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56 Seiten, Note: A-
Table of Acronyms and Abbreviations
List of Figures
II The Law of the Sea Convention
A History of UNCLOS
B Division of Ocean Areas: Fisheries Jurisdiction
1 Internal waters and the territorial sea
2 The contiguous zone
3 The exclusive economic zone
4 The continental shelf
5 The high seas
6 The Area
III Post-UNCLOS Freedom of Fishing Restrictions and its Deficiencies
A Post-UNCLOS High Seas Fisheries Developments
1 International developments in the legal regime of fisheries
2 Regional developments in the legal regime of fisheries
B Governance Challenges in the High Seas
1 Shortcomings in the general framework for environmental protection in the high seas
2 Shortcomings in the high seas fishing governance
IV A Future UNCLOS Implementation Agreement?
A The Global Political Arena: The UNGA and its BBNJ Working Group
B The Future UNCLOS Implementation Agreement
1 Priority issues to be covered by the Implementation Agreement
2 Feasibility of a future Implementation Agreement
illustration not visible in this excerpt
Figure 1. Diagram of the various regions of the ocean over which a state may exercise sovereignty
Figure 2. Legal status of the different maritime zones
Figure 3. Key dates in the history of high seas governance (courtesy of A. Magnan)
Figure 4. RFMO for tuna species
Figure 5. RFMO for non-tuna species
The crucial role of the oceans in the climate and functioning of the planet is an undeniable fact. Oceans cover over 70 percent of the earth’s surface and house a major part of global biodiversity. Ocean ecosystems support all life on earth: they regulate the global temperature, provide rain, food and oxygen, and they manage a certain amount of human pollutants.1
Nearly 64 percent of the oceans lie far beyond the coast of individual states. The high seas2 and the deep seabed, which form the parts of the oceans that are beyond the national jurisdiction of coastal countries, are some of the least protected areas on earth.3 Because of its very low temperature, lack of light and energy-deprived character, the high seas were long considered hostile to life. For centuries those areas beyond national jurisdiction (ABNJ) were being treated as a virtual desert without any sign of life or resources. Until the later decades of the twentieth century, the deep sea with its rare organisms and unique ecosystems was largely unexplored by humans.4 This resulted in a collective lack of knowledge about the rich biodiversity and abundant resources of the high seas and the deep seabed.5
In recent decades, human interest and activities outside the limits of coastal state jurisdiction have increased. Reasons of the sudden interest in those unknown parts of the oceans were inter alia the depletion of fishery stocks within national jurisdiction, the expansion of global maritime trade, the search for new resources and scientific interest in the deep sea. New advances in technology and maritime transport made it possible for scientists to explore the mysterious uncharted parts of the oceans.6
Recent research of those remote and deep oceans has shown that those areas host major parts of the global biodiversity and that they are vital for the survival of humans on earth. The high seas are home to sea turtles, whales, seabirds and other animals that traverse the entire ocean basins in order to find food. They also form habitats for deep-dwelling fish and invertebrate animals that live in the eternal darkness.7 Next to its feature as a biodiversity hotspot, the high seas appear to play an essential role in global biogeochemical cycles, which regenerate and produce oxygen. In addition, those deep parts of the ocean represent the largest reservoir of genetic resources on earth. Some of those genetic resources are of major interest for commercial and industrial operators in their search of developing cancer-curing medicines.8
Along with the advantageous discoveries of the features of the high seas, the flip side of the rise of human activities in those areas beyond national jurisdiction should be remembered. Linked to the increase of human activities in those areas is the growth of actual and potential threats to the marine environment. Human activities in the deep sea beyond national jurisdiction introduce light, noise and alien substances into the untouched parts of the ocean. Consequently, arbitrary human intervention in those deeper parts of the oceans can destroy the existing links between complex marine ecosystems and can ruin parts of the marine biodiversity.9
The international community has been recognising repeatedly the crucial role of biodiversity in achieving global sustainable development. This global commitment has been expressed inter alia at the World Summit on Sustainable Development, in the Convention on Biological Diversity and most recently at the Rio Earth Summit in 2012.10
This essay will focus on one particular part of the global biodiversity, namely the high seas fish stocks. There is a worldwide increasing demand for seafood. Consequently, a global industry is developed with more and bigger ships. The increased pressure on high seas fish stocks has caused a crisis in the current high seas fisheries management. Over 32 percent of the fish stocks are overexploited, depleted or still recovering from depletion. Global fishing activities will have to become subject to sustainable management measures if we want to secure the fisheries' benefits for the long term. Sustainable management of wild fish stocks causes beneficial effects for the economic output, livelihoods and food security.11
In the late twentieth century, the international community became more aware of the increasing threats to high seas fish stocks caused by human activities. But the problem in this respective is that the United Nations Convention on the Law of the Sea of 1982 (UNCLOS), which is often seen as 'the constitution of the seas', was conceived in an era in which there was a global lack of knowledge about the richness of fish stocks living in the waters of the high seas. According to UNCLOS, fish stocks in the high seas have the status of global commons and this resulted in a tragedy of the commons.
