The University of Southampton
University of Southampton Institutional Repository

Compulsory settlement of compatibility fishery disputes:the theory of embedded clauses in article 7 of the agreement for the implementation of the provisions of the United Nations convention on the law of the sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks

Compulsory settlement of compatibility fishery disputes:the theory of embedded clauses in article 7 of the agreement for the implementation of the provisions of the United Nations convention on the law of the sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks
Compulsory settlement of compatibility fishery disputes:the theory of embedded clauses in article 7 of the agreement for the implementation of the provisions of the United Nations convention on the law of the sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks
The 1995 UN FISH STOCKS AGREEMENT established the principle of compatibility envisaging that conservation and management measures adopted within national Exclusive Economic Zones and those adopted on the adjacent high seas should be compatible. However, the aforementioned principle has been regarded as representing one of the most contentious elements in the new law of the sea régime. The ambiguity lies in the existent legal uncertainty about the measures which shall be regarded as the referential basis for international regulatory schemes. The above controversy becomes more acute in the shade of the doubtful application that the available disputes settlement provisions under the 1982 UN CONVENTION ON THE LAW OF THE SEA might have on this kind of disputes. The present disquisition studies the rationale behind an obscure system of clausal construction which was conceived by, and for first time emerged from the drafts of, the UN International Law Commission in early 1950s. This clausal construction refers to the peculiar pattern of legal drafting wherein procedural clauses are amalgamated into articles of substantive law. It is argued that treaty articles containing such clauses are predisposed to establish an inextricable connection between the substantive provisions and the provisions of procedure for the settlement of disputes. This kind of blended provisions represents a sui generis law, the peculiarity of which derives from its own insusceptibility to State auto-interpretation. The purpose of this analysis is to argue in favour of the compulsory application of the 1995 UN FISH STOCKS AGREEMENT’s settlement procedures on compatibility disputes in remaining unaffected by the operation of the procedural limitation. In advancing this argument the present thesis aims at developing a theory over the functional role of the procedural clauses which initially seem that for no obvious reason have been extracted from PART VIII of the AGREEMENT and been embedded into the substantive article of compatibility. By analysing thus the textual formation of embedded clauses the present thesis constructs its argument upon – and further advances – an existing proposition in the literature that views compulsory dispute settlement procedures as indispensable element of the substantive principle insofar as compatibility is vaguely construed in neutral terms; i.e., without a predetermined orientation in its geographical scope.
Ntovas, Alexandros
c770a980-34f6-4f24-8e08-eb3dae2e2bea
Ntovas, Alexandros
c770a980-34f6-4f24-8e08-eb3dae2e2bea
Serdy, Andrew
0b9326c4-8a5a-468f-9ca8-7368ccb07663

Ntovas, Alexandros (2011) Compulsory settlement of compatibility fishery disputes:the theory of embedded clauses in article 7 of the agreement for the implementation of the provisions of the United Nations convention on the law of the sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks. University of Southampton, School of Law, Doctoral Thesis, 340pp.

Record type: Thesis (Doctoral)

Abstract

The 1995 UN FISH STOCKS AGREEMENT established the principle of compatibility envisaging that conservation and management measures adopted within national Exclusive Economic Zones and those adopted on the adjacent high seas should be compatible. However, the aforementioned principle has been regarded as representing one of the most contentious elements in the new law of the sea régime. The ambiguity lies in the existent legal uncertainty about the measures which shall be regarded as the referential basis for international regulatory schemes. The above controversy becomes more acute in the shade of the doubtful application that the available disputes settlement provisions under the 1982 UN CONVENTION ON THE LAW OF THE SEA might have on this kind of disputes. The present disquisition studies the rationale behind an obscure system of clausal construction which was conceived by, and for first time emerged from the drafts of, the UN International Law Commission in early 1950s. This clausal construction refers to the peculiar pattern of legal drafting wherein procedural clauses are amalgamated into articles of substantive law. It is argued that treaty articles containing such clauses are predisposed to establish an inextricable connection between the substantive provisions and the provisions of procedure for the settlement of disputes. This kind of blended provisions represents a sui generis law, the peculiarity of which derives from its own insusceptibility to State auto-interpretation. The purpose of this analysis is to argue in favour of the compulsory application of the 1995 UN FISH STOCKS AGREEMENT’s settlement procedures on compatibility disputes in remaining unaffected by the operation of the procedural limitation. In advancing this argument the present thesis aims at developing a theory over the functional role of the procedural clauses which initially seem that for no obvious reason have been extracted from PART VIII of the AGREEMENT and been embedded into the substantive article of compatibility. By analysing thus the textual formation of embedded clauses the present thesis constructs its argument upon – and further advances – an existing proposition in the literature that views compulsory dispute settlement procedures as indispensable element of the substantive principle insofar as compatibility is vaguely construed in neutral terms; i.e., without a predetermined orientation in its geographical scope.

Text
Final_PhD_thesis-_Alexandros_Ntvos.pdf - Other
Restricted to Registered users only
Download (2MB)

More information

Published date: November 2011
Organisations: University of Southampton, Southampton Law School

Identifiers

Local EPrints ID: 345561
URI: http://eprints.soton.ac.uk/id/eprint/345561
PURE UUID: f1c7137b-ec3f-48d0-a2c1-c6bfaf65055b
ORCID for Andrew Serdy: ORCID iD orcid.org/0000-0002-4727-6536

Catalogue record

Date deposited: 22 Apr 2013 14:43
Last modified: 31 Oct 2019 01:36

Export record

Download statistics

Downloads from ePrints over the past year. Other digital versions may also be available to download e.g. from the publisher's website.

View more statistics

Atom RSS 1.0 RSS 2.0

Contact ePrints Soton: eprints@soton.ac.uk

ePrints Soton supports OAI 2.0 with a base URL of http://eprints.soton.ac.uk/cgi/oai2

This repository has been built using EPrints software, developed at the University of Southampton, but available to everyone to use.

We use cookies to ensure that we give you the best experience on our website. If you continue without changing your settings, we will assume that you are happy to receive cookies on the University of Southampton website.

×