II Summaries of the 39 arrangements under consideration

Argentina/UK Joint Statement

· Full name of arrangement

Joint Statement on the Conservation of Fisheries, 28 November 1990

Parties: Argentina, United Kingdom

Source of arrangement text for this report: International Journal of Estuarine and Coastal Law, pp. 146-148, 1991?

NOTE: A further Joint Statement with fisheries content was signed on 14 July 1999.

· Nature of arrangement (treaty, MOU, Joint Statement etc.)

Joint Statement (not signed)

· Scope (sectors covered)

Fisheries conservation.

· Provision for harmonisation regarding conservation and management (if any)

None.

· Maritime boundary delimitation aspect (if any)

There is a dispute over sovereignty between Argentina and the UK in relation to the Falkland Islands, South Georgia and the South Sandwich Islands.

The Joint Statement applies a formula on sovereignty contained in the Joint Statement issued at Madrid on 19 October 1989. The effect is that there is to be no change in the position of Argentina or the United Kingdom “with regard to sovereignty or territorial and maritime jurisdiction over the Falkland Islands, South Georgia and the South Sandwich Islands and the surrounding maritime areas” (paras 1(1)(a) and (b)).

· Geographical scope

Para 2(a) refers to one role of the South Atlanic Fisheries Commission being to assess the state of fish stocks “in the South Atlantic”.

Para 2(b) provides for a temporary total prohibition of commercial fishing in an area defined in the Annex to the Joint Statement. This area consists of a sea area “extending over 200 000 km² in a semicircle north, east and south of the FICZ [i.e. Falkland Islands Interim Conservation and Management Zone]” and is known as the Falklands Outer Conservation Zone (FOCZ) (Bisbal, 1993).

Para 3 states that in accordance with paragraph 7 of the Madrid Joint Statement of 15 February 1990, the maritime area which the Commission will consider in relation to the conservation of the most significant off-shore species will be waters between latitude 45^oS and latitude 60^oS.

· Consultative mechanism (if any)

Þ Primary consultative mechanism

The Joint Statement established a South Atlantic Fisheries Commission, composed of delegations from both states (para 2(a)).

Þ Frequency of meetings

The Joint Statement states that “[i]n order to contribute to the conservation of fish stocks, the two Governments agreed to open the way for cooperation in this field on an ad-hoc basis” (para 2).

Para 3 states that the Commission will meet at least twice a year, alternately in Buenos Aires and London. There have now been 18 regular meetings (and at at least one ad hoc meeting, in September 1999). A Joint Press Statement is produced after each Commission meeting. The most recent meeting was in Argentina in November 2000.

Þ Delegations

A minister (or ambassador) from Argentina meets an official from the United Kingdom.

Þ Subsidiary bodies

There is a Scientific Sub-Committee (SSC) composed of scientists from the two States who meet just before the meetings of the Committee. In general, the SSC after each meeting makes a set of proposals to the Commission on inter alia catch levels. The SSC also works on stock assessments and on achieving compability between the two States’ data.

Þ Nature of decisions (binding or advisory)

Paras 4(a), (b) and (d) indicate that the Commission shall make recommendations on the format for data submission and on conservation measures.

Þ Decision-making

Para 3 states that recommendations shall be reached by mutual agreement.

· Elements of fisheries management covered

Þ Research and stock assessment

According to para 2(a) the role of the South Atlantic Fisheries Commission is inter alia to “assess the state of fish stocks in the South Atlantic in accordance with paragraph 7 of the Joint Statement issued at Madrid on 15 February 1990”.

Para 4 adds that the functions of the Commission include inter alia: “(a) In accordance with paragraph 7 of the Joint Statement issued at Madrid on 15 February 1990, to receive from both States the available information on the operations of the fishing fleets, appropriate catch and effort statistics and analyses of the status of the stocks of the most significant off-shore species. Both governments will provide such information in the form recommended by the Commission” and “(c) To propose to both Governments joint scientific research work on the most significant off-shore species”.

In practice, the Commission generally (a) agrees to recommend to the two governments the proposals of the Scientific Sub-Committee (SSC - see above) and the continuation of scientific research to improve understanding of “the most significant offshore species in the area”, and (b) reaffirms its support for the “Early Warning System” (regarding squid). The Commission may, as appropriate, also agree to recommend to the two governments specific research suggestions by the SSC (including inter alia suggestions for joint stock assessment workshops).

Þ Conservation and management

Para 2(b) provides for “a temporary total prohibition of commercial fishing by vessels of any flag in the maritime area defined in the Annex to this Joint Statement, for conservation purposes”.

Para 4 adds that the functions of the Commission include inter alia: “(b) To assess the information received and to submit to both Governments recommendations for the conservation of the most significant off-shore species in the area” and “(d) In accordance with international law, to recommend to both Governments possible actions for the conservation in international waters of migratory and straddling stocks and species related to them”.

In practice, at recent meetings the Commission has agreed to recommend to the two goverments (a) to make efforts to maintain a spawning stock biomass of 40,000 tonnes of Illex at the end of the fishing season and (b) maintenance, or introduction, of the precautionary approach for particular species. At the 15^th meeting in June 1999, the Commission recommended to the two governments to “take such relevant measures as are necessary to ensure the recovery of the [Southern Blue Whiting] stock to an exploitation level which is sustainable”. At the ad hoc meeting in September 1999, the Commission agreed to “coordinate the exchange of information about... [the two governments’]... respective regulatory policies and administrative measures both before and during the coming season and on the same basis thereafter”.

Þ Monitoring, control and surveillance

Para 4 states that functions of the Commission include inter alia: “(e) To monitor the implementation of the prohibition and make recommendations in this regard to both Governments”.

14 July 1999 Statement: Para III provides that “officials will meet shortly to consider the question of the relative stability of fish stocks, poaching, and other questions related to it and to recommend coordinated programmes of practical measures with the objective of putting them in place before 9 October 1999”. The UK’s accompanying letter of the same date stated that the forthcoming Commission meeting would “explore and recommend practical ways of dealing with poaching... including... the exchange of information and data, ways of enhancing fisheries protection measures and helping develop secure fisheries communication channels”.

At the ad hoc meeting in September 1999, the Commission agreed to recommend to the two governments “practical measures to be coordinated and put in place by 9 October 1999 with the purpose of preventing poaching”. At the latest two meetings, the Commission has agreed to “enhance efforts aimed at... [preventing poaching]... in a coordinated way”.

Þ Training

[The Joint Statement does not expressly provide for cooperation on fisheries training.]

· Provision for review (if any)

The two governments agreed to review the Joint Statement “annually, in particular the duration of the total prohibition” (see above).

River Plate Treaty

· Full name of arrangement

Agreement between Argentina and Uruguay for Purposes of Regulating Jurisdiction in the River Plate and Ocean Areas Adjacent and Beyond this River, 19 November 1973

Entered into force: 12 February 1974

Contracting parties: Argentina, Uruguay

Source of arrangement text for this report: 13 International Legal Materials 1974, pp. 251-267

References below to “ROP” and “Statute” refer to the Statute and Rules of Procedure, respectively, of the Joint Technical Commission. I have not had access to these two instruments, and so rely on Hey (1989) in this respect.

· Nature of arrangement (treaty, MOU, Joint Statement etc.)

Treaty.

· Scope (sectors covered)

The Agreement has two parts: Part I concerns the River Plate; Part II concerns the maritime boundary. This analysis will deal with Part II. The substantive components of Part II are: maritime boundary delimitation; navigation; fisheries (Arts 73-77); pollution; and research.

In Art 73, the parties agree to establish a common fishing zone “beyond the twelve nautical miles measured from the corresponding coastal base lines”, “delineated by two circumferential arcs of a radius of two hundred nautical miles, whose marked centers are respectively located at Punta del Este (Republic of Uruguay) and Punta Rasa del Cabo San Antonio (Argentine Republic)”. The fisheries provisions of Part II (i.e. Arts 73-77) relate to this zone, but are expressly stated not to cover marine mammals (Art 77).

· Provision for harmonisation regarding conservation and management (if any)

Art 82: “The... Commission shall... [promote]... studies and presentation of projects on the unification of the laws of the two Parties concerning matters with which the Commission has been entrusted”.

· Maritime boundary delimitation aspect (if any)

In Part II, Art 70 defines the maritime boundary (including the fisheries jurisdiction boundary) between the two parties’ 200 nautical mile zones. Art 73 then establishes a common fishing zone in relation to the fisheries jurisdiction boundary.

· Geographical scope

Part II covers the waters in the vicinity of the River Plate, up to to 200 nautical miles beyond the parties’ twelve nautical mile zones and a straight line across the mouth of the River Plate (see above).

· Consultative mechanism (if any)

Þ Primary consultative mechanism

The Agreement establishes a Joint Technical Commission, consisting of an equal number of delegates from each party (Art 80), with its headquarters in Uruguay (Art 83). The parties are to agree on a Statute for the Commission; the Commission may in turn draft its own Rules of Procedure (Art 84).

The Commission has a duty, with respect to the common fishing zone (see above), to: (a) conduct studies; and (b) adopt and coordinate plans and measures relevant to the conservation, preservation and rational exploitation of living resources and the protection of the marine environment (Art 80).

