THÔNG TIN TÀI LIỆU
The Changing
International Law
of High Seas Fisheries
CAMBRIDGE UNIVERSITY PRESS
Francisco Orrego Vicuña
The Changing International Law
of High Seas Fisheries
This book examines the international law of high seas
®sheries in the light of the negotiations of the Third United
Nations Conference on the Law of the Sea, the state and
international practice that followed, and its in¯uence on the
1995 Straddling Stocks Agreement. The 1995 Agreement and
related developments are discussed in detail, particularly in
terms of conservation and management problems, the
interactions with the exclusive economic zone, and the
introduction of environmental perspectives that have led to
major conceptual changes in the legal approach to ®sheries
and practical solutions in the ®eld. Questions relating to
compliance, enforcement, and dispute settlement are also
discussed.
Francisco Orrego Vicun
Ä
a is a Judge and Vice-President of the
World Bank Administrative Tribunal; and a member of the
panels of conciliators and arbitrators of the International
Centre for the Settlement of Investment Disputes (ICSID). He is
President and Vice-President of the Chilean Delegation to the
Third United Nations Conference on the Law of the Sea; a
member of the Commission for the Settlement of Disputes
between Chile and the United States; a former Senior Legal
Advisor at the Organization of American States; a former
member of the Inter-American Juridical Committee; and a
member of the Chilean commission for the Papal mediation
in the dispute between Chile and Argentina.
He has written extensively on international law, the law of the
sea, Antarctica, and the environment.
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cambridge studies in international and comparative law
This series (established in 1946 by Professors Gutteridge, Hersch Lauterpacht and
McNair) is a forum for studies of high quality in the ®elds of public and private
international law and comparative law. Although these are distinct legal sub-
disciplines, developments since 1946 con®rm their interrelationship.
Comparative law is increasingly used as a tool in the making of law at national,
regional and international levels. Private international law is increasingly
affected by international conventions, and the issues faced by classical con¯icts
rules are increasingly dealt with by substantive harmonization of law under
international auspices. Mixed international arbitrations, especially those
involving state economic activity, raise mixed questions of public and private
international law. In many ®elds (such as the protection of human rights and
democratic standards, investment guarantees, international criminal law)
international and national systems interact. National constitutional
arrangements relating to ``foreign affairs,'' and to the implementation of
international norms, are a focus of attention.
Professor Sir Robert Jennings edited the series from 1981. Following his
retirement as General Editor, an editorial board has been created and
Cambridge University Press has recommitted itself to the series, af®rming its
broad scope.
The Board welcomes works of a theoretical or interdisciplinary character, and
those focusing on new approaches to international or comparative law or
con¯icts of law. Studies of particular institutions or problems are equally
welcome, as are translations of the best work published in other languages.
