ.

Whether the solution is to decline to hear the case is a different matter. Where the applicant is not meeting its conservation duties in its own EEZ, it may confront the general principle that a party may not benefit from its own wrongdoing. But the critical conservation problems before a tribunal relate to the future. A variety of techniques are available to deal with those problems without dismissing the case. For example, a tribunal whose jurisdiction is restricted to high seas fishing may render a judgment or award that limits the respondent’s high seas fishing on the condition that the applicant respect certain limitations within its EEZ, and that permits the respondent to return to the tribunal if the condition is not being fulfilled. The ITLOS provisional measures order in the instant case imposed limitations on all the parties, even though the applicants’ fisheries for southern bluefin tuna are conducted in their respective EEZs. (The order does not discuss the jurisdictional issue this might pose, perhaps because the applicants did not invoke the jurisdictional limitations of Article 297(3).) The legal source of such authority at the provisional measures stage may be the duty of both parties not to aggravate or extend the dispute pendente lite and a tribunal’s express right under Article 290(1) of the LOS Convention to prescribe provisional measures “to prevent serious harm to the marine environment.” But surely it does not take extraordinary legal agility to find an adequate source of authority to frame a comparable, albeit conditional, remedy in a final judgment. Such a source might be found, for example, in the express conservation obligations of the coastal state and in the general principle articulated by Article 192 that states have an obligation to protect and preserve the marine environment. Moreover, even an arbitral tribunal may decide to permit a party to reopen the proceedings in the event of a dispute concerning the implementation of its award regarding allocation of fishing rights. See Award in the Second Stage of Proceedings (Maritime Delimitation) (Erit./Yemen) (Dec. 17, 1999), at <http://www.pca-cpa.org>; W. Michael Reisman, Case Report: Eritrea-Yemen Arbitration (Award, Phase II: Maritime Delimitation), 94 AJIL 721 (2000).

75 In cases before the ITLOS regarding the interpretation or application of the LOS Convention, all parties to the Convention are notified of the proceedings and have a right to intervene. LOS Convention, supra note 3, Annex VI, Art. 32. The ICJ might permit intervention under Article 62 of its Statute. Problems remain, however, if the third state is not party to the case. In the Libya/Malta case, the ICJ, having rejected Italy’s petition to intervene, limited its judgment to areas not claimed by Italy. Continental Shelf (Libya/Malta), Application to Intervene, 1984 ICJ Rep. 3 (Mar. 21), and Judgment, 1985 ICJ REP. 13 (June 3). In the East Timor case, the ICJ regarded the absence of Indonesia as crucial and rejected the application. East Timor (Port. v. Austi.), 1995 ICJ Rep. 90 (June 30).

76 Straddling Stocks Agreement, supra note 53.

77 “Both Canada and the United States have ratified the Agreement but have yet to become party to the LOS Convention. As of April 23, 2001, twenty-eight ratifications and accessions had been deposited of the required thirty. Italy and Luxembourg have indicated to the UN Secretary-General that their ratifications may not be effective pending the simultaneous deposit of instruments of ratification by all member states of the European Union. Status of the United Nations Convention on the Law of the Sea and Related Agreements as at 23 April 2001, at <http://www.un.org/Depts/los/status2001.pdf> (visited Apr. 23, 2001).

78 Award, supra note 15, para. 71. Article 30 of the Straddling Stocks Agreement, supra note 53, provides, in part:

  • 1.

    1. The provisions relating to the settlement of disputes set out in Part XV of the [LOS] Convention apply mutatis mutandis to any dispute between States Parties to this Agreement concerning the interpretation or application of this Agreement, whether or not they are also Parties to the Convention.

  • 2.

    2. The provisions relating to the settlement of disputes set out in Part XV of the [LOS] Convention apply mutatis mutandis to any dispute between States Parties to this Agreement concerning the interpretation or application of a subregional, regional or global Fisheries agreement relating to straddling fish stocks or highly migratory fish stocks to which tliey are parties, including any dispute concerning the conservation and management of such stocks, whether or not they are also Parties to the Convention.

79 Assuming arguendo that we do not limit the ratio decidendi of the award to the specific or most unusual characteristics of the dispute settlement provisions of the CSBT Convention.