Its functions are to inter alia: (a) determine the TAC by species and its allocation between the parties (and making periodic adjustments); (b) promote joint research work (especially regarding inter alia assessment, conservation and preservation of living resources and their rational exploitation); (c) make recommendations relevant to ensuring the value and balance of the ecosystems; (d) establish “standards and rules” related to the rational exploitation of species”; (e) formulate plans for the preservation, conservation and development of living resources; (f) promote studies on the “unification” of the parties’ laws on matters within the Commission’s competence; and (g) transmit to the parties “as expeditiously as possible” inter alia notices and reports to be interchanged pursuant to Part II of the Agreement (Art 82).

Hey (1989) (referring to Statute Arts 15, 17 & 19 and ROP Arts 14 & 16-17) states that “[t]he Commission has two Secretariats: an administrative and a technical one... The function of the administrative secretariat is to coordinate the meetings and inter-sessional work of the Commission... The technical secretariat coordinates the scientific studies required by the Commission”.

Þ Frequency of meetings

Hey (1989) (referring to ROP Art 7) states that “[t]he Commission meets in ordinary sessions once a year and in extra-ordinary sessions whenever either delegation so requests”.

Þ Delegations

[No information is provided in the Treaty or in Hey (1989) on the size or nature of delegations to the Commission.]

Þ Subsidiary bodies

Hey (1989) (referring to ROP Art 13) states that “[f]or the purpose of carrying out its tasks the Commission may establish permanent or ad hoc sub-committees which may have an investigatory or advisory function”.

Þ Decision-making

Hey (1989) (referring to Statute Arts 13-14 and ROP Art 8) states that “[e]ach delegation has one vote and decisions are taken by concurring vote of both delegations... Voting may take place if at least three members of each delegation are present”.

Þ Nature of decisions (binding or advisory)

[No information is provided in the Treaty or in Hay (1989) on whether any decisions taken by the Commission are to be binding or advisory.]

· Elements of fisheries management covered

Þ Research and stock assessment

The Commission has a duty, with respect to the common fishing zone (see above), to inter alia conduct studies (Art 80). Its functions are to inter alia promote joint research work (especially regarding inter alia assessment, conservation and preservation of living resources and their rational exploitation) (Art 82). Hey (1989) (referring to Statute Art 19 and ROP Art 17) states that “[t]he technical secretariat [of the Commission] coordinates the scientific studies required by the Commission”.

Each party, within its maritime jurisdiction, is to authorise the other to conduct “studies and research of exclusively scientific character... in matters of mutual interest specified in article 73” (Art 79). (In fact, Art 73 does not specify per se such matters, beyond recording the agreement of the parties to establish the defined common fishing zone for their flag vessels.) Such authorisation is to be given subject to advance notice of the nature of the work and the area and period concerned being given by the applicant party. However, the authorisation is to be refused “only under exception circumstances and for limited periods of time”. The authorising party has the right to participate in all aspects of the work and to share in the results.

Þ Conservation and management

The Commission has a duty, with respect to the common fishing zone (see above), to inter alia adopt and coordinate plans and measures relevant to the conservation, preservation and rational exploitation of living resources (Art 80). Its functions are to inter alia: (a) determine the TAC by species and its allocation between the parties (and making periodic adjustments); (b) make recommendations relevant to ensuring the value and balance of the ecosystems; (c) establish “standards and rules” related to the rational exploitation of species”; (d) formulate plans for the preservation, conservation and development of living resources; and (e) promote studies on the “unification” of the parties’ laws on matters within the Commission’s competence (Art 82).

The Commission’s allocation of the TAC by species is to be done equitably “in proportion to the fishing resources contributed by each Party, as evaluated on a scientific and economic basis” (Art 74).

The quota allocated by a party to vessels of third flag States is to be subtracted from that party’s allocation (Art 74).

Þ Monitoring, control and surveillance

Each party is to conduct control and surveillance on its respective side of the line defined in Art 70 (i.e. the maritime boundary between the two parties’ 200 nautical mile zones); however, such efforts are to be coordinated adequately by the parties (Art 76).

The parties are to exchange lists of their respective flag vessels operating in the common fishing zone (Art 76). In this respect, it is to be noted that one function of the Commission is to transmit to the parties “as expeditiously as possible” inter alia notices and reports to be interchanged pursuant to Part II of the Agreement (Art 82).

The common fishing zone may be used by the parties’ “duly registered” flag vessels (Art 73). However, if either party issues a fishing permit to a third flag State vessel, the area in that permit must relate to the party’s own “nautical jurisdiction” and “may not extend beyond the lines defined in article 70” (i.e. the maritime boundary between the two parties’ 200 nautical mile zones) (Art 75).

Þ Training

[The Agreement does not expressly provide for cooperation on fisheries training.]

· Provision for review (if any)

[Part II of the Agreement does not expressly provide for review.]

Australia/Indonesia MOU

· Full name of arrangement

Memorandum of Understanding between the Government of the Republic of Indonesia and the Government of Australia Concerning the Implementation of a Provisional Fisheries Surveillance and Enforcement Arrangement, 29 October 1981

Entry into force: 1 February 1982 (Art 9)

Parties: Australia, Indonesia

Source of arrangement text for this report: Charney, J.I. and L.M. Alexander (eds), International Maritime Boundaries, vol II (Dordrecht: Martinus Nijhoff, 1993), pp. 1238-1239

· Nature of arrangement (treaty, MOU, Joint Statement etc.)

MOU.

· Scope (sectors covered)

1. The establishment of (a) a “provisional fisheries line” and (b) a “provisional fisheries surveillance and enforcement arrangement” in relation to this line.
2. The exercise of jurisdiction regarding sedentary fish species in areas where existing seabed agreements between the parties apply.
3. The exercise of jurisdiction regarding (a) swimming species in areas where the provisional fisheries surveillance and enforcement arrangement does not apply and (b) sedentary species where existing seabed agreements between the parties do not apply.

· Provision for harmonisation regarding conservation and management (if any)

[Enforcement only.]

· Maritime boundary delimitation aspect (if any)

The MOU establishes (a) a “provisional fisheries line” between the parties (Arts 2 & 3) and (b) a “provisional fisheries surveillance and enforcement arrangement” in respect of swimming species in relation to this line (Arts 1 & 2).

The MOU also covers, very briefly, the exercise of jurisdiction regarding (a) swimming species in areas where the provisional fisheries surveillance and enforcement arrangement does not apply and (b) sedentary species where existing seabed agreements between the parties do not apply (Art 5).

However, Art 6 states that “[i]n relation to the delimitation negotiations between the two countries, it is expressly understood that this arrangement is provisional in nature, is without prejudice to the position of either Government in those negotiations and does not affect the limits of the 200 nautical mile zones established by either country or the exercise of fisheries jurisdiction by either country within such zones except as provided under this arrangement”.

· Geographical scope

The waters of the two parties.

· Consultative mechanism (if any)

Þ Primary consultative mechanism

1. The parties “will take all necessary steps to ensure the smooth effective implementation of this provisional [fisheries surveillance and enforcement] arrangement” (Art 8).
2. The parties “will consult as necessary with a view to avoiding difficulties arising between them with regard to the exercise of their respective jurisdiction” in the case of (a) swimming species in areas where the provisional fisheries surveillance and enforcement arrangement does not apply and (b) sedentary species where existing seabed agreements between the parties do not apply (Art 5).

Þ Frequency of meetings

Consultations “as necessary” (Art 5) in respect of “(b)” above.

Þ Delegations

[The MOU does not expressly provide for limits on the size or nature of delegations to the consultations.]

Þ Subsidiary bodies

[The MOU does not expressly provide for any subsidiary bodies.]

Þ Decision-making

[The MOU does not expressly provide for a mechanism for decision-making in the course of the consultations.]

Þ Nature of decisions (binding or advisory)

[The MOU does not expressly state whether any decisions taken in the course of the consultations are to be binding or advisory.]

· Elements of fisheries management covered

Þ Research and stock assessment

[The MOU does not expressly provide for cooperation on research or stock assessment.]

Þ Conservation and management

[The MOU does not expressly provide for cooperation on conservation and management.]

Þ Monitoring, control and surveillance

The parties accept that a provisional fisheries surveillance and enforcement arrangement should be established where the “economic or fishing zone” of each party would overlap (Art 2).

For swimming fish species in areas of such overlap, pending permanent settlement of maritime boundaries, “neither Government will exercise jurisdiction for fisheries surveillance and enforcement purposes beyond a provisional fisheries line... against fishing vessels licensed to fish for such species by the authorities of the other country” (Art 3). The “provisional fisheries line” is defined elsewhere in the MOU (on an attached sketch map).

The parties “will take all necessary steps to ensure the smooth effective implementation of this provisional [fisheries surveillance and enforcement] arrangement” (Art 8).

For sedentary fish species in areas where existing seabed agreements concluded between the parties apply, the parties will continue to exercise their jurisdiction over those species in accordance with those agreements (Art 4).

In the case of (a) swimming species in areas where the provisional fisheries surveillance and enforcement arrangement does not apply and (b) sedentary species where existing seabed agreements between the parties do not apply, the parties “will consult as necessary with a view to avoiding difficulties arising between them with regard to the exercise of their respective jurisdiction” (Art 5).

Þ Training

[The MOU does not expressly provide for cooperation on training.]

· Provision for review (if any)

[The MOU does not expressly provide for review.]

