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24 Aust. YBIL 181 (2005)
Regulation and Enforcement in the Law of the Sea: Emerging Assertions of a Right to Non-flag State Enforcement in the High Seas Fisheries and Disarmament Contexts

handle is hein.journals/ayil24 and id is 193 raw text is: Regulation and Enforcement in the Law of the Sea: Emerging Assertions of a Right to Non-flag State Enforcement in the High Seas Fisheries and Disarmament Contexts Rosemary Rayfuse* Introduction The culmination of centuries of debate and conflict in the law of the sea, the 1982 United Nations Convention of the Law of the Sea (UNCLOS),1 was intended to establish a comprehensive regulatory framework for all ocean uses. Its complex allocation of jurisdictional competences as between coastal and other states was intended to provide a workable regime by which its provisions could be enforced. The regime respected, on the one hand, the interests of flag states, in particular the major maritime powers, in their vessels' free use of the seas and, on the other hand, the economic, resource and security interests of coastal states. Under the UNCLOS, except in limited circumstances where coastal state jurisdiction is provided for, and subject to specific exceptions, the flag state of a vessel enjoys exclusive jurisdiction to enforce against its vessels.2 In theory, therefore, a vessel is always subject to the jurisdiction of at least one state which has responsibility for it under international law and is therefore expected to ensure its compliance with international obligations. In practice, however, one of the most intractable questions in the law of the sea, as in other areas of international law, has been the question of enforcement and, in particular, what steps may be taken by non-flag states in situations where the flag state of a vessel is either unwilling or unable to comply with its international obligations. In concluding his 1986 examination of the then recently-adopted UNCLOS regime relating to jurisdiction and enforcement against delinquent vessels, Professor Shearer noted that state practice and jurisprudence would be needed to provide content to the complex and often vague provisions of the Convention.3 Some 20 years on, the purpose of this essay is to examine the state practice and jurisprudence in respect of delinquent vessels in two contentious areas, fisheries and disarmament. In particular, this paper focuses on the issue of non-flag state enforcement in high seas fisheries and in respect * Associate Professor, Faculty of Law, University of New South Wales. I United Nations Convention on the Law of the Sea (10 December 1982), 1833 UNTS 3 (UNCLOS). 2 UNCLOS arts 86, 87 and 92. 3 I Shearer, 'Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels' (1986) 35 International Law and Comparative Quarterly 320.

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