International Law - Law of High Seas

[Viceroy]

CSS 2008

Q.6. Define High Seas. Explain the concept of Freedom of High Seas along-with restrictions over it.

Below is a detailed note on the high seas topic, it contains all the information required to answer the above question


The high seas

The closed seas concept proclaimed by Spain and Portugal in the fifteenth and sixteenth centuries, and supported by the Papal Bulls of 1493 and 1506 dividing the seas of the world between the two powers, was replaced by the notion of the open seas and the concomitant freedom of the high seas during the eighteenth century. The essence of the freedom of the high seas is that no state may acquire sovereignty over parts of them. This is the general rule, but it is subject to the operation of the doctrines of recognition, acquiescence and prescription, where, by long usage accepted by other nations, certain areas of the high seas bounding on the territorial waters of coastal states may be rendered subject to that state’s sovereignty. This was emphasised in the Anglo-Norwegian Fisheries case. The high seas were defined in Article 1 of the Geneva Convention on the High Seas, 1958 as all parts of the sea that were not included in the territorial sea or in the internal waters of a state. This reflected customary international law, although as a result of developments the definition in article 86 of the 1982 Convention includes: all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a state, or in the archipelagic waters of an archipelagic state. Article 87 of the 1982 Convention (developing article 2 of the 1958 Geneva Convention on the High Seas) provides that the high seas are open to all states and that the freedom of the high seas is exercised under the conditions laid downin the Convention and by other rules of international law. It includes inter alia the freedoms of navigation, overflight, the laying of submarine cables and pipelines, the construction of artificial islands and other installations permitted under international law, fishing, and the conduct of scientific research. Such freedoms are to be exercised with due regard for the interests of other states in their exercise of the freedom of the high seas, and also with due regard for the rights under the Convention regarding activities in the International Seabed Area. Australia and New Zealand alleged before the ICJ, in the Nuclear Tests case, that French nuclear testing in the Pacific infringed the principle of the freedom of the seas, but this point was not decided by the Court. The 1963 Nuclear Test Ban Treaty prohibited the testing of nuclear weapons on the high seas as well as on land, but France was not a party to the treaty, and it appears not to constitute a customary rule binding all states, irrespective of the treaty.

Nevertheless, article 88 of the 1982 Convention provides that the high seas shall be reserved for peaceful purposes. Principles that are generally acknowledged to come within article 2 include the freedom to conduct naval exercises on the high seas and the freedom to carry out research studies. The freedom of navigation is a traditional and well-recognised facet of the doctrine of the high seas, as is the freedom of fishing. This was reinforced by the declaration by the Court in the Fisheries Jurisdiction cases300 that Iceland’s unilateral extension of its fishing zones from 12 to 50 miles constituted a violation of article 2 of the High Seas Convention, which is, as the preamble states, ‘generally declaratory of established principles of international law’. The freedom of the high seas applies not only to coastal states but also to states that are landlocked. The question of freedom of navigation on the high seas in times of armed conflict was raised during the Iran–Iraq war, which during its latter stages involved attacks upon civilian shipping by both belligerents. Rather than rely on the classical and somewhat out-of-date rules of the laws of war at sea, the UK in particular analysed the issue in terms of the UN Charter. The following statement was made: The UK upholds the principle of freedom of navigation on the high seas and condemns all violations of the law of armed conflicts including attacks on merchant shipping. Under article 51 of the UN Charter, a state actively engaged in armed conflict (as in the case of Iran and Iraq) is entitled in exercise of its inherent right of self-defence to stop and search a foreign merchant ship on the high seas if there is reasonable ground for suspecting that the ship is taking arms to the other side for use in the conflict. This is an exceptional right: if the suspicion proves to be unfounded and if the ship has not committed acts calculated to give rise to suspicion, then the ship’s owners have a good claim for compensation for loss caused by the delay. This right would not, however, extend to the imposition of a maritime blockade or other forms of economic warfare.

