by
William T. Burke
University of Washington
Seattle, Washington, USA
I. INTRODUCTION
The purpose of this discussion is to review provisions of the 1982 Convention on the Law of the Sea (CLOS) regarding conditions of access to fisheries subject to national jurisdiction. The subject matter coverage includes areas and resources within national jurisdiction and some resources that are found within such jurisdiction but also move outside it. After brief clarification of the area and resources involved, the discussion turns to the applicable CLOS provisions.
A. Fish subject to one national jurisdiction
Coastal state jurisdiction includes living marine resources found wholly within a number of different areas in which it exercises sole authority including internal waters, territorial sea, archipelagic waters and exclusive fisheries or economic zone, and the continental shelf. The first three of these zones are subject to the sovereignty of the coastal State; of these only the new area of archipelagic waters created by the LOS treaty raises any jurisdictional issues worth discussion regarding fisheries.
The major area of concern for present purposes is the exclusive economic zone (EEZ), whose establishment by the LOS treaty is probably the major innovation of the 3rd United Nations Conference on the Law of the Sea (UNCLOS). The EEZ and an exclusive fisheries zone, as established by many States, are similar but not necessarily identical in relation to fisheries and the Law of the Sea.
The continental shelf is mentioned here because sovereign rights over sedentary fisheries are often claimed in terms of coastal authority over the shelf and international agreements such as the CLOS deal with these species in such terms.
B. Fish subject to more than one exclusive zone
Some fish move into or are distributed across more than one jurisdiction and are exploited in more than one or affect associated stocks in other jurisdictions. For present purposes we are concerned solely with stocks occurring within exclusive economic zones because the LOS treaty deals only with this situation. The management problem occasioned by multiple zone involvement may vary with the nature of the movement involved and the different interests of the States concerned (Gulland 1980) but the legal questions do not appear to be affected by these differences.
C. Fish available within and beyond exclusive zones
Some fish move extensively so that they are found within the EEZ and also beyond. Some of these may be accessible for harvesting only within or only beyond or in both places simultaneously. Accessibility in these different areas may vary from season to season or year to year. The difficulty of the management problem may vary in accordance with accessibility of the fish but in general these fish cannot be managed successfully within one national zone.
Anadromous fish present special problems because their continued existence depends upon actions taken by the host State which can drastically affect future abundance, including ultimate survival of the fish species. Such fish are always accessible to harvest in host State waters and can be most effectively managed if exploitation is limited to these waters. But they are also accessible outside national jurisdiction and are commonly caught there. In some instances this harvest occurs outside any national jurisdiction and sometimes it occurs in the foreign state's fishing or economic zone.
II. LAW APPLICABLE TO AREAS AND FORMS OF NATIONAL JURISDICTION
A. Territorial sea
It is universally agreed that a coastal State enjoys sovereignty over all living resources found within the limits of national territory as well as over the area in which they are located. Access to such resources by a foreign fisherman requires authorization by the coastal State. Any regulations affecting exploitation are those of the coastal State except as may be modified by agreement.
B. Archipelagic waters
The concepts of "archipelagic State" and "archipelagic waters" are essentially the creation of the LOS treaty negotiations although a few national claims were advanced earlier. These concepts are not yet widely recognized outside that treaty. Under the treaty the archipelagic State has sovereignty over archipelagic waters and therefore would normally have complete authority over fisheries except for two articles that qualify that authority. Both Article 47 and Article 51 require the archipelagic State to recognize existing and traditional fishing rights of an immediately adjacent neighbouring State in specified areas of archipelagic waters. It is worth noting that preservation of these fishing rights applies only within the archipelagic waters, i.e., within the waters circumscribed by the baselines around the islands, and not within the zones delimited from the baselines 1/.
1
/ However, elsewhere in the treaty States who have been fishing in an area that becomes EEZ are mentioned. Article 62 (3) provides for taking such States into account when the coastal State decides to give access.
C. Exclusive economic zone
Under the LOS treaty a coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing living resources of the seabed, subsoil and superjacent waters within the exclusive economic zone, which zone "shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured." If a coastal State has established the maximum territorial sea permitted by the treaty (12 nautical miles), it may therefore exercise these sovereign rights in a further zone of 188 nautical miles.
These rights pertain to all living resources found within the zone with one exception - seabed and subsoil rights concerning living resources are to be exercised in accordance with the separate CLOS provisions on the continental shelf. These are discussed below. Some species are also the subject of additional articles and are discussed separately below, including highly migratory species listed in Annex I of the treaty, anadromous species, and marine mammals.
The basic sequence of decisions under CLOS affecting access to the fisheries of a particular coastal State is as follows. The coastal State: (a) determines the allowable catch of its fishery resources by deciding how much a particular species or stock can be targeted for harvesting or otherwise permitted to be caught incidentally; (b) determines how much of the particular stock can be harvested by the coastal State; (c) if the allowable catch exceeds this domestic harvesting capacity, it decides who else gets access and establishes the terms and conditions thereof; (d) concludes agreements or other arrangements to govern access by foreign vessels to available fish; (e) in deciding upon the allowable catch, the coastal State also determines what restrictions on harvesting are required by the effects of fishing on target stocks upon other stocks.
Each of these decisions might affect access by foreign fishermen and can be regarded as a condition of access. In respect of some species the initial decision of an allowable catch and the decision about access must be preceded by advance consultations or negotiation with other States either directly or through an international organization.
The discussion hereafter focuses on the specific treaty provisions that affect or might affect foreign access to the fisheries of an economic zone. The emphasis is upon the legal competence or authority of the coastal State to decide upon conditions of access, including the authority to decide whether any access will be permitted. However, it also must be emphasized that possession of legal authority does not compel its use. Often, benefits to the coastal State from foreign fishing are sufficient to counsel against exercise of the authority to forbid it. Accordingly the statements made hereafter to the effect that the coastal State may lawfully exclude any foreign fishing even if a biological "surplus" undoubtedly exists should not be understood as proclaiming that the exercise of this authority is desirable. It seems reasonably obvious that it will be better sometimes to sell access rights to foreign fishermen than to restrict access to local fishermen alone.
1. Total allowable catch
Article 61 of the treaty provides that the coastal State "shall determine the allowable catch of the living resources in its exclusive economic zone". The allowable catch established by the coastal State would normally embrace both those stocks harvested intentionally either for commercial or recreational or other purposes (such as scientific) and those incidentally taken in the course of taking a target species. In actual management situations the level of permissible incidental catch may be more significant for fishermen than the target catch level because regulations may terminate harvesting the target catch before it has reached the level originally allowed for it. If the permissible incidental catch is taken first, some coastal State regulations require that fishing for target species be halted even though it is far short of the permissible yield.
The use of the mandatory "shall" indicates that deciding an allowable catch is an obligation of the coastal State, but the scope of that obligation is not also specified. Common sense would suggest that the obligation does not require purely theoretical calculations but rather applies to stocks that are believed to be significantly affected by exploitation whether as target or incidental catch. Accordingly, unless there is some actual or highly probable exploitation, a coastal State would not be in default of its obligation if it did not determine an allowable catch. This means that despite the literal language of Article 61 the coastal State is not required to determine an allowable catch for all "living resources" of its EEZ.
The treaty clearly provides that the determination of the amount of allowable catch is at the coastal State's discretion. Article 61 contains only the very general limitation that the coastal State is obliged to employ measures to "ensure" that "the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation". This is a very generally worded obligation that imposes but slight restriction on coastal authority, as noted further immediately below. Apart from this qualification, which only limits the maximum catch allowable, the coastal State may set the allowable catch as it may wish. Further confirmation of the broad authority of the coastal State in this regard is evident in the provisions dealing with dispute settlement in the context of fisheries. Article 297(3)(a) excerpts from the otherwise applicable compulsory and binding procedures of Part XV of the treaty, any dispute relating to the coastal State's "discretionary powers for determining the allowable catch" of living resources in the EEZ. (Further discussion of dispute settlement in relation to access is to be found below.)
The term "allowable catch" may be responsible for some confusion regarding the treaty, particularly because the term is often associated with practices under international agreements in the North Atlantic in which quotas were established on the basis of a biologically determined maximum catch (Hoydal 1985). I think it is demonstrable that "allowable catch" in CLOS Article 61 is not to be interpreted as a quantity of fish determined solely on biological grounds.