Several developments have supplemented UNCLOS in an attempt to avert the tragedy of the commons. To do so, short-term interests of individuals need to be balanced against long-term interests of humanity. Measures in this regard have been taken at the international and regional level. Nonetheless, even with the post-UNCLOS developments, the current legal framework is not able to provide adequate protection to high seas fisheries. Shortcomings, such as the underdeveloped and sectorally based status of the marine protection, contribute to the fact that a coherent approach to protect the marine environment in the high seas is not self-evident.12
Accordingly, in 2004 an Ad Hoc Open-ended Informal Working Group on Marine Biodiversity in Areas Beyond National Jurisdiction (BBNJ Working Group) was being set up. Since its foundation, the BBNJ Working Group has been examining the existence and the effectiveness of the regulatory initiatives at the international, regional and sectoral level, with a focus on the ABNJ. They have also been conducting in-depth research on the regulatory and governance gaps in the current legal framework and whether those gaps can be eliminated by the adoption of an Implementation Agreement to UNCLOS on the conservation and sustainable use of marine biodiversity in ABNJ (UNCLOS IA).13
This present research essay will commence with a description of the most important piece of international legislation in the area of the law of the seas, namely UNCLOS. In Chapter II the history and purpose of this Convention will be set out. In addition, the different maritime zones and their respectively applicable fishery regimes will be explained. Having described UNCLOS, the essay gives an overview of the post-UNCLOS freedom of fishing restrictions (Chapter III). Both international and regional developments in the legal regime of fisheries will be discussed. This discussion will be followed by an overview of the shortcomings of the existing legal framework applicable to fisheries. The final substantive chapter of the essay constitutes an analysis of an UNCLOS Implementation Agreement as a possible solution to fill the gaps of the previously outlined legal framework. Chapter IV provides an examination of how this Implementation Agreement might look. Finally, chapter V includes the final conclusion.
The United Nations Convention on the Law of the Sea, sometimes referred to as 'the constitution of the seas', is the overarching international instrument that deals with the legal framework of the seas and oceans. The Convention was agreed upon in 1982 after the third United Nations Conference on the Law of the Sea (UNCLOS III) and aims to protect the marine environment of the global seas and oceans.
UNCLOS contains provisions that inter alia define the rights and responsibilities of nations towards the use of the world's oceans, establish guidelines for businesses, promote equal and adequate utilisation of the seas' and oceans' resources and protect the conservation of species.14 In addition, it addresses subjects like sovereignty, the rights of usage in the maritime zones and rights of navigation.15
The struggle between the coastal states in their claims to expand their control over marine areas adjacent to their coastlines is what caused the development of the law of the sea.16
In the seventeenth century the prevailing doctrine concerning the law of the sea was the freedom of the seas principle. This concept limited the national rights and jurisdiction over the oceans to a narrow belt of water extending from a nation's coastlines. The narrow belt was considered to be three nautical miles - the distance that a shore based cannon shot could reach (rule developed by the Dutch jurist Cornelius van Bynkershoek). The part of the sea bordering to the coastline was called the territorial sea and fell under the sovereignty of the respective coastal state. The remainder of the sea was considered to be international waters, which are free to all and belonging to none (the Mare Liberum principle promulgated by Grotius, infra).17
After the Second World War some nations requested to expand their national claims to offshore resources. They wanted to have control over fish stocks, mineral resources and anti-pollution mechanisms beyond the territorial sea.18 According to the customary international law principle of a nation's right to protect its resources, numerous nations extended their national jurisdiction to a bigger area. Most of the states abandoned the traditional three-mile limit and replaced it by a larger territorial sea area. The resources of the oceans were being exploited like never before. Offshore oil, fish stocks, diamond and tin mining were all causes of conflicts between claims of different states. The oceans' resources were generating a lot of claims, counterclaims and sovereignty disputes.19
As a result of the enormous amount of disputes between nations, the international community requested the United Nations (UN) International Law Commission to codify the existing law of the seas.20 This resulted in three UN Conferences on the Law of the Sea.
