Ocean Governance and the Exploitation of Marine Living Resources

1. Ocean Governance and the Exploitation of Marine Living Resources State Jurisdiction over Marine Living Resources

2. The High Seas:Definition under International Law • Maritime areas falling outside national jurisdiction are referred to as the High Seas.Article 1 of the 1958 Geneva Convention on the High Seas defines the High Seas as, ‘all parts of the sea that are not included in the territorial sea or in the internal waters of a State.’ • UNCLOS Article 86 does not actually provide a definition but establishes that the provisions of Part VII, entitled the ‘High Seas’, ‘apply to all parts of the sea not included in the exclusive economic zone, in the territorial sea or the internal waters of a State or in the archipelagic waters of an archipelagic State.’

3. The High Seas: Legal Status and Legal Implications. • The UNCLOS provision thus reflects State practice, which distinguishes between the High Seas and the establishment of the EEZ and EFZ, as maritime zones subject to coastal State jurisdiction. • The 1982 UNCLOS art 87 establishes that all States, whether coastal or landlocked, have access to the High Seas and ‘noState can exercise sovereignty or sovereign rights over all or any part thereof.’

4. The High Seas Freedoms • Art 89 also lays down that, ‘no State may validly purport to subject any part of the High Seas to its sovereignty.’ • These UNCLOS provisions codify the High Seas freedoms, which originated centuries ago to appease the perceptions and interests of States at the time. • High Seas Freedoms include the right of any State to have access to living resources on the High Seas: “The Freedom of Fishing”.

5. Mare Liberum vs Mare Clausum • Unhindered access and exploitation are still considered as prima facie predominant rights when it comes to the interpretation of freedom of fishing. • Such an assumption often leads to the abuse of State jurisdiction, which is exclusive over vessels flying its flag when these occur on the High Seas. • This comes at the expense of good governance of the common but finite living resources that occur therein.

6. High Seas Regime • For many years the High Seas freedoms of fishing comprised only negative elements and consisted basically of prohibitions. They were interpreted to mean that users of the sea were obligated, save a few exceptions, to observe an attitude of abstention towards one another. • The High Seas freedoms are still directed against the individual or collective exclusiveness of use by States. • It is also evident however that States do not interpret freedom from territorial sovereignty to mean that the sea is free from all juridical sovereignty or that the High Seas are an area, which falls outside the rule of law.

7. The Rule of Law on the High Seas • The absence of an International authority with the jurisdiction to regulate and police the High Seas, has directed the International community to make each vessel subject to the national legal system of a State, by registering it under its flag. • Under this system, any obligations resulting from registration devolve on the flag State, which must assume jurisdiction and control over the vessel – ‘Flag State Jurisdiction’.

8. The Rule of Law on the High Seas • Good governance of marine living resources in areas beyond national jurisdiction, depends upon the flag State and cooperation and commitment amongst all stakeholders. • The flag State has the right for its national to exploit MLR and the juridical responsibility to ensure law and order on the High Seas. • Other States, have an interest in the utilization of High Seas living resources and play an important, albeit limited role in: • Carrying out the necessary checks and balances, • Establishing the requisite organizational set up to ensure their conservation.

9. Qualifications to the HS Freedoms and the Freedom Fishing. • UNCLOS, provides a general qualification to ALL the HS freedoms: flag State must act, ‘with due regard,’ for the interests of other States. (art 87(2)). • The freedom of fishing is subject to the conditions of section two of Part VII that deal with the conservation and management of living resources on the High Seas. • Article 116 the Convention qualifies the freedom of fishing of States, as being ‘subject to’ : • any treaty obligations States may have • and the rights, duties and interests of coastal States • all the provisions of Section 2.

