Helga Law Journal - 01.01.2021, Blaðsíða 80

Helga Law Journal Vol. 1, 2021
82
Helga Guðmundsdóttir
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resources in its respective EEZ is not seriously endangered.15 To understand how
the coastal States have manifestly failed to meet their obligations, it is first
necessary to examine their rights and obligations with regard to the maintenance
of the living resources in their EEZs.
2.1.1 General Rights and Obligations of Coastal States with regard to the Maintenance of
Living Resources
The overall aim of the rights and obligations of the Convention is arguably to avoid
the actualization of the tragedy of the commons. Prior to the entry into force of
the Convention, the exclusive rights of coastal States over living resources were
internationally recognized in only a narrow area, while fishing for living resources
in the high seas area beyond was largely unregulated. The uncontrolled exploitation
on the high seas necessarily also impacted the stocks within coastal States’ narrow
national jurisdiction, prompting them to claim rights and jurisdiction over the fish
stocks further from their coasts.16 These demands were accommodated by the
recognition in the Convention of coastal States’ sovereign rights within a 200 nm
EEZ to manage the exploitation of the stocks therein (effectively placing 90% of
the world’s fish within coastal State jurisdiction).17 Since the impetus for this
system was the desire to curb the overexploitation of stocks – i.e., to avoid the
tragedy of the commons –, these sovereign rights unsurprisingly come with clear
obligations to conserve the stocks.
The rights and obligations of coastal States in the EEZ are set out in Part V
of the Convention. According to article 55 these include the sovereign right to
exploit the living resources within the EEZ, as also affirmed in article 56. In
exercising its rights the coastal State is nonetheless bound by the obligation to take
measures to conserve and manage the fish stock in its EEZ in accordance with
article 61.
(A) The obligation to conserve the fish stock in the EEZ
Article 61 lays out a number of obligations that the coastal State must fulfil in
order to ensure the conservation of a stock. It must set a total allowable catch
(“TAC”) and it must, taking into account the best scientific information available
to it, take measures that ensure the conservation of the stock, including measures
that: (i) ensure that a fish stock’s population stays at a level which can produce
what is referred to as the maximum sustainable yield (‘MSY’);18 (ii) take account of

15 Convention, article 297(3)(b)(i).
16 A. V. Lowe and R.R. Churchill, The Law of the Sea (2nd ed., Manchester University Press 1999) 161.
17 Ibid 282
18 A fish stock will typically remain at its maximum size until it is fished, at which point it will decrease
and subsequently increase rapidly to reach its former level. The MSY sets the parameter at which the
greatest amount of a particular fish stock may be fished without depleting the entire stock, resulting in
sustainable fisheries in the long-term. The stock will then remain at the maximum level despite fisheries
year after year. Ibid, at 282. The MSY as determined by the coastal State is also qualified by certain
attained represented a reversal of the trend then prevailing in international
negotiations.’11 Thus, failing settlement of a fisheries dispute by methods agreed
by the parties, they have the meaningful option of subjecting the dispute to the
procedure of compulsory conciliation set out in the article 297(3)(b)(i) of the
Convention. Indeed, this somewhat overlooked procedure, which has only been
invoked in one (maritime boundary) dispute to date,12 could prove to be the tool
necessary to resolve future fisheries disputes arising from changed migration
patterns of fish stocks.
2.1 The 1982 United Nations Convention on the Law of the Sea
The 1982 United Nations Convention on the Law of the Sea was the result of a
process which started in 1973 with the convening of the Third United Nations
Conference on the Law of the Sea (‘the Conference’). During this nine-year
process, representatives of more than 160 States came together and negotiated the
treaty which governs the management of 70% of the world’s surface and immense
State interests.13 The Convention, furthermore, established a coastal State’s right
to an EEZ of 200 nautical miles (“nm”) in which it has sovereign rights for the
purpose of exploring and exploiting, conserving and managing the natural
resources.
The five main parties to the mackerel dispute, the EU, Iceland, Norway, the
Faroe Islands and Greenland, are all bound by the Convention.14 Compulsory
conciliation can be initiated under the Convention in a fisheries dispute provided
certain criteria are fulfilled. Namely, compulsory conciliation may be initiated
where a dispute arises as a result of the alleged manifest failure of a coastal State
to comply with its obligations to ensure that the maintenance of the living

11 Gudmundur Eiriksson, The International Tribunal for the Law of the Sea (Brill 2000) 11.
12 See Timor Sea Conciliation (Timor-Leste v. Australia), PCA, Case 2016-10. The outcome of the
conciliation has been lauded as a success, with one commentator writing: ‘[The] Timor-Leste-Australia
conciliation has set a very positive precedent of using conciliation to settle interstate maritime disputes.
The case shows the functionality of UNCLOS conciliation, as it was able to resolve a decades-long and
highly complex dispute in such an efficient manner.’ See Hao Duy Phan, ‘Australia and Timor-Leste’s
Landmark Maritime Boundary Conciliation Process’ (2018), The Diplomat.
13 ‘The United Nations Convention on the Law of the Sea: A Historical Perspective’ (United Nations),
<www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm> accessed
23 October 2021.
14 The Faroe Islands and Greenland, as self-governing territories under the Kingdom of Denmark, are
bound by the Convention through Denmark. As Denmark is a member of the EU, its competence
with regard to fisheries is largely substituted for that of the EU’s through the Common Fishery Policy.
However, in Denmark’s declaration upon accession to the Convention it stated that this transferral of
competence to the EU does not extend to matters pertaining to the Faroe Islands or Greenland. The
EU is a Party to the Convention also in its own right under article 305(1)(f) and Annex IX which affirm
that the Convention is open for signature by international organizations. Under article 2(2), the
Convention applies mutatis mutandis to these entities, and the term ‘States Parties’ in the Convention
refers to these entities as well. Moreover, the United Kingdom is also a State Party and would, post-
Brexit, presumably become an independent party to the dispute. See 1833 UNTS.