Anthony Aust. Handbook of International Law

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catches (TACs) and close the fishing seasons or areas when the TACs have been reached, or allocate

quotas; close the fisheries or areas for a whole season; specify minimum fishing net sizes; prohibit

or regulate certain fishing methods, such as driftnets or long-lines; and co-ordinate scientific

research. A member state can opt out of a particular measure. Despite enforcement being essentially

national, it is helped by schemes for international observation and inspection under which fishing

vessels of member states can carry an observer, or be boarded by an inspector, of another member

state. Observers also have the ancillary function of collecting information, but do not usually have

regulatory powers.

The main weakness of the commissions is that some member states do not take their obligations

seriously enough or simply do not act in good faith.

The commissions have no legal power over

non-member states and their fishermen; and decisions are often taken on political, rather than

scientific, grounds. Fishing in the EEZs of EC states is subject to the EC Common Fisheries Policy,

but some fish stocks are near to collapse due to serious over-fishing caused mainly by decisions

taken for political reasons.

A particularly damaging development is for members to ignore the practice of their nationals who

avoid the measures by operating vessels flying the flag of non-members.

Measures to combat such

problems include member states agreeing to prevent the landing or import of certain species, or

species caught by prohibited methods (whether or not the fishing vessel flew the flag of a member

state) and economic sanctions against non-members (retorsion).

In 1993, the FAO adopted the

Agreement to Promote Compliance with International Conservation and Management Measures by

Fishing Vessels on the High Seas (usually referred to as the Compliance Agreement).

Article

places responsibility on the parties to ensure that their flag vessels do not do anything that

undermines international conservation and management measures. In particular, the

33. See R. Rayfuse. ‘The United Nations Agreement on Straddling and Highly Migratory Fish Stocks: A

Case of Wishful Thinking?’ (1999) Australian YBIL 253–78; R. Rayfuse, ‘Enforcement of High Seas

Fisheries Agreements: Observation and Inspection under the Convention on the Conservation of Antarctic

Marine Living Resources’ (2000) International Journal of Marine and Coastal Law 579–605; E.

Molenaar, ‘CCAMLR and Southern Ocean Fisheries’ (2001) International Journal of Marine and Coastal

Law 465–99.

34. See Birnie and Boyle, pp. 661–3.

35. See p. 316 above on flags of convenience.

36. For an explanation of the term, see p. 425 below.

37. ILM (1994) 968; B&B Docs. 645. It entered into force on 24 April 2003. The twenty-nine parties so far

include Argentina, Chile, the EC, Japan, South Korea and the United States.

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parties must not allow their flag vessels to fish on the high seas without their authorisation, and

before granting it the flag state must be satisfied that, given the links between it and the vessel, it is

able to exercise effective control over the vessel. The latter may, for example, be done by tracking

the vessel by a satellite vessel monitoring system (VMS) and by robust enforcement methods such as

speedy prosecution of violations of fishing licences and the confiscation of catches and gear. The

effectiveness of the Agreement will depend largely on whether flags-of-convenience states become

parties, and whether they then take their obligations seriously. The problems are still very much with

us.

The North-East Atlantic Fisheries Commission (NEAFC) and NAFO have become largely

redundant due to the declaration of EEZs in their areas, their regulatory powers now being limited to

high seas fisheries. Effective co-operation between the coastal states in respect of stocks that

straddle their EEZs is poor.

The Fish Stocks Agreement (or Straddling Stocks Agreement) 1995

has detailed provisions

designed to deal with the problem of straddling stocks. It only came into force on 11 December

2001, and now has fifty-two parties, but so far this does not include some important fishing states

such as Japan and South Korea. The two most effective regional fisheries commissions for this

purpose are the relatively new Commissions for the Conservation of Southern Bluefin Tuna

(CCSBT)

and for the Indian Ocean Tuna (IOTC).

Wildlife

Other treaties have as their aim the protection of nature (including other wildlife which is a source of

food) for other reasons, including aesthetic.

The (Ramsar) Convention on Wetlands of International Importance 1971

is concerned with the

preservation of wetlands. Parties designate wetlands within their territory for inclusion in a ‘List of

Wetlands of

38. Agreement for the Implementation of the Provisions of UNCLOS relating to the Conservation and

Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995, 2167 UNTS 3 (No.

37924); ILM (1995) 1542; UKTS (2004) 19.

39. See www.ccsbt.org. The CCSBT was adopted by Australia, Japan and New Zealand on 10 May 1993

and entered into force in 1994, 1819 UNTS 359 (No. 31155). South Korea is now also a member.

