The jurisprudence of the international tribunal for the law of the sea relating to fisheries: Is there much in the net?

International Journal of Marine and Coastal Law

Volumn 22, Issue 3, 2007, Pages 383-424

  Churchill, Robin ^a  

^a UNIVERSITY OF DUNDEE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

FISHERY POLICY; FISHERY SURVEY; INTERNATIONAL LAW; LAW OF THE SEA; RESOURCE DEVELOPMENT;

EID: 34548677474     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180807781870336     Document Type: Review

References (183)

1. United Nations Convention on the Law of the Sea (opened for signature 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3.
2. Fisheries Case (United Kingdom v. Norway) [1951] ICJ Rep 116.
3. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. USA) [1984] ICJ Rep 246.
4. Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) [1993] ICJ Rep 38.
5. Case concerning the Delimitation of Maritime Areas between Canada and the French Republic (1992) 31 ILM 1145.
6. GATT, United States: Restrictions on Imports of Tuna-Report of GATT Panel (16 August 1991) (1991) 30 ILM 1594;
7. and GATT, United States: Restrictions on Imports of Tuna -Report of the Panel (20 May 1994) (1994) 33 ILM 839.
8. WTO, United States: Import Prohibition on Certain Shrimp and Shrimp Products - Report of the Appellate Body (12 October 1998) WT/DS58/AB/R.
9. Art. 56.
10. Art. 61 (2).
11. Art. 61 (3).
12. Art. 61 (1).
13. Art. 62.
14. Art. 63 (1).
15. Arts. 87 and 116.
16. 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 (opened for signature 4 December 1995, entered into force 11 December 2001) (1995) 34 ILM 1542.
17. See the declaration made by the EC in accordance with Annex IX on becoming a party to the LOSC, United Nations, Multilateral Treaties deposited with the Secretary-General. Status as at 31 December 2003 (2004), Vol. II, pp. 269-270.
18. Case C-459/03 Commission v. Ireland (ECJ 30 May 2006).
19. The case is discussed in detail below.
20. Any doubt that the latter might be possible is removed by Art. 299 LOSC.
21. This was originally argued by Brown: see E D Brown, The International Law of the Sea (Dartmouth, Aldershot 1994) Vol. I, 228.
22. However, in a later article he appears to have abandoned this argument: see E D Brown, 'Dispute Settlement and the Law of the Sea: The UN Convention Regime' (1997) 21 Marine Policy 17, 21-22 and 30.
23. For further arguments supporting the position taken here, see A E Boyle, 'Problems of Compulsory Jurisdiction and the Settlement of Disputes relating to Straddling Fish Stocks' (1999) 14 IJMCL 1, 12-13.
24. See further ibid., 13.
25. But for a different view, see Tullio Treves, 'The Exclusive Economic Zone and the Settlement of Disputes' in E Franckx and P Gautier (eds), The Exclusive Economic Zone and the United Nations Convention on the Law of the Sea, 1982-2000: A Preliminary Assessment of State Practice (Braylant, Brussels 2003) 79, 87-88.
26. For some examples, see notes 42-56 below and accompanying text. For a longer list of such treaties and a discussion of their dispute settlement provisions, see Jacqueline Peel, 'A Paper Umbrella which Dissolves in the Rain? The Future for Resolving Fisheries Disputes under UNCLOS in the Aftermath of the Southern Bluefin Tuna Arbitration' (2002) 3 Melbourne Journal of International Law 53, 66-70 and 76-77.
27. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan) (Provisional Measures, Order of 27 August 1999), paras 45-52 (1999) 38 ILM 1624;
28. and MOX Plant Case (Ireland v. United Kingdom) (Provisional Measures, Order of 3 December 2001), paras 50-51 (2002) 41 ILM 405.
29. MOX Plant Case, paras 51-53.
30. Convention for the Conservation of Southern Bluefin Tuna (adopted 10 May 1993, entered into force 1994) 1819 UNTS 360.
31. Southern Bluefin Tuna Case (Australia and New Zealand v. Japan) (Award on Jurisdiction and Admissibility of 4 August 2000), para 54 (2000) 39 ILM 1359. For a fuller discussion of the differences in approach to Articles 281 and 282 between the Tribunal and the Annex VII tribunal,
32. see Robin Churchill, 'Some Reflections on the Operation of the Dispute Settlement System of the UN Convention on the Law of the Sea during its First Decade' in David Freestone, Richard Barnes and David Ong (eds), The Law of the Sea: Progress and Prospects (Oxford University Press, Oxford 2006) 388, 401-405 and literature cited there.
