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.     

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.     

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.     

Revisiting the Freedom of Fishing and Legal Obligations on States Not Party to Regional Fisheries Management Organizations

For decades, states have cooperated through regional fisheries management organizations (RFMOs) on the conservation and management of living marine resources on the high seas. Nonmembers, or third states not bound by their decisions, have been an Achilles’ heel. In this article, the legal status of RFMO nonmembers and the freedom of fishing are examined. It is concluded that RFMO nonmembers have concrete obligations with respect to established fisheries subject to RFMO regulation.     

Military Uses of Ocean Space and the Law of the Sea in the New Millennium

Military uses of ocean space consist of both movement rights and operational rights. Only movement rights, which include all rights associated with the mobility of seaborne forces, were codified in the LOS Convention. Operational rights, on the other hand, are primarily customary rights that are governed by the regime of freedom of the seas and defended by the naval power of the United States. This article begins by examining freedom of the seas as a principle of international law, as a bundle of user rights, and as a doctrine. It next examines the major challenges to freedom of the seas in terms of a construct called controlled access. After summarizing the major historical elements of controlled access, the article closes with a brief analysis of the threats to freedom of the seas for military purposes that are posed by multipolarity, the shift in U.S. naval strategy from the open seas to the coastal littorals, and in the withering away of U.S. naval superiority. The major arguments advanced throughout the article are that military uses of ocean space are hegemonic in nature, that their preservation depends on clear maritime superiority, and that they will come under increasing challenge and restriction as the balance of power at sea shifts from unipolarity to multipolarity by the middle of the new millennium.     

The Return to a Mare Clausum Through Regional Fisheries Management Organizations?

The operation of regional fisheries management organizations (RFMOs) may transform the high seas into mare clausum, by threatening the premise of the freedom of the high seas―equal access of all states to the high seas. This arises since the procedure to become a party to RFMOs prevents states from enjoying the freedom of fishing. Moreover, formal and substantive equality is not ensured in the decision-making process of RFMOs. However, in order to avoid this threat to mare liberum, RFMOs are making some efforts toward more rational and equitable management.     

The new ocean regime and Japan

Abstract

Japan is an island nation which is heavily dependent upon the surrounding seas for food, importation of raw materials, exportation of finished products, and for national security. Japan is also the world's largest fishing and shipping nation, which poses certain problems and imposes special responsibilities on her. Japan has traditionally followed the principle of freedom of the high seas, but under the external pressure of developments at UNCLOS III and unilateral actions by other states, Japan has been forced to accept and accommodate herself to the new concept of transit passage through international straits, the twelve nautical mile territorial sea, and the two hundred nautical mile exclusive economic zone, which were perceived as contrary to her national interests. However, Japan is adapting to the new ocean regime that is emerging from both customary and conventional international law, because she has confidence that a stable regime is more important in the long run than some short‐term advantages that might be obtained through the absence of any regime. Furthermore, as one of the highly developed nations of the world, Japan feels a special responsibility to play an effective role in aiding and assisting the developing nations of the world.     

Piracy and Privateers in the Golden Age: Lessons for Today

Customary international law has governed high seas piracy for many centuries and is now codified in the United Nations Convention on the Law of the Sea (LOSC). In this article, we discuss the reasons why enforcement against piracy today is less effective than three hundred years ago. We contend that crime, including the crime of piracy, can be modeled as a rational choice that is responsive to expected rewards and punishments. Based on this view, we argue that three hundred years ago, the free rider problem resulting from enforcement on the high seas was less prevalent than it is today because seaborne trade was more concentrated in the vessels of a few countries, making enforcement more like internal than international policing. The persistence of piracy today also stems from a continuing low probability of capture coupled with lenient punishments. In addition to enforcement differences, we contrast the sources of piracy in the two eras—in the earlier period, the end of privateering led many privateers to engage in piracy, whereas today, the main source of pirates in the Western Indian Ocean is the existence of a “failed state,” and off West Africa and South East Asia pirates are common criminals.     

Submarine Communications Cables and Law of the Sea: Problems in Law and Practice

Submarine communications cables laid on the seabed of the ocean are the foundation of the world's international telecommunications network. International law, in particular, the law of the sea, has recognized the freedom to lay submarine cables and perform associated operations and has placed certain obligations on states related to the protection of submarine cables. This article examines the international law with respect to submarine cables and discusses the various problems with both the law and state practice on submarine cables. It argues that these problems are illustrations of the traditional challenges that face the law of the sea; that is, the balancing and accommodation of competing uses of ocean space. It concludes that an important step toward resolving these problems is enhanced consultation and cooperation between cable companies and governments and that efforts should focus on creating such mechanisms.     

Migrants in the Mediterranean: Do's and Don’ts in Maritime Interdiction

Mediterranean European Union member states have to deal with thousands of migrants arriving by sea every year. Frontex (the EU external borders agency) organizes joint surveillance operations at sea to interdict these migrant boats, helping states to cope with the problem. This article discusses the legality of these maritime interdictions done by Frontex according to the international law of the sea as well as the conformity of the operations with the nonrefoulement principle.     

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.     

Security aspects of Danish and Norwegian law of the sea policies

Abstract

Denmark and Norway are strategically located near two of the major Soviet fleets stationed at Kaliningrad and Murmansk. In order for the Baltic Fleet stationed at Kaliningrad to gain access to the high seas of the North Atlantic Ocean, it must pass through the Belts, the Kattegat, the Skaggerak, and the North Sea or the Straits of Dover. In order for the Northern Fleet stationed at Murmansk to gain access to the high seas of the North Atlantic Ocean, it must pass through the Svalbard Passage between the North Cape of Norway and the Svalbard archipelago down through the Greenland‐Iceland‐United Kingdom (GIUK) gap. These strategic locations of Denmark and Norway give rise to several security issues that affect the law of the sea policies of both states.     