40. See www.iotc.org.

41. 996 UNTS 245 (No. 14583); ILM (1972) 963; UKTS (1976) 34; TIAS 11084; B&B Docs. 447. For the

current amended text, see www.ramsar.org.

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International Importance’ on account of their international significance in terms of ecology, botany,

zoology, limnology (study of freshwater phenomena) or hydrology. Each party is required to

promote the conservation of wetlands and waterfowl by establishing nature reserves. The parties

meet regularly to consult. There are 143 parties.

The Convention on International Trade in Endangered Species of Wild Flora and Fauna 1973

(CITES)

is much better known from media reports on the seizure of illegal imports of elephant

tusks, etc. It prohibits or regulates trade in endangered species and, to a certain extent, trade with

non-parties. For this purpose, the Convention lists the endangered species in three appendices, which

are amended from time to time: Appendix lists species threatened with extinction, trade in which

can be authorised only in exceptional circumstances; Appendix lists species which, although not

necessarily now threatened with extinction, may become so unless trade in them is subjected to strict

regulation; and Appendix lists all species that any party identifies as being subject to its regulation

to prevent or restrict exploitation, but for which it needs the co-operation of other parties in the

control of trade. Permits are required for any trade in any species included in Appendices , or ,

although the terms vary according to the Appendix. Trade sanctions imposed by CITES parties have

proved effective in enforcing the Convention against parties and non-parties. It has 167 parties.

Biological diversity

The United Nations Convention on Biological Diversity 1992

echoes the words of Darwin at the

start of this chapter, although in more prosaic language, by defining ‘biodiversity’ as:

the variability among living organisms from all sources including, inter alia, terrestrial, marine and other

aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within

species, between species and of ecosystems.

‘ecosystem’ is defined as:

a dynamic complex of plant, animal and micro-organism communities and their non-living environment

interacting as a functional unit.

42. 993 UNTS 243 (No. 14537); ILM (1973) 1085; UKTS (1976) 101; 27 UST 1087; TIAS 82249. For

the current amended text, see www.cites.org.

43. 1760 UNTS 9 (No. 30619); ILM (1992) 818; UKTS (1995) 51; B&B Docs. 390.

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Previously, treaties had adopted a piecemeal approach, dealing with endangered species that are

valuable for their own sake. The basic principle underlying the Convention is the recognition that,

although conserving biodiversity is important for the survival of mankind, sustainable use of

biological resources is permissible.

The Convention entered into force after eighteen months, and only two and a half years after it

was adopted it already had 100 parties. By the end of 2004, it had no less that 188, although neither

Timor Leste nor the United States are parties. Nevertheless, this remarkable achievement (on a par

with the Rights of the Child Convention 1989)

was possible only because, like childhood, no state

can today be seen to be against biodiversity and the Convention needed no (or only minimal)

legislation. The Convention itself may therefore not be such a success. It does not place onerous

legal obligations on the parties. The numerous compromises that had to be made resulted in

requirements that are broad and vague, or carefully qualified. The Convention stresses that states

remain in control of their biological resources and, where it calls for domestic action, a party’s

obligations are qualified at least eight times by the formula ‘as far as possible and as appropriate’.

The hard work of devising specific binding rules on all parties is left to the negotiation of protocols.

The only protocol so far agreed, the Cartagena Protocol on Biosafety 2000, entered into force in

2003 and so far has 124 parties.

It is concerned with the possible damage that genetically modified

organisms might do to biological diversity, particularly in transboundary movements. The United

States considers that WTO rules must prevail over the Protocol and is not a party.

The ozone layer and climate change

By the 1980s, states had become acutely aware of the damage that had been done to the ozone layer

in the stratosphere by, in particular, the chlorofluorocarbons (CFCs) in aerosols and coolants. The

Vienna Convention for the Protection of the Ozone Layer 1985

has few specific obligations, and

was followed by the much more substantial Montreal Protocol on Substances that Deplete the Ozone

Layer 1987,

which entered into force

44. See p. 236, n. 23 above.

45. 1760 UNTS 79 (No. 30619); ILM (2000) 1027; UKTS (2004) 17.

46. See Birnie and Boyle, pp. 580–1 and 737–9.

47. 1531 UNTS 324 (No. 26164); ILM (1987) 1529; UKTS (1990) 1.

48. 1522 UNTS 3 (No. 26369); ILM (1987) 1541 and ILM (1989) 1301; UKTS (1990) 19.

