AustLII Home | Databases | WorldLII | Search | Feedback

Australian Year Book of International Law

You are here:  AustLII >> Databases >> Australian Year Book of International Law >> 1999 >> [1999] AUYrBkIntLaw 14

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

Rayfuse, Rosemary --- "The United Nations Agreement on Straddling and Highly Migratory Fish Stocks as an Objective Regime: A Case of Wishful Thinking?" [1999] AUYrBkIntLaw 14; (1999) 20 Australian Year Book of International Law 253

The United Nations Agreement on Straddling and Highly Migratory Fish Stocks as an Objective Regime: A Case of Wishful Thinking?

Rosemary Rayfuse[∗]


The Grotian[1] conception of the freedom of the seas is dead. Geographically, the high seas have been significantly reduced in area. Development of the concepts of port state and coastal state control evidence a move away from pure flag state control and, therefore, further restrictions on high seas freedoms. In addition, restrictions relating to prohibitions against piracy, slavery, drug-trafficking, terrorist acts and unauthorised broadcasting have developed as a result of ‘public policy’ concerns over these activities. Likewise, restrictions, such as those on dumping and carriage of hazardous wastes, have arisen as a result of increasing environmental concerns.

In the high seas fishing context the restrictions on the freedom are primarily found in the 1982 United Nations Convention on the Law of the Sea (LOSC)[2] and the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks[3] (the Agreement or FSA). Under the LOSC the freedom is restricted by, inter alia, the obligation to cooperate in the conservation and management of high seas fisheries resources.[4] The FSA goes further and requires either cooperation through and within regional and subregional fisheries organisations and arrangements (RFOs)[5] or, where cooperation is not engaged in, abstention from fishing on the high seas.[6]

According to Professor Francisco Orrego Vicuña:

The 1995 Agreement has in fact provided that only those states members of an organisation or participants in an arrangement, or otherwise agreeing to apply measures adopted under those mechanisms, “shall have access to the fishery resources to which those measures apply” …

If a state entitled to participate because of its fisheries activities in the region refuses to, [participate or otherwise agree to comply] then the consequence will be that it will lawfully be excluded from such fisheries. The provisions regarding non-participation and even deterrence measures shall apply to these states, … Whether this solution amounts to a denial of the freedom of such states to fish on the high seas, as has been argued, is debatable since the freedom to fish does not mean that it must be unregulated or done in a manner contrary to conservation and rational management. The whole evolution of the law of high seas fisheries has been pointing in this direction and the 1995 Agreement has only made explicit what was already well advanced in international law. Furthermore, the 1995 Agreement can be identified in this respect with the establishment of an objective regime under international law, governing not only relations between parties to it but also the conduct of other states in a particular area. The right to fish is not affected by this solution, but the conditions for its exercise are established under a particular organization or arrangement.[7]

In other words, he suggests that the FSA objectifies RFOs making their management mandates binding and enforceable against non-members.[8]

‘Objective regimes’ are defined as treaty regimes that create ‘obligations and rights valid erga omnes’.[9] The concept originated in the work of the International Law Commission on the law of treaties where the question of whether a treaty could create rights or obligations for third states was a vexed and contentious one. Resolution of the question continues to be controversial.[10] Application of the objective regime concept has been examined in respect of a number of treaty regimes, including those regulating Antarctica,[11] the deep sea-bed[12] and outer space.[13] Its application has also been canvassed in the context of the moratorium on high seas driftnet fishing.[14] Commentators have, in each case, found the concept either applicable or wanting. Indeed, there seems to be considerable dispute as to whether objective regimes can ever exist as an independent concept in international law in the form of an exception to the pacta tertiis rule, or whether their existence is merely a result of the ordinary processes of creation of customary international law.[15] Nevertheless, the concept arises periodically, phoenix like, in the literature. The assertion by Orrego Vicuña that the FSA establishes an objective regime in respect of the opposability of RFOs to third parties therefore begs a new enquiry.

A number of theoretical approaches have been taken in the literature in order to explain the erga omnes effect of objective regimes. Simma conveniently divides these approaches into three categories: the law of treaties approach, the ‘public law’ theories approach, and the ‘subsequent practice’ approach in the face of a ‘change in paradigms’.[16] The law of treaties approach seeks to establish objective regimes as an exception to the res inter alios acta and pacta tertiis rules. The ‘public law’ theories approach justifies objective regimes on the basis that ‘a group of states have assumed quasi-legislative competence to create a regulatory regime for a defined territory in the overall community interest’.[17] The ‘subsequent practice’ approach posits that treaties, intended to create objective regimes, may come to do so through the operation of the rules for the formation of customary international law. This article will adopt Simma’s broad categorisation for the purposes of examining the claim of the FSA to objective regime status.

The practical importance of this enquiry is readily apparent. Only 59 states signed the FSA upon its adoption and, as of 31 March 2000, it has received only 26 of the 30 ratifications or accessions needed to bring it into force. Even when the Agreement does come into force the likelihood exists that a significant number of states who currently flag high seas fishing vessels will not be party to it. If the Agreement only operates inter partes then the problems posed by unregulated high seas fishing will remain unsolved. The assertion of third party effects may, therefore, be fundamental to the success of the Agreement and the broader goal of effective, long-term sustainable conservation and management of straddling and highly migratory fish stocks. This paper will conclude, however, that the FSA does not, ‘of its own impact’[18] create an objective regime either of itself or in respect of RFOs, and it is too early to tell whether state practice will ultimately lead to a different result.

Objective Regimes and the Law of Treaties

The general rule: pacta tertiis nec nocent nec prosunt

Article 34 of the Vienna Convention on the Law of Treaties[19] (VCLT) embodies the well-established rule that treaties create neither rights nor obligations for third states without their consent. This rule is derived from the ancient Roman law maxim, pacta tertiis nec nocent nec prosunt: agreements neither impose obligations nor confer rights on third parties. Traditional wisdom holds that the principle derives, ‘at any rate as far as concerns the question of obligations, from the general principle of consent as being the foundation of the treaty obligation’,[20] the requirement for consent being based on the sovereignty and independence of states.[21]

The pedigree of the pacta tertiis rule is firmly established.[22] Writing in 1917 Roxburgh concluded that ‘[t]he practice of States fully confirms the unanimous view of Publicists that a third state cannot incur legal obligations under a treaty to which it is not a party’.[23] Likewise, “[m]any other cases can be found in the practice of States to show that a treaty cannot impose obligations on a third party; but it is unnecessary to labour an undisputed point”.[24] In respect of treaties beneficial to third states he concluded that, “[n]o Publicist has ever suggested that a third State can ever acquire rights under a treaty which benefits it merely incidentally, and the practice of nations supplies evidence to show that it cannot do so”.[25] Nevertheless, the question of possible exceptions to the pacta tertiis rule has been, and continues to be, a matter of debate.

The concept of objective regimes

In 1960, Fitzmaurice, as Special Rapporteur to the International Law Commission on the Law of Treaties, identified certain ‘glosses’ on the pacta tertiis rule. These he described as ‘quasi-exceptions’ or ‘qualifications’, as opposed to exceptions, as they did not purport to give third states rights or obligations under a treaty, but rather took cognizance of the fact that by operation of general international law third states might ‘be or become possessed of certain obligations or rights in relation to the treaty’.[26] Fitzmaurice identified four principles on which glosses on the pacta tertiis rule could be justified: active consent; consent presumed; automatic entailment of rights and obligations; and respect for lawful, valid or legitimate international acts.[27] While Fitzmaurice did not specifically use the term ‘objective regimes’, he did examine numerous cases of treaties which he concluded ‘lean somewhat heavily on the side of the “international status”, having effects erga omnes, theory,’[28] although he felt the better principles on which to rely were those he had posited and which, clearly, were seen as preferable due to their consensual nature. As he put it, the conclusion that a treaty has erga omnes effect was not to be reached

on the basis of some mystique attaching to certain types of treaties, but simply on that of a general duty for States — which can surely be postulated at this date (and which is a necessary part of the international order if chaos is to be avoided) — to respect, recognize and, in the legal sense, accept, the consequences of lawful and valid international acts entered into between other States, which do not infringe the legal rights of States not parties to them in the legal sense.[29]

Fitzmaurice’s successor, Sir Humphrey Waldock, took up the baton and introduced the concept of objective regimes, albeit in very limited circumstances. Waldock proposed a draft Article (63) headed ‘Treaties providing for objective regimes’ according to paragraph 1 of which,

A treaty establishes an objective regime when it appears from its terms and from the circumstances of its conclusion that the intention of the parties is to create in the general interest general obligations and rights relating to a particular region, State, territory, locality, river, waterway, or to a particular area of sea, sea-bed, or air-space; provided that the parties include among their number any State having territorial competence with reference to the subject-matter of the treaty, or that any such State has consented to the provision in question.[30]

The following paragraphs provide that a third state which expressly or impliedly consents to the creation or application of the regime, or does not protest against it within the requisite amount of time will be considered to have accepted it. Such a state will be bound by the regime’s general obligations — those intended to operate erga omnes — and entitled to invoke the provisions of the regime and to exercise general rights conferred by it subject to the terms of the treaty. Unless the treaty provides otherwise, amendment or revocation can only be accomplished with the concurrence of those states that have expressly or impliedly accepted the regime and have a substantial interest in its functioning.

