Addressing regulatory gaps in high seas fisheries

International Journal of Marine and Coastal Law

Volumn 20, Issue 3-4, 2005, Pages 533-570

  Molenaar, Erik Jaap ^a  

^a UTRECHT UNIVERSITY   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

FISHERY MANAGEMENT; FISHING; LAW OF THE SEA; POLICY REFORM; REGIONAL POLICY; REGULATORY FRAMEWORK;

EID: 33746601341     PISSN: 09273522     EISSN: None     Source Type: Journal    
DOI: 10.1163/157180805775098559     Document Type: Article

References (203)

1. An earlier version of this article, entitled "New Gaps and Areas - How to Address Them", was presented at the Conference "The Governance of High Seas Fisheries and the UN Fish Agreement - Moving from Words to Action", held in St. John's, Newfoundland and Labrador, Canada, 1-5 May 2005.The final conference report from the St. John's conference is available at url: 〈http://www.dfo-mpo.gc.ca/fgc-cgp/index_e.htm〉 (visited June 20, 2005).
2. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, August 4, 1995 (entered into force December 11, 2001), 34 I.L.M. 1542 (1995); available at url: 〈www.un.org/Depts/los〉
3. See UNGA Resolution A/59/24, of 4 February 2005, para. 73 by which an Ad Hoc Openended Informal Working Group is established to study these issues.
4. See also M.W. Lodge, "Improving International Governance in the Deep Sea," 19 International Journal of Marine and Coastal Law 299-316 (2004), who calls for a much broader re-orientation among which high seas fisheries would be merely one item, at 314.
5. For a more detailed discussion, see E.J. Molenaar, "Unregulated Deep-Sea Fisheries: A Need for a Multi-Level Approach," (2004) 19 Int'l. J. Mar. & Coast. L. 223.
6. Adopted on 17 November 2004 (Doc. A/RES/59/25, of 17 January 2005).
7. See infra, the section entitled "Establishing New Arrangements" for an explanation of this term.
8. Adopted on 2 May 2005, text: Available in this issue of IJMCL (Volume 20, 3-4) p. 609. Also available at url: 〈www.dfo-mpo.gc.ca/fgc-cgp/index_e.htm〉
9. See supra note 1.
10. Text: Available in this issue of IJMCL (Volume 20, 3-4) p. 609. Also available at url: 〈http://www.dfo-mpo.gc.ca/fgc-cgp/index_e.htm〉
11. UN Doc. A/59/122, of 1 July 2004. See inter alia paras. 4-6, 56-62, 67-68 and 74-89.
12. See inter alia paras 30 and 57-62 of Decision VII/5 'Marine and Coastal Biological Diversity' (Doc. UNEP/CBD/COP/7/21, of 13 April 2004, at 134ff).
13. Convention on Biological Diversity, May 22 1992 (entered into force December 29, 1993), (1992) 31 I.L.M. 822, url: 〈www.biodiv.org〉
14. See paras. 51-52, 57 and 68 of UNGA Resolution 58/240 (Doc. A/RES/58/ 240, of 5 March 2004)
15. and para. 46 of UNGA Resolution 58/14 (Doc. A/RES/58/14, of 21 January 2004).
16. UN Doc. A/58/95, of 26 June 2003. See inter alia paras. 1, 13, 20, 21(d) and 22 on pp. 1, 6 and 8 and paras. 80-81, 87-89, 94 and 98-100.
17. Hereinafter FAO.
18. See infra, the section entitled "Contributions by Coastal States" that discusses the geographical extent of paragraph 66 in the context of coastal State action.
19. It is submitted that the precautionary approach belongs first and foremost to the sphere of law, policy and regulation rather than that of science.
20. Established by the Convention on the Conservation of Antarctic Marine Living Resources, May 20, 1980. (entered into force April 7, 1982), (1980) 19 I.L.M. 837 [hereinafter the CCAMLR Convention], url: 〈http://www.ccamlr.org〉.