Jurisdiction on the high seas

The foundation of the maintenance of order on the high seas has rested upon the concept of the nationality of the ship, and the consequent jurisdiction of the flag state over the ship. It is, basically, the flag state that will enforce the rules and regulations not only of its own municipal law but of international law as well. A ship without a flag will be deprived of many of the benefits and rights available under the legal regime of the high seas. Each state is required to elaborate the conditions necessary for the grant of its nationality to ships, for the registration of ships in its territory and for the right to fly its flag. The nationality of the ship will depend upon the flag it flies, but article 91 of the 1982 Convention also stipulates that there must be a ‘genuine link’ between the state and the ship. This provision, which reflects ‘a well established rule of general international law’, was intended to check the use of flags of convenience operated by states such as Liberia and Panama which would grant their nationality to ships requesting such because of low taxation and the lack of application of most wage and social security agreements. This enabled the ships to operate at very low costs indeed. However, what precisely the ‘genuine link’ consists of and how one may regulate any abuse of the provisions of article 5 are unresolved questions.

Some countries, for example the United States, maintain that the requirement of a ‘genuine link’ really only amounts to a duty to exercise jurisdiction over the ship in an efficacious manner, and is not a pre-condition for the grant, or the acceptance by other states of the grant, of nationality. An opportunity did arise in 1960 to discuss the meaning of the provision in the IMCO case. The International Court was called upon to define the ‘largest ship-owning nations’ for the purposes of the constitution of a committee of the Inter-Governmental Maritime Consultative Organisation. It was held that the term referred only to registered tonnage so as to enable Liberia and Panama to be elected to the committee. Unfortunately, the opportunity was not taken of considering the problems of flags of convenience or the meaning of the ‘genuine link’ in the light of the true ownership of the ships involved, and so the doubts and ambiguities remain.

The UN Conference on Conditions of Registration of Ships, held under the auspices of the UN Conference on Trade and Development, convened in July 1984 and an agreement was signed in 1986. It attempts to deal with the flags of convenience issue, bearing in mind that nearly one-third of the world’s merchant fleet by early 1985 flew such flags. It specifies that flag states should provide in their laws and regulations for the ownership of ships flying their flags and that those should include appropriate provision for participation by nationals as owners of such ships, and that such provisions should be sufficient to permit the flag state to exercise effectively its jurisdiction and control over ships flying its flag. The issue of the genuine link arose in the context of the Iran–Iraq war and in particular Iranian attacks upon Kuwaiti shipping. This prompted Kuwait to ask the UK and the USA to reflag Kuwaiti tankers. The USA agreed in early 1987 to reflag eleven such tankers under the US flag and to protect them as it did other US-flagged ships in the Gulf. The UK also agreed to reflag some Kuwaiti tankers, arguing that only satisfaction of Department of Trade and Industry requirements was necessary. Both states argued that the genuine link requirement was satisfied and, in view of the ambiguity of state practice as to the definition of genuine link in such instances, it is hard to argue that the US and UK acted unlawfully.

The International Tribunal for the Law of the Sea in M/V Saiga (No. 2) has underlined that determination of the criteria and establishment of the procedures for granting and withdrawing nationality to ships are matters within the exclusive jurisdiction of the flag state, although disputes concerning such matters may be subject to the dispute settlement procedures of the 1982 Convention. The question of the nationality of a ship was a question of fact to be determined on the basis of evidence adduced by the parties. The conduct of the flag state, ‘at all times material to the dispute’, was an important consideration in determining the nationality or registration of a ship. The Tribunal has also confirmed that the requirement of a genuine link was in order to secure effective implementation of the duties of the flag state and not to establish criteria by reference to which the validity of the registration of ships in a flag state may be challenged by other states. Ships are required to sail under the flag of one state only and are subject to its exclusive jurisdiction (save in exceptional cases).Where a ship does sail under the flags of more than one state, according to convenience, it may be treated as a ship without nationality and will not be able to claim any of the nationalities concerned. A ship that is stateless, and does not fly a flag, may be boarded and seized on the high seas. This point was accepted by the Privy Council in the case of Naim Molvan v. Attorney-General for Palestine, which concerned the seizure by the British navy of a stateless ship attempting to convey immigrants into Palestine.

The basic principle relating to jurisdiction on the high seas is that the flag state alone may exercise such rights over the ship.318 This was elaborated in the Lotus case, where it was held that ‘vessels on the high seas are subject to no authority except that of the state whose flag they fly’.320 This exclusivity is without exception regarding warships and ships owned or operated by a state where they are used only on governmental non-commercial service. Such ships have, according to articles 95 and 96 of the 1982 Convention, ‘complete immunity from the jurisdiction of any state other than the flag state’.

[Viceroy]

Contd.