In Waldock’s conception the fundamental elements of an objective regime were, therefore, the specified intention of the parties and either the express consent or the inclusion among their numbers of the state or states having territorial competence with reference to the subject matter.[31] Notably, Waldock specifically excluded law-making treaties concerned with general international law or with areas not subject to the exclusive jurisdiction of any state from his definition of objective regime. Thus, treaties dealing with outer space or with the high seas and treaties creating international obligations were specifically excluded.[32] While such treaties might operate erga omnes, the legal process by which this occurred differed from the process followed in the cases he defined as objective regimes.

Despite the carefully drawn parameters of the rule, the article was criticised by several members of the Commission and ultimately deleted. The Commission considered,

that the provision in Article 32, regarding treaties intended to create rights in favour of States generally, together with the process mentioned in the present article, [draft article 34 providing for the development of a concurrent customary rule] furnish a legal basis for the establishment of treaty obligations and rights valid erga omnes, which goes as far as is at present possible.[33]

In other words exceptions could only arise by specific consent or by operation of the normal customary processes. These ‘exceptions’ to the pacta tertiis rule were ultimately included in the VCLT. Article 35 provides that a provision in a treaty can create obligations for a third state only if that third state expressly accepts the obligation in writing. Article 36 provides that a provision in a treaty can create rights for a third state if the parties to the treaty so intend and the third state assents to it. Article 37 provides that revocation or modification of such a right can only be done with the consent of the parties to the treaty and the third states, unless otherwise agreed. A further exception found in Article 38 provides that rules in a treaty may become binding on a third state as a customary rule of international law. However, as Arrow notes, these ‘exceptions’ are not ‘exceptions’ at all, as, consistent with the International Law Commission’s (ILC) conception, they all rely in some form or other on the consent of the third state, somehow expressed, thereby continuing to uphold the fundamental requirement of consent by a state to any limitations on its sovereignty.[34]

Application of the law of treaties approach to the FSA

In applying the law of treaties approach to the FSA, it is instructive to remember that from the start Waldock exempted treaties dealing with high seas areas from his definition of objective regimes.[35] Results achieved in respect of these areas resulted from other processes in the formation of international law. Prima facie, therefore, the law of treaties approach does not apply to the FSA at all. If we suspend our disbelief, however, it may be possible to apply the provisions of the VCLT to the FSA to examine whether a third party effect is established.

In some respects, the whole animus vivendi of the FSA is to create third party effects. The FSA makes it clear that ‘only those who play by the rules may fish’[36] and goes about setting up an elaborate scheme to ensure compliance with and enforcement of that proposition. Parties to the FSA undertake to be bound by the conservation and management mandates of RFOs of which they are not necessarily members.[37] They further agree that within the RFOs of which they are members they will take measures consistent with international law to deter non-members from fishing for regulated stocks.[38] Provisions for enforcing these mandates, including provisions for boarding and inspection of non-member and non-flag vessels, are explicitly laid out.[39] Signature and ratification of the FSA therefore constitutes a state’s specific consent to be bound by obligations in a treaty (establishing an RFO) to which it may not be a party.

Likewise the FSA appears to establish rights for its parties who are not members of relevant RFOs. Participation in RFOs is to be open to all coastal and fishing states having a real interest in the fishery[40] and criteria are set out for determining the nature and extent of their participatory rights.[41] Developing states, in particular, are to be given special consideration and assistance to establish RFOs where necessary, or to become members of RFOs and to actively participate in them in accordance with the special requirements attached to their developing status.[42] Signature and ratification of the FSA therefore constitutes a conferral on and acceptance by developing states of certain rights that can be exercised vis-à-vis RFOs of which they are not (yet) members.

In both these respects the FSA simply fulfils the functions for its parties envisaged in Articles 35 and 36 of the VCLT. This is not contentious. The difficulty lies in attributing these effects to non-parties to the FSA. In other words, the difficulty lies in establishing that the FSA was intended to have third party effects ‘of its own impact’. Since the VCLT makes this approach impossible the FSA fails the test for an objective regime under the law of treaties approach. Any erga omnes effect of the FSA will therefore have to be located elsewhere than in the law of treaties.

Displacing the law of treaties approach

There are, of course, a number of bases on which the VCLT exposition of the pacta tertiis rule can be criticised. First, it can be argued that the VCLT rule is founded on an inappropriate and improperly drawn analogy to domestic law. Sinclair observes that the rule ‘is supported by both general legal principle and by common sense. In so far as a treaty may bear attributes of a contract, third States are clearly strangers to that contract.’[43] However, the application of the contract analogy to the law of treaties has been heavily criticised as failing to take account of the quasi-legislative aspects of the treaty-making process. Roxburgh’s work, in particular, on which all subsequent discussion of the rule was based, has been criticised for fundamentally misunderstanding, or simply ignoring, the legislative policy context in which the Roman and subsequent civil and common law rules developed.[44]

Second, it can be argued that the VCLT rule improperly codified the existing customary rule. According to Ballreich, the VCLT went somewhat further than the customary rule in applying the possibility of third state assent to a right to obligations as well, and imposing the strict requirement of written consent on the latter.[45] Chinkin agrees, noting that while the general rule in Article 34 may be reflective of custom, the more detailed requirements of Articles 35–37 may not be. She makes the interesting point that the consent required by Article 35 need not be specifically directed toward parties to the treaty and she questions the rationale for the

continued separate treatment of rights and obligations … The policy behind Article 35 is to protect a third party from undesired obligations and to make that party’s consent the basis of any such obligations. It is excessively formalistic to demand this acceptance in writing, for States make binding commitments through other modalities, such as unilateral declarations. Admittedly the Vienna Convention itself applies only to treaties in written form, but Article 3 acknowledges the legal force of unwritten agreements.[46]

Article 35 does not prohibit states from entering into treaties purporting to place obligations on third states. It merely makes the bindingness of those obligations on the third state subject to the third state’s written consent.

Third, the VCLT was never intended to be the last word on the issue. The concept of objective regimes was only excluded at the time for the purposes of the VCLT and only because its time was not then considered ripe.[47] According to Sinclair,

[i]t must not therefore be assumed that the deliberate decision of the Commission and the Conference not to make special provision for treaties creating ‘objective regimes’ in the … [VCLT] … constitutes a denial of the existence of this category of treaties. It constitutes at most a denial of the need for a special rule to explain the relationship between treaties creating objective regimes and third States.[48]

The VCLT does not, therefore, regulate all aspects of treaties and it has been repeatedly observed that the question as to the effect of treaties on third parties was one of many left open.[49] Accordingly, the question still arises whether a customary rule exists providing for objective regimes as an exception to the pacta tertiis rule.

