The Changing International Law of High Seas Fisheries CAMBRIDGE UNIVERSITY PRESS Francisco Orrego Vicuña The Changing International Law of High Seas Fisheries This book examines the international law of high seas ®sheries in the light of the negotiations of the Third United Nations Conference on the Law of the Sea, the state and international practice that followed, and its in¯uence on the 1995 Straddling Stocks Agreement. The 1995 Agreement and related developments are discussed in detail, particularly in terms of conservation and management problems, the interactions with the exclusive economic zone, and the introduction of environmental perspectives that have led to major conceptual changes in the legal approach to ®sheries and practical solutions in the ®eld. Questions relating to compliance, enforcement, and dispute settlement are also discussed. Francisco Orrego Vicun Ä a is a Judge and Vice-President of the World Bank Administrative Tribunal; and a member of the panels of conciliators and arbitrators of the International Centre for the Settlement of Investment Disputes (ICSID). He is President and Vice-President of the Chilean Delegation to the Third United Nations Conference on the Law of the Sea; a member of the Commission for the Settlement of Disputes between Chile and the United States; a former Senior Legal Advisor at the Organization of American States; a former member of the Inter-American Juridical Committee; and a member of the Chilean commission for the Papal mediation in the dispute between Chile and Argentina. He has written extensively on international law, the law of the sea, Antarctica, and the environment. This page intentionally left blank cambridge studies in international and comparative law This series (established in 1946 by Professors Gutteridge, Hersch Lauterpacht and McNair) is a forum for studies of high quality in the ®elds of public and private international law and comparative law. Although these are distinct legal sub- disciplines, developments since 1946 con®rm their interrelationship. Comparative law is increasingly used as a tool in the making of law at national, regional and international levels. Private international law is increasingly affected by international conventions, and the issues faced by classical con¯icts rules are increasingly dealt with by substantive harmonization of law under international auspices. Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law. In many ®elds (such as the protection of human rights and democratic standards, investment guarantees, international criminal law) international and national systems interact. National constitutional arrangements relating to ``foreign affairs,'' and to the implementation of international norms, are a focus of attention. Professor Sir Robert Jennings edited the series from 1981. Following his retirement as General Editor, an editorial board has been created and Cambridge University Press has recommitted itself to the series, af®rming its broad scope. The Board welcomes works of a theoretical or interdisciplinary character, and those focusing on new approaches to international or comparative law or con¯icts of law. Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages. General Editors James Crawford Whewell Professor of International Law, University of Cambridge David Johnston Regius Professor of Civil Law, University of Cambridge Editorial Board Professor Hilary Charlesworth University of Adelaide Mr John Collier Trinity Hall, Cambridge Professor Lori Damrosch Columbia University Law School Professor John Dugard Director, Research Centre for International Law, University of Cambridge Professor Mary-Ann Glendon Harvard Law School Professor Christopher Greenwood London School of Economics Professor Hein KoÈtz Max-Planck-Institut, Hamburg Dr Vaughan Lowe Corpus Christi College, Cambridge Professor D. M. McRae University of Ottawa Professor Onuma Yasuaki University of Tokyo Advisory Committee Professor D. W. Bowett QC Judge Rosalyn Higgins QC Professor Sir Robert Jennings QC Professor J. A. Jolowicz QC Professor Eli Lauterpacht QC Professor Kurt Lipstein Judge Stephen Schwebel A list of books in the series can be found at the end of this volume This page intentionally left blank The Changing International Law of High Seas Fisheries Francisco Orrego Vicun Ä a PUBLISHED BY CAMBRIDGE UNIVERSITY PRESS (VIRTUAL PUBLISHING) FOR AND ON BEHALF OF THE PRESS SYNDICATE OF THE UNIVERSITY OF CAMBRIDGE The Pitt Building, Trumpington Street, Cambridge CB2 IRP 40 West 20th Street, New York, NY 10011-4211, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia http://www.cambridge.org © Francisco Orrego Vicuña 1999 This edition © Francisco Orrego Vicuña 2003 First published in printed format 1999 A catalogue record for the original printed book is available from the British Library and from the Library of Congress Original ISBN 0 521 64193 4 hardback ISBN 0 511 00913 5 virtual (netLibrary Edition) Contents Table of cases page xi Table of statutes, national legislation, and related documents xiii Table of treaties xvi Introduction 1 11 The evolving principles and concepts of international law in high seas ®shing 3 Freedom of ®shing in the high seas in a historical setting 3 The evolving legal concepts relating to high seas ®shing 8 The freedom of ®shing in the high seas in customary international law 13 Fishing and conservation in the high seas under the 1958 Geneva conventions 18 The changing role of international law on high seas ®sheries 21 22 The in¯uence of the Third United Nations Conference on the Law of the Sea in the new regime of high seas ®sheries 24 The emerging principles relating to conservation and management of living resources within the exclusive economic zone 26 The species approach and the linkage with high seas issues 31 Salmon ®sheries and the prevailing interest of the state of origin 32 Marine mammals: furthering the restrictions to the freedom of exploitation 36 The Convention's limited approach to the straddling stocks and highly migratory species question 40 vii Conservation and management of the living resources of the high seas under the Convention 45 Environmental achievements of the Convention 48 New perspectives in the development of international law 50 33 Developing the international law options for high seas ®sheries conservation and management 53 The growing pressure on high seas ®sheries 53 The global reach of high seas ®sheries overexploitation 55 Implications of the state of high seas ®sheries for conservation and management regimes 60 The Convention in a static view: protecting the interests of distant-water ®shing nations 62 The Convention in an evolutionary interpretation: advancing the interests of coastal states 65 Interpreting the Convention in a spirit of mutual accommodation 68 The search for new criteria in the light of environmental concerns 76 44 Trends in contemporary international law and national legislation