Helga Law Journal - 01.01.2021, Síða 91

Helga Law Journal Vol. 1, 2021
92
Helga Guðmundsdóttir
93
the dispute may be submitted by any party to the proper court or tribunal, which
will deliver a judgment binding on the parties. However, it became evident that
despite the international community’s rising use of adjudication on the
international level at the time of the Convention’s drafting, the coastal States were
not ready to entrust these bodies with jurisdiction to adjudicate disputes
concerning their sovereign rights to manage and exploit the living resources within
their newly recognized EEZs.54 In light of this, Section 3 of Part XV, entitled
‘Limitations and Exceptions to the Applicability of Section 2’ excludes certain
subject-matter from the scope of the compulsory dispute settlement procedures,
including fisheries and research and development within the EEZ. Some of the
excluded subject-matter was however brought back under the Convention’s
dispute settlement framework through a procedure referred to as compulsory
conciliation.
4.2 Compulsory Conciliation
An important limitation and exception to the dispute settlement procedures of
compulsory adjudication is the exclusion from such procedures of disputes with
respect to the exercise by the coastal State of its sovereign rights within its EEZ
in article 297(3)(a). The article provides that a dispute on the management,
conservation or exploitation of the living resources within the EEZ can only be
submitted to an adjudicatory body when the parties have consented to such a
procedure with recourse to Section 1.55
If the parties to a fisheries dispute therefore fail to settle the dispute by the
peaceful means listed in Section 1, such as negotiation, there is no direct basis for
one party to seize a court or tribunal of the matter by recourse to Section 2.
However, some of the issues excluded from the compulsory procedures of Section
2 were brought back into the dispute settlement framework through the inclusion
of conciliation as a means to settle certain disputes. Seeing a need to provide
safeguards in cases of a failure to conserve and manage the living resources in a
coastal State’s EEZ, the drafters of the Convention included a provision to this
end in Section 3, article 297(3)(b)(i). The provision provides that proceedings for
compulsory conciliation may be initiated when any party to a fisheries dispute
alleges that another has manifestly failed to comply with its obligations to conserve
and manage the living resources in its EEZ and settlement has failed with recourse
to Section 1. The provision was part of an effort to bring all disputes under the
dispute settlement framework of the Convention. It only began to materialize at

54 Martti Koskenniemi, ‘The Ideology of International Adjudication’, speech delivered in The Hague,
7 September 2007; Cesare Romano, Karen Alter and Yuval Shany (eds), ‘Mapping International
Adjudicatory Bodies, the Issues and Players’, Oxford Handbook of International Adjudication (Oxford
University Press 2013).
55 The focus of this paper is, as previously noted, on the stock’s transboundary nature and the resulting
unilateral actions within the coastal States’ EEZs based on their sovereign right of exploitation.
Notably, however, the management of a straddling stock on the high seas may fall under the
compulsory jurisdiction of the relevant court or tribunal.

Image portraying ICES advice and actual catches of mackerel from 2001-201751

4 Settlement of Fisheries Disputes
Act 3: The tragedy is reaching its climax – but a resolution to resolve the conflict is suddenly
introduced, offering the protagonists the chance to put their self-interests aside and to become the
heroes of this story.
4.1 Dispute Settlement under the Convention
The provisions on dispute settlement are contained in Part XV of the Convention.
This part is divided into three sections. Section 1 contains the general provisions
calling for disputing parties to settle disputes by peaceful means. This Section’s
first article, article 279, declares that the States Parties shall seek to settle disputes
peacefully by the means listed in article 33(1) of the United Nations Charter, i.e.,
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort
to regional agencies or arrangements, or other peaceful means, provided the parties
consent to the procedure.52 In this regard the parties to the mackerel dispute have
chosen the means of negotiation in order to reach a settlement of the dispute.
However, Section 2 of Part XV, entitled ‘Compulsory Procedures Entailing
Binding Decisions’, has been considered to be the ‘essence’ of the landmark
dispute settlement framework devised by the drafters of the Convention.53 Its
provisions provide that, upon a failure to settle a dispute by recourse to Section 1,

51 ‘Iceland: Selected Issues’ (2018) IMF Country Report No. 18/319
<www.imf.org/en/Publications/Publications-By-Subject?subject=Fisheries> accessed 23 October
2021.
52 United Nations, Charter of the United Nations (adopted 24 October 1945, entered into force 24
October 1945), Article 33(1).
53 Churchill and Lowe (n 16) 454.