The influence of international case law on aspects of international law relating to the conservation of living marine resources beyond national jurisdiction

Abstract

Under international law, there is no single legal body with the power to generate norms that are binding on all subjects without their consent. There is no centralized executive authority entrusted with implementation, while international adjudicating bodies have no compulsory or comprehensive jurisdiction. Apart from the absence of a centralized law-making and law-enforcement authority, most publicists insist that with the exception of jus cogens, there is no a priori hierarchy of sources under international law. This state of play is of particular relevance when one assesses the role of international adjudicating bodies as they settle disputes between states. International case law, like the writings of publicists, is not a formal source of international law but, rather, provides ‘evidence’ of the applicable norms in the circumstances. Decisions of the International Court of Justice (ICJ) and other international adjudicating bodies are binding only upon the parties to the dispute. Nevertheless, by taking as an example the conservation of living marine resources beyond national jurisdiction, this article attempts to demonstrate that the contribution made by the ICJ and other international tribunals to the development of international law may be more significant, especially when one considers the scenario referred to earlier.

This article will examine various judgments of the ICJ and other international tribunals and assess their role and relevance in the development of the international regulation of living marine resources occurring beyond national jurisdiction. The way states interpret the freedom of access over living resources on the high seas determines the manner in which they exercise regulatory and enforcement jurisdiction over them as well as the kind of conservation measures states obligate their nationals to take when fishing in marine areas beyond national jurisdiction. Bodies adjudicating international disputes over the exploitation of living marine resources have considered various legal issues in this field of international law, the following being among the most common. First, states tend to disagree on how they interpret the legal implications of freedom of fishing and the obligation to take conservation measures as a qualification to it. The article will examine those fisheries cases that have discussed to what extent the flag state’s freedom of access over living marine resources on the high seas is subject to the rights, duties, and interests of coastal states and of other flag state participants in the same fishery.

Second, another contentious legal issue relates to the interpretation of the exclusive enforcement jurisdiction of the flag state and to whether international law allows other states any right to act against states that either fail to adopt conservation measures on the high seas or that choose less stringent ones than those agreed upon via international co-operation agreements. This legal question revolves around the abuse of the flag state’s exclusive enforcement jurisdiction on the high seas. It affects both coastal states that have painstakingly developed a conservation plan for their exclusive economic zone (EEZ) or their exclusive fishing zone (EFZ) as well as states that are participants in the same high seas fishery and that have negotiated conservation measures via a co-operation agreement. In the first case, the coastal state expects flag states to exercise compatible conservation measures when their nationals fish on the high seas, and, in the second case, flag states, whose nationals are participating in a fishery, find it particularly frustrating and counter productive when another flag state who is not a party to the conservation agreement reached via co-operation takes no action against its fishing vessels that violate the conservation measures established in the agreement or else adopt inferior ones.

Third, another question that often arises in international fisheries disputes relates to the legal status of living marine resources occurring beyond national jurisdiction and whether international law obligates all states to ensure the conservation of living marine resources on the high seas whether they are harvestable or not. The debate surrounding the legal status of these resources also questions whether the obligation to take conservation measures on the high seas is vested in the international community at large as an erga omnes obligation. The cohort of rules regulating the conservation of marine living resources on the high seas has developed on an ad hoc basis, as a reaction to the historical and political developments that have occurred throughout the centuries. As it has become more and more specialized, this branch of international law has suffered from fragmentation, which has led to ambiguity and uncertainty when states have sought to interpret and apply applicable norms. The decisions of international adjudicating bodies provide the judges with an opportunity to identify what is the position of international law from the myriad of norms that have accumulated over time. This article will attempt to examine various international cases that have discussed the position of international law in fisheries disputes. Occasionally, it will also refer to some other landmark cases that have treated an entirely different subject matter whenever the legal arguments made by the judges therein may elucidate the interpretation of applicable international norms relating to the legal questions listed earlier.