21. See ibid., arts I and II.
22. Established by the Convention on the Conservation and Management of the Fishery Resources in the South East Atlantic Ocean, April 20, 2001 (entered into force April 13 2003) [hereinafter SEAFO Convention], 41 I.L.M. 257 (2002); Also available at url: 〈http://www.fao.org/Legal/treaties〉.
23. See ibid., arts. 1(n), 2 and 3(e).
24. The most recent draft of the SIOFA is laid down in Appendix 1 to the Report of the Fifth Intergovernmental Consultation on the SIOFA (2005), on file with author [hereinafter SIOFA Report].
25. See ibid. Arts. 4(a), (e) and (f).
26. Agreement for the establishment of a General Fisheries Council for the Mediterranean, September 24, 1949 (entered into force February 20, 1952, 126 U.N.T.S. 239). Amendments adopted by the FAO Council at its 113th Session in November 1997 (entered into force on April 29, 2004); amended version available at url: 〈http://www.fao.org/Legal/〉, see art. III.
27. Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries October 24, 1978 (entered into force January 1. 1979), 1135 U.N.T.S. 369; available at url: 〈http://www.nafo.ca〉
28. See ibid., arts I(4) and II(1).
29. Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries, November 18, 1980 (entered into force March 17, 1982), 1285 U.N.T.S. 129; available at url: 〈http://www.neafc.org〉.
30. See ibid., the Preamble and arts 1(2), 4(1), 5(2) and 7.
31. NEAFC Doc. AM/2004/56, as amended by the discussion on p. 37 of the Report of the 23rd Annual Meeting of NEAFC (2004).
32. Report of the Meeting of the Working Group on the Future of the North-East Atlantic Fisheries Commission, April 26, 2005, at 2.
33. Statement by the Norwegian Minister of Fisheries and Coastal Affairs Svein Ludvigsen made at the FAO Ministerial Meeting of Fisheries, Rome, March 12, 2005, text available at url: 〈http://odin.dep.no/fkd/english/news/speeches/bn.html〉
34. See Molenaar, supra note 4, at 242.
35. Report of the 26th Annual Meeting of the NAFO Fisheries Commission (2004), at 8.
36. Convention on Fishing and Conservation of the Living Resources in the Baltic Sea and the Belts, September 13. 1973 (entered into force July 28, 1974); available at url: 〈http://www.ibsfc.org〉.
37. See ibid. at art. X.
38. Recommendation IV was adopted with a reservation by the Russian Federation (Report of the 23rd Annual NEAFC Meeting (2004), at 41).
39. Ibid. at 39-41.
40. The Terms of Reference of the SCMEE are laid down in GFCM - Report of the second session of the Scientific Advisory Committee, June 7-10, 1999, FAO Fisheries Report No. R602 (1999) [hereinafter GFCM Report], at Appendix F.
41. Appendix G.1 to the GFCM Report (manuscript on file with author)
42. See inter alia art. 41(1) of the Vienna Convention on the Law of Treaties, May 23, 1969 (entered into force January 27, 1980), 1155 U.N.T.S. 331.
43. For a discussion on amendment by practice, see D. Freestone and A.G. Oude Elferink, "Flexibility and Innovation in the Law of the Sea - Will the LOS Convention Amendment Procedures Ever Be Used?", in A.G. Oude Elferink ed., Stability and Change in the Law of the Seas: The Role of the LOS Convention (Martinus Nijhoff Publishers, forthcoming) 5.
44. See also the implicit regulation by CCAMLR of toothfish fisheries outside the CCAMLR Convention Area by means of its Catch Documentation Scheme for Dissostichus spp. (CDS), currently laid down in Conservation Measure 10-05 (2004).
45. See Molenaar, supra note 4, at 237-242.
46. The applicability of the precautionary approach would seem to trigger a reversal of the burden of proof in this regard.
