Harmonizing International Regimes for the Sustainable Use of Living Resources
Chapter 6: Enforcement jurisdiction on the high seas and the conservation of living resources
Chapter 5 identified compliance and enforcement measures as one of the constituent elements which states consider to be essential for an effective conservation regime. State practice shows that despite this consensus these provisions remain the toughest to negotiate in any agreement on the subject.1 Enforcement under international law is, generally speaking, both difficult to agree upon and to implement. It is particularly challenging with respect to the conservation of living resources on the high seas, due to their vast expanses, which hamper thorough and effective enforcement. Apart from these geophysical reasons, there are also various legal stumbling blocks. UNCLOS does not establish what kind of compliance and enforcement measures should be taken by states to fulfil their obligation to adopt the ‘necessary’ conservation measures when fishing on the high seas.2 Furthermore, despite the qualifications to the freedom of fishing imposed upon the flag state, compliance and enforcement obligations on the high seas remain entrenched within its exclusive jurisdiction, unless the flag state specifically agrees otherwise. This gives rise to contrasting legal arguments as to what extent, if at all, other entities may be responsible for and allowed to secure compliance with conservation measures, when the flag state fails to do so. Responsibility for compliance depends upon whether the conservation measures were breached in a maritime zone subject to a coastal state or a flag state jurisdiction.
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