Dispute Settlement in the New Treaty on Marine Biodiversity in Areas beyond National Jurisdiction
By: Joanna Mossop*
Matter commented on: Dispute settlement provisions in BBNJ
In December 2017, the United Nations General Assembly authorised the commencement of negotiations for a new treaty on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (BBNJ Treaty). The new treaty is to be the third implementing agreement under the United Nations Convention on the Law of the Sea (UNCLOS). At the time of writing, three sessions of the intergovernmental conference have been held and two draft texts issued by the President of the Conference, Ambassador Rena Lee (see here and here). The purpose of this comment is to reflect on the future of the dispute settlement provisions in the new Agreement. I will focus on the provisions that appeared in the first draft text and were unchanged in the second draft text. These provisions essentially provided for the application of Part XV of UNCLOS mutatis mutandis (with the necessary changes) to disputes about the interpretation and application of the BBNJ Treaty.
UNCLOS was a package deal comprised of a system of compromises, and a strong dispute settlement system was considered necessary to maintain the integrity of that deal. The inclusion of the option of compulsory jurisdiction would ensure that extremely divergent interpretations of the legally complex treaty would be constrained through access to third party dispute settlement. Allott considered the dispute settlement provisions to be “a caution and a guarantee attached to each provision” (Philip Allott, Power Sharing in the Law of the Sea, (1983) 77 American Journal of International Law 1, 11). Part XV was incorporated into the United Nations Fish Stocks Agreement (UNFSA) by applying it mutatis mutandis to disputes about the interpretation and application not only of the UNFSA, but also of treaties establishing regional fisheries management organisations (article 30(1) and (2) UNFSA). This incorporation reinforced a view that the dispute settlement provisions in UNCLOS are an essential part of the law of the sea framework.
During the third intergovernmental conference (IGC3) very little time was allocated to discussing the content of the final provisions of the draft text, including the dispute settlement provisions. Delegations were in agreement that a dispute settlement clause was necessary, but the details were not substantively agreed. Two clear proposals emerged from the interventions on dispute settlement: that the default forum for dispute settlement should be changed from an arbitral tribunal as set out in article 287 of UNCLOS to the International Tribunal for the Law of the Sea (ITLOS); and that ITLOS be authorised to provide an advisory opinion if requested by the Conference of the Parties (COP).
This comment will first outline how the dispute settlement provisions in the draft texts were modelled on, but different to, those in the UNFSA. The utility of using the UNFSA will be assessed, and I will evaluate whether other articles in the UNFSA could be applied to the BBNJ. Second, the problem of parallel dispute settlement is likely to be an issue when disputes arise under both the BBNJ Treaty and other treaties. The tension between the legacies of the Southern Bluefin Tuna and the South China Sea arbitrations show that this matter is far from settled and will have an impact on the efficacy of the dispute settlement process. Third, the comment will evaluate the two proposals made during IGC3.
The UNFSA as a model for dispute settlement in BBNJ
The proposed provisions in the draft text are heavily reliant on the UNFSA, and similarly seek to apply the provisions of Part XV of UNCLOS to disputes under the new treaty, mutatis mutandis. For example, article 54 is a direct copy of article 27 of the UNFSA. Article 55 relies heavily on article 30 of UNFSA. In the following table I summarise the provisions of articles 27 to 32 of the UNFSA and compare them to the modest proposed clauses in the draft text.
|Article 27: obligation to settle disputes peacefully||Article 54: identical|
|Art 28: states shall cooperate to prevent disputes; states will agree on efficient and effective decision-making procedures|
|Art 29: technical disputes may be referred to an ad hoc expert panel|
|Art 30(1): the provisions of Part XV apply to dispute concerning the interpretation of the UNFSA.||Art 55(1): the provisions of Part XV apply to dispute concerning the interpretation of the BBNJ Treaty.|
|Art 30(2): the provisions of Part XV apply to a dispute concerning the interpretation or application of an RFMO Convention.
