- Email: [email protected]
Law of the sea institute annual meeting
etc), based largely on the biofogitaf advice from ICES, which in turn comes from a set of working groups studying individual species. These proposals are then reviewed by member countries, and it is an accepted part of the management game that the sole purpose of this review is for countries (and more specifically their fishing industries) to argue for weaker measures (eg higher TACs). Any doubts that can be thrown on the scientific advice helps in this argument. The multi-species model, by throwing doubts on some of the received wisdoms on which management policies have been based for several decades, certainly makes fife harder for managers, and more difficult for them to get measures accepted. The objection to this view by managers is that it seems possible, if not probable, that the received wisdom, as it concerns some management measures directed at cod and other predators, may not be right. Continuing some of the present strategies, eg towards the use of much larger mesh
sizes, may make matters worse not better. On the other hand, under the present arrangements for reaching management decisions, raising the biological questions about species interactions will render the biological advice fess clear, and make it more likely that no decisions at all will be reached. This will certainly make things worse. The answer, therefore, may lie less with devising better and more realistic biological models, than with devising better methods of reaching decisions. Farticuiarly vafuable would be changes that force the industry to look at the mediumor long-term effects of measures (often pleasant), rather than at the immediate effects (usually unpleasant). That is the subject for another meeting!
John Gulland, FRS Renewable Resources Assessment Group Imperial College of Science, Technology and medicines London, UK
Implementing the Convention Law of the Sea Institute Annual Meeting, 12-75 June 7989
Opening the 23rd Annual Meeting of the Law of the Sea Institute (LSI), conference co-chairman Alfred Soons of the Netherlands Institute for the Law of the Sea (NILOS) welcomed over 170 participants to the gathering. The theme of this year’s meeting was ‘Implementation of the Law of the Sea Convention through International Institutions’. Discussions of particular interest are highlighted below.
General aspects Expanding on the general theme of the range of tasks performed by government agencies and nongovernmental organizations (NGOs), Mr Tuflio Treves of the Italian Permanent Mission to the UN pointed to the quasi-Iegislulive role to be assumed by international organizations (10s) under articles of the LOS treaty as
362
~oordw~k aan Zee, The Netherlands,
well as the 10s’ part in immediate implementation of the treaty. The Preparatory Commission for the Law of the Sea Treaty, for example, iflustrates the function of an institution in ‘implementation before the treaty enters into force’ through development of the regulations for deep seabed mining. The ability of 10s to provide a neutral forum for discussions and temper national claims that go beyond what is authorized under the treaty was also stressed. Barbara Kwiatkowska, associate director of NILOS, noted that the fate of the treaty to a large extent rests on the ability of developing countries to implement it. Regional organizations will play a crucial role in assisting developing countries in implementation of the convention which is of utmost importance to nations as a framework for nianagin~ utilization of
ocean resources. Kwiatkowska emphasized that the universal objectives must be to further both cooperation among all nations and seffsufficiency in the Third World. Industrialized countries must learn from the developing world as well as vice versa. To illustrate the potential for flexible, regional multi-sectoraf management, she informed the meeting of the work of the Indian Ocean Marine Affairs Cooperation Conference (IOMAC). Lee Kimball, executive director of the Council on Ocean Law spoke of the distinctive versatility of NGOs in developing and responding to new challenges brought about by impfementation of the treaty. In keeping with previous speakers’ statements, she also stressed the invaluable role of indigenous Third World NGOs. Kimball pointed to the lack of attention paid to implementation issues by international lawyers, warning that such issues will be especially critical in facing the threat of global warming.
Navigation Navigation issues of primary interest included discussion of port state implementation pursuant to Article 21 l(3) of the LOS Convention. law of the sea issues in international civil aviation, a discussion of IMO’s role in designation of archipelagic sealanes, and the establishment of collaborative working groups among different UN agencies to deal with subjects of mutual concern. There was also substantial discussion of which of the LOS Convention articles on navigation and the different IMO treaties’ provisions constitute customary international law and/or ‘generally accepted’ international rules and standards as referred to in the LOS Convention. One commentator emphasized that even though many states had ratified a number of the IMO conventions, they did not have the technical competence to meet the standards established. Mario Valenzuefa of IMO argued that a port state does not have the right to impose on ships entering its ports more stringent requirements than those in the detailed IMO regulatory conventions that meet the criterion of ‘generally accepted’ interna-
MARINE
POLICY July
1990
Conference
tional rules and standards as long as both the port state and the flag state of the vessel are parties to the relevant IMO convention. In his view, the port state right in Article 211(3) does not obtain when this special treaty relation exists between the port state and the flag state. He stated that entry into force of increasingly more stringent standards pursuant to the IMO regulatory conventions is a relatively recent phenomenon, and that it was never intended that port states could in effect derogate from the rules and standards in these conventions, whose objective is universal application to facilitate worldwide navigation.
