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2020 | OriginalPaper | Buchkapitel

2. Implementation of the Rules of the UNCLOS Through Universal and Regional Organizations

verfasst von : Mariko Kawano

Erschienen in: Global Challenges and the Law of the Sea

Verlag: Springer International Publishing

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Abstract

Under the United Nations Convention on the Law of the Sea (UNCLOS), international cooperation through universal, regional, or subregional organizations is particularly important for the purpose of the implementation of the rules concerning the conservation and management of the fish stocks (CMFS) and the protection and preservation of the marine environment (PPME). There were numerous international organizations or conventional arrangements for these purposes even before the UNCLOS. However, since the adoption of the UNCLOS, by considering the new development of scientific and technological knowledge and recognizing the needs of new legal rules and approaches to respond to them, new organizations and arrangements have been established both for CMFS and for PPME. Moreover, the organizations and arrangements prior to the UNCLOS have been reviewed or replaced by new mechanisms. The universal organizations contribute to the development of new legal rules and provide the mechanisms for coordination and enhancement of the function of regional organizations and arrangements. Today, various and complicated overlap and interaction can be noted between the legal rules concerning CMFS and those concerning PPME. Marine living resources are considered to constitute a part of the marine environment and various principles and approaches of international environmental law are introduced to the measures for CMFS. Under these circumstances, the cooperation between the organizations for CMFS and those for PPME may contribute to the coordination and harmonization of the legal rules concerning these different but closely related matters.

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Fußnoten
1
For example, Art. 43 sets out the obligation to cooperate between the user States and States bordering a strait in the establishment and maintenance in the strait of necessary navigational and safety aids or other improvements in aid of international navigation and for the prevention, reduction and control of pollution from ships, and Article 100 provides for the obligation of all the Parties to cooperate in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.
 
2
For example, Art. 69 and 70 provide for the obligation to cooperate on a bilateral, subregional or regional basis to ensure the interests of land-locked States and geographically disadvantaged States.
 
3
While the rules concerning CMRS are principally provided in Parts V and VII, Part XII sets out those concerning the PPME.
 
4
Schermers and Blokker (2018), pp. 33–51; Sands et al. (2009), pp. 15–16. The author draws insights from Boisson-Chazournes (2010).
 
5
Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 295, para. 70.
 
6
Request for Advisory Opinion submitted by the Sub-Regional Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, p. 37, para. 120.
 
7
Id., p. 43, para. 140.
 
8
Mauritius’ made four submissions and the Tribunal found it had jurisdiction only to the fourth one. Chagos Marine Protected Area (Republic of Mauritius v. The United Kingdom of Great Britain and Northern Ireland), Arbitral Award of 18 March 2015, paras. 323.
 
9
The Arbitral Tribunal summed up the positions of the Parties, id., para. 232, and examined their arguments extensively, id., paras. 283–323.
 
10
Id., para. 301.
 
11
Id., para. 319.
 
12
Id., paras. 534–535.
 
13
Id., paras. 539–541.
 
14
Id., paras. 540–541.
 
15
South China Sea Arbitration, Award of 12 July 2016, para. 941.
 
16
Id., para. 959.
 
17
Regarding the definition of an “ecosystem”, the Tribunal referred to Article 2 of CBD, id., paras. 945 and it referred to the Appendixes of CITES in considering the species caught by Chinese fishing vessels, id., paras. 956–957.
 
18
Id., paras. 950–966, in particular, paras 964–966.
 
19
I.C.J. Reports 2014, pp. 251–252, paras. 56–58.
 
20
Churchill and Lowe (1999), pp. 279–399; Rothwell and Stephens (2016), pp. 292–319 and 338–382.
 
21
Adopted on 4 August 1995, A/CNF.164/37, and entered into force on 11 December 2001.
 
22
Proelss (2017), pp. 484–487, 832–836.
 
23
The Agreement was adopted in November 1993 and entered into force on 24 April 2003. The text of the Agreement is available at http://​www.​fao.​org/​documents/​card/​en/​c/​8cb30770-3145-55eda0db-315cbbb722a6.
 
24
The Agreement was adopted on 22 November 2009 and entered into force on 5 June 2016; see http://​www.​fao.​org/​port-state-measures/​en/​. The text of the Agreement is available at http://​www.​fao.​org/​port-state-measures/​resources/​detail/​en/​c/​1111616/​.
 
25
The Code was adopted on 31 October 1995. The text of the Code is available at http://​www.​fao.​org/​3/​v9878e/​V9878E.​pdf.
 
26
See Ibid, Introduction.
 
31
Agreement on the Implementation of the Provisions of Torremolinos Protocol of 1993 relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977; see https://​www.​imo.​org/​en/​About/​Conventions/​ListOfConvention​s/​Pages/​The-Torremolinos-International-Convention-for-the-Safety-of-Fishing-Vessels.​aspx.
 
