William T Burke Highly Migra T

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Citation:
William T. Burke, Highly Migratory Species in the New
Law of the Sea, 14 Ocean Dev. & Int'l L. 273
(1984)
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Highly Migratory Species
in the New Law of the Sea
William T. Burke
School of Law
University of Washington
Seattle, Washington
Abstract The 1982 Convention on the Law of the Sea

provides for coastal state sovereign rights over all living re-
sources within the exclusive economic zone, but in a separate
article makes special provision for so-called highly migratory
species (HMS) that are specifically identified in an Annex to
the treaty. This paper examines the basic treaty provisions
concerning all fisheries in the EEZ, highlighting the position of
HMS, and then devotes detailed consideration to the regula-
tion of fishing for HMS in light of Article 64 and other articles
of the treaty. Discussion centers upon the requirements of Ar-
ticle 64, including the duty of cooperation and its subject mat-
ter, the meaning and consequence of failure to cooperate, the
manner of cooperation under Article 64, and the application of
the treaty to enclaves of high seas. Attention is given to the
application to HMS of specific obligations under Articles 61
and 62, authority over HMS fishing within archipelagic waters,
and the use of fish aggregation devices. There is also con-
sideration of the relationship between the 1982 Convention and
customary law regarding HMS, with particular attention to the
position vis-A-vis the Convention of the United States as a
This paper is a revised and updated version of a paper prepared by the author as a
consultant for the Department of Fisheries of FAO. It is reproduced with the permission
of FAO. The views expressed herein are solely those of the author.
Ocean Development and International Law, Volume 14, Number 3

0090-4320/84/040273-00$02.00/0
Copyright @ 1984 Crane, Russak & Company, Inc.
273
274 William T Burke
nonsignatory who does not recognize coastal state jurisdiction
over tuna but claims sovereign rights over all other highly
migratory species within its recently proclaimed exclusive eco-
nomic zone.
The 1982 Convention on the Law of the Sea (CLOS)' makes

provision for extended coastal state jurisdiction beyond the
baseline for the territorial sea over all living resources within 200
nautical miles.' Within that area the coastal state is recognized as
having sovereign rights over the entire range of living resources
without exception. However, the treaty also contains provisions
that deal with certain specific species: highly migratory, anad-
romous, catadromous, sedentary, and marine mammals. The
precise competence afforded by coastal sovereign rights is af-
fected by these provisions which must be consulted in determin-
ing the position of coastal and fishing states in any particular
context. It is the purpose of this discussion to examine the LOS
treaty provisions that are significant for the management of tuna,
which is the species of most commercial importance among
those identified in the treaty as "highly migratory."'
A category labeled "highly migratory species" is singled out
for special treatment for two principal reasons: (1) a number of
states, particularly the United States and Japan, had a particular
political interest in tuna fishing because their nationals are
among the most important participants in the fishery, and
(2) some species of tuna move considerable distances in the
ocean, sometimes spanning several zones of national jurisdiction
as well as entering or crossing vast expanses of high seas. The
treaty thus has a provision concerned with areas of national
jurisdiction and high seas areas beyond' and also a provision that
addresses fishing on the high seas.' The treaty provision con-
cerning tuna within the exclusive economic zone is often dis-
cussed, but it is seldom mentioned that the treaty regime for the
high seas may significantly change the traditional right of free-
dom to fish on the high seas.
Adopting the specific perspective of highly migratory species
(HMS), the discussion to follow first examines the basic treaty
provisions concerning coastal fishery rights in the EEZ. It then
Migratory Species in New Law of the Sea 275
seeks to analyze more closely the conditions and limitations
relative to these general rights that arise from the separate provi-
sions on HMS. Certain particular issues of special significance in
the context of HMS are then examined, including fishing within
archipelagic waters, the use of fish aggregation devices (FADS),
and the content of customary law regarding tuna fishing includ-
ing the U.S. position.
A. Coastal State Rights to Conserve and Manage Fisheries

in the EEZ
1. Scope and Content of Sovereign Rights
Under CLOS the coastal state's sovereign rights are for the
purpose of exploring and exploiting, conserving and managing
the natural resources of the area, including all living resources
except those subject to the regime of the continental shelf." Al-
though the latter resources are also subject to the sovereign
rights of the coastal state,' the coastal state escapes certain obli-
gations respecting them that it bears for other living resources.
This express exclusion of a certain category of living resources
from the usual authority of the coastal state within the EEZ is
strong evidence that otherwise the domain of the coastal state is
complete in covering all living resources found in the EEZ. Ac-
cordingly, highly migratory species, including those labeled and
defined in the treaty, are subject to coastal authority in the EEZ
exactly as are all other species except that coastal states are, in
addition, obliged by Article 64 to cooperate with states fishing in
the region "with a view to ensuring conservation and promoting
the objective of optimum utilization of such species throughout
the region, both within and beyond the exclusive economic
zone."' Because of their mobility, HMS may be available simul-
taneously within and beyond the zone or they may be available
mainly outside at one time and inside at another. Amounts taken
within may affect catches beyond and vice versa; the actual
effects of harvesting in one place or another depend of course on
the specific features of a particular context.
The rights and duties of states fishing in the region must also
be considered. According to Article 64 such states are obliged to
276 William T Burke
cooperate with coastal states regarding fishing for HMS within

the zone and in the region beyond." At the same time, Arti-
cle 116 provides that "All States have the right for their nationals
to engage in fishing on the high seas subject to (a) their treaty
obligations; (b) the rights and duties as well as the interests of
coastal States provided for, inter alia, in article 63, paragraph 2,
and articles 64 to 67; and (c) the provisions of this section." The
combined effect of Articles 64 and 116 appears to be that high
seas fishing states are not free to adopt conservation and alloca-
tion measures applicable only to their own high seas fishing with-
out having sought to cooperate with coastal states in the region.
Fishing in the region, including the high seas, would appear to be
inconsistent with these articles if undertaken prior to seeking to
cooperate with the coastal states concerned, since this could
prejudice ultimate conservation and allocation measures, both
inside and outside the zone. Article 116 appears to introduce a
drastic change in high seas fishing rights by providing a priority
for coastal states rights and interests affecting high seas fishing
states.
2. Authority Regarding Conservation in the EEZ

Article 61 details the extent of coastal authority to establish
conservation measures under the treaty as well as limiting its
obligations. Insofar as HMS are concerned, these details must
be read in conjunction with Article 64. Subject to the obligation
to cooperate spelled out in Article 64-which pertains also to
fishing "throughout the region"-the coastal state "shall deter-
mine the allowable catch" of fish within its EEZ. The treaty
imposes no limitations on coastal competence to determine the
allowable catch except that "living resources" are not to be en-
dangered by overexploitation and that the coastal state must
cooperate with fishing states. Accordingly, the coastal state is
entitled to exercise its discretion to set an allowable catch so
long as this is done in accordance with its Article 64 obligations.
While the arbitrary exercise of this discretion cannot be chal-
lenged by requiring the coastal state to submit to compulsory
dispute settlement procedures, the noncoastal state can invoke
the compulsory conciliation procedures of Article 297 and An-

nex V for certain arbitrary decisions of the coastal state.
Other than seeking to ensure against endangering a resource
(the meaning of this is also not obvious) by overexploitation, the
Convention imposes no other conservation obligation directly
concerning target species. Article 61(3) states that conservation
and management measures shall be designed to maintain or re-
store populations of harvested species at levels which can pro-
duce the maximum sustainable yield "as qualified by relevant
environmental and economic factors including the economic
needs of coastal fishing communities and the special require-
ments of developing States." However poorly stated from a
technical or scientific point of view," this reasonably conveys
the meaning that the coastal state is not obliged to conserve a
resource by maintaining it at an abundance level that will pro-
duce the maximum sustainable yield. It is therefore beyond seri-
ous question that the coastal state is not required to establish an
allowable catch which is fixed by the maximum safe biological
limit on yield. Assuming a meaningful single number could be
assigned as the MSY, and this is questionable, the coastal state is
authorized under the treaty to manage a fishery so that abun-
dance is lower or higher than would produce that yield.
3. Determination of Optimum Utilization

