VIII. Settlement of disputes

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From the procedural report of the BBNJ Preparatory Committee, 31/07/17 :

Drawing on existing dispute settlement provisions, such as those of the Charter of the United Nations and the Convention, the text would set out the obligation to settle disputes by peaceful means as well as the need to cooperate to prevent disputes.


It would also set out the modalities for settling disputes concerning the interpretation or application of the instrument.

From Chair's indicative suggestions document 31/05/17:

Drawing on existing dispute settlement provisions, such as those of the Charter of the United Nations, UNCLOS (Part XV) and the United Nations Fish Stocks Agreement (Part VIII), the text would set out the obligation to settle disputes by peaceful means as well as the need to cooperate to prevent disputes. It would also set out the modalities for settling disputes concerning the interpretation or application of the instrument.


Suggestion 1: Apply dispute settlement procedures elaborated in UNCLOS

Provide for application of dispute settlement procedures detailed in UNCLOS Part XV, adapted as necessary to the requirements of the Agreement. Authorize the implementing agreement’s conference of the parties to refer a request for an advisory opinion on any legal question to the Law of the Sea Tribunal.


Notes:

References: UNCLOS Part XV. Settlement of Disputes, ITLOS Rules of the Tribunal


Suggestion 2: Develop new dispute resolution mechanism based on negotiation, mediation, and binding dispute settlement

The agreement could establish detailed provisions on dispute settlement specific to the agreement, drawing on existing institutions under UNCLOS such as the Law of the Sea Tribunal.


Notes:

References: Antarctic Treaty Art 11, Barcelona Convention Art 22, CAMLR Art XXV, CBD Article 27


Suggestion 3: Authorize non-State actors access to dispute resolution mechanisms

Authorize non-State actors to have legal standing to have access to dispute resolution mechanisms


Notes: Non-state actors represent important interests that reflect issues of international concern.

References:


Suggestion 4: Authorize all states to have legal standing in dispute resolution mechanisms

Authorize all states to have legal standing to seek redress for damage to the environment and biodiversity in ABNJ.


Notes: All states have an equal interest in the sustainable use and conservation of biodiversity in ABNJ. According to the International Law Commission’s Articles on State Responsibility, and as recognized in the International Court of Justice’s Barcelona Traction case, tall States should therefore have standing in a legal forum to protect this interest.

References: International Law Commission’s Articles on State Responsibility, International Court of Justice’s Barcelona Traction case



Suggestion 5: Reparation measures being used on behalf of biodiversity in ABNJ

Provide for reparation measures for damage to marine biodiversity of ABNJ to be used on behalf of biodiversity in ABNJ, whether to restore the damaged resources, or to restore or improve resilience of related ecosystem services.


Notes: Reparation to damage to marine biodiversity of ABNJ is for the benefit of humanity’s interest, not for the particular benefit of the State or other entity that makes the claim. There is a legal obligation to direct environmental recoveries to the injured environment, recognized and implemented both in domestic law and, in international law, by the United Nations Compensation Commission’s “Follow-up Programme”

References: United Nations Compensation Commission’s “Follow-up Programme”


Suggestion 6: Establishing a dispute prevention mechanism

There could be a dispute prevention mechanism to pre-empt any dispute from arising. Such issues could be examined either by a specific committee or by selected experts.


Suggestion 7: Requiring States to resolve their disputes relating to the interpretation and application of the instrument by peaceful means

Notes:

References:

Suggestion 8: Submitting the case to a third-party procedure based on explicit mutual agreement

Notes:

References:

Suggestion 9: Drawing from existing agreements

Possible approaches to dispute settlement:

  • Consideration could be given to the means contained in Article 33 of the Charter of the United Nations.
  • The 1982 Manila Declaration on the Peaceful Settlement of Disputes could also serve as a model.
  • The provisions of UNFSA on dispute settlement could be used as a model.
  • With regard to the provisions of UNCLOS relating to the peaceful settlement of disputes: Option 1: The provisions reflect a good starting point for consideration of dispute resolution under the instrument. Option 2: It would not be appropriate to directly apply these provisions.
  • Jurisdiction could be given to the International Tribunal for the Law of the Sea over contentious disputes, as well as advisory powers. A special chamber to deal with issues related to marine biodiversity of areas beyond national jurisdiction could be created.
  • Regional dispute settlement mechanisms could also be considered.
  • A new body using the International Tribunal for the Law of the Sea as model could be established.
  • Consideration could be given to the inclusion of qualified opt-out mechanisms modelled on the South Pacific Regional Fisheries Management Organization’s Convention mechanism, where a measure could go forward and a State opting-out could have recourse to arbitration over the matter.

References: Article 33 of the Charter of the United Nations The Manila Declaration on the Peaceful Settlement of Disputes Part VIII The UNFSAUNCLOS Part XV. Settlement of Disputes, ITLOS Rules of the Tribunal Annex IV Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean

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