47. International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. Adopted by consensus by FAO's Committee on Fisheries on March 2, 2001 and endorsed by the FAO Council on June 23, 2001; available at url: 〈http://www.fao.org/fi〉
48. Paras. 5(2)(a) and (b).
49. See the map and list of bodies available at url: 〈http://www.fao.org/./body/rfb/index.htm〉.
50. Opened for signature and entered into force on October 16, 1945; available at url: 〈http://www.fao.org/Legal〉
51. Instituted by FAO Council Resolution 1/48 (June 1967).
52. Established by FAO Council Resolution 4/61 (November 1973).
53. See inter alia arts. 8(5) and 9.
54. Paras. 8 and 5(3)(b) respectively.
55. Cf. UN Doc. A/58/215, August 5, 2003, at para. 38 which mentions the South-East Pacific, the South-West Atlantic, the Caribbean, the Western Pacific and the Southern Indian Ocean. The geographical gap adjacent to the CCAMLR Convention Area in the Indian Ocean is in principle filled by the SIOFA
56. see also the discussion in Molenaar, supra note 4, at 237-242. In view of the special status of the Antarctic continent, the outer continental shelves off Antarctica do not allow for coastal State action in the normal fashion.
57. Review of FAO Statutory Bodies, November 18, 1997.
58. The SAFC was established by the Joint Statement on the Conservation of Fisheries, made by the Governments of the United Kingdom and Argentina on November 28, 1990, in London and Buenos Aires (Command Paper No. Cm1824, The Falkland Islands - Recent Declarations and Bilateral Arrangements and Agreements between the UK and Argentina, at 12-13).
59. Report of the Third Intergovernmental Consultation on the Establishment of a Southwest Indian Ocean Fisheries Commission, Nairobi, Kenya, January 27-30, 2004, FAO Fisheries Report No. 742 (2004).
60. Report of the Council of FAO, Hundred and Twenty-seventh Session, November 22-27, 2004 (Doc. CL 127/REP), at para. 99. The Statutes of SWIOFC are contained in Appendix E [hereinafter SWIOFC Statutes].
61. See ibid., para. 1 of the SWIOFC Statutes. It is submitted that the twofold reference to "area of competence" in para. 1 is confusing. See also para. 3, which appears to exclude membership by coastal States whose maritime zones are partly within the de.ned area of the Southwest Indian Ocean ("area of the Commission"), but not their territories.
62. Provisional Agenda (SAFR/DM/SWIOFC/05/ 1 E), provided by A. Harris, FAO).
63. See SIOFA Report, supra note 19, at para. 5.1.
64. Arts. 5, 6 and 8 of the April 2005 Draft of SIOFA, supra note 19.
65. Art. 3 of the April 2005 Draft of SIOFA, supra note 19. See the map on p. 591 of this issue.
66. See media release No. DAFF05/034MJ, March 12, 2005 (available at url: 〈http://www.mffc.gov.au〉).
67. Statement by New Zealand Fisheries Ministry deputy chief executive S. Crothers in Dominion Post, March 13, 2005. See Map 2 at the end of this article.
68. See supra note 17.
69. Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, September 5, 2000 (entered into force June 19, 2004), 40 I.L.M. 277 (2001); available at url: 〈http://www.ocean-affairs.com〉
70. Convention for the establishment of an Inter-American Tropical Tuna Commission, May 31, 1949 (entered into force March 3, 1950), 80 U.N.T.S. 4 [hereinafter IATTC Convention]; available at url: 〈http://www.iattc.org〉. The 1949 IATTC Convention is to be replaced by the Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention Between the United States of America and the Republic of Costa Rica, Washington D.C., November 14, 2003. Not in force, 〈www.iattc.org〉.
71. Arrangement between the Government of Australia and the Government of New Zealand for the Conservation and Management of Orange Roughy on the South Tasman Rise. Signed by New Zealand on February 17, 2000 and by Australia on February 25, 2000. In effect on March 1, 2000; text at (2001) 16 Int'l J. Mar. & Coast. L. 119.
