The International Regime of Fisheries : From UNCLOS 1982 to the Presential Sea

Until recently, the international community failed to adopt either an agreed limit for the breadth of the territorial sea or a satisfactory regime of fisheries in the waters adjacent to the territorial sea. This provoked an eruption of unilateral acts by which coastal states extended their jurisdiction towards the high seas. The Third U.N. Conference on the Law of the Sea accepted the establishment of a 12-mile territorial sea and a 200-mile exclusive economic zone. While taking into account the non-existent rights and interests of the so-called geographically disadvantaged states and of states with broad continental shelves, the 1982 Convention on the Law of the Sea practically ignored existing rights and interests of habitual fishing states. It maintained the well-established principle of freedom of fishing on the high seas but with specific conditions. Dissatisfied with the Convention's regulation of fishing on the high seas, a few states elected to hold a U.N. Conference on Straddling and Highly Migratory Fish Stocks which adopted the 1995 Agreement for the implementation of the provisions of the Convention relating to the conservation and management of such stocks. Similarly, some of these states, like Chile, Argentina, and Canada, adopted legislation extending their jurisdiction beyond their respective 200-mile fishing or exclusive economic zones. This book explores these events in the historical development of the international regulations of fisheries and concludes with a look into recent developments in the area. Title Page Copyright Page Table of Contents Preface List of Abbreviations CHAPTER I HISTORICAL DEVELOPMENT I. The Hague Codification Conference II. The Truman Proclamation III. Expansion of Jurisdiction in Latin America 1. Unilateral declarations 2. The Santiago Declaration IV. First UN Conference on the Law of the Sea 1. Preparatory work of the ILC 2. Convention on the Territorial Sea and the Contiguous Zone 3. Convention on the High Seas 4. Convention on Fishing and Conservation of the Living Resources of the High Seas 5. Convention on the Continental Shelf V. Second UN Conference on the Law of the Sea VI. European Fisheries Convention VII. Phase Prior to the Convening of the Third UN Conference on the Law of the Sea 1. US-USSR Proposal 2. Work of the General Assembly 3. The Montevideo and Lima Declarations 4. The African contribution to the EEZ concept 5. The “Patrimonial Sea” concept VIII. The Seabed Committee as Preparatory Committee of the Conference27 1. List of Subjects and Issues 2. Proposals a) Minimalist proposals b) Maximalist proposals c) Intermediate proposals d) Other proposals e) Proposals on delimitation f) Proposals on the high seas g) Conclusions IX. Phase Prior to the Celebration of the Conference 1. Generalization of the expansion of jurisdiction 2. ICJ Judgment on Iceland’s Fisheries Jurisdiction Case CHAPTER TWO THE THIRD UN CONFERENCE ON THE LAW OF THE SEA I. Proposals Submitted to the Conference 1. Organization of the Conference 2. General debate 3. Preferential proposals 4. Territorialist proposals 5. Zonal proposals 6. Sectorial proposals a) Land-locked and GDS b) Species 7. Proposals on delimitation 8. Proposals on the high seas 9. Conclusions II. Negotiating Texts 1. Introduction 2. Informal Single Negotiating Text a) Legal nature and rights and duties of States b) LLSGDS c) Delimitation 3. Revised Single Negotiating Text a) Legal nature and rights and duties of States b) LLSGDS c) Delimitation 4. Informal Composite Negotiating Text a) Legal nature and rights and duties of States b) LLSGDS c) Delimitation III. Adoption, Signature and Entry into Force of the Convention 1. Adoption a) Legal nature and rights and duties of States b) LLSGDS c) Delimitation 2. Signature a) Legal nature and rights and duties of States b) LLSGDS c) Delimitation 3. Entry into force a) Adoption of the Agreement on the Implementation of Part XI of the Convention b) Signature of the Agreement c) Entry into force of the Convention CHAPTER 3 FISHERIES REGIME IN THE LAW OF THE SEA CONVENTION I. Fisheries in the Territorial Sea II. Fisheries in the Contiguous Zone III. Fisheries in the