33. Peel (n 24) 66.
34. For further discussion of the possible impact of Article 281 and the Annex VII tribunal's ruling on disputes arising under fisheries treaties, see Peel (n 24) 72-75.
35. For a detailed commentary on the dispute settlement provisions of the Agreement, see Boyle (n 21) 19-24; T L McDorman, 'The Dispute Settlement Regime of the Straddling and Highly Migratory Fish Stocks Convention' (1997) 35 Canadian Yearbook of International Law 57,
36. and Tullio Treves, 'The Settlement of Disputes according to the Straddling Stocks Agreement of 1995' in Alan Boyle and David Freestone (eds), International Law and Sustainable Development (Oxford University Press, Oxford 1999) 253.
37. Tullio Treves, 'A System for Law of the Sea Dispute Settlement' in Freestone, Barnes and Ong (n 28) 417, 425. The obvious solution in such a case would be for Canada and the other party to the dispute to agree to transfer the dispute before the Tribunal to the Annex VII tribunal or vice-versa.
38. See the declaration made by the EC in accordance with Article 47(1) of the Agreement on becoming a party, United Nations, Multilateral Treaties deposited with the Secretary-General. Status as at 31 December 2003 (2004) Vol. II, 302.
39. Boyle (n 21) 21-22 and McDorman (n 31) 65-66. Cf. also the discussion of Article 297(3) above, text at notes 19-22.
40. See Art. 3 of the Agreement.
41. B H Oxman, 'Complementary Agreements and Compulsory Jurisdiction' (2001) 95 AJIL 277, 305-7, and Peel (n 24) 71. The Annex VII arbitral tribunal in the Southern Bluefin Tuna case hinted at a similar position: see para 71 of its Award.
42. International Convention for the Conservation of Atlantic Tunas (adopted 14 May 1966, entered into force 21 March 1969) 673 UNTS 63.
43. Convention on Future Multilateral Co-Operation in the Northwest Atlantic Fisheries (adopted 24 October 1978, entered into force 1 January 1979) 1135 UNTS 369.
44. The South Pacific Forum Fisheries Agency Convention (adopted 10 July 1979, entered into force 9 August 1979), available at http://www.intfish.net/ treaties/ffa.htm. This Convention and the treaties referred to in the following two footnotes are primarily concerned with fisheries in the EEZ.
45. The Nauru Agreement concerning Co-Operation in the Management of Fisheries of Common Interest (adopted 11 February 1982, entered into force 4 December 1982), available at http://www.intfish.net/treaties/nauru.htm.
46. Niue Treaty on Co-Operation in Fisheries Surveillance and Law Enforcement in the South Pacific Region (adopted 9 July 1992, entered into force 20 May 1993) (1993) 32 ILM 136.
47. Agreement establishing the General Fisheries Commission for the Mediterranean (adopted 24 September 1949, entered into force 20 February 1952, amended October 1997), Art. XV [1998] OJ L190/36. Originally the Agreement had no provisions on dispute settlement.
48. Treaty on Fisheries between Certain Pacific Island States and the USA (adopted 2 April 1987, entered into force 15 June 1988), Art. 6 (1987) 26 ILM 1048.
49. Western Indian Ocean Tuna Organization Convention (adopted 19 June 1991, entered into force 15 December 1992), Art. 18, available at http://www.intfish. net/treati.es/wioto.htm.
50. Agreement for the Establishment of the Indian Ocean Tuna Commission (adopted 25 November 1993, entered into force 27 March 1996), Art XXIII 1927 UNTS 329.
51. Framework Agreement for the Conservation of Living Marine Resources on the High Seas of the South Pacific (adopted 14 August 2000, not yet in force), Art. 14 (2001) 45 Law of the Sea Bulletin 70.
52. Convention on Future Multilateral Co-Operation in the North-East Atlantic Fisheries (adopted 18 November 1980, entered into force 17 March 1982) 1285 UNTS 129. The Convention originally had no machinery on dispute settlement, but in 2004 the Commission established by the Convention adopted a recommendation (which is legally binding) providing for the settlement of disputes as indicated below: see North-East Atlantic Fisheries Commission, Report of the 23rd Annual Meeting, Vol. II, 28-29.
53. Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (adopted 5 September 2000, entered into force 19 June 2004), Art. 31 (2001) 40 ILM 278.
54. Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean (adopted 20 April 2001, entered into force 13 April 2003), Art. 24 (2002) 41 ILM 40.
55. Southern Indian Ocean Fisheries Agreement (adopted 7 July 2006, not yet in force), Art. 20 [2006] OJ L196/15.
56. Convention for the Conservation of Southern Bluefin Tuna (adopted 10 May 1993, entered into force 1994), Art. 16 1819 UNTS 360.
57. Southern Bluefin Tuna Case (Australia and New Zealand v. Japan) (Award on Jurisdiction and Admissibility of 4 August 2000), paras 56-63 (2000) 39 ILM 1359.
58. See Churchill (n 28) 402-403 and literature cited there.
59. Convention on the Conservation of Antarctic Marine Living Resources (adopted 20 May 1980, entered into force 7 April 1982), Art. XXV 1329 UNTS 47.
60. Convention on Fisheries Co-Operation among African States Bordering the Atlantic Ocean (adopted 5 July 1991, entered into force 11 August 1995), Art. 21 (1991) 19 Law of the Sea Bulletin 33;
61. Arrangement for the Conservation and Management of the Western Pacific Purse Seine Fishery (adopted 28 October 1992, entered into force 8 December 1995), Art. 10 available at http://www.intfish.net/treaties/palau.htm; the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (adopted 16 June 1994, entered into force 8 December 1995), Art. XII (1995) 34 ILM 67; the Federated States of Micronesia Arrangement for Regional Fisheries Access (adopted 30 November 1994, entered into force 23 September 1995), Art. 19, available at http://www.intfish.net/treaties/microne- sia.htm;
62. Agreement between Iceland, Norway and Russia concerning Certain Aspects of Co-Operation in the Area of Fisheries (signed 15 May 1999, entered into force 15 June 1999), Art. 10 (1999) 14 IJMCL 484;
63. and Convention for the Strengthening of the Inter-American Tropical Tuna Commission (adopted 14 November 2003, not yet in force), Art. XV [2006] OJ L224/22 (the original Convention establishing the Commission had no provisions on dispute settlement).
64. Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (adopted 24 November 1993, entered into force 24 April 2003) (1994) 33 ILM 968.
65. Because, for the reasons explained earlier, as things stand at present most disputes referred for settlement under section 2 of Part XV LOSC will go to an arbitral tribunal constituted in accordance with Annex VII.
66. Southern Bluefin Tuna Cases (New Zealand v. Japan); (Australia v. Japan) (Order for Provisional Measures of 27 August 1999), para 70, (1999) 38 ILM 1624.
67. See The M/V Saiga Case (St. Vincent and the Grenadines v. Guinea) (Application for Prompt Release, Judgment of 4 December 1997), paras 37-79, (1998) 37 ILM 360;
68. The Camouco Case (Panama v. France) (Application for Prompt Release, Judgment of 7 February 2000), paras 43-60, (2000) 39 ILM 666;
69. The Monte Confurco Case (Seychelles v. France) (Application for Prompt Release, Judgment of 18 December 2000), paras 56-63;
70. The Volga Case (Russian Federation v. Australia) (Application for Prompt Release, Judgment of 23 December 2002), paras 55-59;
71. and The Juno Trader Case (St. Vincent and the Grenadines v. Guinea- Bissau) (Application for Prompt Release, Judgment of 18 December 2004), paras 37-79.
72. S. Oda, 'Dispute Settlement Prospects in the Law of the Sea' (1995) 44 ICLQ 863, 865-867.
73. The M/V Saiga No. 1 case, para 50.
74. Ibid., para 51.
75. Ibid.
76. Such an approach was advocated by the dissenting judges in the Saiga No. 1 case: see the dissenting opinion of President Mensah (para 18), the joint dissenting opinion of Vice-President Wolfram and Judge Yamamoto (para 9), the dissenting opinion of Judge Anderson (para 9), and the joint dissenting opinion of Judges Park, Nelson, Chandrasekhara Rao, Vukas and Ndiaye (para 27).