|Art 30(3): Procedure under art 287 of UNCLOS applies unless the state has accepted another procedure for the settlement of disputes under UNFSA.||Art 55(2): identical|
|Art 30(4): Non-parties to UNCLOS can choose a forum under art 287 for disputes under UNFSA and nominate conciliators and arbitrators.||Art 55(3): identical|
|Art 30(5): Applicable law includes UNCLOS, UNFSA, RFMO Conventions as well as generally accepted standards for the conservation and management of living marine resources and other rules of international law.|
|Art 31(1): Pending settlement of a dispute, parties shall make every effort to enter into provisional arrangements of a practical nature.|
|Art 31(2): A court or tribunal can prescribe provisional measures.|
|Art 31(3): Non-parties to UNCLOS can declare that ITLOS is not entitled to impose provisional measures without its agreement.|
|Art 32: Article 297(3) of UNCLOS (on exclusions from compulsory jurisdiction for fisheries disputes) applies to the UNFSA.|
Two observations are clear from the above comparison. First, the few provisions that appeared in the draft text were modelled on the UNFSA. Second, many dispute settlement-related provisions in the UNFSA that could have been used were omitted from the BBNJ text.
Not all delegations at IGC 3 were happy with the proposal to apply Part XV UNCLOS to dispute settlement under the BBNJ Treaty. For example, China preferred to avoid a compulsory approach to dispute settlement, probably reflecting disillusionment with its experience with the South China Sea arbitration. Instead, it preferred the approach taken in article 22 of the Port State Measures Agreement, which allows for disputes to be sent to third party settlement “with the consent of all Parties to the dispute”. Some non-Parties to UNCLOS such as Colombia and El Salvador, were wary about applying Part XV to the BBNJ Treaty on the basis that non-Parties should not be subject to UNCLOS processes. In contrast, the United States expressed cautious willingness to consider article 55 as it appeared in the draft text. This is explicable on the basis that the UNFSA already applies Part XV to disputes involving non-Parties to UNCLOS.
There are good reasons not to import the dispute settlement provisions of the UNFSA into the BBNJ Treaty without careful examination. The nature of the two treaties are quite different. The UNFSA applies to a single sector, fisheries, and refers to a moderately uniform set of institutions with a similar purpose, RFMOs. In contrast, the BBNJ Treaty will apply to a range of activities across multiple sectors and engaging a range of global, regional and sectoral bodies (GRSBs) (Robert Blasiak and Nobuyuki Yagi, “Shaping an International Agreement on Marine Biodiversity beyond Areas of National Jurisdiction: Lessons from high seas fisheries” (2016) 71 Marine Policy 210, 211). In addition, the sorts of disputes that could arise under the BBNJ Treaty are likely to be wider in scope than potential disputes under the UNFSA.
The range of potential disputes is broad. These include disputes about the rights and obligations established in the treaty such as how to interpret and apply access and benefit sharing provisions for marine genetic resources; the process for the establishment of area-based management tools and marine protected areas; and the conduct of environmental impact assessment. The application of general principles and the scope of the agreement could also be the subject of disputes. However, there is also the potential for disputes to arise about the intersection between the BBNJ Treaty and other instruments and frameworks such as the International Seabed Authority, Regional Fisheries Management Organisations, conventions under the International Maritime Organisation and even intellectual property conventions. The draft text specifies that the Agreement is not to undermine relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies (Draft article 4(3), second draft text). A dispute may arise about how the Treaty is to be interpreted and applied in relation to those institutions, frameworks and bodies. The prospect for complexity is clear.
Despite these differences, it is worth considering how and to what extent the UNFSA dispute settlement provisions can be a model for the BBNJ Treaty.