The first UN Conference on the Law of the Sea (UNCLOS I) was held in Genève in 1956. This conference agreed upon the conclusion of four treaties, commonly referred to as the 1985 Geneva Conventions:
The Convention on the Territorial Sea and Contiguous Zone;21
The Convention on the High Seas;22
The Convention on Fishing and Conservation of the Living Resources of the High Seas;23 and
The Convention on the Continental Shelf.24
Although UNCLOS I was considered to be a success, no maximum breadth of the territorial seas was decided on. The first conference was followed by UNCLOS II in 1960, but this second conference did not result in any international agreements.25
On the 1st November 1967, Arvid Pardo - Malta's Ambassador to the UN - highlighted the adverse effects of the ongoing conflicts between states claiming parts of the oceans. Those conflicts had the potential to devastate the oceans, which are the lifeline of man's survival on earth. The increasing rivalry in the oceans and the pollution caused by the non-protected status of certain areas, had their implications for the stable order of the deep seas and for the rich potential of the resources and biodiversity located in the deep seas. All those issues made the international community realise that there was a need for an effective international regime covering the high seas. Only an international high seas regime could end the escalating tension between the concurring states and could possibly save the marine environment in those areas of the ocean beyond national jurisdiction.26
In 1973, the third UN Conference on the Law of the Sea (UNCLOS III) was held in New York. The conference ended with the adoption of a constitution of the seas nine years later, namely UNCLOS27.
UNCLOS only entered into force 12 years later, in November 1994. This was because the Convention required 60 signatures for ratification and could only enter into force when the final nation had acceded or ratified the treaty.28 Article 309 of the Convention prohibits nations from having reservations to any part of UNCLOS. The latter is also the reason why it took many nations so long to sign the treaty. The prohibition to make reservations, made a lot of nations hesitate to enter into the treaty. However, to develop a uniform doctrine of the law of the sea, UNCLOS had no other choice than to prevent reservations.29
Presently 166 parties have ratified UNCLOS, the European Union being one of them. While the United States was among the nations that participated in the codification of UNCLOS and recognises it as a codification of customary international law, they decided not to sign the Convention.30
One of the most powerful features of UNCLOS is that it finally deals with the question to what extent the national sovereignty of coastal states over the oceans and seabed reaches. Parts II, V, VI and VII of UNCLOS deal with the establishment of the different maritime zones (Figure 1), the question of who has sovereignty over each zone and to what degree.
illustration not visible in this excerpt
Figure 1. Diagram of the various regions of the ocean over which a state may exercise sovereignty31
The current fishery regime in UNCLOS is a very complex compendium of sub-regimes. The internal waters and the territorial sea fall under the sovereignty over fisheries of the coastal state. Coastal states also have sovereign rights and jurisdiction over fisheries in the exclusive economic zone (EEZ) and the continental shelf. For the high seas, the flag state jurisdiction principle applies. In addition to those three sub-regimes, there is the regime applicable on the Area and some species-specific regimes. Those species-specific regimes will not be further discussed in this essay.32
illustration not visible in this excerpt
Figure 2. Legal status of the different maritime zones33
The internal waters of a nation cover the waters on the inland side of the baseline of its territorial waters. A baseline is the point from which a state may begin measurements to determine the portion of the ocean over which it may exercise jurisdiction. Generally, the baseline is the low-water line along the coast.34 A nation's internal waters include waterways such as rivers and canals. In this area, a coastal state is free to set laws and regulate and use the resources. There is no right of passage for foreign vessels within those waters.35
Beyond its land territory and internal waters, the sovereignty of a coastal state is extended to an adjacent belt of the sea, described as the territorial sea.36 During UNCLOS III it was obvious that the majority of states proclaimed a territorial sea with a breadth of maximum 12 nautical miles.37 The 12 nautical miles limit of the territorial sea is measured from the baselines determined under the Convention.38
Within the territorial sea, a state can exercise exclusive sovereignty over the water, seabed and airspace.39 The coastal state is free to enact laws, to regulate use and to use all the resources in those waters and its seabed. Other nations have the right of innocent passage through the territorial waters.40
(b) Fishery regimes
In the internal waters and territorial seas, coastal states have complete sovereignty over the living resources and may consequently adopt measures concerning the management and conservation of fisheries. Foreign vessels may not engage in fishing activities when exercising their right of innocent passage.41
There are no specific requirements in UNCLOS for sustainable management of fisheries in the territorial seas. However, the conservation duties under the EEZ regime extend in many cases landwards because of the fact that many of the commercial important fish stocks move between these zones. So sustainable management within the EEZ can only be effective if the regulations are equally applicable in the territorial seas.42
The contiguous zone is the zone contiguous to a coastal state's territorial sea. This marine area may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial waters is measured. Within this area, the state can enforce laws in four specific areas: customs, taxation, immigration and pollution. Nations can thus prevent the infringements of those areas of the law within the contiguous zone and can also punish infringing behaviour therein.43
UNCLOS does not provide for any fishing regime in this zone. Nonetheless, this zone falls under the fishing regime of the EEZ.
