¹ An excellent presentation of the background that led to the Conference is Fauteux, Paul, “L’initiative juridique canadienne sur la pêche en haute mer” (1993), 31 Canadian Yearbook of International Law 33-87CrossRefGoogle Scholar, translated as “The Canadian Legal Initiative on High Seas Fishing” (1993), 4 Yearbook of International Environmental Law 51.

² See Barston, Ronald, “United Nations Conference on Straddling and Highly Migratory Fish Stocks” (1995), 19 Marine Policy 159CrossRefGoogle Scholar; Balton, David A., “Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks” (1996), 27 Ocean Development and Int’l L.J. 125 at 133–35CrossRefGoogle Scholar; Hayashi, Moritaka, “The Role of the United Nations in Managing the World’s Fisheries” in Blake, G. H., et al., eds., The Peace Management of Transboundary Resources, 378–79 (Dordrecht: Graham & Trotman/ Martinus Nijhoff, 1995)Google Scholar; and de Yturriaga, José A., “Fishing in the High Seas: From the 1982 UN Convention on the Law of the Sea to the 1995 Agreement on Straddling and Highly Migratory Fish Stocks” (1995), 3 African Yearbook of International Law 151 at 162–64.Google Scholar

³ Reprinted at (1995), 34 International Legal Materials 1547 [hereinafter 1995 Agreement]. The choice of this title is described in Balton, supra note 2 at 135. For a detailed description of the 1995 Agreement, see Tahindro, André, “Conservation and Management of Transboundary Fish Stocks: Comments in Light of the Adoption of the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks” (1997), 28 Ocean Development and Int’l L.J. 1CrossRefGoogle Scholar. For a more succinct review of the 1995 Agreement, see Balton, supra note 2, and Hey, Ellen, “Global Fisheries Regulations in the First Half of the 1990s” (1996), 11 Int’l J. of Marine and Coastal Law 459 at 472–82CrossRefGoogle Scholar. As of Aug. 5, 1997, 15 states, including the U.S., had ratified the 1995 agreement. Canada is in the process of changing its domestic law to facilitate ratification. Pursuant to Art. 40, the Agreement is to come into force 30 days after the receipt of 30 ratifications.

⁴ Dr. Nandan’s closing remarks at the conference are reprinted in “Deal Far-reaching, Bold and Revolutionary” (Sept. 1995), Fishing News Int’l, at 2. The other two pillars of the 1995 Agreement were identified as the conservation and management principles for stocks, which include the precautionary approach and the enforcement and compliance provisions.

⁵ See generally McDorman, T. L., “Canada’s Aggressive Fisheries Actions: Will They Improve the Climate for International Agreements?” (1995), Vol. 2, No. 3 Canadian Foreign Policy 5–28CrossRefGoogle Scholar; Lugten, G. L., “Fisheries War for the Halibut” (1995), 25 Environmental Policy and Law 223Google Scholar; Freestone, David, “Canada and the EU Reach Agreement to Settle the Estai Dispute” (1995), 10 Int’l J. of Marine and Coastal Law 397CrossRefGoogle Scholar; Bergin, Anthony, et al., “Marine Living Resources” in Kriwoken, L. K., et al., eds.,Oceans Law and Policy in the Post-UNCED Era: Australian and Canadian Perspectives 193–98 (The Hague: Kluwer Law Int’l, 1996)Google Scholar; Reiver, Michael, “The Turbot War: Gunboat Diplomacy or Refinement of the Law of the Sea” (1996), 37 Les Cahiers de Droit 543Google Scholar; Joyner, Christopher C. and von Gustedt, Alejandro Alvarez, “The îggs Turbot War: Lessons for the Law of the Sea” (1996), 11 Int’l J. of Marine and Coastal Law 425Google Scholar; and Springer, Allen L., “The Canadian Turbot War with Spain: Unilateral State Action in Defense of Environmental Issues” (1997), 6 J. of Environment and Development 26.CrossRefGoogle Scholar