First, it seems sensible that Part XV of UNCLOS be applied to the BBNJ Treaty, as an implementing agreement under UNCLOS. This ensures that issues related to the law of the sea are developed in a reasonably coherent fashion. Indeed, a number of treaties now provide for the application of Part XV to disputes, although the majority are regional fisheries management organisations. There can be little doubt that the presence of a dispute settlement system has had a stabilising influence on the law of the sea regime (Alan Boyle, “UNCLOS Dispute Settlement and the Uses and Abuses of Part XV” (2014) Revue Belge de Droit International 182, 185). In contrast, it could be argued that the BBNJ Treaty owes much to the principles and structures of international environmental law, and very few multilateral environmental agreements use compulsory dispute settlement. However, those agreements usually include non-compliance procedures and other mechanisms to promote compliance.
Second, it is notable that article 30(2) of the UNFSA applied Part XV not only to disputes involving the interpretation of that agreement, but also to disputes arising from the interpretation of regional fisheries management organisation (RFMO) conventions. In the context of the UNFSA, this appears sensible as one goal was to improve the management of straddling and highly migratory fish stocks through the application of principles and approaches that may not necessarily have appeared in the relevant RFMO conventions. By bringing the interpretation of those conventions under the same process as the UNFSA, the treaty attempts to streamline the development of international law in the field.
It is highly doubtful that the delegations at the IGC will be willing to follow this example in the BBNJ context, when the possible associated treaties and organisations may vary considerably in their nature and scope. However this does raise the question of the appropriate response if disputes arise involving both the BBNJ Treaty and another treaty. This issue is discussed further in the next section.
Third, it is curious to note the provisions of UNFSA that have been left out of the draft text. For example, article 29 provides that for disputes of a technical nature, states may refer the dispute to a non-binding ad hoc expert panel to try to resolve the dispute. It is possible to envisage that this sort of process may be useful for aspects of this treaty including the framework for marine genetic resources, which is a topic that is highly technical in nature. There may also be issues arising in relation to environmental impact assessment or area-based management that require expert input to help resolve them. Of course, expert evidence is available to courts and tribunals if the dispute is unable to be resolved in this more informal fashion.
Another example of the omissions in the draft text includes article 30(5) of UNFSA, which establishes the applicable law for any tribunal established under the UNFSA. In addition to relevant provisions of agreements, tribunals are to apply “generally accepted standards for the conservation and management of living marine resources”. This latter statement arguably allows for progressive development of the law in line with standards that may not appear in the existing legal texts, because there would be otherwise no need to refer to “generally accepted standards”. This is a very useful approach to take in the BBNJ Treaty which may intersect with evolving environmental law norms that could be usefully applied to disputes. The final part of paragraph 5 says that the application of the above law and principles is “with a view to ensuring the conservation of the straddling fish stocks and highly migratory fish stocks concerned”. It has been suggested that this is “to condition a tribunal to place marine living resources above legal or quasi-legal considerations” (Peter Örebech, Ketill Sigurjonsson and Ted McDorman, “The 1995 United Nations Straddling and Highly Migratory Fish Stocks Agreement: Management, Enforcement and Dispute Settlement” (1998) 13 International Journal of Marine and Coastal Law 119, 138). This is certainly worth considering in a treaty focused on conservation and sustainable use of marine biodiversity.
Article 32 of UNFSA is also left out. This provision simply states that “Article 297, paragraph 3, of the Convention applies also to this Agreement”. Article 297(3) excludes disputes relating to the exercise of sovereign rights over living resources in the exclusive economic zone from compulsory dispute settlement. In some cases the matters can be submitted to a conciliation commission but the commission cannot substitute its discretion for that of the coastal state. The inclusion of article 32 UNFSA is curious, given that article 297(3) is a section from Part XV, which is being imported into the UNFSA. However, it seems likely that this was done to reinforce the position of coastal states that those decisions were not subject to compulsory settlement. It seems unnecessary to include a similar provision in the BBNJ Treaty.
