Following almost ten years of negotiations, the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOF Agreement) was concluded on 3 October 2018 in Ilulissat, Greenland. The CAOF Agreement is the first regional fisheries agreement adopted prior to the initiation of fishing in a specific area, and it has already been lauded as a science-based measure and a manifestation of the precautionary approach by representatives of States and Non-Governmental Organizations. This article provides a critical analysis of the content of the CAOF Agreement. It gives an overview of the negotiations which led to the conclusion of the CAOF Agreement and discusses its spatial and substantive scope. Particular attention is paid to the extent that the CAOF Agreement adopts a precautionary approach to conservation and management of high seas fisheries, and to the issue of participation in this regional fisheries treaty.
The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. Furthermore, publication in the Bulletin of information concerning developments relating to the law of the sea emanating from actions and decisions taken by States does not imply recognition by the United Nations of the validity of the actions and decisions in question.
Illegal fishing in the Exclusive Economic Zones [EEZs] of developing coastal States is an urgent problem for the marine environment, global food security, and local economies. While past academic debate has predominantly focused on obligations of flag States to tackle so called IUU-fishing in the High Seas, the recent request for an advisory opinion submitted by the Sub-Regional Fisheries Commission to the International Tribunal for the Law of the Sea (ITLOS, Case No. 21) has drawn attention to the fisheries regime of the EEZ. This article argues that the primary responsibility for fisheries management in the EEZ rests on the coastal State and that, so far, flag States have no obligation under customary international law to exercise their jurisdiction and control over vessels flying their flag which fish in the EEZ of other States. The article first gives an account of coastal State regulatory and enforcement jurisdiction. It outlines recent developments of the law by drawing on the jurisprudence of the ITLOS, particularly the recent M/V "Virginia G" Case. Further, the article undertakes to identify potential flag State obligations to combat illegal fishing in the EEZ. To that end, it provides an in-depth analysis of relevant binding and non-binding legal instruments such as the 1982 UN Convention on the Law of the Sea, other multilateral treaties, bilateral fisheries treaties, and relevant soft-law instruments of the Food and Agriculture Organization. The article also discusses the relevance of principles of international environmental law. Next, the article analyzes the nature and scope of potential flag State obligations, qualifying them as obligations of due diligence. Finally, the article concludes that, de lege lata, no persuasive evidence of established flag State obligations exists. The author suggests that the situation should be remedied by a new, fully binding legal instrument.
On October 3, 2018, the so-called “Arctic Five plus Five�1 concluded the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA, CAOF Agreement or Ilulissat Agreement).2 The CAOFA establishes a precautionary framework for the regulation of fisheries in the high seas of the central Arctic Ocean (CAO), including a temporary moratorium on unregulated commercial fishing.3 The purpose of this debate article is not to discuss the CAOFA’s provisions on fisheries as such, but to take a look at a number of interesting and novel provisions concerning the interests of indigenous and local communities, particularly with respect to incorporation of indigenous and local knowledge into science-based fisheries management in the CAO.4
On 29 March 2019, the United Kingdom (UK) will leave the European Union (EU). Consequently, the EU’s Common Fisheries Policy (CFP), including the rules on fisheries access, will cease to apply to the UK. The article analyses the legal regime for post-Brexit exclusive economic zone (EEZ) fisheries access between the UK and the EU against the background of the current legal status quo under the CFP. The article then proceeds to an analysis of potential lex ferenda. In this respect, it first discusses the EEZ fisheries access arrangements for the Brexit transition period contained in the prospective withdrawal agreement of 2018. In a second step, the article undertakes to identify key issues faced by the UK and the EU in negotiating a future framework regulating their fisheries access relationship.
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