1 1Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United NationsThe opinions expressed in this paper are those of the author and do not necessarily reflect those of the United Nations.
2. Food and Agricultural Organization (FAO), WorldReviewofHighSeasandHighlyMigratoryFishSpeciesandStraddlingStocks, FAO Fisheries Circular no. 858, preliminary version (1993), p. 1. 3. Food and Agricultural Organization (FAO), WorldFisheriesTenYearsaftertheAdoptionof the1982UnitedNationsConventionontheLawof theSea, document COFI/ 93/4 (December 1992), p. 3. 4. Ibid., p. 5.
5. FAO, WorldReviewofHighSeas (n. 2. above), p. 4.
6. Ibid. 7. Ibid., p. 20. 8. See the Joint Resolution of the Fifth Conference on the Conservation and Management of the Living Marine Resources of the Central Bering Sea, 14 August 1992, text in Meltzer Research and Consulting, "Global Overview of Straddling and Highly Migratory Stocks: The Non-sustainable Nature of High Seas Fisheries," paper prepared for the government of Canada (1993), App. II. 9. Joint Press Release of the Seventh Conference on the Conservation and Man- agement of the Living Marine Resources of the Central Bering Sea, Tokyo, 29-30 June and 1 July 1993. Subsequently, the Russian Federation and the United States issued a joint statement expressing their regret that the goal of establishing meaning- ful and effective international conservation regimes for the Donut Hole remained elusive and declaring their determination to carry out the duty to resolve the crisis "in accordance with international law ... by taking all necessary measures" (UN document A/Conf.164/L.33 [28 July 1993], Pars. 8, 9). 10. UN document A/Conf.164/L.21 (22 July 1993), p. 2.
11. Joint Report of the First Session of the International Conference on the Conservation and Management of the Marine Living Resources in the High Seas of the Okhotsk Sea, Doc. ICCMOS/3 (1 June 1993), reproduced in UN document A/ Conf.164/INF/6 (26 July 1993). It should be noted that the Russian delegation made a special statement on a "total insufficiency of measures" aimed at partial reduction of fishing efforts for the conservation of the pollack stocks and declared "its intention to take all the necessary measures on the basis of relevant rules of international law" for the purpose of conservation of the pollack stocks in the Okhotsk Sea (Par. 5). 12. FAO, WorldReviewofHighSeas (n. 2 above), pp. 21-22. 13. Ibid., p. 22. 14. Ibid., pp. 22-23.
15. Ibid., p. 24. 16. Ibid., pp. 28, 29. 17. Ibid., p. 3. 18. See note 29.
19. FAO, WorldReviewofHighSeas (n. 2 above), p. 8. 20. Ibid. 21. Ibid., p. 10.
22. Ibid., p. 12. 23. Reportof thePreparatoryCommitteefortheUnitedNationsConferenceonEnviron-mentandDevelopment, document A/45/46 (17 October 1990), p. 37. 24. Conference on the Conservation and Management of the Living Resources of the High Seas, 5-7 September 1990, App. II, p. 1.
25. Ibid., pp. 2-3. 26. UN document A/Conf.151/PC/WG.Il/L.16/Rev.1 (16 March 1992). 27. At the Third United Nations Conference on the Law of the Sea, a number Of coastal states attempted without success to include similar concepts of "special interest" in areas beyond EEZs in the draft convention on the law of the sea. In 1982 Australia, Canada, Cape Verde, Iceland, Philippines, Sao Tome and Principe, Senegal, and Sierra Leone tabled amendments to draft Article 63(2) of the convention, spelling
out the right of the coastal state in the event of failure to reach agreement on conserva- tion measures within a reasonable time to bring the dispute to an appropriate tribunal, and such tribunal was to determine the measures to be applied in the adjacent areas of EEZs, taking into account those measures applied to the same stocks by the coastal state within its EEZ (UN document A/Conf.62/L.114 [13 April 1982]). At the request of the president of the conference, however, the sponsors of the proposed amend- ments did not press for a vote. 28. See draft Agenda 21 (UN document A/Conf. 151/4, Pt. II), Chap. 17, partic- ularly Pars. 17.53, 17.54, 17.83, and 17.84 bis. 29. The entire text of the relevant paragraph of Agenda 21 reads as follows: "States should convene, as soon as possible, an intergovernmental conference under United Nations auspices, taking into account relevant activities at the subregional, regional and global levels, with a view to promoting effective implementation of the provisions of the United Nations Convention on the Law of the Sea on straddling fish stocks and highly migratory fish stocks. The conference, drawing interalia on scientific and technical studies by FAO, should identify and assess existing problems related to the conservation and management of such fish stocks, and consider means of improv- ing cooperation on fisheries among States, and formulate appropriate recommenda- tions. The work and the results of the conference should be fully consistent with the provisions of UNCLOS, in particular the rights and obligations of coastal States and States fishing on the high seas" (ReportoftheUnitedNationsConferenceonEnvironmentandDevelopment, UN document A/Conf.151/26/Rev. 1, Vol. 1, Par. 17.50).
30. Food and Agriculture Organization (FAO), papers presented at the Techni- cal Consultation on High Seas Fishing, Rome, 7-15 September 1992 (FAO Fisheries Report no. 484 Supplement), Annex II. This publication is reproduced in UN docu- ment A/Conf.164/INF/2 (14 May 1993). 31. On the basis of the discussions of the group of experts, the Division for Ocean Affairs and the Law of the Sea published TheLawoftheSea:TheRegimesofHigh-SeasFisheries:StatusandProspects (New York, 1992).