Port state control Valenzuela described the views of the IJS and Canadian governments voiced in 1978 that port states or coastal states do have the right to set more stringent requirements, but noted that these preceded entry into force of the main IMO regulatory conventions as well as the adoption of the 1982 LOS Convention and its Article 21 that restricts the right of the coastal state to establish higher standards for design, construction, manning and equipment for vessels in innocent passage through the territorial sea. Valenzuela also disputed Tullio Treves’ contention in an earlier paper that the 1982 EEC Memorandum of Understanding (MOU) on Port State Control is an example of the type of regional port state arrangement contemplated in Article 211(3). Valenzuela argued that the MOU does not purport to establish ‘particular requirements’ higher than the ‘generally accepted’ requirements of the IMO regulatory conventions. He affirmed, however, that the EEC MOU and similar developments in the USA and Japan, the Eastern European nations, and Australia have had a substantial impact on acceptance by most flag states of IMO conventions, because they do not want to lose access to major international ports due to substandard ships. On a related topic, Mr Kasoulides of the London School of Economics in his presentation on port state enforcement commented that the 1986 Con-
MARINE
POLICY July 1990
vention on Conditions for Registration of Ships gives a predominant role to flag stage jurisdiction, reducing the possibilities for port state jurisdiction. In his view, the developing nations ‘won’ in obtaining this objective, although he stressed that what is required is cooperation between developed and developing nations through training and technical assistance and financial aid so that all nations may meet the required standards. If the developed nations rely only on leverage to enforce requirements against developing nation vessels, no one wins. With respect to overflight, Armand de Mestral of McGill University reviewed the main points raised in the International Civil Aviation Organization’s (ICAO) 1987 study of the impacts of the LOS Convention. In his view the most important question from a practical point of view is whether coastal states may regulate EEZ overflight or whether ICAO rules must apply to EEZ airspace as to the high seas, without the coastal state right to file differences to the ICAO rules as they may over domestic territory. Most states accept the latter view, and ICAO has to date not sought to take a position on the status of the EEZ. De Mestral also noted in his presentation that the net effect of the archipelagic waters designation in the LOS Convention is that insofar as the high seas are reduced by such designations, the mandatory apphcability of ICAO rules is also reduced in area. On the other hand, archipelagic sealanes overflight, as with overflight of international straits, becomes specifically subject to ICAO rules. He mentioned that unlike the comparable IMO function, ICAO has no role in approval of air traffic separation schemes. Ambassador Hasjim Djalal of Indonesia delivered a stinging commentary on archipelagic sealanes and the roles of IMO and ICAO. Djalal emphasized his delegation’s efforts to distinguish archipelagic sealanes from international straits during the UNCLOS negotiations and as a result of differing reference to freedom and right of navigation in the respective articles and differing qualifying
reports
phrases. He denied categorically that ICAO had anything to say with respect to overflight of sealanes, since the LOS Convention articles grant full sovereignty to the coastal state over archipelagic waters and airspace. He denied that the IMO was ever identified as the competent international organization in relation to sealanes. Djalal claimed that international straits only occur outside archipelagic waters and that Indonesia does not accept therefore that the passage of Sunda between Sumatra and Java is an international strait. Ton Ijlstra of NILOS in his presentation concentrated on IMO efforts to draft guidelines and standards for removal of abandoned or disused offshore installations and structures. He described the ineffectiveness of interagency coordination between IMO and the UN Food and Agriculture Organisation (FAO) and United Nations Environment Program (UNEP) in reviewing the guidelines, expressing the hope that as a result of this experience more effective interagency procedures or working groups will be established in the future. He cited as an example the joint FAO/ ILO/IMO meeting of consultants on safety of fishing vessels, which elaborated the Safety of Fishing Vessels Convention. Another example would be the joint IMOlUNCTAD group of experts on maritime liens and mortgages, which produced the convention to be adopted in September 1989. His paper also raised the question of whether non-compliance with the obligation in LOS Convention article 53 to submit archipelagic sealanes proposals and traffic separation schemes to a competent international organization would result in situation in which their establishment is not legal or valid.