Article 62, "Utilization of the Living Resources," obliges the
coastal state to "promote the objective of optimum utilization of
the living resources in the exclusive economic zone without
prejudice to article 61." This provision says a good -deal more
than some observers appear to believe. It makes abundantly
clear that the treaty does not require "full utilization" of re-
sources in the EEZ and that the coastal state's decision in setting
the allowable catch is not constrained by any obligation regard-
ing level of utilization.
With respect to the former point, the choice of the term "op-
timum" occurred despite otherwise influential proposals adopt-
ing the term "maximum," such as that of the United States." On
the latter point the phrase "without prejudice to article 61" is
278 William T Burke
ample evidence that the priority goes to the coastal state in the
choice of whose interests are to be served when an appropriate
yield is determined. Article 61 authority to set an allowable
catch can be exercised, in light of Article 62(1), at whatever level
the coastal state determines to be in the interest of its harvesting
industry or its other relevant interests. The only legal exception
to this is the Article 64 obligation to "co-operate" which is inter-
preted to mean to negotiate and actively take into account other
state interests and to respond thereto. This exception to coastal
discretion affects only the required decision-making process; the
coastal state might ultimately fix the same allowable catch as if
no such obligation pertained. Nonetheless, the obligation to
cooperate established by Article 64 takes on special emphasis
because of the factual consideration that HMS, especially some
species of tuna, move from one zone to another or to an area
outside any zone and are subject to exploitation by a noncoastal
state. Unless this factor is taken into account by all participants,
coastal and distant-water fishing nations, no state's or partici-
pant's interests can be assured and all might be frustrated.
4. Determination of Harvesting Capacity and Access to Surplus
Article 62(2) declares that the coastal state shall determine its
own capacity to harvest the living resources of the EEZ. Where
this capacity is insufficient to harvest the allowable catch, the
coastal state is obliged to ("shall") "through agreements or other
arrangements and pursuant to the terms, conditions, laws and
regulations referred to in paragraph 4, give other States access to
the surplus of the allowable catch, having particular regard to
the provisions of Articles 69 and 70, especially in relation to the
developing States mentioned therein." This obligation, however,
must be read in light of the later provisions on terms and condi-
tions. Article 62(4) enumerates a variety of terms and conditions
and in doing so further establishes and emphasizes the wide
range of discretion accorded to the coastal state in managing the
fishery and, in particular, in determining who gets access where
there is a surplus. No single state can insist that it has a right of
access to a surplus in light of the fact that the coastal state is
authorized to establish reasonable conditions that may, when
fairly applied, exclude any particular state from the fishery. Fee
payments, for example, particularly if implemented through an
auction system, may quite reasonably result in allowing only one
or a handful of states to have access to a surplus while all others
can be excluded. Other conditions mentioned in Article 62(4)
might have the same effect.
Neither Article 62 nor the provisions on the nationality of
ships appear to place any restriction on the coastal state's au-
thority to acquire harvesting capacity by registration of foreign
fishing vessels or by other means. If capacity in this instance
refers to vessels flying the national flag, the Convention provides
that there is to be a "genuine link" between a vessel and its state
of registration, but this requirement has no teeth under the treaty
and is not likely to be an obstacle to states wishing to create
harvesting capacity. There are, of course, other less formal
means of acquiring that capacity. If capacity simply means
foreign vessels recognized by some criteria to be "local" for
fishing purposes, while otherwise retaining their national charac-
ter, then the coastal state's discretion is also unaffected by the
treaty. In the latter instance, the CLOS is irrelevant-the coastal
state can define a vessel for the purpose of privileged access to
fisheries in any way that state prefers, unless it has in some other
agreement accepted limitations on that power.
5. Allocation of a Surplus
Articles 61(1) and 62(2) together accord the coastal state virtu-
ally unlimited discretion in allocating a surplus to other states.
Who gets what is the coastal state's decision in light of its own
interests, first and foremost. Article 62(3) says that the coastal
state "shall take into account all relevant factors" and lists some
of them. "Taking into account" in this context is not language
that directs the coastal state to give weight to any single factor
mentioned (or not mentioned).
The "relevant factors" the coastal state is to "take into ac-
count" in giving access to a surplus include, inter alia, "the
280 William T Burke
significance of the living resources of the area to the economy of

the coastal State concerned and its other national interests, the
provisions of Articles 69 and 70, the requirements of developing
States in the subregion or region in harvesting part of the surplus
and the need to minimize economic dislocation in States whose
nationals have habitually fished in the zone. . . ." That this list of
factors does not confer a right on any of the categories of states
mentioned is evident. First, the list is open-ended and therefore
expressly envisages that the coastal state may determine its allo-
cation in light of other factors not mentioned. Second, even the
categories of states dealt with in Articles 69 and 70 have no
specific right of access-in nearly all instances their only right is
to an "appropriate part of the surplus" and access is only by
arrangement on terms and conditions that are acceptable to the
coastal state. Third, the requirements of developing and fishing
states could not be regarded as superior to Articles 69-70 states
which have no effective right of access themselves. Finally, the
prime element of the entire treaty scheme is indicated by the first
factor mentioned in the provision on coastal state authority re-
garding access-the significance of the resources concerned to
the coastal state's own economy and its other national interests.
The message could hardly be clearer-in choosing those states
to be allowed access to its fisheries the coastal state is entitled to
select on the basis of which will provide the most benefit to its
interests.
After this brief overview of the general scope of coastal state
authority in the EEZ, with special reference to HMS, the follow-
ing section considers the specific conditions and limitations that
bear on coastal rights regarding HMS.
B. Conditions and Limitations on Coastal State Rights

regarding HMS
'Ibna, and other species defined as "highly migratory" in Annex I
of the treaty, are fully subject to Articles 56, 61, and 62, as well
as Article 64. Those highly migratory species not listed in Annex
I are subject to the former articles but not the latter. The addi-
tional treatment in a separate article indicates that authority for
HMS conservation and management is different for these
species than for others. While this interpretation is valid, the
purport of Article 64 is that HMS are subject to the same general
authority as other species but that additional elements must be
considered. Article 64(2) declares that the provisions of para-
graph (1) are "in addition to the other provisions of this Part."
Plainly paragraph (1) does not displace the other provisions-it
provides requirements or obligations that must also be dis-
charged by the coastal state which is authorized to act by the
other provisions on fisheries in the zone.
Article 64 is the most significant provision affecting coastal
authority over HMS in the EEZ and it is first discussed hereaf-
ter, followed by more specific comments on conditions and limi-
tations relative to specific decisions affecting HMS under
Articles 61 and 62.
1. The Requirements of Article 64

Article 64 requires coastal and fishing states to cooperate regard-
ing "conservation" and "optimum utilization" of the specified
HMS both within the EEZ and in the region beyond. These two
terms appear to embrace all the substantive choices coastal
states are authorized to make in the exercise of their sovereign
rights in the EEZ and also the choices that must be made regard-
ing the same stocks of HMS on the high seas. Since Articles 61
and 62 provide for coastal authority to make these choices, Arti-
cle 64 can be taken to require cooperation regarding the deci-
sions dealt with by these articles.
Some significant questions about Article 64 include the mean-
ing of cooperation and the scope of its subject matter; when the
duty to cooperate is discharged; the consequences of failure or
termination of cooperation; the manner and forms of coopera-
tion; and its application to fishing in high seas enclaves. After
discussing these matters, other issues concerning HMS are ex-
amined in relation to specific provisions of Articles 61 and 62.
(a) The Duty of Cooperationand Its Subject Matter

The several CLOS provisions directly applying to HMS in the
EEZ establish that coastal state rights pertaining to these species
282 William T Burke
cannot be exercised in the same manner as over coastal species.

That is, while the coastal state has final decision-making author-
ity in the exercise of its sovereign rights over HMS, just as it
does for other species, it cannot exercise that authority and
employ its discretion until it has discharged its duty of cooperat-
ing with other coastal states and with distant-water fishing na-
tions (DWFN) to "ensure conservation and promote optimum
utilization." The object of this cooperation, according to Article
64, involves more than simply resources and fishing activities
relative to HMS within 200 nautical miles. Cooperative mea-
sures are to deal with stocks and fishing within and beyond 200
nautical miles, i.e., the stocks of the "region" which is relevant
for the states and stocks concerned. In some instances this may
include a relatively large number of states, many coastal and
some DWFN, and an enormous geographic area, as in the east-
ern Pacific and in the central and western Pacific.
The precise aims of cooperation are that the states concerned,
inter alia, establish a total allowable catch (TAC), adopt "proper
conservation and management measures to ensure against over-
exploitation," determine the appropriate yield, "promote op-
timum utilization," consider effects on associated and dependent
species, and contribute and exchange data and information. In
addition, the coastal state is concerned about determining its
harvesting capacity and the terms and conditions regarding ac-
cess to any surplus that may be identified and declared. Fishing
states in the region and other coastal states are also vitally inter-
ested in these decisions and the functions they involve because
they bear on shares of the catch, cost of operation, timing of
activities, choice of gear, locations for fishing, and all associated
activities.
Because of the nature of the fish concerned, which move in
and out of any single national jurisdiction, cooperation in this
context should aim at a coherent, unified management regime
applicable to the stock within and beyond the EEZ. To accom-
plish this task the states involved need to concert their actions
and regulatory measures to achieve their objectives, i.e., their
definitions of "conservation" and "optimum utilization" in the
specific context. It seems unlikely that, with these aims and
needs, "cooperation" could be achieved if any state takes unilat-
eral decisions or actions that are not preceded by communica-
tions designed to lead to or to establish agreed measures to be
implemented by coastal states within an EEZ and by fishing
states beyond. To take regulatory action prior to a full and timely
exchange of views and proposals would not be consistent with
the treaty. Cooperation signifies that the parties not only com-
municate data and information, but also exchange concrete sug-
gestions for action on specific issues. Cooperation might take
other forms also, which do not depend on explicit advance
agreement, but the requirements of a management regime seem
necessarily to demand that the parties seek concrete and specific
agreement on the contents of that regime. If cooperation through
proposal and counterproposal and such other actions as the par-
ties deem appropriate succeeds in reaching agreement that per-
mits fishing to occur under an acceptable regime then there is no
problem under Article 64 other than those that may arise in the
implementation phase.
However, it seems reasonably obvious that agreement may
not be reached and that questions may arise regarding the proc-
ess leading to this outcome.
(b) Failure to Cooperate and Its Consequences

