Dominance of Flag State Undissolved: Implementation of Conservation Measures in High Seas Fisheries

Thank you, Sravi. Thank you for the Cambridge Journal of International Law to organize this conference and thank you for all the participants. Today I will talk about the domination of the flag state and dissolved, which is focused on if there are any laxies speculates of jurisdiction have been established in the field of fishing on the high sea. I focused on this question because we can see that now conservation matters have been established through international multilateral and bilateral treaty. And I noticed that the panelists have mentioned about the international enforcement, but unluckily the enforcement regime or the enforcement organ hasn't been established in any international organization. So that states individually exercising jurisdiction. I think it's the only way currently to enforce those conservation matters of the fisheries on high sea. So that came to my question. And I give this question in the context that since 1902, for disputes between ICGE plus WTODSU and arbitration tribunal have been concerned that the question of the jurisdiction that the non-flag state can exercise on high sea in terms of the fishing, but there is no clear directions on this have been given by any international judicial body. And on the other hand, the laxity generally established by the ETROS in the North Star cases has again conformed the principle of exclusive jurisdiction of flag states on the high sea. So that has to be taken into account at the background to test the question that whether the laxity speculates of jurisdiction has been established in a certain aspect of fishing on the high sea. And according to the judgment, the interpretation of exclusive jurisdiction of high sea by the ETROS in the North Star case, it means that any act which subject activities of a foreign ship on the high seas to jurisdiction or any actual exercise of jurisdiction over the ship, the foreign ships on high sea, and thus the non-flag state jurisdiction can be justified by the convention or other international treaties. Those jurisdictions exercised by the non-flag state is illegal. So the question of my research turns into a specific question of is there any custom recognizing the extension or exercise of jurisdiction because it can be established as the exceptional rule applied in the high sea fishery other than the conventional exceptions given by the convention or the treaties which is dominated by the flag state's agreement or flag state consent. And to examine the question of is there any custom, so automatically we come to different two elements. One is the practice, general practice, and the other is opinion risk. And when it comes to the general practice concerning that point, three specific questions need to be answered. First, is there any practice of exercising the jurisdiction on high sea by the non-flag state? If there is any, what kind of the categories we can classify in those jurisdictions? And the second is, is there any alleged application widespread enough? And to answer them respectively, is there any practice? By examining the current state practice, I find out four categories of the jurisdiction that non-flag states can exercise on high sea in terms of fishing. The first is that coastal state jurisdiction. States apply the jurisdiction within certain areas among high seas towards any foreign vessels fishing in that area. The example of this can be found in the exercise of jurisdiction in regional fishery organization and also the exercise of jurisdiction in MPA, marine protected area. I also call it a coastal territorial jurisdiction because we cannot regard any jurisdiction exercise on high sea as territorial, as legally territorial. But in fact, it has been exercise applied within the area. So the area is the basis for the exercise of that jurisdiction. That's why I call it a coastal territorial. And the second basis is the national jurisdiction towards the fishermen. The state applies the jurisdiction towards the nationals fishing on the high sea. And the third is the post-state jurisdiction, which means the state apply the jurisdiction towards the foreign vessels activities on high sea, which intends to enter their ports. And the fourth one is the market state jurisdiction, which means the market state apply jurisdiction towards the foreign vessels, which intends their products to be exported to the markets of those states. And for the post-state and the market state, one point I need to clarify is the difference between the application of port regulation towards the activity of entering or towards the activity of importing. The difference of this kind of jurisdiction, exercise of jurisdiction, and another kind of exercise of jurisdiction, which is application of fishing regulation towards the activities on the fishing on the high sea. Because on the surface of pre-fisher, we can see that this kind of jurisdiction may be regarded as just an application of the port regulation or the import regulation, which is territorial jurisdiction by the state. But on the other effect, since the port regulation or the import regulation is not only enforced by themselves, because that's in this kind of regulation, there is a presumption thing that if the fishing vessel violate the conservation matters in those states on high sea, then the port regulation or the import regulation will be enforced. So that the legality of the states of the Fishing Vessels Act on the high sea fishery works at the presumption of the application of the territorial jurisdiction. So that the legality of the activities on fishing activities on high sea of other foreign ships, in fact, has been passed by the national law. So that's why I presume the difference between those and I come up with the post-state jurisdiction and the market state jurisdiction towards the high sea fishery. And so the second question, as