Australia/Indonesia Agreement

· Full name of arrangement

Agreement Relating to Cooperation in Fisheries, 22 April 1992

Entered into force: 29 May 1993

Contracting parties: Australia, Indonesia

Source of arrangement text for this report: internet -
http://www.austlii.edu.au/au/other/dfat/treaties/1993/18.html

· Nature of arrangement (treaty, MOU, Joint Statement etc.)

Treaty.

· Scope (sectors covered)

Fisheries.

· Provision for harmonisation regarding conservation and management (if any)

1. Preamble: “Recognising that coastal States are obliged to seek... to agree upon measures necessary to coordinate... the conservation and development of shared stocks”
2. Art 3(1): “The Parties shall seek to develop complementary regimes for the conservation, management and optimum utilisation of shared stocks, straddling stocks and highly migratory species.”

· Maritime boundary delimitation aspect (if any)

The Agreement addresses the need for fisheries cooperation in a situation where some fisheries jurisdiction boundaries are not yet delimited. However, it does not go as far as creating any time of special feature or zone in relation to the undelimited boundaries.

Art 11 states that pending final delimitation of the outstanding maritime boundaries between the two countries, the parties shall interpret and implement the Agreement consistently with the existing maritime boundary agreements between the parties and the 1981 MOU concerning the Implementation of a Provisional Fisheries Surveillance and Enforcement Line.

· Geographical scope

The Australia/Indonesia Agreement makes no single, clear statement about its geographical scope. However:

1. (a) its preamble recalls various bilateral instruments relating to maritime boundaries between the two parties;
2. (b) Art 3 refers to “shared stocks, straddling stocks and highly migratory species” and to the parties cooperating “directly or through appropriate international organisations to assure the conservation and management of marine living resources of the high seas”;
3. (c) Arts 6 & 7 refer to the waters of the two parties;
4. (d) Art 11 states the parties are to “interpret and implement this Agreement consistently with the existing maritime boundary agreements between the Parties and the 1981 [Australia/Indonesia MOU]”.

· Consultative mechanism (if any)

Þ Primary consultative mechanism

Art 12 requires that consultations between officials of the parties shall be held.

Þ Frequency of meetings

Art 12 states that the consultations between officials shall occur from time to time at the request of either party.

Þ Delegations

Officials.

Þ Subsidiary bodies

Art 12 states that the consultation between officials may include the convening of technical meetings on marine areas or stocks of special interest to both parties (including but not limited to: pelagic shark, tuna, demersal finfish and trochus).

Þ Decision-making

[The Agreement does not expressly provide for a mechanism for decision-making in the course of the consultations.]

Þ Nature of decisions (binding or advisory)

[The Agreement does not expressly state whether decisions taken in the course of the consultations are to be binding or advisory.]

· Elements of fisheries management covered

Þ Research and stock assessment

Art 1 requires the parties to facilitate cooperation on fisheries research relevant to the conservation and optimum utilisation of marine living resources.

Art 2(1) requires parties to exchange available information related to fisheries of mutual interest, including inter alia: (a) fishing catch and effort data from foreign and domestic vessels; (b) the results of scientific research into: ecological studies, population dynamics and stock distribution, abundance and assessment of sustainable yield.

Þ Conservation and management

Art 3(1) states that the parties shall seek to develop complementary regimes for the conservation, management and optimum utilisation of shared stocks, straddling stocks and highly migratory species.

Art 5 states that the parties shall exchange available information on technological developments related to fisheries, including inter alia: (a) innovations in fishing gear which assist the development of sustainable fishing techniques; and (b) monitoring, assessing and reducing the effects of fishing on marine mammals and other protected marine biota.

Þ Monitoring, control and surveillance

Art 2(1) states that the parties shall exchange available information related to fisheries of mutual interest, including inter alia fisheries monitoring, control and surveillance systems and technology.

Art 6(1) states that access agreements or arrangements between the parties shall specify inter alia (a) procedures for recording vessel position, catch and effort; (b) licence requirements; and (c) provision for observers.

Art 7 requires each Party to take steps intended to ensure that: (a) its fishing vessels do not fish in areas subject to the enforcement jurisdiction of the other Party unless authorised; and (b) any of its fishing vessels licensed to fish in areas subject to the enforcement jurisdiction of the other Party comply with the laws of that Party. Art 8 requires that in the event of enforcement action, the enforcing party notifies the other party promptly of the action and its results.

Þ Training

Art 4 states that the parties shall facilitate cooperation through exchanges and training of fisheries and marine conservation personnel, including managers, scientists and students.

· Provision for review (if any)

Art 14 requires that the Agreement is reviewed upon the expiration of five years from the date of its entry into force.

Torres Strait Treaty

· Full name of arrangement

Treaty concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters, 18 December 1978

Entry into force: 15 February 1985

Contracting parties: Australia, Papua New Guinea

Source of arrangement text for this report: internet -
http://www.austlii.edu.au/au/other/dfat/treaties/1985/4.html

· Nature of arrangement (treaty, MOU, Joint Statement etc.)

Treaty.

· Scope (sectors covered)

Broad. Scope includes: fisheries; freedom of navigation and overflight; protection and preservation of the marine environment and protection of the traditional way of life and livelihood of traditional inhabitants; maritime boundaries; seabed mineral resources; sovereignty over islands (including their territorial seas); and wrecks.

In Art 1, the term “fisheries resources” is defined to include “all living natural resources of the sea and seabed, including all swimming and sedentary species”.

· Provision for harmonisation regarding conservation and management (if any)

1. Art 13(4): “The Parties shall consult, at the request of either, for the purpose of... harmonising their policies with respect to the measures that each shall take pursuant to this Article... and ensuring the effective and coordinated implementation of those measures”. The measures include inter alia “measures for the prevention and control of... damage to the marine environment [of and in the vicinity of the Protected Zone] from all sources and activities under its jurisdiction or control” (Art 13(2))
2. Establishes allocation percentages between the parties.

· Maritime boundary delimitation aspect (if any)

The Treaty establishes a seabed boundary, a fisheries jurisdiction boundary (different in some places to the seabed boundary) and the extent of territorial seas of certain islands.

The Treaty also establishes a “Protected Zone” in the Torres Strait. This zone crosses both the seabed and the fisheries jurisdiction boundaries but does not alter these boundaries. The establishment of the Zone can be attributed in part to a “fix” on sovereignty whereby Australia retained sovereignty over almost all islands in the Torres Strait including those north of its seabed boundary and fisheries jurisdiction boundary.

· Geographical scope

The Torres Strait itself and the areas to the immediate east and west of the Strait.

· Consultative mechanism (if any)

Þ Primary consultative mechanism

Art 18 establishes liaison arrangements to “facilitate the implementation at the local level of the provisions of this Treaty”, involving the designation by each party of one representative with various functions.

Art 19 further establishes the Torres Strait Joint Advisory Council (JAC). The functions of this body relate to solving of residual local problems, “the traditional way of life and livelihood of the traditional inhabitants”, and reviewing, reporting on and making recommendations on the effective implementation of the Treaty (Art 19(2)).

In addition, the Treaty also establishes many duties to consult and cooperate. A few of these operate independently of the Protected Zone. Those consultation and cooperartion duties relevant to fisheries are dealt with below. Art 30 establishes an overarching duty to consult, at the request of either party, on any matters relating to the Treaty.

Þ Frequency of meetings

There is no express provision for meetings under the Art 18 liaison arrangements. However, Kaye (1997) reports that Treaty liaison meetings (in the context of Art 18) are scheduled three to four times per year.

Art 19(7) states that the JAC “shall meet when necessary at the request of either Party”.

Þ Delegations

Art 19(6) states that, unless otherwise agreed by the parties, the JAC is to consist of nine members from each party who shall include: (a) “at least two national representatives”; (b) “at least one member representing the Government of Queensland in the case of Australia and one representing the Fly River Provincial Government in the case of Papua New Guinea”; and (c) “at least three members representing the traditional inhabitants”. Each party is free to decide from time to time from which of these categories any other of its members will be drawn.

Þ Subsidiary bodies

The Treaty does not expressly provide for any subsidiary bodies of the JAC. However, Kaye (1997) states that:

In addition to the [JAC], other committees and special meetings have been arranged to address potential problems and disputes. A Traditional Inhabitants Meeting is held annually, at a time immediately prior to meetings of the [JAC], to provide for the identification of issues to be discussed within the [JAC].... There are also specialist committees to consider environmental management [the “Environmental Management Committee”] and fisheries enforcement [the “Joint Australia/Papua New Guinea Fisheries Enforcement Committee”] in the region.

Þ Decision-making

[The Treaty does not expressly provide for a mechanism for decision-making by the JAC.]

Þ Nature of decisions (binding or advisory)

The JAC is an “advisory and consultative body” (Art 19(1)). Art 19(3) states that the JAC “shall not have or assume responsibilities for management or administration” and adds that such responsibilities shall “within the respective areas of jurisdiction of each Party, continue to lie with the relevant national, State, Provincial and local authorities”.

· Elements of fisheries management covered

Þ Research and stock assessment

Area between the seabed and fisheries boundaries:

Art 3 requires the parties to agree prior to any exercise of “residual jurisdiction” (including fisheries jurisdiction “not directly related to the exploration or exploitation of resources or to the prohibition of, or refusal to authorise, activities subject to that jurisdiction”) and “to consult with a view to reaching agreement on the most effective method of application of measures involving the exercise of residual jurisdiction”.