Living resources Several speakers addressed overfishing in straddling stocks and driftnet fisheries. Competition over depleted stocks has led to domestic political pressures on coastal states to exert greater authority than permitted under the provisions of the 1982 LOS Convention in order effectively to
conserve and manage these fisheries. Suggestions were made as to how intergovernmental fisheries management organizations and their members might contribute to solving these problems. Judith Swan of the South Pacific Forum Fisheries Agency (FFA) described how coastal nations can effectively band together to negotiate better terms and control foreign fishing. Minimum terms and conditions for access developed by the FFA and incorporated into the 1988 US/FFA treaty on fisheries have been presented to both Latin American Pacific nations and western Pacific and southeast Asian nations to determine whether they can be more widely adopted in relation to distant-water fishing states. MS Swan noted that talks commenced with Japan in January 1989 on the possibility of developing a I~ultilateral fisherits agreement, and that the Soviet Union in April 1989 requested talks on the same subject.
Driftnet fishing In relation to the crisis emerging in driftnet fishing for Albacore tuna on the high seas beyond the area covered by the South Pacific agreement, FFA states have to date had two meetings with Taiwan, Japan, and South Korea on this subject. The FFA states are developing several measures to enhance their bargaining power and compliance with fishing agreements, including computerized data on fish prices worldwide in order to negotiate fair prices, stringent reporting requirements fol fishing states, and the development of a computerized register of fishing vessels in which those in non-compliance would be blacklisted. The FFA has also produced a manual on prosecution of violations before, during, and after a trial, and is assisting coastal states to draw up enforcement provisions in national legislation that cover licensing, reporting, observers, and evidentiary provisions that utilize new technologies such as satellite navigation systems and transponders. Another unique element in the US/ FFA fisheries agreement is the use of provisional treaty lines (PTLs) as
364
boundaries. These rely on the equidistance principle to establish maritime boundaries between the FFA states so that revenues based on where the fish are caught can be allocated even though not all of these boundaries have been settled. The provisional boundaries are also necessary to clarify enforcement authority under the agreement. Mr Bernard Applebaum of Canada described the North Atlantic Fisheries Management Organization (NAFO) established by a 1978 treaty to help control pressures on straddling stocks. Today these pressures result from fishing by the EEC and most particularly its recent members, Spain and Portugal, as well as fishing by vessels flying non-NAFO member flags. Since their entry the EEC has frequently resorted to the objection procedure against conservation measures adopted at annual NAFO Comnlission meetings. In Applebaum’s view this situation brings into question the viability of NAFO, and he notes that similar pressures are affecting similar organizations elsewhere. He concludes that the coastal state has the right to take unilateral management measures to conserve straddling stocks beyond 200 miles when agreement is not possible between the coastal state and those fishing these stocks. He also concludes that in situations where an international organization established to manage fisheries in high seas areas has promulgated conservation regulations for the area concerned, and the available catches have been fully allocated to members of the organization, flag states have the duty to prevent their nationals from fishing in these high seas areas.
Migratory species A presentation by Judith Johnson, secretary of the Bonn Convention on the Conservation of Migratory Species of Wild Animals, highlighted the possibility of utilizing this treaty as a means to develop cooperative arrangements on straddling stocks and other migratory species. The Bonn Convention also covers habitat protection. This Convention is one option. along with the International Whaling
Convention and the relevant mandate of the Convention on the Conservation of Antarctic Marine Living Resources in the Southern Ocean for dealing with the present gap with respect to management regimes for small cetaceans. Lee Stevens of the Joint Oceanographic Institutions and Dr Aprilani Soegiarto of the Indonesian Institute of Sciences addressed one major theme of this session: the need to harmonize implementation of the consent regime in the LOS Convention to reduce the burden on researching states and at the same time guarantee and expedite the availability of data to the international scientific research community. Both also said that the joint meeting planned by the UN Office of Ocean Affairs and the LOS and the Intergovernmental Oceanographic Commission (IOC) in September 1989 could make significant contributions toward harmonizing state practice. Lee Stevens advocated that observer status be granted to representatives of the scientific community at the UN meeting. When informed that the International Council for the Exploration of the Sea (ICES), the Woods Hole Oceanographic Institution (WHOI), and the Coordinating Committee for Offshore Prospecting (CCOP) had been invited to participate, panel chairman Warren Wooster commented that no member of the scientific community could have come up with such a list. A second theme of this session was presented by H. Postma of the Netherlands Institute for Sea Research and Dr Gunter Kullenberg, secretary of the Intergovernmental Oceanographic Commission (IOC): the importance of international cooperation in scientific research and monitoring if we are to understand global natural processes and the effects of human activities on them. Dr Kullenberg stressed the need to improve the dialogue between different UN organizations in this regard. He suggested that rational coordination might be a reasonable first step, where a regional focal point could serve to knit together different national activities, actions, and organizations in the development of research and
