not need to be an environmentalist to grasp the environmental traumas that such a
practice casts, especially if conducted in massive, Anthropocene-like scales. The
main problems of bottom-trawling are the destruction of deep-sea habitats and
ecosystems, damages to the structural elements of deep-sea ecosystems due to
physical impact, and high rates of by-catch and untargeted fish, which are crucial
species to the structure of benthic ecosystems are among.
16 Thus, the question: how
far may coastal states reach when enforcing international and domestic legislation
against destructive fishing, such as bottom trawling, in areas under national
jurisdiction?
Bottom-trawling matters dearly for coastal states with outer continental shelves,
as the legal regime applicable thereon must deal with an overlap between maritime
zones. Above the outer shelf, states enjoy freedom to fish in the water column,
according to Art. 87 UNCLOS, while coastal states have exclusive sovereign rights
over the sedentary species lying on the seafloor within national jurisdiction, in line
with Art. 77 (4) UNCLOS. The former is regulated by the high seas fisheries’
regime, whereas the latter follows the continental shelf regime.
High seas fishing takes place beyond coastal states’ exclusive economic zone and
is governed by the 1995 United Nations Fish Stock Agreement (UNFSA), an
implementing treaty to UNCLOS, adopted in order to reduce and control fishing in
the high seas.
17 The trend initiated by the Implementing Agreement was confirmed
by the 1995 Code of Conduct for Responsible Fisheries, as well as the 2008
International Guidelines for the Management of Deep-Sea Fisheries, both adopted
under the auspices of the UN Food and Agriculture Organization (FAO). The current
international legal regime governing fisheries attributes to coastal states a significantly limited jurisdiction over high seas fishing, as the activity is regulated by
specific RFMOs and bi- or multilateral agreements—pursuant to UNCLOS Art.
116–119 and UNFSA Art. 10. An example of such RFMOs is the International
Commission for the Conservation of Atlantic Tunas (ICCAT),
18 or the several
16 For more on the environmental issues raised by bottom-sea trawling, see Stiles et al. (2010)
online. Visit also the website of the Marine Conservation Institute, a Non-Governmental Organization based in the United States, at https://marine-conservation.org/. Accessed 12 April 2020.
17 The 1995 UNFSA consolidated efforts for enhanced coordination and cooperation between
coastal and flag states, who shall cooperate through international and regional bodies, such as the
Regional Fisheries Management Organizations, or RFMOs. The legal regime created by the 1995,
including the reliance on RFMOs, has been described as a “fine-tuned mare clausum in the limited
context of fisheries regulation enforcement”. See Türk (2012), p. 179. The Agreement also effects a
sort of “encroachment” to freedom to fish in the high seas, a restriction which should be welcomed
as necessary and beneficial to the conservation and management of endangered fishes, including
straddling and highly migratory stocks. In fact, freedom to fish has “outlived its legitimacy”, due to
the mounting dangers of fish stock depletion. See Pendleton (2005), p. 514.
18 The ICCAT aims at conserving more than 30 species of Atlantic Tuna and Tuna-like stocks. The
Commission if the main body of the International 1966 Convention for the Conservation of Atlantic
Tunas, signed in Rio de Janeiro. For more on the working of this specific RFMO, visit: https://www.
iccat.int/en/. Accessed 12 April 2020.
302
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...
practice casts, especially if conducted in massive, Anthropocene-like scales. The
main problems of bottom-trawling are the destruction of deep-sea habitats and
ecosystems, damages to the structural elements of deep-sea ecosystems due to
physical impact, and high rates of by-catch and untargeted fish, which are crucial
species to the structure of benthic ecosystems are among.
16 Thus, the question: how
far may coastal states reach when enforcing international and domestic legislation
against destructive fishing, such as bottom trawling, in areas under national
jurisdiction?
Bottom-trawling matters dearly for coastal states with outer continental shelves,
as the legal regime applicable thereon must deal with an overlap between maritime
zones. Above the outer shelf, states enjoy freedom to fish in the water column,
according to Art. 87 UNCLOS, while coastal states have exclusive sovereign rights
over the sedentary species lying on the seafloor within national jurisdiction, in line
with Art. 77 (4) UNCLOS. The former is regulated by the high seas fisheries’
regime, whereas the latter follows the continental shelf regime.
High seas fishing takes place beyond coastal states’ exclusive economic zone and
is governed by the 1995 United Nations Fish Stock Agreement (UNFSA), an
implementing treaty to UNCLOS, adopted in order to reduce and control fishing in
the high seas.
17 The trend initiated by the Implementing Agreement was confirmed
by the 1995 Code of Conduct for Responsible Fisheries, as well as the 2008
International Guidelines for the Management of Deep-Sea Fisheries, both adopted
under the auspices of the UN Food and Agriculture Organization (FAO). The current
international legal regime governing fisheries attributes to coastal states a significantly limited jurisdiction over high seas fishing, as the activity is regulated by
specific RFMOs and bi- or multilateral agreements—pursuant to UNCLOS Art.
116–119 and UNFSA Art. 10. An example of such RFMOs is the International
Commission for the Conservation of Atlantic Tunas (ICCAT),
18 or the several
16 For more on the environmental issues raised by bottom-sea trawling, see Stiles et al. (2010)
online. Visit also the website of the Marine Conservation Institute, a Non-Governmental Organization based in the United States, at https://marine-conservation.org/. Accessed 12 April 2020.
17 The 1995 UNFSA consolidated efforts for enhanced coordination and cooperation between
coastal and flag states, who shall cooperate through international and regional bodies, such as the
Regional Fisheries Management Organizations, or RFMOs. The legal regime created by the 1995,
including the reliance on RFMOs, has been described as a “fine-tuned mare clausum in the limited
context of fisheries regulation enforcement”. See Türk (2012), p. 179. The Agreement also effects a
sort of “encroachment” to freedom to fish in the high seas, a restriction which should be welcomed
as necessary and beneficial to the conservation and management of endangered fishes, including
straddling and highly migratory stocks. In fact, freedom to fish has “outlived its legitimacy”, due to
the mounting dangers of fish stock depletion. See Pendleton (2005), p. 514.
18 The ICCAT aims at conserving more than 30 species of Atlantic Tuna and Tuna-like stocks. The
Commission if the main body of the International 1966 Convention for the Conservation of Atlantic
Tunas, signed in Rio de Janeiro. For more on the working of this specific RFMO, visit: https://www.
iccat.int/en/. Accessed 12 April 2020.
302
10 Brazilian Legal Framework Applicable to the Blue Amazon’s...