72. See supra note 58, para. 36 of the 2000 South Tasman Rise Arrangement.
73. Framework Agreement for the Conservation of the Living Marine Resources on the High Seas of the Southeast Pacific, August 14, 2000. Not in force, Law of the Sea Bulletin, 70-78, No. 45 (2001); see also 〈www.oceanlaw.net/texts/index.htm〉.
74. At the time of writing, Chile, Peru and Ecuador had ratified the Agreement but Colombia had indicated that it was unable to ratify, while not excluding this for the future. On November 27, 2003, the four States adopted a Modification Protocol which replaces Art. 19(1) of the Galapagos Agreement with the following provision: "This [Galapagos Agreement] shall enter into force on the thirtieth day after the date of deposition of the instrument of ratification by 3 of the Coastal States." The Modification Protocol also requires 3 ratifications for entry into force. While Chile ratified the Protocol on March 22, 2004 and Ecuador on June 25, 2004, Peru still had to ratify at the time of writing (information provided by G. Pereira, CPPS).
75. See arts. 3 and 4 of the Galapagos Agreement.
76. R.R. Churchill & A.V. Lowe, The Law of the Sea (Manchester University Press, 3rd ed., 1999) at 220 and 308. The Chilean claim is laid down in Decree No. 430, September 28, 1991.
77. St. John's Conference Report, supra, note 1 at 29 (text available at url: 〈http://www.dfo-mpo.gc.ca/fgc-cgp/index_e.htm〉).
78. See Press Release of 14 June 2005 by the New Zealand Ministry of Fisheries (text at 〈www.sh.govt.nz〉).
79. Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Paci.c Ocean (Chile v. European Community), pending. See url: 〈http://www.itlos.org〉
80. United Nations Convention on the Law of the Sea, December 10, 1982 (entered into force Nov. 16, 1994), 1833 U.N.T.S. 396; available at url: 〈http://www.un.org/Depts/los〉
81. ITLOS Order 2000/3, December 20, 2000, at 3.
82. See WTO Doc. WT/DS193/3, of April 6, 2001.
83. Ibid.
84. References to RFMOs are also followed by the term "arrangement" in paras. 53-54 and 69 of UNGA Resolution 59/25
85. See also art. 7(5)(4) of the FAO Code of Conduct (Code of Conduct for Responsible Fisheries, Oct. 31, 1995, available at url: 〈http://www.fao.org/.〉).
86. See Conservation Measures 21-01 (2001) 'Notification that Members are considering initiating a new fishery' and 21-02 (2004) 'Exploratory fisheries'.
87. Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, June 16, 1994 (entered into force Dec. 8, 1995), 34 I.L.M. 67 (1995); available at url: 〈http://www.oceanlaw.net/texts/index.htm〉
88. Agreement between the Government of Iceland, the Government of Norway and the Government of the Russian Federation Concerning Certain Aspects of Co-operation in the Area of Fisheries, May 15, 1999 (entered into force in summer of 1999, available at url: 〈http://www.oceanlaw.net〉
89. See supra note 68.
90. See also para. 5(2)(b) of the St. John's Workshops Summary.
91. Convention for the establishment of an Inter-American Tropical Tuna Commission, May 31, 1949 (entered into force March 3, 1950), 80 U.N.T.S. 4; available at url: 〈http://www.iattc.org〉
92. Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention Between the United States of America and the Republic of Costa Rica, Nov. 14, 2003, (not in force), available at url: 〈http://www.iattc.org〉
93. Note, for instance, that the Preamble to the Antigua Convention refers to the Fish Stocks Agreement in a separate paragraph instead of including it among other relevant international instruments in the preceding preambular paragraph.
94. See Annex K to the Report, note 23. The amendment still needs to enter into force in accordance with Art. 19 of the NEAFC Convention.
95. Information available at url: 〈http://www.un.org/Depts/los〉
96. See art. 308(1) of the LOS Convention which requires sixty parties for entry into force, compared to art. 40(1) of the Fish Stocks Agreement, which requires only thirty parties.
