диссертация (1169188), страница 77
Текст из файла (страница 77)
The differences arising betweenstates in this regard are fraught with dangerous consequences. The legal andbiological aspects of such conflicts may differ. For instance, in the NorthwestAtlantic, these are controversies on the straddling stocks between a coastal state(Canada) and an international organisation (the EU); between the member states ofthe Northwest Atlantic Fisheries Organisation (NAFO); between the member statesof that organisation and non-member states that fish in the NAFO convention area.In the Bering Sea, the straddling fish stocks inhabiting primarily the EEZs ofRussia and the U.S., were “drained” by vessels from Japan, South Korea, Poland,and Taiwan through a high seas “enclave” surrounded by those zones.
In the Sea ofOkhotsk, the straddling stocks living in Russia’s EEZ have become the target forunregulated catch in the central part of the sea beyond 200 miles, surrounded byRussia’s EEZ.451Even before the 1993-1995 UN Convention, the term “straddling stocks”was used by academia, as well as in FAO documents to briefly allude to the stocksof marine organisms, whose habitat crosses the border between a 200-mile EEZand a high seas area adjacent to it. In that regard, the said term was applied, forinstance, by Canada’s delegation at the 3rd UN Conference on the Law of the Sea.Since the 1982 UNCLOS did not use the term, however, its scope caused debatesin scientific circles, in particular at symposiums on marine bioresources held in1988 and 1989 in Sitka and Leningrad, as well as at symposia on managingfisheries in Anchorage (1984) and on the law of the sea in Moscow (1988).At symposia, participants noted a certain contradiction of the structure of theconcept of straddling stocks, implying their difference from the marine shared (or451Berkman P., Vylegzhanin A., Young O.
Governing the Bering Strait Region: Current Status, Emerging Issuesand Future Options. Ocean Development and International Law. 2016. Vol. 47 № 2. P. 186-217.340transzonal) stocks. The latter term denoted stocks of marine organisms, whosehabitat was located within 200 miles from the coast but crossed the border betweenthe EEZs of neighbouring states. Indeed, the biological reality was that the habitatof the same stock may cross the border both between the EEZs of neighbouringstates and between the EEZ and the high seas. That instance begged the question:was that stock a straddling or a shared one? Answering that question, posed in1988 during a public discussion on the international legal regime of straddlingstocks, an American Professor, E.A. Miles, replied that in that case, it was not clear“that we were in fact dealing with straddling stocks in the strict sense.”452From the legal standpoint, the said distinction between straddling and sharedstocks is justified.
The former case concerns the stocks, whose habitat includesareas with different international legal regimes (EEZ v. high seas). Regulation ofsuch stocks is specifically envisaged in the rule of Art. 63(2) of UNCLOS: “Wherethe same stock or stocks of associated species occur both within the exclusiveeconomic zone and in an area beyond and adjacent to the zone, the coastal Stateand the States fishing for such stocks in the adjacent area shall seek, either directlyor through appropriate subregional or regional organizations, to agree upon themeasures necessary for the conservation of these stocks in the adjacent area.” Thelatter case concerns stocks whose habitat includes areas with a similar legal regime(one state’s EEZ v. another state’s EEZ).
The issues of conservation and growth ofsuch stocks are regulated by the rule of Art. 63(1) of UNCLOS: “Where the samestock or stocks of associated species occur within the exclusive economic zones oftwo or more coastal States, these States shall seek, either directly or throughappropriate subregional or regional organizations, to agree upon the measuresnecessary to coordinate and ensure the conservation and development of suchstocks without prejudice to the other provisions of this Part” (EEZ).The complexity, “variety” and multitude of issues of the conservation ofstraddling stocks are also evidenced by such 1993-1995 UN Conference452See this discussion in Clingan Thomas A. Jr.
and Kolodkin Anatoly L. (eds). Moscow Symposium on the Law ofthe Sea, 1991. P. 245.341documents, as the Guide to the Issues before the Conference prepared by theChairman, as well as the Background Paper prepared by the Secretariat of the UNConference on Straddling Fish Stocks. 453 The conceptual and practical issuesoutlined there include ensuring that the measures for the conservation of straddlingstocks taken by the coastal state in its EEZ correspond to such measures in the highseas.The Conference Chairman noted two opposite approaches to resolving thatissue. In the first one, the measures to conserve stocks (including in the coastalstate’s EEZ) would be agreed upon by all affected states.