Subedi considers that objective regimes do exist in international law, as exceptions to both the pacta tertiis and sovereignty principles. Based on his analysis of state practice, international decisions, and writings of publicists he concludes:

The institution of objective regimes is not only accepted but practised by States yet without defining its components in any international instruments. Thus, it can be concluded that there exists in international law a rule of objective regimes according to which regimes concerning the finality of boundaries, maintenance of peace and security in troubled areas, preservation of independence and existence of strategically located States, and the regulation of the objects of common use and exploration, produce effects valid erga omnes.[50]

Arrow, on the other hand, considers that no such customary exception exists. Indeed, he takes the position that absolutely no treat can ever establish an objective regime binding erga omnes . He classifies the purported exceptions to the pacta tertiis rule into the following categories: exceptions based on the concurrence of treaty provisions with customary international law; exceptions based on the intent of a treaty to create obligations for a third state and the third state’s acceptance thereof; exceptions based on the creation by treaty of a servitude on territory by its former sovereign or in part of the servient state itself; exceptions based on the adherence in a treaty regime of all the ‘great powers’; and exceptions based on the intrinsically ‘constitutive’ or ‘quasi-legislative’ character of a particular treaty in question. He concludes that none of these are real exceptions as, to the extent any operate, they can all be narrowly explained as doing so as a function of consent of the third state only. Any ‘objective’ effect of a treaty will therefore always be due to the formation of custom, not the nature of the convention or the intention of its drafters.[51]

Chinkin also grapples with the task of trying to fit objective regimes and their possible third party effects into the straightjacket of the VCLT. Ultimately she concludes the fit cannot be made and that it is not even appropriate in many cases to try.[52] She identifies three exceptions to the pacta tertiis rule that have arisen in practice:

(1) acquiescence in the conduct of parties and non-parties;

(2) application of a special principle of law outweighing the general third party rule; [and]

(3) the existence of some situation that displaces the application of treaty law.[53]

Acquiescence might be demonstrated by non-parties to the FSA who are also non-members of a RFO failing to object to enforcement action taken against them by members, or by their refraining from fishing when asked to do so by members of the relevant RFO. Likewise, the obligations of cooperation, conservation and management embodied in the LOSC and the FSA might possibly now be considered to outweigh the general third party rule on the basis of considerations such as food security, environmental concerns or inter-generational equity. Alternately, necessity, or the unique position of RFOs with respect to their own members and their obligations to conserve and manage, might constitute a situation displacing the application of treaty law. Whichever analysis is adopted, however, something other than the law of treaties is at work. This is where the ‘public law theories’ approach comes in.

Objective Regimes and Public Law Theories

The requirements of the public law theories

The ‘public law’ theories approach seeks to justify objective regimes on the basis that ‘a group of states assume quasi-legislative competence to create a regulatory regime for a defined territory in the overall community interest’.[54] The classic exposition of this theory is found in the individual opinion of Judge McNair in the 1950 South West Africa Case:

From time to time it happens that a group of great Powers or a large number of states, both great and small, assume a power to create by multipartite treaty some new international regime or status which soon acquires a degree of acceptance or durability extending beyond the limits of the actual contracting parties, and giving it an objective existence.[55]

The rationale for this is noted by Klein: ‘[h]istorically, treaties providing for objective regimes (“status treaties”) are the surrogates for a general legislative power which does not exist due to the unorganised state of an international society that is composed of sovereign states.’[56] This legislative or law-making rationale is further expanded upon by McNair in his treatise:

When it is remembered that international society has at present no legislature, the treaty is the only instrument available for doing many of the things which an individual State would do by means of its legislature; and making the rules of law is not the only function of a legislature. It is therefore not surprising that from time to time groups of States should have assumed the responsibility of leadership and used the instrument of a treaty to make certain territorial or other arrangements required, or which they considered to be required, in the interest of this or that particular part of the world … Strictly speaking, a treaty of this kind … binds at first the parties thereto and no other States. But it is undeniable that after a period of time, to which no fixed duration can be attributed, the mere lapse of time and the acquiescence of other States in the arrangement thus made have the effect of reinforcing the essential juridical element of the treaty and of converting what may at first have been a partly de facto situation into a de jure one.[57]

Two points should be made. First, under this ‘public law theories’ approach, the process of creation of objective regimes is essentially that of the creation of customary international law. Second, the ‘great Powers’ hypothesis is an outdated concept. Conferral of legislative power in the ‘great Powers’ can be considered to have metamorphosed in the post United Nations Charter era, with its express incorporation of the principle of sovereign equality into Article 2(1) of the Charter, and has been transferred to the United Nations and the community of sovereign equal states as a whole.[58] As Chinkin notes, the analysis of any third party rule or exceptions thereto must now take into account the changes in the ‘prescriptive processes’ of international law, including the development of General Assembly resolutions.[59] Other commentators refer to the role of the Security Council and certain of its resolutions as fulfilling the ‘great Powers’ role.[60] Multilateral conferences and other law-making processes, including ‘soft law’ processes[61] must also be considered. Accordingly, if it is possible to create an objective regime, any group of states is capable of doing so. It remains to discern the criteria for doing so.

Unfortunately, agreement on the specific criteria necessary for establishing objective regimes seems to be lacking. Lee suggests the following ingredients derived from his analysis of the works of McNair and Brierly,

assumption of responsibility of leadership by a group of states; using the treaty as an instrument to effect certain territorial or other arrangements required; involvement of regional or global public interests; creation of international situations or entities binding upon all states; acceptance, acquiescence, and durability extending beyond the limits of the actual states parties; and eventual conversion of a universal de facto situation into a de jure situation.[62]

Simma cites Klein as identifying only two requirements: the intention to serve the general interest; and the assertion of the power to do so with effects erga omnes. Unless a state specifically objects, the assertion of competence is admitted. As Simma puts it, Klein’s theory is based on the notion that ‘the overpowering legitimacy of the claim creates a presumption that silence gives consent’.[63] Mosler suggests that it is this ‘legitimacy’ that gives rise to an obligation on third states, at the very least, to acquiesce in it.[64] Simma refers to other scholars who stress the principle of effectiveness as underlying the sui generis nature of objective regimes.[65] Subedi, on the other hand, finds that the general interest requirement does not exist in all cases, since in certain situations the interests of only a small number of states in a particular group or region may be involved. In addition, participation by the vast majority of states is, he says, not indispensable.[66] Clearly, however, some sort of ‘community interest’ is required in respect of some ‘community’, albeit both are variously defined depending on the interest invoked.

Application of the public law theories to the FSA

In applying the public law theories to the FSA the easiest test to meet is that of the ‘community’ or ‘group of states’ involved. While the processes leading up to the negotiation and drafting of the agreement may have been driven by a small number of particularly interested states,[67] the entire international community was invited to participate in the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks[68] at which the FSA was negotiated. In the event, more than 105 states took part. In addition, numerous other participants, including other fishing entities (such as the European Union), intergovernmental organizations, United Nations agencies and organs, RFOs and non-governmental organisations attended as observers.[69] This was not just a ‘group of states’. This was open to and attended by virtually every state having or desiring to take an interest in the matter as well as other interested groups. In terms of the conference’s inclusiveness, the first part of the legitimacy test must be considered met. The second part of the test may not, however, be so easily satisfied.

As far as intention to serve the general interest is concerned, there can be no doubt that the intention of the drafters of the FSA was to fill the lacunae left by the LOSC in respect of the obligation to cooperate in the conservation and management of straddling fish stocks (SFS) and highly migratory fish stocks (HMFS).[70] The Preamble to the FSA reflects this by recalling the relevant provisions of the LOSC, determining to ensure long-term conservation and sustainable use of SFS and HMFS, resolving to improve cooperation between states, calling for more effective enforcement by flag states, port states and coastal states of the conservation and management measures adopted for such stocks, and seeking to address in particular the problems identified in Agenda 21 regarding the inadequacy of management of high seas fisheries.[71] In particular, the FSA was intended to put an end to the various controversial and disruptive unilateral extensions of coastal state jurisdiction being taken or threatened by a number of states.[72] The Preamble makes it clear that the drafters believed the FSA would ‘contribute to the maintenance of international peace and security’. A noble intention, indeed; and one in which all states could be expected to acquiesce.

That states have a duty to cooperate in the conservation and management of SFS and HMFS, both under the LOSC and in customary international law, was already established at the time the FSA was being negotiated.[73] Even the modalities for cooperation were already established (although the details of how these modalities were to be exercised were admittedly lacking). Direct negotiation and the establishment, where appropriate, of RFOs had been accepted in the LOSC and subsequent state practice, winning out over earlier suggestions for the establishment of one global international fisheries management organisation. [74] It is hardly surprising, therefore that the FSA opted for the technique of ‘institutionalising’ cooperation in and through RFOs. Cognizant, however, of the historical lack of effectiveness of RFOs in achieving the long-term conservation and sustainable use of SFS and HMFS,[75] the FSA sets out in detail the requirements of cooperation, determining what factors are to be considered in the establishment and operation of RFOs, including participatory rights, requirements of transparency and requirements for the collection and provision of scientific information.[76] It also obliges states to cooperate to strengthen existing RFOs to improve implementation of the FSA’s mandate.[77]

Intention to serve the general interest is also clear in the call for more effective enforcement and the establishment of particular procedures for doing so. The almost total failure of adherence to the principle of exclusive flag state jurisdiction to ensure conservation and sustainability in the high seas fishing context was precisely the root of the conflicts the FSA was intended to put an end to. New mechanisms were introduced in the FSA to bolster, or give meaning to, the requirements of flag state jurisdiction.[78] Detailed mechanisms were also introduced to deal with situations where flag states were either unable or unwilling to exercise their jurisdiction. These included the provisions for boarding and inspection by non-flag states[79] and measures to be taken by port states,[80] all of which are aimed at protecting the international community’s interests in the long-term conservation and sustainable use of SFS and HMFS.

