The case in international law for Canada's extension of fisheries jurisdiction beyond 200 miles

In March 1995, Canadian fisheries authorities boarded and arrested the Spanish fishing vessel, Estai, outside the Canadian 200‐mile zone on the Grand Banks, an event that served to focus world attention on a dispute that had its origins in the failure of the 1982 United Nations Convention on the Law of the Sea to implement an effective conservation and management regime for fish stocks on the high seas, particularly with respect to fish stocks that straddle coastal states’ exclusive economic zones. This article examines the origins of the dispute, including the allegations relating to overfishing of North Atlantic Fisheries Organization‐recommended quotas, the background to the vessel's arrest, and the subsequent confrontation that occurred, both at diplomatic levels and on the high seas, between Canada and the European Union. An analysis is made of the case in international law for Canada's extension of jurisdiction beyond 200 miles pursuant to the provisions of Section 5 of the Coastal Fisheries Protection Act. Finally, the article examines the implications of the recently concluded Agreement on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks for disputes of the kind that arose in the present case.     

Chile's Presential sea proposal: Implications for straddling stocks and the international law of fisheries

Abstract

Despite rapid evolution in international fisheries law and establishment of the exclusive economic zone (EEZ), straddling stocks still remain susceptible to heavy harvesting in high seas areas by distant‐water fishing states there by undermining coastal state management. The notion mar presencial (presential sea) has recently been proposed by Chile as a solution for the problem of straddling stocks. The presential sea concept was nationally designed and promoted to curtail such foreign fishing in areas adjacent to Chile's EEZ. This article examines the presential sea as a geostrategic concept, its justification for being, and the question of its permissibility under contemporary international fisheries law. Attention is also given to recent international developments that challenge the legal viability of the presential sea concept. The authors conclude that if this concept were to be widely adopted by coastal states, the traditional freedom to fish on the high seas might be severely compromised. The preferable legal solution is to work within the parameters set out by the 1982 UN Convention on the Law of the Sea, more particularly through bilateral negotiations between coastal states and fishing states, as well as regional fishery commissions that could manage activities in the region.     

Thailand's fisheries: A victim of 200‐mile zones

Abstract

During the 1970s, Thailand emerged as the major distant‐water fishing nation in Southeast Asia. By the 1980s, Thailand's neighboring states had introduced 200‐nautical‐mile economic zones with the consequence that the Thai fishing industry faces a loss of approximately 300,000 square kilometers of fishing grounds that had been utilized by the Thai trawler fleet. The Thai fishing industry will face a difficult time in the next decade as neighboring states take action to remove foreign vessels from their 200‐mile zones and the Thais are forced into their small zones in the Gulf of Thailand and Andaman Sea. Thailand, as a developing country with a distant‐water fishing fleet, is a victim of the 200‐mile economic zones.     

Northwest atlantic fisheries arrangements: A test of the species approach

Abstract

The United States government has advanced a proposal for a “species”; approach to the resolution of problems in the management and distribution of living marine resources. Under this approach, the management and distribution of the stocks of coastal species of fish would be handled by negotiation among interested parties on a stock‐by‐stock basis, with certain preferential rights accorded to the coastal state. This approach is now being tested in the developments taking place in the arrangements for the Northwest Atlantic fisheries. Here, IS nations agreed to divide up among themselves the annual yields of 14 separate stocks of fish. In addition, it has now been proposed that there be a limit on the total amount of fishing effort and a division of the total among states. The controls are based solely on the physical attributes of fishing and fail to take account of economic consequences. Because of this, questions can be raised about the viability of the arrangements and of the “species”; approach to the international law of fisheries.     

Highly migratory species in the new law of the sea

Abstract

The 1982 Convention on the Law of the Sea provides for coastal state sovereign rights over all living resources within the exclusive economic zone, but in a separate article makes special provision for so‐called highly migratory species (HMS) that are specifically identified in an Annex to the treaty. This paper examines the basic treaty provisions concerning all fisheries in the EEZ, highlighting the position of HMS, and then devotes detailed consideration to the regulation of fishing for HMS in light of Article 64 and other articles of the treaty. Discussion centers upon the requirements of Article 64, including the duty of cooperation and its subject matter, the meaning and consequence of failure to cooperate, the manner of cooperation under Article 64, and the application of the treaty to enclaves of high seas. Attention is given to the application to HMS of specific obligations under Articles 61 and 62, authority over HMS fishing within archipelagic waters, and the use of fish aggregation devices. There is also consideration of the relationship between the 1982 Convention and customary law regarding HMS, with particular attention to the position vis‐a‐vis the Convention of the United States as a nonsignatory who does not recognize coastal state jurisdiction over tuna but claims sovereign rights over all other highly migratory species within its recently proclaimed exclusive economic zone.     