MARINE
POLICY July 1990
Conference reports
monitoring programmes and data exchange mechanisms, Both Dr Postma and Dr Soegiarto elaborated on a third theme, the importance of involving developing nations in marine science programmes and the prominent role of ocean science and its application in rational development of marine resources and marine environmental protection in zones under national jurisdiction. Dr Postma noted that the LOS Convention research regime had helped involve in marine affairs scientists from a larger number of nations, and Dr Soegiarto described IOC’s programmes in training and technical assistance and its regional subsidiary bodies. The panel explored in depth the concept of ‘generally accepted rules and standards’ which is used in various forms throughout the treaty. This variety it was argued gives rise to uncertainty regarding how the terms will be interpreted. The key advantages of regional organizations in addressing protection of the environment were summarized as including, among other benefits, the ability to focus on unique context of pollution problems, to share technology close to the locus of activities, and to encourage participation by a larger number of states. Heightened attention, it was suggested, should be paid to the need to promote the selfsufficiency of regional organizations by more fully incorporating the private sector in pianning and implementing sustainable devetopment projects. In reference to the Caribbean region in particular Salvano Bricefio of the UNEP Caribbean Environment Program took note of the extreme difficulties associated with coordinating countries with very diverse cultures and levels of economic development. He affirmed Dr Kwiatkowska’s statement during the first panel that implementation of the LOS Convention Iargeiy depends on whether adequate and appropriate assistance will be rendered to the developing countries. Citing the World Commission on Environment and Development (the Brundtland Commission) report, Bricefiv added that there is widespread recognition of the im-
MARINE
POLICY July 1990
portance of management of the oceans commons. At the same time the Third World countries must emphasize development of ocean resources and move towards improving their economic situation.
Dispute settlement The final panel discussed the growing array of institutions available for resolving conflicts between states regarding ocean uses. Analysed were developments in dispute settlement law including boundary delimitations coming out of the work of the International Court of Justice and other tribunals. With regard to the role of the KS, the discussion centred on the varying degree of emphasis placed on precedents in international tribunals, and the effect of tribunal decisions and conventional law on the consolidation of customary law. The panel also noted that although certain concepts may have matured into custom, the detailed regimes pertaining to such concepts probably have not reached that level of recognition. In addition, the view that the benefits of the nonseabed portions of the treaty may be secured under customary law was criticized in that the detailed dispute settlement provisions of the convention and the detailed and balanced regime which defines the EEZ concept are not likely to become fully integrated into customary law. Francisco Orrego Vicuna of the University of Chile carefully followed the evolution of IC.3 decisions on boundary disputes rejecting the principle of equidistance and applying instead the concept of equity. He asserted that the ICJ and other tribunals have been central in producing rules of general application in determining equitable solutions. He went on to describe the emergence and elaboration of the concept of basis of entitlement in response to the need to address delimitation of exclusive economic zone claims. Natural prolongation, geomorphologic factors, and distance considerations were more pertinent to the resolution of continental shelf claims, although in such disputes, they are no longer considered appropriate bases for claims of entitlement. Orre-
go pointed to a trend towards settling on a single maritime boundary for the continental shelf and EEZ, but noted that although the principles and criteria for decision are becoming clearer, the weight given to these factors remains somewhat more arbitrary. Satya Nandan, Under-Secretary General and Special Representative for the Law of the Sea, delivered a luncheon address calling attention to the limited time left to overcvme the obstacles to widespread acceptance of the 1982 treaty and in particular urging the USA to enter into negotiations before the treaty enters into force. Taking up, in turn, each of the primary objections to the seabed mining regime expressed by the United States government, Nandan suggested possible ways to address the concerns of industrialized countries. He also stated that any agreed upon fixes to the treaty could be incorporated into a protocol which could enter into force simultaneously with the Convention. Nandan closed by giving a positive assessment of the negotiating atmosphere at the Preparatory Commission, reporting that members have displayed flexibility, pragmatism and a willingness to accommodate. In a second luncheon speech, Jaap Walkate of the Netherlands and chairman of the Commission’s subgroup on the deep-seabed mining code, stressed that his two primary concerns in revising draft mining regulations with the assistance of the secretariat staff are (1) to produce a technically workabie code, and (2) to achieve universal acceptability in keeping with the spirit of the Convention if not precisely the letter. He reiterated his suggestion made in December 1988 that one could think of casting the mining code in the form of a protocol to the Convention. MT Walkate stated that both the economic needs of the developing nations and the needs of the industrial nations for legal security and protection of investment must be taken account of.