Protected Zone:

Kaye (1997) reports that “[j]oint monitoring and continuing consultation has... been agreed in relation to certain targetted species, including dugong, spanish mackerel, and turtle”.

Þ Conservation and management

Area between the seabed and fisheries boundaries:

Art 3 requires the parties to agree prior to any exercise of “residual jurisdiction” (including fisheries jurisdiction “not directly related to the exploration or exploitation of resources or to the prohibition of, or refusal to authorise, activities subject to that jurisdiction”) and “to consult with a view to reaching agreement on the most effective method of application of measures involving the exercise of residual jurisdiction”.

Protected Zone:

Implementation: Art 17 requires the parties to consult to make “appropriate administrative or other arrangements to resolve any problems arising in the implementation” of provisions relating to the Protected Zone, including inter alia fisheries and protection of the environment.

Traditional fishing: Art 12 establishes the fundamental principle of non-discriminatory access to and usage of the waters of one party “in or in the vicinity of the Protected Zone” by the traditional inhabitants of the other party under prescribed circumstances (i.e. prior existence of customary rights of access and usage, and recognition of such rights by the traditional inhabitants as being in accordance with local tradition).

Damage to the marine environment: Art 13 requires the parties to consult “at the request of either” to harmonise their policies regarding inter alia “measures for the prevention and control of... damage to the marine environment from all sources and activities under [their respective] jurisdiction or control”. This duty applies in respect of the marine environment both in the Protected Zone and “in the vicinity of” the Protected Zone. Equally, there are duties (a) of notification in the case that a planned activity under the jurisdiction or control of a party “may cause... damage to the marine environment in or in the vicinity of the Protected Zone” and (b) of consultation, upon request by either party, in respect of this kind of activity (existing or planned).

Commercial fishing: Arts 20-28 cover commercial fishing in the Protected Zone. At the outset, the principle is established that commercial fishing is not to prejudice traditional fishing. Art 21 requires the parties to cooperate in the conservation, management and optimum utilisation of commercial fisheries, and imposes duties to (a) consult at the request of either party and (b) to enter into arrangements for the effective implementation of the Treaty’s provisions on commercial fisheries.

For individual commercial fisheries (and resources “directly related” to such fisheries [e.g. Protected Zone stocks “not otherwise subject to the provisions of the Treaty”]), Art 22 requires States to, where appropriate, negotiate subsidiary conservation and management arrangements (and establishes some procedural principles in this respect). In this latter process, the parties are required under Art 26 to “consult and cooperate” in the issue of licences. For example, if one party issues a licence to a vessel or person and then requests the other party to allow that vessel or person to fish in waters under that other party’s jurisdiction in the same fishery, that other party must agree “wherever necessary”. However, in such instances, the other party’s conservation regime must be complied with by the licensed vessel or person.

Kaye (1997) reports the following access arrangements:

• seven Papua New Guinean vessels with access to the Australian portion of the Protected Zone to fish for shrimp;

• five Australian vessels with access to the Papua New Guinean portion of the Protected Zone to fish for pearl shell;

• 27 Papua New Guinean dinghies with access to the Australian portion of the Protected Zone to fish for rock lobster.

Arts 23-25 establish a detailed allocation system for catch from commercial fisheries. Art 23(2) states that the allowable catch is the optimum sustainable catch and that this is to be determined jointly by the parties as part of the arrangements for individual fisheries set out in Art 22. The percentage allocation between the parties varies depends on whether the fishery is (a) within waters under Papua New Guinea jurisdiction; (b) within the territorial sea of named islands [such islands being Australian territory]; or (c) within remaining waters under Australian jurisdiction). The percentage allocations may be varied for individual fisheries (again, as part of the arrangements for individual fisheries set out in Art 22) so long as the same overall percentage allocation of the total allowable catch is maintained. An exception to the allocation system is established for the commercial barramundi fishery.

Article 27 covers commercial fishing by third States (whether manifested through joint venture, flag State or crew nationality). Each party, if it is proposing to sanction exploitation by a third State, is under a duty to inform the other party and then consult with it if so requested. If the proposed exploitation is to be carried out by vessels “the operations of which are under the control of nationals of a third State”, the licensing of such vessels by a party is not to occur without agreement between both parties.

Þ Monitoring, control and surveillance

Art 7(3) makes the general point that vessels of a party exploring or exploiting resources in an area of jurisdiction of the other party shall remain subject to the laws of the other party (including provisions on vessel boarding, inspection and apprehension).

Protected Zone:

Article 28 requires the parties to cooperate in inspection and enforcement regarding commercial fisheries. One element of such cooperation is to duty to consult “as necessary” to achieve consistency “as far as practicable” between the parties’ legislation. For example, each party is expressly required to make it an offence for its flag vessels to fish in the other party’s waters without authorisation from that other party or otherwise in breach of that other party’s fisheries laws (Art 28(3)). This has the potential to ensure enforcement of one party’s fisheries laws before the courts of the other party (Kaye 1998, and see following paragraphs).

In relation to fishing for species in areas under a party’s jurisdiction, that party must investigate suspected offences of its fisheries legislation. There is a duty to then take corrective action “when necessary”. However, Art 28(6) establishes the principle, applicable in circumstances defined in the Treaty and “in other appropriate cases as may be agreed” between the parties, that such action is to be taken only by the party “whose nationality is borne by the vessel or person concerned”.

One instance where the Art 28(6) principle is to apply is where the alleged offence in the Protected Zone is not committed in the course of traditional fishing and where the person or vessel involved has been authorised to fish by the party of nationality (Art 28(10)). In that instance, a finding by that party of breach of authorisation conditions or a conviction for breach of that party’s fisheries laws must (subject to some qualifications) lead to the authorisation of that vessel being cancelled or suspended inasfar as it relates commercial fishing in the Protected Zone (Art 28(13)). Such a conviction or finding also entitles the party in whose waters the offence was committed to cancel or suspend any authorisation to fish in the Protected Zone issued by that party (Art 28(14)).

Outside the Protected Zone:

Where the offence in a party’s waters is related to traditional fishing, the Art 28(6) principle also applies for offences committed “in the vicinity of the Protected Zone” (Art 28(8)). The Art 28(6) principle also applies to offences committed in a party’s waters “outside the Protected Zone” (Art 28(11)) if (a) that party had authorised the fishing, (b) the offence related to a fishery subject to that authorisation and (c) the offence was not deleterious to another fishery.

Þ Training

Art 28 requires parties to exchange personel as one means of achieving the required cooperation on inspection and enforcement regarding commercial fisheries.

· Provision for review (if any)

[The Treaty does not expressly provide for review.]

Japan/China Agreement

· Full name of arrangement

Agreement on Fisheries between Japan and the People’s Republic of China, 11 November 1997.

Signatories: China, Japan

Source of arrangement text for this report: Hee Kwon, P., The Law of the Sea and Northeast Asia: A Challenge for Cooperation (The Hague: Kluwer Law International, 2000), pp. 208-215 (unofficial translation)

· Nature of arrangement (treaty, MOU, Joint Statement etc.)

Treaty.

· Scope (sectors covered)

Primarily fisheries, with some relevance to maritime boundary delimitation. The main theme is a reciprocal access regime. However, this regime has two geographical exceptions: (a) a “Provisional Measures Zone” (PMZ) (defined in Art 7(1), but described by Park (2000) as “a parallelogram between the northern limit of 30^o40’N and southern limit of 27^oN” and “with both sides approximately 52 nautical miles from the coasts of the two States”); and (b) that part of the Agreement Zone in the East China Sea south of 27^oN and the part of the Agreement Zone west of 125^oE (excluding the economic zone of China in the South China Sea).

· Provision for harmonisation regarding conservation and management (if any)

Only in the sense that recommendations of the Japan-China Joint Fisheries Committee on certain matters are binding.

· Maritime boundary delimitation aspect (if any)

Para 1 of the Agreed Minutes states that “[b]oth Governments expressed their intentions to continue the consultations on the delimitation of the exclusive economic zones and the continental shelves of both countries and make efforts so that a mutually acceptable agreement be reached”.

The reciprocal access regime (provided for in Arts 2-5) has two geographical exceptions: (a) the part of the Agreement Zone in the East China Sea south of 27^oN and the part of the Agreement Zone west of 125^oE (excluding the economic zone of China in the South China Sea) and (b) the PMZ (defined in Art 7(1)).

Park (2000) considers that the former exception is due to the presence of the Senkaku (Diaoyutai) Islands and Taiwan in this area and that the latter exception represents an example of “provisional arrangements of a practical nature” as provided for in Art 74(3) LOSC, pending the final establishment of boundaries. Para 1 of the Agreed Minutes states that “[b]oth Governments... expressed their intentions that the establishment of the Provisional Measures Zone... should not be deemed to prejudice the positions of both Parties in regard to the delimitation of the exclusive economic zones and the continental shelves”. Park (2000) adds that the decision by the parties to place the northern limit of the PMZ at 30^o40’N “might a priori prejudice the legal position of South Korea on its EEZ”.

Art 12 states that “[n]othing in the Agreement shall be deemed to prejudice the position of either Contracting Party in regard to any question of law of the sea”.