Exceptions to the exclusivity of flag-state jurisdiction

However, this basic principle is subject to exceptions regarding other vessels, and the concept of the freedom of the high seas is similarly limited by the existence of a series of exceptions. Right of visit Since the law of the sea depends to such an extent upon the nationality of the ship, it is well recognized in customary international law that warships have a right of approach to ascertain the nationality of ships. However, this right of approach to identify vessels does not incorporate the right to board or visit ships. This may only be undertaken, in the absence of hostilities between the flag states of the warship and amerchant vessel and in the absence of special treaty provisions to the contrary, where the ship is engaged in piracy or the slave trade, or, though flying a foreign flag or no flag at all, is in reality of the same nationality as the warship or of no nationality. But the warship has to operate carefully in such circumstances, since it may be liable to pay compensation for any loss or damage sustained if its suspicions are unfounded and the ship boarded has not committed any act justifying them. Thus, international law has settled for a narrow exposition of the right of approach, in spite of earlier tendencies to expand this right, and the above provisions were incorporated into article 22 of the High Seas Convention. Article 110 of the 1982 Convention added to this list a right of visit where the ship is engaged in unauthorised broadcasting and the flag state of the warship has under article 109 of the Convention jurisdiction to prosecute the offender.

Piracy

The most formidable of the exceptions to the exclusive jurisdiction of the flag state and to the principle of the freedom of the high seas is the concept of piracy. Piracy is strictly defined in international law and was declared in article 101 of the 1982 Convention to consist of any of the following acts:

(a)Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or private aircraft and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any state;

(b) Any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

(c) Any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b).

The essence of piracy under international law is that it must be committed for private ends. In other words, any hijacking or takeover for political reasons is automatically excluded from the definition of piracy. Similarly, any acts committed on the ship by the crew and aimed at the ship itself or property or persons on the ship do not fall within this category. Any and every state may seize a pirate ship or aircraft whether on the high seas or on terra nullius and arrest the persons and seize the property on board. In addition, the courts of the state carrying out the seizure have jurisdiction to impose penalties, and may decide what action to take regarding the ship or aircraft and property, subject to the rights of third parties that have acted in good faith.324 The fact that every state may arrest and try persons accused of piracy makes that crime quite exceptional in international law, where so much emphasis is placed upon the sovereignty and jurisdiction of each particular state within its own territory. The first multilateral treaty concerning the regional implementation of the Convention’s provisions on piracy was the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia in 2005, which calls for the establishment of an information-sharing centre in Singapore and extends the regulation of piracy beyond the high seas to events taking place in internal waters, territorial seas and archipelagic waters.325

The slave trade

Although piracy may be suppressed by all states, most offences on the high seas can only be punished in accordance with regulations prescribed by the municipal legislation of states, even where international law requires such rules to be established. Article 99 of the 1982 Convention provides that every state shall take effective measures to prevent and punish the transport of slaves in ships authorised to fly its flag and to prevent the unlawful use of its flag for that purpose. Any slave taking refuge on board any ship, whatever its flag, shall ipso facto be free. Under article 110, warships may board foreign merchant ships where they are reasonably suspected of engaging in the slave trade; offenders must be handed over to the flag state for trial.

Unauthorised broadcasting

Under article 109 of the 1982 Convention, all states are to co-operate in the suppression of unauthorised broadcasting from the high seas. This is defined to mean transmission of sound or TV from a ship or installation on the high seas intended for reception by the general public, contrary to international regulations but excluding the transmission of distress calls. Any person engaged in such broadcasting may be prosecuted by the flag state of the ship, the state of registry of the installation, the state of which the person is a national, any state where the transmission can be received or any state where authorised radio communication is suffering interference. Any of the above states having jurisdiction may arrest any person or ship engaging in unauthorised broadcasting on the high seas and seize the broadcasting apparatus.

Hot pursuit

The right of hot pursuit of a foreign ship is a principle designed to ensure that a vessel which has infringed the rules of a coastal state cannot escape punishment by fleeing to the high seas. In reality it means that in certain defined circumstances a coastal state may extend its jurisdiction onto the high seas in order to pursue and seize a ship which is suspected of infringing its laws.

