In several places around the world, most significantly in the west central and southwest Pacific ocean, the adoption of 200 mile exclusive economic or fisheries zones results in the creation of wholly or partially enclosed enclaves of high seas. In this Pacific region the major commercial fish species is the tuna, which is labelled “highly migratory” because it moves for great distances from one ocean region to another, and which is accessible for harvesting within the exclusive zones of several States as well as in the enclaves beyond. This movement not only makes it impossible for any single State to manage the species properly but also for the combined States of the region to do so. Even if these States joined together to establish a common authority over their combined zones, it will not accomplish proper management when the same stocks are subject to uncontrolled harvesting in high seas enclaves beyond the combined zones. In the South Pacific the island States of the region have joined together to create a fishery management agency designed to facilitate cooperation, coordination and harmonization of their policies toward the living marine resources of the region (both within and beyond 200 mile zones), particularly the highly migratory species.
The combined 200 mile zones of these island nations are enormous but they still do not encompass significant high seas pockets within which HMS can be and are caught without regard to the conservation or other policies adopted by States in the region. The effects of an enclave harvest or unconfirmed reports of harvest are (1) to create or to suggest an unknown fishing mortality on HMS that are also caught within fishery zones, thereby making it difficult or impossible to determine how much mortality can be or ought to be permitted within the zones, and (2) to take fish without the necessity of paying for the right to do so, potentially depriving adjacent States of revenues that would accrue if the same fish were harvested within their zones subject to coastal State fees.
It is assumed for the purposes of this discussion that the adjacent States have two major interests: (1) to secure information on fishing mortality in the enclaves, and (2) to avoid revenue losses from fishing in that area.
The general question of coastal authority in an enclave may be more precisely refined into the following issues:
(1) whether island (coastal) States can unilaterally extend authority over high seas enclaves to prescribe and to apply conservation and allocation measures;
(2) whether such States can act in concert and by agreement amongst themselves assert authority to prescribe and apply;
(3) what participation must be allowed to distant-water fishing nations whose vessels fish in these waters.
Consideration of these issues requires reference to both customary and conventional international law of the sea. The following sections address these different regimes.
There is no basis in customary law and practice for extending coastal fishery management authority of high seas enclaves and enforcing it there without the advance agreement of the flag States affected. Arguments can no doubt be made that this minimal further extension of coastal jurisdiction is in keeping with the spirit of the widespread adoption of national controls over fishing because it will enable the nearby States, mostly developing, to gain benefits from the resources and to make adequate provision for their long-term protection. Current international law, however, still recognizes freedom of fishing beyond extended national jurisdiction and obviously contemplates that management regulations directly enforceable to vessels fishing in such area will be arranged by agreement with flag States or otherwise accepted by responsible vessel owners or operators.36
It does not follow from these propositions that coastal States are unable to influence foreign fishing in high seas enclaves, especially in regions where the target species are highly migratory and accessible within and beyond the zones creating the enclaves. The surrounding States in these circumstances might wish to condition access to the fish in their zones on compliance by the fishing State with conditions regarding harvesting of the same species beyond. Enforcement of conditions relating to activity beyond national jurisdiction would take place, if at all, within national jurisdiction rather than beyond. So long as there was no interference with fishing in the high seas enclave, this course of action seems unexceptionable under customary international law.
The basis for the conclusion just mentioned is that under international law a State is permitted to condition access to fisheries within its exclusive jurisdiction, and subject to its sovereign rights to conservation and management, upon completion of acts in areas beyond its jurisdiction. Coastal States commonly exact such conditions for access to their fisheries. For example the United States allocation of the surplus in its fisheries zone can be dependent upon decisions made by fishing States regarding tariffs upon imports.37 The draft LOS treaty in article 61 clearly envisages terms and conditions on foreign access to fisheries that require action outside coastal State jurisdiction. Such conditions are compatible with customary international law.
36 Some agreements have been made regarding enclave areas but they do not authorize coastal enforcement. An exchange of letters dated 4 April 1978 between New Zealand and the USSR provides that Soviet vessels will not fish in two high seas areas enclosed by the New Zealand zone during the period their agreement on fisheries of the same date is in force. In an exchange of letters dated September 1, 1978 between Japan and New Zealand, Japan agreed to “take measures to ensure that fishing vessels of Japan not licensed under Article III of the Agreement (of the same date) will not fish in the abovementioned areas (of high seas enclosed by the New Zealand Zone) and that vessels licensed to fish within the New Zealand Zone will, while operating in the abovementioned areas, respect the conservation and management measures applicable within the New Zealand Zone.” It is not wholly clear what this commitment means because it is dependent on the New Zealand measures; however it does obligate Japan to enforce these measures in the enclaves.
