Scenario Question: Law of the Sea - Essay Example

Law of the Sea Assignment Scenario Question Introduction This question relates to a discussion of the issue arising out the given scenario which involves issues from the Law of the Sea and the relevant conventions. The relevant case law and recent developments have been accordingly discussed and evaluated. Background of the law It is worth noting at the outset that this question which is about the e discussion of the Law of the Sea pertains to a thorough analysis of the international conventions and customary law governing this area.A prominent feature of the new law of the sea introduced by the 1982 United Nations Convention on the Law of the Sea (LOS Convention), was the right for the coastal states to assert significant maritime claims over waters adjacent to their coastlines.( In force 16 Nov 1994).The law under LOS Convention, Art 76.allowed the a country to claim a continental shelf out to a minimum of 200 nautical miles.The concept of the newly recognized Exclusive Economic Zone (EEZ) also extended this to 200 nautical miles under Article 57 LOS.1 The EEZ allowed the coastal states sovereign rights over the living and non-living resources of the sea-bed and adjacent waters and this was a new feature of state sovereignty added by the LOS Convention and represents one of the most significant contemporary expansions of state sovereignty. This is the area of law to which the question pertains as it had a major impact upon fishing activities. Historically the coastal states around the world eagerly proclaimed EEZs, and this meant that these waters were no longer labelled as high seas areas available for fishing.Now states has jurisdiction and control of this fishing.As it can seen from the question State A being a coastal State has claimed this 200-mile EEZ by national legislation under the applicable law(UN Convention on the Law of the Sea in 1982) and stated in its declaration.‘The Government considers that, in accordance with the provisions of the UN Convention on the Law of the Sea, where the same stock or stocks of associated species occur within the exclusive economic zone or in an area adjacent thereto, the States fishing for such stocks in the adjacent area are under an obligation to agree with the coastal State the measures necessary for the conservation of the stock or stocks of associated species.’ Initiatives like this have led to parallel initiatives by states to regulate some aspects of high seas fishing activities which means that the actions of State B would extensive regulation to be classified as legal fishing.2Initially the problem under Article 87 was the regulation and management of fisheries by coastal states as well the issues of practical solutions to the logistics of enforcing fisheries laws in vast maritime areas such as those asserted by Australia, Canada, Russia, and the United States.To make State B’s dilemma of arrested fishermen worse it should be noted that under Article 73 the Convention conferred extensive enforcement jurisdiction to regulate and manage EEZ fishing. Recent case law In a similar recent case in 2007 Japanese fishing vessels, were arrested by the Russian authorities in 2006 off the Kamchatka Peninsula in Russia’s 200 nautical-mile zone, and the fishing Vessels alongwith their crew were arrested in a similar scenario to the problem question.Based in the provision in the United Nations Convention on the Law of the Sea which makes it obligatory upon states to release promptly “arrested vessels and their crew upon the posting of reasonable bond or other security” when the arrests occurred in the exclusive economic zone.(MOFA 2007).The Government of Japan asked the International Tribunal for the Law of the Sea in this vein to comply with its obligation under the law to restrain this prolonged detention and the implementation of the procedures under the law to promptly release the arrested fishing vessels and their crew upon as soon as guarantees or bonds are presented by the arrestee’s State3.In this case the Russian authorities’ measures against illegal operations or the arrests of the vessels themselves were causing the prolonged arrest of the Vessel and the Crew.(MOFA 2007).Subsequently in the same year the International Tribunal for the Law of the Sea in Hamburg, heard this case concerning the Japanese fishing vessels seized by the Russian authorities.The Tribunal with regard to one of the fishing vessels said that the reasonable bond to release the vessel and the crew shall amount to 10 million rubles (about 46 million yen: 40% of the amount originally claimed by the Russian side)(MOFA 2007), and ordered the prompt release of the Vessels by the Russian Federation to release promptly the vessel upon the posting of the bond, and to Crew to leave without any conditions.Based on this when State B is arguing for the release of its prisoners they will be able to follow the precedent and say that the value of the vessel cannot be automatically calculated in the amount of the bond. However if State A has already completed the domestic procedures and finalised the decision of the confiscation of the vessel State B will not be in a good position to ask for a Prompt release of such