The assertion of a power to create erga omnes effects seems likewise evident from the language of the FSA. The term ‘states parties’ is deliberately defined as ‘states which have consented to be bound by this Agreement and for which the Agreement is in force’.[81] Yet its use is by far the exception rather than the rule, appearing only in the final clauses relating to procedures for settling disputes,[82] good faith and abuse of rights,[83] responsibility and liability[84] and actions to be taken by states parties against non-states parties.[85] Instead, the Agreement continually refers in mandatory terms to ‘states’, ‘coastal states’, ‘flag states’, ‘inspecting states’ ‘port states’ and ‘states fishing on the high seas’. The mandatory language of the Agreement would seem to indicate that it was intended by its drafters to apply to all states, not just ‘states parties’. In addition, the Agreement is stated specifically to apply to ‘fishing entities whose vessels fish on the high seas’.[86] There is no provision for these ‘entities’ to become ‘states parties’ to the Agreement. The assumption appears to be made that the FSA can reach out and bind even non-states. This is significant when it is realised that the provision was included to accommodate the situation of Taiwan, an entity possessing one of the world’s largest high seas fishing fleets. More powerful still are the terms of Article 21(3) which calls for application of the boarding and inspection measures set out in the FSA as the fall-back position if, ‘within two years of the adoption of this Agreement’, RFOs have not established their own procedures. Prima facie, boarding and inspection is to occur within all RFOs whether the agreement is in force or not and whether the members of the RFOs are signatories or not.

While these arguments have some force, they are not conclusive. In terms of the ‘overpowering legitimacy’ of the FSA it must be noted that the Agreement seems to do no more than freeze the status quo with respect to access to fisheries. New entrants are unlikely ever to gain admission into an existing fishery as they will be unable to demonstrate an interest in or historic use of the fishery and it will always be open to those exploiting the stocks to argue that optimum levels have already been reached. The thorny issue of allocation, which lies at the heart of all fishing disputes, has not been dealt with. In addition, it is arguable that institutionalisation of RFOs could not possibly be intended to have effects erga omnes in respect of all RFOs given the wide range of mandates of current RFOs, many of which lack completely the minimum mandates and mechanisms spelled out in the FSA. Furthermore, if the Agreement was intended to bind third parties as is, there would have been no need to include Article 33 whereby states parties are to encourage non-parties to become parties or Article 41 on provisional application. Likewise, the use of generic terms as indicating an intention to bind third parties, even when used in the mandatory sense, has been found insufficient to demonstrate an erga omnes effect.[87] Inclusion of articles relating to ratification and denunciation militate against the Agreement’s claim to objective regime status,[88] while provision for a review conference at which the adequacy of the Agreement is to be assessed and its provisions and mechanisms strengthened, if need be, almost totally undermines it.

Two final arguments seem determinative however. First, proof of establishment of an objective regime would depend upon evidence of non-objection, evidence which is lacking given the strenuous objections of a number of conference participants to several aspects of the Agreement voiced during the final stages of the adoption of the text.[89] Second, the Chairman of the Conference dismissed Japanese concerns, expressed during the closing stages of the negotiations, that use of the word ‘state’ as opposed to ‘states parties’ in the provisions on non-flag state enforcement might give rise to implications for non-parties to the FSA. The Chairman reiterated that the understanding of the Conference was that the provisions, no matter what they said, would apply to states parties to the FSA only.[90] Clearly, while many may have wished it so, the FSA was not intended by all those involved in its negotiation to create an objective regime having binding effects for non-parties. To borrow Tunkin’s words, the FSA may have been ‘intended to create a regime which could become universally accepted. But there [was] no intention of imposing that regime: any attempt to do so would have been illegal’.[91] Again, any erga omnes effects of the FSA must be sought elsewhere.

Objective Regimes and Subsequent Practice

Our final approach posits that treaties intended to create objective regimes having erga omnes effect may come to do so through the processes of formation of customary law, and the processes of recognition, acquiescence, estoppel or historic consolidation. This is not a radical proposition. It is precisely what the ILC said and it is precisely the point of Article 38 of the VCLT. However, if, as Mendelson says, the function of a treaty is almost always to derogate from some pre-existing custom,[92] then the burden of proof that the treaty has erga omnes effect will be a high one. As the International Court of Justice (ICJ) said in the North Sea Continental Shelf Cases:

In so far as this contention is based on the view that Article 6 of the Convention has had the influence, and has produced the effect, described, it clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to have been regarded as having been attained.[93]

It is commonly accepted that a treaty may not just form the basis of a rule that subsequently becomes custom. Treaties may also codify or crystallise emerging norms. In each case it will be a matter of looking at the terms of the treaty and either antecedent or subsequent state practice, or both, to determine the status of the rules contained in the treaty.

In terms of codification, it is arguable that restriction of access by non-members to regulatory areas had already been accepted in international fisheries law by the time the FSA negotiations were concluding and the Agreement merely codified the existing rule. Article III(1) of the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (the Compliance Agreement)[94] requires parties to ensure that their vessels do not engage in activities that undermine the effectiveness of international conservation measures. Likewise, provisions restricting the access of non-members and calling upon members to take action against non-members whose actions undermine RFO regulatory regimes are found in the 1992 Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean,[95] the 1993 Convention for the Conservation of Southern Bluefin Tuna,[96] and the 1994 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea.[97] This argument is, however, severely hampered both by considerable inconsistent state practice[98] and by the language of the Preamble to the FSA and of the treaty itself. The FSA was drafted specifically to address problems that had not yet been adequately addressed by treaty or by customary international law. In addition, even if the general principle of restriction might have been accepted, the specific methodologies for its implementation and enforcement certainly were not.[99] When the Agreement was adopted, the Chairman of the conference characterised it as ‘far-sighted, far-reaching, bold and revolutionary’.[100] These are hardly the words one would use in describing a treaty that merely codified existing customary law.

A more robust suggestion might be that the FSA crystallised emerging customary norms. As Hey notes, in the years preceding the adoption of the FSA, there had been a ‘reconceptualisation of the issues involved in international fisheries conservation and management’.[101] In other words, there had been a ‘change in paradigms’.[102] According to Hey this reconceptualisation resulted in three major developments: adoption of ‘multilateral minimum standards for fisheries conservation and management policies’; elaboration of enhanced prescriptive and enforcement jurisdiction to be exercised by non-flag states; and amendment of the institutional framework for fisheries conservation and management ‘as reflected in the enhanced role of international fisheries conservation and management organisations’.[103] All of these developments are embodied in the FSA.

However, given the novel and, in some cases extremely contentious aspects of the Agreement, it is difficult to say that it was intended as a crystallisation of emerging customary norms. The fundamental difficulty is the Agreement’s express reversal of the ‘relationship between the right of access to high seas fisheries resources and the duty to cooperate. While previously the latter was subject to the former, now the latter qualifies the former’.[104] That such a fundamental reversal of the traditional right of freedom to fish on the high seas should have erga omnes effects is a result that cannot lightly be ‘regarded as having been attained’. Nevertheless, as Mendelson puts it:

there can be no doubt that, from time to time, the conclusion of a treaty serves as the impetus or inspiration (so to speak) for state practice which becomes sufficiently widespread for customary law to emerge … There is nothing mysterious about this process. State practice has to find its inspiration, its historic source, somewhere …[105]

The transformation from conventional to customary rule having that effect will, therefore, depend on fulfilment of the normal processes for the creation of customary international law.

An extensive examination of state practice since the adoption of the FSA is beyond the scope of this paper.[106] It suffices to note only that unregulated fishing by non-members of RFOs has continued in virtually all regulatory areas since the adoption of the FSA in spite of the adoption by various RFOs of schemes for promoting compliance by non-parties.[107] Clearly, many states do not believe they are obliged to acquiesce in the regime.

In addition, although RFOs have begun strengthening their mandates and developing mechanisms for boarding and inspection[108] and for port state control over landings and trans-shipments,[109] the former do not yet appear to have been utilised against non-members[110] and the latter can simply be regarded as an aspect of the sovereign right of a state to control access to its ports.[111] Further, although in some cases non-members have either been invited as observers[112] or have expressed the desire to become members of existing RFOs, the practice is by no means uniform. Nor does it necessarily reflect a belief that they are obliged to do so by the terms of the FSA itself. Rather it may be expressed as a pragmatic attempt to ensure access to and control over a guaranteed share of the catch. Practice to date within existing organisations does not seem to encourage the conclusion that the FSA has yet come to have erga omnes effect.