77. See also Vaughan Lowe, 'The M/V Saiga: The First Case in the International Tribunal for the Law of the Sea' (1999) 48 ICLQ 187, 194.
78. The Camouco case, paras 59-60;
79. the Monte Confurco case, paras 61-63;
80. and the Volga case, paras 76-83 (passim).
81. The Volga case, para 83;
82. the Juno Trader case, para 95.
83. The Camouco case, para 60.
84. The Volga case, paras 76 and 79.
85. The Camouco case, para 59;
86. the Monte Confurco case, para 63.
87. The Camouco case, para 67;
88. the Monte Confurco case, para 76;
89. the Volga case, paras 63-67;
90. and the Juno Trader case, paras 82-86.
91. For the only exception to this practice, and then no more than a partial one, see the Monte Confurco case, where the Tribunal did not agree with the court of the detaining State (France) about the gravity of one of the offences (see para 88). The Tribunal also said that Article 292 (3) did not preclude it from "examining the facts and circumstances of the case to the extent necessary for a proper appreciation of the reasonableness of the bond" (para 74). However, concerns about straying into forbidden territory were expressed by Judge Mensah in his declaration and Judges Anderson and Jesus in their dissenting opinions. See also the dissenting opinion of Judge Wolfram in the Camouco case, paras 13-15.
92. For further discussion of this issue, see McDorman (n 31) 75-78 (who is of the view that Article 292 is available for vessels detained further to the Fish Stocks Agreement) and Treves (n 31) 267-268.
93. The M/V Saiga Case (Saint Vincent and the Grenadines v. Guinea) (Application for Prompt Release, Judgment of 4 December 1997), paras 56-59 and 63. Note Judge Mensah's persuasive argument in his dissenting opinion (paras 21-23) that the Tribunal impliedly did conclude that bunkering falls within the coastal State's legislative jurisdiction in respect of fisheries in the EEZ. See also to the same effect, and questioning the correctness of the Tribunal's implied conclusion, the joint dissenting opinion of Vice-President Wolfram and Judge Yamamoto (paras 20-25). Their view was specifically endorsed by Judge Anderson in his dissenting opinion (para 14).
94. The M/V Saiga (No. 2) Case (Saint Vincent and the Grenadines v. Guinea) (Merits) (Judgment of 1 July 1999), para 155.
95. Ibid., para 156. To support its position the Tribunal referred to the I'm Alone Case (Canada/USA) (1935), III RIAA 1609;
96. the Red Crusader Case (Denmark-United Kingdom) Commission of Enquiry (1962), 35 ILR 485;
97. and Art. 22 (1) (f) of the UN Fish Stocks Agreement.
98. Juno Trader (Saint Vincent and the Grenadines v. Guinea-Bissau) (Application for Prompt Release, Judgment of 18 December 2004), para 63.
99. See paras 3-6 of their opinion. In his separate opinion Judge Treves also stressed the importance of fairness and due process, and the relevance of these norms to determining whether the obligation of prompt release had been complied with and the reasonableness of any bond.
100. Para 10 of their opinion.
101. Olbers v. Commonwealth of Australia (No. 4) [2004] FCA 229 (Judgment of French J.). Also available at http://www.austlii.edu.au/au/cases/ cth/federal_ct/2004/229.html, paras 84-94.
102. The judgment of French J. was upheld by the full Federal Court of Australia (Olbers Co Ltd. v. Commonwealth of Australia [2004] FCFCA 262).
103. Leave to appeal to the High Court (Australia's highest court) was refused (Olbers v. Commonwealth of Australia [2005] HCA Trans 228). Olbers was the owner of The Volga; however, the point discussed here did not arise before the Tribunal in the prompt release proceedings.
104. See also Warwick Gullett, 'Developments in Australian Fisheries Law: Setting the Law of the Sea Convention Adrift?'(2004) 21 Environmental and Planning Journal 169, 173-176
105. and ibid., 'Smooth Sailing for Australia's Automatic Forfeiture of Foreign Fishing Vessels' (2005) 22 Environmental and Planning Journal 169.
106. See further D Freestone, The Burden of Proof in Natural Resources Legislation-Some Critical Issues for Fisheries Law (FAO Legislative Study No. 63, 1998).
107. Council Regulation (EC) 1627/94 of 27 June 1994 laying down general provisions concerning special fishing permits [1994] OJ L171/7, Art. 10.