Numerous disputes have arisen regarding the activities of fishing vessels in high seas waters adjacent to 200-n. mile zones. An overview of these disputes is provided by Evelyne Meitzer, “Global Overview of Straddling and Highly Migratory Fish Stocks: The Nonsustainable Nature of High Seas Fisheries” (1994), 25 Ocean Development and Int’l L.J. 255 at 268–305. The Iceland-Norway dispute regarding the loophole in the Barents Sea is of particular interest, since Iceland, once an aggressive state regarding fisheries jurisdiction, is in the position of relying on high seas freedoms. See Gudmundsson, Thorir, “Cold War on the High Seas: Norwegian-Icelandic dispute over ‘Loophole’ fishing in the Barents Sea” (1995), 64 Nordic J. of Int’l L. 557.CrossRefGoogle Scholar

⁶ See Rivlin, Michael, “A U.N. Treaty Takes on the World’s Fisheries” (March 1996), National Fisherman 28 at 84.Google Scholar

⁷ An excellent statement of this reality is provided by Schachter, Oscar, International Law in Theory and Practice 218 (Dordrecht: Martinus Nijhoff, 1991):Google Scholar[Governments] recognize that there is a place, and even a necessity, for adjudication but as the record shows, the actual recourse to arbitration or courts is comparatively minimal in relation to the number of legal disputes disputes adjudicated. Litigation is uncertain, time consuming, troublesome. Political officials do not want to lose control of a case that they might resolve by negotiation or political pressures. Diplomats naturally prefer diplomacy; political leaders value persuasion, manoeuvre [sic] and flexibility. States do not want to risk losing a case when the stakes are high or to be troubled with litigation in minor matters.

⁸ Bilder, Richard B., “International Third Party Dispute Setüement” (1989), 17 Denver J. of Int’l Law and Policy 471 at 479Google Scholar commented: “Recent experience … raises questions as to the usefulness or effectiveness of third-party intervention in the absence of real and continuing consent on the part of all the disputing parties.” The recent experience referred to by Bilder was the non-participation of the U.S. in the Nicaragua litigation before the International Court of Justice: Case Concerning Military and Paramilitary Activities in and against Nicaragua, [1986] ICJ Rep. 14. Non-appearance as a litigation strategy is commented upon by Gill, Terry D., Litigation Strategy at the International Court 76–81 (Dordrecht:Martinus Nijhoff, 1989).Google Scholar

⁹ See infra note 17.

¹⁰ Foreign Affairs and International Trade, Press Release (May 10, 1994) “Canada Takes Action to End Foreign Overfishing.”

¹¹ Fisheries Jurisdiction (Spain u Canada), Application Instituting Proceedings, [1995] ICJ Rep 87.

¹² Fisheries Jurisdiction Cases, Jurisdiction, [1972] ICJ Rep. 3 and Fisheries Jurisdiction Cases, Merits, [1973] ICJ Rep. 3. See generally Jonsson, Hannes, Friends in Conflict: The Anglo-Icelandic Cod Wars and the Law of the Sea (London: C. Hurst, 1982)Google Scholar and Hart, Jeffrey A., The Anglo-Icelandic Cod War of 1972–1973 (Berkeley: Institute of Int’l Studies, Research Series No. 20, 1976).Google Scholar

¹³ Filleting within the Gulf of St. Lawrence between Canada and France ( 1986), 19 U.N. Reports of Int’l Arbitral Awards 225. See generally concerning the Arbitration: Burke, William T., “A Comment on the ’La Bretagne’ Award of July 17, 1986: The Arbitration between Canada and France” (1988), 25 San Diego L. Rev. 495Google Scholar and McDorman, T. L., “French Fishing Rights in Canadian Waters: The 1986 La Bretagne Arbitration” (1989), 4 Int’l J. of Estuarine and Coastal L. 52.CrossRefGoogle Scholar

¹⁴ E.g., Case concerning the Delimitation of the Maritime Areas between Canada and France, June to, 1992, reprinted in ( 1992), 31 Int’l Legal Materials 1148. For an excellent analysis of this decision, see Politakis, G. P., “The French-Canadian Arbitrarion around St. Pierre and Miquelon: Unmasked Opportunism and the Triumph of the Unexpected” (1993), 8 Int’l J. of Marine and Coastal Law 105.CrossRefGoogle Scholar

¹⁵ E.g., Lobsters From Canada, Final Report of the Canada-U.S. Free Trade Agreement Panel, May 25, 1990. At issue in this trade decision was a U.S. embargo on certain lobsters from Canada. The Panel held that the embargo was not inconsistent with the Canada-U.S. Free Trade Agreement

¹⁶ This direct link between the 1995 Agreement and the LOS Convention was the product of intense negotiations. See Tahindro, supra note 3 at 45–46.

