Helga Law Journal - 01.01.2021, Síða 83

Helga Law Journal Vol. 1, 2021
84
Helga Guðmundsdóttir
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drafters of the Convention recognized that fish stocks do not respect the
boundaries of a single coastal State’s EEZ and, while the management and
conservation of the living resources within its EEZ was left to the coastal State’s
discretion, this was accompanied by certain obligations to attempt to cooperate
with other parties where the fish stock in question is a shared stock, as provided
in particular in article 63.
While article 63 does not expressly stipulate an obligation to actually reach an
agreement on conservation measures as a prerequisite to exploiting the shared
stocks, there is nonetheless an express obligation to seek to reach an agreement.
This obligation must, as other provisions of the Convention, be carried out in good
faith in accordance with article 300 of the Convention. In the North Sea Continental
Shelf cases the International Court of Justice considered a similar duty to seek to
reach an agreement, and determined the exigency of making an effort to actually
reach an agreement with the following words:
[…] the parties are under an obligation to enter into negotiations with a
view to arriving at an agreement, and not merely to go through a formal
process of negotiation as a sort of prior condition for the automatic
application of a certain method […]; they are under an obligation so to
conduct themselves that the negotiations are meaningful, which will not
be the case when either of them insists upon its own position without
contemplating any modification of it […].24
Parties to any fisheries dispute over shared stocks – including those party to
the mackerel dispute – cannot comply with their obligation under article 63 of the
Convention to seek to reach an agreement unless they do so in good faith. They
must undertake a serious effort to reach the objective on which the duty to
negotiate is founded; in this case the conservation of the mackerel stock within
and beyond their national jurisdictions.
However, upon a failure to reach an agreement, the parties are for all intents
and purposes free to unilaterally determine the conservation and management
measures applicable to the shared stock within their respective EEZs by virtue of
their sovereign rights. The important disclaimer here is that States must comply
with their other obligations under international law, including the obligation to
ensure that the stock is not endangered.
No other articles in the Convention expressly address the collaborative
management of a shared fish stock. The Convention does not further detail how
such cooperation will be realized, apart from determining that it may either be
done directly by the parties in question or through an international organization.
For example, in the North East Atlantic, a regional organization, the North-East

24 Annick Van Houtte, Gordon Munro and Rolf Willmann, ‘The Conservation and Management of
Shared Fish Stocks: Legal and Economic Aspects’ (2004), FAO Fisheries Technical Paper 465
<www.fao.org/docrep/007/y5438e/y5438e00.htm> accessed 23 October 2021; North Sea Continental
Shelf (Federal Republic of Germany/Netherlands and Federal Republic of Germany/Denmark), Judgment, [1969]
ICJ Rep 3, 48.
generally recommended international minimum standards;19 (iii) take account of
fishing patterns; and (iv) consider negative effects of the fisheries on species
associated with or dependent upon exploited stock with a view to negating such
effects. Importantly, however, and in no uncertain terms, the article lays down a
strict obligation to prevent over-exploitation of a fish stock.20
The emphasis in the Convention on conservation over exploitation is arguably
evident also in article 62, the gist of which is that a State has the obligation to
harvest the entire TAC it determines in accordance with article 61, and must where
it does not have the capacity to harvest the entire TAC give other States access to
the surplus. However, paragraph 1 stipulates that ‘[t]he coastal State shall promote
the objective of optimum utilization of the living resources in the exclusive
economic zone without prejudice to article 61 [on the conservation of the living resources].’21
In accordance with the foregoing, there is no obligation to actually ensure the
‘optimum utilization’ (read as ‘exploitation’) of a fish stock, but rather to promote
such (‘optimum’, as opposed to maximum) utilization, provided that it does not
affect proper conservation of a species. The utilization obligation is therefore not
as strict as that of ensuring the non-endangerment of the stock.22
(B) The obligation to cooperate with other parties fishing the same
stock to ensure proper management of that stock
Part V therefore makes it apparent that the principle of conservation laid out
in article 61 is central to the EEZ regime and has a predominant role in a coastal
State’s exercise of its right to exploit the resources therein.23 That being said, the

environmental and economic factors, such as the economic needs of the fishing communities. In light
of this, one could imagine that a fish stock may perhaps be fished above the MSY level for some period
when the State is experiencing financial difficulties – provided this does not permanently endanger the
stock.
19 Several international standards may be relevant, including FAO’s Code of Conduct for Responsible
Fisheries.
20 Cf. article 61(2), which provides that: ‘The coastal State […] shall ensure through proper conservation
and management measures that the maintenance of the living resources in the exclusive economic zone
is not endangered by over-exploitation.’ Emphasis added.
21 Convention, article 61(1). Emphasis added.
22 Myron H. Nordquist, Satya Nandan and Shabtai Rosenne (eds), ‘Article 61 - Conservation of the
Living Resources (II)’, UN Convention on the Law of the Sea Commentary 1982 (Martinus Nijhoff Publishers
2013) 635. In light of this a coastal State could set a fairly low total allowable catch qualifying its MSY
by its interests, leaving little fish to be caught and no surplus to be accessed by third parties.
23 The provisions in Part VII of the Convention on the high seas also evidence the paramount
importance of complying with the obligation to conserve the living resources. Articles 117 to 119
concern the duty to take measures to conserve the high seas stocks, the duty to cooperate with other
States in their conservation and the factors that must be referred to in determining appropriate
conservation and management measures. The preferential right of coastal States to the exploitation of
the fish stocks is furthermore emphasized in article 116 which concerns the freedom of high seas
fisheries and determines that the freedom is subject to rights, duties and interests of coastal States
provided for, inter alia, in the provisions concerning stocks which occur in both the EEZ of a coastal
State and on the high seas. Convention, articles 116(1)(b) and 87(1)(e).