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Dispute settlement

5.2 Dispute settlement

Recommendation	Responsible body	Activities to date	Status
5.2.1 The CCAMLR dispute settlement mechanisms appear to be unsatisfactory. There is an urgent need to take action to address this situation. In this regard, the binding procedures for dispute settlement set out in Part XV of UNCLOS could be considered by CPs in a two-fold manner: As a benchmark that should be followed for an eventual amendment of Article XXV of the Convention. This could allow for compulsory procedures entailing binding decisions to be followed if no agreement can be reached. This implies the possibility of submission of a dispute to the ICJ, the ITLOS or an arbitral tribunal, if no agreement is reached or any other means are not followed or did not produce an outcome. In the case of disagreement as to the procedure to be followed, CPs are deemed to have accepted arbitration as the residual procedure¹. Equally, Part XV of UNCLOS provides for an efficient provisional measures mechanism during dispute proceedings, that protects the rights of the Parties, fish stocks and the marine environment². This mechanism should be employed or copied in any modification of the dispute settlement scheme of CCAMLR. As a possibility to be used between CPs that are also Parties to UNCLOS pending an amendment to the Convention, and by those CPs with regard to NCPs being also Parties to UNCLOS whose vessels are engaged in illegal fishing in CCAMLR waters.	Commission	No apparent action	Commission – not yet considered
5.2.2 The Annex for an Arbitral Tribunal appended to the Convention contains some particularities that should be maintained, notably with regard to other Parties’ intervention in the proceedings (Articles 4 and 5 of the Annex). Given the particular nature of the obligations at stake, which are of common interest, this particularity of the system is to be commended and should be maintained.	Commission	No change has been proposed	Commission – not yet considered
5.2.3 As mentioned above (Criterion 4.1.1), in matters related to the interpretation or application of CMs, the establishment of a panel constituted by independent experts as a subsidiary organ of CCAMLR, with capacity to adopt binding decisions, should be envisaged. The possibility of casting a decision by such a panel through a ‘negative’ consensus of CCAMLR, following the WTO dispute settlement mechanism, could also be envisaged as a possible alternative.	Commission	No formal consideration	Commission – not yet considered

¹ See Article 287, paragraphs 3 and 5 of UNCLOS: www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm

² See Article 290 of UNCLOS: www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm

This page was last modified on 15 Mar 2018