32
The activities of JWG are briefly illustrated and the reports of the sessions are available at http://​www.​fao.​org/​iuu-fishing/​tools-and-initiatives/​joint-working-group-on-iuu-fishing/​en/​.
 
33
The map of the regulatory areas of RFMOs is available at http://​www.​fao.​org/​fishery/​rfb/​en.
 
34
The International Whaling Commission (IWC) was established by the Convention. An integral part of the Convention is its legally binding “Schedule,” by which the measures under IWC have been developed; see https://​iwc.​int/​history-and-purpose.
 
35
The first agreement was adopted in the FAO Conference in 1949. The agreement was amended four times and the fourth amendment in 1997 included the change in the name of the organization to General Fisheries Commission for the Mediterranean (GFCM) previously “General Fisheries Council for the Mediterranean. The text of the Agreement is available at http://​www.​fao.​org/​gfcm/​about/​legal-framework/​en/​.
 
36
The Convention was adopted on 31 May 1949. The text is available at http://​www.​iattc.​org/​PDFFiles/​IATTC-Instruments/​_​English/​IATTC_​IATTC%20​Convention%20​1949.​pdf. The Convention for the Strengthening of the Inter-American Tropical Tuna Commission established by the 1949 Convention between the United States of America and the Republic of Costa Rica (“Antigua Convention”) was signed on 14 November 2003 and entered into force on 27 August 2010. The text is available at http://​www.​iattc.​org/​PDFFiles/​IATTC-Instruments/​_​English/​IATTC_​Antigua_​Convention%20​Jun%20​2003.​pdf.
 
37
International North Pacific Fisheries Commission (INPFC) was established by this Convention, and comprised Canada, Japan, and the United States of America as members. The INPFC dissolved when the Convention of Anadromous Stocks in the North Pacific Ocean came into effect on 16 February 1993; see https://​npafc.​org/​inpfc/​.
 
38
The Convention was adopted in May 1966. This convention established the International Commission for the Conservation of Atlantic Tunas (ICCAT). The text which reflects the seventh revision is available at https://​www.​iccat.​int/​en/​.
 
39
The Convention was signed on 24 October 1978 and entered into force on 1 January 1979. The Northwest Atlantic Fisheries Organization (NAFO) was established by this convention. The convention was amended four times. The last amendment came into force on 18 May 2017. The amended text is available at https://​www.​nafo.​int/​Portals/​0/​PDFs/​key-publications/​NAFOConvention-2017.​pdf.
 
40
The Convention was signed in 1923 and established the International Pacific Halibut Commission (IPHC). The most recent change occurred in 1979 by the Protocol Amending the Convention; see https://​iphc.​int/​the-commission. The Pacific Halibut Fishery Regulations (2018) is available at https://​iphc.​int/​uploads/​pdf/​regs/​iphc-2018-regs.​pdf.
 
41
The Convention was signed on 20 May 1980 and entered into force on 7 April 1982. The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) was established by this convention. The text of the convention is available at https://​www.​ccamlr.​org/​en/​organisation/​camlr-convention-text.
 
42
The Convention was signed on 18 November 1980 and entered into force on 17 March 1982 to replace the earlier 1959 North-East Atlantic Fisheries Convention. The North-East Atlantic Fisheries Commission (NEAFC) was established by this convention. The convention was further amended and the latest version is available at https://​www.​neafc.​org/​system/​files/​Text-of-NEAFC-Convention-04.​pdf.
 
43
See http://​www.​fao.​org/​fishery/​rfb/​wecafc/​en#Org-LegalFoundation. Its Statutes were amended by the FAO Council in 1978 and in 2006. The latest amended version (Resolution 1/131) is available at http://​www.​fao.​org/​fishery/​docs/​DOCUMENT/​wecafc/​statutes.​pdf.
 
44
Regarding the relationship between FAO and RFMOs and RFMAs, please see http://​www.​seafdec.​org/​about.
 
45
The NASCO was established in 1984 by the Convention for the Conservation of Salmon in the North Atlantic Ocean, entered into force on 1 October 1983, http://​www.​nasco.​int/​background.​html. The text of the Convention is available at http://​www.​nasco.​int/​convention.​html.
 
46
The NPAFC was established by the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, which was signed on 11 February 1992 and entered into force on 16 February 1993. Its text is available at https://​npafc.​org/​wp-content/​uploads/​2017/​06/​Handbook-3rd-E-Convention-Only-English.​pdf.
 