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two years later and now has 189 parties, including Brazil, China, the European Community, India,

Russia and the United States. It requires the parties to reduce, and ultimately to eliminate, the

production and consumption of certain ozone-depleting substances according to a timetable. Since

developing states have so far not contributed much to ozone depletion, they are given more time to

comply. The Protocol also bans the import from, or export to, non-parties of such substances. The

terms of the Protocol and its annexes are extremely detailed and have been amended several;

times.

European Community Regulation 91/594 prohibited the production of CFCs after 30 June

1997. The Protocol has so far been largely successful, and, if it continues to make progress, only

forty years from now the hole in the ozone layer over Antarctica could be closed.

The UN Framework Convention on Climate Change 1992

now has 189 parties, including the

United States. It deals with the much more intractable problem of the warming of the atmosphere

(global warming) caused by ‘greenhouse gases’, being gases, such as carbon dioxide (CO

produced by the use of fossil fuels and released into the atmosphere, for example by motor vehicle

exhausts. The ‘ultimate objective’ of the Convention is the ‘stabilization of greenhouse gas

concentrations in the atmosphere at a level that would prevent dangerous anthropogenic (of human

origin) interference with the climate’. Unlike the Montreal Protocol, it does not seek to reverse a

process that is intimately bound up with modern industrial and commercial development, but to stop

it causing further unacceptable warming of the climate. The Convention, rather like the Ozone Layer

Convention, lays down broad principles on which future measures should be based, in particular that

developed states should take the lead.

So far, the only specific measure that has been adopted is the Kyoto Protocol 1997,

which sets

individual emission limits and timetables for certain developed parties in respect of six greenhouse

gases. A state can set off against its emissions those changes in land use or forestry activities that

result in the removal of greenhouse gases (a forest can amount to a ‘sink’ by removing a greenhouse

gas from the atmosphere). Furthermore, the Protocol enables two or more parties, by joint action, to

fulfil their obligations by innovative means: aggregation of combined emissions; credit

49. For an up-to-date version, see www.unep.org/ozone/pdfs/Montreal-Protocol2000.pdf.

50. 1771 UNTS 1907 (No. 30822); ILM (1992) 849; UKTS (1995) 28. See

www.unfccc.int/resource/convkp.html.

51. UNTS (No. 30822); ILM (1998) 22.

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against emissions for supporting projects to reduce emissions by another party; trade in emissions

permits; and credits for funding projects of another party. The Protocol had been ratified by 151

states and the European Community. To enter into force, it needed fifty-five ratifications, including

at least 55 per cent of the states whose aggregate carbon dioxide emissions for 1990 amount to 55

per cent of total emissions. Since emissions from Russia and the United States are such a large

proportion of the total, in practice this needed at least one of them to ratify, which Russia did in

2004. The Protocol then entered into force on 16 February 2005. Without the United States, the

Protocol’s effectiveness will be that much less, though its approach remains controversial.

Nuclear material

The International Atomic Energy Agency (IAEA),

with headquarters in Vienna, is not a UN

specialised agency, although it is part of the ‘UN family’ and has close links with the United

Nations.

The new use of nuclear power was an early candidate for international action. The OECD

Convention on Third Party Liability in the Field of Nuclear Energy 1960 (Paris Convention) is

limited to the metropolitan territory of OECD members or associate countries which have always

had the biggest concentration of nuclear installations. Its purpose is to harmonise the parties’

legislation on liability for nuclear accidents, placing on the operator of a nuclear installation (reactor,

factory, storage plant) absolute (but limited) liability, and establishes a common scheme for

compensation. The 1960 Brussels Agreement Supplementary to the Paris Convention provides for

state-funded compensation for a loss that exceeds the limited liability of the operator under the Paris

Convention. Both Conventions have been extensively amended, most recently by a Protocol of 12

February 2004.

The (Vienna) Convention on Civil Liability for Nuclear Damage 1963, concluded within the

IAEA, closely follows the Paris Convention but was replaced by the (Vienna) Protocol on Civil

Liability for Nuclear Damage 1997.

The Convention on Early Notification of a Nuclear Accident

1986

was adopted following the Chernobyl disaster. It requires a party

52. www.iaea.org.

53. For a consolidated text, see www.nea.fr/html/law/legal-documents.html.

54. ILM (1997) 1462.

55. 1457 UNTS 133 (No. 24643); ILM (1986) 1377; UKTS (1998) 1; B&B Docs. 300.