80 Nicaragua, supra note 25, Jurisdiction and Admissibility, at 558, 613–16, paras. 85–90 (diss. op. Schwebel, J.).

81 As the Court subsequently did in its decision on the merits.

82 Nicaragua, supra note 25, Jurisdiction and Admissibility, at 614, para. 87 (diss. op. Schwebel, J.).

83 Id., para. 88.

84 See LOS Convention, supra note 3, Arts. 64(1), 118.

85 Id., Art. 293 (1).

86 See supra text at note 84.

87 LOS Convention, supra note 3, Art. 116.

88 Such a harmonizing interpretation accompanied submission of the LOS Convention to the U.S. Senate. See infra note 125.

89 Vienna Convention on the Law of Treaties, supra note 38, Art. 41; LOS Convention, supra note 3, Art. 311.

90 North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ REP. 3, para. 63 (Feb. 20).

91 Sec Award, supra note 15, para. 62.

92 Many coastal states attached importance both to including high seas fishing within compulsory jurisdiction and to excluding fishing in the EEZ from compulsory jurisdiction. It is not apparent why either position should be regarded as weakening the other. It is particularly unclear why the latter should be regarded as weakening the former, because distant-water fishing states also gained the ability to contest unlawful coastal state interference with freedom of fishing on the high seas.

93 See supra note 58. An analysis of the negotiating history of the Antarctic Treaty might reveal that the principal reason for the absence of compulsory jurisdiction in the Treaty does not relate to the positions of any of the parties to the dispute. See, e.g., supra note 43 (regarding the USSR’s regular opposition to the inclusion of compulsory jurisdiction clauses in major multilateral treaties). Is uncertainty as to whether the same result might have been reached even absent Soviet opposition a sufficient reason to impose the effect of such opposition on the compromissory clauses of other treaties?

94 The Antarctic Treaty specifically refers to the ICJ. Unlike the LOS Convention in the instant case, the UN Charter may not in itself constitute a separate source of obligation with respect to the particular issues. As in the Nicaragua case, it might make no sense to render a judgment under customary law that conflicts with the obligations of the parties under the Antarctic Treaty. For these reasons, one might conclude that the case for reaching the same result with respect to the optional clause as was reached in the award is stronger.

95 Award, supra note 15, para. 39(c).

96 While Japan’s declaration under the optional clause excludes disputes “which the parties thereto have agreed or shall agree to refer for final and binding decision to arbitration or judicial settlement,” the declarations of Australia and New Zealand exclude disputes “in regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement.” The latter declarations would seem to raise analogous issues regarding the effect of both the CSBT Convention and the LOS Convention, with the addition of an intriguing problem of possible mutual renvoi between the declarations and Article 281 of the LOS Convention. Declarations Recognizing as Compulsory the Jurisdiction of the Court, at <http://www.icj-cij.org/icjwww/ibasicdocuments.htm>.

97 Cesare Romano raises this issue in a forthcoming article, where he discerns a certain tension between the reasoning of the SBT award and that of the PCIJ in concluding that a subsequent treaty between the parties for submission of disputes to the Court did not supersede or qualify the Court’s jurisdiction under the optional clause pursuant to prior declarations of the parties. See Electricity Co. of Sofia and Bulgaria, Judgment, 1939 PCIJ (ser. A/B) No. 77, at 62. Finding such jurisdiction, the Court concluded that there was “no justification for holding that ... [the parties] intended to weaken the obligations which they had previously entered into with a similar purpose, and especially where such obligations were more extensive than those ensuing from the Treaty.” Id. at 76. It reached this conclusion notwithstanding the fact that the treaty was concluded later in time, that it contained a comprehensive reference to disputes mentioned in Article 36 of the Court’s Statute, that it included specific preconditions regarding litigation in municipal courts that the Court determined were not satisfied, and that Belgium’s optional clause declaration contained an exception “in cases where the Parties have agreed or shall agree to have recourse to another method of pacific settlement.” Id. at 74–76, 78–81. It should be noted, however, that the respondent, although it contested jurisdiction, specifically stated that the treaty “in no way suspended the operation of the optional clause” and that the treaty’s provisions “simply reinforce and do not set aside the obligation resulting from the optional clause.” Id. at 75–76. The Court emphasized that the parties were in agreement in this regard. Id.