10. Qualifications versus Treaties to which FS are Parties Examples of such treaties include: • 1995 Agreement for the Implementation of the Provisions of UNCLOS of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (FSA), • Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, (FAO Compliance Agreement), • The 1992 UN Convention on Biological Diversity (CBD), • The 1973 Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), • The 1979 Bonn Convention on Migratory Species of Wild Animals (CMS) and its Agreements • The International Convention for the Regulation of Whaling (ICRW)

11. Treaties: Regional • The various regional and subregional fisheries agreements Examples include NAFO, ICCAT, GFCM, CCAMLR, NEAFC, IOTC, WCPFC, CCSBT. • The UNEP Regional Seas Agreements. There are 13 Regional Seas programmes established under the auspices of UNEP for the following regions: Black Sea, Wider Caribbean, East Asian Seas, Eastern Africa, South Asian Seas, ROPME (Kuwait Region) Sea Area, Mediterranean, North-East Pacific, North-West Pacific, Red Sea and Gulf of Aden, South-East Pacific, Pacific, and Western Africa. Six of these programmes, are directly administered by UNEP. These regional Agreements do not specifically regulate fisheries but they address biodiversity issues.

12. Qualifications versus Coastal States • When referring to the rights, duties and interests of coastal States UNCLOS Article 116 para (b) declares, ‘provided for inter alia in Article 63 paragraph 2 and articles 64 to 67’. Referring to straddling fish stocks, HMS, marine mammals, catadromous and anadromous species. • The term ‘inter alia’ denotes that not only the rights, duties and interests referred to in these provisions are to be taken into consideration but the rights, duties of coastal States ingeneral. • It establishes through article 116(b) that the right to exploit High Seas living resources cannot be considered in isolation from the same right, which the coastal State has within maritime areas falling under its jurisdiction.

13. Qualifications and Coastal States cont’d • The qualification to the freedom of fishing in response to coastal States’ rights, duties and interests: accepted in general terms but controversial when it comes to determine to what extent this qualification encroaches upon access to living resources on the High Seas. • The 1982 Convention regulates MLR according to a different legal regime depending upon where they occur: Part V regulates coastal States rights and duties in the EEZ, Part VI regulates coastal States rights over sedentary species on the continental shelf Part VII, section 2 regulates the use of living resources on the High Seas.

14. Qualifications versus other Flag States. Flag States are required to ‘enter into negotiations with a view to taking the measures necessary for the conservation of living resources’ when they either fish for the same species or for different species in the same area of the High Seas.

15. Unilateralism vs Cooperation Article 117 establishes that, ‘All States have the duty to take or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of living resources on the high seas’. This provision permits flag States to adopt unilateral conservation measures. But article 117 cannot be considered in isolation: unilateralism is permitted as long as it is subject to the qualifications listed in Section 2 Part VII.

16. Challenges • The balance between the freedom of fishing and the rights, duties and interests of the coastal States, which UNCLOS aimed to achieve is neither straightforward nor readily enforceable due to the general and ambiguous wording of the Convention’s provisions. • It left it up to States to beef up its framework nature via the conclusion of other multilateral and regional agreements. • Uncertainty prevails re: • The normative character of these subsequent legal instruments upon non Parties, • their hierarchy vis a’ vis UNCLOS and • their acquiescence by States as supplementing UNCLOS’ general nature, remains uncertain.

17. Normative Conflicts There are three main normative conflicts that may potentially arise due to this situation. • First, to what extent the duty to take necessary conservation measures on the High Seas impinges upon the rights of States to have their nationals exercise freedom of fishing. • Second, once the freedom of fishing is a qualified and not an absolute right, how does this affect coastal States’ capacity to encroach upon this freedom. • Third, to what extent does the International community, have the right to bring forward International claims against flag States whose nationals disregard conservation measures that were collectively agreed upon for that particular region on the High Seas.

18. Governance of MLR: The Flag State’s role • If the flag State adopts the ‘necessary conservation measures’ and exercises the adequate controls to ensure their compliance when its nationals fish on the High Seas, it would contribute to the good governance of this common resource and inevitably safeguard the rights and interests of the other stakeholders. • Is there a yard stick to measure Flag State’s compliance? UNCLOS does not provide a list of conservation measures against which, the High Seas fishing States may be assessed in order to determine whether they have fulfilled their obligation to take such ‘necessary’ conservation measures. (compare to EEZ) • Neither do the UNCLOS provisions, as an expression of International law, determine whether other States have a right to encroach upon this freedom, if flag States fail to abide by these qualifications.