Article VI of the 16 March 1978 agreement between New Zealand and Korea differs slightly from the Japanese arrangement. Korea agreed that only vessels licensed under the agreement may fish in the enclaves and that such vessels will comply with New Zealand laws for conservation and management in the latter's zone “as if such laws and licensing conditions were applicable” in the enclaves. The Korean approach does not obligate Korea to ensure compliance. Neither the Korea or Japanese Agreements necessarily limit fishing in the enclaves unless the economic zone measures themselves have quotas or catch restrictions that apply to the enclaves. The Korean agreement perhaps could be construed to place limits on catches in the enclave but the Japanese provision is more difficult to interpret in this way.
None of these approaches explicitly provides for New Zealand enforcement in the enclaves. They are significant nonetheless in suggesting that DWFN are willing to negotiate solutions to the enclave question. What trade-offs were involved in the New Zealand agreements is not known and they may in any event differ elsewhere.
It is assumed here that highly migratory species of all types -- tuna, billfish, marlin, whatever-- are subject to coastal State jurisdiction in the economic or fisheries zone in the same fashion as other fish found there. The recent, nearly universal extensions of national jurisdiction are in almost all instances drafted to include all fisheries in the fisheries zone, with only a handful of States excepting all or some highly migratory species. Although the United States, which has about 50 percent of the world market for canned tuna, opposes coastal jurisdiction and has domestic law provisions designed to discourage claims to include tuna within extended national jurisdiction, this opposition has not been effective in changing the position of other States although it is frustrating management efforts in both the eastern and western Pacific. It is clear, despite U.S. opposition, that the vast majority of coastal States believe that it is compatible with customary law to extend national jurisdiction over tuna and other highly migratory species.
37 The Magnuson Fishery Conservation and Management Act was amended in 1980 to provide that allocation determinations must be made on the basis of the following:
(a) whether, and to what extent, such nations impose tarrif barriers or nontariff barriers on the importation, or otherwise restrict the market access, of United States fish or fishery products;
(b) whether, and to what extent, such nations are cooperating with the United States in the advancement of existing and new opportunities for fisheries trade, particularly through the purchase of fish or fishery products from United States processors or from United States fishermen;
(c) whether, and to what extent, such nations and the fishing fleets of such nations have cooperated with the United States in the enforcement of United States fishing regulations;
(d) whether, and to what extent, such nations require the fish harvested from the fishery conservation zone for their domestic consumption;
(e) whether, and to what extent, such nations otherwise contribute to, or foster the growth of, a sound and economic United States fishing industry, including minimizing gear conflicts with fishing operations of United States fishermen, and transferring harvesting or processing technology which will benefit the United States fishing industry;
(f) whether, and to what extent, the fishing vessels of such nations have traditionally engaged in fishing in such fishery;
(g) whether, and to what extent, such nations are cooperating with the United States in, and making substantial contributions to fishery research and the identification of fishery resources; and
(h) such other matters as the Secretary of State, in cooperation with the Secretary, deems appropriate.
In light of this brief discussion of applicable customary international law, the following conclusions are warranted.
(1) Coastal States cannot extend full authority over enclosed high seas areas and distant-water fishing nations (DWFN) are entitled to fish there in the exercise of their freedom of fishing on the high seas. Adjacent coastal States are without authority directly to prescribe and to apply policy for DWFN activities in the absence of agreement.
(2) Coastal States are competent to condition access to fisheries subject to coastal jurisdiction within 200 miles upon observance by DWFN of specified conditions or constraints on fishing on the high seas areas beyond. However, such conditions cannot be prescribed directly or enforced beyond national jurisdiction.
(3) Regional agencies established by coastal nations for managing fisheries within and beyond fishery zones have no greater authority than the States creating them and could regulate high seas fishing only as described in (2) above.
(4) Coastal States have no right to a preference or priority on catch, or on proceeds of catch, or on any other form of benefit deriving from fishing in a high seas enclave. However, a coastal State or States might exact a share of the benefits from fish caught in the high seas area as a condition for access to take fish in an area subject to its jurisdiction.
Recent commentators have suggested that the 1974 decision of the ICJ in U.K. v. Iceland is authority for the proposition that the coastal State is entitled to a preference regarding benefits of fisheries outside but adjacent to the coastal State's zone of exclusive jurisdiction.38 This seems to be a misreading of that case and an unsupported extrapolation of the decision. The Court in U.K. v. Iceland sought to determine requirements of customary international law in light of recent international conferences and apparent tendencies and trends in expansion of national jurisdiction. The preferential rights it would recognize were in areas adjacent to a 50 mile exclusive fishing zone but which would now fall within a 200 mile zone. The subsequent nearly universal extension of exclusive fishing jurisdiction to 200 n.miles goes well beyond the decision in U.K. v. Iceland in granting exclusive and sovereign rights to coastal States not just preferential rights. The Court's decision is not authority for asserting that coastal States are now entitled to preferential rights even beyond 200 n.miles.