97. See e.g. UN Doc. A/58/215, Aug. 5, 2003, at 13.
98. See note 63 and accompanying text.
99. Art. 13.
100. See, i.e. the negative response to the Australian proposal to amend the spatial scope of the CCAMLR Convention in order to include certain areas of the Indian Ocean (Doc. CCAMLR-XXI (2002), paras 8.74-8.84).
101. Report of the 26th Session of COFI (2005), version of 22 March, paras 14 and 113 [hereinafter COFI Report].
102. See also the Report of the Third Meeting of Regional Fishery Bodies, March 3-4 2003, FAO Fisheries Report No. 703 (2003), at 5-6 and Appendix E.
103. See E.J. Molenaar, "Ecosystem-Based Fisheries Management, Commercial Fisheries, Marine Mammals and the 2001 Reykjavik Declaration in the Context of International Law" (2002) 17 Int'l J. Mar. & Coast. L. 561, at 575.
104. See Section 1 and para. 5(3)(a).
105. FAO Fishery Report No. 562, paras 31-32.
106. See supra note 44.
107. CECAF - Report of the Technical Consultation on the Future of the Fishery Committee for the Eastern Central Atlantic. Lagos, Federal Republic of Nigeria, 27-30 November 2001, FAO Fisheries Report No. R687 (2002), at 1 [hereinafter FAO Fisheries Report No. R687].
108. Ibid., at 5 and Appendix E.
109. The revised Terms of Reference were endorsed at the Sixteenth Session of CECAF (2002) and further endorsed by the FAO Council at its 124th Session (June 2003).
110. WECAFC - Report of the Tenth Session of the Western Central Atlantic Fishery Commission and of the Seventh Session of the Committee for the Development and Management of Fisheries in the Lesser Antilles. Bridgetown, Barbados, 24-27 October 2001, FAO Fisheries Report No. R660 (2001), at 11.
111. WECAFC - Report of the Eleventh Session of the Commission and of the Eighth Session of the Committee for the Development and Management of Fisheries in the Lesser Antilles. St. George's, Grenada, 21-24 October 200, FAO Fisheries Report No. 725 (2004), at paras. 64-67 and Appendix D.
112. For a detailed account, see E.J. Molenaar, "The South Tasman Rise Arrangement of 2000 and other Initiatives on Management and Conservation of Orange Roughy," 16 Int'l J. Mar. & Coast. L. 77-118, 109-115 (2001).
113. CECAF - Report of the Sixteenth Session of the Fishery Committee for the Eastern Central Atlantic. Santa Cruz de Tenerife, Spain, 22-24 October 2002, FAO Fisheries Report No. R693 (2003), at. 6-7.
114. Agreement Establishing the Caribbean Regional Fisheries Mechanism. In force 4 February 2002; available at url: 〈http://www.caricom.org〉.
115. More info on the CRFM can be found at url: 〈http://www.caricom-fisheries.com〉
116. See. UNGA Resolution 59/25, at para. 55.
117. Information provided by S. Singh-Renton, Caribbean Regional Fisheries Mechanism.
118. See also S. Singh-Renton, R. Mahon and P. McConney, "Small Caribbean (CARICOM) states get involved in management of shared large pelagic species," (2003) 27 Marine Policy 39.
119. See, e.g., the Treaty on Fisheries between the Governments of Certain Paci.c Island States and the Government of the United States of America (Port Moresby, April 2, 1987), which was extended with another ten-year period, starting on June 15, 2003 (information and text of the amended treaty is available at url: 〈http://www.affa.gov.au〉 and 〈www.ffa.int〉).
120. See also the 2001 Protocol on Fisheries August 14, 2001 (entered into force August 8, 1993, available at url: 〈http://www.sadc.int〉) to the Southern African Development Community Treaty (Treaty establishing the Southern African Development Community, August 17, 1992 (entered into force September 30, 1993; available at 〈www.sadc.int〉), which contemplates in art. 10(3) the "joint negotiation of foreign fishing access agreements with a regional or subregional dimension."