Article 61(5) is the critical provision for interpretation of "allowable catch" in paragraph 1. It says that conservation measures aimed at avoiding over-exploitation "shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors. " Some of these factors are identified but the listing is expressly not exhaustive. It seems abundantly clear that if a coastal State is not obligated to maintain abundance at an MSY level, it is also not obligated to establish an allowable catch at the MSY level. It cannot normally do both at once, i.e., maintain abundance at a level greater or lesser than will produce the MSY and establish an allowable catch of MSY. Accordingly the coastal State determination of allowable catch under Article 61 is not required to be tied to any notion of a fixed quantity of available fish that is based solely upon a stock assessment or upon any biological assumption about what the stock will yield at the maximum.
It is true that Article 61 mandates an "allowable catch" and appears to assume a numerical quantity is to be specified. But, however undesirable this approach may be from a management point of view, the numerical quantity need not reflect only biological considerations. The final specifications of an "allowable catch" as a quantity of fish can be a reflection of a range of factors that the coastal State believes are important to its interests. Article 61(3) refers to "relevant environmental and economic factors" that may determine the yield that can be taken of harvested species. "Environmental" may be taken to refer not simply to biological or ecological concerns, because these are referred to in the concept of "maximum sustainable yield" and in the following paragraph's reference to other species, but to all those factors that set the context within which the fishery operates. In determining an "allowable catch" the coastal State is entitled to take into account a similar range of factors.
2. Measures to protect against over-exploitation
The stated obligation to "insure" that the "maintenance of living resources in the exclusive economic zone is not endangered by over-exploitation" is vaguely worded and appears mostly to be an insignificant burden. The phrase "maintenance of the living resources" is unclear because it does not specify the level to be maintained nor precisely what should be maintained. Fishermen do not simply fish for resources, they seek out particular types of fish by species and size. Exploitation within the zone in all probability concerns only a part, perhaps only a tiny part, of the total biomass of living resources in the zone. Furthermore such exploitation would typically target on only a portion, perhaps a very small portion, of a species. Even if all of a target population were harvested it might have little if any effect on the species of which it was a part.
An interpretation that "living resources" meant a particular stock of fish that is exploited does not make much sense if it can be shown that the stock is simply a portion of a species group. Reducing such a stock to the point of being "endangered" would have no effect on the species and might reflect sound local policy. Perhaps there are instances in which a particular stock constitutes all of a particular species and in such a case the obligation to avoid endangering by over-exploitation reflects a sensible approach, but this situation is probably unusual.
A major potential difficulty, however, is that it may be very difficult to know whether a target stock is simply a portion of a larger species or is itself a separate species. Because this determination is difficult to make, the treaty should probably be interpreted cautiously to require coastal States to limit the total catch of a "stock" or "population" in its EEZ. Even if, for example, pulse fishing is a desirable policy as a general proposition - according to which a stock is fished very intensely and then left (hopefully) to recover before allowing renewed fishing upon it - a coastal State should pay careful heed to the treaty injunction that the "living resource" involved not be "endangered" by such a degree of exploitation. If the fishing were upon a separate species, it could conceivably be "endangered" by excessive exploitation under the guise of pulse-fishing. While taking practically all of a portion of a species may be harmless because it does not endanger a species, it is advisable to err on the side of caution and make allowance for uncertainty about the characteristics of the fish being taken.
These comments are generally applicable but they are most specifically relevant for regulating the taking of anadromous species that are uniquely associated with runs from specific river locations. The fish composing such runs might actually be genetically so distinct as to constitute separate species. Accordingly it may be necessary to regulate the harvest of salmon so as to avoid the possibility of endangering these runs or "species".
5. Permissible yields: MSY and optimum yield
The coastal State's measures to ensure that living resources are not endangered by over-exploitation "shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors "(Art. 61(3). This establishes that a coastal State is not required to manage fisheries to produce the maximum sustainable yield if it does not wish to do so. Instead the coastal State is expressly authorized to manage for yields that are suggested by its environmental and economic interests.
The specific reference in Art. 61(3) to "environmental and economic factors "raises the question of whether these are the only factors that can be employed to determine what the permissible catch may be. For example, it is intended from this formulation that "social" or political considerations cannot be taken into account? This seems unlikely. As noted earlier, the term "environmental" may be taken to include all major features of the situation for which the coastal State initiates management measures. To read this phrase restrictively, and to exclude social or political concerns from fishery management, would be inconsistent with the basic authority of the coastal State established in Article 56, namely that it has sovereign rights for exploring, exploiting, conserving and managing these resources. Management in the normal sense encompasses regulatory measures embracing a variety of objectives, with social and political elements foremost among them. The "sovereign right" to manage would usually be regarded as including these objectives and there is nothing elsewhere in CLOS (than Art. 61) to indicate a different concept of "sovereign right" is intended. For these reasons the omission of express reference to "social" considerations should not be regarded as limiting coastal authority as broadly established in Article 56.
Specifically this means that the coastal State may maintain a level of population abundance, short of endangering the resource, that meets its interests as it determines those interests. It might decide to maintain a level of abundance greatly in excess of that which would produce MSY because this would assure higher catch rates and lower costs. The coastal State conservation and management measures may be selected, under the LOS treaty, to serve the interests of the coastal State some of which the treaty specifies by referring to "the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global".
For many, if not most, coastal States, there would be no advantage in refusing to allow its resources to be exploited as fully as abundance will safely allow. The exercise of coastal discretion to set the allowable catch would in such circumstances mean permitting yields that allow for foreign fishing. The problem then is simply that of deciding upon the safe limits on catch and deciding who gets access and upon what terms and conditions. It may still be in the coastal State's interest to provide for some restrictions on the level of fishing effort since by doing so it may be able to extract more return than otherwise from the foreign fishing.
4. Scientific standards in adoption of conservation and management measures
In adopting measures the coastal State is to take into account the "best scientific evidence available to it". This appears to mean that the coastal State may proceed to adopt measures even though its basic evidence is not complete or as fully verified as might be possible. More specifically, the coastal State may proceed to make conservation and management decisions even though there is a gap in the data available or the interpretation of certain data is uncertain because it is incomplete or not fully understood.
An important major issue in this connection is how much effort a coastal State is required to exert to improve the quality and quantity of available evidence. If the coastal State is obliged to determine the TAC and to ensure against endangering a resource, is it required to invest resources in the effort to develop better data than previously available for its decisions? Nothing in the treaty expressly addressed this question. However it might be inferred from the repetition of the term "available" (in paragraphs 2 and 5 of Article 61) that the coastal State's primary duty is to make use of the evidence accessible from normally expected sources and the treaty imposes no express duty to improve what might be available or go beyond these sources. The emphasis on "available" might reasonably be understood to signify that there is no absolute duty to pursue data and information except what might otherwise be secured in light of the coastal State's ability to allocate resources and skills to the task.
In this context the term "available" refers not only to data in the hands of the coastal State but also should be understood as including data or evidence from other sources, including foreign fleets, international organizations, and from other States involved in the fisheries under management. Under Article 61(5) the various entities mentioned are expected to contribute and exchange "available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks". The coastal State is authorized to condition access to its EEZ upon provision of information that it specifies, including catch and effort statistics, and upon the conduct of fisheries research and the reporting of scientific data. Any data and information that might reasonably be obtained from these sources should be considered "available" to the coastal State. Failure to seek or to use such data and information should not be permitted as a defense against a charge of failure to discharge a treaty obligation.
5. Obligation to consider effects on associated or dependent species
Most fisheries are multispecies in nature in the sense that they target on more than one species or for other reasons significantly affect more than one. Accordingly the occasion to consider effects of fishing on non-target species may frequently arise. The CLOS obligation in this regard is in Article 61(4) which declares that " the coastal State shall take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened".
The question of what is included in the terms "associated or dependent" species is not answered in the treaty. A recent study stated that these terms do not yet have a common usage and are vague in nature (Dawson, 1979). Another recent paper assumed that associated species included "incidental catches or by-catches" and that dependent species included predator-prey or more distant food or other biological relationships (Burke, 1982). It was noted that fishery effects differ greatly in these various situations and that effects may range from negligible to catastrophic. A particular problem may arise with marine mammals because they are so susceptible to incidental catch and to depletion even by moderate fishing.