Three examples of state practice since the adoption of the FSA might, however, serve to indicate the way in which that practice is headed. The first two are the processes underway to create RFOs in the South East Atlantic and the Western Central Pacific respectively. The third is the dispute between Australia and South Africa over South African vessels fishing for orange roughy on the high seas just outside the Australian exclusive economic zone (EEZ).

South east Atlantic

In 1997 the coastal states of Angola, Namibia, South Africa and the United Kingdom[113] initiated a process for the creation of the South East Atlantic Fisheries Organisation (SEAFO). States identified as having distant water fishing interests in the area were invited to participate and to date negotiations have included representatives from the European Community, Iceland, Japan, Korea, Norway, Poland, Russia, Ukraine, and the United States. Five ‘informal’ consultations or meetings have been held and a draft convention has emerged although none of the participants have committed themselves to adopting it and there are significant outstanding issues.[114] It was hoped the process would be completed by the end of 1999. However, as of April 2000 the agreement has not yet been finalised. Another meeting is scheduled for May 2000.

The draft convention applies to straddling stocks and discrete high seas stocks. It does not apply to highly migratory fish stocks as those are already covered by the International Commission for the Conservation of Atlantic Tuna (ICCAT) and the participants do not wish to interfere with ICCAT’s mandate.[115] The convention area is limited to the high seas although, consistent with the FSA, provisions are included to ensure compatibility between SEAFO measures and those adopted by coastal states in their EEZs. The intention of the participants is to include anyone interested in the relevant fisheries and to ‘create a cost-effective organisation able to grow with the size of the tasks assigned to it’.[116] It is interesting to note that the draft convention does not simply adopt the language of the FSA. The coastal states do ‘not wish to “reinvent the wheel”’.[117] Instead, as Jackson puts it, the draft attempts to ‘use’ the FSA, both its language and its concepts, and to do so in a regionally specific manner.[118] The draft convention also makes use of the language and concepts derived, in particular, from FAO Code of Conduct for Responsible Fisheries,[119] including its component Compliance Agreement and the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).[120]

Significantly, not only is the FSA not yet in force, some of the participants in the SEAFO process are not even signatories to it. Iceland, Namibia, Norway, Russia and the United States have ratified the FSA. The European Community, Japan, Korea, Ukraine and the United Kingdom in respect of its territories and dependencies have signed but not ratified. Angola, Poland and South Africa are not signatories to the FSA. Within the consultations the latter states have, however, expressed their support for the Agreement and confirmed their eventual intention to become parties.

Interestingly, too, the SEAFO draft convention applies to discrete high seas stocks, stocks that do not occur during part of their life cycle in waters under the national jurisdiction of any coastal state. In this respect the draft goes beyond the FSA which applies to the straddling fish stocks under consideration only. Inclusion of these discrete stocks would seem, however, to be aimed at fulfilment of the general obligation set out in Article 117 of the LOSC to cooperate in order to ensure the conservation of the living resources of the high seas.

As Jackson notes, ‘the SEAFO participants can be seen as having responded to Article 8 of the [FSA] by entering into negotiations “in good faith and without delay”’.[121] He makes the point, though, that three years after the fact nothing has yet been finalised and there is a real possibility of over exploitation occurring before the process is finalised and any conservation and management measures are adopted. He also points out that since interest in the stocks is still growing other interested parties may eventually emerge. Despite the avowed desire to be all-inclusive and provision in the draft convention for encouraging non-members to join SEAFO or abide by its measures,[122] the thorny issues of participation and allocation remain open. Criteria for determining participatory rights are set out[123] but, as in the FSA, they relate, inter alia, to past, present and future fishing practices, the stage of development of a fishery, the needs of communities dependent on fisheries, and the needs of coastal and developing states in the area. Given that all those currently interested in the relevant fisheries are involved in the SEAFO process it will be very difficult for future new entrants to gain access to the fisheries. When compounded by the allocational difficulties of cutting up a (possibly decreasing) pie into ever smaller pieces, it seems entirely likely that future interests will continue to adopt the tried-and-true method of unregulated fishing outside the membership of the organisation. The real question will therefore not be the conduct of SEAFO participants inter partes but, rather, their conduct vis-à-vis non-participants in the process who fish in the area in the future.

The draft convention currently provides for port states to prohibit landings or trans-shipments by vessels of non-contracting parties where the stock has been taken in contravention of the Convention[124] and for exchange and publication of information on the activities of vessels of non-contracting parties in the Convention area.[125] It also provides that contracting parties may take measures consistent with international law to deter fishing activities of vessels of non-contracting members that undermine the effectiveness of measures adopted by the organisation.[126] For non-SEAFO members who are party to the FSA these measures would include boarding and inspection. It is clearly the intention of the SEAFO participants not to allow non-members to undermine its conservation and management measures. It remains to be seen however, whether, assuming SEAFO is established, its members will take any action against non-contracting states that are also non-parties to the FSA. Such action might provide evidence in support of the objective regime theory of the FSA. At the very least it would provide evidence in support of the development of a new rule of customary international law allowing for enforcement by members of RFOs against non-members whose fishing activities undermine the effectiveness of those RFOs.

Western and central Pacific

Negotiations on the drafting of a Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean commenced in 1994 before the FSA was even adopted. The process was initiated jointly by the Forum Fisheries Agency and the United States. At the 50thMeeting in September 1999 a total of 28 states and ‘entities’ participated representing all those currently believed to have an interest in the fisheries in question.[127] Five sessions of the ‘Multi-lateral High Level Conference’ (MHLC), and three inter-sessional meetings, have been held and a draft convention has emerged.[128] The Conference is scheduled to complete its work in early 2000 with adoption of the text scheduled for June 2000.

The draft convention applies to highly migratory stocks in the Western and central Pacific although the precise geographical area to be covered by the convention has not yet been agreed. In any event, the area will include both high seas and areas under the national jurisdiction of some states. However, Indonesia and the Philippines have sought to exempt their ‘archipelagic’ waters from the operation of the convention. The exclusion of these waters from the convention area may have the potential to seriously undermine the object and effective operation of the convention.

Unlike the SEAFO draft convention, the MHLC draft convention incorporates vast tracts of the FSA verbatim. This is, perhaps, hardly surprising given that the Chairman of the MHLC process is Ambassador Satya Nandan, who served as Chairman for the FSA negotiations. Additionally, provisions find their origins in agreements establishing other RFOs and in the Code of Conduct and Compliance Agreement. However, as with the SEAFO process, a number of the participants in the MHLC are not signatories to the FSA. Others have signed but not yet ratified it. The very ‘inclusiveness’ of the text has given rise to significant controversies over, for example, the application of the precautionary approach, the adoption of monitoring and enforcement systems and the extent of the powers and functions to be ascribed to the commission in the convention itself.[129]

In addition, while complex provisions are being worked out in respect to compliance, enforcement,[130] port state control,[131] and regulation of trans-shipment,[132] there is still no indication that these provisions are meant to apply against anyone other than the eventual parties to the convention. The MHLC draft goes no further than calling upon members to publicise and exchange information about the activities of non-members in the convention area and to request non-members to play by the rules.[133] Non-members may be granted observer status but provision for new entrants is limited. The draft simply provides that the Commission shall, as one of its functions, ‘agree on means by which the fishing interests of any new members of the Commission may be accommodated’.[134] How this is to be accomplished will be subject to, and therefore hampered by, the participation and allocation questions which, as with the SEAFO draft, are left unresolved.[135]

Both the SEAFO and MHLC processes indicate that their participants accept the premise of the FSA that ‘only those who play by the rules may fish’. However, neither process provides any evidence of the attitudes of third states to these self-appropriated mandates. It is this evidence that will be needed to prove or disprove the potential objective regime status.

Australia, South Africa and the orange roughy

On 1 July 1999 a Royal Australian Air Force surveillance flight spotted two South African factory trawlers fishing for orange roughy approximately four nautical miles outside the Australian EEZ in an area known as the South Tasman Rise. Scientific evidence suggests there is only one genetic stock of orange roughy on the South Tasman Rise and it is this stock that straddles the high seas and the Australian EEZ. In addition, the Rise is the spawning ground for the fish and hence a delicate area susceptible to damage from fishing during spawning season.[136] Aware of seriously declining catches and the need for more scientific information about the fishery, in February 1998 Australia and New Zealand entered into an agreement establishing a moratorium on the taking of orange roughy on the high seas in the South Tasman Rise area.[137]

When the South African vessels were discovered fishing on the Rise during spawning season, Australia lodged formal complaints with South Africa protesting their presence. Despite the fact that the vessels were fishing on the high seas, Australia took the position that the stock was fully exploited and was being appropriately regulated and managed by Australia and New Zealand. In the circumstances, and given the background of the FSA, Australia considered no other state could allow their vessels to fish for it.[138] In other words, Australia considered other states were obliged to acquiesce in the management ‘arrangement’ established by Australia and New Zealand. After difficult and tense diplomatic exchanges, the South African government agreed to amend the licences of the vessels to stop them fishing for the roughy and the vessels eventually withdrew.