121. The presumption is that both of the tracks would give primacy to existing RFMOs in relation to tuna and tuna-like species.
122. See para. 10 of the SWIOFC Statutes, note 47, art. 6(1)(g) of the April 2005 Draft of SIOFA,
123. and note 19 (which is only concerned with co-operation and coordination between Contracting Parties of the SIOFA).
124. The SEAFO and SWIOFC-SIOFA negotiations could be a model in this regard.
125. See also infra note 118 and accompanying text.
126. The principle of custodianship was invoked by Canada when it enacted the 1970 Arctic Waters Pollution Prevention Act (26 June 1970, C.S.C. c. A-12). The Act was very controversial at the time of its enactment but eventually found partial sanction in Art. 234 of the LOS Convention. See inter alia J.A. Beesley, The Arctic Pollution Prevention Act: Canada's Perspective, (1973) 1 International Law Journal of Syracuse 226.
127. See also infra note 127 and accompanying text.
128. See also Lodge, supra note 3, at 306-307.
129. See also infra note 117. The scrutiny of the progress made by RFMOs in relation to paras. 66-69 of UNGA Resolution 59/25, pursuant to its paras. 70-71 could be mentioned here as well.
130. COFI Report, supra note 87, at paras. 111-112. The development of performance principles or indicators may take account of FAO Doc. RFB/II/ 2001/3, Indicators to Assess the Performance of Regional Fishery Bodies.
131. COFI Report, supra note 87, at para. 112.
132. Report of the Second Meeting of FAO and Non-FAO Regional Fishery Bodies or Arrangements, FAO Fisheries Report No. 645 (2001), at para. 20 [hereinafter FAO Fisheries Report No. 645].
133. Draft Report of March 30, 2005, at para. 11 (on le with author).
134. For a recent review, see: C.J. Small, Regional Fisheries Management Organizations. Their Duties and Performance in Reducing Bycatch of Albatross and Other Species, (Cambridge, Birdlife International: 2005); text also available at url: 〈http://www.birdlife.org〉
135. First Meeting of the High Seas Task Force. Summary of Outcomes, Doc. HSTF/10, March 14, 2005, at 4 (text available at url: 〈http://www.high-seas.org〉)
136. Ibid.
137. According to T.M. Franck, legitimacy comprises, first "a property of a rule or rule-making institution which itself exerts a pull towards compliance on those addressed normatively" and, second, "the perception of those addressed by a rule or a rule-making institution that the rule or institution has come into being and operates in accordance with generally accepted principles of right process." T.M. Franck, The Power of Legitimacy Among Nations, (New York/Oxford, Oxford University Press: 1990) at 16 and 19.
138. FAO Fisheries Report No. 645, supra note 114, at para. 20. These views were essentially repeated during the 4th Meeting of Regional Fishery Bodies (2005).
139. International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, December 1, 1978 (entered into force April 28, 1984, as amended). The 1995 amendments entered into force on 1 February 1997.
140. See Regulation I/7. The most recent white list is laid down in IMO Doc. MSC/Circ.1134, December 24, 2004.
141. IMO Assembly Resolution A.946(23), November 27, 2003, at para. 1.
142. See Voluntary IMO Member State Audit Scheme: Report of the Third Session of the Joint MSC/MEPC/TCC Working Group on the Voluntary IMO Member State Audit Scheme IMO Doc. C 94/5, March 23, 2003.
