공해어업의 자유에 대한 국제사회의 규제

Abstract

Regulations of the International Community on the Freedom of High Seas Fisheries

Nam Su Kim

Department of Law, The Graduate School, Pukyong National University

Abstract This study aims to understand both the substance and the origin of the principle of freedom in the high seas fisheries, acquire the knowledge - such as the history of controversy in the course of alteration; conflicting issues on the jurisdiction expansion; a new order of high seas fishery since United Nations Convention on the Law of the Sea; relevant dispute resolutions; relevant order - and further increase the ability to foresee future changes for the purpose of introducing new directions for utilizations if necessary. In the history of the law of the sea, the sea was considered available to anyone in the ancient Roman times when maritime traffic wasn't active. Like this, from their perspective on the sea in Roman laws, they had no idea of possession of seas, high seas marine resources was treated as both 'res communis' which belongs to all and 'res nullius'. So the principle of freedom of the high seas seems to be secured. In the Middle Ages, UK, Scandinavia, and other countries including Mediterranean waters claimed of possession or closure for some reasons such as proprietary Oriental Trading, proprietary fishery, suppression on pirates, guard services, cost, etc. As for marine monopolies, Spain and Portugal had extended its closure or possession of the high seas. By the 16th century, two emerging maritime powers - United Kingdom and the Netherlands- started to rule out monopolies created by Spain and Portugal and advocated ocean freedom. In such historical background, Hugo Grotius announced ⌜Mare Librum⌟ in 1609 and advocated freedom of 'navigation and trade' and freedom of 'fishing' for various reasons: international waters(high seas) is indispensable in our international traffic; the high seas are too vast to rule it substantially; there are much marine resources like fish stocks and it can't be depletable; environmental self-purification is unlimited. However, after World War II, with the development of science and technology, large fleets equipped with various high-tech fishing equipment began its existence, resulting in overfishing of marine resources, people began to think that they had inexhaustible resources no longer, and scientists were more concerned that the rapid development of science and technology would destroy the marine ecosystem. Despite such situation, traditional freedom of high seas fishing has been well maintained but, U.S. President Truman declaration in 1945 had triggered the expansion of national jurisdiction, giving birth to United Nations Convention on the Law of the Sea (recognizing a 200-nautical mile exclusive (maritime) economic zone from the baseline of the territorial sea as customary international law), thereby shrinking high seas fishery a lot. In addition, as economic zone has been settled by United Nations Convention on the Law of the Sea, jurisdiction of coastal state expanded and new potential conflicting zones sprang up, and here in the conservation and management of resources and preferential right of coastal state were in conflict with the rights of high seas fishery state and jurisdiction issues began to rise. To solve these problems, United Nations Convention on the Law of the Sea holds management regulations of high seas fishery resources, but is still lacking regulations to solve above problems. To supplement this, 'International Conference on Responsible Fishing' was held with respect to responsible fishery in Cancun, Mexico on May, 1992. Upon request by Cancun declaration adopted at this meeting and Agenda 21 by Earth Summit in Rio (United Nations Conference on Environment and Development),？uAgreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas 1993？vand？uCode of Conduct for Responsible Fisheries 1995？vwere adopted and thereafter UN Fish Stock agreement (Agreement for the Implementation of the Provision of the United Nation Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of the Straddling Fish Stocks and Highly Migratory Fish Stocks.1995) and four other action plans - ？gThe International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries？h; ？gThe International Plan of Action for the Conservation and Management of Sharks？h; ？gThe International Plan of Action for the Management of Fishing Capacity？h; ？gInternational Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated Fishing？h - were adopted. Along with environment solidarity and trade solidarity, various kinds of conservation and management measures for marine living resources which are common in the agreements above are adopted, and the compliance, implementation, and monitoring system has been enforced, and further high seas fishing regulations are being more strengthened. Thus, as the notion evolved on the use of fishery resources of the international community and international fishery resources management system -for example, policy management, strategy acquisition, resource management, fishery management, analysis of fishery resources, a review of fishery resources management system - has begun to appear in the management system of fishery resources in our international community since 1970s, that is, they are being conducted in various forms either from universal dimension or regional one. The only thing we should note in the drastic changes in the international fisheries is to encourage fairness in decision making and prevent abuses of coastal state through a variety of ways and concentrate on mitigating too much overlapped regulatory criteria and procedures in cooperation with other high seas coastal state. In addition, by strengthening cooperative system between coastal states, technical cooperation projects and training projects - dispatch and invitation of trainees and experts - should be performed to defend national interests and we should find ways to take advantage of many professionals in the operation of the Convention system.