The area beyond and adjacent to the territorial sea is subject to the specific legal regime of the exclusive economic zone. The EEZ covers an area not extending 200 nautical miles from the baseline from which measurements of the breadth of the territorial sea have been taken.44
Within the EEZ, nations have the right to explore and exploit natural resources (both living and inanimate) found in the water and on the seabed, to utilise the natural resources located in that area for the production of energy, establish artificial islands, conduct scientific marine research, pass laws for the protection and preservation of the marine environment and regulate the fishing.45 One of the most important features of the EEZ regime is the coastal states' extensive rights and powers to protect and preserve the marine environment in consistence with the relevant provisions of UNCLOS.46 Part XII of UNCLOS focuses on the issue of marine pollution.
Given the extensive rights of the coastal states in the EEZ, it is necessary to permit other states some rights in this maritime zone. Other states have navigation and over-flight rights and are permitted to lay submarine cables and pipelines in the EEZs of coastal states.47
(b) Fishery regime
The most extensive fishery provisions are located in Part V of UNCLOS, which establishes the EEZ. This part tries to balance the exclusive coastal state's rights concerning the living resources in the EEZ and the nation's duty to manage and use those resources in a sustainable way.48
According to article 56(1)(a) of UNCLOS, coastal states have "sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil". In this respect, it is up to the coastal state to determine a certain fishing quota in its EEZ.49 To prevent overexploitation of fisheries, the nation has to determine this quota on the basis of the best scientific evidence available.50
Next to those extensive sovereign rights, coastal states need to respect certain requirements while exercising those rights within the EEZ. Article 61 of UNCLOS includes some duties in the context of conservation of the living resources. Obligations regarding the utilisation of the living resources can be found in article 62.
In contrast to the other zones, the continental shelf is a natural geological formation. It consists of the seabed and subsoil within the 200 nautical miles from the coastal state's baseline. However, coastal states can extend the portion of the continental shelf beyond a fixed distance of 200 nautical miles. The latter is then called the extended continental shelf. States can only claim an extended continental shelf after they submit their claim to the Commission on the Limits of the Continental Shelf. This Commission then takes the request into consideration and makes a recommendation on the outer limits of the coastal state's continental shelf. Those recommendations are binding and final.51
The water column within the 200 nautical miles atop of the continental shelf is regulated by the EEZ regime. The only living resources to which the continental shelf regime applies, are the sedentary species. According to article 77(4) of UNCLOS, sedentary species are "organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil". Coastal states have sovereign rights on those living organisms.52 Those species are not protected in terms of conservation or management duties under UNCLOS.53
The high seas are the water column beyond national jurisdiction, sometimes also called the open ocean. Consequently, the high seas cover all parts of the sea that are not included in the EEZ, the territorial sea or the internal waters of a state.54
(b) Legal status
Scholars attempt to define the legal status of the high seas with the opposite terms 'res nullius' and 'res communis omnium'. Res nullius means that it belongs to no one. This feature addresses the prohibition on occupation of the high seas (infra). The expression res communis omnium refers to the fact that the high seas are open for use by all nations. Therefore the high seas are often categorised under the term 'common goods' whereupon the principle of the freedom of the high seas is applicable.