Finally, the UNFSA contains a section on provisional measures that differs slightly from article 290 of UNCLOS (article 31 UNFSA). It imposes an obligation on parties to the dispute to make every effort to enter into provisional arrangements of a practical nature pending the settlement of the dispute. As a pragmatic approach there is much to be said for this inclusion. Next, the tribunal can impose provisional measures to protect the respective rights of the parties, or “to prevent damage to the stocks in question”. This differs from the grounds in article 290(1) in that the grounds for provisional measures in UNCLOS are to preserve the rights of the parties “or to prevent serious harm to the marine environment”. Arguably, the UNFSA grounds are more specific than the UNCLOS grounds and reflect the subject matter of the Agreement. In practice, it is unlikely that the difference is significant apart from making it clear that damage to fish stocks is a category of serious harm to the marine environment. Finally, article 31(3) provides that a state that is not a party to UNCLOS may declare that ITLOS cannot prescribe provisional measures without the agreement of the state. This presumably was included to cater to some states’ concerns about being subject to the dispute settlement processes of a treaty to which they are not party. It is interesting that such states agreed to the application of the dispute settlement processes mutatis mutandis but not the use of provisional measures.
It would not be strictly necessary to include a separate provision on provisional measures in the BBNJ Treaty unless one of these differences was considered essential to include. As it stands, article 290 outlines a process for provisional measure that has appeared to work well so far.
Therefore, there is a good case that some, but not all, of the dispute settlement provisions in the UNSFA could be adapted for the BBNJ Treaty. The fact that no disputes have arisen under UNFSA does not eliminate its utility. The existence of a compulsory dispute settlement process may encourage states to negotiate or compromise when issues arise that could be subject to such a process (Örebech, Sigurjonsson and McDorman, 133).
The parallel dispute settlement problem and article 30(1) UNFSA
The tribunal in the Southern Bluefin Tuna award, the first arbitral dispute brought under Part XV of UNCLOS, considered whether it had jurisdiction over a dispute that arose under UNCLOS and an RFMO convention. It concluded that, where a dispute arose under UNCLOS and another treaty, article 281 of UNCLOS meant that the existence of a voluntary dispute settlement procedure in the other treaty amounted to an agreement between the parties to exclude the compulsory dispute settlement procedures of UNCLOS (pp 43-44). In that case, the fact that the RFMO convention stated that parties could choose to submit their dispute to third party settlement was considered to rule out the application of the compulsory processes. In a dissenting opinion, Sir Kenneth Keith argued that article 281 required an explicit statement ruling out recourse to the compulsory procedures under UNCLOS.
The Southern Bluefin Tuna award has been criticised by some commentators. They argued that the effect of the award was to severely limit the cases in which the compulsory dispute settlement procedures can apply where a dispute arises under more than one treaty. This is particularly a problem since the majority of treaties have a dispute settlement clause similar to that in the SBT Award.
The Southern Bluefin Tuna arbitration arose prior to UNFSA’s entry into force. The arbitral tribunal suggested at the end of its decision that the UNFSA might avoid the procedural problems encountered in that case (p 48). At first glance it is hard to see how this might be, given that the importing of Part XV into the UNFSA also brings article 281, which would consequently apply to the dispute settlement clause in the other treaty. However, it has been suggested that the crucial element was the inclusion of article 30(2) of UNFSA, which applied Part XV to disputes arising under RFMO treaties. The effect of article 30(2) would be to ensure that the dispute settlement provision in the RFMO treaty would be essentially overridden by Part XV, thus allowing the compulsory dispute settlement procedures to apply (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, 71). This interpretation has not been tested by any court or tribunal.
