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.     

The United States and the new law of the sea

Abstract

The official U.S. statement on the 32nd meeting of the International Whaling Commission (IWC termed the outcome a “modest success.”; However, from the point of view of conservationists—i.e., governments and private groups seeking greater protection for the world's endangered whales—the results of the 1980 IWC session can be described at best as satisfactory. The disappointing U.S. performance at this and other recent Commission proceedings strongly suggests the need for a reassessment of American cetacean policy and the way in which we pursue this policy in the IWC.

The discussion will begin with a review of U.S. objectives in the IWC in relation to national and international law governing cetaceans. The focus will then turn to the role played by the United States in the Commission's deliberations on selected issues in 1980. The conclusion will set forth recommendations for improvements in American policy and strategy in the IWC.     

The new law of the sea and the pacific basin

Abstract

The UN Convention on the Law of the Sea is indispensable for the well‐being of the states, especially the new island states, of the Pacific Basin. Since the Treaty will be signed at Caracas in December 1982, it is important to anticipate its impact in the Pacific Region area. The article examines the need for a new ocean law to replace the old law of the Geneva Conventions. It argues that exploitation of manganese nodules in the “Area”; will be legal only under the rules of Part XI of the Convention and that the principles of the Common Heritage of Mankind are now part of customary law. Finally, the seaward expansion of Pacific states authorized in the new treaty both necessitates, and provides an opportunity for, coordinated planning for the management of ocean resources and usages.     

Marine scientific research and the new law of the sea

U.S. policy is to encourage freedom of marine scientific research (MSR). This article compares the legal regimes governing the conduct of MSR under the 1958 Geneva Conventions on the Law of the Sea and the 1982 UN Convention on the’ Law of the Sea, which is approaching universal acceptance, and distinguishes MSR from survey activities. It argues that, notwithstanding the erosion of the physical areas of the ocean in which there is freedom of MSR under the Law of the Sea Convention, it provides mechanisms for states’ parties to obtain compliance by coastal states with their duties to grant consent, in normal circumstances, for MSR projects in the exclusive economic zone (EEZ) or on the continental shelf, and to establish rules and procedures ensuring that such consent will not be delayed or denied unreasonably. It also suggests establishment of a national marine scientific research program analogous to the U.S. Freedom of Navigation Program.     

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.     

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.     

Vietnam's national interests and the law of the sea

This article explores the relationship between Vietnam's national interests and the international law of the sea. Vietnam's national interests in the marine sphere include defense (the maintenance of a maritime buffer); international relations (enhancing its regional position through joint development and favorable resolution of boundary and fisheries disputes); and economics (stimulating development of its maritime resources). Although ratification of the 1982 Law of the Sea Convention would be somewhat disadvantageous to Vietnam's maritime defense strategy, many provisions would promote Vietnam's interests. Moreover, ratification and implementation of the Convention would signal Vietnam's support for international law and its desire to “rejoin”; the community of Southeast Asian nations. It might also encourage resolution of its boundary disputes, thus opening new areas to resource exploration and development by foreign companies.     

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.     

The law of the sea and regional fisheries policy

Abstract

The consequences of the inevitable acceptance of extended jurisdiction and its impact on fisheries policy in the South Pacific are considered within the framework of the principles outlined at the Third Session of the United Nations Law of the Sea Conference. It is pointed out that the fisheries resources of the region considered are dominated by highly migratory species, particularly tunas, and that the management of the fisheries on these species and the conservation of the species themselves will require comprehensive regional cooperation. Considering the common interests of the developing countries of the region and their comparative lack of experience in fisheries management and in surveillance and enforcement capabilities, it is argued that a regional fisheries agency is required. A wide range of possible functions for such a body is discussed and a three‐phase approach to the development of the agency is proposed.     

New concepts in the law of the sea

Abstract

Current ocean law negotiations reflect conflicts between two old and competing approaches: the view that the coastal state should control activities in any large adjacent ocean area, and the view that most of the ocean should be left open to the free use of all nations. Both approaches are laissez‐faire, leave the distribution of benefits to arbitrary factors, and are based on national exclusivity. In the negotiations this conflict is exhibited in competing claims regarding navigation, mineral resources, fishing, environmental protection, and strategic uses. A possible resolution has emerged in the concept of the whole ocean as a common resource of humankind, according to which no individual state has a right to benefit from the ocean except pursuant to arrangements sanctioned by the community, and rights to benefit are determined not arbitrarily but by membership in the community. The regime now likeliest to be produced by such an approach includes (1) a narrow territorial sea and various navigation guarantees, (2) a wide coastal band coupling coastal state managerial functions with permanent international prerogatives, and (3) purely international manage‐ment of the deep seabed.     

The European economic community and the law of the sea

Abstract

The European Economic Community (EEC) has the competence, to the exclusion of its Member States, to conclude international agreements in important fields, such as fisheries, on which the draft convention on the law of the sea contains provisions. Contracting parties to the future Law of the Sea Convention will not be allowed to make reservations to the convention or participate in it on a partial basis. It follows there‐from that provisions must be envisaged which would allow the EEC to become a contracting party to the convention together with its Member States. This article outlines the legal background for participation by the EEC in international agreements and indicates the main provisions of interest to the EEC in the draft convention prepared at UNCLOS III.     

The law of the sea regime and ocean law enforcement: New challenges for technology

Abstract

Coastal state enforcement in new zones of jurisdiction under the ocean management regime envisaged in the Law of the Sea Conference's negotiating text will undoubtedly spawn new technology in an effort to expand and improve surveillance. The author discusses enforcement challenges presented in the Law of the Sea regime and suggests some possible applications of technology to improve maritime law enforcement in the relatively near future.     

Antarctica and the law of the sea: An introductory overview

Abstract

This article examines the potential for conflict between the Antarctic Treaty regime and the Convention recently produced by the Third United Nations Conference on the Law of the Sea. Should the UNCLOS III Convention enter into force, at least six issue‐areas seem susceptible to future controversy in Antarctic waters, namely (1) seaward territorial limits; (2) resource management and conservation; (3) local environment protection; (4) marine scientific research; (5) deep seabed mining; and (6) archipelagic‐island regimes. Accordingly, each issue‐area is assessed as to its relevance for the Southern Ocean vis‐a‐vis the Antarctic Treaty parties, with a particular view towards signaling possible problems which involve conflict of interest and overlapping jurisdiction.     

The development of european regional law of the sea

Abstract

The development of regional law of the sea may be more practical than a new global order for the oceans and may be preferable to the extension of national maritime jurisdictions.

The Common Market has taken two important steps towards creating a European system of maritime law: The Common Fisheries Policy and the EEC Commission's decision of 10 September 1970 to apply the Common Market treaty to the continental shelf. The Common Fisheries Policy of 20 October 1970, opened national territorial waters within the EEC to all Community fishermen and provided the foundation for the generation of Common Market fishing policy. The continental shelf decision brought the exploration and exploitation of hydrocarbons on the shelf within EEC regulations and supervision.

The EEC has begun to co‐ordinate European Law of the Sea negotiations for the Santiago Conference.

Other European organizations (the Bow Group, the Council of Europe, and the Western European Union) have proposed various non‐EED regimes for maritime legislation and co‐operation, but no such non‐EEC proposal seems likely to be implemented. The future of European law of the sea lies with the Common Market which can make an important contribution to European maritime order and provide a model of regional co‐operation for other areas of the globe.     

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.     

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.     

Norway's law of the sea policy in the 1970s

Abstract

The Norwegian government has stated that creating a new international law of the sea is a foreign policy matter of the highest political priority in the period 1978–1981. A reasonable explanation might be the close correlation that normally exists between the political significance and the economic importance of issues and the area on which they impinge. As to Norway, it should suffice to point to the fact that the country ranks fifth among the merchant marine nations of the world, takes the fifth largest fish catch, and has sovereignty over the biggest continental shelf in Europe. Against this background, the author discusses the hypothesis that economic factors are the guiding hand in Norwegian ocean policy. However, the conclusion reached is that economic factors play a rather modest role in explaining this policy and that the reasons behind it are to be found at the intersection between economic interests, security policies, jurisdiction, the protection of resources and the environment as they are reflected in the rather peculiar situation of the North.