As an international law concept, the term high seas has its origin in the doctrine of freedom of the high seas. Grotius advocated the doctrine of the freedom of the seas in the 17th century. In his book Mare Liberum (1609), the Dutch jurist and philosopher Hugo Grotius was the first to propagate the principle that the seas are international territory, free for all nations to navigate the oceans.55 Later the principle was endorsed by the Convention on the High Seas, which was adopted in Geneva in 1958 and by UNCLOS adopted in Jamaica in 1982. Article 87 of UNCLOS forms the codification of the principle of the freedom of the high seas.
illustration not visible in this excerpt
Figure 3. Key dates in the history of high seas governance (courtesy of A. Magnan)56
The regime of the high seas can be found in Part VII of UNCLOS. The water column beyond national jurisdiction retains its open access status and includes inter alia the following rights: freedom of navigation, freedom of overflight, freedom to lay submarine cables and pipelines, freedom to construct artificial islands and other installations permitted under international law, freedom of fishing and freedom of scientific research. This enumeration of rights forms a non-exhaustive list of freedoms of the high seas.57
(c) Evolution of the doctrine of freedom of the seas
The doctrine of the freedom of the seas rests upon two fundamental principles in the context of fisheries. The first premise is that the coastal states do not have the right to exercise effective control over fishing activities in the areas beyond the territorial seas. The second is that the high seas fishery resources are practically inexhaustible. For those reasons, Hugo Grotius argued that there should be no limits on a nation's right to fish.58
By the middle of the nineteenth century, the boundless approach of the freedom of the seas with its two fundamental premises could no longer be maintained. During this period, it became apparent that the right to freely fish in the high seas without any limits did not contribute to a sustainable marine environment in the high seas.59 Furthermore, overfishing in the territorial seas was a growing problem. Overfishing generated major disputes between coastal states wishing to safeguard offshore fisheries in the areas beyond the territorial seas.
Before this period, the resources living beyond the waters of the territorial seas were inexhaustible since the fishing technologies were too costly to exploit the living resources in those deeper parts of the oceans. Accordingly, it was impossible for coastal states to exercise control over the fishing activities outside those seas. But the technological advances from the 19th century affected both the coastal states' ability to control the fisheries and the fishing practices in areas beyond the territorial zones.60
This progress in technology led to the erosion of the freedom of the seas doctrine, as it pertains to fisheries. The erosion culminated in UNCLOS III that led to the 1982 UNCLOS, which in turn introduced the 200 nautical miles EEZ wherein coastal states are granted property rights on the fishery resources (supra).61 By arrogating larger areas of the ocean to nations that were previously part of the high seas, the drafters of the Convention sought to solve the problem of overfishing. By enclosing a part of the commons (including the fish stocks therein) within national jurisdiction, it was expected that coastal states would have an economic incentive to exploit the EEZs fisheries in a sustainable manner by adopting effective conservation measures.62
The Convention also dealt with the fisheries in the remaining high seas (articles 87, 116-120 UNCLOS). The drafters of UNCLOS needed to make sure that the coastal state jurisdiction over the intra-EEZ resources would not be undermined by the freedom to fish in the remaining high seas.63 However, in the late nineties it did not seem to matter so much since the fishery resources in the EEZs worldwide were estimated at 90 percent of the world's marine capture fishery harvests.64 In that period it was thought that the high seas only represented a small amount of the worldwide marine fishery resources and that environmental protection in that area was therefore not the main issue.65
In the post-UNCLOS era new fishing and science technologies were developed. Those developments produced evidence that contradicts the former estimations in which it was stated that the high seas only represent a very small amount of the worldwide marine biodiversity. Those innovations in technology triggered scientists to conduct profound research in the high seas. Consequently, scientists started to believe that the high seas contain the highest biodiversity mass on earth. Studies show that the high seas are home to some of the most unique species as well as being the transit route for a wide array of migratory species that traverse the oceans in search of food.66 Next to its rich biodiversity, the high seas contain abundant resources. The high seas are not a lifeless uniform desert with stable conditions and only little environmental changes. The remote, hidden and hardly accessible parts of the oceans contain an amazing array of organisms of all sizes and forms.67
UNCLOS was thus conceived on the basis of the misconception that the deep parts of the oceans were too cold and remote to serve as a habitat for a unique range of biodiversity. In order to protect the species living in those unstable ecosystems from the negative side effects of human intervention, careful conservation and management measures concerning the marine environment in the high seas are needed.68
Consequently, the doctrine of freedom of fishing in the high seas experienced a rebirth in the post-UNCLOS period. Legislators and policymakers concerned with the international protection of marine areas started to realise that the current legal framework provided by UNCLOS was not capable to make sure that fisheries in the high seas would take place in a sustainable manner. Because of the lack of knowledge, the text of UNCLOS was based on evidence that underestimated the richness of the high seas. Therefore, the freedom of fishing could no longer be maintained.