Fishing negotiations at the Third United Nations Conference on the Law of the Sea

Abstract

One of the major consequences of the negotiations at the Third United Nations Law of the Sea Conferences (UNCLOS III) was a substantial reduction of the international commons in which the freedom to fish existed and the creation of what was supposed to be a sui generis zone, the 200‐mile exclusive economic zone (EEZ), but within which the coastal state would have a virtual monopoly on the right to allocate resources. How this was done at UNCLOS III is analyzed using a model that shows the progress over time on major issues of the parliamentary‐diplomatic‐style negotiation in which consensus was required for an acceptable outcome. The shifting positions of major states and bargaining groups as they maneuvered toward consensus is examined on the questions of the creation of the 200‐mile EEZ, the rights of foreign fishermen in the EEZ, the fishing rights of geographically disadvantaged states in the EEZ, and the management of highly migratory species. The analysis shows that the new ocean regime, created through complex tradeoffs and strenuous issue‐by‐issue bargaining, was critically influenced by fisheries issues.     

The application of a market theory to the regulation of international fisheries

Abstract

This paper discusses the roles of ecological and economic information in the political and legal matrix of international fisheries. An argument is made for vesting exclusive management authority in a monopoly subject to a constraint that stocks not be depleted beyond the point of economic restitution. It is suggested that an appropriate authority be chosen by the criterion of the closest merging of ecological, economic, sociological, and political self‐interests. The reallocation of fishing effort by market dealings rather than by governmental negotiations is visualized as a means to reduce international conflicts over fishing rights. Precedents for the various elements of this model and the dangers inherent in it are discussed.     

Coastal States in the South China Sea and Submissions on the Outer Limits of the Continental Shelf

The purpose of this article is to examine the outer continental shelf submissions made by the coastal states of the South China Sea and their potential impact on legal and political developments in the South China Sea. In accordance with the United Nations Convention on the Law of the Sea of 1982 and the guidelines of the Commission on the Limits of the Continental Shelf, coastal states are to establish the outer limits of their continental shelf where it extends beyond 200 nautical miles. Meeting this obligation is complicated in enclosed or semienclosed seas where there are maritime disputes such as in the South China Sea.     

Marine scientific research under emerging ocean law

Abstract

The traditional “fifth freedom”; of the high seas—freedom of scientific research—has been considerably eroded by recent coastal state claims to 200‐mile offshore zones. Insofar as these claims include competence to regulate marine scientific research, they are about to be endorsed in the adoption of a new Law of the Sea Convention by the Third U.N. Conference on the Law of the Sea. The author assesses the significance of the claims and examines the features of the “consent regime”; established through the negotiations at the Conference.     

Extended fishery jurisdiction in canada and the united states

Abstract

The 200‐mi fishery zone is a reality presenting opportunities for coastal states to create new institutions or pursue new management strategies. The strategies followed by the United States and by Canada in the initial stages of their extended‐jurisdiction management programs have similarly stated goals yet offer a number of striking contrasts in development and application. These domestic fishery management programs are discussed in their sociolegal and historical contexts. The domestic legal authority for the management programs is reviewed, planning procedures and available sanctions are outlined, and the control of domestic and foreign fishing is discussed. Finally, an argument is advanced for greater participation in the development of fishery management plans and a possible system for implementation is suggested. It is concluded that the American management system is open, decentralized, and highly structured. In contrast, the Canadian system is closed, relatively centralized, and very flexible. Both approaches are considered extreme yet there is no evidence of the development of new procedures for management decision making.     