It is instructive to remember that the South African vessels were on the high seas and prima facie under traditional law of the sea principles, entitled to be there. They were fishing for a straddling stock that was governed by a management agreement entered into between just two states and none of the three states involved had yet ratified the FSA. Publicly, at least, the parties involved all sought to portray themselves as law-abiding international citizens. It might be inferred that the South Africa authorities accepted the proposition that the Australian-New Zealand arrangement governed the stock and that they should therefore order their vessels to withdraw. Certainly, possible application of the approach in the case of vessels fishing for patagonian toothfish which straddle the South African EEZ was not lost on South Africa.[139] Nor was the possibility of increased good will should they attempt to negotiate a share of the orange roughy fishery. However, there may be any number of wholly unrelated reasons why South Africa ultimately acceded to the Australian protests. The precedential value of the example as an instance of state practice, while promising, is somewhat ambiguous.


It is not disputed that the only hope for ensuring the long-term sustainable conservation and management of SFS and HMFS lies in the complete and continuing cooperation of all states through whose waters they pass and whose nationals exploit or seek to exploit those resources. In the last two decades a number of developments aimed at achieving this goal have occurred. First, the discourse has changed. Talk of exploitation of non-exhaustible resources has given way to talk of conservation, management and sustainability. Second, the law has changed. What was once seen as an absolute freedom is now highly circumscribed by obligations of due regard and cooperation. The FSA represents the culmination of these developments, giving specific content to the obligations and establishing mechanisms through which these obligations are to be enforced. The question is, however, the extent to which the international community as a whole has accepted these changes.

The proposition that the FSA establishes an objective regime in respect of the binding effect of the management regimes of RFOs on third parties has been tested in this paper and has been found wanting. As a treaty the FSA only binds its parties. However, the FSA also constitutes a recognition of the need for a new approach and a response to a ‘change in paradigms’. It appears that while there may be significant, indeed prima facie overriding, reasons of principle to rebut the application of the general third party rule, state practice to date does not adequately support this conclusion. Nevertheless, there is no reason why it might not, some day, come to do so. What appears now to be merely ‘wishful thinking’ may, indeed, become reality. The proof will be in the practice.


North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ Rep 3 4, 17

South West Africa Case [1950] ICJ Rep 128 11


Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea (1982) 1995 1

Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1982) 1995 25

Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1982) 1996 1, 2, 3, 7, 8, 10, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26

Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean 1992 18

Convention for the Conservation of Southern Bluefin Tuna 1993 18

Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea 1994 18

Convention on the Conservation of Antarctic Marine Living Resources 1982 20, 22

Convention on the Law of the Sea 1982 1, 10, 13, 14, 22

Rio Declaration on the Environment and Development 1992 14

United Nations Charter 1945 12

Vienna Convention on the Law of Treaties 1969 4, 6, 7, 8, 9, 10, 17

[∗] Senior Lecturer, Faculty of Law, University of New South Wales.

[1] Hugo Grotius is generally credited with being the first to expound the principle of the freedom of the seas. See Hugonis Grotii, Mare Liberum sive de ivre quod Batavis competit an Indicana commercia, dissertatio (1608); Hugo Grotius, The Freedom of the Seas of the Right which Belongs to the Dutch to Take Part in the East Indian Trade (trans Ralph Van Deman Magoffin, 1916). It has, however, been pointed out that the principle is arguably of considerably larger lineage. See, eg, R P Anard, Origin and Development of the Law of the Sea (1982) esp chs 1–3.

[2] United Nations Convention on the Law of the Sea (10 December 1982) reprinted in (1982) 21 ILM 126 [hereafter cited as LOSC).

[3] (1995) 34 ILM 1542.

[4] LOSCarts 117–119.

[5] The abbreviation RFO will be used to refer to all organisations and arrangements to which the FSA applies. The term ‘organisations’ is not defined in the Agreement. As defined in art 1(1)(d), ‘“arrangement” means a cooperative mechanism established in accordance with the Convention and this Agreement by two or more states for the purpose, inter alia, of establishing conservation and management measures in a subregion or region for one or more straddling fish stocks or highly migratory fish stocks’. For a discussion of the role of such organisations and arrangements see, eg, B Applebaum and A Donohue, ‘The Role of Regional Fisheries Management Organisations’ in E Hey (ed), Developments in International Fisheries Law (1999) 217.

[6] FSA arts 8, 17 and 18.

[7] F Orrego Vicuña, The Changing International Law of High Seas Fisheries (1999) 209–210, fns omitted.

[8] A note on terminology. To avoid confusion when discussing RFOs this paper will use the terms member/non-member to indicate whether a state is a party to the relevant constitutive treaty. When talking about the FSA or other treaties the terms parties/non-parties will be used.

[9] ‘Draft articles on the Law of Treaties with Commentaries, Adopted by the International Law Commission at its Eighteenth Session’ [1966] 2 Yearbook of the International Law Commission 231 (commentary to art 34).

[10] M Ragazzi, The Concept of International Obligations Erga Omnes (1997) 41.

[11] B Simma, ‘The Antarctic Treaty as a Treaty Providing for an “Objective Regime”’ (1986) 19 Cornell International Law Journal 189.

[12] See, eg, A W Arrow, ‘Seabeds, Sovereignty and Objective Regimes’ (1984) 7 Fordham International Law Journal 169; L T Lee, ‘The Law of the Sea Convention and Third States’ (1983) 77 American Journal of International Law 541.

[13] S P Subedi, ‘The Doctrine of Objective Regimes in International Law and the Competence of the United Nations to Impose Territorial or Peace Settlements on States’ (1994) 37 German Yearbook of International Law 162. See also, generally, B E Heim, ‘Exploring the Last Frontiers for Mineral Resources: A Comparison of International Law Regarding the Deep Seabed, Outer Space and Antarctica’ (1990) 23 Vanderbilt Journal of Transnational Law 819.

[14] K Sumi, ‘International Legal Issues Concerning the Use of Driftnets with Special Emphasis on Japanese Practices and Responses’ in The Regulation of Driftnet Fishing on the High Seas: Legal Issues (1991) FAO Legislative Study No 47, 54.

[15] Riphagen considers the existence and definition of the objective regime concept to be ‘somewhat nebulous’. W Riphagen, ‘Fourth Report on the Content, Forms and Degrees of State Responsibility’ [1983] 2(1) Yearbook of the International Law Commission pt 2 of draft arts, 16 [85]. Ragazzi considers the concept to be controversial due to its lack of political acceptability: Ragazzi, above n 10, 41. Arrow says it is totally non-existent: Arrow, above n 12, 226.

[16] Simma, above n 11, 192.

[17] C Chinkin, Third Parties in International Law (1993) 35.

[18] To use the words of the International Court of Justice in the North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) [1969] ICJ Rep 3, 42 [70].

[19] (1969) 8 ILM 679.

[20] Sir G Fitzmaurice, ‘Fifth Report on the Law of Treaties’ [1960] 2 Yearbook of the International Law Commission 84 [10].

[21] T O Elias, The Modern Law of Treaties (1974) 59.

[22] As Jennings and Watts put it ‘[t]he general rule is so well established that there is no need to cite extensive authority for it …’ L Oppenheim’s International Law (9th ed, 1992) vol 1 pts 2–4, 1260–61.

[23] R F Roxburgh, International Conventions and Third States: A Monograph (1917) 29.

[24] Ibid 31.

[25] Ibid 36.

[26] Fitzmaurice, above n 20, 86–87 [17].

[27] Ibid 73 [4]. Active consent refers to situations in which a state agrees separately to observe the provisions of a treaty without, itself, becoming a party. Presumed consent refers to situations in which rules embodied in treaties become binding as rules of customary international law. Automatic entailment of rights and obligations refers to situations in which the discharge of obligations pursuant to a treaty entails a claim to exercise corresponding rights thereunder. The final category refers to situations in which third states are required to take certain attitudes of recognition, respect, non-interference, tolerance or sufferance in respect of situations that did not otherwise affect their interests.

[28] Ibid 92–93.