long as we conclude that there are four categories of practice, whether those practices have been invested right now, I think the answer could be yes, because there is no absolute standard can be for any practice to be regarded as spread in all the cases. But as the International Law Commission's report has informed, that there should be attached for each cases in terms of its context. So in this case, the context is the fishery jurisdictions exercised by states. And by looking into all the judgments on this, a judgment or a word on this, I can find three cases. One is 1974 fishery cases by ICG, 1998 fishery jurisdiction cases by ICG, and 2006 arbitration between Barbados and the Republic of Trinidad and Tobago. So Trinidad and Tobago. So in this case, we can conclude the court and arbitral tribunal standard of judging whether there is practice in terms of fishery jurisdictions. We can see that they give the combination of the prohibitions in widely accepted treaty, and also the practice reflected in bilateral and multilateral treaties and state practice by the state from different continents. The combination of those three practices have been regarded as evidence by the court and by arbitral tribunal to prove the widespreadness of those practices. And they do not only choose one of these cases. They usually combine two or three of these cases to test. So by establishing such kind of standard, we can test about all those jurisdictions. And unfortunately, the coastal state jurisdiction failed to pass this test. Because although there is Article 21 United Nations Fish Stock Agreement on the exercise of jurisdiction of the non-flag state within the regional fishery organizations, but there is no bilateral or multilateral treaty gives state the power to exercise the jurisdiction within the regional fishery organization towards non-parties. And for the state practice, till now, I can only see that one state, Canada, will have exercised this, but for other state practice, I see none. And there is no consensus towards this specific article has been reflected in the United Nations Conference on the Fishery Stocks. I see the consensus on the entire treaty, but there is no evidence to prove the exact consensus or consent in this specific article. And for the national market and also the post-state jurisdiction, the test can be passed. So because there are not only that the internationally widely accepted treaty has been established in terms of that jurisdiction, and also we can find bilateral and multilateral practice reflected in the regional fishery organizations. And also we can find some states practice, which includes not only the continent of Europe, which also include like Asia and also America, even Africa, so that we can see that the practice of those three jurisdictions, in fact, have been vascularized. But the vascularized practice, although it is that the first test of the custom, it's the only test. And we have to find if there is any common dominator among those practice, so that we can see that the practice is consistent enough as a settled practice, or which can constitute custom. And in this case, we can find that, we can find like several cases of the objection, but it's very rare. And according to the judgment of ICG, interpretation of ICG, those kind of the uniform cannot be, does not need to be like a waterly uniform. So that, yeah, I will wrap up quickly. And so that I think the common dominator can be found to about the three jurisdiction basis. And then we come to the most difficult question, which I haven't finished the research, but it's the most important is the opinion you raised. Because although the practice can be, which are now generally appear, but the opinion you raised that the reason why the state conduct those practice as you highlight to be fine. And the existence of that opinion you raised need to be proved rather than be presumed. So that the opinion you raised, that the action or reason to exercise it as the right of state shall be expressed one, rather than default one. So that's kind of standard established by ICG in several cases has given the difficulties to find opinion you raised of those three jurisdictions, especially the opposing evidence that the state object of this kind of jurisdiction as a right has been given by the international court of justice in the Lotus case and in the military and paramilitary activity case. So that the national jurisdictions exercised by the Darflag state has encountered problems because there is one judgment of European court of justice in 1992, which denied application of the conservation matters towards the nationals. And the acceptance, the last difficulty to prove this kind of acceptance is that the acceptance of a right in a treaty does not itself lead to an interference as to the recognition of a right and their customary international law. So that a separate agreement need to be proved and need to be proved by the expressed evidence. And that evidence is very hard to find. Although I find some clue in the post-state agreement, but it still needs to be proved. So my conclusion is that the custom of exercising the Darflag state jurisdiction, even just for a single basis, is hardly to be claimed as established. So the Darflag state still maintains the dominance in the exercise of jurisdiction over taxi fishery. But we can witness that since the first trend of the access in 1990s till now, the practice has been widespread. And this should be noticed and should be, I think, be appreciated by us. And so till now, to the future, I think the important point is that the state should be clear on whether, on the reasons of its exercising this jurisdiction. And the researcher, maybe the judges, need to look into the detailed reasons of states doing that practice to see that how the jurisdiction exercised by the Darflag state towards fishery, can establish or be developed. Thank you very much. I'm sorry for the delay.