· Geographical scope

The EEZs of China and Japan: the “Agreement Zone”.

· Consultative mechanism (if any)

Þ Primary consultative mechanism

Art 11 establishes the “Japan-China Joint Fisheries Committee” (JFC). The JFC has a role in establishing conservation and management measures in: (a) the PMZ; (b) the part of the Agreement Zone in the East China Sea south of 27^oN and the part of the Agreement Zone west of 125^oE (excluding the economic zone of China in the South China Sea) and (c) the parties’ EEZs (other than in the former two areas). (See below.)

There is also a stand-alone duty to cooperate “for scientific research and conservation of marine living resources” (Art 10).

Þ Frequency of meetings

Art 11(5) states that the JFC is to meet once a year, but may also meet provisionally “as necessary” with the agreement of the parties.

Þ Delegations

Art 11(1) states that the JFC is to consist of four members, two from each of the parties.

Þ Subsidiary bodies

[The Agreement does not expressly provide for any subsidiary bodies of the JFC.]

Þ Decision-making

Consensus (Art 11(3)).

Þ Nature of decisions (binding or advisory)

Binding with regard to recommendations on matters related to Arts 3 and 6(b) and determinations related to Art 7 (Art 11(4)). See below.

· Elements of fisheries management covered

Þ Research and stock assessment

Art 10 establishes a duty on the parties to “cooperate for scientific research on fisheries and conservation of marine living resources”. This duty arises independently of the JFC.

Þ Conservation and management

Cooperation on conservation and management occurs through the JFC, in the following fields:

• Art 6(b) establishes the area consisting of that part of the Agreement Zone in the East China Sea south of 27^oN and the part of the Agreement Zone west of 125^oE (excluding the economic zone of China in the South China Sea).

  Other than in this area and in the PMZ, Art 3 requires each party to determine “such operational conditions for the nationals and fishing vessels of the other Contracting Party fishing within its exclusive economic zone as the species which may be caught, quotas of catch and the area in which the fishing operation is permitted”. However, such determinations are to be made “with respect for the result of the consultations in” the JFC.

  In respect of matters related to Arts 3 and 6(b), Art 11(2) states that the JFC “will consult... and make recommendations” and adds that the subjects of consultation may include: (a) “the species which may be caught, quotas of catch and other conditions of the fishing operation of the nationals and fishing vessels of the other Contracting Party prescribed in... Article 3”; (b) “the maintenance of an order of fishing operations”; (c) “the circumstances and the conservation of marine living resources”; and (d) “cooperation on fishing between both Contracting Parties”.

• Art 7(2) requires that in the PMZ, both parties are to take conservation and management measures “to ensure that the maintenance of marine living resources is not endangered by over-exploitation”. However, such action is to be “subject to the determination of” the JFC.

• Art 11(2) establishes that an additional function of the JFC is to make recommendations on the revision of the Annex. (Annex I covers the reciprocal access regime; Annex II covers safe havens.)

  Þ Monitoring, control and surveillance

Other than in the PMZ and the part of the Agreement Zone in the East China Sea south of 27^oN and the part of the Agreement Zone west of 125oE (excluding the economic zone of China in the South China Sea), the following MCS principles apply. Fishing by nationals and vessels of one party in the waters of the other party is be carried out in compliance with the latter party’s legislation (and with the Agreement) (Art 3) and that latter party has the power to ensure compliance (Art 5(1)). However, cooperation on MCS is facilitated by Art 4(1) which requires the state of nationality to also ensure compliance by its nationals and vessels (Art 4(1)). So there is no restriction on whether either the coastal State or the flag State takes the corrective action. However, in the case of arrest or detention by the coastal State, there are duties of prompt release (Art 5(2)) and of notification of action taken (Art 5(3)).

In the PMZ, whereas conservation and management measures are to be taken “subject to the determination of” the JFC (see above), the same is not true of MCS measures. Art 7(3) states clearly that “[e]ach Contracting Party shall apply the enforcement measures and other necessary measures to its nationals and vessels fishing in” the PMZ and expressly rules out any such application to the nationals and vessels of the other party. Nevertheless, cooperation on MCS is facilitated by: (a) establishment of a right by one party to call to the attention of the other party offences by the latter’s nationals or vessels against operational regulations determined by the JFC; (b) duties on the other party to take necessary measures and notify these. Furthermore, Art 11(2) states that the JFC “will consult on and determine matters related to the provisions of Art 7”, presumably including MCS cooperation as far as is permitted by Art 7(3).

In the part of the Agreement Zone in the East China Sea south of 27^oN and the part of the Agreement Zone west of 125^oE (excluding the economic zone of China in the South China Sea), there is no express provision in the Agreement on MCS measures. However, in the Exchange of Letters, each party expresses an intention not to apply its fisheries legislation to nationals of the other party on the condition that both parties “are in cooperative relations in order to ensure that the maintenance of marine living resources is not endangered by over-exploitation”. Park (2000) considers that the principle of flag State jurisdiction is applicable in the area. However, there may be scope for using the JFC for consultations, determinations and recommendations in respect of MCS in the area. For example, in respect of that area Art 11(2) states that the JFC “will consult... and make recommendations” and adds that the subjects of consultation may include inter alia “the maintenance of an order of fishing operations” and “cooperation on fishing between both Contracting Parties”.

Þ Training

[The Agreement does not expressly provide for cooperation on training.]

· Provision for review (if any)

Art 11(2) requires the JFC inter alia to review the implementation of the Agreement.

Japan/Korea Agreement

· Full name of arrangement

Agreement on Fisheries between the Republic of Korea and Japan, 28 November 1998.

Entered into force: 22 January 1999

Contracting parties: Japan, South Korea

Source of arrangement text for this report: Hee Kwon, P., The Law of the Sea and Northeast Asia: A Challenge for Cooperation (The Hague: Kluwer Law International, 2000), pp. 215-223 (unofficial translation)

· Nature of arrangement (treaty, MOU, Joint Statement etc.)

Treaty.

· Scope (sectors covered)

Primarily fisheries, with some relevance to maritime boundary delimitation. The main theme is a reciprocal access regime. This regime is not to apply in two zones defined in Arts 9(1) and (2). However, it is applicable in “deemed” EEZs defined in Art 7(1) and para 1 of Annex II.

· Provision for harmonisation regarding conservation and management (if any)

Only in the sense that recommendations (on certain matters) and decisions of the Korea-Japan Joint Fisheries Committee are binding.

· Maritime boundary delimitation aspect (if any)

The Agreement establishes a partial fisheries jurisdiction boundary between the parties. However, para 1 of Annex I states that “[t]he Contracting Parties shall continue to negotiate in good faith an early delimitation of the exclusive economic zone”.

The reciprocal access regime (provided for in Arts 2-6) has two geographical exceptions, defined in Arts 9(1) and (2). The creation of these zones is atttributable to differences between the parties on the location of their respective maritime boundaries (in turn attributable in part of conflicting positions over Dokdo Island [Park, 2000]).

Art 15 states that “[n]othing in this Agreement shall be deemed to prejudice the position of each Contracting Party relating to issues on international law other than matters on fisheries”.

· Geographical scope

The EEZs of the Republic of Korea and Japan: the “Agreement Zone”.

· Consultative mechanism (if any)

Þ Primary consultative mechanism

Art 12 establishes the “Korea-Japan Joint Fisheries Committee” (JFC). The JFC has a role in establishing conservation and management measures in the Art 9(1) and (2) zones and in the parties’ deemed EEZs. (See below.)

There is also a stand-alone duty to cooperate “for rational conservation and management, and optimum utilization of marine living resources in the Agreement Zone”, such cooperation to include “exchanges of relevant statistical information on marine living resources and fishing industry data” (Art 10).

Þ Frequency of meetings

Art 12(3) states that the JFC is to meet once a year, but may also hold ad hoc meetings with the agreement of the parties.

Þ Delegations

Art 12(2) states that the JFC is to consist of “one Representative and one Member appointed respectively by the Governments of the Contracting Parties”.

Þ Subsidiary bodies

Art 12(2) states that the JFC may “when necessary” establish “subsidiary bodies composed of specialists”. Meetings of such bodies may be held at any time with the agreement of the Representatives on the JFC (Art 12(3)).

Þ Decision-making

Consensus between the Representatives on the JFC (Art 12(6)).

Þ Nature of decisions (binding or advisory)

Binding with regard to the JFC’s recommendations (Art 12(4) and Annex I, para 2(b)) and decisions (Annex I, para 3(b)).

· Elements of fisheries management covered

Þ Research and stock assessment

Aside from the JFC, there is a stand-alone duty to cooperate “for rational conservation and management, and optimum utilization of marine living resources in the Agreement Zone”, such cooperation to include inter alia “exchanges of relevant statistical information on marine living resources” (Art 10).

Þ Conservation and management

Aside from the JFC, there is a stand-alone duty to cooperate “for rational conservation and management, and optimum utilization of marine living resources in the Agreement Zone” (Art 10).