Whatever the terms may mean, it seems likely that States will encounter considerable difficulty in discharging this obligation. Knowledge and understanding of the intricate ecosystems involved in 200 mile zones is insufficient to permit successful ecosystem management. A recent authoritative report observed in this connection:
"The management implication of the term 'ecosystem management' presumes a reasonable understanding of the physical and chemical environment and biological species which describe an ecosystem, plus an understanding of the interactions among and between the species complex and their environment. Effective ecosystem management would also require an understanding of the flow of material energy and nutrients within the ecosystem. At present the totality of interactions is not sufficiently understood in any ecosystem to allow for comprehensive ecosystem management" (FAO 1979).
On the other hand in specific instances the relationship between fishing and an excessive incidental catch may be well-established and a coastal State might be charged with failure to discharge the obligation in Article 61(4). To the extent fishery mortality must be reduced to take into consideration the effects on associated or dependent species, conditions of access might well be affected. Foreign States seeking such access might be critical of coastal State actions reducing their access when it is allegedly justified by such consideration. But, as already noted, the coastal State has discretion in establishing the allowable catch and applicable terms and conditions, so that effective protest will be without a solid legal basis.
6. The obligation to promote optimum utilization
In an effort to negotiate a basis for continued access to areas of extended jurisdiction, States with distant-water fleets (DWFN) tabled various proposals in the LOS negotiation designed to achieve that. The principal distant-water fishing States, the USSR and Japan, suggested formula that would substantially insulate their fleets from coastal State authority. The United States initially sought the same objective through a principle of full. or maximum utilization that would benefit DWFN and through its proposal that so-called highly migratory species would be managed solely through an international organization. Australia and New Zealand tied coastal State control of access to its harvesting capacity and where the latter was 100% of the allowable catch, provided for phase-out of foreign vessels in a 5-year period.
LOS treaty Article 62 differs considerably from all proposals except those conferring full, unrestricted control on coastal States. Entitled "Utilization of the Living Resources", it obliges the coastal State to "promote the objectives of optimum utilization of the living resources in the exclusive economic zone without prejudice to Article 61." This language makes it clear that the treaty does not have any obligation of "full" or "maximum" utilization of fisheries in the EEZ.
First, the term chosen is "optimum utilization" despite the U.S. proposal employing "maximum". Such a choice emphasizes that the objective of management need not be classified or measured only in terms of the largest possible catch of fish. "Optimum" permits consideration of a variety of objectives in management. This selection of a term is more significant because while the fishery provisions of CLOS generally follow the structure of the United States proposal they differ from it in this specific instance as well as in other operational concepts and details.
Second, Article 61 obliges the coastal State to "promote optimum utilization", which assumes that it is the coastal State which has the decision-making authority. No other State could implement the goal of optimum utilization (however defined) because none have any claim to competence to choose management goals, policies, principles or tactics in the EEZ although States whose nationals fish for anadromous and highly migratory species do have a claim to be consulted or engaged in some cooperative activity leading to a choice by a coastal State. In any event the injunction to "promote" a particular objective seems neither onerous nor especially demanding other than possibly forbidding extreme options such as prohibiting, without reason, any use of commonly exploited species.
Third, the obligation to "promote optimum utilization" is "without prejudice to Article 61". This qualification means that the coastal State's authority under Article 61 is not affected by any obligation regarding "optimum utilization". Article 61 authority principally includes (1) determination of the allowable catch, (2) establishing measures to ensure against endangering EEZ resources by exploitation, (3) establishing permissible yields, in light of the maximum sustainable yield as qualified by environmental and economic factors and taking into consideration effects on associated and dependent species. None of these determinations and choices need be affected by any obligation to observe or maintain a particular level of utilization above zero from a particular fishery. In light of Article 62(1), Article 61 authority could be exercised to set an allowable catch or a permissible yield at whatever level the coastal State determines to be in the interests of its harvesting effort or whatever other lawful interest it seeks to enhance. Apart from the obligation to avoid endangering target species or threatening reproduction of associated/dependent species, the only legal exception to this Article 61 authority is the Article 64 obligation to "cooperate" concerning specified highly migratory species. Such obligation should be interpreted as requiring negotiations that actively take into account interests of other fishing and coastal States and respond thereto.
This conclusion that "optimum utilization" is to be decided solely by the coastal State is reinforced by the provisions on dispute settlement in CLOS Part XV. Article 297(3)(a) excepts from compulsory and binding dispute settlement under section 2 of Part XV any dispute arising from those coastal State sovereign rights and discretionary powers that together determine how much the coastal State's EEZ fish can be taken, by whom, when, and on what other conditions. It is certain under CLOS that the specific meaning of optimum utilization in any specific context is a matter exclusively for coastal State decision.
7. Harvesting capacity and surplus
In addition to the sovereign and non-reviewable (under treaty dispute settlement procedures) right under Articles 56 and 61 to fix the allowable catch, the coastal State is expressly authorized by Article 62(2) to determine its own harvesting capacity in relation to the living resources of its EEZ. These two decisions, which are at the discretion of the coastal State, determine whether or not there is a surplus: Article 62(2) declares that "where the coastal State does not have the capacity to harvest the entire allowable catch, it shall give other States access to the surplus of the allowable catch.". The injunction that the coastal State give access to the surplus is thus seen to be considerably less forceful than might appear from Article 62 alone. The coastal State's obligation to give access is dependent on the vital pre-condition that it determine that its harvesting capacity is exceeded by the allowable catch. Since these determinations are wholly within the coastal State's discretionary powers, it is apparent that giving access is not meaningfully an obligation of the coastal State. If the coastal State decides that declaration of a surplus meets its interests, only then is it required to give access under terms and conditions it prescribes.
It is now well recognized that a coastal State may have sound reasons for affirmatively deciding that its interests are best served by determining that the allowable catch is equal to or less than its harvesting capacity, thus also deciding not to allow any foreign fishing. In another paper for this meeting John Gulland sets out considerations that could influence the coastal State in this direction.
The treaty makes clear that the coastal State cannot be compelled to allow foreign access even if it fails to determine an allowable catch and its harvesting capacity. Apparently the treaty framers considered that coastal discretion included refusal to make a choice of allowable catch and of harvesting capacity. Article 297 not only excludes any obligation by a coastal State to submit to compulsory and binding dispute settlement over a dispute about its sovereign rights over fisheries or their exercise (as discussed further in a later section) but also expressly excludes any binding and compulsory procedure if the coastal State denies access by simply refusing to do anything. In such a case, where the refusal to act is "arbitrary", the coastal State can, however, be pursued through "compulsory conciliation". This procedure is compulsory in the sense that the coastal State is at least required to pay part of the fees and expenses of the conciliation proceedings and it cannot preclude their completion by not participating. However the conciliation commission is authorized only to make non-binding recommendations to the parties and these can simply be rejected by the coastal State if it chooses to notice them even to this extent.
It is true that Article 300 declares that States shall exercise the "rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right" and this might appear to limit coastal State choice. Perhaps such an argument would prevail if there were a way to present it before an impartial tribunal. But article 297 appears largely to preclude this possibility, as well, perhaps, as establishing that even the coastal State's refusal to act to set an allowable catch is not an "abuse of right" under the treaty. By excepting such non-action from binding dispute settlement the treaty appears to provide that it is not necessarily an abuse of discretion and if that is the case it would seem difficult to contend that it is necessarily an "abuse of right".
On the other hand, if a fishing State has the influence to secure outside review, by agreement or otherwise independent of the LOS treaty, then Article 300 might provide a legal basis for attacking arbitrary actions by a coastal State.
The short of the matter is that the treaty contains virtually no restriction on coastal State authority to forbid access to foreign fishing. For practical legal purposes the treaty provides no remedy even for some arbitrary actions to deny foreign access.
Emphasis on the supremacy and discretion accorded to coastal States under Articles 61 and 62 of CLOS should not obscure the probability that coastal States will exercise that authority and discretion to find a surplus of fish in its EEZ. Furthermore, some States may have legislation according to which the allowable catch must be determined in accordance with biological information and it may well then happen that the AC will exceed domestic harvesting capacity. Although such legislation is not compelled by CLOS, it is consistent with it and may result in the determination of a surplus as defined by the treaty. For whatever reason the coastal State establishes a surplus, to do so brings with it the obligation to give access to it. This in turn entails the need to determine the terms and conditions of access and to make allocation amongst foreign fishermen. The latter course, in turn, may involve consideration of whether a particular State should be given access in view of its geographical situation or previous pattern of fishing or research. These matters are discussed after consideration of the terms and conditions of access.
