Los verbos deponentes

‘Geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States’

Article 77(4)-species are regarded as part of the resources of the continental shelf.

‘The natural resources referred to in this Part consist of the mineral and other non-living resources of the sea-bed and subsoil together with living

organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil.’

Protection of your EEZ – Art 73 states a State can take measures such as

‘boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with state regulations within EEZ.

• Any use of force would have to, of course, be in accordance with lawful uses of force under the UN Charter

The most important in all of these is that they are meant for people to cooperate over their fisheries the main goals are

1. Cooperation of all states over the natural resources of the sea 2. Cooperation and enrichment from the sea to the effect that it is

not depleted

2. Lets go fishing on the High Seas!

High Seas Fisheries

• the freedom to fish is preserved in UNCLOS Article 87(1)(e)

‘The high seas are open to all States, whether coastal or land-locked.

Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States…

(e) freedom of fishing, subject to the conditions laid down in section 2.’

• The requirements are again to cooperate in order to conserve the living resources of the area.

• Vessels on the high seas are subject to the jurisdiction of their flag state

• If the flag-state has a well-developed system of laws and can enforce these effectively,

• See the Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas which forms part of the International Code of Conduct for Responsible Fishing an organ of the UN.

• Australia has recently enacted this agreement in the Fisheries Legislation Amendment (High Seas Fishing Activities and Other Matters) Act 2004 (Cth), but this does not solve the international issues relating to irresponsible flag states, many of which operate in the Australian Fishing Zone (AFZ).

The Southern Blue Fin Tuna Case Facts:

• The tribunal considered whether the dispute arose under the United Nations Convention on the Law of the Sea (UNCLOS) or the regional Convention for the Conservation of Southern Bluefin Tuna (CCSBT).

• It found that the dispute arose under UNCLOS, while being based in the CCSBT.¹

• The Tribunal characterised it as one dispute under two Conventions, not two separate disputes.

• The central feature of the dispute concerned the parties inability to agree on the revised total allowable catch of tuna & Japan’s involvement in unilateral experimental fishing programmes.

• These concerns were clearly within the CCSBT Convention² although UNCLOS still had jurisdiction in principle.³

• However, the tribunal considered it artificial to separate out the UNCLOS elements from the CCSBT elements.⁴

Found:

• Under Article 16(2) parties are required to find a peaceful resolution after failing to reach agreement on having a dispute resolved externally.⁵

• At the time of the judgment, the tribunal found that every possible avenue had not been exhausted under the CCSBT and UNCLOS

Straddling Fish Stocks and Highly Migratory Fish Stocks

• UNCLOS requires that straddling stocks be the subject of conservation efforts in the high seas only,

1 Jacqueline Peel, ‘A Paper Umbrella which Dissolves in the Rain? The Future for Resolving Fisheries Disputes under UNCLOS in the Aftermath of the Southern Bluefin Tuna Arbitration’ (2002) 3 Melbourne Journal of International Law 53, 57.

2 Caroline E Foster, ‘The “Real Dispute” in the Southern Bluefin Tuna Case: a Scientific Dispute?’ (2001) 16 The International Journal of Marine and Coastal Law 571, 591.

3 Caroline E Foster, above n19, 581.

4 Caroline E Foster, above n19, 591; Jacqueline Peel, above n17, 59.

5 Jacqueline Peel, above n18, 59.

• while highly migratory species are to be dealt with in both the EEZ and the high seas

• Fish stocks which will go outside their own EEZ are open to over-exploitation, particularly by the high- capital long-distance fishing fleets of the world.

• They may be well managed in the EEZ of the coastal state and then decimated once outside it.

• The UN decided that further measures were needed in order to overcome this problem. Hence the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks was convened.

• Outcome was the:

Agreement for the Implementation of the Provisions of the United Nations Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks

• The Agreement is concerned with the effective implementation of Articles 63-64 and 116-119 of UNCLOS.

• Article 5 of the agreement requires the best scientific evidence principle to be applied to the conservation of straddling stocks and highly migratory species.

• Where scientific evidence is lacking or uncertain article 6 requires the application of the ‘precautionary principle’.