a Vessel although the Court did say that “ the confiscation decided in unjustified haste contradicted the object and purpose of the prompt release procedures provided in the United Nations Convention on the Law of the Sea…”(MOFA 2007). Based on this recent development it has been argued by many academics that in the future state’s will take care improve their domestic regulations on the seizure and release of foreign vessels to avoid unreasonable detentions of other Vessels.4 Prompt release and detention This judgement along with the other Case law in the past has paved the way to balance the interests of fishing states with coastal states.Article 73 also allows for the incorporation of the safeguards providing for the prompt release of arrested fishing vessels and mechanisms for the resolution of disputes concerning such vessels.5This case in question will be referred to the International Tribunal for the Law of the Sea which has been set up under the compulsory dispute settlement provisions in Part XV of the Convention, and is responsible for the resolution of disputes between coastal states and flag states over alleged illegal fishing.6 Within this zone the coastal state enjoys "sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living" (Art.56). The coastal state will then have a right to set a total allowable catch on the basis of the best scientific evidence available to it (Art.61). Since in this question the date of arrest for the State B’s Vessel has been given to be 1995 this is significant because in the early nineties the signatory states based on the general provisions of the Convention which required co-operation between states in the conservation and management of high seas fisheries resources under Articles 117-120 decided to take steps to increase this Co-operation which culminated in the 1995 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 (UN 1995) which is also known as the United Nations Fish Stocks Agreement. Under this Agreement all states bound by this agreement are under a duty to ensure that their vessels comply with conservation measures adopted for high seas stocks based on Article 117 of the original Convention.The other provision based in Arts 90-98 stipulates that on the high seas, the States will have the jurisdiction to try disputes over vessels flying their flag .This agreement also provided for the establishment of regional fisheries management organizations for the management control and enforcement by the Flag state.In addition to this another multilateral agreement, that is Code of Conduct for Responsible Fishing (1995) which places the responsibility on the flag state for “the activities of fishing vessels flying its flag and seeks to advance management measures, by agreement among states, that improve the optimal and sustainable use of fisheries resources”.A similar approach is taken by the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Resolution 15/93) . Straddling fish stocks In the case in question it is acknowledged that State A is indeed a good fishing ground particularly for straddling species.But the question also says that “it is becoming apparent that currently straddling fish stocks in the EEZ of State A have significantly declined”.It is worth noting at this point the meaning and context of “Straddling” fish stock which means stocks of fish such as pollock, which migrate between, or occur in both, the economic exclusive zone (EEZ) of one or more States and the high seas. (UNAO 2008 definition). The emphasis is on highly migratory fish stocks and they can be commercially attractive thus being a threat to conservation or the problem of Over Fishing.Since these fish are migrating all the time the problem is any management measures will be thwarted by such movement .The United Nations Convention on the Law of the Sea deals with straddling fish stocks in Article 63(2) and provides for “ co- operation measures in the high seas”.The criticism however that there is no “ substantive guidance as to how the problems involved with regulating straddling stocks are to be addressed.”(UNAO 2008).The Straddling Stocks Agreement deals with fish stocks beyond limits of national jurisdiction of coastal states as the Agreements Preamble recalls the provisions of Agenda 21 regarding high seas fisheries,the application of the precautionary principle under Article 6 of the Convention .According to the UNAO 2008 the aim is “ long-term sustainability and optimum utilisation of the stocks concerned; minimise discards (i.e., fish thrown back into the sea (usually dead) after being caught, because they are too small or the wrong species); prevent or eliminate over-fishing and excess fishing capacity; protect marine biodiversity; collect data concerning fishing activities; etc.” Under Article 34 of the 1995 convention , the UNAO (2008) states that the mechanisms set out for giving effect to the obligation to co-operate in the conservation and management of straddling stocks on the high seas, members of regional fisheries organisations or arrangements are to establish schemes whereby one member can board and inspect vessels of any State Party to the Straddling Stocks Agreement, even if it is not a member of the regional fisheries