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I. The Straddling Stocks Agreement of 1995—an Initial Assessment

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick ,
Dominic McGoldrick  and
D. H. Anderson
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Extract

On 4 August 1995 the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, at its sixth session, adopted without a vote the text of the Agreement for the Implementation of the provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.1 The title is often shortened to “the Straddling Stocks Agreement”. To date, the Agreement has been signed by 29 States.2 It marks a significant clarification and development in the rules of international law relating to fishing on the high seas, within the framework of the UN Convention on the Law of the Sea.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 45 , Issue 2 , April 1996 , pp. 463 - 475
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. A/CONF. 164/37. The Conference was convened by the UN General Assembly by Res.47/192 of 1992, 48/194 of 1993 and 49/121 of 1994.

2. Argentina, Australia, Bangladesh, Belize, Brazil, Canada, Egypt, Fiji, Guinea-Bissau, Iceland, Indonesia, Israel, Jamaica, Marshall Islands, Mauritania, Micronesia, Morocco, New Zealand, Niue, Norway, Papua New Guinea, Russian Federation, Samoa, Saint Lucia, Senegal, Tonga, Ukraine, the UK (in respect of certain Dependent Territories) and the US.

3. Art.2 of the Convention on the High Seas, Cmnd.584, p.27.

4. Art.1 (Cmnd.584, p.34). Oppenheim's International Law (9th edn), Vol.1, p.759 compares the two conventions in a similar way.Google Scholar

5. According to Multilateral Treaties Deposited with the Secretary General, there were 35 ratifications, etc., on 31 Dec. 1993, compared with 61 in the case of the Convention on the High Seas. On the High Seas Fishing Convention, see D. W. Bowett, The Law of the Sea (1967). chap.III.

6. I.C.J. Rep. 1974, 3.

7. Proposal by Argentina and others, A/CONF.62/L.114 of 15 Apr. 1982 (details in Nandan and Rosenne, UNCLOS 1982 Commentary (Nordquist, (Ed.)), Vol.11, pp.644 et seq.). For the history of the Articles, see also UN Secretariat, The Regime for High Seas Fisheries (1992). For analysis, see Principles Applicable to Living Resources occurring both within and without the EEZ… Report by EEZ Committee (Prof. Lagoni, Rapporteur) to Cairo Conference of the ILA (1992).Google Scholar

8. (1994), p.350.

9. The concerns led to the Declaration of Cancun and the decision of FAO to begin work on a Code of Conduct of Responsible Fishing, work which has now been concluded by the adoption of the Code by the FAO Council in Oct. 1995. See also Kwiatowska, “The High Seas Fisheries Regime: At a Point of No Return?” (1993) 8 Int. J. Marine and Coastal L. 327.

10. For details, see World Review of Highly Migratory Species and Straddling Stocks, FAO Fisheries Technical Paper 337 (1994). For a general survey of the problems, with detailed information and useful maps, see E. Meltzer, “Global Overview of Straddling and Highly Migratory Fish Stocks: The Non-Sustainable Nature of High Seas Fisheries” (1994) 25 O.D.I.L. 255. For Sea of Okhotsk, see A. Oude Elferink (1995) 10 I.J.M.C.L. 1. For the Barents Sea, see Churchill and Ulfstein, Marine Management in Disputed Areas, chap.4.

11. For documents on the Rio Conference, see (1992) 31 I.L.M. 814. See also Agenda 21 and the UNCED Proceedings, Robinson, Nicholas A. (Ed.) Vol.IV, p.307.Google Scholar

12. Ibid.

13. A/CONF. 164/6.

14. UK Materials on International Law (1993) 64 B.Y.B.I.L. 674–675.

15. Cmnd. 7569 (Northwest Atlantic Fisheries Organisation) and Cmnd. 8830 (North Atlantic Salmon Conservation Organisation).

16. Barston, R. P., Modern Diplomacy (2nd edn, in press), discusses the different working methods of the various post-UNCED Conferences.Google Scholar

17. D. Freestone, “The Effective Conservation and Management of High Seas Living Resources: Towards a New Regime” (1994) 5 Canterbury L.Rev. 341.

18. Burke, op. cit. supra n.8, at p.350.

19. Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, New York 29 July 1994: Cm.2705.

20. In 1994 Canada arrested a US-flagged scalloper more than 200 miles off Newfoundland and charged the master with the unlawful taking of sedentary species subject to the regime of the continental shelf, contrary to Canadian legislation. The US, after consideration, conceded that the Icelandic scallops were sedentary and subject to Canadian jurisdiction (Globe and Mail, 25 Nov. 1994).

21. Greenpeace International, Analysis of the UN Treaty for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Dec. 1995).

22. Our Common Future, report by the World Commission on Environment and Development: A/42/427 (1987).

23. Principle 15 of the Rio Declaration reads: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

24. On RFOs generally, see Savini, Summary Information on the Role of International Fisheries Bodies with regard to the Conservation and Management of Living Resources of the High Seas (FAO, 1991).

25. See P. Birnie, “Reflagging of Fishing Vessels on the High Seas” (1993) 2 Rev.E.C. and Int.Env.L. 270; G. Moore, “The FAO Compliance Agreement” (1995) 10 I.J.M.C.L. 412.

26. Convention on the Conservation of Antarctic Marine Living Resources (U.K.T.S. 48 (1982); (1980) 19 I.L.M. 841).

27. (1988) O.J. L. 175/1 (6 July). For recent amendments, see D. Freestone (1995) 10 I.J.M.C.L. 397.

28. Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (1995) 34 I.L.M. 69.

29. Full text in (1995) 10 I.J.M.C.L. 402.

30. Coastal Fisheries Protection Act as amended in 1994 (1994) 33 I.L.M. 1383.

31. For details see Davies, “The EC/Canada Fisheries Dispute in the Northwest Atlantic” (1995) 44 I.C.L.Q. 927. See also Fisheries Jurisdiction Case (Spain v. Canada): Application of Spain of 28 Mar. 1995; Order of the ICJ of 2 May 1995, I.C.J. Rep. 1995, 87.

32. I'm Alone case, Interim Report of the Joint (Canadian and US) Commission, 5 Jan. 1935, 7 A.D. 205 (1933–4); Red Crusader case, 35 I.L.R. 485. For a recent example of legislation, see French Loi du 15 juillet 1994 relative aux modalilés de l'exercise par L'Etat de ses pouvoirs de contrôle en mer, Art.7 of which authorises the use of force, if necessary, in accordance with procedures to be laid down by decree ((1995) 99 R.G.D.I.P. 242).

33. HC Hansard, Written Answers, 23 Oct. 1995, col. 478.