The second consideration has to do with the management of sedentary species by
regional fisheries management organisations/agreements (hereinafter, RFMO/As).
Since sedentary species in ABNJs are considered by some RFMOs a fishing resource
that they can manage, should these RFMOs be understood to manage living
resources in any ABNJ (water column and deep seabed)? Or should RFMOs be
understood to consider sedentary species to be part of the water column? Regardless
of the response, or even if there is no answer, RFMOs cover sedentary species only
to the extent that these resources are located in ABNJs. They thus do not pose a
threat to national jurisdiction over the CS. However, whilst some RFMOs recognise
this explicitly (e.g. the Northwest Atlantic Fisheries Organization),
28 the lack of such
a clarification by the North East Atlantic Fisheries Commission (hereinafter,
NEAFC) provoked controversy.
29 We are referring to the Juras Vilkas case, in
which Norwegian Courts had to decide about harvesting of snow crabs on the
extended Norwegian CS in the Loophole. Since the Loophole is a high seas pocket
included in the NEAFC regulatory area, did the national restriction on conducting
fishery operations for snow crabs within the Norwegian extended CS in the Loophole infringe Norway’s international obligations under the NEAFC Convention?
The EU fishing industry supported the argument in favour of the NEAFC’s jurisdiction,
30 but ultimately this argument did not prosper. Given that no one may
explore a CS or exploit its natural resources without the express consent of the
coastal state holder of the rights over that CS,
31 the point was to clarify whether the
fact of being part of an RFMO with competence over sedentary species could be
considered “express consent” for these purposes. Norwegian courts ruled out this
interpretation,
32 especially given that the NEAFC can also give advice concerning
28 Art. 1, Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries.
29 The Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries (hereinafter NEAFC Convention), in force since November 1982. Considering that sedentary species are
harvested or affected by fisheries, the Contracting Parties to the NEAFC Convention decided to
include those species in the scope of the NEAFC Convention. To this end, they amended the
NEAFC Convention on 11 August 2006 (on that amendment and the reasons for it, see Recitals 5–6
of Council Decision 2009/550/EC, OJ L 184, 16.7.2009, pp. 12–15). The amendment is in force
since 2013. Thus, today, Art. 1 NEAFC Convention provides: “For the purpose of this Convention
the following definitions apply: (. . .) b) ‘Fishery resources’ means resources of fish, molluscs,
crustaceans and including sedentary species (. . .)”.
30 Europêche (2017).
31 Art. 77.2 UNCLOS.
32 On 24 January 2017, the District Court considered that the Norwegian Regulation was contrary to
Norway’s obligations under the NEAFC Convention. For a critical comment, see: Dahl and
Johansen (2017). However, on 28 June 2017, the Court of Appeal issued a judgment stating that
the District Court’s judgment was based on an incorrect application of the law because the NEAFC
Convention does not restrict the rights granted to the States Party under UNCLOS. Finally, on
29 November 2017, the Supreme Court dismissed the appeal against the Court of Appeal’s
judgment.
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
449
regional fisheries management organisations/agreements (hereinafter, RFMO/As).
Since sedentary species in ABNJs are considered by some RFMOs a fishing resource
that they can manage, should these RFMOs be understood to manage living
resources in any ABNJ (water column and deep seabed)? Or should RFMOs be
understood to consider sedentary species to be part of the water column? Regardless
of the response, or even if there is no answer, RFMOs cover sedentary species only
to the extent that these resources are located in ABNJs. They thus do not pose a
threat to national jurisdiction over the CS. However, whilst some RFMOs recognise
this explicitly (e.g. the Northwest Atlantic Fisheries Organization),
28 the lack of such
a clarification by the North East Atlantic Fisheries Commission (hereinafter,
NEAFC) provoked controversy.
29 We are referring to the Juras Vilkas case, in
which Norwegian Courts had to decide about harvesting of snow crabs on the
extended Norwegian CS in the Loophole. Since the Loophole is a high seas pocket
included in the NEAFC regulatory area, did the national restriction on conducting
fishery operations for snow crabs within the Norwegian extended CS in the Loophole infringe Norway’s international obligations under the NEAFC Convention?
The EU fishing industry supported the argument in favour of the NEAFC’s jurisdiction,
30 but ultimately this argument did not prosper. Given that no one may
explore a CS or exploit its natural resources without the express consent of the
coastal state holder of the rights over that CS,
31 the point was to clarify whether the
fact of being part of an RFMO with competence over sedentary species could be
considered “express consent” for these purposes. Norwegian courts ruled out this
interpretation,
32 especially given that the NEAFC can also give advice concerning
28 Art. 1, Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries.
29 The Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries (hereinafter NEAFC Convention), in force since November 1982. Considering that sedentary species are
harvested or affected by fisheries, the Contracting Parties to the NEAFC Convention decided to
include those species in the scope of the NEAFC Convention. To this end, they amended the
NEAFC Convention on 11 August 2006 (on that amendment and the reasons for it, see Recitals 5–6
of Council Decision 2009/550/EC, OJ L 184, 16.7.2009, pp. 12–15). The amendment is in force
since 2013. Thus, today, Art. 1 NEAFC Convention provides: “For the purpose of this Convention
the following definitions apply: (. . .) b) ‘Fishery resources’ means resources of fish, molluscs,
crustaceans and including sedentary species (. . .)”.
30 Europêche (2017).
31 Art. 77.2 UNCLOS.
32 On 24 January 2017, the District Court considered that the Norwegian Regulation was contrary to
Norway’s obligations under the NEAFC Convention. For a critical comment, see: Dahl and
Johansen (2017). However, on 28 June 2017, the Court of Appeal issued a judgment stating that
the District Court’s judgment was based on an incorrect application of the law because the NEAFC
Convention does not restrict the rights granted to the States Party under UNCLOS. Finally, on
29 November 2017, the Supreme Court dismissed the appeal against the Court of Appeal’s
judgment.
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
449