Cooperative activities of various types may be continued for an
indefinite period, irrespective of the need for a particular deci-
sion involving a specific fishery, but at some stage the coastal
state with "sovereign rights" to conserve and to manage within
its 200-mile zone must take some action. The question of
whether that state, or any other state involved, has discharged
its duty to cooperate appears to depend on the ingredients of the
choices to be made and the functions required to make deci-
sions. At some point there needs to be a concrete choice made,
as in selecting an allowable catch, promulgating conservation
measures, determining the appropriate yield, and so forth. Typi-
cally, decisions on who can take how much of what stock or
species, where, when, and how, are made, and must be made, on
a regular, periodic basis, usually annually (but sometimes more
284 William T Burke
frequently) in accordance with the life histories of the animals
involved and the economics of the industry. Because of this time
constraint imposed by the system, it is possible to say that coop-
eration either does or does not produce timely choices. It is
conceivable that cooperation might be considered to have failed
with respect to one choice but to have some continued prospect
for success for another.
If cooperation fails to result in the needed conservation and
allocation measures, despite good faith efforts, then even though
the parties continue to interact in a cooperative fashion with
respect to some other issues or some later time period for these
measures, it should be permissible for coastal states to take
action to initiate the needed measures, at least in the EEZ and,
probably, for observance beyond the EEZ. Having discharged
the obligation to cooperate, the coastal state has also the obliga-
tion and the right to exercise its sovereign rights under Article
56, 61, and 62 to make the choices authorized and to enforce
those decisions in accordance with Article 73. The parties con-
cerned may continue to cooperate on matters that are not time
dependent or any other matters they wish to discuss, but the
coastal state may proceed to make the decisions needed to ac-
complish proper conservation and management. This interpreta-
tion of Article 64 allows coastal states of a region to join in
making decisions regarding a stock of common interest that is
available for harvest in each of their zones. Fishing states seek-
ing access to this stock must operate in accordance with the
decisions of the coastal state or states.
The cooperation called for by Article 64 extends to HMS both
within the EEZ and beyond on the high seas. A most significant
issue is what are the respective rights and duties of coastal and
fishing states when the failure to agree on measures for stocks
within an EEZ means there are no agreed measures for the same
stocks outside the EEZ. Coastal states are authorized, as noted
above, to make independent decisions regarding all fishing for
stocks within the EEZ, but what happens to those same stocks
when they are available outside? This is a critical question be-
cause it is generally believed that proper conservation and man-
agement measures cannot be promulgated and applied for only
one part of the total area within which stocks are harvested.
'llna cannot be managed successfully if management measures
are applicable only within 200 nautical miles while the stocks are
fished in significant degree outside any EEZ in the region. The
problem is to resolve this dilemma under the treaty.
Article 64 deals with HMS both within the EEZ and beyond,
joining Articles 56, 61, and 62 for application within the EEZ and
Articles 87 and 116-119 for application beyond the EEZ. The
latter articles and Article 64 provide a treaty basis for resolving
the dilemma where coastal and fishing states fail to agree on
needed conservation and allocation measures after efforts at
cooperation are no longer timely. This set of provisions appears
substantially to alter the traditional law regarding freedom to fish
on the high seas.
Article 87 provides that freedom of the high seas comprises,
inter alia, "freedom of fishing, subject to the conditions laid
down in section 2." Section 2 declares in Article 116 that "All
States have the right for their nationals to engage in fishing on
the high seas subject to: (a) their treaty obligations; (b) the rights
and duties as well as the interests of coastal States provided for,
inter alia, in Article 63, paragraph 2, and Articles 64 and 67;
(c) the provisions of this section."" This establishes that the right
to fish for HMS beyond 200 nautical miles is subject to Article
64, among other articles. Article 64, in turn, recognizes that the
coastal state has sovereign rights over HMS within 200 nautical
miles, these being the same HMS that are available on the high
seas. Article 116, therefore, provides that high seas fishing for
HMS is subject to the sovereign rights of the coastal state over
the same stock when the latter is within the EEZ. The question
is how to interpret the effect of these provisions upon the free-
dom of fishing for HMS on the high seas?
This question is relatively unimportant if fishing states must,
as a practical matter, fish within coastal state zones as well as on
the high seas. If the DWFN must have access to the EEZ of a
coastal state or of coastal states in a region (as is reportedly the
case in the central and western Pacific but not necessarily in the
eastern Pacific), the coastal states concerned can condition that
access on terms and conditions regarding high seas fishing. So
286 William T Burke
long as these terms and conditions are consistent with the Con-
vention, there would be no legal basis under the treaty for com-
plaint.
A remaining important question, then, concerns the possibil-
ity that DWFN might seek to operate only within a high seas
area, beyond any EEZ, and to do so independently of coastal
state control. What, if any, obligation does the fishing state have
vis-h-vis the coastal state in light of the provision of Article 116
that the right to fish there is subject to coastal rights, duties, and
interests?
Articles 64 and 116-119 might be interpreted in a number of
very different ways having very different consequences con-
cerning the situation in which coastal and fishing states are un-
able to agree on conservation measures affecting high seas
fishing for stocks that are also found within the EEZ.
One interpretation is that failure to agree is not necessarily the
same as the end of cooperation and that so long as the parties
continue to cooperate, neither the coastal state nor the fishing
state can independently promulgate conservatio) measures ap-
plicable on the high seas. This interpretation should be rejected
because it deprives Articles 64 and 116 of any meaning at all.
One practical effect of adhering to this interpretation would be to
leave high seas fishing unregulated, while the coastal state or
states prescribe measures for fishing within 200 miles. If high
seas catches are a significant part of the overall catch in the
region, this approach would frustrate any meaningful manage-
ment program. It emasculates the coastal states' rights under
Articles 56, 61, and 62 and ensures not conservation but that no
conservation measures can be implemented successfully by any
state. In providing for cooperation "with a view to ensuring
conservation and promoting optimum utilization," the treaty
anticipates the doing of finite tasks associated with a particular
fishing season and with conditions as nearly actual as feasible.
Once parties are unable to "cooperate" on that finite season and
for those specific conditions, then further "cooperation" does
not serve the purpose in mind and should not be a prerequisite to
action. Coastal states should not be inhibited from acting when
"cooperation" can no longer serve a timely purpose.
Migratory Species in New Law of the Sea .287
Another possible effect of this interpretation is to encourage
the coastal state to terminate cooperation on some plausible
pretext, because continuation of any form of cooperation might
be considered to disable that state from needed measures of
conservation.
Another interpretation of the relevant articles is that when
good faith negotiations for a season fail to produce agreed mea-
sures, the coastal states concerned are authorized by these pro-
visions to establish an allowable catch for the entire region,
including the high seas; the DWFN are obliged to observe these
provisions under Article 116 and following. Such action must be
based on the precondition that the negotiations were genuine
and pursued in good faith. The implications of this interpretation
are that the DWFN must fish within the allowable catch and
would be required to observe the measures reasonably neces-
sary to ascertain compliance. Refusal to cooperate to observe
the allowable catch for the region could be made subject to
sanctions adopted by coastal states of the region. Any such mea-
sures applicable to the high seas could be made the subject of
compulsory dispute settlement either by coastal states or
DWFN, as discussed below.
To express this interpretation another way and more suc-
cinctly, a DWFN, party to CLOS, fishing for HMS only in the
region outside EEZs would be required to observe an allowable
catch that would include harvesting on the high seas and derived
by coastal state consideration of all fishing including that within
EEZs. The assumption is that good faith negotiations do not
produce agreed timely measures.
The difficulty with this interpretation and any other implying
the exercise of enforcement jurisdiction is that the treaty con-
tains no provision at all for any such authority on the high seas
beyond the zone. While the coastal state could prescribe for
activity beyond the EEZ, its only enforcement power would be
within the EEZ, not beyond.
Another interpretation is that in the absence of agreement on
measures applicable within the EEZ and beyond, the coastal
states are entitled to establish an allowable catch for each EEZ
in the region, as well as determinations of each state's harvesting
288 William T Burke
capacity, so long as they take account of all fishing in the region.
If the collective capacity of coastal states (or the effort au-
thorized) is insufficient to harvest the allowable catch while
operating solely within the EEZ, high seas fishing would be per-
missible up to the allowable catch. If the allowable catch can be
harvested within 200 nautical miles, there could be no high seas
fishing at all.
This interpretation might be supported specifically by refer-
ence to Article 117 of the treaty which provides that "All States
have the duty to take, or to co-operate with other States in
taking, such measures for their nationals as may be necessary
for the conservation of the living resources of the high seas."
Since coastal states are entitled to establish an allowable catch
for tuna within the EEZ and the fishing state's right is subject to
that, it follows that the fishing state is required to conserve tuna
on the high seas in light of the collective allowable catch of all
coastal states in the region. In this context conservation means
observing the allowable catch established by coastal states.
The major problem with this interpretation is that it is prob-
ably impractical or even impossible to forecast where tuna or
any other HMS will be caught. It seems unfair to foreclose any
fishing in the high seas area on the basis of predictions by coastal
states that the allowable catch can be taken within the EEZ. This
appears to be a theoretical calculation entirely-where the fish
are available for harvesting may vary from week to week, or
even more frequently.
As noted, a difficulty with any interpretation of Article 116 is
that the coastal state has no enforcement authority beyond 200
nautical miles. Nonetheless, the treaty contains provisions that
may assist both coastal and distant-water states regarding the
appropriate measures to observe in this area. Either the coastal
or the distant-water state is competent under the treaty to invoke
compulsory dispute settlement procedures concerning fishing in
this region. Even if the coastal state has not been able to enforce
measures it believes DWFN should be observing beyond 200
nautical miles, it would be entitled to use these procedures to
contest the DWFN refusal to observe its regulations. The exclu-
sion of fishing disputes-in Article 297(3)(a)-from compulsory
binding procedures would not include those which relate to high
seas fishing rights, even though they also simultaneously relate
to the sovereign rights of the coastal state with respect to living
resources in the EEZ." While the exclusion of Article 297 is
applicable only to disputes over fishing relating to living re-
sources subject to coastal state sovereign rights within the EEZ,
as a practical matter a dispute settlement proceedings concern-
ing measures applicable to HMS on the high seas would prob-
ably not be limited solely to the measures applicable on the high
seas. Such measures would probably be inseparable from those
applicable in the EEZ, and the settlement tribunal could not
responsibly ignore the components of the management scheme
applicable within 200 nautical miles since they would very likely
be one part of an integral scheme. Accordingly, a coastal state
invoking compulsory procedures may necessarily subject its en-
tire regulatory system to third-party review.
Distant-water states facing coastal demands regarding the
regulations to be observed in high seas fishing probably can avail
themselves of the same compulsory and binding procedures, at
least with respect to the high seas elements of the coastal
scheme. While the Article 297 exception raises a question about
this, it can be interpreted as applying to disputes limited solely to
EEZ fishing. If the exception is more broadly construed to ex-
clude even disputes that center upon fishing on the high seas, but
which "relate" to EEZ resources and fishing, it would remove at
least certain high seas disputes from compulsory procedures.
This seems to be unnecessary in terms of the scope of the inter-
ests affected and the inseparability of the activities involved.
The above interpretations of the treaty seek to make sense out
of articles that apply to a nearly impossible situation that seems
all too likely to occur, namely one in which the states concerned
cannot agree on concerted action even though the lawful alterna-
tive of independent action by the coastal state would reduce
benefits available to all. Unregulated high seas fishing appears to
be inconsistent with a coastal state's rights to set the allowable
catch in its own zone and to ensure that stocks are not en-
dangered by exploitation. On the other hand, coastal state mea-
sures, adopted without the agreement of fishing states, also
290 William T Burke
cannot accomplish these objectives if high seas fishing remains
unregulated. There must be some way out of this dilemma con-
sistent with the treaty.
While it may not be clear how Article 64 and Article 116
should be interpreted to provide for conservation when the par-
ties disagree, it is clear that unregulated foreign fishing cannot
occur without infringing coastal rights as formulated in the
treaty.
Although coastal states under the treaty scheme have wide
discretion regarding fisheries in the EEZ and, in the interpreta-
tions offered here, have some degree of authority over high seas
fishing, it needs emphasis that these states are obliged to act
reasonably in decisions that include high seas fishing. Coastal
states have very wide leeway in managing fisheries occurring
wholly within 200 miles, but they do not have such unreviewable
discretion under the treaty when their management measures
impact upon high seas fishing rights. The latter rights are subject
to coastal rights under the treaty, but the coastal rights must be
exercised reasonably. For example, while the coastal state may
establish the allowable catch for HMS in its EEZ, as noted
above, this determination must reflect the range of the stock and
the fishing effort expended on it.
(c) Manner of Cooperation:Direct Interaction and