[29] Ibid 98 [71].

[30] Sir H Waldock, ‘Third Report on the Law of Treaties’ [1964] 2 Yearbook of the International Law Commission 6, 26.

[31] Ibid 33.

[32] Ibid.

[33] Commentary to draft art 34, now art 38 of the VCLT. ‘Report of the International Law Commission on the work of its 18th session’ [1966] Yearbook of the International Law Commission 173, 231.

[34] Arrow, above n 12, 208–224.

[35] See above n 32 and accompanying text.

[36] D Balton, ‘Strengthening the Law of the Sea: The New Agreement on Straddling and Highly Migratory Fish Stocks’ (1996) 27 Ocean Development and International Law 121, 138.

[37] FSA art 8(4) provides: ‘Only those States which are members of such an organisation or participants in such an arrangement, or which agree to apply the conservation and management measures established by such organisation or arrangement, shall have access to the fishery resources to which those measures apply’.

[38] FSA arts 17(4) and 33.

[39] FSA arts 20–22.

[40] FSA art 8(3).

[41] FSA art 11.

[42] FSA arts 24–26.

[43] I M Sinclair, The Vienna Convention on the Law of Treaties (1984).

[44] E Raftopoulos, The Inadequacy of the Contractual Analogy in the Law of Treaties (1990).

[45] H Ballreich, ‘Treaties, Effects on Third States’ in R Bernhardt (ed), Encyclopedia of Public International Law (1984) vol 7, 476, 478. Other scholars also list what they consider to be exceptions to the pacta tertiis rule. See, eg, I Detter, Essays on the Law of Treaties (1967) 100–118; Elias, above n 21, 59; D P O’Connell, International Law (2nd ed, 1970); I Brownlie, Principles of Public International Law (5th ed, 1998) 628–30; and Sinclair, above n 43, 98–113.

[46] Chinkin, above n 17, 40–41 [footnotes omitted]. Fitzmaurice and Waldock in their reports both posited the possibility of manifestation of consent by other than written means. Fitzmaurice report above n 27 (where he addresses the issue of presumed consent); Waldock report above n 30, 33 [21].

[47] The Commission considered the concept ‘might be unlikely to meet with general acceptance’ and so ‘decided to leave th[e] question aside’. Commentary to draft art 34, now art 38 of the VCLT, ‘Report of the International Law Commission on the Work of its 18th Session’ [1966] 2(2) Yearbook of the International Law Commission 226, 231.

[48] Sinclair, above n 43, 104–105. Chinkin, above n 17, 36, also concludes that the VCLT ‘is not comprehensive in its coverage of treaties and third parties’.

[49] See, eg, P Reuter, Introduction to the Law of Treaties (J Mico and P Haggenmacher, English trans, 1989) 81; and S Rosenne, Developments in the Law of Treaties 1945–1986 (1989) 74.

[50] Subedi, above n 13, 193.

[51] Arrow, above n 12, 226.

[52] Chinkin, above n 17, 142.

[53] Ibid 143.

[54] Chinkin, above n 17, 35.

[55] South West Africa Case [1950] ICJ Rep 128, 153.

[56] E Klein, Statusverträge im Völkerrecht (Treaties Providing for Objective Territorial Regimes) (English summary, 1980) 351.

[57] A McNair, The Law of Treaties (1961) 259.

[58] Subedi, above n 13, 196; Arrow, above n 12, 221; and Simma, above n 11, 198.

[59] Chinkin, above n 17, 144.

[60] Subedi, above n 13, 194, 197–200.

[61] Chinkin, above n 17, 144. On the interrelationship of these processes see also C Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) 38 International and Comparative Law Quarterly 850.

[62] Lee, above n 12, 564–5.

[63] Simma, above n 11, 199.

[64] H Mosler, ‘The International Society as a Legal Community’ (1975) 144 Recueil des Cours 1, 236.

[65] Simma, above n 11, 199–200.

[66] Subedi, above n 13, 192.

[67] The background leading up to the conference is well canvassed in the literature. See, eg, J A de Ytturiaga, The International Regime of Fisheries: From UNCLOS 1982 to the Presential Sea (1997) 179–201; D Freestone, ‘The Effective Conservation and Management of High Seas Living Resources: Towards a New Regime?’ (1995) 5 Canterbury Law Review 341, 357–359; K Grzybowski et al, ‘A Historical Perspective Leading Up To and Including the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks’ (1995) 13 Pace Environmental Law Review 49; P Fauteux, ‘The Canadian Legal Initiative on High Seas Fishing’ (1993) 4 Yearbook of International Environmental Law 51.

[68] The Conference was convened pursuant to GA Res 47/192 (22 December 1992).

[69] For a complete list see the Final Act of the Conference, UN Doc A/CONF 164/38 (7 September 1995).

[70] Much has been written on the inadequacy of the LOSCto deal with the issue. For a summary discussion see, eg, Secretariat for the Fish Stocks Conference, Background Paper, UN Doc A/CONF 164/INF/5, 8 July 1993; and Orrego Vicuña, above n 7, ch 2, 3. For detailed analyses of the FSA and its relationship to the LOSC see, eg, L Juda, ‘The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique’ (1997) 28 Ocean Development and International Law 147; A Tahindro, ‘Conservation and Management of Transboundary Fish Stocks: Comments in Light of the Adoption of the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks’ (1997) 28 Ocean Development and International Law 1; and R Rayfuse, ‘The Interrelationship Between the Global Instruments of International Fisheries Law’ in E Hey (ed), Developments in International Fisheries Law (1999) 107.

[71] The problems identified by Agenda 21 of the Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3–14 June 1992), UN Doc A/CONF 151/26 (Vol 2) of 13 August 1992, and listed in the Preamble, were specifically: ‘… management of high seas fisheries, including the adoption, monitoring and enforcement of effective conservation measures, is inadequate in many areas and some resources are over utilised. There are problems of unregulated fishing, overcapitalisation, excessive fleet size, vessel reflagging to escape controls, insufficiently selective gear, unreliable databases and lack of sufficient cooperation between states’, Agenda 21, ch 17(D) [17.45].

[72] Such as the unilateral extensions of coastal state jurisdiction being asserted by Canada as the basis for its arrest of the Estai in 1995 and the Chilean claim to a presential sea. For a discussion of the various claims see, eg, de Ytturiaga, above n 67, ch 2, 3; and Orrego Vicuña, above n 7, ch 4.

[73] The duty is now embodied in LOSCart 117. See E Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources (1989) 28–41 for a full discussion of the customary development of the norm.

[74] See, eg, the ILC’s 1953 ‘Draft Articles on the Regime of the High Seas: Fisheries’ in which the Commission proposed the idea of an international authority, to be established within the United Nations framework, having legislative powers to prescribe binding regulatory measures in respect of high seas fisheries. ‘Report of the International Law Commission to the General Assembly covering the Work of its Fifth Session’ [1953] 2 Yearbook of the International Law Commission 202, 217–219 [95]–[104]; see also the proposed ‘Draft Convention for the Establishment of a World Marine Fisheries Organisation’ in A W Koers, International Regulation of Marine Fisheries: A Study of Regional Fisheries Organisations (1973) 332; M S Schaefer, ‘Some Recent Developments Concerning Fishing and the Conservation of the Living Resources of the High Seas’ (1970) 7 San Diego Law Review 371.

[75] On the different roles fulfilled by RFOs and their historic lack of effectiveness see, generally, International Fishery Bodies: Considerations for High Seas Management (1992) FAO Technical Consultation on High Seas Fisheries, FAO Doc FI/HSF/TC/92/6, reproduced in UN Doc A/CONF 164/INF/2 (14 May 1993).

[76] FSA arts 8–12, 14.

[77] FSA art 13.

[78] In particular, FSA art 18 on duties of the flag state and art 19 on compliance and enforcement by flag states.

[79] FSA arts 20–22.

[80] FSA art 23.

[81] FSA art 1(2)(a).

[82] FSA art 30.

[83] FSA art 34.

[84] FSA art 35.

[85] FSA art 33.

[86] FSA art 1(3).

[87] See, eg, Lee, above n 12, 549–553.

[88] Arrow, above n 12, 227.

[89] See, International Institute for Sustainable Development, ‘Daily Report on the Fifth Substantive Session of the Straddling Fish Stocks and Highly Migratory Fish Stocks Conference’, Earth Negotiations Bulletin (3 August 1995) 7 (52) and (4 August 1995) 7 (53). See also the declarations made, in particular, by China and the European Union upon signature, available at <


[90] Ibid Earth Negotiations Bulletin, (4 August 1995) 7 (53).

