WRITTEN QUESTION E-0940/99

by Daniel Varela Suanzes-Carpegna (PPE) to the Commission

(13 April 1999)

Subject: Obligation to go before the International Court of Justice for the peaceful resolution of disputes under the 1995 New York Convention on straddling fish stocks and highly migratory fish stocks

Given that the Commission has not answered my previous question P-0103/99(1) and referring once again to the statement made by Commissioner Emma Bonino at the plenary sitting of 12 January 1999 to the effect that ratification of the New York Convention "would clearly prevent Canada from withdrawing from the Court's jurisdiction as it did in 1994/1995" (minutes of the sitting of 12 January 1999, p. 80), and given that this is not a trivial matter and that we may be facing a major difference in interpretation of the significant part VIII (and not IX as the Commission claims) of the New York Convention, can the Commission provide answers to the following.

We do not question the obligation inherent in the Convention to make use of peaceful means to settle disputes, nor the binding nature of the solution arrived at through the peaceful means chosen. However, if the system provided for in Article 30 of the Convention, which refers back to Part XV of the 1982 Convention on the Law of the Sea, enshrines - as the Commission acknowledges in its replies - the principle that states are free to choose the means to resolve disputes, how can a state - Canada - be obliged to agree to submit to compulsory jurisdiction of the International Court if this is only one of the various means envisaged in Article 287 of the Convention?

Returning to my earlier question, therefore, can the Commission say on the grounds of what legal precept and with what legal basis it maintains, as it claimed at Parliament's plenary sitting, that Canada would be obliged to go before the International Court of Justice to resolve a dispute arising with the EU within the framework of the Convention once both were party to the 1995 New York Convention and once that Convention had entered into force, particularly given the fact that, under Article 287(5)(part XV) of the 1982 Convention, where two parties to a dispute have not accepted the same procedure, the only possibility open is arbitration?

Answer given by Mrs Bonino on behalf of the Commission

(7 May 1999)

Part VII of the 1995 United Nations agreement on straddling fish stocks and highly migratory fish stocks refers back to the general scheme for the settlement of disputes laid down in Part XV of the 1982 United Nations Convention on the law of the sea. Under this scheme, states are free to agree upon means of dispute settlement of their own choice but those means must lead to compulsory and binding dispute settlement (see Articles 280 to 282 of the 1982 Convention). Article 286 of the Convention stipulates that any dispute not resolved by means of the parties' own choice shall be referred, at the request of any party to the dispute, to compulsory procedures entailing binding decisions. To this end, Article 287 (1) offers a free choice between four possible procedures. The provisions of Article 287 (3) and (4) specify, however, that where a party or parties to a dispute have made no such choice or have not accepted the same procedure, the dispute must be submitted to arbitration in accordance with Annex VII.

Except for a number of specified limitations pertaining essentially to the exercise by a coastal state of its sovereign rights or jurisdiction over its exclusive economic zone (see Article 297), the scheme provides for no escape clauses. Had such a scheme been available in connection with the Estai case (the arrest of the Spanish trawler outside Canada's 200-mile zone in 1995), it would have been possible to institute proceedings at least before the arbitral tribunal set up under Annex VII, the tribunal would have had jurisdiction to hear the merits of the case and to render a binding decision, and it would not have been possible for the defendant party to elude international adjudication by way of a simple declaration.

(1) OJ C 325, 12.11.1999.