公海 漁業, 旗國管轄權의 制限과 傳統 國際法에 대한 挑戰― 韓國遠洋漁業 50주년과 유엔,WCPFC, SP RFMO 채택 決議, 宣言, 措置 등 新公海漁業 秩序, 慣行의 도전과 대응

The past decade or so has precipitated phenomenal changes in the international law of the sea, creeping into the age-old freedom of fishing and flag state jurisdiction on the high seas. The entire process of revolutionary changes has been spearheaded by the United Nations. Relentless salvoes of UN declarations and UN General Assembly(UNGA) resolutions have been raining down annually on Regional Fisheries Management Organizations(RFMOs) governing the legal regime for high seas fishing. Such a sweeping transformation started rolling in and developing in full scale in 1994 when the 1982 UN Convention on the Law of the Sea(UNCLOS) entered into force. The UNCLOS, in a bid to strike a delicate balance of rights between coastal and fishing states, provided for their duty to cooperate, through international, regional or subregional organizations and on best scientific evidence, for the conservation and sustainable use of straddling stocks and highly migratory species, like tuna, occurring on the high seas. The United Nations had also sponsored the 1992 Rio Declaration on Environment and Development to set the stage for writing up a new chapter on high seas fisheries. Principle 15 of the Declaration had pioneered to flesh out the precautionary approach: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”. The substance of this ‘soft law’ principle has been incorporated into the 1995 UN Fish Stocks Agreement(UNFSA), another important legal instrument of global applicability to high seas fishing. The Agreement, tipping the precarious scale in apparent favour of coastal states, has prescribed the precautionary approach(Art.6 of and Annex II) requiring precaution against catches likely to have an adverse impact on the marine environment. The problem is with the risk of abusing this approach(See UNCLOS, Art.300). For scientific evidence on “an adverse impact” may well be ambiguous or conflicting, or its interpretation diametrically opposed, as the Southern Bluefin Tuna cases have demonstrated. The UNFSA has also scaled the heights to empower an armed patrol boat of a contracting party to enforce, on the high seas, boarding and inspection against a fishing vessel registered in another contracting party and suspected of having engaged or engaging in illegal, unreported and unregulated(IUU) fishing. Following the footsteps of the UNFSA, the Western and Central Pacific Fisheries Commission(WCPFC) has adopted and effected scores of drastic, far-reaching and stringent Conservation and Management Measures(CMMs) and the ‘Monitoring, Control and Surveillance’(MCS) mechanism. The Commission has been mandated to manage tuna resources in the EEZs and high seas of the region. The draft South Pacific RFMO Convention now under negotiation is also poised to set up a similar MCS regime. These measures and mechanism, centered around compatibility, the precautionary approach and an ecosystem approach, make up the backbone of the new international legal order of high seas fisheries. Of special concern is an ecosystem approach which is amorphous in its contents and application criteria, to say the least. One may have to blow one's whistle against a wholesale application of an ecosystem approach, since it may well constitute a violation of the clear mandate of an RFMO. Nevertheless, the United Nations General Assembly threw its weight behind an ecosystem approach in its Resolution 61/105 to effectively block and freeze at the current level bottom trawling accused of allegedly damaging or even devastating vulnerable marine ecosystems. This was echoed in interim measures taken early this year during the South Pacific RFMO negotiation process for application to non-highly migratory stocks such as orange ruffy and jack mackerel in the proposed Convention Area. The WCPFC railroaded member states into accepting, as part of the MCS scheme, the High Seas Boarding and Inspection Procedures in 2006 along the lines of the UNFSA. Its full implementation has been scheduled for early 2008. Other RFMOs may soon follow suit. In a bid to help crack down on IUU fishing and to boost the effectiveness of conservation & management measures, the WCPFC has introduced caps on total fishing capacity and is primed to do the same in the total allowable efforts(Vessel Day Scheme). Furthermore, the Vessel Monitoring System(VMS), a near-real time satellite position reporting system available through the installation of the Automatic Location Fixing Transmitter on each fishing vessel, will be operational any moment, while the Regional Observer Programme is eyed for 2014. The WCPFC is now deliberating on the regulation of fish aggregation devices (FADs) and helicoper-using school fishing and considering strengthening the duties of contracting and market states and control by port States. As outlined, the United Nations, with the aid of the FAO's Committee on Fisheries(COFI), has been the prime driving force behind these progressive development of the new international law of high seas fishing. RFMOs have shortly taken their turns jumping on the UN bandwagon to put flesh to the non-binding UNGA practice of conservation and management measures, procedures and interim measures. These bodies will not allow themselves to ease up, or even to make a U-turn on this relentless pace. The end result is that the high seas fishing regime converges with the EEZ one. The changing structure and process of the international order of the sea, with a travesty of the freedom of the high seas, bespeak telltale signs of emerging new practices and customs. This process has hemmed in and deeply indented the embedded freedom to compromise the entire principle and balance undertaken under the UNCLOS. Depending on climate change and the biomass of the species and stocks in question, the freedom may suffer a further setback short of complete collapse, hovering around a total extinction. Do these wholesale developments occurring in the law of the sea in the past decade or so lend themselves to proving the potency of the theory of instant international customary law as propounded by Prof. Bin Cheng of University College London? In a novel, bold and lucid enunciation of a thesis(or hypothesis) on general international law, he had proposed in the mid-1960s to dispense with the objective element of widespread, uniform and consistent (general) practice in determining a customary rule. Taking cognizance of a rapid formation of customary or treaty rules through only two UNGA resolutions on international space law, Prof. Cheng had challenged the orthodox doctrine of customary international law to require only opinio juris(legal conviction) of the majority of states concerned. Apart from the validity of his powerful arguments, one thing would be abundantly clear: Any serious international lawyer has to factor in his fecund analysis and reasoning when assessing an alleged customary rule. The increasingly forbidding presence of “instant” customary rules, a joint product of ‘international fisheries politics’ and of a ‘marriage of convenience’ between the UN and RFMOs, has drastically altered the legal landscape for high seas fisheries. It is important to size up the challenge, but the process is certainly out of Korean element. Concerted and sustained efforts need, against the odds, be geared towards safeguarding the cardinal principle of conservation and sustainable use, which are simply two sides of the same coin. It is also vital to address and stress in unequivocal terms the nature of an RFMO which is not for wholesale environmental protection but for efficient fisheries management. The primary objective of an RFMO need be targeted not at preservation of the marine ecosystem but at proper management of marine living resources anchored in a stock-specific, species-specific approach and best scientific information. Any deviation from such a basic RFMO function may constitute an abuse of its unmistakable mandate.