¹⁷ A detailed history of the dispute settlement regime of the LOS Convention is provided by Adede, A. O., The System for Settlement of Disputes Under the United Nations Convention on theLaw of the Sea (Dordrecht: Martinus Nijhoff, 1987)Google Scholar and Rosenne, Shabtai and Sohn, Louis B., eds., United Nations Convention on the Law of theSea, 1982: A Commentary, Vol.5, 3–146 (Dordrecht: Martinus Nijhoff, 1989).Google Scholar A convenient overview can be found in Merrills, J. G., International Dispute Settlement, 166–72 (2nd ed., Cambridge: Grotius, 1991).Google Scholar An excellent analysis of the workability of the LOS Convention dispute settlement regime is provided by John King Gamble, Jr. “The 1982 UN Convention on the Law of the Sea: Binding Dispute Setdement?” (1991), 9 Boston Univ. Int’l L.J. 3g. A recent detailed study of the LOS Convention dispute setdement regime is provided by Brown, E. D., “Dispute Settlement and the Law of the Sea: the UN Convention Regime” (1997), 21 Marine Policy 17.Google Scholar

The LOS Convention dispute settlement regime has its detractors. See Shigeru Oda, “The International Court of Justice from the Bench” (1993), 244 Recueil des Cours 9 at 139-55. See also the response to Judge Oda in Chamey, Jonathan I., “The Implications of Expanding International Dispute Setdement Systems: The 1982 Convention on the Law of the Sea” (1996),90 Amer. J. of Int’l L. 69.Google Scholar This debate, as well as an insightful analysis of the LOS Convention dispute setdement regime, is canvassed in Boyle, Alan E., “Dispute Setdement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction” (1997), 46 Int’l and Comparative L. Q. 37.CrossRefGoogle Scholar The application of the LOS Convention dispute setdement regime to fisheries issue is discussed in Dahmani, M., The Fisheries Regime of the Exclusive Economie Zone, 117–23(Dordrecht: Martinus Nijhoff, 1987).CrossRefGoogle Scholar

¹⁸ Canada has not yet become a party to the LOS Convention. See generally Chircop, Aldo, “Canada and the Law of the Sea: Perspectives and Issues for Canadian Accession,” in Kriwoken, et al., supra note 5 at 75–96Google Scholar; Huebert, Rob, “Canada and the Law of the Sea Convention” (1996–97), 52 Int’l J. 69–88Google Scholar and McDorman, T. L., “Will Canada Ratify the Law of the Sea Convention?” (1988), 25 San Diego L. Rev. 535–579.Google Scholar

¹⁹ Burke, William T., The New International Law of Fisheries, 124 (Oxford: Clarendon Press, 1994)Google Scholar; Dahmani, supra note 17 at 121 and Boyle, supra note 17 at 43.

²⁰ See generally Burke, ibid., 82–150; Brown, E. D., The International Law of the Sea, 286–314 and 317–25 (Aldershot: Dartmouth Publishing, 1994)Google Scholar and United Nations, The Law of the Sea: The Regime for High-Seas Fisheries (New York, United Nations, 1992).

²¹ See Tahindro, supra note 3 at 48.

²² The work of many of the international fisheries organizations that manage highly migratory and straddling stocks is discussed in Meitzer, supra note 5 at 268-322. See also Alberto Szekely and Barbara Kwiatkowska, “Marine Living Resources,” in Sand, P. H., ed. The Effectiveness of International Environmental Agreements: A Survey of Existing Legal Instruments, 256–301 (Cambridge: Grotius Publications, 1992)Google Scholar and Hey, Ellen, The Regime for the Exploitation of Transbound-ary Marine Fisheries Resources, 131–274 (Dordrecht: Martinus Nijhoff, 1989).Google Scholar

²³ See Parsons, L. S., Management of Marine Fisheries in Canada, 263–83 (Ottawa: National Research Council of Canada, 1993).Google Scholar Respecting the role and operation of NATO in the context of the 1995 Canada-EU dispute, see Day, Douglas, “Tending the Achilles Heel of NAFO: Canada Acts to Protect the Nose and Tail of the Grand Banks” (1995), 19 Marine Policy 257.CrossRefGoogle Scholar

²⁴ See Arts. 8–13 and 17 of the 1995 Agreement and Tahindro, supra note 3 at 20–32.

