WHO HAS THE FREEDOM OF THE SEA?

At first sight the law of the sea simply introduces even-handed constraints on the freedom of the sea. It delimits what now remains as the common sea and subjects these common areas to resource regimes.

It is indeed possible to view these regimes as necessary to protect rights to access and use the sea, since their stated purpose is to foster sustained exploit­ation of the resources of these areas.^[756] Thus, with respect to fisheries, the RFMOs seek to ensure that in each season stocks are fished only to a degree from which they may recover for the next season. And, with respect to seabed minerals, the ISA offers the dual promise, to contractors of legal security of tenure over specific mining sites (necessary to the nature of the activity undertaken); and to the international community as a whole of the protection of the marine environment, as well as some share in the mining profits, by way of application of the principle that the deep seabed is ‘the common heritage of mankind'. Described in these terms, we might say that these regimes, while introducing some constraints, are what make continuing economic activity possible in the ocean.

A closer look at the detail of these regimes, however, reveals a more complicated picture. They oversee an uneven distribution of rights and constraints. Fisheries regimes, as Andrew Serdy reveals in his excellent study, although formally still informed by the principle of the freedom of the sea, have tended to be configured along an ‘insider' versus ‘outsider' dynamic, that benefits states with established fishing industries at the expense of those with nascent deep-water and distance fisheries.^[757] Previously, in the 1950s, this was in the guise of the misleadingly termed ‘abstention' doctrine, under which Japan, just emerging from occupation, was discouraged by the United States from fishing salmon in Bristol Bay for the sake of conservation of the stock; the criteria for abstention were so worded as to preserve the US fishing industry's ‘access to the fishing grounds of the west coast of Central and South America and the Grand Banks of Newfoundland respectively'.^[758] The United States might have succeeded in incorporating the doctrine of abstention into inter­national fisheries law, but for ‘an excessively frank remark in its favour' by a member of the International Law Commission (ILC) during the ILC's work on the 1958 Geneva Conventions: he called it the ‘principle of justified exclusion of third parties'.^[759]

Today RFMOs, dominated by states with established fisheries operations, promote a kind of ‘neo-abstentionism'.^[760] That is, they use criteria for allocating national fishing quotas that are designed to exclude new entrants.

Their interests hardly accommodated within the regional fisheries regimes, new entrants are also dissuaded from operating outside them. Through the growing use of a tidy form of words, their fisheries - unregulated, but in the absence of membership to further qualifying treaties, covered by the principle of the freedom of the seas - are assimilated to the crime of illegal fishing.⁴⁴ The clamour against ‘illegal, underreported and unregulated' (IUU) fishing conflates rather different challenges, obscures the distribution issues that lead certain states to avoid joining regional fisheries regimes, and, further, conceals from view the ways in which the insiders in those regimes might be under­mining conservation efforts by overfishing. Overfishing by insiders is also illegal fishing, but tends to attract little criticism, and almost no sanctions.⁴⁵ Moreover, such overfishing may follow already too-high fishing quotas, set at unsustainable limits due to industry pressure. Together with the further problem of illegal fishing in the under-policed exclusive economic zones of other states, such practices deserve much greater scrutiny than they receive.

Fisheries in the ocean commons are thus made an illicit activity for some fishers, while others, able to avoid all but the appearance of constraint, enjoy it as a freedom.

fished; prior to joining the organisation Korea had fished 9,000 tonnes of redfish in the same area: Serdy, The New Entrants Problem, 96.

⁴⁴ See ibid., i4iff.

⁴⁵ Ibid., 145.

⁴⁶ Ibid., 11-12.

⁴⁷ From the text of the draft resolution submitted to the UN General Assembly by the Commission to Study the Organization of Peace: Draft Resolution and Working Paper, 21 August 1967, S-0858-0005-03, UN Archives, New York.

One of the most ambitious versions of this idea, a comprehensive Ocean Space Treaty drafted by Pardo, and submitted by Malta to the UN General Assembly in 1971,^[763] would have removed fishing from the list of high seas freedoms altogether, turning it instead into an activity undertaken exclusively by, or under the control of, an international organisation, which had the responsibility to ensure conservation of fish stocks, foster ocean research capabilities of technologically less advanced states, and redistribute the rev­enue earned, giving special attention to the needs of developing states.^[764] The proposed treaty also required states to transfer a percentage of the revenues derived from fisheries within their zones of national jurisdiction to the inter­national organisation, and mandated their cooperation with this organisation vis-à-vis fisheries close to the border between national and international jurisdiction.^[765]

These ideas obviously did not succeed.

At the very moment that Hardin was offering the sea as an example of a tragic commons, there circulated conceptions that aimed to maximise oppor­tunities both for redistribution and for protection of its ‘ecological integrity'.^[767] That an unequal freedom of fishing was nevertheless maintained did not represent simply the carrying on of an old ‘shibboleth', but the deployment of mechanisms to preserve the interests that that old shibboleth had served.

II.3