8. Article 62 - Terms and conditions of foreign access
The Convention requires that if a coastal State has a "surplus" of living resources in its EEZ it shall give access to other States. Such access shall be effected through "agreements or other arrangements and pursuant to the terms and conditions referred to in paragraph 4" of the same article. The latter paragraph states that nationals of the other fishing States "shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State", The nature of the terms and conditions is solely the decision of the coastal State, the only specific restraint being that coastal laws and regulations containing the conditions "shall be consistent with this Convention .". The range of terms and conditions is not, however, limited by the treaty. The list contained in Article 62 is illustrative only and not exhaustive.
The coastal State laws and regulations may relate to the 11 categories of measures listed in 62(4) and, apparently, to other matters as well so long as the laws and regulations comply with the other provisions of the treaty. Such coastal laws and regulations regarding fisheries could relate to the coastal State's "other national interests" which the coastal State is entitled under paragraph 3 to take into account in giving access. Thus, if the coastal State's fisheries are considered significant for the national interest because they are a useful means of achieving specific political goals, the coastal State's laws and regulations regarding fisheries access could give effect to that interest. If the political goals were promoted by certain specific conditions affecting foreign access, those conditions could be implemented in the coastal laws and regulations.
Under CLOS the coastal State decision on terms and conditions of access is discretionary, but this discretion is guided by the treaty requirement that coastal laws and regulations containing the terms and conditions must be consistent with the treaty. Article 300 provides the further requirement that State Parties must fulfill their treaty obligations in good faith and exercise their rights "in a manner which would not constitute an abuse of right". To comply with these directives, a coastal State cannot both allocate a surplus and establish regulations that effectively preclude harvesting it. Once a surplus is declared and an allocation made to foreign fishermen the coastal State is obliged to exercise its regulatory authority in good faith and consistently with the other substantive provisions of the treaty. Invidious regulations imposing extravagant and unrealistic conditions that in practice forbid fishing would not be consistent with the treaty. An example of this might be the use of closed areas in such a way that the foreign fleet must risk and probably incur costly damage to fixed gear from an ice pack or force placement of gear in a shipping lane. Another example might be the use of "windows" or seasons for permissible fishing which made it unusually costly for foreign fleets to operate 1/.
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/ The general point must immediately be made here that the coastal State's laws and regulations that allegedly violate Article 300 or are allegedly inconsistent with other treaty provisions cannot be challenged in compulsory dispute proceedings under Part XV of this treaty if the coastal State does not consent.
While it might seem unrealistic to consider imposing unreasonable conditions when the foreign fishery might have been totally prohibited simply by not declaring a surplus, the division of authority and political influence within a particular State may be such that this tactic is feasible and, in some quarters, considered desirable. The LOS treaty would not permit these tactics.
The list of terms and conditions in Article 62 includes those that would be expected in fishing laws and regulations, including licenses, fees, catch quotas, seasons closed areas, vessel and gear types, size and age and species of fish, required information and research, place of landings, observers, training, technology, transfer, joint ventures, and enforcement. This provides an enormous range of detail in terms and conditions that the coastal State is authorized to impose.
The special importance of some of these matters should not be lost in this maze of detail. Article 62(a) specifically refers to licensing and the payment of fees, making it clear that the coastal State is authorized to require payment for giving access to the surplus. The treaty contains no specific limitation or restriction on fee level, and although reasonableness is required the treaty gives ample leeway to coastal States to secure monetary benefits from EEZ fisheries. Charging fees that reflect the actual value of the right to the foreign nation involved would certainly fall well within coastal authority. Although the treaty refers to the "licensing of fishermen, fishing vessels and equipment, including the payment of fees and other forms of remuneration" it does not follow that the total value charged for access must be derived simply from a calculation based on a per-vessel or per-fisherman basis. Rather, charges may be based on the overall value of the right to fish irrespective of the fishing strategy and tactics employed by the distant water State. This means, however, that the payment of any individual vessel might be very large in relation to its own share of the harvest. Such consideration is not a legal barrier to determination of fees by the coastal State. Of course coastal State is not in any case obliged to collect its compensation for access rights solely by charging individual vessels or fishermen.
Article 62(a) indicates that payments for fishing rights may take various forms which "in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry". While this language mentions only developing coastal States, it is doubtful if it should be construed to limit payment of these forms only to such States. Even developed coastal States may have large segments of their coastal area and population in need of these assets and may wish to accept payments in these forms from distant-water nations. So long as one form of compensation is equivalent to another, it seems immaterial what form is used.
One of the problems arising from the multiple conditions of access specified in Article 62 is determining the value to be placed on them. Thus a coastal State requirement for fishery research as a condition of access is a significant cost to the State seeking access and needs to be given a value in calculations of the total payments to the coastal State. Similarly, special enforcement procedures that may be required of foreign vessels may be a cost item that will enter into negotiations over access conditions.
9. Constraints affecting choice of who gets access
Article 62 contains two specific provisions relating to the coastal decision about which States will be given access to coastal fisheries. Paragraph 2 provides for the basic obligation, such as it is, to give access and especially singles out the landlocked and geographically disadvantaged States by referring to them with the phrase "having particular regard". The following paragraph (3) enjoins the coastal State to "take into account all relevant factors" and then emphasizes four different States or categories of States: (1) the coastal State itself; (2) landlocked (Article 69) and geographically disadvantaged States (Article 70); (3) developing States in the region or subregion and (4) States who have habitually fished in the zone or which have made substantial efforts in research and identification of stocks.
The discussions to follow examines the treaty in relation to the latter three categories of States, considering the coastal States authority over access by each category and the rights of States in each category.
(a) Landlocked (Article 69) and geographically disadvantaged States (Article 70)
Articles 69 and 70 deserve careful analysis because they were particularly controversial in the LOS bargaining, with the result that they were the product of special negotiations aimed at satisfying landlocked, geographically disadvantaged, and coastal States (hereinafter the former two groups of States are referred to as LLGDS). In the final outcome the provisions of Articles 69 and 70 do not significantly condition or modify the coastal State's complete control over its EEZ fisheries. The LLGDS, according to Ambassador Nandan, head of Negotiating Group 4 which dealt with this "core issue", stated that they believed "their participation in the neighbouring exclusive economic zones should be on a preferential or priority basis" and that Articles 69 and 70 should "expressly include a reference to priority or preference in order to make those articles more meaningful".
This position was unacceptable to coastal States and no such reference is made. Ambassador Nandan nonetheless said he was "convinced there is a need for some clarification of the relationship between the provisions of Articles 69 and 70 and those of Article 62". His compromise was to amend Article 62 to add at the end of paragraph 2 the words "having particular regard to the provisions of Articles 69 and 70, especially in relation to the developing States mentioned therein". This was done.
Neither this amendment, nor the addition of paragraphs 3 and 4 to Articles 69 and 70, respectively, places any constraint on the coastal State's decision to give or not to give access to foreign States in general, including LLGDS. The reason for this is that the declaration that LLGDS have a "right to participate" in Articles 69 and 70 refers only to the "surplus" and "an appropriate part of the surplus". Whether there is a surplus in the first place remains within the full control of the coastal State, which is specifically confirmed by the qualification that the "right to participate" is "in conformity" also with Articles 61 and 62. This express qualification establishes that the "right" of Articles 69 and 70 is subject to the discretionary powers of the coastal State set out in Articles 61 and 62. The right is thus contingent upon the coastal State's decision regarding the allowable catch, its determination of the indigenous harvesting capacity, and the terms and conditions the coastal State chooses to apply to its EEZ fisheries.
Although Articles 69 and 70 have no impact on the substance of Articles 61 and 62, they do declare the "right" of the LLGDS to fish for a part of the surplus, if one is established. But despite the multiple references in Article 62 to Articles 69 and 70, even the right to fish part of the surplus is tenuous. Article 62(2) states that the coastal State is to give access through "agreements or other arrangements and pursuant to the terms, conditions, laws and regulations" it may establish. While in giving access the coastal State is to have "particular regard" for LLDGS (paragraph 2), the next paragraph - which is the major paragraph concerning what States might get access - expressly provides that the relevant factors to be taken into account by the coastal State in giving access are not exhaustively listed in the Article. The reference to Articles 69 and 70 is only one of the factors the coastal State must take into account among an open-ended list it might also consider in choosing its course. The additional reference to LLDGS in paragraph 2 certainly emphasizes their importance for choosing who gets access, but it does not succeed in completely removing a coastal State right to give access to others. That right is only slightly qualified by Article 62 in combination with Articles 69 and 70.