A Note on the European Union's Integrated Maritime Policy

This article analyses the characteristics of the Commission on the Limits of the Continental Shelf as an international decision-making institution in the process of establishing the seaward limits of the continental shelf beyond 200 nautical miles from the baselines of the territorial sea under Article 76 of the 1982 UN Convention on the Law of the Sea. The Commission may be compared to scientific bodies established to give advice relating to the implementation of treaty provisions. However, in the exercise of its functions, the Commission also performs legal-administrative tasks, and its recommendations to individual coastal states entail significant legal effects; for instance, as a means of interpretation under the Vienna Convention on the Law of Treaties. The Commission's functions and competencies must be taken into account in classifying and understanding this unique international institution.     

Port-State Jurisdiction,Extraterritoriality, and the Protection of Global Commons

Port-state jurisdiction has been used as a means of circumventing the inadequacies of enforcement on the high seas and of flag states’ ineffectiveness, but also the absence of international rules due to lack of consensus at the international level. Pressing and complex problems related to the global environment and global commons, such as depletion of fisheries, marine and atmosphere pollution, and climate change, and foot-dragging in the international community to effectively cooperate to tackle these problems have brought the concept of unilateral regulation of extraterritorial activities to the forefront. In this respect, the role of the port state, as a first point of contact for industries engaged in activities harmful to the global commons (i.e., fishing and shipping), is increasingly important. This article examines the scope and limits of port-state jurisdiction with respect to measures that may have an extraterritorial impact in the light of the law of the sea and international rules on jurisdiction. The aim of the article is to assess whether the practice of port states in exercising jurisdiction has contributed to developments regarding the exercise of (extraterritorial) jurisdiction as a regulatory tool for the protection of global commons. By identifying elements of current state practice regarding exercise of port-state jurisdiction, the article advances a framework for the most effective exercise of port-state jurisdiction for the protection of global commons with reference to the principle of common concern.     

The Proliferation Security Initiative (PSI) and Interdiction at Sea: A Chinese Perspective

The Proliferation Security Initiative has been surrounded by questions and criticisms pertaining to its legality since its inception. However, after nearly a decade of existence and development, it appears now that the actions conducted pursuant to the PSI have, by and large, been consistent with the principles of flag state jurisdiction, the nonuse of force, and sovereign equality and have not substantially impeded states’ maritime rights in the territorial sea, contiguous zone, exclusive economic zone, or on the high seas.     

Canada and the law of the sea

Abstract

This paper gives a compact overview of Canadian policy on the law of the sea. Section I looks at Canada's maritime attributes, and the policy interests which arise from them. Section II describes the development of Canada's policy in ten issue areas, and examines the outcomes for Canadian diplomacy at UN‐CLOS. Section III covers the strategy and technique used by Canada in pursuit of its law of the sea objectives, and explores five reasons underlying its high level of influence and success. The conclusions consider Canada as a case study of middle‐power influence, and look at the role of unilateral action in the process of international law‐making.     

Developing nation imperatives for a new law of the sea: UNCLOS I and III as stages in the international policy process

Abstract

This paper seeks to compare the two major law of the sea conferences of the post‐World War II period in terms of imperatives for moving toward a more equitable international system. Transitions in the international system which have taken place in the years between the conferences are analyzed, as well as differences in conference participation and procedures. The paper then focuses upon the necessity for policy to be formulated in such a way that imbalances in opportunities for utilization of the seas are redressed. Special attention is given the status of the landlocked and geographically disadvantaged states. The 1977 Negotiating Text is commented on from this perspective. Proposals for development of ocean law/policy in UNCLOS III more congruent with achievement of global equity are then set forth.     

Today's Customary International Law of the Sea

International courts and tribunals, governments, and scholars over the past half-century (many in the past two decades) have identified various provisions of the 1958 and 1982 treaties on the law of the sea that are customary international law and thus binding on all states, including those not party to these treaties. This article systematically collects these opinions and identifies provisions that have not yet attracted their attention.     

The law of the sea and management of anadromous fish stocks

Abstract

Unilateral declarations of 200‐mi fishing zones by coastal states are likely to find universal recognition in new articles of international law. These probably will conform to the Single Negotiating Text currently under discussion in continuing sessions of the Third Conference on the Law of the Sea. The articles of this Text are clearly designed to protect and strengthen the fisheries rights of coastal states. Ironically, the new rules may prove counterproductive in respect of the major salmon stocks that migrate beyond 200‐mi limits. Effective protection of state‐of‐origin rights on the high seas beyond these limits will be difficult. Distant water fishing fleets experiencing reduced access to 200‐mi coastal zones will be tempted to increase, their efforts on stocks found in the remaining high seas. Salmon interception by neighboring states will also remain a problem. The article analyzes protective strategies and accommodations that may be pursued by states of origin.     

Reconciling Biodiversity with Fishing: A Holistic Strategy for Pacific Sea Turtle Recovery

Recovery of sea turtle populations requires addressing: multiple sources of mortality; nonmarket, diffuse benefits with costs localized on the poor; and a transboundary resource with incomplete jurisprudence, markets, and institutions. Holistic recovery strategies include: beach conservation protecting nesting females, their eggs, and critical breeding habitat to maximize hatchling production; enhanced at-sea survival of turtles on the high seas and in commercial coastal fisheries; and reduced artisanal coastal fisheries mortality of turtles. The traditional approach of focusing long-term sustained conservation efforts on the nesting beaches has by itself led to increases in several sea turtle populations. However, current conservation is inadequate to reverse declines in other cases such as the critically endangered leatherback populations in the Pacific. This article discusses policy instruments comprising a holistic recovery strategy that reconciles fishing with biodiversity conservation.