Harmonizing International Regimes for the Sustainable Use of Living Resources
Chapter 2: Regulatory jurisdiction over living resources on the high seas
State jurisdiction has two distinct but complementary aspects. Regulatory jurisdiction refers to the legal competence of a state to make decisions and prescribe rules, whilst enforcement jurisdiction refers to its power to implement and enforce them. Municipal law determines the application of jurisdictional powers by the legislative, executive and judicial organs of the State, whereas the extra-territorial application of state jurisdiction is regulated by international law. The regulatory jurisdiction of states over living resources on the high seas is governed by various norms that emerge from customary international law, treaties and general principles of law. These norms evolved over the centuries to meet the emerging needs, priorities and interests of the international community. This chapter will focus upon the right of access over these resources and how this right is qualified vis-à-vis third parties. Another aspect of the regulatory jurisdiction of states whose nationals exploit living resources on the high seas includes their obligation to take conservation measures; this will be discussed in the next three chapters. Enforcement jurisdiction will be dealt with in Chapters VI and VII. UNCLOS establishes that all states, whether coastal or landlocked, have access to the high seas, and that no state can appropriate these areas by exercising sovereignty or sovereign rights over all or any part thereof. Article 87 codifi es the so-called high seas freedoms, founded upon Grotius’ legendary work Mare Liberum, which promotes the free seas common property approach as an inclusive interest vested in the international community as a whole.
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