Status «ecological» obligations of a flag state as an integral part of the «genuine link» conception

The modern legal regime of a flag State’s status “ecological” obligations is composed by a legislation (laws and regulations) of two levels: international and national. The legislation of both the levels is consistent with the generally accepted international rules, standards and recommended practices and procedures, the “UNCLOS’82”, the rights of States and prescribes, inter alia, measures to be taken for the protection and preservation of the marine environment pollution – measures to prevent, reduce and control pollution of the marine environment – the States’ “ecological” obligations. It is generally accepted in international maritime law to dived abovementioned obligations in: status “ecological” obligations of the “shore States”, status “ecological” obligations of the “port States” and status “ecological” obligations of the “flag States”. The research topic is certainly relevant given the almost catastrophic situation due to pollution of the world's oceans and the environment in general. The research methodology includes methods of analysis and synthesis, dogmatic method and comparative law method. This research focuses on the definition of the modern international legal regime of a flag State’s status “ecological” obligations. These obligations form a flag State’s legal status and could be qualified as an integral part of the “genuine link” conception. The author of the article concluded that the current conventions in the field of maritime law aimed at protecting the world's oceans play an important role, but no less important tasks are to improve national legislation of coastal countries, as well as proper implementation of both international and national norms aimed at the protection and restoration of the world's oceans.

Outer limits of the continental shelf beyond CLCS recommendations and Article 76(8) of UNCLOS: With reference to Japan’s Cabinet Order No. 302

In 2014 Japan’s Cabinet Order No. 302 declared the outer limits of its continental shelf beyond 200 nautical miles (OL) to the west and north of Oki-no-Tori Shima (Area 302). Oki-no-Tori Shima consists of two small, barren, and uninhabitable rocks in the West Pacific. The northern part of Area 302 is broader than what the 2012 recommendations of the Commission on the Limits of the Continental Shelf (CLCS) specify. A question arises whether Order No. 302 violates Article 76(8) of the United Nations Convention on the Law of the Sea (UNCLOS), which provides that the OL established by a coastal state ‘on the basis of’ the CLCS recommendations shall be final and binding. Another question is the role played by the CLCS in ‘assisting’ the coastal states to delimit their national jurisdiction so as to know where the Area (i.e., the Common Heritage of Mankind under UNCLOS Articles 1(1)(1) and 136) begins. The essential questions arising from Area 302 concern how well the UNCLOS mechanism can perform to safeguard the Common Heritage of Mankind through preventing encroachment thereupon by individual coastal states. This article looks at the context and explores the obligations implied by Article 76(8) for coastal states to ‘follow’ the recommendations in establishing the OL, with special reference to the northern part of Area 302. The article also examines legal consequences arising from a breach of these obligations.

One Fish, Two Fish, Few Fish, No Fish: Regional Fisheries Management Organisations, IUU Fishing and High Seas Fisheries Management

<p>The World's fisheries are in a desperate state, they have been utilised to a point where a majority of the fisheries resources are fully exploited. In addition to overfishing, the responsibility of the sad state of affairs of the world's High Seas' fish stocks can be put down to inefficient management. The high seas fisheries regime is dominated by two powerful, tried, tested and consented to norms: the principle of freedom of fishing on the high seas and the principle of exclusive flag state jurisdiction over flagged vessels on the high seas. These Grotius norms (unintentionally) obstruct effective and meaningful high seas fisheries management, and have enabled unscrupulous states and actors to take advantage of the lacunae created by the UNCLOS High Seas fisheries framework and engage in IUU fishing which has resulted in a tragedy of the high seas commons. Furthermore these norms have a 'hobbling' effect on RFMOS and coastal states alike, and leave them almost powerless to ensure flag-state compliance with their sustainable fishing measures without the consent of the flag state, and totally unable to enforce its measures directly on that flagged vessel. Thus in the absence of an express reference to the superiority of coastal state rights over those of high seas fishing states, freedom of high seas fishing prevails. However the international community armed with weaker UNCLOS obligations of conservation and co-operation and have fought the good fight, and in lightening speed have constructed a normative framework that is additional to but consistent and complimentary with the UNCLOS regime. With the use of port state measures, voluntary instruments that codify responsible fisheries practice, surveillance and the denial of the right to land IUU fish – the fight is gradually beginning to turn in favour of the international community.</p>

One Fish, Two Fish, Few Fish, No Fish: Regional Fisheries Management Organisations, IUU Fishing and High Seas Fisheries Management