The arbitral tribunal in the South China Sea award on jurisdiction returned to this issue in 2015. Although it found that it was not necessary for it to come to a final conclusion on the matter, the Tribunal expressed its preference for the approach taken by Sir Kenneth Keith in the Southern Bluefin Tuna arbitration. Therefore, the Tribunal concluded that a reference to voluntary dispute settlement under another instrument did not rule out the compulsory procedures under UNCLOS. Rather, the decision to exclude UNCLOS compulsory procedures required a clear statement opting out (para 224). Following this decision, there is a clear split between the jurisprudence of the two cases. The conciliation commission in the dispute between Australia and Timor-Leste, while not deciding on the precise point at issue in the above two cases, interpreted an agreement between the two states not to seek settlement as consistent with compulsory dispute settlement (para 224). Thus, it has been argued that the more recent application of article 281 of UNCLOS has both denuded dispute settlement provisions in other treaties of proper effect whilst allowing scope for more cases to be resolved under UNCLOS compulsory processes (Natalie Klein, “The Vicissitudes of Dispute Settlement under the Law of the Sea Convention” (2017) 32 International Journal of Marine and Coastal Law 332, 340).
The result of this divergence in the jurisprudence is a lack of clarity about the effect of a dispute settlement clause in a treaty where a dispute might arise under two treaties including UNCLOS or another treaty using its settlement provisions. On one reading, the mere existence of a standard, voluntary dispute settlement clause in the other treaty would rule out recourse to the compulsory procedures in Part XV. On another reading, the compulsory dispute settlement procedures are available unless the other treaty expressly rejects such a move.
When considering what dispute settlement clauses should be included in the BBNJ Treaty, it is no longer clear the effect of applying Part XV mutatis mutandis, in terms of the implications for disputes arising under more than one treaty. It should be noted that, since the Southern Bluefin Tuna arbitration, the trend for ITLOS and Annex VII tribunals has been to find jurisdiction when it has been challenged (Klein, 342). Therefore, it is likely that if a dispute arose, for example, under the Treaty and the Antarctic Treaty, the presence of a standard dispute settlement clause would not prevent a tribunal finding it had jurisdiction over the dispute. If Parties do not wish this to occur, they would be advised to include a specific provision making this clear. On the other hand, the ability for a tribunal to consider such cases would be a move towards a more comprehensive system of dispute settlement under UNCLOS and the BBNJ Treaty.
Options raised during the Intergovernmental Conference
As mentioned above, two ideas were suggested during IGC3 about how the dispute settlement provisions might be further developed. The first was that the default forum for dispute settlement be changed from an arbitral tribunal, as set out in article 287(5) of UNCLOS, to ITLOS. The second suggestion was for the option for the COP to request an advisory opinion from ITLOS.
The suggestion that the default forum under the BBNJ Treaty be ITLOS came from a range of states and groups, including the African Group and Pacific Small Island States, and Sri Lanka. The key motivation for this proposal is that the cost of conducting arbitration is very high compared to hearing disputes before an existing court or tribunal. For developing countries, this would make access to dispute settlement more equitable. It has also been highlighted that the promise of control over the appointment of arbitrators is illusory in many cases because in reality the choice is often that of the President of ITLOS (Boyle, 190).
The first question will be whether delegations are willing to adopt this approach. States already have the choice to make a declaration under article 287 selecting ITLOS as their default forum, and only around 37 States have done so. This is a small portion of the 168 State Parties, although it has to be noted that the number of States selecting ITLOS has been increasing in recent years. This may reflect that ITLOS has been attempting to increase its profile among State Parties.
The second question is whether having a different default settlement forum for the BBNJ Treaty as opposed to UNCLOS would lead to potential problems. It is possible to foresee a situation where a dispute raises questions about the interpretation of both UNCLOS and the BBNJ Treaty. If two States in dispute had made no declarations under either UNCLOS or the BBNJ Treaty, what would be the default forum for the dispute: an arbitral tribunal or ITLOS? One can imagine that the BBNJ Treaty could include a statement to the effect that where the dispute arises under both conventions, that ITLOS would be the default, but this is inviting a level of confusion.