Defining Seaward Boundaries in a Domestic Context: Norway and the Svalbard Archipelago

Abstract

This article analyzes a little-noticed aspect of the international legal controversy pertaining to Svalbard’s maritime zones. It concerns where and by which method Norway should draw the boundaries between Svalbard’s continental shelf and the 200-mile zone, on the one hand, and other maritime zones subject to Norwegian jurisdiction, on the other. The assumption upon which the discussion rests is that the Spitsbergen Treaty signatories enjoy treaty rights in the maritime zones beyond Svalbard’s territorial waters. The law of the sea does not contain rules on the drawing of maritime boundaries between different parts of a state’s territory, but the rules on delimitation between states offer a strong analogy. In the search for an equitable solution, primacy should be given to geographical factors. The article argues that Norway could do more to enhance the openness regarding the Svalbard delimitation question since its outcome will be of significant interest to other states.     

The politics of a new legal order for fisheries

Illegal, unreported, and unregulated (IUU) Fishing is considered a major threat to high seas fish stocks. Each of the the international regional fishery management organizations (RFMOs) are combating some form of IUU fishing and this led the Food and Agriculture Oranization of the United Nations (FAO) to adopt the International Plan of Action to Deter, Prevent and Eliminate IUU Fishing (IPOA-IUU). This article will analyze the issues involved with IUU fishing, examine the recommendations in the IPOA, and consider examples of successful management and enforcement measures in use by states and RFMOs. Finally, recent developments in China will be viewed as an example of how international cooperation is contagious.     

Creeping jurisdiction beyond 200 miles in the light of the 1982 law of the sea convention and state practice

Abstract

This article attempts a complex examination of problems pertaining to actual and potential extensions of coastal state rights and jurisdiction beyond the limit of 200 miles in the light of 1982 Law of the Sea Convention and state practice. Extension of the continental shelf regime, in the context of its outer limit beyond 200 miles, the entitlement of rocks to this limit, and the scope of coastal state rights and duties, is analyzed first. It is followed by discussion of the extension of the exclusive economic zone (EEZ) or fishery zone regime, which involves extension of certain coastal state fishery rights on the one hand, and the right of intervention in cases of maritime casualties and the liability regime for oil pollution damage on the other hand. Attention is also paid to presently speculative extensions of both regimes as a consequence of sea level rise. The author concludes that, if a continuing nontreaty situation deprives recourse to compulsory dispute settlement, the worst‐case scenario of spatial extension of the entire EEZ regime to the outer edge of the continental margin could not with certainty be excluded.     

Regulating Shipping in the Arctic Ocean: An Analysis of State Practice

The United Nations Convention on the Law of the Sea (LOSC) permits state parties to establish an Exclusive Economic Zone (EEZ) 200 nautical miles from their coast. Coastal states have exclusive jurisdiction over resources within the EEZ, but navigational and other high seas freedoms continue to exist. A significant number of states have, however, enacted legislation that departs from the LOSC, interfering with the navigational rights and freedoms of other states. This article analzses this development with a specific focus on the Arctic. It investigates the powers of Arctic coastal states to regulate shipping in the EEZ and thereby navigation in the Arctic Ocean. It adds to the existing literature by providing an analysis of state practice, suggesting that despite uncertainty concerning the interpretation of the LOSC Article 234 and the right to exercise legislative jurisdiction over ice-covered waters, a not insignificant number of states have claimed jurisdiction in their own EEZ beyond the rights granted in the LOSC, and are therefore not in a position to object to extensive jurisdictional claims in the Arctic.     

Characterizing fishing effort and spatial extent of coastal fisheries

Biodiverse coastal zones are often areas of intense fishing pressure due to the high relative density of fishing capacity in these nearshore regions. Although overcapacity is one of the central challenges to fisheries sustainability in coastal zones, accurate estimates of fishing pressure in coastal zones are limited, hampering the assessment of the direct and collateral impacts (e.g., habitat degradation, bycatch) of fishing. We compiled a comprehensive database of fishing effort metrics and the corresponding spatial limits of fisheries and used a spatial analysis program (FEET) to map fishing effort density (measured as boat-meters per km2) in the coastal zones of six ocean regions. We also considered the utility of a number of socioeconomic variables as indicators of fishing pressure at the national level; fishing density increased as a function of population size and decreased as a function of coastline length. Our mapping exercise points to intra and interregional 'hotspots' of coastal fishing pressure. The significant and intuitive relationships we found between fishing density and population size and coastline length may help with coarse regional characterizations of fishing pressure. However, spatially-delimited fishing effort data are needed to accurately map fishing hotspots, i.e., areas of intense fishing activity. We suggest that estimates of fishing effort, not just target catch or yield, serve as a necessary measure of fishing activity, which is a key link to evaluating sustainability and environmental impacts of coastal fisheries.     

