International law, Sixth edition
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International Law MALCOLM N. SHAW
the Sea, p. 305; F. Orrego Vicu˜na, The Changing International Law of High Seas Fisheries,
Cambridge, 1999; W. T. Burke, The New International Law of Fisheries, Oxford, 1994; H. Gherari, ‘L’Accord de 4 ao ˆut 1995 sur les Stocks Chevauchants et les Stocks de Poisson Grands Migrateurs’, 100 RGDIP, 1996, p. 367; B. Kwiatowska, ‘Creeping Jurisdiction be- yond 200 Miles in the Light of the 1982 Law of the Sea Convention and State Practice’, 22 Ocean Development and International Law, 1991, p. 167; E. Miles and W. T. Burke, ‘Pressures on the UN Convention on the Law of the Sea 1982 Arising from New Fisheries Conflicts: The Problem of Straddling Stocks’, 20 Ocean Development and International Law, 1989, p. 352; E. Meltzer, ‘Global Overview of Straddling and Highly Migratory Fish Stocks: The Nonsustainable Nature of High Seas Fisheries’, 25 Ocean Development and International Law, 1994, p. 256; P. G. G. Davies and C. Redgwell, ‘The International Legal Regulation of Straddling Fish Stocks’, 67 BYIL, 1996, p. 199; D. H. Anderson, ‘The Straddling Stocks Agreement of 1995 – An Initial Assessment’, 45 ICLQ, 1996, p. 463, and D. Freestone and Z. Makuch, ‘The New International Environmental Law of Fish- eries: The 1995 United Nations Straddling Stocks Agreement’, 7 Yearbook of International Environmental Law, 1996, p. 3. 353 See article 2 of the High Seas Convention, 1958 and articles 1 and 6 of the Geneva Con- vention on Fishing and Conservation of the Living Resources of the High Seas, 1958, and article 116 of the 1982 Convention. In particular, the freedom to fish is subject to a state’s treaty obligations, to the interests and rights of coastal states and to the requirements of 624 i n t e r nat i o na l l aw exclusive economic zones has meant that the area of high seas has shrunk appreciably, so that the bulk of fish stocks are now to be found within the economic zones of coastal states. In addition, the interests of such coastal states have extended to impinge more clearly upon the regulation of the high seas. Article 56(1) of the 1982 Convention provides that coastal states have sovereign rights over their economic zones for the purpose of explor- ing and exploiting, conserving and managing the fish stocks of the zones concerned. Such rights are accompanied by duties as to conservation and management measures in order to ensure that the fish stocks in exclusive economic zones are not endangered by over-exploitation and that such stocks are maintained at, or restored to, levels which can produce the maximum sustainable yield. 354 Where the same stock or stocks of associ- ated species occur within the exclusive economic zones of two or more coastal states, these states shall seek either directly or through appropriate subregional or regional organisations to agree upon the measures neces- sary to co-ordinate and ensure the conservation and development of such stocks. 355 Article 116(b) of the 1982 Convention states that the freedom to fish on the high seas is subject to the rights and duties as well as the interests of coastal states as detailed above, while the 1982 Convention lays down a general obligation upon states to co-operate in taking such measures for their respective nationals as may be necessary for the con- servation of the living resources of the high seas and a variety of criteria are laid down for the purpose of determining the allowable catch and establishing other conservation measures. 356 A particular problem is raised with regard to straddling stocks, that is stocks of fish that straddle both exclusive economic zones and high seas, for if the latter were not in some way regulated, fishery stocks regularly present in the exclusive economic zone could be depleted by virtue of unrestricted conservation. See generally on international fisheries law, www.oceanlaw.net/ and above, p. 581, with regard to the Fisheries Jurisdiction case. 354 Article 61. See also article 62. 355 Article 63(1). This is without prejudice to the other provisions of this Part of the 1982 Convention. 356 See articles 117–20. A series of provisions in the 1982 Convention apply with regard to particular species, e.g. article 64 concerning highly migratory species (such as tuna); article 65 concerning marine mammals (such as whales, for which see also the work of the International Whaling Commission); article 66 concerning anadromous species (such as salmon); article 67 concerning catadromous species (such as eels) and article 68 concerning sedentary species (which are regarded as part of the natural resources of a coastal state’s continental shelf: see article 77(4)). t h e l aw o f t h e s e a 625 fishing of those stocks while they were present on the high seas. Article 63(2) of the 1982 Convention stipulates that where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone (i.e. the high seas), the coastal state and the states fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organisations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area. The provisions in the 1982 Convention, however, were not deemed to be fully comprehensive 357 and, as problems of straddling stocks grew more apparent, 358 a Straddling Stocks Conference was set up in 1993 and produced an agreement two years later. The Agreement emphasises the need to conserve and manage straddling fish stocks and highly migra- tory species and calls in particular for the application of the precaution- ary approach. 359 Coastal states and states fishing on the high seas shall pursue co-operation in relation to straddling and highly migratory fish stocks either directly or through appropriate subregional or regional or- ganisations and shall enter into consultations in good faith and without delay at the request of any interested state with a view to establishing appropriate arrangements to ensure conservation and management of the stocks. 360 Much emphasis is placed upon subregional and regional organisations and article 10 provides that in fulfilling their obligation to co-operate through such organisations or arrangements, states shall inter alia agree on measures to ensure the long-term sustainability of straddling and highly migratory fish stocks and agree as appropriate upon participa- tory rights such as allocations of allowable catch or levels of fishing effort. In particular, the establishment of co-operative mechanisms for effective 357 See e.g. Burke, New International Law of Fisheries, pp. 348 ff., and B. Kwiatowska, ‘The High Seas Fisheries Regime: At a Point of No Return?’, 8 International Journal of Marine Download 7.77 Mb. Do'stlaringiz bilan baham: |
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