108. Case C-135/92 Fiskano AB v. Commission [1994] ECR 1-2885, paras 38-41;
109. and Case T-46/00 Kvitsjöen AS v. Commission [2001] ECR 11-3713, paras 35-36.
110. See further Ronan J Long and Peter A Curran, Enforcing the Common Fisheries Policy (Fishing News Books, Oxford 2000) 84-91, 127-130 and 207-208.
111. The Saiga No. 2 case, para 155.
112. Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.
113. The Volga Case (Russian Federation v. Australia) (Application for Prompt Release, Judgment of 23 December 2002), ITLOS Reports 2002, 10, paras 75 and 77.
114. Judge Anderson and Judge Ad Hoc Shearer dissented on this point.
115. Ibid., para 76.
116. See D Mangatelle, Coastal State Requirements for Foreign Fishing (FAO Legislative Study No. 57, 1996), Table D, also available at http://www.fao.org/docrep/V9982E/v9982e04. htm#table%20d: %20compliance%20control%20and%20reporting%20conditions.
117. See further Robin Churchill and Vaughan Lowe, 'The International Tribunal for the Law of the Sea: Survey for 2002' (2003) 18 IJMCL 447, 453-455.
118. See also Donald R Rothwell and Tim Stephens, 'Illegal Southern Ocean Fishing and Prompt Release: Balancing Coastal and Flag State Rights and Interests' (2004) 53 ICLQ 171, 178-186. A broader criticism made by some is that in the prompt release of vessel cases so far, the Tribunal has favoured flag State interests to the detriment of coastal States and their attempts to enforce conservation and management measures, particularly in EEZs that are large and remote.
119. See Rosemary Rayfuse, 'The Future of Compulsory Dispute Settlement in the Law of the Sea Convention' (2005) 36 Victoria University of Wellington Law Review 683, 692-3 and 707-8, and literature cited there. Cf. the dissenting opinion of Judge Ad Hoc Shearer in the Volga case, para 19 and the dissenting opinion of Judge Anderson in the Camouco case.
120. The Volga Case (Russian Federation v. Australia) (Application for Prompt Release, Judgment of 23 December 2002), ITLOS Reports 2002, 10, paras 78-80. Judge Anderson and Judge Ad Hoc Shearer again dissented on this point.
121. CCAMLR, Report of the 21st Meeting of the Commission (2002), paras 8.62-8.73, available at http://www.ccamlr.org/pu/e/e_pubs/cr/02/i8.pdf. See also Rothwell and Stephens (n 88), 185;
122. Andrew Serdy and Michael Bliss, 'Prompt Release of Fishing Vessels: State Practice in the Light of the Cases before the International Tribunal for the Law of the Sea' in Alex G Oude Elferink and Donald R Rothwell (eds), Oceans Management in the 21st Century: Institutional Frameworks and Responses (Martinus Nijhoff, Leiden 2004) 273, 279-280.
123. See further Warwick Gullett, 'Developments in Australian Fisheries Law: Setting the Law of the Sea Convention Adrift?'(2004) 21 Environmental and Planning Journal 169, 169-171.
124. Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan) (Provisional Measures, Order of 27 August 1999) (1999) 38 ILM 1624. For detailed discussion of the Tribunal's Order,
125. see, inter alia, M Hayashi, 'The Southern Bluefin Tuna Cases: Prescription of Provisional Measures by the International Tribunal for the Law of the Sea' (2000) 13 Tulane Environmental Law Journal 361;
126. B Kwiatkowska, 'The Southern Bluefin Tuna (New Zealand v. Japan) Cases' (2000) 15 IJMCL 1;
127. H Schiffman, 'The Southern Bluefin Tuna Case: ITLOS hears its First Fishery Dispute' (1999) 2 Journal of International Wildlife Law and Policy 318; and the Symposium in (1999) 10 Yearbook of International Environmental Law 3-47.
128. Ibid., para 70.
129. Ibid., para 50.
130. Art. 293 (1) provides that the applicable law for a court or tribunal acting under section 2 of Part XV is the LOSC and "other rules of international law not incompatible with" the LOSC.
131. Order, para 80.
132. Ibid., paras 68 and 69.
133. In para 6 of his separate opinion Judge Treves suggested that the right of Australia and New Zealand was to see the southern bluefin tuna stock conserved. The two States certainly had an interest in the conservation of tuna, but whether they had a right in the strict legal sense seems more doubtful. No such right is explicitly articulated in the LOSC.