Chapter III of this essay will deal with the post-UNCLOS developments that arose after this realisation and will address how the freedom of fishing in the high seas was accordingly shortened.
(d) Invalidity of sovereign claims over the high seas and flag state jurisdiction
A core element in the international codifications of the high seas regime is the fundamental principle that no state can claim territorial sovereignty over a particular area in the high seas.69 Article 89 of UNCLOS provides that "No State may validly purport to subject any part of the high seas to its sovereignty". This article forms the prohibition for nations to occupy the high seas.
The high seas are featured by the lack of a supranational authority governing the activities within this area. Because of the absence of an overarching institution, the predominant method of regulating those activities is the flag state model of jurisdiction. The notion of flag state jurisdiction was not incorporated in Grotius' doctrine of the freedom of the high seas, but was only later introduced by other jurists. Without having this system of flag state jurisdiction, the activities of multiple vessels on the high seas would descend into chaos.70
The provisions included in Part VII of UNCLOS contain certain minimum rights and obligations for states to comply with in relation to their flag vessels. Those are only minimum requirements, so the flag states have a considerable discretion in implementing these requirements.71
It is for the nations to fix the conditions for granting nationality to its ships, for registering ships in its territory and to grant the right to fly under its flag. The nationality of a ship is determined by the state under whose flag they are entitled to fly. But for ships to have a certain nationality, there must be at least a genuine link between the state and the ship.72 The concept of a 'genuine link' was developed by the 1955 judgment of the International Court of Justice in the Nottebohm case.73 However, UNCLOS omits to define the notion 'genuine link' and this leads to the practice of flags of convenience (infra), which has in turn adverse effect for the marine biodiversity.74
Article 94 of UNCLOS incorporates "generally accepted international regulations, procedures and practices" concerning the protection of marine environment, particularly the pollution in those areas. This article includes the duties of the flag state towards the ships flying under its flag.
(e) Fishery regime
Alongside with the freedom of navigation, the freedom of fishing is one of the core freedoms of the high seas. This freedom is being recognised in article 87 of UNCLOS, but is not unlimited since it needs to be exercised in accordance with some other provisions.75
The EEZ fisheries are commercially the main exploitation source. But recently the exploitation of high seas fish stocks has increased. One of the causes of this sudden growth is the depletion of fish stocks closer to shore. Moreover, many fish species migrate between the EEZ and the high seas (these include both straddling and highly migratory fish stocks, infra). Fishing management of such migratory species can only be effective if nations cooperate and take the necessary measures to maintain the conservation of these stocks. 76
1 Steve Cole, Maria José Ortiz and Christoph Schwarte Protecting the Marine Environment in Areas beyond National Jurisdiction. A guide to the legal framework for conservation and management of biodiversity in marine areas beyond national jurisdiction. (Foundation for International Environmental Law en Development (FIELD), April 2012).
2 Sometimes also referred to as the deep sea(s).
3 Marjo Vierros "Governance of Marine Areas Beyond National Jurisdictions" (14 March 2014) Our World <http://ourworld.unu.edu/en/governance-of-marine-areas-beyond-national-jurisdictions>.
4 Robin Warner Protecting the Oceans Beyond National Jurisdiction: Strengthening the International Law Framework (Martinus Nijhoff Publishers, Leiden, 2009) at xv.
5 Druel, E., Ricard, P., Rochette, J., Martinez, C. (2012), Governance of marine biodiversity in areas beyond national jurisdiction at the regional level: filling the gaps and strengthening the framework for action. Case studies from the North-East Atlantic, Southern Ocean, Western Indian Oceans, South West Pacific and the Sargasso Sea. IDDRI and AAMP, Paris, France, 102p at 11.
