Non-applicability is, however, mainly a problem in relation to non-Members of
RFMOs. The UNCLOS and the Fish Stocks Agreement pursue very different
approaches to this problem. The UNCLOS does so by linking rights and jurisdiction
through so-called ‘rules of reference’ to substantive fisheries standards adopted by
intergovernmental bodies, thereby leading to the so-called ‘indirectly binding effect
of the UNCLOS’. Rules of reference are also extensively used in Part XII of the
UNCLOS in relation to the different sources of marine pollution. The mechanism of
rules of reference and the indirectly binding effect of the UNCLOS arose in the
South China Sea arbitration, where the Tribunal took the view that
Article 94 incorporates the COLREGS into the Convention, and they are consequently
binding on China. It follows that a violation of the COLREGS, as “generally accepted
international regulations” concerning measures necessary to ensure maritime safety, constitutes a violation of the Convention itself.
93
The rule of reference in Article 94(5) of the UNCLOS at issue in the South China
Sea arbitration is, however, quite different from the rules of reference relating to
fisheries laid down in Articles 61(3) and 119(1)(a). Pursuant to Article 94(5), a flag
State is “required to conform to” the regulations referred to. Conversely, Articles 61
(3) and 119(1)(a) link the obligations for coastal States and high seas fishing States
on the determination of the TAC and the establishment of other conservation
measures to “any generally recommended international minimum standards,
whether subregional, regional or global”, but significantly weaken these by the
qualification “taking into account”.
While the Fish Stocks Agreement incorporates the UNCLOS’s rules of reference
in Articles 5(b) and 10(c), it also pursues various other approaches to the problem of
non-applicability. First of all, by becoming a party to the Fish Stocks Agreement, a
State consents to non-flag State high seas enforcement regardless as to whether that
State is a Member of the relevant RFMO.
94 Since the entry into force of the Fish
Stocks Agreement, however, this approach has never been used in practice.
95
Second, by becoming a party to the Fish Stocks Agreement, a State also accepts it
has a duty to cooperate with RFMO/As and that this duty can only be discharged by
becoming a Member or “by agreeing to apply [their] conservation and management
measures”.
96 RFMO/As have operationalized the latter mode of cooperation by
means of the status of cooperating non-contracting party (CNCP).
97 An alternative
mode of cooperation is implicitly presented as well: abstaining from fishing
to the SPRFMO Convention (note 51 supra). See Permanent Court of Arbitration (PCA) Cases Nos
2013-14 and 2018-13.
93 PCA Case No. 2013-19, Award on Jurisdiction and Admissibility dated 29 October 2015, at
para. 1083.
94 Art. 21.
95 See Rayfuse (2004).
96 Arts 8(3) and 17(1).
97 Some RFMOs use different terminology; see Molenaar (2019), Table 2 at pp. 116–118.
100
E. J. Molenaar
RFMOs. The UNCLOS and the Fish Stocks Agreement pursue very different
approaches to this problem. The UNCLOS does so by linking rights and jurisdiction
through so-called ‘rules of reference’ to substantive fisheries standards adopted by
intergovernmental bodies, thereby leading to the so-called ‘indirectly binding effect
of the UNCLOS’. Rules of reference are also extensively used in Part XII of the
UNCLOS in relation to the different sources of marine pollution. The mechanism of
rules of reference and the indirectly binding effect of the UNCLOS arose in the
South China Sea arbitration, where the Tribunal took the view that
Article 94 incorporates the COLREGS into the Convention, and they are consequently
binding on China. It follows that a violation of the COLREGS, as “generally accepted
international regulations” concerning measures necessary to ensure maritime safety, constitutes a violation of the Convention itself.
93
The rule of reference in Article 94(5) of the UNCLOS at issue in the South China
Sea arbitration is, however, quite different from the rules of reference relating to
fisheries laid down in Articles 61(3) and 119(1)(a). Pursuant to Article 94(5), a flag
State is “required to conform to” the regulations referred to. Conversely, Articles 61
(3) and 119(1)(a) link the obligations for coastal States and high seas fishing States
on the determination of the TAC and the establishment of other conservation
measures to “any generally recommended international minimum standards,
whether subregional, regional or global”, but significantly weaken these by the
qualification “taking into account”.
While the Fish Stocks Agreement incorporates the UNCLOS’s rules of reference
in Articles 5(b) and 10(c), it also pursues various other approaches to the problem of
non-applicability. First of all, by becoming a party to the Fish Stocks Agreement, a
State consents to non-flag State high seas enforcement regardless as to whether that
State is a Member of the relevant RFMO.
94 Since the entry into force of the Fish
Stocks Agreement, however, this approach has never been used in practice.
95
Second, by becoming a party to the Fish Stocks Agreement, a State also accepts it
has a duty to cooperate with RFMO/As and that this duty can only be discharged by
becoming a Member or “by agreeing to apply [their] conservation and management
measures”.
96 RFMO/As have operationalized the latter mode of cooperation by
means of the status of cooperating non-contracting party (CNCP).
97 An alternative
mode of cooperation is implicitly presented as well: abstaining from fishing
to the SPRFMO Convention (note 51 supra). See Permanent Court of Arbitration (PCA) Cases Nos
2013-14 and 2018-13.
93 PCA Case No. 2013-19, Award on Jurisdiction and Admissibility dated 29 October 2015, at
para. 1083.
94 Art. 21.
95 See Rayfuse (2004).
96 Arts 8(3) and 17(1).
97 Some RFMOs use different terminology; see Molenaar (2019), Table 2 at pp. 116–118.
100
E. J. Molenaar