134. See, for example, Adriana Fabra, 'The LOSC and the Implementation of the Precautionary Principle' (1999) 10 Yearbook of International Environmental Law 15; David Freestone, 'Caution or Precaution: "A Rose By Any Other Name . . ."?' (1999) 10 Yearbook of International Environmental Law 25; and S Marr, 'The Southern Bluefin Tuna Cases: The Precautionary Approach to the Conservation and Management of Fish Resources' (2000) 11 EJIL 815.
135. In their separate opinions Judges Laing and Treves see the language of the Tribunal as an example of the precautionary approach: see para 19 of Judge Laing's opinion and para 8 of Judge Treves' opinion. See also the separate opinion of Judge Ad Hoc Shearer, who regards the measures prescribed by the Tribunal as "rightly based upon considerations deriving from a precautionary approach." For further discussion of the precautionary principle and the Tribunal's Order, see the paper by Professor Boyle at p. 369.
136. For good recent discussions of the application of the precautionary approach in the Fish Stocks Agreement, see William Edeson, David Freestone and Elly Gudmundsdottir, Legislating for Sustainable Fisheries: A Guide to Implementing the 1993 FAO Compliance Agreement and 1995 UN Fish Stocks Agreement (World Bank, Washington D.C. 2001), 30-35
137. and Tore Henriksen, Geir Hönneland and Are Sydnes, Law and Politics in Ocean Governance: The UN Fish Stocks Agreement and Regional Fisheries Management Regimes (Martinus Nijhoff, Leiden 2006), 23-27.
138. Southern Bluefin Tuna Case (Australia and New Zealand v. Japan) (Award on Jurisdiction and Admissibility of 4 August 2000) (2000) 39 ILM 1359.
139. See B Mansfield, 'The Southern Bluefin Tuna Arbitration: Comments on Professor Barbara Kwiatkowska's Article' (2001) 16 IJMCL 361;
140. B Mansfield, 'Compulsory Dispute Settlement after the Southern Bluefin Tuna Award' in Oude Elferink and Rothwell (n 90), 255, especially at 259-261 and 263-269;
141. and T Stephens, 'The Limits of International Adjudication in International Law: Another Perspective on the Southern Bluefin Tuna Case' (2004) 19 IJMCL 177, especially at 183-187.
142. Award, paras 67-70.
143. Case concerning the Conservation and Sustainable Utilisation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile / European Community) (Order of 15 March 2001) (2001) 40 ILM 475.
144. Case concerning the Conservation and Sustainable Utilisation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile / European Community (Orders of 16 December 2003 and 29 December 2005).
145. Framework Agreement for the Conservation of Living Marine Resources on the High Seas of the South Pacific (adopted 14 August 2000, not yet in force) (2001) 45 Law of the Sea Bulletin 70.
146. WT/DS193/3 (6 April 2001) and WT/DS193/3/Add.1 (9 April 2001).
147. For more on the background to this case and the institution of the two sets of proceedings, see T L McDorman, "The Chile v. EC Swordfish Case' (2000) 11 Yearbook of International Environmental Law 585;
148. M A Orellana, 'The Swordfish Dispute between the EU and Chile at the ITLOS and the WTO' (2002) 71 Nordic Journal of International Law 55;
149. and Andrew Serdy, 'See You in Port: Australia and New Zealand as Third Parties in the Dispute between Chile and the European Community over Chile's Denial of Port Access to Spanish Vessels fishing for Swordfish on the High Seas' (2002) 3 Melbourne Journal of International Law 79.
150. International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, 2001, para 3, available at http://www.fao.org/DOCREP/003/y1224e/y1224e00.HTM.
151. For a useful review of the problem complex of IUU fishing, see Rachel Baird, 'Illegal, Unregulated and Unreported Fishing: An Analysis of the Legal, Economic and Historical Factors Relevant to its Development and Persistence' (2004) 5 Melbourne Journal of International Law 299.
152. See further McDorman (n 31) 59-62; Ted L McDorman, 'Global Ocean Governance and International Adjudicative Dispute Resolution' (2000) 43 Ocean and Coastal Management 255, 269-271 and 273;
153. and Andrew Serdy, 'The Paradoxical Success of UNCLOS Part XV: A Half-Hearted Reply to Rosemary Rayfuse' (2005) 36 Victoria University of Wellington Law Review 713, 715 and 717.
