Marine Living Resources Conservation under the Law of the Sea Convention

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Marine Living Resources Conservation under the
Law of the Sea Convention
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Organization

• 1. Background and History of LOS
• 2. Other Important International Agreements
• 3. Legal Regimes of the Ocean and Airspace
• 3.1. Internal waters
• 3.2. Archipelagic waters

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Organization

• 3.3. International straights
• 3.4. Territorial sea
• 3.5. Contiguous zone
• 3.6. Continental shelf
• 3.7. Exclusive economic zone
• 3.8. Other Coastal State Obligations
• 3.9. High seas

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Organization

• 4. Definitions under Law of the Sea
• 4.1.Transboundary stocks
• 4.2. Highly Migratory Species
• 4.3. Marine Mammals
• 4.4. Anadromous Stocks
• 4.5. Catadromous Stocks

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Organization

• 5. Articles of Law of the Sea Relating to States
  Rights and Cooperation
• 6. United Nations Fish Stocks Agreement
• 7. Various Terms
• 7.1. Flags of Convenience

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Primacy of the Law of the Sea Convention

• The primary legal instrument governing
  marine-related activities
• The Constitution of the Oceans
• Applies by its own force or as customary
  international law
• All other marine-related Conventions are
  expressly or by implication subject to the
  jurisdictional framework established under the
  Law of the Sea Convention

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1. Background and History

• Hugo Grotius, regarded by many as one of the
  founding fathers of international law, famously
  argued in his Mare Liberum that the seas cannot
  constitute property because they cannot be
  occupied in the sense in which land can be
  occupied.
• They should be free to all nations and subject to
  none.

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• Grotius suggested that the territorial claims of
  a nation should not extend beyond three miles
  from their respective coastlines, or the
  approximate distance a cannon ball could reach
  when fired from shore.
• Three mile limit of the territorial sea remained
  largely uncontested by the international
  community until the 20th century.

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• After World War II, a number a coastal states
  began asserting extended jurisdictional claims.
• Most serious challenges came from coastal states
  with significant economic activity near their
  coastlines or on their continental shelves.
• Driven largely by concerns over energy resources,
  US was first to advance a robust jurisdictional
  claim in form of the Truman Proclamation of 1945.
  
• Claimed control of natural resources over
  continental shelf.
• Other coastal states concerned with fisheries
  resources (esp. Ecuador, Chile, and Peru) soon
  followed, extending to 200 nautical miles.

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• Challenges to the freedom of the seas paradigm
  resulted in the first United Nations Conference
  on the Law of the Sea in 1958 (UNCLOS I).
• A second conference (UNCLOS-II) was held in 1960,
  but the jurisdictional disputes regarding
  fisheries remained unresolved.
• The increasing number and intensity of
  international disputes associated with competing
  jurisdiction claims in the oceans led the UN to
  begin the third Law of the Sea Conference in 1973.

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• A coalition of coastal states supporting extended
  coastal jurisdictions soon prevailed.
• UNCLOS-III wasnt codified until 1982, but many
  states continued to unilaterally extend their
  EEZs during the 1970s.
• Most states accepted the principle of 200-mile
  EEZs by the end of the decade.

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• UNCLOS III, although ratified and its precepts
  largely followed in practice, did not actually
  receive the number of signatures by nations and
  come into force until 1994 with 60th ratification
• United States signed the treaty but did not
  ratify it
• Objected in larger part due to provisions on deep
  seabed mining
• Although US largely followed most provisions as
  part of customary international law

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Dark green ratified Light green signed but not
ratified Grey did not sign
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I.1. Exclusive Economic Zone boundaries 1982 2.
Outer continental shelf boundary 3. Underwater
continental boundaries II. Boundaries of
Exclusive Economic Zones in 1977
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2. Other Important International Agreements on
Oceans

• Deteriorating conditions of transboundary fish
  stocks gave rise to a series of international
  agreements that were codified in the mid 1990s
• 1. The Agreement to Promote Compliance with
  International Conservation and Management
  Measures by Fishing Vessels on the High Seas
• the 1993 FAO Compliance Agreement

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Other Important International Agreements on Oceans

• 2. The Agreement for the Implementation of the
  Provisions of the United Nations Convention of
  the Law of the Sea of 10 December 1982 relating
  to the Conservation and Management of Straddling
  Fish Stocks and Highly Migratory Fish Stocks
• The 1995 UN Fish Stocks Agreement or UNFSA
• 3. A non-binding 1995 FAO Code of Conduct for
  Responsible Fisheries
• The 1995 FAO Code of Conduct.