6 Robin Warner Protecting the Oceans Beyond National Jurisdiction: Strengthening the International Law Framework (Martinus Nijhoff Publishers, Leiden, 2009), at xv.
7 Marine Conservation Institute "High Seas Conservation: Supporting the Protection of Marine Areas beyond Individual Nation Jurisdictions" <http://www.marine-conservation.org/what-we- do/program-areas/high-seas/>.
8 Marjo Vierros "Governance of Marine Areas Beyond National Jurisdictions" (14 March 2014) Our World <http://ourworld.unu.edu/en/governance-of-marine-areas-beyond-national-jurisdictions>.
9 Robin Warner Protecting the Oceans Beyond National Jurisdiction: Strengthening the International Law Framework (Martinus Nijhoff Publishers, Leiden, 2009) at xv-xvi.
10 United Nations General Assembly Resolution 66/288 The Future We Want (27 July 2012, UN Doc A/RES/66/288).
11 Prince's Charities International Sustainability Unit Towards Global Sustainable Fisheries. The Opportunity for Transition (3 February 2013) at 5.
12 Robin Warner Protecting the Oceans Beyond National Jurisdiction: Strengthening the International Law Framework (Martinus Nijhoff Publishers, Leiden, 2009) at xv.
13 Elisabeth Druel, Raphaël Billé and Julien Rochette Getting to yes? Discussion towards an Implementing Agreement to UNCLOS on biodiversity in ABNJ (IDDRI, October 2013) at 2.
14 United Nations Convention on the Law of the Sea 1833 U.N.T.S. 397 (opened for signature 10 December 1982, entered into force 16 November 1994) [hereafter UNCLOS], preamble.
15 Permanent Court of Arbitration "Ad Hoc Arbitration Under Annex VII of the United Nations Convention on the Law of the Sea" (2009) <http://www.pcacpa.org/showpage.asp?pag_id=1288>.
16 Continental Shelf Programme "Background to UNCLOS" (2014) < http://www.continentalshelf.org/about/1143.aspx>.
17 United Nations The United Nations Convention on the Law of the Sea (A historical perspective) (Division for Ocean Affairs and the Law of the Sea, Retrieved 30 April 2009).
20 Continental Shelf Programme "Background to UNCLOS" (2014) < http://www.continentalshelf.org/about/1143.aspx>.
21 United Nations Convention on the Territorial Sea and the Contiguous Zone 615 UNTS 205 (opened for signature 29 April 1958, entered into force 10 September 1964).
22 United Nations Convention on the High Seas 450 UNTS 11 (opened for signature 29 April 1958, entered into force 30 September 1962).
23 United Nations Convention on Fishing and Conservation of the Living Resources of the High Seas 559 UNTS 285 (opened for signature 29 April 1958, entered into force 20 March 1966).
24 United Nations Convention on the Continental Shelf 499 UNTS 311 (opened for signature 29 April 1958, entered into force 10 June 1964).
25 Continental Shelf Programme "Background to UNCLOS" (2014) < http://www.continentalshelf.org/about/1143.aspx>.
26 United Nations The United Nations Convention on the Law of the Sea (A historical perspective) (Division for Ocean Affairs and the Law of the Sea, Retrieved 30 April 2009).
27 United Nations Convention on the Law of the Sea 1833 U.N.T.S. 397 (opened for signature 10 December 1982, entered into force 16 November 1994) [hereafter UNCLOS].
28 Article 308 UNCLOS.
29 Hollis, D. (2013). United Nations Convention on Law of the Sea (UNCLOS), 1982. Retrieved from http://www.eoearth.org/view/article/156775.
30 James L Malone "The United States and the Law of the Sea after UNCLOS III" (1983) 46 Law & Contemp Prob 29.
31 Watch The Med "Rights at Sea" < http://watchthemed.net/index.php/page/index/2>.
32 Ellen Hey Developments in International Fisheries Law (Kluwer, De Hague, 1999) at 19.
33 Watch The Med "Rights at Sea" < http://watchthemed.net/index.php/page/index/2>.
34 Article 5 UNCLOS. More detailed rules about the determination of a coastal state's baseline can be found under articles 5-7 and 9-14 of UNCLOS.