154. However, it should be noted that under Art. 289 LOSC any LOSC dispute settlement body may be assisted by up to two scientific or technical experts, although the latter do not have the right to vote in the decisions of the body concerned.
155. Cases referred to the European Court of Justice are also excluded, even though some of them are, or have the character of, inter-State disputes, because most such cases involve solely issues of EU law, although a few also involve international law. See further Robin R Churchill, 'Dispute Settlement in the Law of the Sea-the Context of the International Tribunal for the Law of the Sea and Alternatives to It' in Malcolm Evans (ed), Remedies in International Law: The Institutional Dilemma (Hart, Oxford 1998) 85, 95-96.
156. Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland) (Merits) [1974] ICJ Rep 175;
157. and Fisheries Jurisdiction Case (United Kingdom v. Iceland) (Merits) [1974] ICJ Rep 3.
158. Dispute concerning Filleting within the Gulf of St Lawrence (La Bretagne) (France v. Canada) (1986) 19 RIAA 225.
159. Fisheries Jurisdiction Case (Spain v. Canada) (Jurisdiction) [1998] ICJ Rep 463.
160. See W T Burke, 'Coastal State Fishery Regulation under International Law: A Comment on the La Bretagne Award of July 17, 1986 (The Arbitration between Canada and France)' (1988) 25 San Diego Law Review 495;
161. and T L McDorman, 'French Fishing Rights in Canadian Waters: The 1986 La Bretagne Arbitration' (1989) 4 IJECL 52.
162. Arts. 2 and 3 of Annex VIII.
163. Art. 29 of the Fish Stocks Agreement.
164. See further on this point, McDorman (n 31) 72-73.
165. See Art. 119 (1) LOSC.
166. See Arts. 5, 6 and 7 of the Agreement.
167. These points are explored very well in the context of the Southern Bluefin Tuna litigation by B Mansfield, 'The Southern Bluefin Tuna Arbitration: Comments on Professor Barbara Kwiatkowska's Article' (2001) 16 IJMCL 361, 363-366.
168. As a starting point for such an analysis, see Art. 42 (on invocation of responsibility by an injured State) and Art. 48 (on invocation of responsibility by a State other than an injured State) of the International Law Commission's Draft Articles on State Responsibility and the accompanying Commentary in Report of the 53rd Session, International Law Commission (2001) GAOR 56th Session, Supplement 10.
169. Arbitration between Barbados and the Republic of Trinidad and Tobago (2006), para 283, available at http://www.pca-cpa.org/ENGLISH/RPC/ BATRI/BATRI%20Award.pdf.
170. Ibid., paras 288-293.
171. Ibid., paras 285-286.
172. See Marine Resources Assessment Group, Review of Impacts of Illegal, Unreported and Unregulated Fishing on Developing Countries (2005), available at http://www.dfid.gov.uk/pubs/files/illegal-fishing-mrag-report.pdf.
173. See Arts. 18 and 19 of the Fish Stocks Agreement and Art. III of the Compliance Agreement.
174. See Illegal, Unreported and Unregulated Fishing: Report of the 1st Chatham House Update and Stakeholder Consultation Meeting, 13-14, available at http://www.illegal-fishing.info/uploads/Update_and_consultation_mtg090506.doc.
175. See section entitled 'The Tribunal's Jurisdiction under Other Treaties' above.
176. Further on this point, see Churchill (n 28) 395-397.
177. Available at http://www.fao.org/DOCREP/005/v9878e/v9878e00.htm.
178. Available at http://www.fao.org/figis/servlet/static?xml-CCRF_prog. xml&dom-org&xp_nav-2,3.
179. Cf. Art. 31 (3) (b) of the Vienna Convention on the Law of Treaties, which provides that in interpreting a treaty there is to be taken into account "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation."
180. On such a role, see Douglas M Johnston, 'Fishery Diplomacy and Science and the Judicial Function' (1999) 10 Yearbook of International Environmental Law 33, 38-39.
181. See the Southern Bluefin Tuna cases, paras 71-81;
182. the Monte Confurco case, para 79;
183. and the Volga case, para 68.