and practice on high seas ®sheries issues 79 Trends relating to the conservation and management of transboundary stocks 80 The leading role of salmon ®sheries arrangements 84 Marine mammals and the increasing emphasis on conservation 86 Straddling stocks and the development of the role of coastal states 89 Highly migratory species and the harmonization of coastal states' rights with international cooperation 96 Other aspects of contemporary international practice relevant to high seas ®sheries 101 Chile's presential sea approach: a restricted model of coastal state intervention 107 Argentina's jurisdictional claim: advancing coastal states' interests 111 Canada's high seas jurisdictional claims: new implications for international law 112 Advancing international law: a conclusion on contemporary practice 117 viii contents 55 The United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks 119 The preparatory work of the United Nations Conference on Environment and Development 119 The UNCED deliberations and the convening of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks 126 Organization of the conference and the issue of the form of its outcome 131 Interpretations and problems relating to the de®nitions of the 1995 Agreement 137 General international law provisions and ®nal clauses 141 66 Conservation and management of ®sheries in the high seas in the context of the evolving principles of international environmental law 145 The principle of sustainable development and the conservation of straddling ®sh stocks and highly migratory ®sh stocks 145 The principle of preventive action in the context of the general principles of conservation and management of high seas ®sheries 153 The emergence of the precautionary principle and the question of its application to high seas ®sheries management 156 Developing the precautionary approach in high seas ®sheries 160 The principle of informed decision-making in the context of high seas ®sheries 164 77 Ecosystem management and the legal interactions between areas under national jurisdiction and the high seas 171 The legal relationship between the 1995 Agreement and the Convention 172 Geographical ambit of application of the 1995 Agreement 175 The issue of compatibility of conservation and management measures in the high seas and in areas under national jurisdiction 183 Nature and extent of the duty to cooperate in establishing compatible measures 188 Ecosystem management as applied to enclosed and semi- enclosed seas and other areas of the high seas 194 contents ix [...]... the Law of the Sea 3 4 changing international law of high seas ®sheries such as state jurisdiction over the contiguous zone or later over the continental shelf and the exclusive economic zone, had to be made compatible with the freedom of the high seas to a given extent if they were to become admitted into the body of international law This is of course quite natural because classic international law. .. obstacles emerging from the ineffectiveness of international cooperation.40 The freedom of ®shing in the high seas in customary international law The freedom of ®shing in the high seas became well established in customary international law in spite of the reservations that the concept had motivated since early times Customary international law did little more than to state the existence of the principle; it... such changes was that the principle of the freedom of the high seas was subject, ®rst, to some control of the abuse of rights and, secondly, to a test of compatibility with the general interest Most of the discussion that has taken place on the law of the sea has concentrated on the question of expanded coastal state jurisdiction Given the in¯uence of the new maritime areas on the traditional rules... to the meaning of the principle of the freedom of ®shing in the high seas The latter would no longer be conceived in an absolute manner but subject to the right of other states and participants to undertake ®shing activities It should also be noted that, in the view of in¯uential writers of international law, while the high seas were not subject to national appropriation, neither did they belong to the. .. been structured on the existence of only two broad types of maritime areas: the territorial sea and the high seas. 2 The manner in which that compatibility could be attained depended in essence on the content attributed to the principle of the freedom of the high seas As evidenced by the very evolution of international law the meaning and extent of such a principle can change with the different economic,... is the principle of the freedom of ®shing in the high seas Many of the changes experienced in the context of this international legal process during the twentieth century have been founded not so much in the creation of new principles and concepts as in the interpretation and reformulation of traditional rules of international law Historical linkages have thus kept their in¯uence in the shaping of. .. implications and consequences of the change envisaged The different interests of states have of course played a major role in this changing legal context All modern developments on the law of the sea have been closely connected to the principle of the freedom of the high seas New concepts, 1 United Nations Convention on the Law of the Sea, 10 December 1982, UN Doc A/CONF 62/122, International Legal Materials,... makes the difference between the development of an orderly regime under the aegis of international cooperation and the search for solutions to the existing problems solely under individual domestic action of each state or group of states concerned 1 The evolving principles and concepts of international law in high seas ®shing Freedom of ®shing in the high seas in a historical setting The contemporary law. .. associated with problems of conservation in view of the unrestricted activities of high seas ®shing vessels Such claims were legitimate and they brought the interest of coastal states in line with the interest of distant-water ®shing nations Until then the latter nations and not the international community as a whole were the sole bene®ciaries of the freedom of ®shing in the high seas as understood under... were made during the Third United Nations Conference on the Law of the Sea to apply the common heritage concept to the waters overlying the seabed beyond the limits of national jurisdiction,26 and distinguished writers of international law have expressed their concern that such a concept might be made applicable to high seas ®sheries.27 Despite the fact that the Convention on the Law of the Sea makes . The Changing International Law of High Seas Fisheries CAMBRIDGE UNIVERSITY PRESS Francisco Orrego Vicuña The Changing International Law of High Seas Fisheries This. examines the international law of high seas ®sheries in the light of the negotiations of the Third United Nations Conference on the Law of the Sea, the state