Although the matter is not addressed, the painstaking effort to discern intent to supersede in the SBT award is in some ways reminiscent of Judge Hudson’s dissent in the Electricity Co. case. See id. at 118 (diss. op. Hudson, J.).

98 The annexes to the memorials are not available on the ICSID Web site. I wish to express my appreciation to counsel for Japan for supplying a copy.

99 Award, supra note 15, para. 63.

100 The applicants put the point more forcefully: they argued that if Japan is right, the provisions of the Convention for mandatory dispute settlement are “a paper umbrella which dissolves in the rain.” Id., para. 41 (k).

101 LOS Convention, supra note 3, Arts. 21(4), 39, 54, 58(2), 60(5), 94(5), 208(3), 209(2), 210(6), 211(2); see also id., Arts. 60(3), 61 (3), 119(1) (a), 207(1), 212(1) (obligation to take into account international standards). The environmental provisions of the Convention do not apply to warships and other ships and aircraft entitled to sovereign immunity. Id., Art. 236.

102 Under Article 297(1) (c), even the coastal state’s duty, for example with respect to dumping, is subject to compulsory jurisdiction for violation of “specified international rules and standards for the protection and preservation of the marine environment.”

103 See LOS Convention, supra note 3, Arts. 43, 192, 194(1), 197, 199, 200, 201, 204, 207(4), 208(5), 210(4), 211(1), 212(3).

104 For example, Article 210(6) of the LOS Convention requires states to respect global rules and standards regarding dumping. These are to be found in the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972, 26 UST 2403, 1046 UNTS 120. Article X of the Convention requires the parties “to develop procedures for the assessment of liability and the settlement of disputes regarding dumping.” The 1996 Protocol to the Dumping Convention establishing compulsory jurisdiction is gaining significant adherence but is not yet widely ratified. In considering the effect of the award, one could regard the compulsory jurisdiction provisions of the LOS Convention as themselves constituting partial execution of the obligation in Article X of the Dumping Convention.

105 LOS Convention, supra note 3, Arts. 42(1) (b), 54, 211(5), 221(3)-(6), 233. The regulatory powers of the coastal state with respect to innocent passage in the territorial sea are broader, but even here the coastal state must conform to generally accepted international standards in prescribing standards for construction, manning, equipment, and design. Id., Art. 21(2).

106 Id., Art. 297(1) (a). The right under Article 298(1) (b) to exclude compulsory jurisdiction over law enforcement activities of the coastal state relates only to its regulation of fisheries and scientific research, not to its enforcement with respect to pollution from ships.

107 Article 290 (5) applies pending the constitution of an arbitral tribunal “under this section,” namely section 2. Arbitration under another instrument would not arise under section 2 (unless the other instrument incorporated section 2). Article 282, which contains the relevant choice-of-forum provision, itself appears in section 1, not section 2.

108 This is illustrated by the substantial attention devoted to provisional measures in the Straddling Stocks Agreement. See infra note 145.

109 Award, supra note 15, paras. 67-69.

110 Needless to say, analogies to private international law or municipal law must be approached with circumspection. Whether they provide a useful aspirational benchmark is nevertheless a relevant question.

To take but one example, there is a general assumption in private international law that some judicial or arbitral tribunal has, or ought to have, compulsory jurisdiction over a legal claim. That assumption may affect decisions regarding jurisdiction. See, e.g., U.S. Fed. R. Crv. P. 4(k) (2). The U.S. Supreme Court has left open the question of whether the same limitations on personal jurisdiction imposed by the constitutional requirement of due process apply “when no other forum is available to the plaintiff.” Shaffer v. Heitner, 433 U.S. 186, 211 n. 37 (1977). Similar perspectives may also have influenced the Court to confirm broad (some might say “exorbitant”) bases of general jurisdiction in principle. See Burnham v. Super. Ct. of Cal., 495 U.S. 604 (1990).

That assumption may have other consequences in municipal law. The absence or exclusion of compulsory jurisdiction is not ordinarily regarded as relevant to the intent of states to conclude a legally binding agreement under public international law. However, a municipal court faced with a comprehensive covenant not to sue, applicable to all provisions of a private agreement containing the covenant, might conclude that the express exclusion of all judicial, arbitral, or equivalent third-party remedies for breach is inconsistent with the intent to create a legally binding contract under private law. Accordingly, it might declare the entire agreement void or unenforceable. Alternatively, and of potentially more interest to students of international law, it might construe the covenant not to sue narrowly, or decide that the covenant is unenforceable in whole or in part, or conclude that the covenant is irrelevant because the “same dispute” arises under another agreement that is subject to compulsory jurisdiction.