47
The CCSBT was established by the Convention for the Conservation of Southern Bluefin Tuna, which was signed on 10 May 1993 and entered into force on 20 May 1994. Its text of the Convention is available at https://​www.​ccsbt.​org/​en/​content/​basic-documents-commission.
 
48
The IOTC was established in 1993 at the 105th Session of the Council of the FAO under Article XIV of the FAO Constitution. The Agreement for the Establishment of IOTC was signed on 25 November 1993 and entered into force on 27 March 1996; see https://​iotc.​org/​about-iotc/​basic-texts.
 
49
The WCPFC was established by the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean Convention, open to signature on 5 September 2000 and entered into force on 19 June 2004. Its text is available at https://​www.​wcpfc.​int/​convention-text.
 
50
The SEAFO was established by the Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean, which was signed on 20 April 2001 and entered into force on 13 April 2013. Its text is available at http://​www.​seafo.​org/​About/​Convention-Text.
 
51
The Agreement was adopted on 7 July 2006 and entered into force on June 2012; see https://​www.​apsoi.​org. By this agreement, the Indian Ocean Fishery Commission (IOFC) and its subsidiary bodies were abolished. The text of the Agreement is available at https://​www.​apsoi.​org/​sites/​default/​files/​documents/​SIOFA%20​AGREEMENT_​EN.​pdf.
 
52
The SPRFMO was established by the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, which was signed on 14 November 2009 and entered into force on 24 August 2012. Its text is available at https://​www.​ccsbt.​org/​en/​content/​basic-documents-commission.
 
53
The NPFC was established by the Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean was signed on 24 February 2012 and entered into force on 19 July 2015. Its text is available at https://​www.​npfc.​int/​system/​files/​2017-01/​Convention%20​Text.​pdf.
 
54
The Convention was signed on 16 June 1994 and entered into force on 8 December 1995. The text of the Convention is available at https://​www.​jus.​uio.​no/​english/​services/​library/​treaties/​06/​6-05/​pollock-resources-bering.​xml.
 
55
For example, the IATTC adopted the 2005 Resolution on IUU fishing (amended in 2019 by Resolution C-19-02), see https://​www.​iattc.​org/​PDFFiles/​Resolutions/​IATTC/​_​English/​C-19-02-Active_​Amends%20​and%20​replaces%20​C-15-01%20​IUU%20​fishing.​pdf, and publishes the Current IUU Vessel List of IATTC; see http://​www.​iattc.​org/​VesselRegister/​IUU.​aspx?​Lang=​en.
 
56
Art. 2 of the NASCO Convention, supra note 45 and Art. 3 of the NPAFC Convention, supra note 46.
 
57
The IWC decided the moratorium of commercial whaling in 1982 and have maintained and maintains it; see https://​iwc.​int/​the-revised-management-scheme.
 
58
In the provision concerning the objective(s) of the Convention, the conservation and sustainable use of the stocks concerned is indicated, for example, Article w of the NPFC Convention, supra note 53. Please see, Proelss (2017), p. 518.
 
59
Art. 3 of the GFCM Convention designates all marine waters of the Mediterranean Sea, supra note 35.
 
60
Art. 3 of NASCO, see supra note 45 and Art. 3 of the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, see supra note 54.
 
65
The IOSEA was concluded under the Convention on the Conservation of Migratory Species of Wild Animals (CMS). The ultimate aim of the IOSEA agreement is to maintain and recover marine turtle populations by promoting cooperation among Governments and other organizations that share this common objective; see https://​www.​cms.​int/​en/​legalinstrument/​iosea-marine-turtles. The text of the Memorandum is available at https://​www.​cms.​int/​sites/​default/​files/​instrument/​mou_​cmp_​2009_​e.​pdf.
 
70
See https://​www.​neafc.​org/​about. The Convention was adopted on 18 November 1980 to replace the North-East Atlantic Fisheries Convention of 1959. The amendment reflected in the current version was adopted in 2006 and entered into force on 29 October 2013; see https://​www.​neafc.​org/​basictexts.
 
75
The text of the Agreement in Spanish is available at http://​www.​fao.​org/​fishery/​rfb/​cpps/​en.
 
79
PSC was established by the Pacific Salmon Treaty concluded in March 1985; see https://​www.​psc.​org/​about-us/​history-purpose/​pacific-salmon-treaty/​.
 
80
IPHC was established by the Convention concluded in 1923, which was amended substantially in 1979; see https://​iphc.​int/​the-commission.
 
81
The PICES was established by the Convention for a North Pacific Marine Science Organization, entered into force on 24 March 1992; see https://​meetings.​pices.​int/​about/​convention.
 