The one modest constraint that is, arguably, placed on the coastal State's right to give access to its surplus entirely as it pleases derives from paragraph 5 of Article 69 and paragraph 4 of Article 70. (These are identical in substance and hereafter both are meant by references to 69(3).) Article 69(3) assumes that the coastal State has declared a surplus and that foreign fishing is being allowed, but that the coastal State is building up its capacity to take the AC. If this buildup is of wholly indigenous capacity, then (Ambassador Nandan suggests) LLGDS have no strong basis for arguing for their own participation and Article 69 is inapplicable. Presumably this is because there is no "surplus" over the coastal State's own indigenous harvesting effort and all foreign participation is being foreclosed. On the other hand, if the buildup of domestic capacity is occurring through joint ventures, then Article 69(3) makes provision for conditional continued access by an LLGDS.
The term "conditional continued access" should be emphasized. According to Ambassador Nandan's report, in Article 69(3) "emphasis is put on the developing landlocked and geographically disadvantaged States which have actually been fishing in the particular exclusive economic zone at the time when the situation arises". If this statement is given weight in interpretation, Article 69(3) excludes any new claims to entry by developing LLGDS to fisheries in adjoining EEZs when the coastal State's capacity is increasing to the point that through joint ventures it is capable of taking the entire allowable catch. (And it must be remembered that the latter can be adjusted to suit the coastal State's social interests and is not dictated by biological considerations.)
Despite the mandatory tone of the language in 69(3), the provision for continued LLGDS participation in this situation leaves a good deal to be desired in terms of certainty and assured access. The coastal and other concerned States "shall cooperate" to establish "equitable arrangements" to allow for LLGDS participation "as may be appropriate in the circumstances and on terms and conditions satisfactory to all parties". This language is very loose in the protection it offers for the landlocked or geographically disadvantaged State that has an investment in, at least, vessels and gear, and also perhaps in processing, storage, distribution, and marketing facilities that it seeks to protect by having access to an assured supply of a particular resource. Provision for continued participation "as may be appropriate in the circumstance" gives a very wide range of appreciation within which to make arrangements. Because the larger the number of fishing entities in the face of a declining surplus, the smaller the share of each, it might be expected that the "appropriate" share would be relatively small and subject to further reduction, especially if the LLGDS is one of several other fishing States. The problem could be made much more difficult if the LLGDS has need for fish of a particular species, size, or condition or for fishing at a particular place or time.
While it is fair to say to say that Articles 69 and 70 provide legal support for seeking access when the coastal State is willing to establish a "surplus", it is also fair to say that the conditions for achieving that access in fact could impose insuperable obstacles. The right to participate in exploiting a part of the surplus must be in conformity with Articles 61 and 62, the latter providing that the coastal State may establish the terms, conditions, laws and regulations governing access. Accordingly it appears that actual access depends upon LLGDS capacity to meet the coastal State's terms and conditions. These may be extremely difficult or even impossible to satisfy, especially if the coastal State establishes fees determined on a competitive basis.
Further, Article 69(2) also provides that the States concerned are to establish the "terms and modalities of participation" through agreement. In seeking this agreement Article 69(2) sets out an open-ended list of factors they are to take into account, the first factor being "the need to avoid effects detrimental to fishing communities or fishing industries of the coastal State". The same factors are to be taken into account in implementing Article 69(3), where through joint ventures the coastal State is increasing its capacity to harvest the allowable catch. Accordingly, whether a particular LLGDS can secure access depends on whether it can negotiate appropriate arrangements with the coastal State and others, having in mind the conditions of coastal State fishing communities and industries, the extent of fishing elsewhere by the particular LLGDS, the extent to which other LLGDS fish in the coastal State's EEZ, and the nutritional needs of the States concerned.
In sum, articles 69 and 70 do not provide for an effective rights of access to an adjoining State's EEZ fishery, but if that State declares a surplus, Articles 69 and 70 give the LLGDS a claim to secure access to it. Realizing the opportunity presented by such a claim faces the pitfalls and difficulties of negotiations to reach bilateral, subregional, and regional agreement on terms satisfactory to the coastal State and to others.
(b) Developing States in the region or sub-region
The Article 62 reference to developing States in the subregion or region is the third item in the non-exhaustive list of relevant factors for the coastal State "to take into account" in giving access to other States to its EEZ. If, as just noted, landlocked and geographically disadvantaged States effectively possess only right to negotiate for access on terms satisfactory to the coastal State as well, then other developing States in the region have even less legal claim to consideration. It must be said, however, that those and other developing States might still be able to negotiate access, in preference to the Article 69 and 70 States, if they are agreeable to better terms, i.e., terms that the coastal State will accept as satisfactory. It must be remembered, in this connection, that the coastal State has complete discretion to set the terms and conditions for access to its EEZ. Thus, it is solely up to the coastal State under Articles 62, 69, and 70, to choose which State or States are given access.
(c) Economic dislocation
The fourth, and last, "relevant factor" mentioned in Article 62 is "the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks". This factor could embrace two different categories of States: fishing States and those who have "made substantial efforts in research and identification of stocks". In either case, however, the legal consideration is the same: these States are the last mentioned in a non-exhaustive listing of States to consider in giving access. This order of arrangement contrasts sharply, and intentionally it is believed, with the proposal made by the United States which specifically provided for access to be given on the basis of certain priorities, first of which was States that have traditionally fished a resource. Thus, if the Article 62 order of enumeration is given legal weight the factor of economic dislocation in habitual fishing States and researching States should have the least among those mentioned. But again, as noted already in this discussion, the coastal State's choice of fishing States to be given access is ultimately dependent on the terms and conditions it finds acceptable and this may mean that a State in this fourth category of States is given preference. If any "order of priority" is suggested by the order of listing in Article 62 it appears vitiated by the discretionary authority on the coastal State to set terms and conditions that are satisfactory to it.
In this connection a good deal has been made in some quarters of the Article 62 reference to economic dislocation that, it is alleged, would obligate the coastal State to allocate portions of a surplus to States who show such dislocation. Such an argument has no merit whatsoever even though it can be conceded that the activities of certain fishermen meet the criteria of habitual fishing in an EEZ. Even if no developing, landlocked, or geographically disadvantaged States sought access to the exclusive fisheries zone, there would be no obligation under CLOS to accord access to any particular State.
Under the LOS treaty the coastal State alone determines the conditions of access (subject to Article 64 for tuna and other Annex I species discussed below) and this means that only those States get access who satisfy these conditions. This being the case it is obvious that no one State can demand to be given access as a matter of right. This is plainest if it is hypothesized that the coastal State decides to allocate all of its surplus resources by auction to the highest bidder. If all the States who bid are States who have habitually fished in the zone, but there is only one highest bid, then all but one of these States will be denied access. This is perfectly lawful under a treaty that gives the coast State discretion to determine acceptable terms and conditions of access. Certainly a decision to maximize revenue from a surplus resource is a reasonable one and could not successfully be attacked as an abuse of right or otherwise as an objectionable abuse of discretion.
Indeed it may be difficult to imagine practical choices regarding access which, if unrelated to politics, could be considered unreasonable. Article 62 expressly recognizes that in giving access the coastal State can take into account the significance of the EEZ living resources to its "economy" but also to its "other national interests". This might embrace all conceivable interests that might in varying degrees bear on fisheries including political, military, educational, ecological, cultural, religious, or ideological. Any doubt that fisheries significantly relate to such a diversity of interests can be dispelled by documenting that in practice States already employ their controls over fisheries to secure such objectives. In face of the treaty's broad terminology, it would be difficult to demonstrate or to persuade that the coastal State's authority over access can no longer be exercised to promote those interests. In any event, consistently with the treaty a wide range of considerations could be adduced by the coastal State to justify its choice of the State or States to be allowed access to fish in the EEZ.