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3.1. Internal waters

• Waters on the landward side of the Baseline
• Bays
• Estuaries
• areas of coastline within deeply indented and
  cut into areas
• ports
• roadsteads etc.

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Internal Waters
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Internal Waters
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Internal Waters
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Resources in the internal waters

• In such areas, coastal state has full
  sovereignty.
• Juridically speaking, it is the same as the land
• Thus all resources fully within control of
  coastal state
• Full sovereignty, subject to coastal State
  express consent to modify

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3.2. Archipelagic Waters

• Resources in archipelagic waters subject to the
  full sovereignty of the coastal state
• Almost the same as on land

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3.3. International Straights

• Shipping states have rights of transit
• Otherwise, retains legal characteristics of area
  in which it resides

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3.4. Territorial Sea

• Usually 12 nautical miles from the baselines from
  which the territorial sea is measured
• The coastal state enjoys full control over all
  resources.
• Sovereignty can only be modified by express
  consent of coastal State

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Territorial Sea

• Islands, islets and rocks which are naturally
  occurring but not capable of sustaining life all
  generate a TS, provided they protrude above sea
  level at high tide
• Within TS, coastal State has same sovereign
  rights as on land, except that ships of all
  States have right of innocent passage through TS

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3.5. Contiguous Zone

• A transition zone
• Coastal State cannot regulate within CZ
• Purpose is to enforce its domestic laws regarding
  customs, immigration, fishing, and sanitation
• Coastal State within CZ can enforce breaches of
  its law that occurred on its territory or within
  its Territorial Sea

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Contiguous Zone

• Prevents ships from break law and then hovering
  offshore just out of reach
• With creation of EEZ, most States dont rely on
  CZ

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3.6. Continental Shelf

• Geologically, CS is extension of continent out
  under adjacent sea
• Legally, complicated formulas relating to slope
  of floor or thickness of rocks on seafloor
• Minimum and maximum width of 200 and 350 nautical
  miles

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Continental Shelf

• Rights pertain to sea-bed and subsea strata, not
  to super-adjacent water column
• Water column rights covered by Exclusive Economic
  Zone
• Coastal State does not exercise full sovereignty
• Has exclusive right to explore and exploit its
  living and non-living resources, including
  minerals, oil, and life forms (e.g. clams) fixed
  to seafloor
• Other nations may lay submarine cables and
  pipelines across across a coastal States CS

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3.7. Exclusive Economic Zone

• An area beyond and adjacent to the territorial
  sea
• The exclusive economic zone shall not extend
  beyond 200 nautical miles from the baseline from
  which the breadth of the territorial sea is
  measured (Art. 57).
• Most continental shelves above them also within EEZ
• Rocks incapable of sustaining life do not create
  EEZ, although do create a Territorial Sea

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Sovereign Rights in the EEZ

• Coastal State has Sovereign rights, not
  Sovereignty.
• Sovereign rights for the purposes of exploring,
  exploiting, conserving and managing the natural
  resources of the seabed, subsoil and superjacent
  waters. (Art 56(1)(a).

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Exclusive Economic Zone

• Coastal State has two basic rights
• (1) Economic
• (2) Jurisdictional
• Economic Rights
• Sovereign rights to explore, exploit, conserve,
  and manage living and non-living resources of
  water column, sea-bea, and subsea strate and
  other activities of economic exploitation

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Exclusive Economic Zone

• Jurisdictional Rights
• Jurisdiction over artificial structures, marine
  research, and marine environmental protection.

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Coastal State Obligations in the EEZ

• Taking proper conservation and management
  measures to ensure that the living resources in
  the EEZ are not over-exploited.
• Determination of the allowable catch of the
  living resources in the EEZ.

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3.8. Other Coastal State Conservation Obligations
Article 61

• Conservation of dependent and associated species
• Obligation to exchange available scientific
  information on catch and fishing effort with
  competent international organizations

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Coastal State Obligations

• Cooperate with States whose EEZs overlap with
  that of the coastal State to coordinate
  management measures in respect of the shared
  stocks
• Cooperate with States whose nationals fish on the
  high seas to agree upon the measures necessary
  for the conservation of such stocks in the
  adjacent area

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Coastal State Obligations

• Cooperate with States whose nationals fish for
  highly migratory species in the same region to
  implement conservation measures for such species
• Cooperation with subregional, regional or global
  organizations to manage the tuna stocks.