111 LOS Convention, supra note 3, Art. 39(3) (a).

112 For an analysis of the relationship between the Conventions, see Milde, Michael, The United Nations Convention on the Law of the Sea—Possible Implications for International Air Law, 8 Annals Air & Space L. 167 (1983)Google Scholar; Bernard, H. Oxman, Overflight Under the 1982 UN Convention on the Law of the Sea: Transit of Straits and Archipelagic Waters by Military Aircraft, Proc. 3D Int’l L. Seminar, Pub. Int’l Air L. 39 (Singapore 1999)Google Scholar, and 4 Singapore J. Int’l & Comp.’L. (2000).Google Scholar

119 While states have the option to file declarations excluding military activities from compulsory jurisdiction under Article 298 of the LOS Convention, many have not done so.

114 Convention on International Civil Aviation, Dec. 7, 1944, Arts. 3, 84-88, 61 Stat. 1180, 15 UNTS 295.

115 See, e.g., LOS Convention, supra note 3, Art. 19(2) (a) (innocent passage); Arts. 39(1) (b) & 54 (transit passage of straits and archipelagic sea lanes passage); Arts. 88, 141, 143(1), 147(2)(d), 155(2), 240(a), 242(1), 246(3) (peaceful purposes).

116 Article 301 of the LOS Convention provides:

In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.

117 It can be argued, of course, that the purpose of the ICJ Statute transcends the UN Charter, and is designed to embrace all or most disputes under other treaties and customary law. In this connection one may note that Article 288(2) of the LOS Convention provides: “A court or tribunal referred to in article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement.”

In the case of the ITLOS, this expressly includes entities other than states parties. LOS Convention, supra note 3, Annex VI, Art. 20(2). In addition, echoing Article 36(1) of the ICJ Statute, Article 21 of Annex VI provides: “The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with this Convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.”

118 I am in no sense an expert on Japan. But for many years I have been privileged to observe, with great respect, the development and articulation of Japanese foreign policy, especially with regard to the law of the sea.

119 “[C]’est l’ avenir meme du régime général de la mer qui est en cause dans cette affaire.” Weckel & Helali, supra note 15, at 1038.

120 See supra note 39.

121 Award, supra note 15, para. 63.

122 The problem was addressed by the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, June 16, 1994, S. Treaty Doc. No. 103-27 (1994), 34 ILM 67 (1995), which is in force for China, Japan, South Korea, and the two coastal states. The preamble to the Convention refers to the adoption of the LOS Convention, and Article XIII provides for consultation regarding settlement of disputes.

123 This approach may have been a strategic error by Japan and the European Commission related to the fact that narrow interests dominated their delegations at the time. Had they insisted that, at least after an interim period, only parties to the LOS Convention could be party to the Straddling Stocks Agreement, both Canada and the United States might already be party to both treaties. It remains possible, of course, that formal acceptance of the Straddling Stocks Agreement by the European Union and Japan could be coordinated with formal acceptance of the LOS Convention by Canada and the United States.

124 See Message from the President, supra note 4.

125 The commentary accompanying the president’s message states:

Fishing beyond the EEZ is subject to compulsory, binding arbitration or adjudication. This will give the United States an additional means by which to enforce compliance with the Convention’s rules relating to the conservation and management of living marine resources and measures required by those rules, including, for example, the prohibition in article 66 on high seas salmon fishing, the application of articles 63(2) and 116 in the Central Bering Sea in light of the new Pollock Convention, and the application of articles 66, 116 and 192 in light of the United Nations General Assembly Resolutions creating a moratorium on large-scale high seas driftnet fishing.

Id. at 51 (emphasis added).

126 The Bering Sea Pollock Convention, supra note 122.

127 The U.S. view is reflected in Article 30(5) of the Straddling Stocks Agreement, quoted in note 145 infra, and of course extended in the direct application of the compulsory dispute settlement provisions of the LOS Convention to subregional, regional, or global fisheries agreements relating to straddling fish stocks or highly migratory fish stocks. See supra note 78.