Continental Shelf IV. Fisheries in the Exclusive Economic Zone 1. Legal nature of the BEZ 2. Rights and duties a) Coastal States b) Land-locked and GOS c) Other States 3. Special regime for certain fish stocks a) Straddling stocks b) Highly migratory species c) Marine mammals d) Anadromous stocks e) Catadromous species f) Sedentary species 4. Navigation 5. Delimitation a) Regulations of the Convention b) ICJ jurisprudence 6. Settlement of disputes a) Fisheries b) Delimitation V. Fisheries in the High Seas 1. General principles: freedom of fishing 2. Rights and duties of States a) Right of free access to fisheries b) Obligation of conservation c) Obligation of co-operation d) Institutionalization of the co-operation 3. Limits of the freedom of fishing a) Straddling stocks b) Highly migratory species c) Marine mammals d) Anadromous stocks e) Catadromous species 4. Navigation 5. Settlement of disputes CHAPTER 4 BEYOND UNCLOS: RECENT DEVELOPMENTS I. Developments after UNCLOS 1. Large-scale pelagic driftnet fishing 2. Preparation of the UN Conference on Environment and Development 3. UN Conference on Environment and Development 4. International Code of Conduct for Responsible Fishing 5. UN Conference on Straddling and Highly Migratory Fish Stocks a) First session b) Second session c) Third session d) Fourth session e) Fifth session f) Sixth session g) Signature of the Agreement II. Agreement on Straddling and Highly Migratory Fish Stocks 1. Objective and principles a) Objective b) General principles c) Scope of application d) Precautionary approach e) Compatibility of measures f) International co-operation 2. Enforcement a) Flag State b) Inspecting State c) Port State 3. Settlement of disputes 4. Participation 5. Critical appraisal a) Scope of application of the Agreement b) Enforcement by States other than the flag State c) Use of force d) Conclusions III. Theory and Practice of Fishing on the High Seas 1. The “Presential Sea” Doctrine a) Elaboration of the doctrine b) Critical appraisal c) Influence of the doctrine in Chile d) Influence of the doctrine in Argentina 2. Conflicts between Canada and the European Community a) Amendment of Canada’s fisheries regulations b) Conflicts within NAFO c) Arrest of the Spanish fishing vessel “Estai” d) Solution of the conflict e) Critical appraisal 3. Dispute between Canada and Spain a) Arrest of the Spanish fishing vessel “Estai” b) Spain’s application to the ICJ against Canada c) Critical appraisal SELECTED BIBLIOGRAPHY I. General Aspects and Historical Antecedents of Fisheries II. Fisheries in the Third UN Conference on the Law of the Sea III. Fisheries in UNCLOS IV. Fisheries beyond UNCLOS INDEX I. Index of Names II. Index of Subjects

Until recently, the international community failed to adopt either an agreed limit for the breadth of the territorial sea or a satisfactory regime of fisheries in the waters adjacent to the territorial sea. This provoked an eruption of unilateral acts by which coastal states extended their jurisdiction towards the high seas. The Third U.N. Conference on the Law of the Sea accepted the establishment of a 12-mile territorial sea and a 200-mile exclusive economic zone.
While taking into account the non-existent rights and interests of the so-called geographically disadvantaged states and of states with broad continental shelves, the 1982 Convention on the Law of the Sea practically ignored existing rights and interests of habitual fishing states. It maintained the well-established principle of freedom of fishing on the high seas but with specific conditions.
Dissatisfied with the Convention's regulation of fishing on the high seas, a few states elected to hold a U.N. Conference on Straddling and Highly Migratory Fish Stocks which adopted the 1995 Agreement for the implementation of the provisions of the Convention relating to the conservation and management of such stocks. Similarly, some of these states, like Chile, Argentina, and Canada, adopted legislation extending their jurisdiction beyond their respective 200-mile fishing or exclusive economic zones.
This book explores these events in the historical development of the international regulations of fisheries and concludes with a look into recent developments in the area.