The right, which has been developing in one form or another since the nineteenth century, was comprehensively elaborated in article 111 of the 1982 Convention, building upon article 23 of the High Seas Convention, 1958. It notes that such pursuit may commence when the authorities of the coastal state have good reason to believe that the foreign ship has violated its laws. The pursuit must start while the ship, or one of its boats, is within the internal waters, territorial sea or contiguous zone of the coastal state and may only continue outside the territorial sea or contiguous zone if it is uninterrupted. However, if the pursuit commences while the foreign ship is in the contiguous zone, then it may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. The right may similarly commence from the archipelagic waters. In addition, the right will apply mutatis mutandis to violations in the exclusive economic zone or on the continental shelf (including safety zones around continental shelf installations) of the relevant rules and regulations applicable to such areas. Hot pursuit only begins when the pursuing ship has satisfied itself that the ship pursued or one of its boats is within the limits of the territorial sea or, as the case may be, in the contiguous zone or economic zone or on the continental shelf. It is essential that prior to the chase a visual or auditory signal to stop has been given at a distance enabling it to be seen or heard by the foreign ship and pursuit may only be exercised by warships or military aircraft or by specially authorised government ships or planes.

The right of hot pursuit ceases as soon as the ship pursued has entered the territorial waters of its own or a third state. The International Tribunal for the Law of the Sea has emphasised that the conditions laid down in article 111 are cumulative, each one of them having to be satisfied in order for the pursuit to be lawful. In stopping and arresting a ship in such circumstances, the use of force must be avoided if at all possible and, where it is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances.

Collisions

Where ships are involved in collisions on the high seas, article 11 of the High Seas Convention declares, overruling the decision in the Lotus case, that penal or disciplinary proceedings may only be taken against the master or other persons in the service of the ship by the authorities of either the flag state or the state of which the particular person is a national. It also provides that no arrest or detention of the ship, even for investigation purposes, can be ordered by other than the authorities of the flag state. This was reaffirmed in article 97 of the 1982 Convention.

Treaty rights and agreements

In many cases, states may by treaty permit each other’s warships to exercise certain powers of visit and search as regards vessels flying the flags of the signatories to the treaty.337 For example, most of the agreements in the nineteenth century relating to the suppression of the slave trade provided that warships of the parties to the agreements could search and sometimes detain vessels suspected of being involved in the trade, where such vessels were flying the flags of the treaty states.

The Convention for the Protection of Submarine Cables of 1884 gave the warships of contracting states the right to stop and ascertain the nationality of merchant ships that were suspected of infringing the terms of the Convention, and other agreements dealing with matters as diverse as arms trading and liquor smuggling contained like powers. Until recently, the primary focus of such activities in fact concerned drug trafficking.338 However, the question of the proliferation of weapons of mass destruction (WMD) is today of great importance.339 This issue has been tackled by a mix of international treaties, bilateral treaties, international co-operation and Security Council action.

Building on the Security Council statement in 1992 identifying the proliferation of WMD as a threat to international peace and security, the US announced the Proliferation Security Initiative in May 2003. A statement of Interdiction Principles agreed by participants in the initiative in September 2003 provided for the undertaking of effective measures to interdict the transfer or transport of WMD, their delivery systems and related materials to and from states and non-state actors of proliferation concern. Such measures were to include the boarding and search of any vessel flying the flag of one of the participants, with their consent, in internal waters, territorial seas or beyond the territorial seas, where such vessel is reasonably suspected of carrying WMD materials to or from states or non-state actors of proliferation concern.341 In addition, the US has signed a number of bilateral WMD interdiction agreements, providing for consensual boarding of vessels.

In a further development, Security Council resolution 1540 (2004) required all states inter alia to prohibit and criminalise the transfer of WMD and delivery systems to non-state actors, although there is no direct reference to interdiction.343 In addition, a Protocol adopted in 2005 to the Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation provides essentially for the criminalisation of knowingly transporting WMD and related materials by sea and provides for enforcement by interdiction on the high seas.344

Pollution

Article 24 of the 1958Convention on the High Seas called on states to draw up regulations to prevent the pollution of the seas by the discharge of oil or the dumping of radioactive waste, while article 1 of the Convention on the Fishing and Conservation of the Living Resources of the High Seas, of the same year, declared that all states had the duty to adopt, or cooperate with other states in adopting, such measures as may be necessary for the conservation of the living resources of the high seas. Although these provisions have not proved an unqualified success, they have been reinforced by an interlocking series of additional agreements covering the environmental protection of the seas. The International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, signed in 1969 and in force as of June 1975, provides that the parties to the Convention may take such measures on the high seas:

as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences.