InternationalOrganizations
While Article 64 clearly calls for international cooperation for
conservation and utilization based upon the sovereign rights of
the coastal state in the EEZ it also presents important questions
about the manner and form of cooperation, including the follow-
ing: (i) whether it permits a choice between direct cooperation
and use of an international organization (10) or whether an IO
must be employed even if direct cooperation is preferred, and
(ii) what characteristics or elements of an IO are required by
Article 64, if any.
(i) Choice of Forms of Cooperation. Article 64(1) contains two

apparently contradictory sentences on how states are to cooper-
ate with each other with respect to HMS. The first states that
"the coastal State and other States whose nationals fish in the
region shall co-operate directly or through appropriate interna-
tional organizations. . . ." This strongly suggests that the states
involved may choose to deal directly with each other either in a
series of one-on-one interactions or in a form involving one
group interacting with another state or group of states.
The second sentence of 64(1) is somewhat confusing because
it directs that, "In regions for which no appropriate international
organization exists, the coastal State and other States whose
nationals harvest these species in the region shall cooperate to
establish such an organization and participate in its work." This
seems to contradict the previous sentence which appeared to
give the coastal state the option of direct cooperation rather than
requiring resort to an 10.
Despite the literal language of the second sentence, an inter-
pretation of it that mandates cooperation exclusively through an
10 is not credible for several reasons. First, the use of the dis-
junctive in the first sentence of 64(1) is consistent with leaving
the final choice of the form of cooperation to the states con-
cerned. Second, the notion that only an 10 may be employed for
cooperaton is inconsistent with all previous and current prac-
tice. The major pattern of the several decades since World
War II has been to employ simultaneously direct cooperation
between states and international organizations.' 6 It would be sur-
prising if the drafters of Article 64 believed that in the future all
states would find that cooperation were possible only if they
created a separate institution and refrained from direct negotia-
tion and cooperation. Such an expectation by the drafters is
simply not plausible.
In any event, these seeming inconsistencies are substantially
mooted by the complete absence of any details regarding an
appropriate international organization as noted below. Without
such requirements spelled out, the obligation to establish an 10
is so general that it will be construed to mean whatever the
parties are able to agree upon and this does not appear to be an
effective obligation.
(ii) Characteristicsof an Article 64 Organization. While Arti-

cle 64 need not be interpreted to require cooperative activities
292 William T Burke
only through the mechanism of an 10, the terms of Article 64(1)
certainly appear to envisage the use of such a body. The history
of tuna management in the eastern tropical Pacific appears to
demonstrate that an 10 has considerable utility, especially for
establishing a conservation regime. But Article 64 does no more
than provide for this option-it offers no details about such a
body, no direction regarding its creation, and no concrete guid-
ance into the operational significance of cooperating through
IOs. This in all probability reflects the fundamental differences
between coastal and fishing states in the LOS negotiations, with
the latter insisting that HMS could be managed successfully only
by means of IOs and the former maintaining that HMS should be
subject to coastal authority in the EEZ, as were all other species
found there.
The outcome of this difference seems heavily tilted toward the
coastal state position because Article 64 (as well as Article 56)
does include HMS within the sovereign rights of the coastal state
in the EEZ, but mentions IOs only as an option to direct cooper-
ation and definitely gives them no power or responsibility. Since
nothing is agreed about the operational details of IOs, it is up to
the states directly concerned (coastal and fishing states) to de-
velop such international bodies as they can agree upon. Mem-
bership, detailed objectives, internal structure, procedures,
voting, finances, staff arrangements, relationships with other
bodies, and other matters are subject to the decisions of the
states concerned. Accordingly, the range of the detailed charac-
teristics of an "appropriate" 10 is enormous. More than one 10
might be employed in the same region; memberships and deci-
sion functions might vary. Numerous different objectives, proce-
dures, voting arrangements, and internal and external relation-
ships can easily be imagined. There is no single "appropriate"
10. In light of the differences between IOs currently dealing with
fisheries, and with HMS in particular, this should not be surpris-
ing. There are several places around the world in which more
than one 10 is involved in decision-making concerning the same
fishery, such as the Northeast Atlantic, the Northeast Pacific
(halibut), and the Antarctic.
The failure of the treaty to put greater emphasis on the em-
ployment of an international institution for management of
highly migratory species, other than marine mammals, is to be
regretted. There can be no doubt that effective conservation
management is facilitated by the operation of an international
body. However, it must be recalled that the major problem of
HMS management involves tuna so far as commercial species
are concerned. In order to make adequate provision for manag-
ing tuna fisheries, it is mandatory to solve the problem of sharing
the benefits of such a fishery. This problem has proven intrac-
table in detailed contexts. In the LOS negotiations it would have
been impossible to resolve; the negotiations would still be under-
way if this difficulty had first to be surmounted. Given the enor-
mous obstacle of an acceptable formula for utilization in a
variety of specific situations, it seems most likely that the treaty
went as far as could be expected in balancing coastal and distant-
water interests by means of emphasis on use of international
bodies.
(d) Application of the LOS Treaty to Fishing in Enclaves of

High Seas
In some parts of the ocean the profusion of adjacent exclusive
economic zones results in some areas of high seas being com-
pletely surrounded. CLOS does not make special provision for
fishing in high seas enclaves; such is subject to the same provi-
sions that apply to high seas fishing otherwise as discussed
above. Since an enclave is likely to be bounded by more than
one exclusive zone, enclave fishing would be, or could be, sub-
ject simultaneously to the "rights, duties, and interests" of sev-
eral coastal states. Since the several states may not have the
same interests, although sharing the same rights and duties, it
seems reasonably obvious that a DWFN undertaking enclave
fishing could conceivably confront disparate rules affecting its
conduct, unless the coastal states cooperate with each other to
establish a uniform system. The treaty calls for cooperation
among all states concerned, but if cooperation with the DWFN
is not successful in establishing measures for conservation and
optimum utilization, coastal states might then agree among
294 William T Burke
themselves on measures applicable to such fishing. The treaty

might be interpreted, as discussed above, to require that fishing
within the enclave take place only subject to those measures. In
practice it seems probable that enclave fishing will occur only as
part of a fishing pattern that includes operations within sur-
rounding zones. In such a situation coastal states can prescribe
such measures as they please to be applicable to enclaves as a
condition of access to their zones. Coastal state authority in this
respect derives from its authority over zone fishing and could
usually only be permissible when exercised as a condition of
access to a zone. Because zonal authority over tuna or any other
HMS is recognized under customary international law, it follows
that this means of exercising control over associated enclave
fishing is also compatible with international law.
At the moment, coastal states cannot exercise any lawful con-
trol over enclave fishing that occurs independently of zonal
fishing-traditional international law does not recognize coastal
authority over fishing on the high seas beyond the zone. If
coastal states were to act unilaterally and uniformly to assert the
same or similar authority over independent high seas fishing for
HMS as permitted by the LOS Convention, they might then
succeed in creating customary law that is the same in substance
as the Convention provides. Whether this move would be suc-
cessful might depend upon the response of high seas fishing
states-opposition might be substantial enough to defeat the
law-creating effect of unilateral action. Accordingly, a decision
to assert control over independent high seas enclave fishing,
without reliance on the LOS Convention, should be preceded by
consideration of the probable response of affected DWFN.
2. Measures to Ensure against Overexploitation