organisation or arrangement . Now coming back to the question it is further stated that State B’s fishing activities on the high seas adjacent to the EEZ are making the conservation measures of State A ineffective. Both states have failed to reach an agreement in 1991 over the issue of the conservation of straddling fish.Now the legality is that in 1991 State A has already adopted the Coastal Fisheries Conservation Act in its Parliament. which permits State A has to take regulatory measures necessary for the conservation of straddling fish stocks on the high seas adjacent to its EEZ as well as the arrest of foreign vessels fishing in this marine area. The date given for the arrest of the fishing vessel flying the flag of State B is 1995 where the master was arrested on charges of violations of the 1991 Coastal Fisheries Conservation Act. 7 Here it can be said that the protest by B against State A on the ground that the arrest of the fishing vessel was contrary to the principle of the freedom of the high seas cannot be upheld based on the restrictions outlined in the 1982 Convention. The relevant article in Part V of the Convention, the Exclusive Economic Zone, is Article 63(2), which reads as follows (UN, 1982): 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, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area. .The argument of the part of A, that the arrest was necessary in order to conserve straddling fish stocks in its EEZ can be challenged by the 2007 Japan Fisheries case. Highly migratory species (stocks) in Part V of the 1982 UN Convention are covered by Article 64, which reads as follows (UN, 1982): 1. The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex 1 shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work. Now at this point State A is asserting that the high sea fishing of straddling species is subject to the sovereign rights of the coastal State by virtue of Articles 56, 63 (2) and 116 (b) of the UN Convention on the Law of the Sea. It is submitted that the 1995 resolution insists in the rights of flag states and State A will need to spend greater effort on utilising this argument based on academic opinion.8 Reservations of State B Concerning the part whether State B was under an obligation to agree with A upon the conservation measures relating to straddling fish stocks my opinion would suggest that yes indeed as an original signatory to the Law of the Sea Convention State B will have to control its fishing activities but in the light of the 1995 addition to the Convention. Thus under the LOS Convention State A may be able to assert significant jurisdictional capacity to regulate and manage the EEZ therefore the fears are that there may be an abuse of process here in the form of  lengthy detention and legal processes. The Convention was supplemented by the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas 1993, and the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea, 10 December 1982, relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995. It has been estimated that the Fish stocks in these areas have started to deplete since 1982 and this rate has doubled for the migratory stocks of fish.While the 1993 Agreement does allow State A to impose strict conservation requirements on B’s vessels fishing on the high seas .State B would have to abide by the 1995 regime which makes necessary the adoption of a precautionary management approach to conservation of fish.. The detention of vessels could cause significant commercial loss for owners and operators far exceeding any penalties that might apply under national laws. Article 73 (1) of the LOS Convention seeks to reconcile these competing interests. It provides that coastal States: may, in the exercise of [their] sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. The flag State has the right to have its ‘arrested vessels and their crews shall be promptly released upon the posting of a reasonable bond or other security’.9More relevant to the discussion in this is the Volga case10.Firstly the procedure for State B to follow would be that it may commence proceedings against the coastal State seeking the release of the vessel pursuant to Article 292. Failing the choice of another procedure open to either the detaining State or flag State, Article 292 will mean this case will go before the tribunal for resolution.This will allow State B to get ‘prompt release’ while not in any way conclusively determining issues of legality associated with the activity under question (illegal fishing, pollution etc) or with the arrest of the vessel (excessive use of force, hot pursuit etc).11Under the law an application for release ‘may be made only by or on behalf of the flag State of the vessel’ under art 292.The law also states that the court or tribunal hearing the application is to deal with the case ‘without delay … and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or the crew’.State A will have to comply promptly with any decision by a court or tribunal.Initially there were significant doubts over its Article 292 jurisdiction, but these were resolved by Case law later on 12. The Volga case The Facts in the Volga Case were that Volga, was arrested in the Southern Ocean by Australian