(5) Insofar as the fisheries of a region, including those in the combined zones of the adjacent States and in the enclave, are to be managed by international agreement, it is necessary that the distant-water States be a party to the agreement if the objective is to impose requirements on its flag vessels in the enclave area. If agreements are negotiated with private associations representing the vessels fishing in the area the flag State itself need not be a party. A private agreement, however, necessarily affects the kind of provisions that can be made for dealing with all vessels of a particular State that may fish or transit an area. A flag State can take responsibility and control for all flag vessels while a private association is in no position to exert such control or assume such responsibility.
The question of coastal and flag State authority over highly migratory species under the draft LOS Convention is complicated but the following propositions are supportable.
First, there is no doubt that a coastal State has full authority to dispose of HMS found within its economic zone. Article 56 confers sovereign rights on the coastal State over all living resources and does not distinguish among them. Article 64 expressly declares that this article and all others in Part V are applicable to highly migratory species.
Second, the coastal State is obliged to “cooperate” with other States fishing for HMS in the region, including fishing within the EEZ and beyond. The aims of this cooperation in the zone area are “to ensure conservation” and “to promote optimum utilization”. However, cooperation for such ends is in the context of full coastal authority and discretion to establish a total allowable catch in its zone, to determine its capacity to harvest the TAC, to establish conservation and management measures in its zone, and to determine who may harvest how much fish in its zone.
38 See Van Dyke and Heftel (1981)
Third, this cooperation to ensure conservation and to promote optimum utilization relates to species both within and beyond the EEZ.
Fourth, the substance of the obligation is to “cooperate” which can be discharged by negotiating with the coastal State to establish management measures. It is not necessarily required that the States concerned reach agreement on conservation or on optimum utilization. Failure to negotiate in good faith would amount to failure to cooperate and constitute a violation of the treaty obligation.39 Failure of good faith negotiations would not be a violation.
Fifth, should coastal States and other States cooperate as best they can but still fail to agree on appropriate measures, it will be for the coastal State to decide upon measures in its zone of jurisdiction. States fishing beyond the zone are entitled to do so once they have genuinely sought to cooperate with coastal States.
Sixth, because the obligation to cooperate relates to species within the EEZ as well as beyond, the coastal State is not wholly free to determine measures applicable in its own zone. The coastal State cannot make any final decisions on conservation and utilization in its zone until its good faith efforts to cooperate do not bear fruit. Such efforts need not be pressed indefinitely but must be pursued for a reasonable time in relation to the requirements of effective management within its zone where it has ultimate authority to manage.
Seventh, flag States fishing in the region are also not free to fish as they please in the region or to adopt their own conservation and utilization measures until they have discharged the duty to cooperate with coastal States on these matters. Article 116 specifically qualifies the flag State's freedom to fish on the high seas by making it subject to the rights, duties, and interests of coastal States provided for in Article 64. After failure of cooperation, flag States may decide upon the measures they wish to pursue in the region beyond 200 n.miles, subject to the obligations of Articles 117 and 119 of the Draft Convention. The most important of these obligations for present purposes is the obligation in 119(2) to contribute and to exchange “available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks” through a competent international organization.
Eighth, the coastal State and other States fishing in the region are required to cooperate but the mechanism for doing so is for them to decide. According to Article 64 of the Draft Convention the required cooperation may be through direct interaction “or through appropriate international organizations”. Article 64 does not require the States concerned to cooperate through an international organization. If the States concerned do not cooperate directly and no appropriate international organization exists for the region, they are directed by Article 64 to create an appropriate organization and to participate in its work.
It is not clear what right there is to fish on the high seas if the DWFN does not “recognize” coastal State rights, etc., but the right appears to be sufficiently qualified that some coastal State measures might be applied without violating the treaty or international law. A dispute over the meaning of Article 116 would be subject to compulsory dispute settlement under Part XV of the treaty.
39 The obligation to cooperate pertains to an area in which coastal and flag States both have rights and interests under the draft treaty. An obligation to negotiate in such a situation seems to flow, as the ICJ declared in U.K. v. Iceland, from “the very nature of the respective rights of the parties.” 1974 ICJ Rep. 32. The respective rights of coastal and flag States are not necessarily the same or even similar to those at stake in U.K. v. Iceland. See also Brown (1977) at 340–43.
In light of the above considerations derived from the provisions of the Draft LOS Convention, the following conclusions are drawn regarding the coastal State's and flag State's authority to regulate fishing for HMS in enclaves.
(1) Coastal States are not entitled unilaterally to extend their authority directly over high seas fishing in an enclave and non-coastal States are entitled to fish there, subject to both recognition of coastal State rights, duties, and interests as provided in Article 64 of the draft Convention and to the obligations of Articles 116–119.