128 Since they were signatories, a question is nevertheless posed regarding the impact of Article 18 of the Vienna Convention on the Law of Treaties, supra note 38.

129 See supra note 78.

130 See supra note 78 and infra note 145. The effect of paragraphs 3 and 4 of Article 8 of the Straddling Stocks Agreement is that

[w]here a subregional or regional fisheries management organization or arrangement has the competence to establish conservation and management measures for particular straddling fish stocks or highly migratory fish stocks ...

… [o]nly those States which are members of such an organization or participants in such an arrangement, or which agree to apply the conservation and management measures established by such organization or arrangement, shall have access to the fishery resources to which those measures apply.

It would be extraordinary to conclude that this means the Straddling Stocks Agreement requires states (on pain of being bound by the decisions anyway) to join an organization or arrangement that excludes compulsory jurisdiction in derogation of the Straddling Stocks Agreement itself.

131 See Vienna Convention on the Law of Treaties, supra note 38, Art. 31 (3) (a). Article 30(2) of the Straddling Stocks Agreement refers to “agreement[s] relating to straddling fish stocks or highly migratory fish stocks,” and not merely to those that implement the Straddling Stocks Agreement. It thus would appear to apply in principle to both existing and future agreements.

132 Careful consideration of the dispute settlement provisions of a particular prior agreement might also reveal the possibility for harmonizing them with the introduction of compulsory jurisdiction under the Straddling Stocks Agreement. For example, with specific reference to the CSBT Convention, ratification of the Straddling Stocks Agreement could itself be regarded as an execution of the obligation of the parties to continue to seek means to resolve their disputes under Article 16 of the CSBT Convention, quoted supra note 20. A similar result could be reached under dispute settlement provisions of existing agreements calling for consultation. See supra note 122.

133 See supra note 130.

134 The new Western and Central Pacific Agreement regarding highly migratory stocks expressly incorporates the dispute settlement provisions of the Straddling Stocks Agreement. See discussion infra at notes 140, 142.

135 Immediately before the dispositif, the award states:

Finally, the Tribunal observes that, when it comes into force, the [Straddling Stocks Agreement] . . . should, for States Parties to it, not only go far towards resolving procedural problems that have come before this Tribunal but, if the Convention is faithfully and effectively implemented, ameliorate the substantive problems that have divided the Parties. The substantive provisions of the Straddling Stocks Agreement are more detailed and far-reaching than the pertinent provisions of UNCLOS or even of the CCSBT.

The tribunal then paraphrases the dispute settlement provisions (quoted supra note 78) applying Part XV of the LOS Convention to both the Straddling Stocks Agreement and other agreements relating to straddling fish stocks and highly migratory fish stocks. Award, supra note 15, para. 71.

The award does not advert to the potential problem posed by the 1993 FAO compliance agreement. That agreement was designed to strengthen enforcement of the high seas conservation obligations arising under the LOS Convention by elaborating on flag state duties and restricting the reflagging of noncomplying fishing vessels. Like the Straddling Stocks Agreement, its conclusion was called for by Agenda 21 of the 1992 UNCED. Unlike the Straddling Stocks Agreement, it does not provide for compulsory jurisdiction; its dispute settlement clauses (Article IX) closely resemble those of Article 16 of the CSBT Convention. Does the SBT award mean that a general agreement designed to strengthen enforcement of the conservation regime of the LOS Convention in fact weakens enforcement of that regime because it contains an implied covenant not to sue under the LOS Convention? See Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Nov. 23, 1993, in Food and Agriculture organization and Division of Ocean Affairs and the Law of The Sea, United Nations, International Fisheries Instruments with Index 41, UN Sales No. E.98.V.11 (1998).

136 Spain was not successful in attempting to persuade the ICJ to exclude arrest of a fishing vessel on the high seas from Canada’s reservation to compulsory jurisdiction regarding “disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area, as defined in the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures.” Fisheries Jurisdiction (Spain v. Can.), Jurisdiction, 1998 ICJ REP. 432 (Dec. 4).

137 The substantive and enforcement provisions of the Straddling Stocks Agreement may increase the importance of this question. This is an additional reason for concluding that the award is generally not applicable to fisheries agreements regarding straddling stocks and highly migratory stocks concluded by parties to the Straddling Stocks Agreement. See supra notes 129-35 and corresponding text.