authorities on 7 February 2002. The Volga was arrested after it left the Australian EEZ. and tonnes of fish were found on board and the Master of the Volga was served with a notice pursuant to the Fisheries Management Act 1991 (the FMA)13. The Facts of this case would put State A in a rather strong position because here Volga(the Russian Ship) was fined for a guarantee of non-repetition of such fishing by the Volga in the form of a ‘good-behaviour bond’.14 However the Tribunal gave a judgement which does not seem to make things look nice for State A here.15There is no fishery organisation in this region and this will cause problems for State B to show that it is complying with its obligations under the 1995 convention. Now coming to the possible solutions16 relating to the conservation of straddling fish stocks in the EEZ of State A in this regard I would like to point out to the concept of integrated oceans and coastal management (IOCM) which has led major counties to adopt initiatives like the 1996 Canadiants Oceans Act; 1998 Australian Oceans Policy; and in 2004 the United States Commission on Ocean Policy drew up An Ocean Blueprint for an Oceans Policy. Others included the EU Maritime Policy .All these acts present a good model for State A to be able to address its ocean and coastal management in a systemic manner, and in some instances they are an attempt to provide a positive legal basis for such action. This will help State A address the dire state of its fish stocks by controlling illegal fishing, or the need to minimise by-catch of non target and juvenile fish.Such initiatives are labelled as Sustainable Development and the emergence of the ecosystem approach which is defined by the Secretariat of the Convention on Biological Diversity as ‘a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way.’ 17 Thus this would entail establishing the obligation to maintain fish stocks at a level which produces the maximum sustainable yield under international law. This can be achieved through maritime science research to determine the optimal level of fish stocks which would essentially be a policy decision where there would be advice to commercial fishermen to maintain stock at about forty percent of the pre-fishing population. Under the law all states are already legally bound to integrate their management of coasts and oceans spaces and resources. Suggestions for the preservation of Straddling Stocks Some suggested measures of achieving the conservation of these stocks by State A would thus include: An attempt to enforce a community-type obligation with an emphasis on joint and several liability for the over fishing of such stocks.The problem is that such co-operation is limited to the preamble of the Law of the Sea Convention and not a aim of the substantive text of the agreement.All is not lost however as  61(3) of the Law of the Sea Convention permits States to take account of environmental and economic factors and requires parties to take into account the interdependence of fish stocks as part of their conservation and management duties. Also under this then State A would have a power to take account of cross-scrotal matters when managing fisheries resources. Other initiatives like Article 6(b) of the Convention on Biological Diversity which state that Coastal states should ‘[i]ntegrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies’and can benefit States A’s policies of promoting the integrated marine and coastal area management .18 Another model which State A can utilise in its conservation attempts is the recently proposed European Maritime Policy which utilises more informed decision-making, and better implementation through political lobbying. Thus the main aims would be recognise that the marine environment will generate a flow of economic goods .It has been shows that the creation of property rights will make the coastal states better and more efficient in preventing over-fishing in a market economy. One way would be to lobby for the ban of any imports made from the fish caught illegally and urge other signatories to do the same.Like , the USA banned importation of certain fish the fishing of which was damaging dolphins from Mexico in 1991.The problem here is that under the GATT this will not be acceptable to many countries as they will argue that this is a quantitative restriction on trade like in the case of Mexico Above.However successful measures in the past included the use of gear modifications to reduce such fishing and also a resort to import bans where there is inherent use and abuse of fish stocks on the high seas. State A is advised to conclude agreements like The Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific Region 1989 to manage and conserve the stocks of fish.This would involve lobbying for cooperation with State B and other third party states in line with UN Resolutions like Resolutions 44/225, 1989, and 46/215, 1991 which urge UN members to take measures individually and collectively to stop over fishing by contributing to its conservation programmes.Other Conventions that State A can invoke to stop this over fishing are the Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 (the CITES Convention) and the Convention for the