Miranda Wecker on Ocean Law W~sbi~g~o~, DC, USA
Coiincil
365
sizes, may make matters worse not better. On the other hand, under the present arrangements for reaching management decisions, raising the biological questions about species interactions will render the biological advice fess clear, and make it more likely that no decisions at all will be reached. This will certainly make things worse. The answer, therefore, may lie less with devising better and more realistic biological models, than with devising better methods of reaching decisions. Farticuiarly vafuable would be changes that force the industry to look at the mediumor long-term effects of measures (often pleasant), rather than at the immediate effects (usually unpleasant). That is the subject for another meeting!
John Gulland, FRS Renewable Resources Assessment Group Imperial College of Science, Technology and medicines London, UK
Implementing the Convention Law of the Sea Institute Annual Meeting, 12-75 June 7989
Opening the 23rd Annual Meeting of the Law of the Sea Institute (LSI), conference co-chairman Alfred Soons of the Netherlands Institute for the Law of the Sea (NILOS) welcomed over 170 participants to the gathering. The theme of this year’s meeting was ‘Implementation of the Law of the Sea Convention through International Institutions’. Discussions of particular interest are highlighted below.
General aspects Expanding on the general theme of the range of tasks performed by government agencies and nongovernmental organizations (NGOs), Mr Tuflio Treves of the Italian Permanent Mission to the UN pointed to the quasi-Iegislulive role to be assumed by international organizations (10s) under articles of the LOS treaty as
362
~oordw~k aan Zee, The Netherlands,
well as the 10s’ part in immediate implementation of the treaty. The Preparatory Commission for the Law of the Sea Treaty, for example, iflustrates the function of an institution in ‘implementation before the treaty enters into force’ through development of the regulations for deep seabed mining. The ability of 10s to provide a neutral forum for discussions and temper national claims that go beyond what is authorized under the treaty was also stressed. Barbara Kwiatkowska, associate director of NILOS, noted that the fate of the treaty to a large extent rests on the ability of developing countries to implement it. Regional organizations will play a crucial role in assisting developing countries in implementation of the convention which is of utmost importance to nations as a framework for nianagin~ utilization of
ocean resources. Kwiatkowska emphasized that the universal objectives must be to further both cooperation among all nations and seffsufficiency in the Third World. Industrialized countries must learn from the developing world as well as vice versa. To illustrate the potential for flexible, regional multi-sectoraf management, she informed the meeting of the work of the Indian Ocean Marine Affairs Cooperation Conference (IOMAC). Lee Kimball, executive director of the Council on Ocean Law spoke of the distinctive versatility of NGOs in developing and responding to new challenges brought about by impfementation of the treaty. In keeping with previous speakers’ statements, she also stressed the invaluable role of indigenous Third World NGOs. Kimball pointed to the lack of attention paid to implementation issues by international lawyers, warning that such issues will be especially critical in facing the threat of global warming.
Navigation Navigation issues of primary interest included discussion of port state implementation pursuant to Article 21 l(3) of the LOS Convention. law of the sea issues in international civil aviation, a discussion of IMO’s role in designation of archipelagic sealanes, and the establishment of collaborative working groups among different UN agencies to deal with subjects of mutual concern. There was also substantial discussion of which of the LOS Convention articles on navigation and the different IMO treaties’ provisions constitute customary international law and/or ‘generally accepted’ international rules and standards as referred to in the LOS Convention. One commentator emphasized that even though many states had ratified a number of the IMO conventions, they did not have the technical competence to meet the standards established. Mario Valenzuefa of IMO argued that a port state does not have the right to impose on ships entering its ports more stringent requirements than those in the detailed IMO regulatory conventions that meet the criterion of ‘generally accepted’ interna-
MARINE
POLICY July
1990
Conference
tional rules and standards as long as both the port state and the flag state of the vessel are parties to the relevant IMO convention. In his view, the port state right in Article 211(3) does not obtain when this special treaty relation exists between the port state and the flag state. He stated that entry into force of increasingly more stringent standards pursuant to the IMO regulatory conventions is a relatively recent phenomenon, and that it was never intended that port states could in effect derogate from the rules and standards in these conventions, whose objective is universal application to facilitate worldwide navigation.