Through the JFC, cooperation on conservation and management occurs in the following fields:

• In the “deemed” EEZs defined in Art 7(1), Art 3(1) requires each party to determine “species allowed for harvesting, quotas of catch, areas of fishing and other specific conditions in its exclusive economic zone for nationals and fishing vessels of the other Contracting Party”. However, Art 3(2) requires that in making such determinations, the party shall inter alia “respect the outcome of the consultation of” the JFC. Art 12(4) in turn requires the JFC to consult inter alia on “matters related to specific conditions on fishing as stipulated under Article 3” and to “recommend the outcome of the consultations to the Contracting Parties”.

• Regarding the Art 9(1) zone, Art 12(4) requires the JFC to consult inter alia on “matters related to the conservation and management of marine living resources” in that zone and to “recommend the outcome of the consultations to the Contracting Parties”.

• Regarding the Art 9(2) zone, Art 12(5) states that the JFC “shall consult and decide on matters related to conservation and management of marine living resources” in that zone.

• Annex I establishes, for the Art 9(1) and (2) zones, certain cooperative duties and powers “to ensure that the maintenance of the marine living resources [in the zone] is not endangered from over-exploitation”. Thus each party undertakes to notify the other party of the measures it takes regarding its own nationals and vessels, such notified measures to be taken “into full account” during JFC consultations on conservation and management recommendations (Art 9(1) zone) or decisions (Art 9(2) zone) (paras 2(c) and 3(c)). Each party undertakes to respect the recommendations (Art 9(1) zone) or decisions (Art 9(2) zone) of the JFC and to take the necessary conservation and management measures (including effort limitation) (paras 2(b) and 3(b)).

• Art 12(4) also lists general matters on which the JFC “shall consult... and recommend the outcome of the consultations to the Contracting Parties”. These general matters include: (a) “matters relating to maintenance of fishing order”; (b) “matters relating to the state of marine living resources”; (c) “matters relating to cooperation between the two countries in the field of fisheries”; and (d) “other matters relating to the implementation of this Agreement”.

  Þ Monitoring, control and surveillance

In the “deemed” EEZs defined in Art 7(1), the following MCS principles apply. Fishing by nationals and vessels of one party in the waters of the other party is be carried out in compliance with the latter party’s legislation (and with the Agreement) (Art 2) and that latter party has the power to ensure compliance with the Agreement and the Art 3 “specific conditions” (Art 6). However, cooperation on MCS is facilitated by Art 4(1) which requires the state of nationality to also ensure compliance with those provisions by its nationals and vessels (Art 5(2)). Though there is therefore no restriction on whether either the coastal State or the state of nationality takes the corrective action, actions by the state of nationality are not to include “boarding, stopping and other enforcement measures against its nationals and fishing vessels in the exclusive economic zone of the other... party” (Art 5(2)). In the case of arrest or detention by the coastal State, there are duties of prompt release (Art 6(3)) and of notification of action taken (Art 6(2)).

For the Art 9(1) and (2) zones, just as for conservation and management, Annex I establishes certain cooperative duties and powers “to ensure that the maintenance of the marine living resources [in the zone] is not endangered from over-exploitation”. Thus each party undertakes not to apply its fisheries legislation to nationals and vessels of the other party (paras 2(a) and 3(a)). Cooperation on MCS is facilitated by a duty to exchange information on catches, modes of fishing and “other relevant information” (paras 2(d) and 3(d)). Likewise, if one party discovers non-compliant action by nationals or vessels of the other party with the latter party’s rules, it may inform the latter party; there is then an implied duty on the latter party to take “necessary measures” and notify the results (para 2(e) and 3(e)).

There may be scope for using the JFC for cooperation on MCS. As stated above, Art 12(4) lists general matters on which the JFC “shall consult... and recommend the outcome of the consultations to the Contracting Parties”. These general matters include: (a) “matters relating to maintenance of fishing order”; (b) “matters relating to the state of marine living resources”; (c) “matters relating to cooperation between the two countries in the field of fisheries”; and (d) “other matters relating to the implementation of this Agreement”.

Þ Training

[The Agreement does not expressly provide for cooperation on training.]

· Provision for review (if any)

[The Agreement does not expressly provide for review.]

NEAFC Convention

· Full name of arrangement

Convention on Future Multilateral Cooperation in Northeast Atlantic Fisheries, 18 November 1980

Entered into force: 17 March 1982

Contracting parties: Denmark (in respect of the Faroe Islands and Greenland), European Community, Iceland, Norway, Poland, Russia (having succeeded the USSR as a party).

Source of arrangement text for this report: internet - http://www.neafc.org/

· Nature of arrangement (treaty, MOU, Joint Statement etc.)

Treaty.

· Scope (sectors covered)

Fisheries only. However, Art 2(1) states that the Convention “applies to all fishery resources of the Convention area with the exception of sea mammals, sedentary species... and, in so far as they are dealt with by other international agreements, highly migratory species and anadromous stocks”.

· Provision for harmonisation regarding conservation and management (if any)

1. (a) In the sense that the recommendations of the North-East Atlantic Fisheries Commission are binding (on non-objecting parties).
2. (b) Art 5(2): “The appropriate Contracting Party and the Commission shall accordingly promote the coordination of such recommendations, measures and decisions [i.e. those for straddling stocks].”

· Maritime boundary delimitation aspect (if any)

None.

Furthermore, Art 2 states that “[n]othing in this Convention shall be deemed to affect the rights, claims, or views of any Contracting Party with regard to the limits or extent of jurisdiction over fisheries”.

· Geographical scope

The northeast Atlantic, defined in Art 1(1).

· Consultative mechanism (if any)

Þ Primary consultative mechanism

Art 3 establishes the “North-East Atlantic Fisheries Commission”. The Commission is to elect its own president and not more than two vice-presidents (Art 3(4)). The Commission has its office in London (Art 3(5)). Art 3(7) states that “[t]he Commission shall appoint its own secretary and such other staff as it may require”. Subject to the provisions of Art 3, the Commission is to adopt its own rules of procedure (Art 3(10)); it is also to adopt rules for the conduct of its financial affairs (Art 17(9).

By Art 4(2), the Commission is to provide a forum for consultation and exchange of information on the state of the fishery resources in the Convention area and on management policies, including examination of the overall effect of such policies on the fishery resources.

Þ Frequency of meetings

The Commission is to meet once a year, “[e]xcept when the Commission determines otherwise”; however, ad hoc meetings may occur upon the request of one parties and subject to the agreement of three other parties (Art 3(6)).

Þ Delegations

Art 3(3) states that “[e]ach Contracting Party shall appoint to the Commission not more than two representatives who may be accompanied at any of its meetings by experts and advisers”. The Commission shall elect its own president and not more than two vice-presidents (Art 3(4)).

Þ Subsidiary bodies

Art 3(8) states that “[t]he Commission may set up such committees and other subsidiary bodies as it considers desirable for the exercise of its duties and functions”. Examples of bodies established include the following:

Finance and Administration Committee
Permanent Committee on Control and Enforcement
Informal group to prepare NEAFC’s request for scientific advice from ICES
Working Group on Blue Whiting
Joint NEAFC/NAFO Working Group on Redfish
Working Group on the Future of NEAFC
Ad Hoc Working Group on Computerisation of the Secretariat

Þ Decision-making

The Commission is to make, “as appropriate”, recommendations concerning fisheries conducted beyond the areas under fisheries jurisdiction of the parties, and these recommendations are to be adopted by a qualified majority (Art 5(1)). Each party is to have one vote. Art 3(9) elaborates on the meaning of qualified majority voting: it is to be “by a two-thirds majority of the votes of all Contracting Parties present and casting affirmative or negative votes, provided that no vote shall be taken unless there is a quorum of at least two-thirds of the Contracting Parties”.

The Commission also has a power to make recommendations on conservation and management, MCS and statistical information relating to fisheries in a party’s waters, but only if that party requests it and votes for that recommendation (see below).

Art 12 establishes an objection procedure. Thus though recommendations are in general binding on the parties, a recommendation will not become binding on a party that has objected to it. A party may at any point withdraw its objection. Art 13 establishes a termination procedure: from one year after the date of entry into force of a recommendation a party may notify its termination of acceptance, whereupon the recommendation will cease to be binding on that party one year later.

Þ Nature of decisions (binding or advisory)

Binding. (See above.)

· Elements of fisheries management covered

Þ Research and stock assessment

Art 14 establishes a linkage between the Commission and the International Council for the Exploration of the Sea (ICES), whereby the Commission is to seek information and advice from ICES in the interests of optimal performance of its functions under Arts 4-6. There is now a Memorandum of Understanding between NEAFC and ICES.

Each party has a duty to provide to the Commission, at the Commission’s request, “any available scientific and statistical information needed for the purposes of this Convention and such additional information as may be required under Article 9” (Art 16(2)). Under Art 9(1), the Commission has a power (using qualified majority voting) to make recommendations providing for the collection of statistical information relating to high seas fisheries. It may also make similar recommendations concerning fisheries in the waters of a party, provided that the party in question requests it and votes for it (Art 9(2)).

When adopting recommendations (whether on conservation and management, MCS or statistical information) the Commission is to determine whether, and under which conditions, those recommendations shall apply to fishing operations conducted solely for the purpose of scientific investigation (Art 10).

Þ Conservation and management

The Commission has a duty to “as appropriate” (and using qualified majority voting) make recommendations concerning high seas fisheries (Art 5(1)). It is the Commission’s role to seek to ensure consistency between high seas measures and coastal State measures (Art 5(2)). The Commission may also make recommendations concerning fisheries in the waters of a party, provided that the party in question requests it and votes for the recommendation (Art 6(1)).