Conservation of Migratory Species of Wild Animals 1979 (the Bonn Convention) which makes it mandatory to conserve species outside national boundaries by placing strict obligations on parties with in the range of coastal areas. Even if the provisions of GATT stop the use of import quotas and other quantitative restrictions on imports State A can base such restrictions on health concerns if they can prove that they are banning fish products from all illegal fishing regardless of the state concerned.. Another tactic would be heavy taxation to make such fish appear attractive to local traders and such a stimulus of prices and market signals will reflect to such illegal poachers that they are not saving any money by not paying for the environmental costs of the consumption of marine animals and the natural resources.The high cost of these fish in terms of the environmental pollution and wastage should be reflected economically and monetarily Conclusion In conclusion all the possible way outs for State A’s concerns have been discussed in the light of academic and judicial opinions.This alongwith the economic perspective allows for better understanding of the price mechanism,boycotts,embargos and taxation strategies to discourage the sale of such endangered stocks.Furthermore the legal issues arising from the scenario like the detention of the ship crew have been discussed in the light of the Volga case and the recent 2007 Japanese case.These cases make the chances of lengthy detention of the crew very small as the Tribunal is reluctant to allow this anymore.State A’s recent legislation in 1991 will clash with the 1995 Convention update but as discussed above State A will not be allowed to play the “Sovereignty Card” although the bad news for State B is the absence of prior fishing management organisations and initiatives in the area.State A is advised to rely on political lobbying and less aggressive negotiation with State B and should try to involve the neighbouring states in the problem.It would be better to understand and implement a limit on fishing based on maritime research based “danger limits” for quotas. References 1. A Yankov, ‘The International Tribunal for the Law of the Sea and the Comprehensive Dispute Settlement System of the Law of the Sea’, in P Chandrasekhara Rao 2. Brundtland Report. World Commission on Environment and Development, Our Common Future (Oxford, OUP: 1987) 3. Cicin-Sain, B. and Knecht, R.W., Integrated Coastal and Oceans Management. Concepts and Practices (Washington D.C., Island Press: 1998) 4. Commissioner of the Environment and Sustainable Development, Report of the Commissioner of the Environment and Sustainable Development to the House of Commons. The Commissioners Perspective 2005 (Ottawa, Office of the Auditor General of Canada: 2005) 5. Commonwealth of Australia, Australias Oceans Policy (Canberra, Commonwealth of Australia: 1998) 6. Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twenty-First Meeting of the Commission, CCAMLR-XXI, 4 Nov 2002, 38. 7. Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twenty-First Meeting of the Commission, CCAMLR-XXI, 4 Nov 2002, 38 8. E Franckx, “‘Reasonable Bond” in the Practice of the International Tribunal for the Law of the Sea’ (2002) 32 California Western International Law Journal 303, at 330-1. 9. FAO, ‘International Plan of Action to Prevent, Deter and Eliminate Illegal Unreported and Unregulated Fishing Approved by the FAO Committee on Fisheries, 2 March 2001’ (2001) 16 International Journal of Marine and Coastal Law 660-78. 10. EJ Molenaar, ‘Southern Ocean Fisheries and the CCAMLR Regime’, in AG Oude Elferink and DR Rothwell (eds) The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (The Hague Kluwer Law International 2001) 293-315. 11. MOFA(2007) Ministry of Foreign Affairs of Japan, http://www.mofa.go.jp/announce/announce/2007/7/1174455_830.html 12. Pernetta, J.C., Elder, D. and Humphrey, S., Cross-sectoral, Integrated Coastal Area Planning, CICAP: Guidelines and Principles for Coastal Area Development (Gland, IUCN: 1993) 13. P Vigni, ‘Antarctic Maritime Claims: “Frozen Sovereignty” and the New Law of the Sea’, in Oude Elferink and Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (The Hague Kluwer Law International 2001) 85-104. 14. V Prescott, ‘Australias Proclamation of an Exclusive Economic Zone (EEZ)’ (1995) 10 International Journal of Marine and Coastal Law 95-105.Commission for the Conservation of Antarctic Marine Living Resources, Report of the Twentieth Meeting of the Commission, CCAMLR-XX, 2 Nov 2001; available at (28 Apr 2003). 15. R Khan (eds) The International Tribunal for the Law of the Sea: Law and Practice (The Hague Kluwer Law International 2001) 33 at 45-6. 16. S Oda, ‘Dispute Settlement Prospects in the Law of the Sea’ (1995) 44 ICLQ 863, at 866-7. 17. V Lowe, ‘The International Tribunal for the Law of the Sea: Survey for 2000’ (2001) 16 International Journal of Marine and Coastal Law 549, at 570. 18. United Nations Atlas of the Oceans UNAO(2008) http://www.oceansatlas.org/ 19. W Edeson, ‘The International Plan of Action on Illegal, Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument’ (2001) 16 International Journal of Marine and Coastal Law 603-23; Read More