Port state control Valenzuela described the views of the IJS and Canadian governments voiced in 1978 that port states or coastal states do have the right to set more stringent requirements, but noted that these preceded entry into force of the main IMO regulatory conventions as well as the adoption of the 1982 LOS Convention and its Article 21 that restricts the right of the coastal state to establish higher standards for design, construction, manning and equipment for vessels in innocent passage through the territorial sea. Valenzuela also disputed Tullio Treves’ contention in an earlier paper that the 1982 EEC Memorandum of Understanding (MOU) on Port State Control is an example of the type of regional port state arrangement contemplated in Article 211(3). Valenzuela argued that the MOU does not purport to establish ‘particular requirements’ higher than the ‘generally accepted’ requirements of the IMO regulatory conventions. He affirmed, however, that the EEC MOU and similar developments in the USA and Japan, the Eastern European nations, and Australia have had a substantial impact on acceptance by most flag states of IMO conventions, because they do not want to lose access to major international ports due to substandard ships. On a related topic, Mr Kasoulides of the London School of Economics in his presentation on port state enforcement commented that the 1986 Con-
MARINE
POLICY July 1990
vention on Conditions for Registration of Ships gives a predominant role to flag stage jurisdiction, reducing the possibilities for port state jurisdiction. In his view, the developing nations ‘won’ in obtaining this objective, although he stressed that what is required is cooperation between developed and developing nations through training and technical assistance and financial aid so that all nations may meet the required standards. If the developed nations rely only on leverage to enforce requirements against developing nation vessels, no one wins. With respect to overflight, Armand de Mestral of McGill University reviewed the main points raised in the International Civil Aviation Organization’s (ICAO) 1987 study of the impacts of the LOS Convention. In his view the most important question from a practical point of view is whether coastal states may regulate EEZ overflight or whether ICAO rules must apply to EEZ airspace as to the high seas, without the coastal state right to file differences to the ICAO rules as they may over domestic territory. Most states accept the latter view, and ICAO has to date not sought to take a position on the status of the EEZ. De Mestral also noted in his presentation that the net effect of the archipelagic waters designation in the LOS Convention is that insofar as the high seas are reduced by such designations, the mandatory apphcability of ICAO rules is also reduced in area. On the other hand, archipelagic sealanes overflight, as with overflight of international straits, becomes specifically subject to ICAO rules. He mentioned that unlike the comparable IMO function, ICAO has no role in approval of air traffic separation schemes. Ambassador Hasjim Djalal of Indonesia delivered a stinging commentary on archipelagic sealanes and the roles of IMO and ICAO. Djalal emphasized his delegation’s efforts to distinguish archipelagic sealanes from international straits during the UNCLOS negotiations and as a result of differing reference to freedom and right of navigation in the respective articles and differing qualifying
reports
phrases. He denied categorically that ICAO had anything to say with respect to overflight of sealanes, since the LOS Convention articles grant full sovereignty to the coastal state over archipelagic waters and airspace. He denied that the IMO was ever identified as the competent international organization in relation to sealanes. Djalal claimed that international straits only occur outside archipelagic waters and that Indonesia does not accept therefore that the passage of Sunda between Sumatra and Java is an international strait. Ton Ijlstra of NILOS in his presentation concentrated on IMO efforts to draft guidelines and standards for removal of abandoned or disused offshore installations and structures. He described the ineffectiveness of interagency coordination between IMO and the UN Food and Agriculture Organisation (FAO) and United Nations Environment Program (UNEP) in reviewing the guidelines, expressing the hope that as a result of this experience more effective interagency procedures or working groups will be established in the future. He cited as an example the joint FAO/ ILO/IMO meeting of consultants on safety of fishing vessels, which elaborated the Safety of Fishing Vessels Convention. Another example would be the joint IMOlUNCTAD group of experts on maritime liens and mortgages, which produced the convention to be adopted in September 1989. His paper also raised the question of whether non-compliance with the obligation in LOS Convention article 53 to submit archipelagic sealanes proposals and traffic separation schemes to a competent international organization would result in situation in which their establishment is not legal or valid.