32. FAO, papers (n. 30 above). 33. See Reportof theOrganizalionalSessionof theUnitedNationsConferenceonStrad-dlingFishStocksandHighlyMigratoryFish-Stocks, UN document A/Conf. 164/9 (2 June 1993), Pars. 3-5. 34. UN document A/Conf.164/6 (3 May 1993).
. 35. See Declaration of EEC upon Signing the LOS Convention, MultilateralTrea-tiesDepositedwiththeSecretary-General, UN document ST/LEG/SER.E/10 ( 1992), p. 801.
36. In actual practice, during the first substantive session of the conference, accredited NGOs were permitted to participate without restriction in all informal meetings, except those held in a small conference room, where NGOs were allowed to send two representatives only. 37. See ReportoftheOrganizatiorcalSession (n. 33 above), Par. 20. 38. UN document A/Conf.164/10 (24 June 1993).
39. See UN document A/Conf.164/12 (21 July 1993), pp. 2-3. 40. The guide grouped the issues to be addressed under eight sections: (1) the nature of conservation and management measures to be established through coopera- tion; (2) the mechanism for cooperation; (3) responsibilities of regional fisheries orga- nizations or arrangements; (4) compliance with conservation and management mea- sures; (5) enforcement of High Seas fisheries, conservation, and management measures; (6) nonparties to a regional agreement or arrangement; (7) settlement of disputes on matters of a technical nature; and (8) compatibility and coherence between national and international conservation measures for the same stocks. 41. UN document A/Conf.164/L.l1 ( 14 July 1993). The cosponsors of this docu- ment submitted a revised version (L.11 /Rev.l [28 July 1993]) at the end of the session, taking into account the discussion during the session. . 42. These informal working papers covered the following issues or issue areas: minimum data requirements for the conservation and management of the stocks in question, precautionary approach to fisheries management, dispute settlement proce- dures, compliance and enforcement, nature of conservation and management mea-
sures to be established, mechanisms for international cooperation, regional fisheries management organizations and arrangements, compatibility and coherence between national and international conservation measures for the same stock, port state en- forcement, nonparties to a regional agreement or arrangement, and special require- ments of developing countries. 43. UN document A/Conf.164/ 13 (29 July 1993).
44. This concept was referred to by the EEC as the principle of the unity of the stock within the totality of its distribution area. See UN document A/Conf.164/L.8 (1 June 1993), Annex I, Par. 2. 45. See UN document A/Conf.164/L.3 (1 June 1993), Annex, Par. 2, and A/ Conf.164/L.15, Annex I, Par. 2. 46. See UN document A/Conf.164/L.28 (27 July 1993), Par. 7. 47. See UN document A/Conf.164/L.25 (26 July 1993), pp. 2, 3.
48. See working paper submitted by Chile, Colombia, Ecuador, and Peru, UN document A/Conf.164/L.14 (16 July 1993), Section II, chapeau. 49. The convention uses the concept of "the greatest net annual increment" (Art. II[a]). Text of the convention is in InternationalLegalMaterials 19 (1980): 841. 50. Food and Agriculture Organization (FAO), Reportof theTechnicalConsultation
onHighSeasFishing, Rome, 7-15 September 1992, FAO Fisheries Report no. 484, Par. 56, reproduced in UN document A/Conf.164/INF/2. 51.ReportoftheUnitedNationsConferenceonEnvironmentandDevelopment (n. 29 above), p. 6. 52. UN document A/Conf. 164/L. 11 /Rev. 1, Art. 5. The same article further re- fers to the detailed list of measures enumerated in Annex II of the document as an indication of the type of measures to be taken under certain circumstances on the High Seas. 53. FAO, Reportof theTechnicalConsultalion (n. 50 above), Par. 67. 54. See suggested guidelines submitted by the EEC, UN document A/Conf.164/ L.20 (21 July 1993), Par. 6.
55. See comments on precautionary management of fisheries submitted by Swe- den, UN document A/Conf.164/L.22 (22 July 1993), Pars. 1-4.
56. See Lawof theSea (n. 31 above), pp. 10, 25. 57. See, e.g., the Five-Power Draft Convention, UN document A/Conf 164/L. 1 11 Rev. 1, Art. 19; list of issues submitted by Japan, UN document A/Conf.164/L.6 (8 June 1993), Par. 7; suggested guidelines submitted by the EEC, UN document A/ Conf.164/L.20, Par. 10. 58. UN document A/Conf.164/L.3 (1 June 1993), Annex, Par. 11.
59. See UN document A/Conf.164/L.15 (16 July 1993), Section I, Par. 8.
60. See, e.g., Five-Power Draft Convention (n. 57 above), Art. 4(a)(iii); list of issues submitted by Argentina, UN document A/Conf.164/L.10 (12 July 1993), Par. 1.4. 61. See, e.g., list of issues submitted by Japan, UN document A/Conf.164/L.6, Par. 2.
62. See note 27 above. See also Lawof theSea (n. 31 above), pp. 23-24. 63. Oppenheim'sInternationalLaw, 9th ed., vol. 1, ed. Robert Jennings and Arthur Watts (London: Longman, 1992), p. 759.