Erik Jaap Molenaar

Sea-Borne Tourism in Antarctica: Avenues for Further Intergovernmental Regulation

During the past 3,5 decades, sea-borne (cruise) tourism in Antarctica has steadily intensified and diversified. So far, the States involved in the Antarctic Treaty System (ATS), who have collectively assumed a mandate as well as a responsibility for governing Antarctica, have been relatively passive as a collective and have largely relied on direct and indirect regulation from outside the ATS, most importantly on self-regulation by the tourism industry through the International Association of Antarctica Tour Operators (IAATO). In view of the gradual intensification and diversification of Antarctic tourism, the abovementioned responsibility of the Consultative Parties to the Antarctic Treaty (ATCPs) and the need to safeguard the international legitimacy of the ATS, this article examines avenues for further international regulation by the ATCPs. This is in part done by exploring the meaning of the acronym IUU (illegal, unreported and unregulated) in the sphere of Antarctic sea-borne tourism, to what extent it occurs and how some forms can be addressed.

Current and Prospective Roles of the Arctic Council System within the Context of the Law of the Sea

AbstractThis article examines the current and prospective roles of the Arctic Council System (ACS) within the context of the (international) law of the sea. Its first part focuses on the role of regional cooperation under the law of sea, with special attention to the way in which the pacta tertiis principle has shaped some regional regimes. The second part examines current features of the Arctic Council, including its mandate and main approaches, participation and institutional structure. The new concept of the ACS is offered to clarify the connection between the Arctic Council and the 2011 Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic and future legally binding instruments negotiated under the Council’s auspices, but not adopted by it. The article concludes with a synthesis of the current and prospective roles of the ACS under the law of the sea.

Port State Jurisdiction: Toward Comprehensive, Mandatory and Global Coverage

This article examines the scope and extent of port state jurisdiction in regard to marine pollution and marine capture fisheries and looks at such issues as access to port, conditions for entry into port, extraterritorial prescription, and in-port enforcement. One of the arguments put forward is that the justifiability of extraterritorial port state jurisdiction depends not only on an adequate jurisdictional basis, but also on the type of enforcement action taken. Port state jurisdiction is gradually moving from a voluntary basis regarding limited subject areas toward being comprehensive and mandatory through regional and global arrangements. The notion of a “responsible port state,” a state committed to making the fullest possible use of its jurisdiction under international law in furtherance of not just its own rights and interests, but also those of the international community, could play a key role in optimizing the use of port state jurisdiction (balanced by appropriate safeguards) and achieving mandatory coverage through regional and global arrangements.

Fisheries Regulation in the Maritime Zones of Svalbard

Abstract The main focus of this article is the regulation of fishing in the maritime zones of Svalbard in light of both the Spitsbergen Treaty and the international law of the sea. It examines the legal positions of Norway, other states and the European Commission/European Union on, inter alia, the spatial scope of the Spitsbergen Treaty and complements this with analyses of relevant (sub-)regional and bilateral fisheries instruments and Norwegian legislation. These analyses illustrate, inter alia, that the practice of many states and entities involved seeks to reconcile legal positions on the spatial scope of the Spitsbergen Treaty with a raft of other interests. The conclusions also devote attention to possible pathways to resolve diverging positions, as well as to the potential for Norway to address the issue of unregulated fisheries in the context of the rapid pace of climate change in the Arctic.

Managing Biodiversity in Areas beyond National Jurisdiction

The global loss of biological diversity (biodiversity), both terrestrial and marine, occurs currently at an alarming and probably unprecedented rate. The main purpose of this article—which focuses in particular on marine capture fisheries—is to identify shortcomings in the international legal framework relating to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ) and possible solutions for selected shortcomings. The latter relate to discrete high seas fish stocks, deep-sea species and fisheries, integrated marine protected areas (MPAs) in ABNJ and, finally, to existing and new rights to conserve marine biodiversity. The main argument on this last topic is that in view of the current rate loss of marine biodiversity, reform should not just be limited to the traditional approach of strengthening, deepening and broadening obligations but should be balanced with optimizing use of existing rights and/or granting new rights to ensure that the overarching balance between socio-economic interests and the interests of marine biodiversity of present and future generations is archived.