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3.9. High Seas

• Area beyond EEZ
• Belong to all mankind
• Freedom of all States, land-locked or not, to
• Navigate through
• Fly over
• Fish upon
• Conduct scientific research in
• Lay cables
• Etc.
• Provided carried out with due regard to rights of
  other States and for peaceful purposes

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High Seas

• States may not claim jurisdiction over HS
• Hot Pursuit
• A coastal state can chase onto the HS a foreign
  ship that has transgressed its laws within its
  EEZ or its Territorial Sea may enforce its laws
  on the HS

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4.1. Transboundary Stocks

• Shared Stocks
• (Stocks between EEZs of two or more coastal
  States (Art 63(1)).
• Requirements
• Coastal state to cooperate directly or through
  appropriate sub-regional or regional
  organizations to adopt measures necessary to
  coordinate and ensure the conservation and
  development of such stocks

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Transboundary Stocks

• Straddling Stocks
• Stocks between EEZs and adjacent high seas (Art.
  63(2))
• Coastal States and States fishing for the
  resources on the high seas are to cooperate -
  either through appropriate sub-regional or
  regional organizations to adopt measures to
  ensure the conservation of the stocks in the
  adjacent high seas area

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4.2. Highly Migratory Species

• Article 64
• Tunas and tuna-like species
• Does not include sea turtles
• Requirement for cooperation
• Scope of cooperation is not defined

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4.3. Marine Mammals (Article 65)

• Allows stricter regulation by coastal States in
  the EEZ than allowed by IWC

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4.4. Anadromous Stocks (Salmon)(Art. 66)

• Spend most of their biological cycle in the high
  seas, but return to fresh water to spawn , doing
  an upwards movement
• ana-upwards
• dromos-trip
• States of origin-have primary interest and
  responsibility for management
• Fishing only on in waters land-ward of the outer
  limit of EEZ

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4.5. Catadromous Stocks (Eel)(Art. 67)

• Spawn in the oceans and migrate towards fresh
  waters for adult life
• Return to open oceans to spawn and die
• kata-downwards
• dromos-trip
• Coastal State in whose waters species spend
  grater part of their life cycle -primary
  responsibility for management

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Articles 116 and 117

• States have the right to fish on the high seas
  subject to Treaty obligations
• 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 the living resources of the high
  seas

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Article 118

• Obligation for states to cooperate on
  conservation and management of high seas living
  resources

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Article 118

• States shall cooperate with each other in the
  conservation and management of living resources
  in the areas of the high seas. States whose
  nationals exploit identical living resources, or
  different living resources in the same area shall
  enter into negotiations with a view to taking the
  measures necessary for the conservation of the
  living resources concerned. They shall, as
  appropriate, cooperate to establish subregional
  or regional fisheries organizations to this end.

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Nature of obligation to cooperate

• The traditional view has been that a duty to
  cooperate or to seek to agree, etc, has not
  involved the obligation to reach agreement,
  merely to negotiate in good faith, paying
  reasonable regard to the rights and interests of
  others.
• Thus, no obligation to reach agreement, merely to
  act in good faith

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6. UN Fish Stocks Agreement 1995

• Framework for Cooperation between coastal and
  distant-water states
• Establishment of regional and sub-regional
  fisheries management organizations
• Conservation and management of target and
  non-target species
• Protection of marine biodiversity
• Flag State responsibility
• Effective Control of Nationals and Vessels

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UN Fish Stocks Agreement 1995

• Further limited freedom of the seas principle by
  more precisely specifying the obligations states
  have with respect to cooperation on conservation
  and management measures.

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UNFA Regional Fishery Management Organizations

• UNFSA parties are called upon to fulfill their
  duty to cooperate by joining and/or abiding by
  the conservation and management measures of
  relevant RFMOs.
• UNFSA reiterates that access to high seas
  fisheries is conditional upon fulfilling this
  duty.
• UNFSA thus obligates its parties to join and/or
  cooperate with RFMOs in order to access the fish
  stocks that are under RFMO jurisdictions.

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Tuna RFMOs in the Pacific
Western and Central Pacific Tuna Convention
Inter-American Tropical Tuna Convention (IATTC)
60S
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ICCAT

• International Convention for the Conservation of
  Atlantic Tunas

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IOTC

• Indian Ocean Tuna Commission

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CCSBT

• Commission for the Conservation of Southern
  Bluefin Tuna

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7.1. Flags of Convenience

• According to international law, vessels fishing
  beyond national waters are required to fly the
  flag of the State of its registry, which may or
  may not be the same State of residence for the
  vessel owner, captain, or crew.

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Flags of Convenience

• To evade national, regional, or international
  laws that would limit fishing activity in a
  region, a vessel owner may choose to register its
  vessel to a country that is not party to the
  regional conventions or has lax laws and
  enforcement for fishing.
• These flags are considered flags of convenience
  (FOC).