공해상 어로의 자유의 두 가지 변화

Emergence of Regional Fisheries Management Organizations (RFMOs)is challenging two aspects of the freedom of fishing on the high seas in relation to its growing role in the regulation of fishing activities and the management of living resources. First, today’s freedom of fishing can be regulated in order to conserve and manage the living resources of the high seas. The constituent instruments of the RFMOs and their decisions to pose limitation on fishing may affect the use of the high seas of some States in an unfair and unreasonable manner. This cannot be considered as a part of the justified regulation of the living resources of the high seas. However, it is worth noting that the RFMOs adopt various methods to solve the problems concerning unjustified limitations on the fishing on the high seas. In this regard, it is hard to say that measures of the RFMOs necessarily risk the freedom of fishing. Second, the development of enforcement measures of RFMOs weakens the exclusivity of the flag State jurisdiction on the high seas. Furthermore, one could argue that RFMOs, as a ‘representative’ of the common interest of the international society, are entitled to apply their measures to all States – whether they are members or not. It seems,however, difficult to justify this extension ratione personae under international law. The 1995 United Nations Fish Stocks Agreement prescribes the obligation to become members of RFMOs and to accept their conservation measures. However, this conventional obligation is not likely to be imposed on non-parties to the Agreement because it does not constitute an exception to the principle of the relative effect of treaties. The international law does not justify RFMOs’ inspection of fishing vessels flying the flag of non-member States on the high seas under the concept of a countermeasure. Therefore, the current practice of RFMOs does not fundamentally alter the exclusive jurisdiction of the flag State. In conclusion, despite the institutional management, the freedom of fishing still retains its ‘individual’ and ‘state-centered’ character. However, it deserves attention that the development of the monitoring,controlling and surveillance within RFMOs can lead to the formation of a customary rule on the institutional management in the future. If so, any exploitation of living resources by all States on the high seas might be turned into the exploitation which is authorized and regulated by RFMOs.