General Editors James Crawford
Whewell Professor of International Law, University of Cambridge
David Johnston
Regius Professor of Civil Law, University of Cambridge
Editorial Board Professor Hilary Charlesworth University of Adelaide
Mr John Collier Trinity Hall, Cambridge
Professor Lori Damrosch Columbia University Law School
Professor John Dugard Director, Research Centre for
International Law, University of Cambridge
Professor Mary-Ann Glendon Harvard Law School
Professor Christopher Greenwood London School of
Economics
Professor Hein KoÈtz Max-Planck-Institut, Hamburg
Dr Vaughan Lowe Corpus Christi College, Cambridge
Professor D. M. McRae University of Ottawa
Professor Onuma Yasuaki University of Tokyo
Advisory Committee Professor D. W. Bowett QC
Judge Rosalyn Higgins QC
Professor Sir Robert Jennings QC
Professor J. A. Jolowicz QC
Professor Eli Lauterpacht QC
Professor Kurt Lipstein
Judge Stephen Schwebel
A list of books in the series can be found at the end of this volume
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The Changing International Law
of High Seas Fisheries
Francisco Orrego Vicun
Ä
a
PUBLISHED BY CAMBRIDGE UNIVERSITY PRESS (VIRTUAL PUBLISHING)
FOR AND ON BEHALF OF THE PRESS SYNDICATE OF THE UNIVERSITY OF CAMBRIDGE
The Pitt Building, Trumpington Street, Cambridge CB2 IRP
40 West 20th Street, New York, NY 10011-4211, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
http://www.cambridge.org
© Francisco Orrego Vicuña 1999
This edition © Francisco Orrego Vicuña 2003
First published in printed format 1999
A catalogue record for the original printed book is available
from the British Library and from the Library of Congress
Original ISBN 0 521 64193 4 hardback
ISBN 0 511 00913 5 virtual (netLibrary Edition)
Contents
Table of cases page xi
Table of statutes, national legislation, and related documents xiii
Table of treaties xvi
Introduction 1
11 The evolving principles and concepts of international law
in high seas ®shing 3
Freedom of ®shing in the high seas in a historical setting 3
The evolving legal concepts relating to high seas ®shing 8
The freedom of ®shing in the high seas in customary
international law 13
Fishing and conservation in the high seas under the 1958
Geneva conventions 18
The changing role of international law on high seas ®sheries 21
22 The in¯uence of the Third United Nations Conference
on the Law of the Sea in the new regime of high seas
®sheries 24
The emerging principles relating to conservation and
management of living resources within the exclusive
economic zone 26
The species approach and the linkage with high seas issues 31
Salmon ®sheries and the prevailing interest of the state of
origin 32
Marine mammals: furthering the restrictions to the freedom
of exploitation 36
The Convention's limited approach to the straddling stocks
and highly migratory species question 40
vii
Conservation and management of the living resources of the
high seas under the Convention 45
Environmental achievements of the Convention 48
New perspectives in the development of international law 50
33 Developing the international law options for high seas
®sheries conservation and management 53
The growing pressure on high seas ®sheries 53
The global reach of high seas ®sheries overexploitation 55
Implications of the state of high seas ®sheries for
conservation and management regimes 60
The Convention in a static view: protecting the interests of
distant-water ®shing nations 62
The Convention in an evolutionary interpretation: advancing
the interests of coastal states 65
Interpreting the Convention in a spirit of mutual
accommodation 68
The search for new criteria in the light of environmental
concerns 76
44 Trends in contemporary international law and national
legislation and practice on high seas ®sheries issues 79
Trends relating to the conservation and management of
transboundary stocks 80
The leading role of salmon ®sheries arrangements 84
Marine mammals and the increasing emphasis on
conservation 86
Straddling stocks and the development of the role of coastal
states 89
Highly migratory species and the harmonization of coastal
states' rights with international cooperation 96
Other aspects of contemporary international practice
relevant to high seas ®sheries 101
Chile's presential sea approach: a restricted model of coastal
state intervention 107
Argentina's jurisdictional claim: advancing coastal states'
interests 111
Canada's high seas jurisdictional claims: new implications
for international law 112
Advancing international law: a conclusion on contemporary
practice 117
viii contents
55 The United Nations Conference on Straddling Fish Stocks
and Highly Migratory Fish Stocks 119
The preparatory work of the United Nations Conference on
Environment and Development 119
The UNCED deliberations and the convening of the United
Nations Conference on Straddling Fish Stocks and Highly
Migratory Fish Stocks 126
Organization of the conference and the issue of the form of
its outcome 131
Interpretations and problems relating to the de®nitions of
the 1995 Agreement 137
General international law provisions and ®nal clauses 141
66 Conservation and management of ®sheries in the high
seas in the context of the evolving principles of
international environmental law 145
The principle of sustainable development and the
conservation of straddling ®sh stocks and highly
migratory ®sh stocks 145
The principle of preventive action in the context of the
