which, beyond 200 miles, cease to be EEZs and become the high seas.
74 Some
RFMOs are competent to adopt management and conservation measures in the high
seas related not only to fishing catches, but also the conservation of marine biodiversity. In the case of the North East Atlantic, that is what NEAFC does. It focuses
on deep sea fisheries and works for the protection of vulnerable marine ecosystems.
Currently, the framework is Recommendation 19: 2014.
75
The scope of application of that Recommendation is the NEAFC Regulatory
Area,
76 and it states very clearly that it does not affect the rights of coastal states over
their CS.
77 But some coastal states have asked for clarification of NEAFC’s geographical scope.
78 Is it a way of defending themselves against the organisation
(creeping jurisdiction of NEAFC) or just the opposite (creeping jurisdiction of the
coastal states)?
When it comes to states, the transboundary harm arising from “hazardous activities” (activities involving a risk of significant harm) is mainly focused on the “state
of origin”. Both states must cooperate, but it is the state of origin that is subject to the
obligation of prevention.
79 A similar approach might be considered in relation to an
international organisation with material (fishing) and geographical (high seas) competence. Since the activity is authorised to be carried out in the high seas, the fact of
using fishing gear that comes into contact with or is likely to contact the sea floor
74 On the protection of biodiversity in the extended CS, see, e.g.: Ribeiro (2017a).
75 Art. 1 of the Recommendation on the protection of vulnerable marine ecosystems in the NEAFC
Regulatory Area (hereinafter NEAFC-Recommendation 19:2014): “The objective of this Recommendation is to ensure the implementation by NEAFC of effective measures to prevent significant
adverse impacts of bottom fishing activities on vulnerable marine ecosystems known to occur or
likely to occur in the NEAFC Regulatory Area based on the best available scientific information
provided or endorsed by the International Council for the Exploration of the Sea (ICES)”.
76 Id., Art. 1: “(. . .) known to occur or likely to occur in the NEAFC Regulatory Area (. . .)”.
77 Id., Art. 3: “This Recommendation shall be without prejudice to any sovereign rights of coastal
States over the continental shelf in accordance with the UN Convention on the Law of the Sea for
the purpose of exploring and exploiting its natural resources, including living organisms belonging
to sedentary species, such as vulnerable marine ecosystems”.
78 “(. . .) Norway and the Russian Federation introduced document AM 2017-31. Norway explained
that the proposal was aimed at amending Recommendation 19:2014 in order to clarify its geographical scope in the light of Coastal States’ rights on continental shelves under the United Nations
Convention of the Law of the Sea”. NEAFC (2017) 36th Annual Meeting Report–2017.
79 “Prevention of Transboundary Harm from Hazardous Activities”, annexed to General Assembly
Resolution 62/68 (2007). Art. 2: “(. . .) d) “State of origin” means the State in the territory or
otherwise under the jurisdiction or control of which the activities referred to in Article 1 are planned
or are carried out; e) “State likely to be affected” means the State or States in the territory of which
there is the risk of significant transboundary harm or which have jurisdiction or control over any
other place where there is such a risk; f ) “States concerned” means the State of origin and the State
likely to be affected”. Art. 3: “Prevention. The State of origin shall take all appropriate measures to
prevent significant transboundary harm or at any event to minimize the risk thereof”. Art. 4:
“Cooperation. States concerned shall cooperate in good faith and, as necessary, seek the assistance
of one or more competent international organizations in preventing significant transboundary harm
or at any event in minimizing the risk thereof”.
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
457
74 Some
RFMOs are competent to adopt management and conservation measures in the high
seas related not only to fishing catches, but also the conservation of marine biodiversity. In the case of the North East Atlantic, that is what NEAFC does. It focuses
on deep sea fisheries and works for the protection of vulnerable marine ecosystems.
Currently, the framework is Recommendation 19: 2014.
75
The scope of application of that Recommendation is the NEAFC Regulatory
Area,
76 and it states very clearly that it does not affect the rights of coastal states over
their CS.
77 But some coastal states have asked for clarification of NEAFC’s geographical scope.
78 Is it a way of defending themselves against the organisation
(creeping jurisdiction of NEAFC) or just the opposite (creeping jurisdiction of the
coastal states)?
When it comes to states, the transboundary harm arising from “hazardous activities” (activities involving a risk of significant harm) is mainly focused on the “state
of origin”. Both states must cooperate, but it is the state of origin that is subject to the
obligation of prevention.
79 A similar approach might be considered in relation to an
international organisation with material (fishing) and geographical (high seas) competence. Since the activity is authorised to be carried out in the high seas, the fact of
using fishing gear that comes into contact with or is likely to contact the sea floor
74 On the protection of biodiversity in the extended CS, see, e.g.: Ribeiro (2017a).
75 Art. 1 of the Recommendation on the protection of vulnerable marine ecosystems in the NEAFC
Regulatory Area (hereinafter NEAFC-Recommendation 19:2014): “The objective of this Recommendation is to ensure the implementation by NEAFC of effective measures to prevent significant
adverse impacts of bottom fishing activities on vulnerable marine ecosystems known to occur or
likely to occur in the NEAFC Regulatory Area based on the best available scientific information
provided or endorsed by the International Council for the Exploration of the Sea (ICES)”.
76 Id., Art. 1: “(. . .) known to occur or likely to occur in the NEAFC Regulatory Area (. . .)”.
77 Id., Art. 3: “This Recommendation shall be without prejudice to any sovereign rights of coastal
States over the continental shelf in accordance with the UN Convention on the Law of the Sea for
the purpose of exploring and exploiting its natural resources, including living organisms belonging
to sedentary species, such as vulnerable marine ecosystems”.
78 “(. . .) Norway and the Russian Federation introduced document AM 2017-31. Norway explained
that the proposal was aimed at amending Recommendation 19:2014 in order to clarify its geographical scope in the light of Coastal States’ rights on continental shelves under the United Nations
Convention of the Law of the Sea”. NEAFC (2017) 36th Annual Meeting Report–2017.
79 “Prevention of Transboundary Harm from Hazardous Activities”, annexed to General Assembly
Resolution 62/68 (2007). Art. 2: “(. . .) d) “State of origin” means the State in the territory or
otherwise under the jurisdiction or control of which the activities referred to in Article 1 are planned
or are carried out; e) “State likely to be affected” means the State or States in the territory of which
there is the risk of significant transboundary harm or which have jurisdiction or control over any
other place where there is such a risk; f ) “States concerned” means the State of origin and the State
likely to be affected”. Art. 3: “Prevention. The State of origin shall take all appropriate measures to
prevent significant transboundary harm or at any event to minimize the risk thereof”. Art. 4:
“Cooperation. States concerned shall cooperate in good faith and, as necessary, seek the assistance
of one or more competent international organizations in preventing significant transboundary harm
or at any event in minimizing the risk thereof”.
23 North East Atlantic Marine Protected Areas Beyond National Jurisdiction.. . .
457