states. Leaving aside the formulas for collaboration
66
—or more
67
—agreed by
neighbouring states, does international law afford states any kind of right in relation
to marine areas under the jurisdiction of a neighbouring state? That is, does it
recognise any rights afforded not to any state but rather only to the neighbouring
state? And what about the high seas?
Setting aside the case of pollution casualties, which does effectively grant powers
to the coastal state on the high seas (Article 221) but concerns an exceptional
situation, there is the case of fisheries management. UNCLOS does not grant any
preference to the coastal state beyond the EEZ with respect to straddling stocks
(Article 63) or highly migratory stocks (Article 64). Although it does recognise a
“primary interest” on the part of the state of origin with respect to anadromous stocks
(Article 66), such stocks are not usually fished beyond 200 miles.
68 In contrast, one
of the instruments for the implementation of UNCLOS, the Fish Stocks Agreement,
69 does recognise the coastal state’s preference in relation to straddling stocks
and highly migratory species. Consequently, many consider that agreement to be a
manifestation of creeping jurisdiction. On the other hand, others emphasise that it is
a voluntarily accepted regime; only the agreement’s imposition on non-party
states,
70 or difficulty accessing RFMOs,
71 would justify considering it an instance
of creeping jurisdiction. Nevertheless, difficulty accessing certain RFMOs has been
reported.
72
The voluntary acceptance of a restriction (acceptance as source of obligation)
must not be confused with the acceptance of a situation already established (acceptance in the sense of acknowledgement of obligation). It should be kept in mind in
the case of the extended CS. The CS regime is unique and, therefore, is the same
regime up to 200 miles and beyond.
73 The difference is in the overlying waters,
66 For example, Joint Development Areas; see Ong (2011).
67 For example, the so-called “Special Area” agreed by Norway and Russia, an area where Russia is
entitled to exercise sovereign rights and jurisdiction that would correspond to Norway. Art. 3, Treaty
between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation
and Cooperation in the Barents Sea and the Arctic Ocean, 2010. See, e.g.: Jensen (2011).
68 With regard to straddling stocks, Franckx (2007, pp. 474–476) refers to the ultimately unsuccessful attempt by Argentina and Canada to change the wording of Art. 63, para. 2 UNCLOS. With
regard to anadromous stocks, the author notes that “the cooperation with the State of origin applies
much [more] often in the framework of neighbouring countries sharing one and the same stock of
anadromous fish”.
69 UN Agreement for the Implementation of the Provisions of the UNCLOS relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks
(in force as from 11 December 2001).
70 “The UN Fish Stocks Agreement would only have to be considered as an instance of ‘creeping
jurisdiction’ if certain States would, for instance, attempt to implement Article 8 paragraph 4 directly
vis-á-vis States not parties to the Agreement” (Franckx 2007, p. 495).
71 Vázquez Gómez (2002), p. 252.
72 Vázquez Gómez (2014).
73 Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in
the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p. 4; see
paragraph 361.
456
M. Sobrido-Prieto
66
—or more
67
—agreed by
neighbouring states, does international law afford states any kind of right in relation
to marine areas under the jurisdiction of a neighbouring state? That is, does it
recognise any rights afforded not to any state but rather only to the neighbouring
state? And what about the high seas?
Setting aside the case of pollution casualties, which does effectively grant powers
to the coastal state on the high seas (Article 221) but concerns an exceptional
situation, there is the case of fisheries management. UNCLOS does not grant any
preference to the coastal state beyond the EEZ with respect to straddling stocks
(Article 63) or highly migratory stocks (Article 64). Although it does recognise a
“primary interest” on the part of the state of origin with respect to anadromous stocks
(Article 66), such stocks are not usually fished beyond 200 miles.
68 In contrast, one
of the instruments for the implementation of UNCLOS, the Fish Stocks Agreement,
69 does recognise the coastal state’s preference in relation to straddling stocks
and highly migratory species. Consequently, many consider that agreement to be a
manifestation of creeping jurisdiction. On the other hand, others emphasise that it is
a voluntarily accepted regime; only the agreement’s imposition on non-party
states,
70 or difficulty accessing RFMOs,
71 would justify considering it an instance
of creeping jurisdiction. Nevertheless, difficulty accessing certain RFMOs has been
reported.
72
The voluntary acceptance of a restriction (acceptance as source of obligation)
must not be confused with the acceptance of a situation already established (acceptance in the sense of acknowledgement of obligation). It should be kept in mind in
the case of the extended CS. The CS regime is unique and, therefore, is the same
regime up to 200 miles and beyond.
73 The difference is in the overlying waters,
66 For example, Joint Development Areas; see Ong (2011).
67 For example, the so-called “Special Area” agreed by Norway and Russia, an area where Russia is
entitled to exercise sovereign rights and jurisdiction that would correspond to Norway. Art. 3, Treaty
between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation
and Cooperation in the Barents Sea and the Arctic Ocean, 2010. See, e.g.: Jensen (2011).
68 With regard to straddling stocks, Franckx (2007, pp. 474–476) refers to the ultimately unsuccessful attempt by Argentina and Canada to change the wording of Art. 63, para. 2 UNCLOS. With
regard to anadromous stocks, the author notes that “the cooperation with the State of origin applies
much [more] often in the framework of neighbouring countries sharing one and the same stock of
anadromous fish”.
69 UN Agreement for the Implementation of the Provisions of the UNCLOS relating to the
Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks
(in force as from 11 December 2001).
70 “The UN Fish Stocks Agreement would only have to be considered as an instance of ‘creeping
jurisdiction’ if certain States would, for instance, attempt to implement Article 8 paragraph 4 directly
vis-á-vis States not parties to the Agreement” (Franckx 2007, p. 495).
71 Vázquez Gómez (2002), p. 252.
72 Vázquez Gómez (2014).
73 Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in
the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p. 4; see
paragraph 361.
456
M. Sobrido-Prieto