The coastal state, "taking into account the best scientific evi-
dence available to it," has the obligation of adopting "proper
conservation and management measures" to ensure that living
resources in its zone are not endangered by overexploitation.
For species found wholly within the coastal state's zone this
obligation can be discharged with no unusual difficulty because
at least the exploited stock is found wholly within the zone,
although there could be problems arising out of relationships
with predator or prey species that are affected by exploitation
outside the zone. So far as the exploited stock is concerned the
coastal state's measures can deal with all of the fishing effort
targeting on it.
The situation is of course very different for highly migratory
stocks because these can be and typically are exploited outside
the coastal state's zone and perhaps outside any state's zone.
Accordingly the relevant "scientific evidence" pertains to the
target HMS throughout its range. The "best scientific evidence"
includes data that might come from sources outside the coastal
state; whether these data are "available" to the coastal state is a
question of fact. Article 61(2) declares that the coastal state
"shall co-operate" with competent international organizations
toward the objective of avoiding overexploitation which endan-
gers maintenance of the living resources of its zone.
The effect of these provisions is to require a management
process that may be different for HMS than for other species. In
order to adopt "proper" measures, the coastal state must seek
out information concerning fishing activities and fishing stocks
located outside its own jurisdictional area, for at least some
period of time. Measures based solely on information about a
part of the overall pattern of exploitation, that occurring within
the coastal state EEZ, could not be "proper" unless the required
information was not available when sought. Lack of availability
could not be justified if the coastal state simply refrained from
seeking the relevant information. The management process must
therefore incorporate procedures and methods for -interacting
and communicating with other coastal states and fishing states in
the region.
The substance of "proper measures" must also reflect the facts
and implications of the behavior of "highly migratory" species.
As noted above, a "proper measure" regarding allowable catch
must take account of the stock's accessibility in other places
than the EEZ of the coastal state. Otherwise it is impossible to
guard against overexploitation at least in a commercial sense of
reducing the catch per unit of effort. If other measures pre-
296 William T Burke
scribed by the coastal state-time limits, size limits, area clo-
sures, gear regulations-might also be affected by the migratory
characteristic, they should also reflect consideration of this cir-
cumstance.
3. Measures Designed to Maintain or Restore MSY as Quakfied by

Relevant Environmental and Economic Factors
Article 61(3) establishes that the coastal state is not required to
manage fisheries within the EEZ in order to secure the maximum
sustainable yield of target species. To the contrary, Article 61 as
a whole allows the coastal state to manage a particular fishery so
that it does not produce the MSY The coastal state's obligation
regarding conservation and management measures is "to main-
tain or restore populations of harvested species at levels which
can produce the maximum sustainable yield, as qualified by en-
vironmental and economic factors. . . ." Accordingly, the coastal
state may take into account the socioeconomic variables that are
important in its judgment for realizing coastal interests and
managing a stock in order to secure the interests suggested by
these variables. Whether to increase the net benefits from fishing
or to protect associated or dependent species, the coastal state
may wish to regulate so that less than the MSY is produced. So
far as highly migratory species are concerned, a key factor may
be "fishing patterns" which are specifically mentioned in Article
61(3). A coastal state's interests would not be served if it simply
ignored that other coastal states and distant-water states ex-
ploited the same stock elsewhere. The provision referring to
MSY is sufficiently broad that the coastal state has ample au-
thority to take into account any factor important to its interests
and to adjust its interests as external factors indicate.
4. Obligations regarding Associated or Dependent Species

Fishing for tuna in some parts of the ocean employs a fishing
technique that can have (and has had) considerable effects upon
the abundance of other species. In the eastern tropical Pacific
the practice of setting nets on schools of porpoise caused severe
porpoise mortality and led to U.S. legislation requiring correc-
tive measures by U.S. tuna vessels and, more generally, to laws
protecting marine mammals." The LOS Convention also makes
provision for effects of fishing on other species. Article 61(4)
declares that in taking conservation and management measures a
coastal state shall "take into consideration the effects" on as-
sociated and dependent species "with a view to maintaining or
restoring populations of such associated or dependent species
above levels at which their reproduction may become seriously
threatened."
The obligation conveyed by this requirement is potentially
onerous. The reason is not that the standard for conservation is
high; avoiding impacts which might seriously threaten reproduc-
tion of the species is probably not significantly different from the
general conservation standard for all living resources in the EEZ
contained in Article 61(1), namely, that living resources not be
endangered by overexploitation. The burden rather would arise
from the requirements for development of theory and the acqui-
sition of information necessary for understanding the effects of
fishing on other species." To implement Article 61(4) adequately,
i.e., to be capable of giving consideration to the effects on af-
fected species, would entail an understanding of the ecosystem
as a whole and the effects of fishing within that system. Such a
task appears to demand a better understanding of relevant
ecosystems than we now have or are likely to get for some time.
The practical difficulties of generating adequate data are by no
means trivial. As a whole, this obligation, if taken seriously,
might require an enormous expenditure of money and time."
So long as no observable serious effects are noted or sug-
gested by anyone, it seems unlikely that Article 61(4) will occa-
sion problems. In any event, no sanction is provided for failure
to meet this obligation although should a dispute arise, Article
297(3)(b) provides for submission to compulsory conciliation. It
can be doubted that many states would be inclined to invoke this
type of procedure in this type of situation, at least given the
heavy burdens of theory and fact involved in making out a plau-
sible case.
298 William T Burke
5. Contributionand Exchange of Data
Articles 61 and 62 both contain provisions pertinent to the acqui-
sition and exchange of data regarding fishing in the EEZ. The
former article calls in paragraph 5 for the contribution and ex-
change on a regular basis of specified information and data
"through competent international organizations . . . where ap-
propriate and with participation by all States concerned, includ-
ing States whose nationals are allowed to fish in the exclusive
economic zone." Article 62(4)(c) specifies that the coastal state
may condition permission to fish in its zone on receipt of infor-
mation from fishing vessels, while subparagraph 4(q) provides
that the coastal state may require, authorize, and control, the
"conduct of specified fisheries research programs." In combina-
tion these provisions are ample authority for the coastal state to
acquire all needed information and data regarding HMS within
their migratory range.
The provisions just mentioned are also pertinent to the coastal
state obligation to take into account "the best scientific evidence
available." In meeting this standard, the coastal state should be
obliged to seek out information from all the sources mentioned
and should not be permitted to rely on evidence of less quality
from other sources, unless it is refused evidence from an au-
thorized source.
Article 64 and Section 2 of Part VII (High Seas) provide addi-
tional obligations regarding information needs of HMS on the
high seas. The Article 64 basic requirement of cooperation re-
garding conservation of HMS within and beyond the zone can
reasonably be interpreted to extend to cooperation in acquisition
and dissemination of data and information needed for conserva-
tion. Independently of this, Article 118 repeats the general obli-
gation to cooperate and to negotiate "with a view to taking the
measures necessary for conservation" of the living resources the
states concerned exploit on the high seas. Article 119(2) parallels
Article 61(5) in calling for the exchange of data relevant to con-
servation through competent international organizations. This
latter provision does not imply, in light of Article 64, that data
can only be exchanged via an international organization. It may
be recalled that Article 64 specifies alternative means of cooper-

ation, either directly or through an international organization,
and this would appear also to apply to the exchange of data
between and among the states concerned.
6. Optimum Utilization, Surplus, and Allocation

Irrespective of the LOS Convention, all coastal state decisions
that aspire to effectiveness on questions of utilization, determi-
nation of a surplus, and allocation among harvesters must reflect
that HMS are or may be caught throughout their migratory range
in other EEZs and on the high seas. Because these catches may
together affect abundance within any particular EEZ and in loca-
tions on the high seas as well as affect the population of a stock
wherever it is found, it is difficult for any single coastal state to
manage a stock properly for either conservation or utilization.
For conservation purposes the magnitude of the population can-
not be determined solely by the limits on harvesting imposed by
the coastal state within its areas of jurisdiction; therefore its
policies may be ineffective. For utilization goals the coastal state
cannot manage the stock to optimize benefits of use by tailoring
efforts to match abundance to produce desired results, because
abundance is also beyond its control. (It is assumed here that the
coastal state does not have the leverage to impose conditions on
high seas fishing or in other EEZs; this may not always be true
and the coastal state might then be able to act effectively.)
In any event, decisions on these issues are subject to the
Article 64 obligation for the states concerned to cooperate and
such decisions could be made by the coastal state independently
only after cooperation has failed to produce timely measures.
Coastal authority under Article 64 was reviewed in an earlier
section.
C. Authority over Fishing within Archipelagic Waters

Living resources within archipelagic waters are subject to the
sovereignty of the archipelagic state without the conditions and
qualifications.attached to sovereign rights over living resources
300 William T Burke
in the exclusive economic zone. Accordingly, the archipelagic

state has no legal obligation to cooperate with fishing states re-
garding the conservation and utilization of HMS stocks in these
waters, although in a practical sense the necessities of providing
for efficient harvesting in the EEZ and high seas do not permit
wholly separate treatment of the fishing that could transpire in
archipelagic waters.
The archipelagic state does have some limited obligations,
relating to its archipelagic waters, vis-A-vis certain other states.
Article 51 provides that an archipelagic state, without prejudice
to its sovereignty over the resources and area concerned, "shall
recognize traditional fishing rights and other legitimate activities
of the immediately adjacent neighbouring States in certain areas
falling within archipelagic waters." This obligation to recognize
fishing rights is minimal because it extends (a) only to ar-
chipelagic waters, not to those of the EEZ and (b) only to im-
mediately adjacent neighboring states, thus excluding all DWFN
as well as those states in the "neighbourhood" but not "im-
mediately adjacent." While there is no definition of "traditional
rights," this would clearly exclude any new or even recent en-
trants. Further indication of the restrictive character of the rec-
ognition required is to be seen in the provision that the manner,
nature, location, and extent of these rights are to be regulated by
bilateral agreements, at the request of any of the states con-
cerned. The burdened archipelagic state is thus given a
significant voice in determining the substance and operational
significance of these traditional rights. If agreement cannot be
reached, probably the archipelagic state need not permit foreign
access to its waters for the purpose of exercising traditional
rights. This seems to follow because the nature, extent, and
areas of exercise of such rights depend upon agreement with the
archipelagic state. Article 51 provides that such traditional rights
cannot be transferred to or shared with other states or their
nationals.
D. Nationality of Fishing Vessels

CLOS Article 91 provides that each state determines the condi-
tions under which vessels are given the right to fly its flag, but
MigratorySpecies in New Law of the Sea 301
states that there must be a "genuine link" between the state and
the ship which flies its flag. This substantially repeats a provision
included in the 1958 Geneva Convention on the High Seas. That
provision was largely meaningless and its repetition in the new
Convention does not change the situation. No one challenges the
nationality of a ship so long as it is properly registered with the
state of its flag. Nothing in CLOS or in the 1958 Convention
limits the coastal state in deciding what vessels it will register.
While CLOS Article 94 specifies matters on which the flag state
is to exercise jurisdiction and control, it provides no sanctions or
redress should a state fail to do so.
The most significant point to emphasize is that the bases for
ascribing nationality to a vessel, under CLOS or customary law,
are left to the flag state's discretion. Through such ascription a
coastal state may acquire a harvesting capacity in its own flag
vessels if it so wishes, although other methods are also available.
E. Fish Aggregation Devices (FADs)

FADs might be deployed within an EEZ or on the high seas
beyond.2' The international law of the sea provides guidance in
both situations.
With respect to deployment of FADs within an EEZ or fishing
zone, it is clear that they fall within the coastal state's jurisdic-
tion, control, and responsibility. Whether FADs may be em-
placed within 200 nautical miles is solely for the coastal state to
determine as are all details of such placement. If they are to be
deployed, the coastal state may establish and apply whatever
regulatory regime it may wish, subject to the proviso that some
regulations must be prescribed for certain purposes. Under
CLOS Article 60 an aggregation "device" would be considered
an "installation" or "structure" since it occupies a significant
amount of space and is used for fishing purposes. (The label
"device" which has been attached to these objects is not here
considered significant for purposes of the application of Article
60.21) This article requires the coastal state to take action to
provide notice of deployment, warning, removal, safety zones,
publicity, and placement relative to essential sea lanes. If the
302 William T Burke
coastal state neglects promulgation of protective and safety mea-

sures it would be responsible and liable for resulting harms to
passing vessels. If conflicts or disputes develop over conditions
of use of the FADs or related to such use, then the coastal state
has the authority to resolve them but it is worth noting that
compulsory dispute settlement procedures may also be available
in the event of disputes arising over impacts on navigation.
These considerations suggest that coastal states may need to
study the problems generated by the use of FADs in the EEZ
and to make provision for regulation, including the possibility of
adverse effects upon other states."
Two specific questions can be anticipated about the potential
transnational effects of FADs. It is conceivable that FAD em-
placement within one state's EEZ might divert or diminish a
fishing stock otherwise available to a neighboring state in its
EEZ or in the outside high seas region. The reverse is also
conceivable: FAD placement on the high seas could conceivably
alter the stock otherwise available within one or more EEZs or
elsewhere on the high seas.
Although FADs have occasioned disputes in some regions, so
far as is known these particular problems are not imminent.
Obviously, there are substantial difficulties in determining a
causal relationship between the emplacement of a FAD in one
location and the decline of catches elsewhere.
Assuming causation can be shown, the LOS Convention deals
more clearly with the issue of high seas FADs than it does with
those in another EEZ. CLOS does not expressly provide for
high seas FADs, as might be expected, but it does declare in
Article 116 that the right to fish on the high seas is subject to the
rights, duties, and interests of the coastal state concerning tuna.
Any high seas tuna fishing, including fishing on FADs, thus is
burdened in some manner by the superior right of the coastal
state. Although, as noted in an earlier discussion, Article 116
does not spell out the nature of this relationship, there is little
room for doubt that coastal state "rights, duties, and interests"
are superior to those of the fishing state. The coastal state's
interests would not be recognized if FADs, having an effect on
coastal harvests, could be freely deployed in defiance of the
coastal state's wish to maintain harvests within its EEZ. Earlier
discussion noted the generality and uncertainty of the relation-
ship between coastal states' rights and high seas fishing, and
noted varying interpretations that might be given the LOS Con-
vention provisions. This need not be repeated since it would
seem that as a means of fishing FADs would be subject to these
provisions the same as a fishing vessel operating in the same
region.
Insofar as emplacement of FADs in an EEZ affects catches in
another EEZ, the treaty makes no comparable provision for a
dominant position by one of the states. The two states are en-
joined by Article 63(1) "to agree upon the measures necessary to
coordinate and ensure the conservation and development" of the
shared stocks and by Article 64 to cooperate. Should agreement
or cooperation fail, there is no method provided, other than
uncertain dispute settlement procedures, for resolving disputes.
F. CLOS and Customary Law Relating to Highly

Migratory Species
Until the LOS Convention is ratified by 60 nations, its provisions
are not in force, and even after this period it is possible that one
or more major tuna, or other HMS, fishing nations will not be a
party to it. At the present writing, the United States, which is
one of these states, is not a signatory to the Convention and
present U.S. policy is to reject it in its entirety because of oppo-
sition to the seabed mining regime. Accordingly, the substantive
content of customary law regarding highly migratory species is
presently of interest and it may continue to be of practical conse-
quence even after the Convention comes into force.
Nearly all nations in the world, including the largest tuna
fishing state (Japan),23 consider all highly migratory species as
among the living resources subject to their sovereign rights. This
would usually be enough to dispose of the question of customary
law on the matter-seldom is there such a uniformity of views on
an issue in international law-except that the United States
takes the position that customary law precludes coastal states
from establishing sovereign rights over one group of HMS,
304 William T Burke
namely tuna. It is a fact that, since 1976, U.S. fishery manage-

ment legislation and, more recently, the U.S. EEZ proclama-
tion,24 affirmatively exclude tuna from U.S. fishery authority and
sovereign rights, while simultaneously asserting such authority
and rights over all other fish resources, including all other highly
migratory species.
A recent statement by an official of the U.S. State Department
explains the U.S. position:
For over thirty years, since the first extended jurisdictional claims
were made by states neighboring tuna resources, the U.S. has re-
jected the notion that a coastal state may establish sovereign rights
over tuna beyond 12 nautical miles off the coast. U.S. law, policy,
and practice have been consistent on tuna.
The rationale behind the U.S. approach is straight-forward. Tuna
are not a resident resource of the EEZ. They are only found within
any EEZ temporarily and may migrate far out into the ocean waters
beyond. Therefore, the coastal state does not have the ability to
manage and conserve tuna, nor does it have a paramount interest in
their development. Although many coastal states claim jurisdiction
over tuna within 200 nautical miles, none exercise conservation and
management authority through purely domestic measures. Only
through international agreements have states actually managed ef-
fectively the highly migratory tuna species. In fact, the U.S. has led
other nations in developing a regime of tuna management through
international agreement such as the recent Eastern Pacific Ocean
Thna Fishing Agreement, signed by Costa Rica, Panama and the
U.S. Accordingly, customary international law precludes the coastal
state from establishing sovereign rights over tuna. In the U.S. view
this is evidenced by Article 64 of the Law of the Sea Convention,
which requires cooperation between coastal states and distant water
fishing nations to manage tuna, both within and outside the EEZ, on
a regional basis, through an international organization. It is the view
of the U.S. that Article 64 precludes the coastal state from establish-
ing sovereign rights over tuna."
Although the United States is virtually alone in subscribing to