The new law of the sea: Rethinking the implications for sovereign jurisdiction and freedom of action

This article examines the effects of the 1982 UN Convention on the Law of the Sea on sovereign jurisdiction and freedom of action in key sea zones covered under this Convention for coastal, noncoastal, and landlocked states pursuant to the modifications contained in the 1994 Implementation Agreement. In order to determine whether or not the treaty increases, decreases, or has no effect on state sovereign‐jurisdiction and freedom of action in the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, the archipelagic regime, international straits, the high seas, and the deep seabed, the rights and duties of states set forth in this Convention are compared with those previously recognized in the 1958 Geneva Law of the Sea Conventions, state practice, and other sources of international law.     

Controversies in strategy of marine fisheries development between eastern and western countries

Abstract

The expansion of distant‐water fishing activities of the Eastern countries to date is causing not only a growing concern by the coastal nations but also interest in the theoretical principles and criteria applied for developing a strategy of fishery development in these states. Obviously, there are many discrepancies between Western and Eastern theories in this field. Among them we can quote the concept of inexhaustibility of the ocean living resources, both traditional and new resources. This concept supports a further catch increase. The key problem lies in technological progress. Pure economic criteria are less important factors because the principal task of Eastern fisheries is to stave off shortages of animal proteins in local markets. Consequently, only maximum utilization of fishery resources is accepted. The importance of marine fisheries lies also in generating employment opportunities, principally in land‐related activities. Eastern distant‐water fisheries can continue to develop if the principle of surplus catches and historic rights is respected by coastal nations. Freedom of open‐sea resources utilization should be maintained. The traditional management system of world fisheries is the most desirable solution for future sea regimens. International cooperation in fisheries should be considered not only in economic terms but also as a source of political gains.     

National legislation on ocean authority zones and the contemporary law of the sea

Abstract

Unilateral claims to 200‐nautical‐mile zones of varying forms of national jurisdiction continue to proliferate as the LOS negotiations continue. Legislation from thirty‐nine nations establishing exclusive economic zones is examined. Discussion and comparison include the scope of authority claimed, the range in activities affected, the exclusiveness of authority asserted, the extent of recognition of the interests and rights of other states, and the geographic extent of individual claims. The primary focus is upon comparing provisions that concern or directly relate to navigation in the zone. After brief discussion of the draft LOS treaty provisions concerning access to the zone for transportation and communication, the disparity between these provisions and some national measures is noted.     

Peacetime military activities in the exclusive economic zone of third countries

Abstract

Although the 1982 U.N. Convention on the Law of the Sea reaffirms the freedoms of navigation and overflight in the Exclusive Economic Zone (EEZ), its language is flexible enough to be construed as restraining military activities of third countries in the zone. On the other hand, the Convention allows enough latitude of interpretation to include the right to conduct naval activities in a foreign EEZ. The peaceful‐purposes clauses of the Convention do not, in this respect, create any new obligations beyond the obvious general principle of banning the use of force in international relations. The reluctance of UNCLOS III to adopt a clear and unambiguous solution of the problem is likely to result in disputes between naval powers, primarily developed states, and coastal states of the Third World over the attribution of rights to military uses of the EEZ, especially with regard to naval maneuvers, weapon tests, and emplacement of military devices in this zone.     

Arctic marine fishes and their fisheries in light of global change

In light of ocean warming and loss of Arctic sea ice, harvested marine fishes of boreal origin (and their fisheries) move poleward into yet unexploited parts of the Arctic seas. Industrial fisheries, already in place on many Arctic shelves, will radically affect the local fish species as they turn up as unprecedented bycatch. Arctic marine fishes are indispensable to ecosystem structuring and functioning, but they are still beyond credible assessment due to lack of basic biological data. The time for conservation actions is now, and precautionary management practices by the Arctic coastal states are needed to mitigate the impact of industrial fisheries in Arctic waters. We outline four possible conservation actions: scientific credibility, ‘green technology’, legitimate management and overarching coordination.