83
The history of the programme is explained at http://​www.​ffa.​int/​about.
 
84
The Niue Treaty was signed on 9 July 1992 and entered into force on 20 May 1993. The text of the Treaty is available at http://​www.​ffa.​int/​system/​files/​Niue%20​Treaty_​0.​pdf.
 
86
The text of the arrangement is available at http://​www.​ffa.​int/​tka_​public.
 
87
For example, Art. 4 of the OLDEPESCA Convention, supra note  76.
 
88
The serious concerns of the SRFC are reflected in its request for the advisory opinion of the ITLOS, see supra note 6.
 
89
For example, in accordance with Article 9, OLDEPESCA consists of a Conference of Ministers, a Governing Board, and an Executive Management Board, supra note 76.
 
91
South China Sea Arbitration, supra note 15, paras. 940.
 
92
Id., 946.
 
94
The conventions concluded in the Caribbean Region, the East Asian Seas, the Eastern Africa Region, the Mediterranean Region, the North-West Pacific Region, the Western Africa Region, and the Caspian Sea are classified into the first category. Those in the Black Sea Region, the North-East Pacific Region, the Red Sea and the Gulf of Aden, the ROPME Sea Area, the South Asian Seas, the South-East Pacific Region, and the Pacific Region are classified into to the second category. Those in the Arctic Region, the Antarctic Region, the Baltic Sea, and the North-East Atlantic Region are classified into the third group. (Ibid.)
 
95
The original focus of its work was the prevention of marine pollution by oil, resulting in the adoption of the first ever comprehensive antipollution convention, the International Convention for the Prevention of Pollution from Ships (MARPOL Convention) in 1973. This has changed over the last few decades to include a much wider range of measures to prevent marine pollution. The original MARPOL Convention was amended many times to include requirements addressing pollution from chemicals, other harmful substances, garbage, sewage by Annexes I–V. Annex VI which was adopted in 1997 and entered into force on 19 May 2005) is on the air pollution and emissions from ships and the rules have been developed through its Annexes in order to respond to the new problems. See http://​www.​imo.​org/​en/​About/​Conventions/​ListOfConvention​s/​Pages/​International-Convention-for-the-Prevention-of-Pollution-from-Ships-(MARPOL).​aspx. On 13 February 2004, the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (BWM Convention) was adopted by consensus at a Diplomatic Conference held at IMO Headquarters in London; see http://​www.​imo.​org/​en/​OurWork/​Environment/​BallastWaterMana​gement/​Pages/​BWMConventionand​Guidelines.​aspx. The Convention entered into force on 8 September 2017. For the regulation of ship recycling, the Hong Kong International Convention for the State and Environmentally Sound Recycling of Ships, 2009 (Hong Kong Convention) was adopted at a diplomatic conference held in Hong Kong, China; see http://​www.​imo.​org/​en/​OurWork/​Environment/​ShipRecycling/​Pages/​Default.​aspx.
 
108
All decisions, recommendations and agreements can be accessed at https://​www.​ospar.​org/​convention/​agreements.
 
109
OSPAR’s activities can be seen in the MoU Abidjan Convention Secretariat, the Agreement of Cooperation with the IMO, and the MoU between the IMO and OSPAR on the promotion of the London Convention and London Protocol. The texts are available from https://​www.​ospar.​org/​about/​international-cooperation.
 
113
The protocol with the same title was initially adopted with the Convention and other Protocols, but a new Protocol was adopted in 2009.
 
124
For example, in Tehran Convention, the Conference of the Parties is endowed with the competence to ensure the implementation of the conventional rules (Art. 22) and the Secretariat is established by this convention (Art. 23), supra note 107.
 
125
HELCOM, supra notes 110–11 and OSPAR, supra note  106.
 
126
For example, in Nairobi Convention the UNEP is designated as the secretariat of this Convention and the Meetings of the Contracting Parties is designed to play a principal role in this mechanism, supra note 99 et seq.
 
127
Preface for the Code of Conduct for Responsible Fisheries; see http://​www.​fao.​org/​docrep/​005/​v9878e/​v9878e00.​htm.
 
128
Memorandum of Understanding between the North Atlantic Salmon Conservation Organization and the OSPAR Commission, https://​www.​ospar.​org/​site/​assets/​files/​1357/​nasco_​mou.​pdf, and Memorandum of Understanding between the North East Atlantic Fisheries Commission (NEAFC) and the OSPAR Commission; see https://​www.​ospar.​org/​site/​assetsfiles/​1357/​mou_​neafc_​ospar.​pdf and https://​www.​neafc.​org/​collective-arrangement.
 
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Metadaten
Titel
Implementation of the Rules of the UNCLOS Through Universal and Regional Organizations
verfasst von
Mariko Kawano
Copyright-Jahr
2020
DOI
https://doi.org/10.1007/978-3-030-42671-2_2