<p>The World's fisheries are in a desperate state, they have been utilised to a point where a majority of the fisheries resources are fully exploited. In addition to overfishing, the responsibility of the sad state of affairs of the world's High Seas' fish stocks can be put down to inefficient management. The high seas fisheries regime is dominated by two powerful, tried, tested and consented to norms: the principle of freedom of fishing on the high seas and the principle of exclusive flag state jurisdiction over flagged vessels on the high seas. These Grotius norms (unintentionally) obstruct effective and meaningful high seas fisheries management, and have enabled unscrupulous states and actors to take advantage of the lacunae created by the UNCLOS High Seas fisheries framework and engage in IUU fishing which has resulted in a tragedy of the high seas commons. Furthermore these norms have a 'hobbling' effect on RFMOS and coastal states alike, and leave them almost powerless to ensure flag-state compliance with their sustainable fishing measures without the consent of the flag state, and totally unable to enforce its measures directly on that flagged vessel. Thus in the absence of an express reference to the superiority of coastal state rights over those of high seas fishing states, freedom of high seas fishing prevails. However the international community armed with weaker UNCLOS obligations of conservation and co-operation and have fought the good fight, and in lightening speed have constructed a normative framework that is additional to but consistent and complimentary with the UNCLOS regime. With the use of port state measures, voluntary instruments that codify responsible fisheries practice, surveillance and the denial of the right to land IUU fish – the fight is gradually beginning to turn in favour of the international community.</p>

Fisheries management policy in Indonesia’s Exclusive Economic Zone area

The existing fisheries management within the Indonesian Exclusive Economic Zone (EEZ) is based upon several regulations derived from international conventions, national regulations, as well as conventions mutually agreed by Regional Fisheries Management Organizations members, which is intended to ensure that fish resources in the EEZ area can be managed optimally and sustainably. The sole purpose of this qualitative research is to examine national and international policies that regulate fisheries management in the Indonesian EEZ waters. The analysis was carried out qualitatively with a normative juridical approach and then descriptively elaborated. The results showed that the national regulations issued by the government has already referred to the UNCLOS 1982 and WCPFC Conventions, but the implementation has been far from optimal due to the heaps of regulatory references. Therefore, it is of utmost importance that the government set its policies on setting up appropriate regulations and simplifying all national regulations governing fisheries management in the Indonesian EEZ into a single regulation. It is meant to avoid overlapping arrangements and facilitate a much better implementation.

Potential Contribution of Sponsoring State and Its National Legislation to the Deep Seabed Mining Regime

Companies and legal persons intending to conduct activities in the Area must be sponsored by a State Party of the UNCLOS, which constitute a “dual-track mechanism” with ISA as a primary regulator and sponsoring state as a secondary regulator. This regime setting places companies and legal persons subject to international and national legislation simultaneously. The sponsoring state’s national legislation is thus an integrated part of the DSM regime. This resolves the defects that private entities in DSM are not subject to international law and weak enforcement of international organizations. However, UNCLOS neither draws a clear line of competence between the sponsoring state and the ISA nor provides compulsory components that national legislation should contain, resulting in the disparity between the objective of the establishment of sponsorship and the status quo of the sponsoring state’s role and its national legislation. This paper analyzes the competence of a sponsoring state and regulatory aspects it should focus on to assist the ISA and further proposes such components of the national legislation contributing to the DSM regime.

Diplomasi Maritim Indonesia dalam Kasus Illegal Fishing oleh Nelayan Vietnam Tahun 2018-2019

Indonesia is considered as a maritime state due to the fact the 2/3 of its territory is covered by the sea. Indonesian waters hold a high potential for maritime resources. With this potential comes a challenge for Indonesia to manage and protect its maritime resources from foreign actors that try to enter Indonesian waters and exploit the resources in it illegally or conduct illegal fishing. Vietnam has become the country of origin for most of the perpetuators of illegal fishing from 2018-2019. This research aims to explain the efforts of Indonesia through maritime diplomacy to in order to tackle the issue of illegal fishing that has been conducted by Vietnamese fishing ships. This article will use the UNCLOS 1982 convention as a legal basis and the concepts of maritime security and maritime diplomacy as a theoretical basis to explain Indonesia’s maritime borders and efforts to assert sovereignty over Indonesian maritime territory. A descriptive research method will be used in this article. This article views that Indonesia’s maritime diplomacy effort is still in compliance with UNCLOS 1982 and the theory of maritime diplomacy which includes the following: 1) cooperative diplomacy which is conducted through bilateral cooperation; 2) persuasive diplomacy through displaying presence in maritime territory; 3) coercive diplomacy through sinking of Vietnamese fishing ships.