For such purposes, the Commission may consider inter alia measures for: (a) “the regulation of fishing gear and appliances, including the size of mesh of fishing nets”; (b) “the regulation of the size limits of fish that may be retained on board vessels, or landed or exposed or offered for sale”; (c) “the establishment of closed seasons and of closed areas”; (d) “the improvement and increase of fishery resources, which may include artificial propagation, the transplantation of organisms and the transplantation of young”; (e) “the establishment of total allowable catches and their allocation to Contracting Parties”; (f) “the regulation of the amount of fishing effort and its allocation to Contracting Parties” (Art 7).

Þ Monitoring, control and surveillance

The Commission has a power to make (by qualified majority voting) recommendations concerning control measures relating to high seas fisheries for the purpose of ensuring the application of the Convention and any recommendations (Art 8(1)). The Commission may also make similar recommendations concerning fisheries in the waters of a party, provided that the party in question requests it and votes for the recommendation (Art 8(2)).

The Commission has adopted two recommendations creating MCS “schemes”: (a) “Recommendation for a Scheme of Control and Enforcement in respect of Fishing Vessels Fishing in Areas Beyond the Limits of National Fisheries Jurisdiction in the Convention Area”; and (b) “Recommendation for a Scheme to Promote Compliance by non-Contracting Party Vessels with Recommendations established by NEAFC” (applying to the activities of such vessels on the high seas).

Þ Training

[The Convention does not expressly provide for cooperation on training.]

· Provision for review (if any)

[The Convention does not expressly provide for general review.]

Herring System

· Full name of arrangement

Protocol on the Conservation, Rational Utilization and Management of Norwegian Spring Spawning Herring (Atlanto-Scandian Herring) in the Northeast Atlantic, 1996.

The contracting parties to the 1996 Protocol were Faroe Islands, Iceland, Norway, and Russia. These four parties, together with the European Community, have subsequently met annually from 1996 to 2000 (inclusive). Measures agreed at each of these annual meetings are contained in an annual Agreed Record of Conclusions of Fisheries Consultations on the Management of the Norwegian Spring-Spawning Herring (Atlanto-Scandian Herring) Stock in the North-East Atlantic. (Each Agreed Records is dated for the year following the annual consultations.)

Despite these annual meetings and annual Agreed Records, the 1996 Protocol remains in force (though its provisions on TAC and allocations [see below] have been superseded).

Source of arrangement text for this report:

(a) 1996 Protocol: internet - http://www.oceanlaw.net/texts/herring2.htm
(b) 2000 and 2001 Agreed Records: hard copies supplied by FAO

· Nature of arrangement (treaty, MOU, Joint Statement etc.)

The Protocol is a treaty. Each Agreed Record also appears to be a treaty (Churchill, 2001).

· Scope (sectors covered)

Fishery for Atlanto-Scandian herring in the northeast Atlantic. In the geographical area covered by the Protocol and the Agreed Records, this stock both straddles onto the high seas and is shared between the parties’ respective fisheries jurisdictions (Churchill, 2001). The main provisions are described below. However, it should be noted that the Protocol and each Agreed Record is supplemented by bilateral agreements between the parties on access.

· Provision for harmonisation regarding conservation and management (if any)

1. In the sense that the conclusions of the parties are binding.
2. Protocol, para 3.2: “The Parties shall initiate work to establish harmonised conservation measures in relation to the fishery on the stock.”
3. Establishes allocation tonnages between the participants.

· Maritime boundary delimitation aspect (if any)

None.

· Geographical scope

Northeast Atlantic (EEZs of the parties and high seas).

· Consultative mechanism (if any)

Þ Primary consultative mechanism

Neither the Protocol nor the Agreed Records expressly provide for a primary consultative mechanism. However, the parties to the Protocol and Agreed Records have met annually from 1996 to 2000 (inclusive). In that sense, the primary consultative mechanism of the Herring System as a whole is the annual meeting of the parties. There is also some formal interaction with ICES and NEAFC (see below).

Þ Frequency of meetings

Annual.

Þ Delegations

Officials.

Þ Subsidiary bodies

Scientific Working Group (1996 Protocol - see below).
Harvest Strategies Working Group (1998 Agreed Record - see below).

Þ Decision-making

Consensus.

Þ Nature of decisions (binding or advisory)

Binding.

· Elements of fisheries management covered

Þ Research and stock assessment

The parties are under a duty to exchange catch reports on a monthly basis, broken down by ICES sub-area and/or zones of fisheries jurisdiction and areas beyond such zones (Protocol, para 3.1). In the 2001 Agreed Record, the parties additionally requested NEAFC to prepare and circulate to the parties on a monthly basis a table showing the different parties’ catches.

The Protocol requires the parties to cooperate to enhance scientific research relating to the stock (Protocol, para 5). The parties are required to establish a Scientific Working Group (cooperating with the International Council for the Exploration of the Sea [ICES]) to “monitor and assess the development and distribution of the stock according to agreed biological criteria” (Protocol, para 6.1). However, since the 2000 Agreed Record, the parties have agreed to submit requests for scientific advice direct to ICES (2000 Agreed Record, Annex I, para 4; 2001 Agreed Record, Annex I, para 6).

Þ Conservation and management

The parties are under a duty to cooperate in the conservation, rational utilization and management of Atlanto-Scandian herring in the northeast Atlantic taking into account the best scientific advice available (Protocol, para 1.1) and to establish such measures as will ensure that the spawning stock will be maintained above safe biological limits, where sufficient recruitment is ensured to allow for long-term sustainable exploitation (Protocol, para 1.2).

They are required to initiate work to establish harmonised conservation measures in relation to the fishery (Protocol, para 3.2) and to cooperate to achieve regulation of the fisheries on the stock in areas beyond fisheries jurisdiction through the Northeast Atlantic Fisheries Commission in conformity with the provisions of the Fish Stocks Agreement (Protocol, para 4.3).

The Protocol sets an overall TAC for 1996 and allocations for the four parties. Churchill (2001) reports that “[t]he basis for allocating the quotas is a negotiated compromise between various criteria, principally historic catches and zonal attachment”. Norway and Russia agree to reserve 10,000 tonnes for “conservation purposes” (Protocol, para 2.1).

However, the TAC, allocations and reservation are without prejudice to any future agreement between the parties (Protocol, para 7). Indeed, the results of the Scientific Working Group are to be used inter alia as the basis for possible adjustments to the TAC and allocations (taking into account changes in distribution of all components of the stock) (Protocol, para 6.2). Future agreements between the parties to the 1996 Protocol, together with the European Community, have occurred in the form of Agreed Records (see above).

There is also some interaction with NEAFC. Twice in 1997 and from 1998 onwards, NEAFC has set a TAC for the high seas fishery and divided this between the NEAFC members; the quotas of the five Agreed Record parties are included in their quotas under the Agreed Record (Churchill, 2001).

Churchill (2001) reports that the 1998 Agreed Record established a Harvest Strategies Working Group “to study and evaluate ‘appropriate harvest strategies for medium and long-term management of the stock’ with the objective of establishing stable catch levels and preventing the stock reaching critical levels”. The 2000 and 2001 Agreed Records both contain measures implementing a long-term management plan (see Annex II, paras 1-3, of each Agreed Record).

Þ Monitoring, control and surveillance

The Protocol requires the parties to facilitate and further cooperate in the field of inspection and control to ensure compliance with conservation measures (Protocol, para 3.3) and to cooperate to deter activities of non-party vessels which undermine the effectiveness of conservation and management measures agreed by the parties (Protocol, para 4.4).

Þ Training

[The Protocol does not expressly provide for cooperation on training.]

· Provision for review (if any)

The Protocol requires the parties to use the results of the Scientific Working Group inter alia as the basis for possible adjustments to the TAC and allocations (taking into account changes in distribution of all components of the stock) (Protocol, para 6.2).

The 2000 and 2001 Agreed Records both provide that the parties “shall, as appropriate, review and revise these management measures and strategies [i.e. those of the long-term management plan] on the basis of any new advice provided by ICES” (see Annex II, para 4, of each Agreed Record).

Mackerel System

· Full name of arrangement

Agreed Record of Conclusions of Fisheries Consultations between the European Community, the Faroe Islands and Norway on the Management of Mackerel in the North-East Atlantic

- for 2000, 19 November 1999
- for 2001, 17 November 2000

Parties: EC, Faroe Islands, Norway

Source of arrangement text for this report: hard copies supplied by FAO

· Nature of arrangement (treaty, MOU, Joint Statement etc.)

In contrast to the Agreed Records relating to Atlanto-Scandian herring: (a) the first page of each mackerel Agreed Record states that the Record “constitutes an ad hoc arrangement, it being without prejudice to future fisheries arrangement between the Parties”; and (b) there is no statement in either mackerel Agreed Record that the Record will be applied from a given date. In view of these differences, the exact nature of the Agreed Records relating to northeast Atlantic mackerel is not clear.

· Scope (sectors covered)

Fishery for northeast Atlantic mackerel. The northeast Atlantic mackerel both straddles onto the high seas and is shared between the parties’ respective fisheries jurisdictions (Churchill, 2001).