[91] Tunkin was referring to the Antarctic Treaty. See Summary Record of Proceedings [1964] 1 Yearbook of the International Law Commission 107.

[92] M Mendelson, ‘The Formation of Customary International Law’ (1998) 272 Recueil des Cours 159, 295.

[93] [1969] ICJ Rep 3, 41 [71].

[94] (1994) 33 ILM 968. On the Compliance Agreement see generally, D A Balton, ‘The Compliance Agreement’ in Hey (ed), above n 70, 31.

[95] Article IV(4), 11 February 1992, United States Senate, 102nd Congress second session, Treaty Doc 102–130.

[96] 1994, ATS 16, art 15(4).

[97] 1995, 34 ILM 1, art 3.

[98] The level of unregulated fishing in regulatory areas has been and continues to be a significant concern for all RFOs with management mandates. See below n 107.

[99] See generally, M Hayashi, ‘Enforcement by Non-Flag States on the High Seas Under the 1995 Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks’ (1996) 9 Georgetown International Environmental Law Review 1 for an extensive discussion and analysis of the negotiations of the Conference on this issue.

[100] UN Doc A/CONF 164/35 (20 September 1995) 1.

[101] E Hey ‘Reconceptualization of the Issues Involved in International Fisheries Conservation and Management’ in Hey (ed), above n 70, 577, 578.

[102] To use Simma’s words. Simma, above n 11, 202.

[103] Hey, above n 101, 578

[104] Ibid 585.

[105] Mendelson, above n 92, 312–313.

[106] For measures being taken within existing RFOs to implement aspects of the FSA see ‘Report of the Meeting of FAO and Non-FAO Regional Fishery Bodies or Arrangements’ FAO Fisheries Report No 597, FAO, Rome, 1999; and G L Lutgens, ‘A Review of Measures Taken by Regional Marine Fishery Bodies to Address Contemporary Conservation and Management Issues’ FAO Fisheries Circular No 940, FAO, Rome, 1999.

[107] The problem of continuing and increasing illegal, unregulated and unreported fishing was highlighted in the Report of the Secretary General to the 54th session of the General Assembly on Oceans and the Law of the Sea, UN Doc A/54/429 (30 September 1999). The Report also canvasses steps taken to control the problem including schemes to promote compliance by non-parties, such as, eg, those adopted by the Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR), the Northwest Atlantic Fisheries Organisation (NAFO) and the North East Atlantic Fisheries Commission (NEAFC). For a review of these activities, see also R Rayfuse, ‘1998: The Year in Review — Fisheries/Marine Mammals’ (1998) 9 Yearbook of International Environmental Law 305 and (1999) 10 Yearbook of International Environmental Law (forthcoming).

[108] See, eg, R Rayfuse, ‘Enforcement of High Seas Fisheries Regimes: The Observation and Inspection Regime under the Convention on the Conservation of Antarctic Marine Living Resources’ (1998) 13 International Journal of Marine and Coastal Law 570; and the North East Atlantic Fisheries Commission (NEAFC) Scheme contained in the Recommendation on a Scheme of Control and Enforcement in respect of vessels fishing in areas beyond the limits of national jurisdiction in the Convention Area, Office of the Commission (1998).

[109] Examples include measures adopted on trans-shipment by NAFO and the Catch Certification Scheme adopted by CCAMLR in respect of Patagonian toothfish. Northwest Atlantic Fisheries Organization, Additions to NAFO Conservation and Enforcement Measures Part I art 1 and Part IV art 19(i), NAFO Conservation and Enforcement Measures, 1998, reproduced in NAFO News, No 9, July–Dec 1998, 5; a consolidated version of the NAFO Conservation and Enforcement Measures is available at <> . Commission on Conservation of Antarctic Marine Living Resources, Conservation Resource 170/XVIII Catch Documentation Scheme for Dissostichus spp. CCAMLR Report, CCAMLR XVIII (1999), 18 [5.26] annex 6. The CCAMLR Report is available at <> .

[110] Enforcement actions have been taken by members of the North Pacific Anadromous Fish Commission against Chinese vessels illegally driftnetting in the North Pacific convention area. China is not a member of the NPAFC. However, enforcement is carried out pursuant to a Memorandum of Understanding with the United States under the United Nations high-seas driftnet fishing moratorium. See NPAFC Annual Report (1998), NPAFC Newsletter (1999), and NPAFC Annual Report (1999),

[111] On this topic see, eg, A V Lowe, ‘The Right of Entry into Maritime Ports in International Law’ (1977) 14 San Diego Law Review 621.

[112] In 1998 and 1999 Mauritius and Namibia were invited to participate as observers in the CCAMLR meetings due to their fishing activities in the convention area. They have been encouraged to become members and Namibia is apparently preparing to do so. Report of the 17th Meeting of the Commission (1998) 4 [2.20].

[113] In respect of its overseas territory of St Helena and its dependencies Tristan de Cunha and Ascension Island.

[114] Explanatory Note by the Chair to accompany the draft of 1 October 1999 of the draft convention for the Conservation of and Management of Fishery Resources in the South East Atlantic Ocean, Record of Proceedings, 5th Meeting of Coastal States and Other Interested Parties on a Regional Fisheries Management Organisation for the South East Atlantic (11 October 1999) (copy on file with author).

[115] Brief Summary of SEAFO Process prepared by the United Kingdom Chair, Record of Proceedings, 4th Meeting of Coastal States and Other Interested Parties on a Regional Fisheries Management Organisation for the South East Atlantic, Attachment 6 (copy on file with author).

[116] Ibid.

[117] Ibid.

[118] A Jackson, ‘Developments in the South East Atlantic, 1997–1999: Meetings of Coastal States and Other Interested Parties on a Regional Fisheries Management Organisation for the South East Atlantic (the SEAFO Process)’ Draft (Paper presented to Conference on Current Fisheries Issues and the Food and Agriculture Organisation of the United Nations, Rome, 15–17 March 2000, 6–8) (copy on file with author).

[119] FAO, Rome, 1995. See generally, G Moore, ‘The Code of Conduct for Responsible Fisheries’ in E Hey (ed), above n 70, 85.

[120] See above n 115.

[121] Jackson, above n 118, 11.

[122] SEAFO draft art 20.

[123] Ibid art 19.

[124] Ibid art 14(3).

[125] Ibid art 20(2).

[126] Ibid art 20(3).

[127] Australia, Canada, China, Cook Islands, Federated States of Micronesia, Fiji, France, French Polynesia, Indonesia, Japan, Kiribati, Marshall Islands, Nauru, New Caledonia, New Zealand, Niue, Palau, Papua New Guinea, Philippines, Republic of Korea, Samoa, Solomon Islands, Chinese Taipei (Taiwan), Tonga, Tuvalu, United States of America, Vanuatu and Wallis and Fortuna.

[128] Copy on file with author.

[129] See ‘Closing Statement by the Chairman, Ambassador Satya N. Nandan, to the Fifth Session of the Multilateral High-Level Conference’ (Report of the Fifth Session of the Multilateral High-Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, 15 September 1999) Annex 6. See also R Rayfuse and M Wilder, ‘Comments and suggested changes by TRAFFIC Oceania on the text from MHLC4 (February 1999) of the Draft Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean’ (August 1999) (copy on file with the author and available from TRAFFIC Oceania).

[130] MHLC draft art 25–26.

[131] Ibid art 27.

[132] Ibid art 29.

[133] Ibid art 32.

[134] Ibid art 10(1)(k).

[135] For a comparison of the two processes on this point, in particular, see D Doulman, ‘A Preliminary Review of Some Aspects of the Processes in the Western and Central Pacific Ocean and the South-East Atlantic Ocean to Implement the UN Fish Stocks Agreement’ Centre for Fisheries Economics, Norwegian School of Economics and Business Administration, Bergen, 19–21 May 1999.

[136] Australia Department of Primary Industries and Energy, ‘Orange Roughy: Deep-sea Dwellers’, Fishfacts 11 <> .

[137] Arrangement Between the Government of Australia and the Government of New Zealand for the Conservation and Management of Orange Roughy of the South Tasman Rise. The Arrangement took effect from 1 March 1998. The Arrangement was renewed in February 1999 for another year and it was still in force when the sightings occurred (copy on file with author).

[138] The Hon. Mark Vaile, MP, Minister for Agriculture, Fisheries and Forestry, Vaile Slams Unregulated Fishing on our Doorstep, Press Release, AFFA99/106V (6 July 1999) <> .

[139] See J J Cornish, ‘Saving the Orange Roughy to help the Patagonian Toothfish’, 11 August 1999 <> .

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback