High Seas

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Ocean Governance and the
Exploitation of Marine
Living Resources
State Jurisdiction over Marine
Living Resources
1
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.’
2
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 ‘no State
can exercise sovereignty or sovereign rights
over all or any part thereof.’
3
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”.
4
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.
5
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.
6
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’.
7
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.
8
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.
9
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)
10
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, NorthWest 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.
11
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 in
general.
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.
12
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.
13
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.
14
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.
15
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.
16
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.
17
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.
18
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.
19
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.
20
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.
21
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.
22
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.
23
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.
24
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.
25
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.
26
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 “reasonable use”. The threshold
beyond which, the exercise of the freedom
of fishing is deemed “unreasonable” remains
at the discretion of the High Seas fishing
States.
27
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.
28
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…
29
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.
30
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.
31
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
32
(UNCED) process.
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.
33
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.
34
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.
35
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.
36
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.
37
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.
38
Governance Tools
Co-Operation Monitoring and
Compliance
39
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).
40
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.
41
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