· Provision for harmonisation regarding conservation and management (if any)

1. Agreed Record, Annex I, para 8: “... the Parties concur that it is of paramount importance to adopt compatible conservation measures in different management areas...”
2. NEAFC recommendations, para 2: “This [high seas] allowable catch is established in order to ensure compatibility with the management measures adopted by the relevant coastal States.”
3. Establishes allocation tonnages between the parties.

· Maritime boundary delimitation aspect (if any)

None.

· Geographical scope

Northeast Atlantic (the parties’ respective fisheries jurisdictions and the high seas).

· Consultative mechanism (if any)

Þ Primary consultative mechanism

Neither of the Agreed Records expressly provides for a primary consultative mechanism. However, the parties to the Agreed Records have met in 1999 and 2000. In that sense, the primary consultative mechanism of the Mackerel System as a whole is the annual meeting of the parties. There is also some formal interaction with ICES and NEAFC (see below).

Þ Frequency of meetings

Annual.

Þ Delegations

Officials.

Þ Subsidiary bodies

[Neither Agreed Record expressly provides for any subsidiary bodies.]

Þ Decision-making

Consensus.

Þ Nature of decisions (binding or advisory)

Advisory (on the basis that (a) there is no statement in either Agreed Record that the Record will be applied from a given date [in contrast to the Agreed Records relating to Atlanto-Scandian herring] whereas (b) there is a statement in each Agreed Record that the heads of delegation will recommend the management measures to their respective authorities).

· Elements of fisheries management covered

Þ Research and stock assessment

Neither Agreed Record contains any concrete measures on cooperation on research or stock assessment. Instead, there is just text recording agreement by the parties that “intensified scientific research through national and international cooperation and coordination is needed with the objective of improving the knowledge of stock development, its distribution and migration” (Annex I, para 7 of each Agreed Record).

Þ Conservation and management

An extraordinary meeting of NEAFC (8-9 February 1999) adopted (by qualified majority) a recommendation setting a TAC of 44,000 tonnes for the high seas fishery (with scope for adjustment), the quotas for the NEAFC contracting parties varying over the period 1999-2001 inclusive. (The recommendation also noted that (a) the EC, the Faroe Islands and Norway had adopted a TAC of 500,000 tonnes for their mackerel fishery in 1999; and (b) these parties would be reserving their high seas quota in 1999 for conservation purposes.)

The 2000 Agreed Record sets a TAC of 560,000 tonnes for the mackerel fishery within the parties’ waters in 2000 (Annex I, para 1). I shall refer to this as the “coastal TAC”. There is agreement that “[s]ubject to agreement within... NEAFC..., on the basis of the [coastal TAC], an allowable catch will be established for areas beyond national jurisdiction by NEAFC”. An overall quota is allocated to the Faroe Islands, whereas the European Community and Norway are to decide bilaterally on their respective quotas from the overall TAC. The parties agree that (a) part of the coastal TAC can be fished on the high seas and (b) their respectives quotas from the coastal State share of the anticipated high seas quota can fished in their respective waters.

The 18^th Annual Meeting of NEAFC (22-25 November 1999) adopted (by qualified majority) a recommendation setting a TAC of 50,000 tonnes for the high seas fishery (with scope for adjustment), the quotas for the NEAFC contracting parties varying over the period 2000-2001 inclusive. (The recommendation also noted that the EC, the Faroe Islands and Norway had adopted a TAC of 560,000 tonnes for their mackerel fishery in 2000.)

The 2001 Agreed Record sets a TAC of 574,000 tonnes for the mackerel fishery within the parties’ waters in 2001 (Annex I, para 1). Applicable principles are similar to those in the 2000 Agreed Record.

The 19^th Annual Meeting of NEAFC (21-24 November 2000) adopted (by qualified majority) a recommendation setting a TAC of 65,000 tonnes for the high seas fishery. There is provision for continuation (with scope for adjustment) into 2002 and subsequent years. (The recommendation also noted that the EC, the Faroe Islands and Norway had adopted a TAC of 574,000 tonnes for their mackerel fishery in 2000.)

Each Agreed Record also contains measures implementing a long-term management plan (Annex II, paras 1-2 of each Agreed Record).

In the 2001 Agreed Record, the parties agree that “it is of paramount importance to adopt compatible measures in different management areas on the basis of the best scientific evidence available to them” and they agree to assess during 2001 “how compatibility can best be ensured and, as appropriate, joint management improved” (Annex I, para 8).

Þ Monitoring, control and surveillance

Neither Agreed Record contains any concrete measures on MCS. Instead, there is just text recording agreement by the parties (a) on “the need for effective control and enforcement” and (b) that “with even closer cooperation, they should be able to enhance control and enforcement of this fishery both at sea and in ports” (Annex I, para 6 of each Agreed Record).

Þ Training

[Neither Agreed Record expressly provides for cooperation on training.]

· Provision for review (if any)

Each Agreed Record provides that the parties “shall, as appropriate, review and revise these management measures and strategies [i.e. those of the long-term management plan] on the basis of any new advice provided by ICES” (Annex II, para 3 of each Agreed Record).

Faroes/UK Agreement

· Full name of arrangement

Agreement between the Government of the the Kingdom of Denmark together with the Home Government of the Faroe Islands, on the one hand, and the Government of the United Kingdom of Great Britain and Northern Ireland, on the other hand, relating to the Maritime Delimitation between the Faroe Islands and the United Kingdom, 18 May 1999

Entered into force: 21 July 1999

Contracting parties: Denmark, United Kingdom

Source of arrangement text for this report: International Journal of Marine and Coastal Law 14 (4) pp. 551-555 (The Hague: Kluwer Law International, 1999)

· Nature of arrangement (treaty, MOU, Joint Statement etc.)

Treaty.

· Scope (sectors covered)

Fisheries jurisdiction and continental shelf boundary delimitations.

· Provision for harmonisation regarding conservation and management (if any)

None.

· Maritime boundary delimitation aspect (if any)

The agreement establishes fisheries jurisdiction and continental shelf boundaries.

Art 3 (referring to points in a schedule) establishes the agreed line separating the respective fisheries jurisdictions of the parties, “within which the Parties exercise, or will exercise... any sovereign rights or jurisdiction which are conferred on coastal states by international law”. When this line is drawn, it is in fact in two parts with a gap between these parts. Art 4 (referring to points in two schedules) establishes that the Special Area lies in the gap. Art 5 specifies the fishing regime for the Special Area (see below).

Art 10 states that “[t]his Agreement shall be without prejudice to any claim of either Party outside” the Area [i.e. the area covered by the Agreement]”.

· Geographical scope

Northeast Atlantic - continental shelf and waters between Faroe Islands and United Kingdom.

· Consultative mechanism (if any)

Þ Primary consultative mechanism

Art 8 states that “[e]ach Party may through diplomatic channels call for consultations with the othe Party with a view to reaching agreement on any issue pertaining to Articles 5, 6 and 7 [see below] of the Agreement. Such consultations shall be held not later than sixty days after receipt of the request”.

Þ Frequency of meetings

[The Agreement does not expressly provide for requirements on the frequency of consultations.]

Þ Delegations

[The Agreement does not expressly provide for limits on the size or nature of delegations to the consultations.]

Þ Subsidiary bodies

[The Agreement does not expressly provide for any subsidiary bodies.]

Þ Decision-making

[The Agreeement does not expressly provide for a mechanism for decision-making in the course of the consultations.]

Þ Nature of decisions (binding or advisory)

[The Agreement does not expressly state whether decisions taken in the course of the consultations are to be binding or advisory.]

· Elements of fisheries management covered

Þ Research and stock assessment

[The agreement does not expressly provide for cooperation on fisheries research or stock assessment.]

Þ Conservation and management

Art 5 states that “[w]ith regard to fisheries jurisdiction and rights in the Special Area each Party shall continue as heretofore... to apply the relevant rules and regulations applicable within its zone of fisheries jurisdiction concerning the management, including issuing of fishing licences, and conduct of fisheries”.

Art 6 contains provisions aimed at minimising conflict between fisheries and mineral activities. This is necessary since “[i]n the Special Area both parties exercise fisheries jurisdiction in areas where one of them exercises contintental shelf jurisdiction and rights” (Oude Elferink, 1999).

Art 7 adds that “[w]ith regard to the exercise in the Special Area of jurisdiction and rights which are conferred on coastal states by international law, other than such jurisdiction or rights that follow directly from continental shelf or fisheries jurisdiction, each Party shall refrain from exercising such jurisdiction or rights without the agreement of the other Party and shall cooperate with the other Party, notably on measures to protect the marine environment”.

Þ Monitoring, control and surveillance

Art 5 states that “[w]ith regard to fisheries jurisdiction and rights in the Special Area each Party shall continue as heretofore... to refrain from inspection and control of fishing vessels which operate in the Special Area solely under a licence issued by the other Party... [and]... to refrain from any action that would disregard or infringe upon the exercise of fisheries jurisdiction by the other Party or the conduct of fisheries under licence issued by the other Party”.

Art 9 clarifies that the term “issued by the other Party” should, in the case of the United Kingdom, be understood “to include licences issued by the United Kingdom, another Member State of the European Community or the European Commission on behalf of the European Community”.

Þ Training

[The Agreement does not expressly provide for cooperation on fisheries training.]

· Provision for review (if any)

[The Agreement does not expressly provide for review.]