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In: The International Journal of Marine and Coastal Law

Abstract

The article considers the legal implications of a proposal by the Netherlands Government to build a new airport on an artificial island in the sea. The article concludes that the construction and use of an artificial island remains in principle within a coastal state's authority, with due regard to the rights and duties of other states and the LOS Convention and other rules of international law. Account must be taken of conflicting uses of the sea, for example, navigation, fishing, offshore activities, submarine cables and pipelines, and overflight. Freedom of overflight will be dealt with by the ICAO. With regard to other aspects of air law, such as liability and aviation security, there are no clear indicators of the appropriate course to take. The uniqueness of an airport at sea requires the Netherlands to tread new ground, requiring it to devise new ways for removing possible obstacles.

In: The International Journal of Marine and Coastal Law

Abstract

The concept of "real interest" is incorporated in Article 8(3) of the 1995 Fish Stocks Agreement as a condition that states (parties) must fulfil before they can participate in a regional fisheries management mechanism (RFMM). As the 1995 Agreement does not define the concept, this article examines its possible meaning. A general discussion on the need for, and duties of, co-operation in the conservation and management of transboundary stocks provides the context in which the concept of "real interest" is placed. Arguments justifying the use of the concept of "real interest" as a bar to participation in RFMMs are examined in addition to the concept's potential use in dealing with flag states with bad performance records. Ample attention is given to the practice of states co-operating in existing RFMMs and in negotiation processes aimed at establishing RFMMs, as this will play a decisive role in giving effective meaning to the concept.

In: The International Journal of Marine and Coastal Law

Abstract

The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR Convention) forms the core of the regulatory regime for Southern Ocean fisheries. This article analyses the scope and extent of the Convention and the competence of the bodies established under it while also addressing the role of states and other international intergovernmental organisations with relevant competence. As part of the Antarctic Treaty System (ATS), the CCAMLR Convention is characterised by a unique sovereignty situation. The analysis thereof is complemented by a comparison with (other) regional fisheries management organisations (RFMOs) and illustrated by the difficulties in addressing illegal, unreported and unregulated (IUU) fishing. The article concludes inter alia that the CCAMLR Convention is unlike other RFMOs due to the special natural characteristics, its integration into the ATS and the ensuing sovereignty situation, and its conservationist objective. This notwithstanding, it seems justifiable to treat the CCAMLR Convention as "something more" than an RFMO for the purpose of international instruments on fisheries.

In: The International Journal of Marine and Coastal Law

Abstract

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.

In: The International Journal of Marine and Coastal Law

Abstract

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.

In: The International Journal of Marine and Coastal Law

Abstract

The exceptional vulnerability of the fish species orange roughy has been amply demonstrated by the collapse of various relatively new fisheries where management and conservation measures were absent, inadequate or simply too late. Each of the three case studies of orange roughy fisheries discussed in this article has an inherent international dimension as they concern discrete high seas stocks, straddling stocks or stocks on whose categorisation states disagree. The case studies illustrate the more general shortcomings of the international legal framework for the management and conservation of marine living resources, but also specifically for vulnerable species like orange roughy. Crucial to long-term sustainable management are the issues of participation in regional fisheries management mechanisms or negotiation processes to establish them, as well as the allocation of fishing opportunities thereunder. Possibly, the role of marine scientific research can be further enhanced in relation to the categorisation of stocks and the concept of zonal attachment.

In: The International Journal of Marine and Coastal Law

Abstract

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 Convention's jurisdictional balance and that they are fully consistent with the objectives of the IPOA on IUU Fishing.

In: The International Journal of Marine and Coastal Law
In: The International Journal of Marine and Coastal Law

Abstract

The current global crisis in marine capture fisheries contrasts sharply with the recovery of some stocks of marine mammals. Eventually this will have to lead to a re-evaluation of the preferential treatment that marine mammals now often enjoy. The widening support for ecosystem-based fisheries management (EBFM) and the growing insight in the interactions between marine mammals and commercial fisheries are expected to influence this evaluation. This article examines the role of marine mammals in the ecosystem with special emphasis on predation on commercial fisheries. Ample attention is devoted to the definition of EBFM, its legal status and issues of implementation. The 2001 Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem is used for illustration. One of the conclusions is that sufficient scientific research is required to substantiate positive effects that pre-emptive catches of marine mammals would have for (recovering) commercial fisheries. The regulatory objectives and international legal constraints relevant to marine mammals are moreover addressed to determine if the exploitation of marine mammals could be obligatory or "necessary".

In: The International Journal of Marine and Coastal Law