• States must find ‘compatible rules’ for conservation. This is believed to be stronger than just requiring ‘cooperation’-see article 7.

• Article 8 sets out the requirements for cooperation between and among states - if there is already a regional or subregional arrangement, current non-members fishing the relevant waters should join. This may appear to be a further erosion of the freedom of the high seas, although that freedom is specifically preserved in article 4 of the Agreement.

• If there is a dispute, the compulsory settlement procedures of UNCLOS (in Part XV) are to be applied.

3. Whales are delicious

• The main body is the Scientific Committee of the IWC –

• The Scientific Committee comprises up to 200 of the world's leading whale biologists. Many are nominated by member governments.

• The Committee meets in the two weeks immediately before the main

Commission meeting and it may also hold special meetings during the year to consider particular subjects.

• The Scientific Committee's report provides an annual review of the major issues affecting cetacean conservation.

The subject matter considered by the Committee:

 encourage, recommend, or, if necessary, organise studies and investigations relating to whales and whaling;

 collect and analyse statistical information concerning the current condition and trend of the whale stocks and the effects of whaling activities thereon;

 study, appraise and disseminate information concerning methods of maintaining and increasing the populations of whale stocks.

Roles: It monitors whale counts and advises states on the best way to conserve whales (there is a detailed discussion of their roles and inadequacies below) Current Issues with Whaling

Japan’s plan to increase whale cull

• Japan’s plans to expand it’s scientific whaling programme

• Australia, with New Zealand backing, put forward a resolution that urged Japan to withdraw its proposal for increasing its whale cull or This was passed by a majority of 30 to 27 votes with one abstention by the Solomon Islands.

• Voting also upheld a continuation of the whaling moratorium and a voting down of the introduction of regional management schemes that would threaten the moratorium.

• However, Japan stated that it would go ahead with the programme at the end of this year despite the resolution and general consensus against the hunting of whales.

Can the IWC still effectively deal with Whaling Issues?

• The IWC is not effective as a conservation organisation in terms of their treaty The International Convention for the Regulation of Whaling (ICRW).

• The original function of the IWC was to manage the conservation of whales to overcome the need to return to large-scale commercial whaling.

• The Articles of the Convention focus on the sustainable harvest of whales.

However, many States believe the treaty’s purpose is to achieve a total ban on commercial hunting and reject this focus.

• In trying to regulate whaling the IWC has not been successful,

• The IWC is ignored by States when their political preferences are not soothed.

• There is not even an obligation to take part in an international organization that deals with whaling.

• The IWC focuses on a horizontal theory of international law, where States are supposed to comply in good faith to the ICW because of their own

self-interests.

• However, the ICRW is continually violated by members and this goes unchallenged.

• Japan has lodged objections to the moratorium, rendering the IWC powerless to enforce it against Japan pursuant to the opt-out provision of the

Convention.

Problems with enforcement

• The resolutions passed at the Commission each year are non-binding on States. There are no dispute settlement procedures or enforcement programmes within the IWC.⁶

• The Convention’s only form of enforcement is self-policing.

• As a result, there are no obligations placed on States and the Commission has no power to challenge State’s actions.

6

Problems with monitoring numbers of whales

• There exists no mechanism to monitor activities in the vast expanses of oceans.

• The IWC has no way of monitoring the activities of whaling ships, so illegal whaling occurs without its specific knowledge.

• Also, the reporting mechanism for the numbers of whales captured is up to each State to collect individually.

The legal solutions available for opposing Japan include:

1. legal action in domestic courts 2. legal action in international courts 3. Trade sanctions

4. reform the ICW and ICRW

ITLOS – The International Tribunal for the Law of the Sea

Part XV UNCLOS

• requires state parties to settle any dispute arising under the convention in a peaceful manner in accordance with Art 2(3) and Art 33(1) of the UN Charter

• where no settlement reached, parties can submit the dispute to a court or tribunal with jurisdiction under Art 286

• Art 287 defines the courts and tribunals

 ITLOS – Annex VI to UNCLOS is its statute

 ICJ

 Arbitral tribunal constituted in accordance with Annex VII of UNCLOS

Topic 4: International Environmental Law