138 Award, supra note 15, paras. 67–70. The possible implication is that the duty not to aggravate or extend a dispute, typically invoked in provisional measures orders, is relevant, at least in some circumstances, even when the dispute is not pending before a tribunal.

139 The chairman, Ambassador Satya N. Nandan, was rapporteur of the Second Committee throughout the Third UN Conference on the Law of the Sea and chaired important informal negotiations at the conference. He subsequently headed the UN law of the sea office, chaired the negotiations for both the Agreement Implementing Part XI of the LOS Convention and the Straddling Stocks Agreement, and is currently secretary-general of the International Seabed Authority.

140 “The result of the vote was 19 in favour, 2 against (Japan and Republic of Korea), with three abstentions (China, France and Tonga).” Multilateral High-Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, Final Act n.7 (Sept. 5, 2000) (on file with author), at <http://www.oceanlaw.net/texts/index.htm> (note 7 is not included in the Web version). The Japanese representative did not sign the final act. Political concerns regarding the provisions dealing with the participation of Taiwan and French overseas territories, respectively, may have prompted the abstentions of China and France.

141 This may not be the kind of effect the arbitral tribunal expected. See text at notes 138 supra and 149 infra.

142 See supra note 78. There is an exception in Annex I, paragraph 3 of the new convention on the western and central Pacific, supra note 140: disputes with a “fishing entity” (a reference to Taiwan) “shall, at the request of either party to the dispute, be submitted to final and binding arbitration in accordance with the relevant rules of the Permanent Court of Arbitration.”

143 See supra notes 129-35 and corresponding text. Still, cases have a way of surviving treaties that alter their precise holdings. The mystique of Lotus persists notwithstanding the reversal suffered by its holding in Article 11 of the 1958 Convention on the High Seas (repeated in Article 97 of the LOS Convention).

144 See supra note 135.

145 The term is mine. The argument in support of such a role for arbitrators and adjudicators is substantially strengthened by the dispute settlement provisions (Arts. 27-32) of the Straddling Stocks Agreement, supra note 53. Articles 7(5), 16(2), and 31 (2) regarding provisional measures contemplate the need “to prevent damage to the stocks in question.” Article 30, paragraph 5 provides:

Any court or tribunal to which a dispute has been submitted under this Part shall apply die relevant provisions of the [LOS] Convention, of this Agreement and of any relevant subregional, regional or global fisheries agreement, as well as generally accepted standards for the conservation and management of living marine resources and other rules of international law not incompatible with the Convention, with a view to ensuring the conservation of the straddling fish stocks and highly migratory fish stocks concerned.

146 This conclusion appears to be the import of the observation regarding Article 300 of the LOS Convention concerning good faith and abuse of rights:

The Tribunal does not exclude the possibility that there might be instances in which the conduct of a State Party to UNCLOS and to a fisheries treaty implementing it would be so egregious, and risk consequences of such gravity, that a Tribunal might find that the obligations of UNCLOS provide a basis for jurisdiction, having particular regard to the provisions of Article 300 of UNCLOS. While Australia and New Zealand in the proceedings before ITLOS invoked Article 300, in the proceedings before this Tribunal they made clear that they do not hold Japan to any independent breach of an obligation to act in good faith.

Award, supra note 15, para. 64.

147 See supra note 26.

148 The possibility of provisional measures is adverted to at several points in the Straddling Stocks Agreement, suggesting perhaps a greater expectation of intervention. See supra note 145.

149 See Award, supra note 15, paras. 67–70.

150 See supra note 146.

151 Id.

152 See supra note 29.

153 The analogy in municipal law might be public interest or ordre public. Because the underlying substantive objectives are stated in the Convention, and the article on provisional measures makes clear that judges and arbitrators are expected to implement them, I do not believe it necessary to reach further for a general theory of public-interest norms in international law to justify such an approach.

154 In considering this issue in the context of regional integration, we must be cautious not to confuse the region with the world. Not only empires, but federal or otherwise decentralized entities of continental proportions are hardly unknown to the state system. The relationship between continental entities imagined in George Orwell’s 1984 was decidedly Westphalian in the worst sense.