general principles of conservation and management of
high seas ®sheries 153
The emergence of the precautionary principle and the
question of its application to high seas ®sheries
management 156
Developing the precautionary approach in high seas
®sheries 160
The principle of informed decision-making in the context of
high seas ®sheries 164
77 Ecosystem management and the legal interactions between
areas under national jurisdiction and the high seas 171
The legal relationship between the 1995 Agreement and
the Convention 172
Geographical ambit of application of the 1995 Agreement 175
The issue of compatibility of conservation and management
measures in the high seas and in areas under national
jurisdiction 183
Nature and extent of the duty to cooperate in establishing
compatible measures 188
Ecosystem management as applied to enclosed and semi-
enclosed seas and other areas of the high seas 194
contents ix
[...]... the Law of the Sea 3 4 changing international law of high seas ®sheries such as state jurisdiction over the contiguous zone or later over the continental shelf and the exclusive economic zone, had to be made compatible with the freedom of the high seas to a given extent if they were to become admitted into the body of international law This is of course quite natural because classic international law. .. obstacles emerging from the ineffectiveness of international cooperation.40 The freedom of ®shing in the high seas in customary international law The freedom of ®shing in the high seas became well established in customary international law in spite of the reservations that the concept had motivated since early times Customary international law did little more than to state the existence of the principle; it... such changes was that the principle of the freedom of the high seas was subject, ®rst, to some control of the abuse of rights and, secondly, to a test of compatibility with the general interest Most of the discussion that has taken place on the law of the sea has concentrated on the question of expanded coastal state jurisdiction Given the in¯uence of the new maritime areas on the traditional rules... to the meaning of the principle of the freedom of ®shing in the high seas The latter would no longer be conceived in an absolute manner but subject to the right of other states and participants to undertake ®shing activities It should also be noted that, in the view of in¯uential writers of international law, while the high seas were not subject to national appropriation, neither did they belong to the. .. been structured on the existence of only two broad types of maritime areas: the territorial sea and the high seas. 2 The manner in which that compatibility could be attained depended in essence on the content attributed to the principle of the freedom of the high seas As evidenced by the very evolution of international law the meaning and extent of such a principle can change with the different economic,... is the principle of the freedom of ®shing in the high seas Many of the changes experienced in the context of this international legal process during the twentieth century have been founded not so much in the creation of new principles and concepts as in the interpretation and reformulation of traditional rules of international law Historical linkages have thus kept their in¯uence in the shaping of. .. implications and consequences of the change envisaged The different interests of states have of course played a major role in this changing legal context All modern developments on the law of the sea have been closely connected to the principle of the freedom of the high seas New concepts, 1 United Nations Convention on the Law of the Sea, 10 December 1982, UN Doc A/CONF 62/122, International Legal Materials,... makes the difference between the development of an orderly regime under the aegis of international cooperation and the search for solutions to the existing problems solely under individual domestic action of each state or group of states concerned 1 The evolving principles and concepts of international law in high seas ®shing Freedom of ®shing in the high seas in a historical setting The contemporary law. .. associated with problems of conservation in view of the unrestricted activities of high seas ®shing vessels Such claims were legitimate and they brought the interest of coastal states in line with the interest of distant-water ®shing nations Until then the latter nations and not the international community as a whole were the sole bene®ciaries of the freedom of ®shing in the high seas as understood under... were made during the Third United Nations Conference on the Law of the Sea to apply the common heritage concept to the waters overlying the seabed beyond the limits of national jurisdiction,26 and distinguished writers of international law have expressed their concern that such a concept might be made applicable to high seas ®sheries.27 Despite the fact that the Convention on the Law of the Sea makes . The Changing
International Law
of High Seas Fisheries
CAMBRIDGE UNIVERSITY PRESS
Francisco Orrego Vicuña
The Changing International Law
of High Seas Fisheries
This. examines the international law of high seas
®sheries in the light of the negotiations of the Third United
Nations Conference on the Law of the Sea, the state
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