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Arron N. Honniball

Abstract

Council Regulation (EC) No 1005/2008 provides that a third country may be identified and subject to measures if it fails “to discharge the duties incumbent upon it under international law as flag, port, coastal or market state, to take action to prevent deter and eliminate IUU fishing”. In assessing the promise or limits of this unilateral listing mechanism, the question arises as to what influence, if any, it has had on third-country legislation. This article uses a case study on port state duties, demonstrating the use and impact of the unilaterally defined port state duties and their implementation in EU practice. The latter part addresses trends in the prescriptive responses of port states, including whether the EU listing process was a contributing factor to legislative reform. Prescriptive trends highlighted are the implementation of generally accepted treaty-based port state measures, followed by three examples of expansion into port state offences.

Robert C. Steenkamp

Abstract

The Common Fisheries Policy (CFP) of the European Union is legally, politically and environmentally of great importance. However, the effectiveness of old regimes to respond to contemporary developments poses several potential challenges to the CFP. This article aims to identify some of these external challenges by highlighting the differing interpretations of the Svalbard Treaty, as well as the introduction of the highly profitable snow crab to the Svalbard Archipelago. In doing so, the invasive nature of snow crabs – whose full impact in the Barents Sea is not yet understood – and their possibly negative effect on other commercial fish stocks will be examined. Additionally, the spatial scope of the Svalbard Treaty, the international rules applicable to the exploitation of snow crabs, and the designation of snow crabs as a sedentary and therefore continental shelf resource, will also be discussed as challenges to the CFP.

Yurika Ishii

Abstract

This article examines the scope and content of the ‘due regard’ obligation with respect to the peaceful and economic uses of the exclusive economic zone (EEZ) of a third coastal state, other than fisheries. After exemplifying typical elements of the ‘due regard’ obligation, this paper analyses its scope and content with respect to the peaceful and economic uses of the EEZ, namely, navigation and overflight, the laying of submarine cables and pipelines, and marine scientific research (MSR), that a state may exercise within another state’s EEZ.

Tullio Scovazzi

Abstract

‘Due regard’ obligations occur when a state, in exercising a right, is bound to take into consideration the existence of conflicting rights and interests of other states and to balance their respective importance. They are frequently found in international law of the sea and the LOSC. Within the exclusive economic zone, where the applicable regime is the result of the balancing of the rights of the coastal state with those of other states, international practice shows that the balance shifts in favour of the coastal state if conflicting fishing activities are at stake. The balance may change if other kinds of activities are in conflict within the same zone. Two recent arbitral awards—on the Chagos Marine Protected Area case and the South China Sea case—elaborate on ‘due regard obligations’.

Frederik Naert

Abstract

This contribution addresses some particular aspects of fisheries and some specificities of the European Union (EU) in this field. The first section explains how institutional settings in the framework of which all states concerned can discuss mutual rights and obligations, including the ‘due regard’ obligation in the exclusive economic zone (EEZ), have been established in the field of fisheries. The second section presents two examples of situations in which the ‘due regard’ obligation has given rise to discussion: the negotiations on an Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean and discussions on Marine Protected Areas and other similar areas. In the third section, a few issues that are particular to the EU are identified, including the competences transferred to the EU and their external exercise by the EU and the impact of EU law on relations between Member States in their respective EEZs.

Ioannis Prezas

Abstract

This study examines the applicability and scope of the reciprocal ‘due regard’ duties imposed upon coastal and third states by the United Nations Convention on the Law of the Sea in the field of military activities in the exclusive economic zone (EEZ). The applicability of these duties depends on the existence of a right of third states to conduct military activities in the EEZ of another state. Still, this preliminary issue remains extremely controversial because the rules established by the Convention do not offer any clear guidance. On the other hand, if such a right is recognized in abstracto and thus the applicability of the ‘due regard’ duties is triggered, an enquiry into the potential procedural and substantive scope of these duties is necessary to understand how conflicts between this right and coastal states’ rights and jurisdiction should be resolved in concreto.

Shotaro Hamamoto

Abstract

The obligation of the coastal state to have due regard to the rights and duties of other states (Law of the Sea Convention (LOSC) Art 56(2)) did not suddenly appear with the LOSC. It was gradually formed corresponding to the increasing recognition of the rights of the coastal state in adjacent maritime zones. The practice prior to the Third United Nations Conference on the Law of the Sea and the travaux préparatoires of the LOSC indicate that this obligation requires something more than the negative obligation not to interfere with the exercise by the coastal State of its rights and competences, and that the ‘rights and duties’ to which due regard is to be paid are not limited to those explicitly listed in the LOSC, such as the freedoms of navigation, overflight and of laying of submarine cables and pipelines.

Mathias Forteau

Abstract

The obligations of due regard under the United Nations Convention on the Law of the Sea (LOSC) share many characteristics with other similar standards. Their object and purpose is to ensure conciliation between conflicting concurrent or overlapping elements, in particular rights belonging to different States. This is the reason why, in procedural terms, the said obligations generally entail a duty to cooperate, to strike the most appropriate balance between the divergent rights or obligations at stake. Recent case-law confirms these general features and sheds more light on the nature and content of the obligations of due regard under both general international law and Articles 56(2) and 58(3) of the LOSC.

Pascale Ricard

Abstract

In the EEZ, the supposed freedom of states to conduct military activities encounters the rights and duties of coastal states regarding conservation of marine resources and environmental preservation. This article focuses on the relationship between these two specific but not always compatible interests and asks: how should they be combined? Could international environmental law rules be interpreted as a limitation to the conduct of military activities in the EEZ? What are the concrete obligations of states to fulfil their environmental duties, and how far are they compatible with the conduct of other activities? The ‘due diligence’ obligation to protect the marine environment is interpreted as going further than the ‘due regard’ standard enshrined in Articles 56 and 58 of the LOSC. Accordingly, this article assumes that it is a positive obligation, implying specific consequences, such as the conduct of environmental impact assessments when the activity risks causing damage.

Charlotte Beaucillon

Abstract

The aim of this article is to contribute to the general analysis of ‘due regard obligations’, through their articulation with branches of international law other than the law of the sea. More specifically, it focuses on the law of military activities at sea, as governed by international law on the use of force and nuclear weapons. It is argued here that the scope of the Law of the Sea Convention’s ‘due regard obligations’ cannot be examined in a vacuum, but should rather, to the extent possible, be interpreted in conformity with other related sources of international law. Reciprocally, this paper shows that some rules of jus ad bellum and jus in bello applicable to the use of nuclear weapons in a third state’s exclusive economic zone, fail to consider other simultaneously applicable obligations, which could well be grasped through the prism of ‘due regard’.