the legal views just quoted, and it harvests only a small (but
sizable) fraction of the world tuna catch, they are of interest
because of the general significance of its position on LOS issues.
(In 1981 U.S. flag vessels landed approximately 200,000 metric
tons of tuna species in U.S. and foreign ports"2 the world catch
of tuna, billfish, and bonitos in 1981 is reported at 2,453 million
metric tons.") The four main elements of the position expressed
on behalf of the United States are its historical position; the view
that tuna are not a resident resource of the EEZ and cannot be
effectively managed by the coastal state; the practice of states;
and the provisions of Article 64 of the LOS Convention. Each of
these deserves some comment. It will be concluded that the
United States position is not supported by evidence and is incor-
rect regarding the content of customary law and the Law of the
Sea Convention.
1. Historical Record
There is no doubt that the United States has consistently over
the years opposed the extension of coastal state jurisdiction over
fishing for tuna, just as it formerly opposed such extension for
other species of fish. However, in 1976 the United States
changed its policies regarding the extension of national jurisdic-
tion over living resources. The Fishery Conservation and Man-
agement Act of 1976 extended exclusive U.S. fishery manage-
ment authority over all living resources within 200 nautical miles
excepting only highly migratory species of tuna. Whereas until
this time it had been U.S. policy to frame its management mea-
sures in light of knowledge of the stocks subject to management,
its new policy asserted control over all living resources found
within 200 miles irrespective of whether a stock could be effec-
tively managed by the United States. The sole exception to this
new approach was tuna, little of which is caught within the new
area of U.S. jurisdiction. In other words, under the new U.S.
200-mile legislation the United States asserted exclusive author-
ity over the living resources caught within its area but refrained
from claiming that authority over resources that were, in any
case, not there. At the same time, the United States also refused
to recognize the jurisdiction of those other nations within whose
waters tuna are commonly found and caught. To enforce this
view of proper management the United States provided for em-
306 William T Burke
bargoes of fish from nations which seized U.S. vessels in im-

plementation of their national laws providing for jurisdiction
over tuna and all other highly migratory species. The United
States has enforced this embargo against several nations in the
period since 1976.
While the United States opposes the assertion of other na-
tions' control over U.S. fishermen taking highly migratory
species of tuna within 200 miles of these nations' coasts, the
United States asserts its jurisdiction over foreign fishermen who
take highly migratory species of fish other than tuna within 200
miles of the United States. Thus the United States consistently
opposes the exercise of its own or foreign jurisdiction over tuna,
but asserts national jurisdiction over other highly migratory
species of fish within 200 nautical miles. It is apparent that the
U.S. position on highly migratory species policy is inconsistent
and reflects political expediency rather than a principle or a
considered policy.
2. The Rationale for the U.S. Position

The foundation for the U.S. position is that tuna do not stay
within 200 nautical miles, and since they move beyond this area
they cannot be effectively managed by the coastal state acting
independently within the area of its jurisdiction. This is true in
most instances, although apparently it is possible in the central
and western Pacific for coastal states as a group to act effectively
within their own combined jurisdictions. The difficulty with this
U.S. rationale for its tuna position is that such migratory behav-
ior is not confined to tuna but applies also to other fish and
mammals that are labeled highly migratory as well as to some
coastal fish species that move considerable distances but are not
usually labeled highly migratory. If the United States consist-
ently followed this rationale in practice it would not assert
sovereign rights over highly migratory species except tuna, as it
indisputably does. The actual rationale for U.S. conduct appears
to be that we wish to exercise jurisdiction over foreign fishermen
who take HMS within our zone but do not wish our fishermen to
be subject to foreign jurisdiction when they take tuna elsewhere.
The purpose served by this U.S. position is evident. Almost all
coastal nations assert sovereign rights over tuna and, whatever
our juridical position, U.S. tuna boats must negotiate for access
to these resources. They commonly do so. Little or no problem
arises in such negotiations regarding conservation measures;
coastal states understand as well as fishing states that prolonged
intense exploitation will reduce catch per unit of effort and
thereby probably reduce the benefits generally available for dis-
tribution. The difficulty in negotiations between fishing interests
and coastal states is over sharing the benefits of exploitation.
The purpose of maintaining the U.S. position on jurisdiction is to
give the tuna industry some leverage in the negotiations over this
split of the profits of fishing. Hovering over the negotiations is
the possibility of an embargo of the coastal state's tuna catch,
and perhaps of all other fish as well, if agreement is not reached
and the coastal state seeks to enforce a prohibition on foreign
exploitation in its zone. As noted above, there is no matter of
principle at stake here so far as the United States is concerned,
because the United States itself also claims jurisdiction over
HMS, only for somewhat different species which have,
nonetheless, precisely the same management needs.
3. State Practice
The State Department acknowledges that "many coastal states
claim jurisdiction over tuna within 200 nautical miles" but con-
tends that "none exercise conservation and management author-
ity through purely domestic measures." The first part of this
statement is true but the second is both inaccurate and mislead-
ing. The exact number of coastal state claims to jurisdiction over
highly migratory species is not known, but it is probably over 80
states. The United States is one of two states distinguishing
among these species for jurisdictional purposes. State Depart-
ment officials themselves recognize that its position is in the
minority.
The assertion that no coastal state exercises conservation or
management authority through purely domestic measures is not
accurate. The numerous successful enforcement measures
308 William T Burke
against U.S. flag vessels in the tuna fishery of the eastern tropical
Pacific provide ample evidence that coastal states do not refrain
from applying domestic measures. However, the fact that coas-
tal nations assert jurisdiction over tuna does not mean they fail
to pursue international management measures. The record
shows that this occurs.28 The argument here is not between
solely domestic measures and international action, but over the
shares of the available harvest that can be negotiated in the
context of broader agreement on internationally accepted mea-
sures for conservation and utilization. The contention by a U.S.
State Department official that only international measures can
be effective is ironic when it is understood that it is the U.S.
position rejecting coastal state jurisdiction which stands in the
way of international measures in some parts of the world. In the
western Pacific the island nations of the region have refused to
permit the United States to join in the international mechanism
being established for the region so long as the United States
continues to threaten economic sanctions against these nations
for enforcing national laws they (and virtually all the rest of the
world) regard as compatible with international law. In this region
the biggest barrier to international cooperation is the United
States. The private group representing U.S. fishermen in this
region (the American Tunaboat Association) has no reservations
about its own recognition of coastal state jurisdiction and is
currently conducting fishing there on that basis."
It is a fact, further, that the United States has recognized
coastal state jurisdiction when it seemed opportune to do so.
The 1983 Eastern Pacific Ocean Tuna Fishing Agreement ex-
pressly recognizes that jurisdiction and promises that the United
States will not invoke the embargo provisions of U.S. law if the
coastal nations concerned act to seize unlicensed U.S. vessels
within their 200-mile zones."
4. Article 64 of the LOS Convention

The Department of State asserts that Article 64 is evidence that
"customary international law precludes the coastal state from
establishing sovereign rights over tuna" and itself precludes such
action. Both these assertions rest on serious misinterpretation of
Article 64. The latter article is not the basic article on tuna in the
LOS Convention. Indeed tuna is not the sole subject of any
article in the LOS Convention. The basic article is Article 56
which deals with the general scope of coastal state authority in
the EEZ, including the scope of coastal authority over living
resources in the EEZ. The coastal state has "sovereign rights for
the purpose of exploring and exploiting, conserving and manag-
ing the natural resources, whether living or nonliving, of the
waters superjacent to the sea-bed and of the sea-bed and its
subsoil. . . ."
Nothing in later provisions fundamentally alters this delega-
tion of authority to the coastal state; Article 64 specifically de-
clares that it is in addition to the other provisions of Part V on
the Exclusive Economic Zone. Article 64 addresses what the
coastal state with sovereign rights and other states with certain
other rights are required to do with respect to conservation and
management of certain species listed in the Annex including a
number of different tuna species. The obligation laid on these
states is to cooperate "directly or through appropriate interna-
tional organizations with a view to ensuring conservation and
promoting the objective of optimum utilization of such species
throughout the region, both within and beyond the exclusive
economic zone."
These observations make it evident that Article 64 does not
preclude the coastal state from establishing sovereign rights-it
simply has nothing to do with this other than explicitly recogniz-
ing that the article which does establish such rights also applies
to highly migratory species as listed in Annex I. Nor does Article
64 require, as the State Department incorrectly maintains, inter-
national cooperation "through an international organization."
Article 64 does oblige the coastal states and distant water states
to cooperate but specifies that this can be done directly or
through international organizations. It does not mandate a single
avenue of cooperation but offers a selection of such routes none
of which is exclusive. The fundamental objective was to facili-
tate cooperative action, not to seek to restrict the parties in how
they might accomplish this. Previous experience suggests heavy
310 William T Burke
reliance on an international body with a simultaneous role by