²⁵ Under Art. 297(3) (a) of the 1982 LOS Convention:

See generally Dahmani, supra note 17 at 121–23.

²⁶ See Art. 7 of the 1995 Agreement; Balton, supra note 2 at 136-37 and Tahindro, supra note 3 at 14–18.

²⁷ Tahindro, supra note 3 at 49.

²⁸ Art. 16(2) of the 1995 Agreement directs that Art. 7(4) applies where agreement is not reached on compatible conservation measures respecting a high seas area surrounded by a single state.

²⁹ See generally Burke, supra note 19 at 95-99 and Peterson, M. J., “International Fisheries Management” in Haas, P. M. et al., Institutions for the Earth: Sources of Effective International Environmental Protection, 249–305 (Cambridge: MIT Press, 1995).Google Scholar

³⁰ The use (or abuse) of the objection procedure within the Northwest Atlantic Fisheries Organization by Spain and the European Union was a key irritant in the 1995 Canada-Spain dispute. See Bergin, supra note 5 at 194 and Day, supra note 23 at 261-63. Before the 1995 dispute, Parsons, supra note 23 at 277 commented: “The evidence was overwhelming that the EC’s extensive use of the objection procedure was eroding the authority and effectiveness of NAFO.”

In 1996, NAFO created a working group to examine the use of a dispute setdement process to address misuse of the objection procedure: Fisheries and Oceans Canada, Press Release (Sept. 16, 1996) “NAFO Recognizes Canadian Decision-Making for Northern Cod.”

³¹ The fishing actions of non-NAFO members has long vexed Canada. See Parsons, supra note 23 at 281 and Day, supra note 23 at 261–63.

³² Arts. 17(1) and (2) of the 1995 Agreement. See also Art. 8(3) and (4) of the 1995 Agreement; Balton, supra note 2 at 138–39; Hey, supra note 3 at 476; and Tahindro, supra note 3 at 25–27.

³³ Clearly this situation only arises for states that are a party to the 1995 Agreement.

³⁴ Annex VII of the LOS Convention sets out the procedure for establishing an arbitral tribunal and Annex VII concerns special arbitral tribunals. The func-tional distinction is that the mandate of an arbitral tribunal is exclusively adjudicative, while a special arbitral tribunal can be either adjudicative or restricted to fact-finding. See Annex VII and VIII of the LOS Convention.

³⁵ United Nations, Law of the Sea Bulletin, No. 32, 101–2 (New York: United Nations, 1996). For an analysis of the selections made by states, see Louis B. Sohn, “Setdement of Law of the Sea Disputes” (1995), 10 Int’l J. of Marine and Coastal Law 205 at 207–10 and Brown, supra note 17 at 30-34.

³⁶ “Int’l Tribunal Starts Work” ( 1997), 27 Environmental Policy and Law 2–4 and see Brown, supra note 17 at 34–37.

³⁷ Art. 2(1), Annex VI of the LOS Convention.

³⁸ How successful the LOS Tribunal will be is a central part of the debate about the LOS Convention dispute setdement regime. See Oda, supra note 17; Charney, supra note 17; and Boyle, supra note 17.

³⁹ See Art. 3, Annex VII and Art. 3, Annex VIII of the LOS Convention.

⁴⁰ See Art. 15, Annex VI of the LOS Convention respecting the LOS Tribunal and Brown, supra note 17 at 37-38. Regarding chambers of the ICJ, see Art. 26 of the Statute of the International Court and, more generally, Eduardo Valen-cia-Ospina, “The Use of Chambers of the International Court of Justice” in Lowe, V. and Fitzmaurice, M., eds., Fifty Years of the International Court of Justice, 503–27 (Cambridge: Grotius Publications, Cambridge Univ. Press, 1996).Google Scholar

⁴¹ See Art. 17, Annex VI of the LOS Convention respecting the LOS Tribunal and, for the ICJ, Art. 31 of the Statute of the International Court.

⁴² Concerning Art. 36(6), see Szafarz, Renata, The Compulsory Jurisdiction of the International Court of Justice, 14–16 (Dordrecht: Martinus Nijhoff, 1993).Google Scholar

⁴³ A summary of the recent controversy is provided in Lauterpacht, E., “Partial Judgments and the Inherent Jurisdiction of the International Court of Justice” in Lowe and Fitzmaurice, supra note 40 at 465–86.Google Scholar

⁴⁴ Brown, supra note 17 at 29 commented: “What precisely is included among these additional standards and rules of international law is not clear.”