35 D R Rothwell and Tim Stephens The International Law of the Sea (Hart Publishing, Oregon, 2010) at 52.
36 Article 2 UNCLOS.
37 D R Rothwell and Tim Stephens The International Law of the Sea (Hart Publishing, Oregon, 2010) at 69.
38 Article 3 UNCLOS.
39 Article 2 UNCLOS
40 Article 17 UNCLOS.
41 Article 19(2)(i) UNCLOS.
42 D R Rothwell and Tim Stephens The International Law of the Sea (Hart Publishing, Oregon, 2010) at 298.
43 Article 33 UNCLOS.
44 Article 57 UNLCOS.
45 Articles 56, 61-64 UNCLOS.
46 Article 208 UNCLOS.
47 Article 58(1) UNCLOS.
48 D R Rothwell and Tim Stephens The International Law of the Sea (Hart Publishing, Oregon, 2010) at 298.
49 Article 61(1) UNCLOS.
50 Article 61(2) UNCLOS.
51 D R Rothwell and Tim Stephens The International Law of the Sea (Hart Publishing, Oregon, 2010) at 111.
52 Article 77 UNCLOS.
53 D R Rothwell and Tim Stephens The International Law of the Sea (Hart Publishing, Oregon, 2010) at 303.
54 Article 86 UNCLOS.
55 Hugo Grotius The Freedom of the Seas or the Right which Belongs to the Dutch to Take Part in the East Indian Trade (translation and revision of the text of 1633 by Ralph Van Deman Magoffin) (Oxford University Press, New York, 1916).
56 Druel, E., Rochette, J., Billé, R. (2013). Getting to yes? Discussions towards an Implementing Agreement to UNCLOS on biodiversity in ABNJ, Studies N°10/13, IDDRI, Paris, France at 2.
57 Article 87 UNCLOS.
58 F Orrego Vicuna The Changing International Law of High Seas Fisheries (Cambridge University Press, Cambridge, 1999).
59 D R Rothwell and Tim Stephens The International Law of the Sea (Hart Publishing, Oregon, 2010) at 292.
60 Gordon R Munro "Internationally Shared Fish Stocks, the High Seas, and Property Rights in Fisheries" (2007) 22 Marine Resource Econ 425 at 426.
61 D McRae and G Munro Coastal State "Rights" Within the 200-mile Exclusive Economic Zone. Rights Based Fishing (Kluwer, The Netherlands, 1989) at 97-112.
62 D R Rothwell and Tim Stephens The International Law of the Sea (Hart Publishing, Oregon, 2010) at 297.
63 G Munro, A Van Houtte, R Willmann The Conservation and Management of Shared Fish Stock: Legal and Economic Aspects (FAO Fisheries Technical Paper No. 465, Rome, 2004).
64 L M Alexander and R D Hodgson "The Impact of the 200-Mile Economic Zone on the Law of the Sea" (1975) 12 San Diego L Rev 569.
65 Gordon R Munro "Internationally Shared Fish Stocks, the High Seas, and Property Rights in Fisheries" (2007) 22 Marine Resource Econ 425 at 427.
66 Marine Conservation Institute "High Seas Conservation: Supporting the Protection of Marine Areas beyond Individual Nation Jurisdictions" <http://www.marine-conservation.org/what-we- do/program-areas/high-seas/>
67 UNEP 2007 Deep-Sea Biodiversity and Ecosystems: A scoping report on their socio-economy, management and governance.
69 Official Records of the General Assembly, Eleventh Session, Supplement No. 9, UN Doc A/3159, Chapter III, Part II, Article 27 commentary, para. 1.
70 D P O'Connell International Law of the Sea (Clarendon Press, Oxford, 1984) Vol II at 750-751.
71 Robin Warner Protecting the Oceans Beyond National Jurisdiction: Strengthening the International Law Framework (Martinus Nijhoff Publishers, Leiden, 2009) at 35.
72 Article 91(1) UNCLOS.
73 Nottebohm (Second Phase) Case (Lithuania v. Guatemala) 1995 ICJ Rep 4.
74 Flag of convenience is the practice of registering a ship under a flag of a country other than the country of ownership. Reasons of this practice of reflagging are inter alia: 1. The regulations in relation of the protection of the marine environment of the flag state are less strict than those of the country of ownership. 2. The flag state does not exert effective control over the accordance of the ship with UNCLOS provisions.
75 D R Rothwell and Tim Stephens The International Law of the Sea (Hart Publishing, Oregon, 2010) at 157.
76 Ibid at 303.
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