Living resources Several speakers addressed overfishing in straddling stocks and driftnet fisheries. Competition over depleted stocks has led to domestic political pressures on coastal states to exert greater authority than permitted under the provisions of the 1982 LOS Convention in order effectively to
conserve and manage these fisheries. Suggestions were made as to how intergovernmental fisheries management organizations and their members might contribute to solving these problems. Judith Swan of the South Pacific Forum Fisheries Agency (FFA) described how coastal nations can effectively band together to negotiate better terms and control foreign fishing. Minimum terms and conditions for access developed by the FFA and incorporated into the 1988 US/FFA treaty on fisheries have been presented to both Latin American Pacific nations and western Pacific and southeast Asian nations to determine whether they can be more widely adopted in relation to distant-water fishing states. MS Swan noted that talks commenced with Japan in January 1989 on the possibility of developing a I~ultilateral fisherits agreement, and that the Soviet Union in April 1989 requested talks on the same subject.
Driftnet fishing In relation to the crisis emerging in driftnet fishing for Albacore tuna on the high seas beyond the area covered by the South Pacific agreement, FFA states have to date had two meetings with Taiwan, Japan, and South Korea on this subject. The FFA states are developing several measures to enhance their bargaining power and compliance with fishing agreements, including computerized data on fish prices worldwide in order to negotiate fair prices, stringent reporting requirements fol fishing states, and the development of a computerized register of fishing vessels in which those in non-compliance would be blacklisted. The FFA has also produced a manual on prosecution of violations before, during, and after a trial, and is assisting coastal states to draw up enforcement provisions in national legislation that cover licensing, reporting, observers, and evidentiary provisions that utilize new technologies such as satellite navigation systems and transponders. Another unique element in the US/ FFA fisheries agreement is the use of provisional treaty lines (PTLs) as
364
boundaries. These rely on the equidistance principle to establish maritime boundaries between the FFA states so that revenues based on where the fish are caught can be allocated even though not all of these boundaries have been settled. The provisional boundaries are also necessary to clarify enforcement authority under the agreement. Mr Bernard Applebaum of Canada described the North Atlantic Fisheries Management Organization (NAFO) established by a 1978 treaty to help control pressures on straddling stocks. Today these pressures result from fishing by the EEC and most particularly its recent members, Spain and Portugal, as well as fishing by vessels flying non-NAFO member flags. Since their entry the EEC has frequently resorted to the objection procedure against conservation measures adopted at annual NAFO Comnlission meetings. In Applebaum’s view this situation brings into question the viability of NAFO, and he notes that similar pressures are affecting similar organizations elsewhere. He concludes that the coastal state has the right to take unilateral management measures to conserve straddling stocks beyond 200 miles when agreement is not possible between the coastal state and those fishing these stocks. He also concludes that in situations where an international organization established to manage fisheries in high seas areas has promulgated conservation regulations for the area concerned, and the available catches have been fully allocated to members of the organization, flag states have the duty to prevent their nationals from fishing in these high seas areas.
Migratory species A presentation by Judith Johnson, secretary of the Bonn Convention on the Conservation of Migratory Species of Wild Animals, highlighted the possibility of utilizing this treaty as a means to develop cooperative arrangements on straddling stocks and other migratory species. The Bonn Convention also covers habitat protection. This Convention is one option. along with the International Whaling
Convention and the relevant mandate of the Convention on the Conservation of Antarctic Marine Living Resources in the Southern Ocean for dealing with the present gap with respect to management regimes for small cetaceans. Lee Stevens of the Joint Oceanographic Institutions and Dr Aprilani Soegiarto of the Indonesian Institute of Sciences addressed one major theme of this session: the need to harmonize implementation of the consent regime in the LOS Convention to reduce the burden on researching states and at the same time guarantee and expedite the availability of data to the international scientific research community. Both also said that the joint meeting planned by the UN Office of Ocean Affairs and the LOS and the Intergovernmental Oceanographic Commission (IOC) in September 1989 could make significant contributions toward harmonizing state practice. Lee Stevens advocated that observer status be granted to representatives of the scientific community at the UN meeting. When informed that the International Council for the Exploration of the Sea (ICES), the Woods Hole Oceanographic Institution (WHOI), and the Coordinating Committee for Offshore Prospecting (CCOP) had been invited to participate, panel chairman Warren Wooster commented that no member of the scientific community could have come up with such a list. A second theme of this session was presented by H. Postma of the Netherlands Institute for Sea Research and Dr Gunter Kullenberg, secretary of the Intergovernmental Oceanographic Commission (IOC): the importance of international cooperation in scientific research and monitoring if we are to understand global natural processes and the effects of human activities on them. Dr Kullenberg stressed the need to improve the dialogue between different UN organizations in this regard. He suggested that rational coordination might be a reasonable first step, where a regional focal point could serve to knit together different national activities, actions, and organizations in the development of research and