⁴⁵ Concerning the international legal rationales employable by Canada, see Bergin, supra note 5 at 194-95. More generally, see Springer, supra note 5.

⁴⁶ It may also not be a good way to deal with international environmental concerns. Increasingly international environmental “issues” are ones of conflicting moral values rather than scientific or legal disputes. Particularly respecting marine living resource “issues,” the rhetoric of preservation is replacing conservation and different communities may not feel as strongly about preservation. The debates surrounding dolphins, turtles, whales, and driftnet fishing reflect this increasing divide. See Burke, supra note 19 at 145–6.

⁴⁷ Art. 16(2) of the 1995 Agreement.

⁴⁸ See Brown, supra note 17 at 30.

⁴⁹ See Elkind, Jerome B., Interim Protection, 153–66 (The Hague: Martinus Nijhoff, 1981)Google Scholar; Sztucki, Jerzy, Interim Measures in the Hague Court, 260–302 (Deventer: Kluwer, 1983)Google Scholar; and Thirlway, H. W. A., “The Indication of Provisional Measures by the International Court of Justice” in Bernhardt, R., eds., Interim Measures Indicated by International Courts, 28–33 (Berlin: Springer-Verlag, 1994).Google Scholar

⁵⁰ Art. 111 of the 1982 LOS Convention codifies the criteria that must be met for hot pursuit. See Brown, supra note 20 at 295–99 and Reuland, Robert C., “The Customary Right of Hot Pursuit onto the High Seas: Annotations to Art. 111 of the Law of the Sea Convention” (1993), 33 Virginia J. of Int’l L. 557.Google Scholar Brown discusses the 1986 Canadian hot pursuit case of Regina v. Sunila and Solayman (1986), 28 D.L.R. (4th) 450 (N.S.S.C. A.D.).

⁵¹ High seas arrests for activities that take place on the high seas are sanctioned by the LOS Convention only for piracy, Art. 105, and unauthorized broadcasting, Art. 109(3). However, the right to visit a vessel on the high seas, Art. 110, may also lead to seizures respecting vessels engaged in the slave trade and vessels without nationality. See generally Brown, supra note 20 at 299–314 and Moritaka Hayashi, “Enforcement by Non-Flag States on the High Seas under the 1995 Agreement on Straddling and Highly Migratory Fish Stocks” (1996), 9 Georgetown Int’l Environmental L. Rev. 1 at 4–10.

⁵² Treves, Tullio, “The Proceedings Concerning Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea” (1996), 11 Int’l J. of Marine and Coastal Law 179 at 186.CrossRefGoogle Scholar

⁵³ Art. 292 is discussed in detail in Treves, ibid, at 179–200; Anderson, David H., “Investigation, Detention and Release of Foreign Vessels under the UN Convention on the Law of the Sea of 1982 and Other International Agreements” (1996), 11 Int’l J. of Marine and Coastal Law 165CrossRefGoogle Scholar; and Lagoni, Rainer, “The Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea: A Preparatory Report” (1996), 11 Int’l J. of Marine and Coastal Law 147.CrossRefGoogle Scholar

⁵⁴ Hayashi, supra note 51 at 10–27 describes the negotiations about this issue in detail.

⁵⁵ While “clear grounds” is not defined in the 1995 Agreement, “a serious violation” is defined in detail in Art. 21(11).

⁵⁶ For a detailed description of the enforcement provisions of the 1995 Agreement, see Hayashi, supra note 51 at 10-27 and Tahindro, supra note 3 at 37–40.

⁵⁷ See Treves, supra note 52 at 186-87 and Anderson, supra note 53 at 171–74.

⁵⁸ Treves, ibid., 187.

⁵⁹ Art. 30(2) also integrates all the LOS Convention dispute settlement regime into disputes regarding regional fisheries management arrangements.

⁶⁰ As noted by Anderson, supra note 53 at 172–73.

⁶¹ Art. 292(2) of the 1982 LOS Convention.

⁶² Art. 284 of the 1982 LOS Convention.

⁶³ There is a growing international literature respecting conciliation. For a useful overview, see Merrills, supra note 17 at 59–79.

⁶⁴ Art. 297(3) (b) of the 1982 LOS Convention and supra notes 25–27.