143. See IMO Doc. C 88/13/1/Add.1, May 15, 2002.
144. Information available at url: 〈http://www.icao.org〉
145. See para. 11.
146. Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3, 1973 (entered into force July 1, 1975, 993 U.N.T.S. 243; available at url: 〈http://www.cites.org〉
147. "Regular process for global reporting and assessment of the state of the marine environment, including socio-economic aspects," also called the "Assessment of Assessments." There continues to be disagreement as to whether fisheries and living marine resources should be included in the GMA Process (see UN Doc. A/59/126, of July 6, 2004, at paras. 13-14 and the text in square brackets in para. 2(b) of the Annex;
148. UN Doc. A/AC.271/WP.2, of 13 May 2004, at paras 6-9 (comments by Iceland) and para. 16 (comments by New Zealand)
149. UN Doc. A/AC.271/WP.2/Add.1, June 3, 2004 with comments by Japan
150. and UNGA Resolution 59/24, November 17, 2004, at paras 84-87).
151. See arts VII(2) and XXIX(1) of the CCAMLR Convention.
152. However, that States still need to be engaged in relevant scientific research. See also E.J. Molenaar, "Participation, Allocation and Unregulated Fishing: The Practice of Regional Fisheries Management Organizations," (2003) 18 IJMCL, 457 at 463.
153. Art. 8(3) of the Fish Stocks Agreement.
154. See Molenaar, supra note 130, at 462.
155. See item 5(b) of the Provisional Agenda, available at url: 〈http://www.un.org/Depts/los〉
156. Interestingly, the phrase "by vessels under their jurisdiction" in UN Doc. A/59/122, supra note 9, at para. 6(a) was not retained in para. 66. Retention of the phrase would not necessarily have excluded a role for coastal States, however.
157. In fact, para. 66 does not even clearly specify the purpose for which action should be taken.
158. Art. 56(1)(a) of the LOS Convention.
159. Art. 62(2) of the LOS Convention.
160. Art. 62(4) of the LOS Convention.
161. Guidance for assessing the justifiability of lack of uniformity is provided by the three cumulative conditions laid down in para. 66 of UNGA Resolution 59/25. Also, while it is not asserted that this is an issue of international trade, it is instructive to refer to Art. XX(g) of the General Agreement on Tariffs and Trade 1947 (GATT), which contains the phrase "if such measures are made effective in conjunction with restrictions on domestic production or consumption." Note also that the WTO Appellate Body in the US - Gasoline case (United States - Standards for Reformulated and Conventional Gasoline; WTO Doc. WT/DS2/AB/ R, April 29, 1996), at 20-21 took the view that the abovementioned clause is a "requirement of even-handedness."
162. The implications of taking such action before the coastal State has established the outer limits of the outer continental shelf on the basis of the recommendations of the Commission on the Limits of the Continental Shelf (CLCS) pursuant to Art. 76(8) of the LOS Convention are complex issues that cannot be discussed here. It is nevertheless submitted that in many circumstances and locations this requirement does not prevent the coastal State from the types of action envisaged in this subsection.
163. These States are: Angola, Argentina, Australia, Brazil, Canada, Denmark, Ecuador, Fiji, France, Guinea, Guyana, Iceland, India, Indonesia, Ireland, Japan, Madagascar, Mauritius, Mexico, Micronesia (Federated States of), Myanmar, Namibia, New Zealand, Norway, Portugal, Russian Federation, Seychelles, South Africa, Spain, Suriname, United Kingdom, United States, and Uruguay. UN Doc. SPLOS/64, May 1, 2001, at 2, n. 2. See map 3 at the end of this article.
164. Art. 77(1) of the LOS Convention.
165. Art. 77(4) of the LOS Convention.
166. Ibid.
167. See e.g. D. Attard, The Exclusive Economic Zone in International Law (Oxford, Clarendon Press: 1987) at 190-191
168. see also B. Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (Dordrecht, Martinus Nijhoff Publishers: 1989) at 74-78.
169. For a historical account, see S.V. Scott, "The Inclusion of Sedentary Fisheries within the Continental Shelf Doctrine," (1992) 41 ICLQ 788.
170. See. art. 77(2) of the LOS Convention.
171. See art. 68 of the LOS Convention.
172. Art. 116(b) of the LOS Convention.
173. North Atlantic Coast Fisheries case (Great Britain v. the United States of America), Permanent Court of Arbitration, 1910, Judgment reproduced in: J.B. Scott (ed.), The Hague Court Reports. Volume I (New York, Oxford University Press, 1916) 141.