19. Case Study: The Estai ( Spain v Canada) • The Fisheries Jurisdiction Case (The ESTAI Case), (Spain v Canada), ICJ General List No 96, (1998). • 3rd March 1995, Canada made certain amendments to its Coastal Fisheries Protection Regulations, the effect of which was that all vessels registered in Spain were prohibited from fishing Greenland halibut in the NAFO Regulatory Area and that offenders were subject to arrest, seizure of vessel and catch and fines. • The amendments were immediately notified to Spanish fishing vessels by radio. • The Estai incident took place less than a week later. The whole chain of events unfolded totally outside the framework of the NAFO Convention.

20. Case Study: The Estai ( Spain v Canada) • Under the framework of the NAFO Convention, the Fisheries Commission established thereunder is responsible for the management and conservation of the fishery resources of the "Regulatory Area“. • This regional Fisheries Commission may adopt proposals for joint action by the Contracting Parties designed to achieve the optimum utilization of the fishery resources of the "Regulatory Area". • It may also adopt proposals for international measures of control and enforcement within the "Regulatory Area" for the purpose of ensuring within it, the application of the Convention and the measures in force thereunder.

21. Case Study: The Estai ( Spain v Canada) • Each proposal adopted by the Commission shall become a measure binding on all Contracting Parties and any Commission member may present to the Executive Secretary of NAFO an objection to a proposal by virtue of article XII, para.1). • Within the framework of the NAFO Convention, the management and conservation of the fishery resources in the Regulatory Area, which is an area that lies beyond the fisheries jurisdiction of any coastal State-is the responsibility of the Fisheries Commission.

22. Case Study: The Estai ( Spain v Canada) In his dissenting opinion in the Estai Case, Judge Shigeru Oda insisted on this point, by remarking that the NAFO Convention, neither: • provides for the unilateral adoption by coastal States of fishery regulations intended to apply in the Regulatory Area, • nor entrusts coastal States with the enforcement of such regulations in that area of the High Seas.

23. Case Study: The Estai ( Spain v Canada) • Judge Oda argued that the only issue in dispute was, … whether Canada violated the rule of international law by claiming and exercising fisheries jurisdiction namely, • the prescribing of fishery regulations-including the exclusion of fishing vessels flying the Spanish flag-, • the enforcement of those regulations by Canadian government authorities • and the imposition of penal sanctions on a Spanish vessel and its master in an area of the high seas beyond the limit of its exclusive economic zone, • or whether Canada was justified in exercising fisheries jurisdiction in that area, on the ground of its honestly held belief that the conservation of certain fish stocks was urgently required as a result of the fishery conservation crisis in the Northwest Atlantic- irrespective of the NAFO Convention, which neither provides for the unilateral adoption by coastal States of fishery regulations intended to apply in the Regulatory Area, nor entrusts coastal States with the enforcement of such regulations in that area of the high seas.

24. Case Study: The Estai ( Spain v Canada) • The relationship between the way States implement these qualifications and the impact this has on the development of the flag State’s exclusive jurisdiction revolves around the evolution of the juridical capacity of the various stakeholders to bring forward International claims. • The reason for identifying, which State has the capacity to make such claims, is mainly to specify what kind of juridical authority a claimant State is asserting over an issue. The respondent State that answers with a counter claim must also show it possesses the juridical capacity to rebut in whole or in part, the principal claim. • It is the process of decision invoking sources of International law as a response to these claims, which helps to establish the applicable norm in the circumstances. This is this kind of State practice, pursuant to treaty provisions as well as independent thereof, which establishes International law.

25. Qualifications versus other States • Article 87 (2) establishes that the freedom of fishing shall be exercised by, ‘all States with due regard for the interests of other States in their exercise of the High Seas freedoms.’ • Since both land locked and coastal States can exercise the freedom of fishing on the High Seas, all States may be deemed to be potential flag States and are therefore bound to observe this qualification.

