Some Reflections on the Resolution of State-to-State Disputes in International Waters Governance Agreements

Richard Kyle Paisley, Alex Grzybowski

Abstract

This paper reviews various dispute resolution mechanisms that have, or may have, application in international waters governance agreements. International waters are water resources that are shared by two or more states. They include international freshwater, international groundwater and international Large Marine Ecosystem (LMEs) situations. There are a number of possible types of dispute resolution mechanisms in international waters governance agreements. They include: (1) international courts, such as the International Court of Justice; (2) standing regional courts and tribunals, such as the Southern African Development Community (SADC) Tribunal; and (3) ad hoc arbitration, such as arbitrations administered by the Permanent Court of Arbitration. While no one type of dispute resolution mechanism is suitable for all states in all situations, some of the objectives that may be sought in dispute resolution in international waters governance agreements arguably include: (1) obtaining an effective remedy; (2) obtaining a correct result and (3) maximizing the efficiency, in terms of cost and/or timing, of the decision-making process. Having an efficacious dispute resolution enforcement mechanism in an international waters governance agreement may help ensure that a state can obtain an effective remedy even when an opposing state fails to voluntarily comply with a decision in a timely manner. Providing for an enforcement mechanism in an international waters governance agreement may also help encourage voluntary compliance as it may move states to consider the costs of non-compliance.

Keywords

governance; international water law; dispute resolution; arbitration; tribunal; sea; convention; transboundary; enforcement; compliance; mediation; negotiation;

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