states interacting directly.
It should be obvious that the obligation to cooperate in Article
64 is not inconsistent with coastal state sovereign rights under
Article 56. Other articles also provide for cooperation between
fishing states and coastal states with sovereign rights over living
resources-no one suggests that in these circumstances the
coastal state has no sovereign rights. Most instances of interna-
tional cooperation in relations between nations concern matters
over which they are "sovereign," and apart from pronounce-
ments with mainly symbolic effects they manage to do business
without undue difficulty.
Article 64 is consistent with the practice of states in asserting
by national legislation that they have sovereign rights over all
living resources within 200 nautical miles. However, Article 64
does impose an obligation upon the coastal states to cooperate
with respect to species that move widely in the ocean and this
obligation is not found in most national legislation. The Conven-
tion therefore appears to represent an advance on customary
international law because it requires cooperative efforts to con-
serve and manage stocks that in most circumstances cannot be
effectively managed by individual coastal states acting alone or
even in concert with other coastal states.
Notes
1. At this writing the relevant document appears still to be A/Conf.
62/122, 7 Oct. 1982, with a number of corrigenda. Hereinafter refer-
ences to provisions of CLOS will simply cite the relevant article. None
of the corrections are known to affect the provisions discussed in this
article.
2. Article 56.
3. But not the only species of commercial importance. Swordfish,
marlin, sailfish, sharks, and some cetaceans are taken for commercial
purposes and are of varying importance to various nations. Recrea-
tional fishing for some of these species is also significant; bluefin tuna,
marlin, and sailfish are prime targets for sports fishermen.
4. Not all tuna move so extensively. Also, some so-called coastal
species migrate more widely than some tuna. I am indebted to John
Gulland of FAO for calling this to my attention.
5. Article 64.
6. Article 116.
7. Article 56(3) provides that Part VI of the treaty (Continental
Shelf) governs in relation to the coastal state's sovereign rights in the
seabed and subsoil of the EEZ and continental shelf.
8. Article 77.
9. As will be discussed below, the United States official position is
that Article 64 precludes coastal state jurisdiction over tuna. The legal
basis for this position is weak. It is true that the Informal Single Negoti-
ating Text specifically referred to coastal state regulation of fishing for
highly migratory species in the EEZ, while the Revised Single Negoti-
ating Text and later texts did not. However, this change is insignificant
because the RSNT and later texts repeat the ISNT in recognizing coas-
tal state sovereign rights over HMS and in declaring that the provision
on international cooperation (now para. I of Article 64) is in addition to
the other provisions of Part V. The reversal of the order of the para-
graphs, which occurred after the ISNT, does not affect the applicability
of Article 56 or other articles to highly migratory species. For a differ-
ent point of view, see Van Dyke and Heftel, "Tuna Management in the
Pacific: An Analysis of the South Pacific Forum Fisheries Agency,"
University of Hawaii Law Review 3 (1981): 42-43, 48-54; "Note, The
Tuna War: Fishery Jurisdiction in International Law," University of
Illinois Law Review 16 (1981): 755.
10. J. Joseph and J. W Greenough, InternationalManagement of
Tuna, Porpoises,and Billfish (1979), p. 44.
11. Article 86 provides that the provisions of Part VII on the High
Seas apply to all parts of the sea that are not included in the exclusive
economic zone, territorial sea, internal waters, or archipelagic waters
of an archipelagic state. The region beyond EEZs is the high seas.
12. For instance, the concept of maximum sustainable yield (MSY)
is usually considered to cover a range of values and not a single abso-
lute figure as the text suggests. John Gulland has identified biological
objections to MSY:
The principal ones are (i) there are natural fluctuations in the abundance and
productivity of many stocks, unrelated to fishing, (ii) the yield that can be
taken from a stock varies with the pattern of fishing (ages and sizes of fish
caught), and (iii) the possible yield from one stock depends on events on
other related stocks (e.g., of species that feed on the first species), including
312 William T Burke
any exploitation of those stocks. Thus it is not possible to determine a
unique and constant value of the MSY from a stock.
Gulland, "Conditions of Access to Fisheries: Some Resource Con-
siderations," Paper presented to FAO Expert Consultation on Condi-
tions for Access to the Fish Resources of the Exclusive Economic
Zone, Rome, 11-15 April 1983, p. 3.
13. U. N. Doc. No. A/AC. 138/SC. II/L.9, in United Nations, Report
of the Committee on the Peaceful Uses of the Sea-bed and the Ocean
Floor Beyond the Limits of National Jurisdiction 175 (27th Sess.,
Supp. No. 21, 1972).
14. This article appears to derive from Article 1(1) of the 1958 Con-
vention on Conservation of the Living Resources of the High Seas
which reads: "All States have the right for their nationals to engage in
fishing. . . ." The difference is that the rights of coastal states in the
1958 Convention were minimal compared to the "sovereign rights"
established in CLOS. While the language is nearly identical, the effect
is quite different in light of the change in coastal state rights.
15. All fishing disputes arising from interpretation or application of
CLOS are subject to compulsory dispute settlement except those relat-
ing to the coastal state's sovereign rights with respect to the living
resources of the EEZ or the exercise of these rights. The interpretation
offered here is that the exception applies to disputes in which only
sovereign rights are at stake. It does not apply where sovereign rights
and high seas rights are both in dispute.
16. See, generally, Joseph and Greenough, supra note 10, at 13-21,
180-197.
17. Id., 136-179.
18. Needs for basic research concerning the tuna-porpoise relation-
ship are discussed in id., at 171 ff.
19. Proper measures would include gear modifications and change in
fishing practices, both of which require potentially costly research and
development.
20. Fish aggregation devices are platforms of bamboo, logs, or what-
ever, that are anchored in the water to attract tuna so that they can be
fished more effectively. This technique is now successfully used in
many parts of the southern and western Pacific and is considered to
raise a variety of domestic and international legal problems. For more
extended discussion, see Robb, "Legal Aspects of Fishing Aggregation
Devices (FADS)," Working Paper 7c, Workshop on the Harmonisation
and Coordination of Fisheries Regimes and Access Agreements, South
Pacific Forum Fisheries Agency, Suva, Fiji, 22 Feb.-5 March 1982. See
also "Report of Proceedings of Workshop on Harmonisation and Coor-
dination of Fisheries Regimes and Access Agreements," South Pacific
Forum Fisheries Agency, attachment VIII (April, 1982) (distribution
restricted; copy in files of author.)
21. Article 60 refers only to "artificial islands, installations and
structures," omitting the term "devices" which had been included in
the 1958 Continental Shelf Convention. This raises a question about
coastal state authority over "devices," and about the difference, if any,
between a "device" and a "structure." In the case of fish aggregation
devices there is no problem because the object is used for fishing
purposes and would therefore unquestionably be subject to coastal
state authority. For discussion, see Treves, "Military Installations,
Structures and Devices on the Seabed," American Journalof Interna-
tional Law 74 (1980): 808.
22. See sources cited note 20 supra.
23. The Japanese law on provisional measures relating to the fishing
zone provides for jurisdiction over fisheries without qualification
within the fishing zone. Article 6 thereof forbids foreigners to catch fish
in the zone without permission except for highly migratory species
prescribed by Cabinet order. Law No. 31, 2 May 1977. Article 3 of the
Enforcement Order of 17 June 1977 identifies some highly migratory
species for the purpose of Article 6. It is apparent, therefore, that
Japan regards these species as a whole as subject to its jurisdiction in
its zone and exercises that jurisdiction to allow foreign fishing for cer-
tain species without the necessity of permission.
24. Weekly Compilation of PresidentialDocuments 19 (1983): 384.
25. "The Question of Sovereign Rights Relative to 'Ibna," Ocean
Science News 25, No. 23 (June 13, 1983): 2.
26. Fisheries of the United States, 1982 (NMFS, Current Fishery
Statistics No. 8300) (April, 1983) p. 10.
27. Id. at 28.
28. A principal illustration is the Nauru Agreement between the
Federated States of Micronesia, the Republic of Kiribati, the Marshall
Islands, the Republic of Nauru, the Republic of Palau, Papua New
Guinea, and Solomon Islands. For text of the Nauru Agreement Con-
cerning Cooperation in the Management of Fisheries of Common Inter-
est (1982), see Report of Hearing on S. 1564 (The American Tbna Act)
before the National Ocean Policy Study, of the Committee on Com-
merce, Science and Transportation, 97th Cong., Ist Sess., Dec. 8,
1981, p. 23.
29. An earlier agreement recorded that the ATA, the Micronesian
314 William T Burke
Maritime Authority, the Palau Maritime Authority, and the Marshall

Islands Maritime Authority "acknowledge" the exclusive fishery man-
agement authority of the latter as established in their respective laws,
all of which asserted such authority over a 200-mile zone. For text, see
id. at p. 25. This agreement was effective through June 30, 1982, and a
new agreement is now in effect.
30. Treaty Doc. 98-3, United States Senate, 98th Cong., Ist Sess.,
May 12, 1983.

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Abstract The 1982 Convention on the Law of the Sea

Ocean Development and International Law, Volume 14, Number 3

The 1982 Convention on the Law of the Sea (CLOS)' makes

A. Coastal State Rights to Conserve and Manage Fisheries

cooperate with coastal states regarding fishing for HMS within

2. Authority Regarding Conservation in the EEZ

the compulsory conciliation procedures of Article 297 and An-

3. Determination of Optimum Utilization

4. Determination of Harvesting Capacity and Access to Surplus

significance of the living resources of the area to the economy of

B. Conditions and Limitations on Coastal State Rights

1. The Requirements of Article 64

(a) The Duty of Cooperationand Its Subject Matter

cannot be exercised in the same manner as over coastal species.

(b) Failure to Cooperate and Its Consequences

(c) Manner of Cooperation:Direct Interaction and

(i) Choice of Forms of Cooperation. Article 64(1) contains two

(ii) Characteristicsof an Article 64 Organization. While Arti-

(d) Application of the LOS Treaty to Fishing in Enclaves of

themselves on measures applicable to such fishing. The treaty

2. Measures to Ensure against Overexploitation

3. Measures Designed to Maintain or Restore MSY as Quakfied by

4. Obligations regarding Associated or Dependent Species

be recalled that Article 64 specifies alternative means of cooper-

6. Optimum Utilization, Surplus, and Allocation

C. Authority over Fishing within Archipelagic Waters

in the exclusive economic zone. Accordingly, the archipelagic

D. Nationality of Fishing Vessels

E. Fish Aggregation Devices (FADs)

coastal state neglects promulgation of protective and safety mea-

F. CLOS and Customary Law Relating to Highly

namely tuna. It is a fact that, since 1976, U.S. fishery manage-

Although the United States is virtually alone in subscribing to

bargoes of fish from nations which seized U.S. vessels in im-

2. The Rationale for the U.S. Position

4. Article 64 of the LOS Convention

reliance on an international body with a simultaneous role by

Maritime Authority, the Palau Maritime Authority, and the Marshall

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