The arrest of a fishing vessel in the law of the sea: A case study of the Northwest Atlantic Fisheries Organization.

摘要

The thesis analyses recent developments in the law of the sea regarding the jurisdiction of the coastal state to arrest fishing vessels. The issue considered is whether the arrest of a fishing vessel engaged in illegal fishing on the high seas for straddling fish stocks is enforceable by a non-flag state, and how this enforcement jurisdiction can be exercised.;The subject is traced from historical antecedents to the present time. The thesis argues that the provisions of the United Nations Convention on the Law of the Sea have not resolved problems regarding conservation and management of straddling fish stocks on the high seas, where the competing interests are not provided under the Convention.;The factual context for discussing these matters concerns the fishing of stocks that straddle the high seas and the exclusive economic zone, particularly in the Northwest Atlantic. This thesis looks into developments in the procedures regulating the arrest of fishing vessels in the changing international law of the sea. Experience within the Northwest Atlantic Fisheries Organization (NAFO), especially regarding the clash of interests between the coastal and flag states as to the exercise of enforcement jurisdiction, is drawn upon. It is argued that the failure of enforcement in the NAFO Regulatory Area is highlighted by Canada's decision to extend enforcement jurisdiction to the high seas adjacent to its coast, as the Estai case loudly evidences.;The thesis shows that Canada's action against the Estai was an important catalyst to efforts to resolve the coastal and flag states' clash of rights and interests, partly through the instrumentality of RFMOs. Within the framework of UNFA, therefore, Canada's action has ensured that coastal state enforcement action on the high seas beyond the EEZ is no longer unilateral. Rather, such action shall be with the co-operation and consent of flag states, as agreed under treaty, or under the regime of an RFMO, such as NAFO.;The main point of the thesis is that, in the context of the management and enforcement activities of Regional Fisheries Management Organizations (RFMO), the jurisdiction of coastal states to arrest offending vessels on the high seas should be given priority in cases of enforcement inaction by flag states. The jurisdiction to arrest a fishing vessel on the high seas is executed in the interest of members of an RFMO.;For NAFO, the thesis further argues that the improvement of effective enforcement through the introduction of coastal state jurisdiction to arrest a fishing vessel on the high seas, is the last essential piece of the conservation puzzle that is "missing" in its jurisdiction. The will to comply with regulatory measures is a principal factor in achieving effective conservation and management, because law that is not enforced or obeyed is simply ineffective.;More generally, the thesis demonstrates that the law of arrest under the new regime of UNFA, now allows the coastal state to arrest fishing vessels that offend regional fisheries management measures where the flag state cannot, or would not, take the appropriate action. For NAFO, this new enforcement regime is an opportunity to tighten its cooperative fisheries management regime by more effective use of its own enforcement measures. Globally, an arrest within the new regime under UNFA promises to have a much tighter nexus with law, and consequently, should become a more predictable and reliable enforcement mechanism.