That approach, inspiredlargely by Japan, encountered strong objections of the majority of states whoseeconomy is based on using the resources of their zone instead of distant-waterfisheries. That approach, it seems, is at variance with existing international law. Inthe meaning of Art. 63(2) and Art. 56, 61 and 62, only the coastal state hassovereign rights to the resources of its EEZ and takes relevant measures toconserve them, having no obligation to have them approved by any other state orinternational organisation.
The Chairman of the same Conference qualifiedconventional grounds as “jurisdictional” and suggested to reconcile them with theJapanese approach in order to conserve the stocks. Opposes of such a view notedthat any derogation from the coastal state’s UNCLOS sovereign rights would goagainst the aforementioned UN General Assembly Resolution convening theConference and prohibiting revisions of UNCLOS.454With great difficulty, as a result of exchange of many documents, includingthose prepared by groups of states, comparing positions, and informalconsultations, the Conference achieved an understanding that free formulation oftwo extreme approaches and then “reconciling” them for the issues in question wasunacceptable.
The Conference refused to simplify the problems or adopt a rushedlegal compromise, replete with big mistakes. The majority of delegations preferred453A\CONF. 164/10, 12 PP.454Vylegzhanin A.N. State of Industry, Russian Prospective (Legal Aspects). Proceedings of the 18th AnnualInternational Seafood Conference. Anchorage: USA, 1995. P. 144-154342thorough analysis of the biological characteristics of straddling fish stocks. Thenotion of straddling fish stocks, being a legal one, suggests a scientific component:it is proposed to view as straddling the stock composed of such species of fish thatreproduce and spend most of their life cycle (breeding, roe and larva drift, juvenilefish growth, migration, etc.) within the EEZ and that may temporarily migrate tothe high seas area adjacent to it.
A stock will also be viewed as straddling where nosuch transboundary migrations happened, but the habitat of all populations of thestock included both EEZ areas and the adjacent high seas area.Three issues hold a special practical value in the 1995 Agreement, to theextent it relates to straddling stocks: on the correlation between the 1995Agreement and the 1982 UNCLOS; on the correlation between the rights of thecoastal state and the state fishing straddling stocks in the high seas; on the rightsand obligations of a party to the 1995 Agreement in view of measures taken by theparties to regional treaties on marine bioresources.Unlike the resource-focused 1994 Agreement (on the application of Part XIof UNCLOS), the 1995 Agreement does not provide for the priority of its rulesover UNCLOS rules.
On the contrary, as stated in its Art. 4, “Nothing in thisAgreement shall prejudice the rights, jurisdiction and duties of States under theConvention. This Agreement shall be interpreted and applied in the context of andin a manner consistent with the Convention.”The issue of correlation in the high seas of the rights to the straddling stocksof the coastal state and the state fishing them in the high seas, was resolved by the1995 Agreement in a clearer way than by UNCLOS – namely, by mandatingimperative consideration of the interests of the coastal state in the conservation ofmarine bioresources.
Firstly, it provides for the obligation of all parties to theAgreement to apply widely the “precautionary approach” (Art. 5 and 6). Second,the Agreement provides for the “general principles” of conserving straddling fishstocks (as well as highly migratory fish stocks) and managing them. These include:- adopting measures to ensure long-term sustainability of straddling fish stocks andhighly migratory fish stocks and promote the objective of their optimum343utilization; - ensuring that such measures are based on the best scientific evidenceavailable and are designed to maintain or restore stocks at levels capable ofproducing maximum sustainable yield; - assessing the impacts of human activitiesand environmental factors on “target stocks and species belonging to the sameecosystem”; - adopting conservation and management measures for such stocksand species; - protecting biodiversity in the marine environment; - taking measuresto prevent or eliminate overfishing and “excess fishing capacity”; - taking intoaccount the interests of artisanal and subsistence fishers (Art.
5).Thirdly, under the 1995 Agreement, “conservation and managementmeasures established for the high seas and those adopted for areas under nationaljurisdiction shall be compatible”, and “for the purpose of achieving compatiblemeasures,” coastal states and states fishing on the seas “have a duty to cooperate”(Art. 7(2)). In determining such compatible measures, states shall take intoaccount, primarily, the conservation and management measures adopted andapplied by coastal States within areas under national jurisdiction to ensure thatmeasures established in respect of such stocks for the high seas do not underminethe effectiveness of such measures (Art. 7(2)(а)).
![](https://s.studizba.com/z.php?f=/templates/si/i/noavatar.png&w=100&h=100&t=1"){kind=avatar}