174. Scott, note supra 149, at 171.
175. Accepted for instance in the Trail Smelter Arbitration (United States of America v. Canada), (1941) 35 A. J. Int'l L. 716.
176. Constraints to the Sustainability of Deep Sea Fisheries beyond National Jurisdiction, document issued by IUCN under Agenda Item 6 (COFI/2005/6), at 15-16 (copy on file with author).
177. Examples of specific restrictions are laid down in Arts. 21(2), 53(9), 76(8) and 211(5) of the LOS Convention. See also the interesting interplay between paras. (2) and (3) of Art. 79 of the LOS Convention.
178. For example, whereas the sovereign rights and freedom relates to species targeted by both, their exercise does not occur in the same spatial area. By contrast, in the case under discussion, the exercise of the sovereign rights and freedom occurs in the same spatial area but not in relation to species targeted by both. See also the main text below.
179. For a detailed discussion, see A.G. Oude Elferink, "The Determination of Compatible Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks," (2001) 5 Max Planck Yearbook of United Nations Law 551.
180. See inter alia Art. 62(1) of the LOS Convention, by which the objective of optimum utilization is without prejudice to the obligation to conserve.
181. See Part XII of the LOS Convention, in particular Arts. 192-193 and 194(5).
182. Arts. 1 and 6 of the Biodiversity Convention.
183. See also the discussion on the broad or implied powers interpretation in the Section on UNGA Resolution 59/25. Guidance in this regard can also be found in the Korea - Beef case (Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef), where the Appellate Body applied a process of weighing and balancing which included the importance of common interests (Doc. WT/DS161/AB/R, WT/DS169/AB/R, December 11, 2000, at para. 164).
184. United States - Import Prohibition of Certain Shrimp and Shrimp Products; Panel Report (WTO Doc. WT/DS58/R, May 15, 1998), paras 7.43, 7.55 and 9.1
185. and Appellate Body Report (WTO Doc. WT/DS58/AB/A, Oct. 12, 1998) at para. 186.
186. See WTO Doc. WT/DS58/RW June 15, 2001
187. and WTO Doc. WT/DS58/AB/RW, Oct. 22, 2001, at paras 135-138).
188. These are Australia, Brazil, Ireland and the Russian Federation. Additional information is available at url: 〈http://www.un.org/Depts/los/clcs_new/clcs_home.htm〉
189. See art. 77(3) of the LOS Convention.
190. COFI Report, supra note 87, at para. 86.
191. Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing (Annex E to the Report of the Technical Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated Fishing. Rome, 31 August-2 September 2004, FAO Fisheries Report. No. 759(2004))
192. endorsed by COFI at its Twenty-Sixth Session (COFI Report, supra note 87, at para. 25).
193. See para. 13(A) of the St. John's Ministerial Declaration. See the main text with footnote 8
194. E.g. Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, November 24, 1993 (entered into force April 24, 2003), (1994) 33 I.L.M. 969; available at url: 〈http://www.fao.org/legal〉), the Code of Conduct and its International Plans of Action.
195. See Molenaar, supra note 4, at 230-231.
196. Art. 32, which refers to Art. 297(3) of the LOS Convention, should be mentioned as well.
197. E.g. Arts. 3, 5 (chapeau) and 8.
198. See item 5(b) of the Provisional Agenda at 〈www.un.org/Depts/los〉
199. Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, December 10, 1982, 28 July 1994 (entered into July 28, 1996, 33 I.L.M. 1309 (1994); available at url: 〈http://www.un.org/Depts/los〉
200. See arts. 155 and 312-316 of the LOS Convention and the discussion by Freestone
201. and Oude Elferink, supra note 33.
202. St. John's Ministerial Declaration, supra note 7, para. 13(D).
203. Ibid. at para. 5(4)(b).