D. Shared stocks
The creation of the 200 nautical mile exclusive economic zone by the Third U.N. LOS Conference is frequently hailed as the principal accomplishment of that venture in international law-making. One of the major reasons often given for such an appraisal is that, because virtually all living resources are harvested within 200 miles of a coast, the EEZ provides the opportunity for an improvement in decisions about fishery conservation and management. The EEZ places fisheries within a coastal State's jurisdiction and, hence, subject to a single management system.
Unfortunately, the opportunity detected by observers is less than complete because many exploited fish stocks "possibly even the majority of the stocks supporting large-scale industrial fisheries" according to John Gulland (1980) are "shared migratory stocks", i.e., those that are at some stage subject to the jurisdiction of more than one State because of a regular pattern of movement across a boundary. Frequently this means that the States concerned cannot achieve either conservation or allocation goals by action independent of the other. This means, in turn, that despite its exclusive legal authority the coastal State cannot wholly shape the conditions of access to stocks in its EEZ. Of course this dilemma does not always pertain. Shared stocks include a great many situations that exhibit different elements and present different problems.
This situation is dealt with in Article 63(1) of CLOS "where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States .". The conduct prescribed for the States concerned is that they "shall seek to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part". In order for either coastal State to promulgate improved management measures in many situations, it must seek to agree with the other coastal State or States upon one or more of a variety of actions regarding the target stocks. In addition these States are enjoined to seek agreement regarding "associated stocks", which can be stocks that neither State is interested in exploiting.
Both (or all) States in this situation retain the exclusive authority conferred by Articles 56, 61 and 62, but that authority may often be inadequate or insufficient to accomplish management objectives. Thus while the creation of the EEZ may still represent an improved opportunity for management, it is apparent that this opportunity will still require international cooperation and agreement in a great many situations around the globe. Some "improvement" is made, if less than might seem, because instead of seeking to manage fisheries open to free access by anyone, the new regime permits the coastal States of the zones in question to restrict access to, and regulate, their own fishermen. What is changed, therefore, is the scale not the nature of the problem. Instead of dealing with free entry by anyone in the world, the coastal State with shared EEZ stocks need only deal with each other.
However, Article 63 leaves a good deal to be desired in terms either of identifying the States who are obliged to seek agreement on conservation and development or of identifying the overall problems of shared stocks. Article 63 should have been drafted in order to take account of all significant instances in which a management problem arises because a single coastal State cannot by itself prescribe measures for a stock that is also located within another State's jurisdiction. It is not entirely clear that Article 63(1) achieves that objective.
The problem is whether 63(1) refers only to instances in which target stocks or stocks of associated species appear in two or more zones. On the surface, at least, it does not appear to require both to appear in both (or all) the zones involved. The unresolved questions are: does the Article 63 (1) obligation apply if an associated species appears only in State B's zone while the target (exploited) stock appears in A & B. Or is it applicable to State C within whose EEZ one of the associated species also appears, but no target stocks. Or is it applicable if the target stock appears in State A but associated species also appear in both State A and B.
Despite the literal language of Article 63(1) it ought to be interpreted to apply whenever either situation occurs, i.e., (1) the target stock is harvested in A and B and an associated stock in one or the other; (2) the target stock is harvested in A or B and an associated stock is in A and B. This would mean that the Article 63 obligation applies where either target or associated stock appears in only one zone while the other appears in two or more. Such an interpretation would include the instance of the third State whose zone lacks any of the target species.
The substantive obligation imposed by Article 63(1) cannot fairly be described as awesome, imposing, or, even, perhaps, very consequential. First, the obligation is not to establish joint measures or to concert conservation actions or to coordinate research but only "to seek to agree" on such actions. So long as a coastal State makes a reasonable effort to identify problems that require agreement with another coastal State and to reach an agreement it will have met the obligation in Article 63(1). The first of these burdens is not necessarily easy to discharge because it assumes knowledge of target and associated stocks that may be difficult to come by, but it is doubtful that default of the responsibility to act can be imputed unless it could be shown that the relevant officials made no effort to use available information about the stocks involved or to exercise the capability they possessed to develop further information that would provide a basis for identifying a problem.
Second, once the appropriate coastal States are identified, any of them need only make a good faith effort to reach agreement upon the "measures necessary to co-ordinate and ensure the conservation and development of such stocks". Failure to agree is not necessarily a failure to observe the Article 63 obligation. The precise subjects of an agreement appear to be irrelevant in this connection - they obviously will vary depending on the precise difficulties involved in particular contexts and on the relative advantages and disadvantages for the States concerned.
Third, Article 63 is somewhat unusual among the CLOS articles on fisheries in the EEZ because it specifically mentions stocks, rather than simply "living resources" or "species". The obligation to seek agreement arises, therefore, only when the same stock (target or of associated species) is in both EEZ, not when the same species is involved. It is conceivable that two States might share a species but that the stocks of this species do not cross the EEZ boundary and are unaffected by fishing for the separate stock. Accordingly, the situation would not be one recognized in Article 63(1) and the States concerned would have no obligation vis-a-vis each other (Gulland, 1980).
E. Stock within Coastal State Authority and within the high seas
Three situations under CLOS deal with this form of shared stocks. One concerns the highly migratory species that are found within and beyond the EEZ. Another relates to anadromous species that move from national jurisdiction to areas beyond and vice versa. The third refers to coastal stocks (target stocks that are not subject to Article 64 and associated stocks) which occur within the EEZ and on the high seas, being distributed or moving across the EEZ boundary with the high seas. The following examines each of these situations.
1. Highly migratory species
CLOS Article 64 and Annex I identify and specify certain living marine resources as highly migratory species that are treated somewhat differently than others found within the EEZ. The term "highly migratory species" is not defined in Article 64 or elsewhere but its reference is supplied by the listing in Annex I. Various species of tuna are the resources of most commercial importance listed in the Annex. Others include highly prized recreational fish especially the marlins, sailfish and swordfish.
Highly migratory species (HMS) (as labeled and defined in CLOS) are subject to coastal authority in the EEZ exactly as are all other species except in the respect that coastal States are, in addition, obliged by Article 64 to cooperate with States fishing in the region "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". Such species are often accessible for harvesting both within one or more EEZ and beyond. Amounts taken within may affect catches beyond and vice versa; potential effects differ in particular contexts, depending sometimes on the extent of the area of high seas outside fishing zones.
The other side of this picture concerns the rights and duties of fishing States. According to Article 64 such States are obliged to cooperate with coastal States for HMS fishing within the zone and in the region beyond. Such States, then, are not free to adopt conservation and allocation measures applicable only on the high seas without efforts to cooperate for this purpose with coastal States. Fishing in the region by either coastal or distant water States prior to cooperative actions aimed at regulations for a new season would appear to be inconsistent with Article 64, since this could prejudice ultimate conservation and allocation measures, both inside and outside the zone, at least for that season and perhaps longer.
Within the EEZ the coastal State is entitled to establish an allowable catch for a HMS species so long as this is done in accordance with Article 64 obligations. Such obligations include cooperation with other coastal and fishing States of the region with respect to conservation and utilization. Cooperation, in turn, reasonably means negotiations with the other States to establish conservation measures and to allocate catch. The negotiations must deal with HMS within the zone as well as outside, because the obligation extends to HMS in the region.
The most significant question arising from these provisions has to do with the situation arising when the coastal and distant fishing States are unable to agree on a regime. In such an event CLOS appears to place authority in the hands of the coastal State, at least as regards HMS within the EEZ. This means in turn that where HMS occur in the zones of more than one coastal State it will be necessary for the coastal States (at least) to cooperate to achieve effective conservation and management.
For HMS that can also be fished outside a particular EEZ the Convention can be interpreted in various ways to permit effective management by all of the coastal States of the region. Article 116 provides that the right to fish on the high seas is subject to coastal State rights, duties and interests under Article 64. While the specific effect of this language is not elaborated in the treaty, it might reasonably be construed to mean that, in the event cooperation breaks down or fails, high seas fishing for HMS can only be conducted in accordance with coastal States' determination of the TAC for the region as a whole and their capacity to harvest that TAC within their EEZ.