Addressing Regulatory Gaps in High Seas Fisheries

Geographical and substantive regulatory gaps in high seas fisheries are serious weaknesses in the current global regime for the governance of marine capture fisheries. This article discusses recent developments on the establishment of new regional fisheries management organizations (RFMOs) and arrangements, identifies geographical gaps and examines scenarios to fill these. In view of the need for upgrading existing fishery bodies to ensure compatibility with the UN Fish Stocks Agreement, ample attention is devoted to the tool of performance assessments. Also examined in depth are the constraints for coastal States that wish to exercise their sovereign rights in relation to fishing practices that impact on sedentary species on their outer continental shelf. The discussion of the reform of the international legal regime for high seas fisheries is in particular devoted to discrete high seas fish stocks.

Participation, Allocation and Unregulated Fishing: The Practice of Regional Fisheries Management Organisations

The interrelated issues of participation, allocation of fishing opportunities and combating unregulated fishing are among the main challenges faced by many regional fisheries management organisations (RFMOs) today. This article analyses the rules of international law that relate to these issues and examines relevant practice of a number of RFMOs. The potential for the institution of international dispute settlement is assessed as a consequence of this practice. One of the articles conclusions is that the formal conditions for participation indicate that RFMOs are generally open to new entrants. However, the very limited fishing opportunities that are generally available to new entrants give RFMOs overall a considerably more restrictive or exclusive character. Dispute settlement procedures are more likely to be instituted in relation to restrictive formal conditions for participation than in relation to allocation practices that are claimed to be inequitable.

Innocent passage —past and present

Abstract The regime of innocent passage was developed to accommodate conflicting State interests in the territorial sea. Security and, more recently, environmental interests of coastal States, are opposed to the interests of maritime States in minimizing interference with navigation. This article discusses the regime of innocent passage in international law through the analysis of relevant treaty rules, including recent developments at IMO, and state practice. Specific attention is given to passage by warships and to coastal state jurisdiction over pollution by vessels in general and over ships carrying hazardous cargoes in particular.

Unregulated Deep-Sea Fisheries: A Need for a Multi-Level Approach

Many deep-sea fisheries share characteristics that distinguish them from other fisheries in a way which heightens sustainability and biodiversity concerns. Due to their depth of operation, many deep-sea fisheries occur in areas where the current international law of the sea gives coastal states no jurisdiction to regulate fisheries unilaterally. Whereas many international fisheries currently suffer from unregulated fishing under irresponsible flags of convenience, the concerns on deep-sea fisheries relate first of all to the absence of (international) regulation. The approach advocated in this article would be one where complementary action is taken simultaneously at the global, regional and national levels. As there may not be enough time for conceptually sound and holistic but incremental processes for regime building, the focus should first of all be on flexible short-term action.

Multilateral Hot Pursuit and Illegal Fishing in the Southern Ocean: The Pursuits of the Viarsa 1 and the South Tomi

Illegal fishing for toothfish ( Dissostichus spp.) in the maritime zones around sub-Antarctic islands in the Southern Ocean has been a considerable problem for many years. Enforcement of fisheries regulation is problematic as the remoteness of these islands has enormous logistic and financial implications. Multilateral hot pursuit, meaning hot pursuit involving pursuing vessels, aircraft or officials with different nationalities, can contribute to making enforcement, and thereby regulation, more effective. The article discusses the hot pursuits of the South Tomi and the Viarsa 1 in the context of applicable international law and state practice. Some of the conclusions are that these types of hot pursuits are not inconsistent with Article 111 of the LOS Convention, that they do not erode the freedom of the high seas or affect the LOS Conventions jurisdictional balance and that they are fully consistent with the objectives of the IPOA on IUU Fishing.