(2) Adjacent coastal States are entitled to demand that distant-water fishing nations negotiate with such States through mechanisms of their mutual choice “to ensure conservation” and “to promote optimum utilization” of HMS in the enclaves and in the EEZ. Such a good faith effort to cooperate is a reasonable condition precedent to high seas fishing for tuna or other HMS, in light of Article 116 of the Draft Convention which provides that the right to fish on the high seas is subject, inter alia, to the rights of the coastal State under Article 64.40 Such cooperation through negotiation requires, in turn, that coastal nations negotiate in good faith regarding conservation and optimum utilization of the HMS found within their economic zones.
(3) Failure of negotiations about the HMS of the region, both within and beyond the EEZ, would leave the coastal State free to adopt its own measures, otherwise in compliance with the Convention, for HMS within the zone. Coastal determination of the TAC, domestic harvesting capacity, allocation of surplus, and the content of its regulations, cannot be challenged under the compulsory dispute settlement provisions of the Convention. On the other hand, actions (or lack thereof) by distant-water fishing States in enclave areas that are considered inconsistent with obligations under the Draft Convention can be challenged; in the event of a dispute over the interpretation or application of the Convention such dispute may be submitted to the compulsory procedures provided in Part XVI.
(4) Article 64 of the draft treaty calls for management of HMS in the region (within and beyond the EEZ) either by direct cooperation between coastal and distant-water States or through international organizations or through both means. Article 64 does not require creation of international organizations to regulate fishing for HMS in a region. The States involved, coastal and distant water, can decide either to cooperate directly or to create one or more international agencies or a combination of these. Whichever route is chosen, the distant-water fishing nations must necessarily be involved in some fashion or obviously there could be no cooperation. However, it does not follow that if the States seek to cooperate through an international organization they are obliged to adopt any specific type. The functions of the organizations mentioned in Article 64 are not described either generally or in detail.41 Accordingly, it appears that so far as the obligations of Article 64 are concerned the States involved are free to specify whatever structure they may want for an organization and they could arrange for the functions of the agency to be performed in a number of different ways.
40 For a similar conclusion see Van Dyke and Heftel (1981) at 43.
41 Although none of the several negotiating texts produced in the LOS negotiations ever provided for details of the international organizations mentioned, the Evensen Group negotiations did consider some. The 6th Revision of the Evensen Group articles on the economic zone (dated 16 April 1975) called for an international organization to formulate standards and recommendations regarding conservation and optimum utilization throughout the region. The coastal State would be obliged to ensure that its laws and regulations were in conformity with the standards but only to take into account the recommendations. The latter would deal with the allowable catch, equitable allocation permits, fees and penalties, while standards would apparently concern conservation. This modest grant of authority to an international organization did not survive negotiations for inclusion in the Informal Single Negotiating Text.
For example, it does not follow from Article 64 that the agency must be given authority to make decisions on either conservation or allocation of benefits. Existing agencies dealing with HMS have no final decision-making authority on such matters; they act by making recommendations to member States on these points. With respect to other matters too, the existing agencies operate differently. Only one (IATTC) has had a research capability. None has been given any enforcement capability. Accordingly, Article 64 type organizations might differ in their objective, structure, and decision-making functions. This lack of provision for organizational structure, objectives, functions, and so forth, makes it evident that States are not required to choose between direct cooperation and an international agency. The States concerned may wish to create an agency with a certain structure, membership, and function and withhold from it any final decision-making authority, leaving ultimate choices to be made by the States themselves meeting separately. While cooperation solely through the international organization route certainly implies that distant-water nations must participate, the arrangements for such participation might be designed in a number of different ways. In the end the means and methods of cooperation will depend on the cooperating parties themselves and result from negotiations in which the bargaining strengths of the parties will be determinative. The provisions of Article 64 and related articles place little or no constraint on this process.
The issues of coastal authority over fishing in high seas enclaves do not admit of simple answers, as the preceding discussion suggests. With the qualifications indicated, however, it appears that, under the draft LOS treaty, in some circumstances a coastal State could be entitled to demand that a DWFN abstain from fishing in an enclave unless its fishing vessels observed certain requirements concerning conservation and management. The major precondition to such a demand would be the failure of the DWFN to cooperate regarding conservation and optimum utilization.
The requirements of Article 64 of the draft LOS Convention seem sufficiently flexible that the States of a region could establish an international agency in which they alone are members to cooperate directly with DWFN regarding enclaves fishing. Such an entity could not initiate regulation of DWFN fishing activities in the enclave but could, as representative of all States of a region, take the position that a non-cooperating DWFN had no right of access to the fisheries in the enclave unless it conformed to specific regulations. Differences over the relative authority of the coastal State, the international institution they design, and DWFN would be subject to compulsory dispute arrangements in the draft LOS treaty.