So far as concerns access to HMS within a specific EEZ, the most significant point to note is that this cannot be considered separate from access to HMS in the region beyond that EEZ. The fishery must be considered as a whole and management decisions must take account of the availability of stocks wherever they may be fished, including areas outside that particular EEZ. Whether any coastal State likes it or not, it will be constrained in determining access to HMS within its EEZ by fishing activities and regulatory measures occurring outside its EEZ, both in another State's EEZ and on the high seas. While any coastal State has exclusive authority to conserve and to allocate HMS found within its zone, this authority cannot suffice by itself to produce desired results unless this State cooperates with other States in whose EEZ the same stock is available. None of these States, in turn, can establish an effective management regime if consequential catches of these stocks can be taken on the high seas beyond their control. Even if the LOS treaty can be interpreted to avoid the latter possibility, the ultimate constraint on their capacity to control access is their willingness and ability to cooperate with each other. It is possible to interpret CLOS to make coastal State rights paramount over high seas fishing rights, but the treaty does not authorize coastal State enforcement on the high seas and this practically negates coastal dominance except where fishing cannot be conducted economically on the high seas without also fishing within EEZs.
2. Anadromous species
Conditions of access for foreign fishing for anadromous stocks are probably of little significance when compared with other stocks. The reason is that the most valuable anadromous species, salmon, is unlikely to be available at all to foreign fishing in an EEZ. Few coastal States lack capacity to take all available salmon and none want to allow foreign fishing in excess of the TAC. Furthermore the treaty provides that fisheries for anadromous stocks are to be conducted only landward of the EEZ limit except where "this would result in economic dislocation for a State other than the state of origin". Accordingly questions about access beyond the EEZ will be significant only for States who have traditionally fished beyond 200 II. miles. This issue is not dealt with here because the relevant problem is limited to access to fisheries within the EEZ.
Article 63(1) appears literally to be applicable to anadromous stocks which transit the EEZ but should be interpreted to refer only to stocks not covered by other articles on specific species. Thus Article 66 contains the only provisions applicable to anadromous species. In this situation the State of origin of such fish has "primary interest in and responsibility for such stocks" (Article 66(1)). This means, according to Article 66(2), that the state of origin is entitled to establish the total allowable catch for such stocks after consulting with the adjacent State (or the sharing coastal State if it is not adjacent) and with States who are permitted under the treaty to fish on the high seas (para 2). Thus, in contrast to other shared stocks, anadromous stocks are not subject to the authority of both (or all) sharing States to determine the allowable catch. It seems to be a reasonable interpretation that any fishing State is obliged to recognize the TAC so established.
Interestingly, however, the other coastal fishing State is apparently authorized under Article 66 to establish its own regulations in its EEZ, although it is also enjoined to cooperate with the State of origin in conservation and management of these stocks. This is a reasonable conclusion from Article 66, paras. 2-4. Paragraph 2 states that the State of origin's regulatory measures apply "in all waters landward of the outer limits of its exclusive economic zone and for fishing provided for in paragraph 3(b)", which refers to high seas fishing. On the other hand, paragraph 3(a) limits anadromous fishing to "waters landward of the outer limits of exclusive economic zones" (except for certain fishing beyond) and this plural reference to "zones" obviously envisages fishing in an EEZ other than that of the State of origin. So the host State's regulatory authority set out in paragraph 2 is not co-extensive with the para. 3 provisions for fishing on its anadromous stocks. That authority extends to high seas fishing but not to other EEZ fishing.
The coastal fishing State is supposed to cooperate with the State of origin and because the latter is entitled to set the TAC it would appear that the former must accommodate to the latter's lead in this respect. Still, within this confine, these States clearly are supposed to negotiate further arrangements, either directly or through regional organizations. In sum, the State of origin has primary authority over anadromous stocks and while any other coastal fishing State may have some interest in the same stock it is not wholly free to control such stocks in its zone and its control over access conditions is not unfettered.
3. Coastal species within the EEZ and in the adjacent high seas
The third instance of zone/high seas stocks (either target or associated) are those that are not highly migratory and occur both within the zone and in an area beyond and adjacent to the zone. Under Article 63(2) coastal States have full control over these stocks in the EEZ in exactly the same way as over any other stock within the EEZ. In contrast to highly migratory species in the EEZ the coastal State has no additional obligation of cooperation or of seeking agreement concerning the stock in the EEZ by itself and it has no additional obligation regarding utilization of this stock as a whole, i.e., in and beyond the EEZ.
However the coastal State and States fishing for such stocks are obliged to "seek to agree upon the measures necessary for the conservation of these stocks in the adjacent area". (The adjacency criterion here also differs from the HMS situation where no similar qualification applies). The contrast mentioned above, between the coastal State's obligation regarding conservation of these stocks and HMS, is probably much less than appears. It is doubtful if a coastal State could expect to take effective conservation measures if they were applicable only within the EEZ while unrestricted fishing were permitted on the same stock in an area outside the EEZ. Hence it is likely that if the coastal State seeks effective conservation it will have to concert its zonal measures with those agreed to by other States for application on the high seas beyond the zone.
Insofar as utilization and conditions of access are concerned there appears to be no difference between these so-called "straddling stocks" and any stock found only within or wholly within a single EEZ. The coastal State has exclusive authority to establish the allowable catch, determine permissible catch, determine harvesting capacity, and set the terms and conditions for access to any surplus it might establish, irrespective of utilization beyond the zone.
It should be noted, however, that the actual conditions of access, within the EEZ might be affected by fishing for these stocks beyond the EEZ. If such fishing were allowed to reduce abundance of the same stock within the EEZ this might well have an effect on the above determinations.
The relationship between Article 63(2) and Article 116 may be important in this connection. As noted earlier, the latter article declares that the right to fish on the high seas is subject to the rights, duties and interest of coastal States as provided for in Article 63(2) and other articles. Unfortunately the treaty fails to clarify or to elaborate on this relationship, hence we have no guidance on what this qualification means. We know that no such restriction on high seas fishing rights pertained under customary law and that the treaty should be interpreted to give effect to all of its provisions. The question is what effect in this instance?
In the first instance this question is unimportant if the coastal and fishing States are able to agree on necessary conservation measures in the adjacent area. As noted in other discussions, however, national interests in fishing and resulting differences in fishing patterns, gear, technique and practices, may make it difficult to agree in these measures. Fortunately, so far as is known at the present time, this particular problem of zone/high seas stocks is not as common as the stocks shared between EEZs.
It must also be emphasized that Article 63 obliges the States concerned to seek to agree. If States seek and fail to agree, after both or all have made good faith efforts to do so, what may be done?
Again, as with highly migratory species, the balance in CLOS appears to be on the side of the coastal State. Article 116 subjects the right to fish to Article 63(2) and other articles establishing coastal State rights, duties and interests. It is plain that the coastal State has extensive rights over the EEZ portion of the stock and is legally competent to decide upon any necessary conservation measures as well as upon the extent and conditions of foreign access to the stock in the zone. If fishing on the high seas is subject to the coastal State's right to establish conservation measures in the EEZ, this would appear to mean that others must recognize these measures as applicable wherever the stock in question is found on the high seas. If the fishing State is not thus obliged to recognize and to observe coastal State measures, the prospect is that they would be made ineffective for the stock as a whole. Whether or not failure to observe those measures on the high seas would have such an effect would depend on the extent, timing and methods of such fishing. If significant high seas harvesting occurs the probability is that coastal measures would fail. Such an outcome seems to be inconsistent with Articles 116, 63(2) and other EEZ fisheries provisions.
The coastal State's restrictive measures are limited by Article 63(2) to conservation - utilization in the high seas remains beyond coastal authority. Of course if the TAC for a stock in the EEZ takes into account the entire stock, and not just the EEZ portion, as might arguably appear to be its right, and the coastal State estimates its capacity is to harvest 100% of that within the EEZ there would appear to be nothing left for foreign fishing in the adjacent area. On the other hand if the TAC exceeds domestic Harvesting capacity within the EEZ it would appear that foreign fishing outside that area must be left free to take the excess, subject to observance of conservation regulations. If this interpretation of Article 63(2) and 116 were valid, it might mean that the coastal State would be unable to benefit from EEZ fishing if the surplus could be taken in the EEZ but were also available in the adjacent high seas. That surplus could then instead be harvested by foreigners free of charge in the high seas.
Of course it might be that because of migration patterns the stock available on the high seas is greatly reduced in abundance by earlier domestic fishing in the zone. It might therefore be uneconomical or less productive to wait to fish for this stock in the high seas. In that case the coastal State might still establish terms and conditions for access to the stock within the EEZ. But because of the availability of the stock on the high seas there may be a ceiling on the coastal State's options in setting terms for foreign access.