This provision came as a result of the Torrey Canyon incident in 1967 in which a Liberian tanker foundered off the Cornish coast, spilling massive quantities of oil and polluting large stretches of the UK and French coastlines. As a last resort to prevent further pollution, British aircraft bombed the tanker and set it ablaze. The Convention on Intervention on the High Seas provided for action to be taken to end threats to the coasts of states, while the Convention on Civil Liability for Oil Pollution Damage, also signed in 1969 and which came into effect in June 1975, stipulated that the owners of ships causing oil pollution damage were to be liable to pay compensation. The latter agreement was supplemented in 1971 by the Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage which sought to provide for compensation in circumstances not covered by the 1969 Convention and aid ship owners in their additional financial obligations. These agreements are only a small part of the web of treaties covering the preservation of the sea environment.

Other examples include the 1954 Convention for the Prevention of Pollution of the Seas by Oil, with its series of amendments designed to ban offensive discharges; the 1972 Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft and the subsequent London Convention on the Dumping of Wastes at Sea later the same year; the 1973 Convention for the Prevention of Pollution from Ships; and the 1974 Paris Convention for the Prevention of Marine Pollution from Land-Based Sources. Under the 1982 Convention nearly fifty articles are devoted to the protection of the marine environment. Flag states still retain the competence to legislate for their ships, but certain minimum standards are imposed upon them.348 It is also provided that states are responsible for the fulfillment of their international obligations concerning the protection and preservation of the marine environment and are liable in accordance with international law. States must also ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief regarding damage caused by pollution of the marine environment by persons under their jurisdiction. States are under a basic obligation to protect and preserve the marine environment.350 Article 194 of the 1982 Convention also provides that:

1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonise their policies in this connection.

2. States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.

3. The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimise to the fullest possible extent:

(a) the release of toxic, harmful, or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping;

(b) pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels;

(c) pollution from installations and devices used in exploitation of the natural resources of the seabed and subsoil, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices;

(d) pollution from other installations and devices operating in the marine environment, in particular for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, and regulating the design, construction, equipment, operation and manning of such installations or devices.

4. In taking measures to prevent, reduce or control pollution of the marine environment, states shall refrain from unjustifiable interference with activities carried out by other states in the exercise of their rights and in pursuance of their duties in conformity with this Convention.351

[Viceroy]

Contd.

Straddling stocks

The freedom to fish on the high seas is one of the fundamental freedoms of the high seas, but it is not total or absolute.353 The development of exclusive economic zones has meant that the area of high seas has shrunk appreciably, so that the bulk of fish stocks are now to be found within the economic zones of coastal states. In addition, the interests of such coastal states have extended to impinge more clearly upon the regulation of the high seas. Article 56(1) of the 1982 Convention provides that coastal states have sovereign rights over their economic zones for the purpose of exploring and exploiting, conserving and managing the fish stocks of the zones concerned. Such rights are accompanied by duties as to conservation and management measures in order to ensure that the fish stocks in exclusive economic zones are not endangered by over-exploitation and that such stocks are maintained at, or restored to, levels which can produce the maximum sustainable yield.

Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal states, these states shall seek either directly or through appropriate subregional or regional organisations to agree upon the measures necessary to co-ordinate and ensure the conservation and development of such stocks.355 Article 116(b) of the 1982 Convention states that the freedom to fish on the high seas is subject to the rights and duties as well as the interests of coastal states as detailed above, while the 1982 Convention lays down a general obligation upon states to co-operate in taking such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas and a variety of criteria are laid down for the purpose of determining the allowable catch and establishing other conservation measures. A particular problem is raised with regard to straddling stocks, that is stocks of fish that straddle both exclusive economic zones and highseas, for if the latter were not in some way regulated, fishery stocks regularly present in the exclusive economic zone could be depleted by virtue of unrestricted fishing of those stocks while they were present on the high seas. Article 63(2) of the 1982 Convention stipulates that where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone (i.e. the high seas), the coastal state and the states fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organisations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.