The second proposal is to allow the COP to request an advisory opinion from ITLOS. The key question is whether this is consistent with UNCLOS. In Case 21, the ITLOS was requested to provide an advisory opinion on the request of the Sub-Regional Fisheries Commission. Ten States made submissions to ITLOS arguing that it did not have jurisdiction to provide an advisory opinion in that case as it is not authorised by UNCLOS. Nevertheless, ITLOS decided in that case that it did have such jurisdiction when provided for by a treaty (Yoshifumi Tanaka, “Reflections on the Advisory Jurisdiction of ITLOS as a Full Court: The ITLOS Advisory Opinion of 2015” (2015) 14 Law and Practice of International Courts and Tribunals 318). Although not all states and commentators agree with the decision (E.g. Tom Ruys and Anemoon Soete, “’Creeping’ Advisory Jurisdiction of International Courts and Tribunals? The Case of the International Tribunal for the Law of the Sea” (2016) Leiden Journal of International Law 155), it could be argued that ITLOS’ jurisdiction to provide advisory opinions when authorised under a treaty is now a fait accompli. However, the opposition to such jurisdiction may prevent agreement to include the option in the BBNJ Treaty. Indeed, at IGC 3, China expressed doubt that ITLOS could be given jurisdiction under the BBNJ Treaty.
Leaving such doubts to one side, there is a good argument that giving the COP the power to request an advisory opinion would be sensible. The BBNJ Treaty primarily applies to activities in areas beyond national jurisdiction, which is seen as part of the global commons. If there is a question whether a State is complying with the BBNJ Treaty, it is likely that it will arise outside a strictly bilateral context. The relative scarcity of cases in which a state has brought a claim on behalf of the interests of the international community in environmental protection indicates that states may not have large incentives to spend political capital and energy pursuing a bilateral claim in such circumstances. There is a real question the extent to which a contentious case between two states can adequately safeguard community interests (Yoshifumi Tanaka, ‘Reflections on Locus Standi in Response to a Breach of Obligations Erga Omnes Partes: A Comparative Analysis of the Whaling in the Antarctic and South China Sea Cases” (2018) 17 Law and Practice of International Courts and Tribunals 527, 543). Finally, there is also the possibility that a general question of interpretation will arise that the COP considers it appropriate to resolve at an early stage. In such cases, an advisory opinion, available upon the request of a majority of parties in the COP, would be an attractive way to deal with emerging issue involving legal questions.
A further possibility might be to empower other institutions to request an advisory opinion about legal issues arising from the intersection between the BBNJ Treaty and another treaty. This is particularly attractive if an issue arises as to whether the COP has overstepped its mandate in relation to ‘not undermining’ another treaty. In many respects this would be similar to what article 30(2) of UNFSA does, in applying a dispute settlement process to the interpretation of another treaty entirely.
It is, of course, too early to predict what the dispute settlement provisions in the BBNJ will look like. This comment has focused on evaluating the current draft texts and proposals that emerged at IGC 3. Dispute settlement is an important aspect of legal frameworks, especially those operating under UNCLOS, and yet it has not been adequately discussed in the meetings so far. There are good reasons for this: there is still significant disagreement on the content of the substantive provisions of the treaty and it seems premature to devote considerable time to dispute settlement before the final shape of the treaty is at least visible to delegations. However, as the fourth of four authorised meetings approaches there is likely to be considerable pressure on delegations to conclude an agreement quickly. One hopes that this will not see a rushed approach to negotiating crucial provisions such as those relating to the settlement of disputes under the BBNJ Treaty.
* This note was written while the author was a MacCormick Fellow at Edinburgh Law School and develops ideas presented at a conference on “25 Years of the United Nations Convention on the Law of the Sea”, Hamburg, 17-18 October 2019. I am grateful to James Harrison for his useful feedback on an earlier draft.
This post may be cited as: Joanna Mossop, “Dispute Settlement in the New Treaty on Marine Biodiversity in Areas beyond National Jurisdiction” (December 23, 2019), on-line:J Mossop Dispute Settlement in the BBNJ Treaty NCLOS
To subscribe to The NCLOS Blog by email, please go to: https://site.uit.no/jclos/