26. Qualifications versus Other States • Conversely the term ‘other States’ in article 87 (2) should refer to all States, which have the potential to exercise the High Seas freedoms. Coastal States whose jurisdiction extends over maritime areas adjacent to the High Seas and other flag States participants in the same High Seas fishery benefit from other qualifications to the freedom of fishing. • Article 87 (2) is the only provision, which qualifies the exercise of the freedoms in favour of the vested interest of all States, even if they do not fall within the scope of UNCLOS article 116(b) as coastal States and/or article 118 as a State participant in the same fishery. The major query surrounding this claim is: to what extent if at all is this vested interest translated into concrete obligations for flag States and how does it qualify their exclusive jurisdiction when fishing on the High Seas.

27. Qualifications versus Other States • The enjoyment of High Seas living resources is permissible so long as there “reasonable use” meaning no abuse of rights. • Problem: the subjective nature of what constitutes “reasonableuse”. The threshold beyond which, the exercise of the freedom of fishing is deemed “unreasonable” remains at the discretion of the High Seas fishing States.

28. Case Study: The Icelandic Fisheries Cases Icelandic Fisheries Cases, (UK v Iceland) and (FRG v Iceland), ICJ Rep (1974). • The International Court of Justice was asked to decide upon the legality of Iceland’s extension of its fisheries jurisdiction and the rights of the UK and the Federal Republic of Germany as High Seas fishing States to fish in the area. • The relevance of the Icelandic Fisheries Cases, which in most part was superseded by later developments embodied in the 1982 UNCLOS, revolves around a discussion on the relative nature of the rights of the States involved.

29. Case Study:Icelandic Fisheries Cases • The relevance of the Icelandic Fisheries Cases, which in most part was superseded by later developments embodied in the 1982 UNCLOS, revolves around a discussion on the relative nature of the rights of the States involved. • The ICJ also upheld as Customary International law, Germany’s and the UK’s right to exercise freedom of fishing. It declared that the Parties’ respective rights, both as the High Seas fishing States and the coastal State, were not absolute but…

30. Case Study: Icelandic Fisheries Cases ..had to take full account of each other’s rights and of any fishery conservation measures…. It is one of the advances of maritime international law, resulting from the intensification of fishing that the former laissez-faire treatment of living resources of the high seas has been replaced by a recognition of a duty to have due regard to the rights of other States and the needs of conservation for the benefit of all.

31. Due Regard under UNCLOS • Article 119 is particularly relevant when assessing to what extent if at all any State would have qualified legal standing to challenge a flag State’s abuse of rights when exercising freedom of fishing. • Article 87 establishes that the freedom of fishing is subject to the conditions of section two entitled, ‘Conservation and Management of High Seas Living Resources’ and the qualification to pay due regard to the interest of other States in the exercise of the High Seas freedoms. • Read together, these two qualifications, demonstrate that UNCLOS acknowledges the taking of conservation measures on the High Seas, as a guarantee for the continued exercise of freedom of fishing by all States.

32. Due Regard under UNCLOS • When taking conservation measures according to section two of Part VII, flag States are essentially fulfilling their duty to pay due regard to the interest of other States in the exercise of their High Seas freedoms. • The reference to ‘States’ in general, implies a common interest the international community has with respect to the conservation of living resources on the High Seas. • Post UNCLOS Agreements have continued with this trend particularly following the 1992 United Nations Conference on Environment and Development (UNCED) process.

33. Due Regard under UNCLOS The CBD, for instance attributed all States with a potential vested interest over biological diversity: • by establishing in its preamble that biodiversity is common concern of humankind and • by providing obligations for the conservation of biodiversity that promote an ecosystem approach. • This had an effect even on various fisheries Agreements that have sought to reassess and in some cases review the substantive obligations of the constituent Convention to align it with the ecosystem approach.