The provisions in the 1982 Convention, however, were not deemed to be fully comprehensive357 and, as problems of straddling stocks grew more apparent, a Straddling Stocks Conference was set up in 1993 and produced an agreement two years later. The Agreement emphasises the need to conserve and manage straddling fish stocks and highly migratory species and calls in particular for the application of the precautionary approach.359 Coastal states and states fishing on the high seas shall pursue co-operation in relation to straddling and highly migratory fish stocks either directly or through appropriate subregional or regional organizations and shall enter into consultations in good faith and without delay at the request of any interested state with a view to establishing appropriate arrangements to ensure conservation and management of the stocks.

Much emphasis is placed upon subregional and regional organisations and article 10 provides that in fulfilling their obligation to co-operate through such organisations or arrangements, states shall inter alia agree on measures to ensure the long-term sustainability of straddling and highly migratory fish stocks and agree as appropriate upon participatory rights such as allocations of allowable catch or levels of fishing effort. In particular, the establishment of co-operative mechanisms for effective monitoring, control, surveillance and enforcement, decision-making procedures facilitating the adoption of such measures of conservation and management, and the promotion of the peaceful settlement of disputes are called for. The focus in terms of implementation is upon the flag state. Article 18 provides that flag states shall take such measures asmay be necessary to ensure that their vessels comply with subregional and regional conservation and management measures, while article 19 provides that flag states must enforce such measures irrespective of where violations occur and investigate immediately any alleged violation.

Article 21 deals specifically with subregional and regional co-operation in enforcement and provides that in any area of the high seas covered by such an organization or arrangement, a state party which is also a member or participant in such an organisation or arrangement may board and inspect fishing vessels flying the flag of another state party to the Agreement. This applies whether that state party is or is not a member of or a participant in such a subregional or regional organisation or arrangement. The boarding and visiting powers are for the purpose of ensuring compliance with the conservation and management measures established by the organization or arrangement. Where, following a boarding and inspection, there are clear grounds for believing that a vessel has engaged in activities contrary to the relevant conservation and management measures, the inspecting state shall secure evidence and promptly notify the flag state. The flag state must respond within three working days and either fulfil its investigation and enforcement obligations under article 19 or authorise the inspecting state to investigate. In the latter case, the flag state must then take enforcement action or authorise the inspecting state to take such action. Where there are clear grounds for believing that the vessel has committed a serious violation and the flag state has failed to respond or take action as required, the inspectors may remain on board and secure evidence and may require the master to bring the vessel into the nearest appropriate port.361 Article 23 provides that a port state has the right and duty to take measures in accordance with international law to promote the effectiveness of subregional, regional and global conservation and management measures.

One of the major regional organisations existing in this area is the North Atlantic Fisheries Organisation (NAFO), which came into being following the Northwest Atlantic Fisheries Convention, 1978. The organization has established a Fisheries Commission with responsibility for conservation measures in the area covered by this Convention. The European Community is a party to the Convention, although it has objected on occasions to NAFO’s total catch quotas and the share-out of such quotas among state parties. In particular, a dispute developed with regard to the share-out of Greenland halibut, following upon a decision by NAFO to reduce the EC share of this fishery in 1995. The EC formally objected to this decision using NAFO procedures and established its own halibut quota, which was in excess of the NAFO quota. In May 1994, Canada had amended its Coastal Fisheries Protection Act 1985 in order to enable it to take action to prevent further destruction of straddling stocks and by virtue of which any vessel from any nation fishing at variance with good conservation rules could be rendered subject to Canadian action. In early 1995, regulations were issued in order to protect Greenland halibut outside Canada’s 200-mile limit from overfishing. On 9 March 1995, Canadian officers boarded a Spanish vessel fishing on the high seas on the Grand Banks some 245 miles off the Canadian coast. The captain was arrested and the vessel seized and towed to a Canadian harbour.

Spain commenced an application before the International Court, but this failed on jurisdictional grounds. In April 1995, an agreement between the EC and Canada was reached, under which the EC obtained an increased quota for Greenland halibut and Canada stayed charges against the vessel and agreed to repeal the provisions of the regulation banning Spanish and Portuguese vessels from fishing in the NAFO regulatory area. Improved control and enforcement procedures were also agreed.365 Problems have also arisen in other areas: for example, the ‘Donut Hole’, a part of the high seas in the Bering Sea surrounded by the exclusive economic zones of Russia and the US, and the ‘Peanut Hole’, a part of the high seas in the Sea of Okhotsk surrounded by Russia’s economic zone. In 2001, the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean was signed. This agreement establishes a Commission to determine inter alia the total allowable catch within the area and to adopt standards for fishing operations.