Helga Law Journal - 01.01.2021, Page 95

Helga Law Journal Vol. 1, 2021
96
Helga Guðmundsdóttir
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4.3 Recourse to Conciliation in the Mackerel Dispute
While compulsory conciliation does not appear to be on coastal States’ radars, it
could (and perhaps should) become an indispensable tool for resolving future
fisheries disputes. Any of the parties to the mackerel dispute could lead the way by
submitting the over one-decade-long dispute to the procedure.
The first criterion that needs to be fulfilled for a dispute to be submitted to
compulsory conciliation is that the dispute relates to the exercise of a coastal State’s
sovereign rights within its EEZ. This criterion is clearly fulfilled in the mackerel
dispute which concerns the coastal States’ conservation, management and
exploitation of the mackerel stock within their respective EEZs.
Article 297 of the Convention furthermore requires the parties to have
previously attempted to settle the dispute by recourse to Part XV, Section 1. This
criterion is fulfilled seeing as the parties have continuously attempted (but failed)
to settle the dispute through negotiation. There has, moreover, been a consistent
failure to include all relevant parties in the Section 1 dispute settlement attempts,
further demonstrating that resorting to Section 1 dispute settlement has failed.
A third and important criterion requires (an allegation of) a coastal State’s
manifest failure to comply with its obligations to ensure that the maintenance of
the living resources within its EEZ is not endangered. As regards this third
criterion, it can be argued that the combined actions of the disputing parties over
the course of the past decade have resulted in a manifest failure to ensure the non-
endangerment of the living resources within each of their respective EEZs. Seeing
as all parties are under the obligation to ensure that the stock is not over-exploited
in their own EEZs, they must all ensure that their unilateral quotas do not
endanger the stock. This is impossible to do without taking account of each other’s
interests. All in all, it is evident that the parties have not been able to guarantee, or
in the words of the Convention, to ensure, that the stock is not overexploited. The
parties have arguably all contributed to the fisheries far exceeding the ICES
recommended TAC and, as a result, it can be argued that the parties continue to
collectively endanger the stock and that their over one-decade-long failure to
ensure the non-endangerment of the mackerel stock has been manifest. As a result,
the third criterion for invoking the compulsory conciliation procedure is likely also
fulfilled in respect to any of the parties.
In order to put an end to this race to the bottom and to come up with a
durable agreement to ensure the long-term sustainability of the stock, any of the
parties can (and one of them should) invoke the compulsory conciliation
procedure. The benefits are manifold. Although the Commission’s report is not
binding on the parties, it does carry weight seeing as it is distributed to the Member
States of the United Nations, pressuring the parties to the dispute to follow the
recommendations therein.80 The procedure is furthermore an institutionalized
procedure with a quasi-judicial element which is not as diplomatic or political as

80 The Convention, article 297(3)(d).
between the disputing parties, which would then be included in the Commission’s
report. Failing an agreement the Commission delivers a report containing its
conclusions on all questions of fact or law relevant to the disputed matter along
with any recommendations the Commission anticipates may solve the dispute.
Thus, the report plays a crucial role in the procedure and the provisions in Annex
V on what is to be included in the Commission’s report are more detailed than
those laid out in earlier treaties with regard to conciliation.73 During the course of
the Convention’s drafting it was suggested that not only would the conclusions be
included, but also the reason for said conclusions. This was not accepted and the
provision therefore only requires the Conciliation Commission to report its
conclusions.74 The parties may however agree to have the Commission include
such reasoning in light of article 10, which determines that the parties can agree to
modify the provisions of the Annex to be solely applicable to the specific dispute
in question.75 The report is then deposited with the UNSG who transmits it to the
disputing parties as well as to the appropriate international organizations.76 In
accordance with article 7(2) neither the conclusions nor recommendations of the
Commission’s report are binding on the parties. The transmittal of the report to
international organizations, such as the United Nations and its Member States,
may however put pressure on the parties to abide by the recommendations.
The proceedings are finally terminated when one of four scenarios occur: (i)
a settlement is reached; (ii) the parties accept the report’s recommendations by
written notification addressed to the UNSG; (iii) one party rejects the report’s
recommendations in the same manner; or, (iv) a period of three months has
expired from the date of the report’s transmission to the parties.77 The parties bear
all fees and expenses of the proceedings.78
Despite this being the only compulsory third-party recourse for the settlement
of fisheries disputes concerning the exploitation of a stock within a coastal State’s
EEZ, no State has as of yet invoked the compulsory conciliation procedure of the
Convention for such disputes.79

73 Ibid
74 Ibid
75 Convention, Annex V, article 10.
76 Convention, Annex V, article 7(1); Convention, article 297(3)(d).
77 Convention, Annex V, article 8.
78 Convention, Annex V, article 9.
79 The first and only time this procedure has been resorted to was in the conciliation between Timor-
Leste and Australia, initiated on 11 April 2016, which resulted in a successful dispute settlement. The
parties signed a settlement treaty on 6 March 2018 and, on 9 May 2018, the Commission issued its
report, concluding the conciliation proceedings, thus resolving the dispute in only approximately two
years. See n 12.