34. States right to make a claim on the basis of due regard • States relying on article 87(2), have to prove that this article provides them with a legal capacity to bring forward an international claim. • The best way to substantiate such a claim would be to interpret it not as their right to prohibit or restrain the flag State’s exercise of the High Seas freedoms but as an obligation on its part to cooperate with other States by not taking conservation measures that run counter or are inferior to those adopted via cooperation by participants in the Fishery. • Such an interpretation would show that the exercise of the freedoms in itself requires the distant water fishing State to take the necessary conservation measures and inform other States accordingly. • Interpretation in this sense would be in harmony with UNCLOS’ article 117, because rather than calling for the restriction of the flag State’s right to take unilateral conservation measures it is based on the flag State’s duty to cooperate with other States in order to fulfill its duty to pay, ‘due regard to the interests of other States’, even when it chooses to act on its own.

35. Conclusions • In sum, the exclusive nature of flag State jurisdiction on the High Seas has evolved, albeit in a cautious manner, to safeguard: the rights and interests of coastal States, other participants in High Seas fisheries and the international community as a whole. • This manifests itself in conservation obligations and enforcement measures, where there has been some headway in restricting the exclusivity of States’ jurisdiction from taking unilateral conservation measures dictated solely by national interests. • The best examples of conservation obligations that encroach upon the flag State’s exclusive jurisdiction are those imposing restrictions for fishing certain species on High Seas and for prohibiting the use of types of fishing gear.

36. Conclusions (cont’d) • UNCLOS requires States to take the ‘necessary’ ‘ conservation measures and the subsequent multilateral, regional and subregional Agreements attempt to establish certain minimum standards to express in substantive terms what type of ‘necessary’ conservation measures should be exercised. • The influence these treaties as a legal source supplementing the general provisions of UNCLOS, depends on the number of States adhering to them. Some like the CBD, the FSA and CITES have wide membership, including both coastal and long distance fishing States.

37. Conclusions (cont’d) • Subsequent MEAs marketed as supplementing rather than superseding UNCLOS but MAY NOT ALWAYS BE POSSIBLE eg Bioprospecting. • Uncertainty prevails when one comes to determine the current legal obligations of the non Party flag State, since it remains difficult to gauge whether certain conservation measures in these treaties have influenced the required opinion juris sive necessitatis to the extent that they have crystallized into Customary International law.

38. Conclusions (cont’d) • This does not mean however that State practice acquiesces to waiving the exclusivity of flag State jurisdiction by bestowing upon coastal States the right to exercise concurrent jurisdiction if the flag State breaches International law on the High Seas, at least not as a rule of Customary International law. • Some treaties like FSA and CCAMLR introduce amongst State Parties limited grounds for concurrent jurisdiction in compliance and enforcement on the High Seas but they still require the flag State’s specific consent for the coastal State Party intervene.

39. Governance Tools Co-Operation Monitoring and Compliance

40. Cooperation as an Indispensable Tool for Good Governance • Another indispensable element for the successful governance of a common resource is the necessary infrastructure to secure cooperation, monitoring and compliance, UNCLOS has left this requirement to the discretion of individual States as it only obligates them to cooperate or to negotiate with a view to seek agreement on conservation and optimum utilization of High Seas living resources. • The requirement to cooperate in the taking of conservation measures is also a qualification to the freedom of fishing under article 117, 118 and inherent in the qualification of freedom of fishing with respect to rights, duties and interests of the coastal States under article 116(b).

41. Cooperation thru Agreements • Article 116(a), establishes that High Seas fishing States must exercise freedom of fishing subject to the treaty obligations to which they are Parties. • Conservation measures in such treaties are in themselves, measures reached via cooperation. Examples of such treaties include ICCAT for tuna, the 1992 Convention for the Conservation of Anadromous Stocks in the North Pacific for salmon and NAFO and GFCM as examples of regional Agreements. • It is mandatory for High Seas fishing States Parties to such treaties, to adopt these measures with respect to vessels flying their flag. Various Fisheries Agreements have been concluded with respect to particular species such as tuna, salmon or in particular regions, whilst the FSA provides that conservation measures of regional Fisheries Agreements apply ipso facto upon its Parties, even if have not specifically adhered to the latter.