MARINE
POLICY July 1990
Conference reports
monitoring programmes and data exchange mechanisms, Both Dr Postma and Dr Soegiarto elaborated on a third theme, the importance of involving developing nations in marine science programmes and the prominent role of ocean science and its application in rational development of marine resources and marine environmental protection in zones under national jurisdiction. Dr Postma noted that the LOS Convention research regime had helped involve in marine affairs scientists from a larger number of nations, and Dr Soegiarto described IOC’s programmes in training and technical assistance and its regional subsidiary bodies. The panel explored in depth the concept of ‘generally accepted rules and standards’ which is used in various forms throughout the treaty. This variety it was argued gives rise to uncertainty regarding how the terms will be interpreted. The key advantages of regional organizations in addressing protection of the environment were summarized as including, among other benefits, the ability to focus on unique context of pollution problems, to share technology close to the locus of activities, and to encourage participation by a larger number of states. Heightened attention, it was suggested, should be paid to the need to promote the selfsufficiency of regional organizations by more fully incorporating the private sector in pianning and implementing sustainable devetopment projects. In reference to the Caribbean region in particular Salvano Bricefio of the UNEP Caribbean Environment Program took note of the extreme difficulties associated with coordinating countries with very diverse cultures and levels of economic development. He affirmed Dr Kwiatkowska’s statement during the first panel that implementation of the LOS Convention Iargeiy depends on whether adequate and appropriate assistance will be rendered to the developing countries. Citing the World Commission on Environment and Development (the Brundtland Commission) report, Bricefiv added that there is widespread recognition of the im-
MARINE
POLICY July 1990
portance of management of the oceans commons. At the same time the Third World countries must emphasize development of ocean resources and move towards improving their economic situation.
Dispute settlement The final panel discussed the growing array of institutions available for resolving conflicts between states regarding ocean uses. Analysed were developments in dispute settlement law including boundary delimitations coming out of the work of the International Court of Justice and other tribunals. With regard to the role of the KS, the discussion centred on the varying degree of emphasis placed on precedents in international tribunals, and the effect of tribunal decisions and conventional law on the consolidation of customary law. The panel also noted that although certain concepts may have matured into custom, the detailed regimes pertaining to such concepts probably have not reached that level of recognition. In addition, the view that the benefits of the nonseabed portions of the treaty may be secured under customary law was criticized in that the detailed dispute settlement provisions of the convention and the detailed and balanced regime which defines the EEZ concept are not likely to become fully integrated into customary law. Francisco Orrego Vicuna of the University of Chile carefully followed the evolution of IC.3 decisions on boundary disputes rejecting the principle of equidistance and applying instead the concept of equity. He asserted that the ICJ and other tribunals have been central in producing rules of general application in determining equitable solutions. He went on to describe the emergence and elaboration of the concept of basis of entitlement in response to the need to address delimitation of exclusive economic zone claims. Natural prolongation, geomorphologic factors, and distance considerations were more pertinent to the resolution of continental shelf claims, although in such disputes, they are no longer considered appropriate bases for claims of entitlement. Orre-
go pointed to a trend towards settling on a single maritime boundary for the continental shelf and EEZ, but noted that although the principles and criteria for decision are becoming clearer, the weight given to these factors remains somewhat more arbitrary. Satya Nandan, Under-Secretary General and Special Representative for the Law of the Sea, delivered a luncheon address calling attention to the limited time left to overcvme the obstacles to widespread acceptance of the 1982 treaty and in particular urging the USA to enter into negotiations before the treaty enters into force. Taking up, in turn, each of the primary objections to the seabed mining regime expressed by the United States government, Nandan suggested possible ways to address the concerns of industrialized countries. He also stated that any agreed upon fixes to the treaty could be incorporated into a protocol which could enter into force simultaneously with the Convention. Nandan closed by giving a positive assessment of the negotiating atmosphere at the Preparatory Commission, reporting that members have displayed flexibility, pragmatism and a willingness to accommodate. In a second luncheon speech, Jaap Walkate of the Netherlands and chairman of the Commission’s subgroup on the deep-seabed mining code, stressed that his two primary concerns in revising draft mining regulations with the assistance of the secretariat staff are (1) to produce a technically workabie code, and (2) to achieve universal acceptability in keeping with the spirit of the Convention if not precisely the letter. He reiterated his suggestion made in December 1988 that one could think of casting the mining code in the form of a protocol to the Convention. MT Walkate stated that both the economic needs of the developing nations and the needs of the industrial nations for legal security and protection of investment must be taken account of.
Miranda Wecker on Ocean Law W~sbi~g~o~, DC, USA
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