bilateral Sustainable Fisheries Partnership Agreements between the European Union
and developing countries, such as Morocco, Senegal and others.
19
When it comes to the regulatory maneuver room of coastal states over deep-sea
fisheries within national jurisdiction, it is unfortunate that international law does not
regulate the issue specifically. No explicit rules on deep-sea fishing or bottom
trawling within national jurisdiction are currently in place. Such a scenario has
been confirmed by the FAO Report on the “Current Legal and Institutional Issues
relating to the Conservation and Management of High-Seas Deep-Sea Fisheries”, by
Erik Molenaar, according to whom
one of the most prominent gaps [in the governance of deep-sea fisheries] is the
non-applicability of the Fish Stocks Agreement to discrete high seas fish stocks. Other
relevant shortcomings relate to the regime for sedentary species, both on the continental
shelves of coastal States and on the seabed beyond the limits of national jurisdiction (the
Area).
20
Yet, a combined reading of specific provisions and values behind pertinent
treaties such as UNCLOS, the UNFSA and the CBD may offer guidance as to
coastal states’ jurisdiction on the issue. Particular obligations flow from those
instruments, namely the requirement for states to assess the impact of fishing
(including on the deep-sea), to minimize the impacts of fishing in ecosystems, to
apply precaution and an ecosystem approach to new and exploratory fisheries.
21
Ultimately, within the EEZ—and, therefore, on the continental shelf up to 200 nm—
coastal states are entitled to take a vast range of measures to regulate fisheries
domestically and to enforce its fisheries laws and regulations.
22 Based on that, with
respect to bottom-sea fisheries within national jurisdiction, it can be asserted that
coastal states have a relatively broad prescriptive jurisdiction, as stipulated by
UNCLOS Arts. 60, 61 combined with Arts. 192 to 194.
On to the enforcement powers within national jurisdiction, one must note that
such powers are not as vast as the legislative ones. In short, enforcement measures in
the EEZ, following whatever activities in violation of the domestic marine protective
framework in place therein, may range from boarding, inspection, arrest and initiation of civil and criminal proceedings, pursuant to Art. 73 (1) UNCLOS. Here, the
Convention only makes express reference to enforcement powers regarding management and conservation of living resources in Part V, without any express
indications as to the continental shelf. It does not mean, however, that coastal states
are expected not to enforce national legislation on sedentary species of the outer
continental shelf. As discussed supra (on the environmental prescriptive jurisdiction), coastal states enjoy sovereign rights for the purpose of exploring and
exploiting sedentary species of the continental shelf beyond 200 nm. Hence, it is
19 European Commission. SFPA Infographic. Available at: https://ec.europa.eu/fisheries/sites/fish
eries/files/docs/body/2015-sfpa_en.pdf. Accessed 12 April 2020.
20 See Molenaar (2007), p. 113.
21 See Gianni (2004), p. 67.
22 See Nelson (2010) para 23.
10.1 How Far May Brazil Go?
303
and developing countries, such as Morocco, Senegal and others.
19
When it comes to the regulatory maneuver room of coastal states over deep-sea
fisheries within national jurisdiction, it is unfortunate that international law does not
regulate the issue specifically. No explicit rules on deep-sea fishing or bottom
trawling within national jurisdiction are currently in place. Such a scenario has
been confirmed by the FAO Report on the “Current Legal and Institutional Issues
relating to the Conservation and Management of High-Seas Deep-Sea Fisheries”, by
Erik Molenaar, according to whom
one of the most prominent gaps [in the governance of deep-sea fisheries] is the
non-applicability of the Fish Stocks Agreement to discrete high seas fish stocks. Other
relevant shortcomings relate to the regime for sedentary species, both on the continental
shelves of coastal States and on the seabed beyond the limits of national jurisdiction (the
Area).
20
Yet, a combined reading of specific provisions and values behind pertinent
treaties such as UNCLOS, the UNFSA and the CBD may offer guidance as to
coastal states’ jurisdiction on the issue. Particular obligations flow from those
instruments, namely the requirement for states to assess the impact of fishing
(including on the deep-sea), to minimize the impacts of fishing in ecosystems, to
apply precaution and an ecosystem approach to new and exploratory fisheries.
21
Ultimately, within the EEZ—and, therefore, on the continental shelf up to 200 nm—
coastal states are entitled to take a vast range of measures to regulate fisheries
domestically and to enforce its fisheries laws and regulations.
22 Based on that, with
respect to bottom-sea fisheries within national jurisdiction, it can be asserted that
coastal states have a relatively broad prescriptive jurisdiction, as stipulated by
UNCLOS Arts. 60, 61 combined with Arts. 192 to 194.
On to the enforcement powers within national jurisdiction, one must note that
such powers are not as vast as the legislative ones. In short, enforcement measures in
the EEZ, following whatever activities in violation of the domestic marine protective
framework in place therein, may range from boarding, inspection, arrest and initiation of civil and criminal proceedings, pursuant to Art. 73 (1) UNCLOS. Here, the
Convention only makes express reference to enforcement powers regarding management and conservation of living resources in Part V, without any express
indications as to the continental shelf. It does not mean, however, that coastal states
are expected not to enforce national legislation on sedentary species of the outer
continental shelf. As discussed supra (on the environmental prescriptive jurisdiction), coastal states enjoy sovereign rights for the purpose of exploring and
exploiting sedentary species of the continental shelf beyond 200 nm. Hence, it is
19 European Commission. SFPA Infographic. Available at: https://ec.europa.eu/fisheries/sites/fish
eries/files/docs/body/2015-sfpa_en.pdf. Accessed 12 April 2020.
20 See Molenaar (2007), p. 113.
21 See Gianni (2004), p. 67.
22 See Nelson (2010) para 23.
10.1 How Far May Brazil Go?
303