The reverse of the above may sometimes occur, i.e., the more profitable fishing is on the high seas and reduced abundance is experienced later in the EEZ. So long as the high seas fishing States observe prescribed conservation measures, the coastal State would have no lawful way to alter the situation. It may be recalled in this connection that conservation measures applicable on the high seas cannot discriminate in form or in fact against the fishermen of any State. Accordingly the coastal State cannot lawfully prescribe discriminatory conservation measures applicable on the high seas in order to benefit its own fishermen within the EEZ.
The above observations are obviously speculative. Other interpretations might be devised to give effect both to the EEZ fisheries articles and those applicable to high seas fishing beyond. However, whatever interpretation is employed should make it possible to create an effective conservation regime. Unless this is the standard, the duty imposed on all States to conserve living resources on the high seas and within the EEZ may be unattainable. Adopting this standard almost necessarily weights interpretation toward coastal State authority in a situation where only very small harvests are taken outside the 200 mile EEZ. The small size of the annual catch of coastal species (not HMS) beyond 200 miles suggests that there can be little hazard to the general interest by recognizing that the coastal State in this situation has predominant authority to adopt conservation measures in the case of failure to agree on them among the States concerned. The condition that such measures cannot discriminate should make this approach both reasonable and acceptable.
Coastal State demands for observance of certain conservation measures for straddling stocks on the high seas could lead to initiation of compulsory dispute settlement at the instance of the coastal State. The exception of certain fisheries matters from compulsory and binding settlement does not apply to disputes concerning stocks on the high seas. Hence if the DWFN ignores coastal State demands for cooperation it may well open itself to legal challenge via the compulsory dispute settlement procedures.
F. Marine mammals
One of the highly migratory species in Annex I is cetaceans. Although Article 64 appears to apply to all Annex I species, it is likely that the inclusion of cetaceans as subject to Article 64 is a technical error due to the fact that at one time Articles 64 and 65 were one article. Article 64 should not be considered applicable to cetaceans. In any event, whatever is said in Article 64, Article 65 provides that nothing in Part V "restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit, or regulate the exploitation of marine mammals more strictly than provided for in this part". Article 61 requires the coastal State to ensure that these animals are not endangered by overexploitation or their reproduction threatened, but under Article 65 the coastal State or a competent international organization can prohibit any taking of a marine mammal even if its population is at maximum abundance and completely safe from any excessive exploitation. In fact, Article 65 seems to add little to the authority already possessed by coastal States under other articles. Even under Article 61 a coastal State could determine that the allowable catch of a stock or species or population was zero. It is, however, fair to observe that Article 61 otherwise addresses conservation from the standpoint of utilization not preservation whereas Article 65 seems mainly to envisage the latter.
III. COMPULSORY DISPUTE SETTLEMENT PROCEDURES
From a legal perspective the availability of a legal remedy for disputes about foreign access to fisheries in an EEZ is an important condition concerning access. It is not, of course, a condition affecting whether or not access is to be granted. It might, however, bear on whether or not access can be achieved. Further, in the case of fisheries FAO has a specific role to play in connection with an arbitral procedure aimed specifically at fact-finding and, possibly, recommendation to parties in dispute.
It is highly probable, in light of conflicting views already being expressed on the fisheries provisions, that a convention as diverse and complicated as that on LOS will occasion conflicting views over its interpretation and application. Disputes of this kind are to be settled, according to Part XV, Article 279, by peaceful means through mechanisms specified in Article 33(1) of the UN Charter. If the parties' choice of means for settlement do not succeed, any dispute over interpretation and application may be submitted at the request of a disputing Party to one of a number of tribunals having jurisdiction under Section 2 of Part XV. The procedures under this section are compulsory and decisions reached are binding. Disputes relating to fisheries are to be settled in accordance with Section 2, i.e., by compulsory procedure with binding results, except that this does not apply to disputes over any of the sovereign rights relating to the living resources of the exclusive economic zone. This is a rather large exception since it deals with the largest single areas of coastal State fishery jurisdiction and excludes third-party decision-making for virtually any dispute over any living resource within the EEZ.
This exception for fisheries in Article 297(3)(a) is especially noteworthy because it is not only broadly worded ("any dispute relating to its sovereign rights ") but also clarifies the scope of coastal authority established in Articles 56, 61, and 62 of Part V on the Exclusive Economic Zone. This clarification derives from the specification that the coastal State's sovereign rights include "its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations". Articles 61 and 62 are unequivocal in establishing the exclusivity of coastal States decision-making authority, and Article 297 reinforces this element and confirms that the criteria for that decision are solely for the coastal State to determine in any specific instance. This is particularly important because Articles 61 and 62 provide for choices that are guided by criteria that give the coastal State ample leeway to select among a number of options.
Thus Article 61(1) regarding the allowable catch in an EEZ attaches no qualifications whatsoever to the coastal State's freedom to choose. In narrowing the provision to the specific yield from a harvested species, Article 61(2) refers to the "maximum sustainable yield" but "as qualified by relevant environmental and economic factors". Accordingly the reference to discretionary powers in Article 297 means that the coastal State has discretion to decide what the catch of a stock or species should be in light of its appreciation of "environmental and economic factors". Once a coastal State adopts measures for harvesting in its EEZ that is the end of the matter so far as appeal to an outside decision-maker who could review the choice made and impose a binding decision to change it.
This does not mean that no third party mechanism can be employed to challenge some decisions. Article 297(3)(b) provides that any party to a dispute may submit a dispute to compulsory conciliation procedures under Annex V, Section 2 in certain specific instances: (1) the coastal State fails to comply with the obligation to ensure that living resources are not endangered; (2) an arbitrary refusal by the coastal States to determine the allowable catch and its harvesting capacity; (3) arbitrary refusal to allocate a surplus declared under Articles 62, 69 and 70. In these instances a State may request compulsory conciliation which means that conciliation proceedings may be initiated by a complaining State and the coastal State must join in submission of the dispute. The coastal State is "obliged to submit to such proceedings" but cannot be forced to do so; failure to appear is not a ban to the proceedings. The commission is to issue a report including its conclusions on fact and on law, but "the report including its conclusions or recommendations, shall not be binding upon the parties".
Compulsory and binding arbitral procedures under the treaty could conceivably be available against a coastal State if it should seek to prescribe measures applicable both in its EEZ and to fishing in the high seas beyond. Article 116 provides that the right of fishing on the high seas is subject to coastal State rights under, inter alia, Articles 63(2) and 64. Should a coastal State interpret that provision to authorize it to prescribe measures for fishing on straddling stocks or highly migratory in the high seas, arguing that otherwise its unquestioned rights within the EEZ could be rendered ineffective, a strong argument can be made that it should be required to accept submission of a resulting dispute to compulsory procedures under Part XV, Section 2. Such a dispute is not simply about fishing for resources that are subject to the sovereign rights of the coastal State but rather concerns resources that are fished by and significant for a number of distant water Nations. Conceivably a dispute with these ingredients might arise under any of the articles specifically mentioned in Article 116.
Special note is due one of the dispute settlement procedures established by the treaty. Although a coastal State cannot be compelled to submit a dispute to it, the tribunal established pursuant to Annex VIII of the treaty could be employed to help resolve controversies arising primarily from disputed facts. The tribunal, the majority of whose members would be chosen by the Parties from a list of experts drawn up by FAO, would be empowered to make findings of fact that are conclusive between the parties but could only make recommendations to them regarding the questions in dispute. This procedure might be helpful in disposing of disputes about "facts" while leaving it to the parties to resolve the problem of how to reach an accommodation based on the "facts".
REFERENCES
Burke, W., 1982. US fishery management and the new Law of the Sea. Am.J.Int.Law, 24:31-32
Dawson, C.L., Glossary of terms and concepts used in fishery management. FAO Fish. Rep., (236):115-7
FAO, 1979. Interim report of the ACMRR Working Party on the scientific basis of determining management measures. Rome, Italy, 6-13 December 1978. FAO Fish.Circ., (718):112 p.
Gulland, J.A., 1980. Some problems of the management of shared stocks. FAO Fish.Tech.Pap., (206):22 p. Issued also in French
Hoydal, K., 1983. ICES procedures in formulating management advice. Paper presented at the Expert Consultation on the Regulation of Fishing Effort (Fishing Mortality), Rome, Italy, 17-20 January 1983. FAO Fish. Rep., (289) Suppl. (in preparation)
