| One of the major undertakings of the 1982 UNCLOS was the establishment of the Exclusive Economic Zone(EEZ).Although “residual right” in the chapter of EEZ of 1982 UNCLOS is proposed to balance the conflict of interests of coastal and non-coastal states,coastal states’ “sovereign right” over EEZ provides a de facto monopoly on biological resources within 200 nautical miles.The demand of human beings for marine resources is expanding.The proposal of EEZ has compressed the free use of global oceans.Coupled with the declining fisheries resources in the surrounding waters of many countries,it’s a trend to expand the use of marine living resources in the high seas.Developed countries have taken the lead in exploiting the biological resources of the high seas with their advanced navigation and fishing technologies.Although many high seas are “public”,they are controlled by some countries through geographical convenience and supply chains.From the perspective of the future distribution and utilization of global marine resources,many countries will fix their eyes on the two poles for resource grabbing.Since business in the Arctic Ocean started earlier,there is a larger space for the development of the Antarctic Ocean.The biological resources of the Antarctic Ocean are a priority for exploitation not only because of the value of biodiversity created by the unique geography but also because of institutional influences.First,according to the Protocol on Environmental Protection to the Antarctic Treaty,also known as the Madrid Protocol,the development of mineral resources,one of the key strategic resources of the Antarctic,is currently prohibited.However,the Convention on the Conservation of Antarctic Marine Living Resources(CAMLR convention)stipulates that “conservation includes‘rational use’” and does not prohibit them completely.Second,the Antarctic Treaty System’s “bifocalism” determines the ambiguous legal status of the South Pole,which also makes Antarctic marine living resources face a confrontation between the“sovereignty theory” and the “sharing theory” of resources.The exploitation of resources is often accompanied by the destruction of resources.In the face of environmental pollution and illegal fishing,the sustainable development of Antarctic marine living resources has been challenged,which determines the transformation of the international community’s institutional construction of Antarctic marine living resources from development and utilization to conservation.However,during the third United Nations Conference on the Law of the Sea(UNCLOS III),the conservation of biodiversity beyond national jurisdiction(BBNJ)was not focused on,resulting in the lack of specific regulations on the conservation of high seas biological resources in UNCLOS 1982.Faced with the contradiction between the real needs of the regulations of global high seas living resources conservation and the inadequate supply of the system,CCAMLR took the lead in adopting a series of conservation measures in regions,which promoted the global legislative process of conservation of biodiversity beyond national jurisdiction.The conservation of Antarctic marine living resources has been a major source of controversy.The difficulty lies in how to determine the level of conservation and to strike a balance between “conservation” and “rational use”.Since the Antarctic Treaty System only states that “nothing in the treaty shall prejudice or in any way affect the rights,or the exercise of the rights,of any State under international law with regard to the high seas within that area”,the arguments between people who support “free development and exploitation” and “conservation” maintain their interests through different legal interpretations.The former believes that it should refer to the rights on the high seas at the time of the adoption of the Antarctic Treaty System,focusing on freedom.The latter believes that Article 6 includes both high seas rights and conservation restrictions,that the Convention for the Conservation of Antarctic Seals(CCAS)and CCAMLR have already restricted the original freedom rights,and that the development of the conservation system can only be “complementary” rather than“restrictive”.No matter how it is interpreted,however,even if the “freedom of the high seas under international law” already includes the connotation of conservation restrictions,the freedom of the high seas is still a basic principle of the law of the sea,and the freedom of the high seas is still a developing system.To a certain extent,it is still a further restriction of the original freedom of the high seas,and it is more reasonable to use “restriction”.Therefore,the crux of the legal controversy caused by the conservation system is still the relationship with the principle of freedom of the high seas.The reasonable way to solve the conflict between the conservation of Antarctic marine living resources and the traditional freedom of the Antarctic high seas is to introduce a “balance of interests” methodology to address the legal challenges of the conservation system to the freedom of the Antarctic high seas.Meanwhile,the differences between the different systems should be taken into account to reconcile the legal conflicts.Conservation measures represented by the High Seas Marine Protected Areas will further shape the institutional order in the Antarctic Ocean.China does not yet have an Antarctic security strategy or a complete Antarctic legislative system.As a member of CCAMLR,China still needs to reform and upgrade its conservation system.Therefore,China needs to pay close attention to the dynamics of the conservation system of Antarctic marine living resources,and study the theoretical basis and practice of conservation in depth so as to achieve good cooperation in conservation regulation and to develop effective conservation reform programs.The paper includes the following parts:First,progress and legal controversies in the conservation system for Antarctic marine living resources.The United Nations has always respected the self-contained nature of Antarctic governance norms,but it has not denied the application of global conventions such as UNCLOS in Antarctica.As the organization of Antarctic governance has evolved,CCAMLR has led the development of the conservation system.New systems will be used to reform or amend the previous order.The creation of the High Seas Marine Protected Areas in Antarctica has led to an unprecedented level of controversy over the limits and boundaries of the conservation system.Unlike Antarctic mainland,the legal status of the Antarctic Ocean is vague and unspecified.In general,the legal order of the Antarctic Ocean is considered to the freedom of the high seas.The theory of freedom of the high seas has undergone a long evolution through Grotius’ s theory of freedom,the theory of “sea power”,and the theory of the tragedy of the commons,and has a rich connotation in the form of expression and governance model.The high seas governance represented by the conservation system is a restriction on the freedom of the high seas,which has given rise to several legal disputes,including the challenge to the customary right to freedom on the high seas by conservation treaty obligations,the breakthrough of the exclusive jurisdiction of the flag state in the Antarctic high seas by port state measures,the challenge to the doctrine of common ownership of the Antarctic Ocean by the declaration of EEZ by “coastal states”,and the challenge to the freedom of trade in the seas by the restrictions of market limits on the fish catch.Second,conflict and reconciliation between comprehensive conservation of Antarctic marine living resources and treaty relativity.To achieve full conservation of Antarctic marine living resources,all contracting parties and non-contracting parties should comply with conservation measures.Indeed,freedom of the high seas,a customary right,is universally binding and enjoyed by non-contracting parties.Conservation measures,on the other hand,are essentially treaty obligations and are subject to the principle of treaty relativity.This means that non-parties can only enjoy the right to use resources without obligations,which is not fair and just according to the law of the sea.For this reason,CCAMLR has taken some measures for non-parties.According to the basic theory of treaty law,the third-party effectiveness of these measures is still insufficient at present.There is no express consent of the third party,and global international conventions,international customs,and objective systems can also not be used to break the treaty relativity.As for the contradiction between comprehensive conservation and treaty relativity,scholars have proposed such approaches as state cooperation and “obligations erga omnes”,but there are inadequacies.It is still difficult to break the treaty relativity,and the better path is still to expand the scope of application of treaties and to solve the problem of the binding force of non-contracting states in CCAMLR through the global legislation of the United Nations.Third,the integration and coordination between flag states and port states in the conservation of Antarctic marine living resources.The introduction of port state measures to address the exclusive jurisdiction of flag states has achieved some success in combating IUU fishing in the Antarctic Ocean.In fact,port state measures are a problem of territorial jurisdiction,and it is like awaiting a windfall at the highway intersection,facing the problem of ports of the flag of convenience.To achieve the governance effectiveness of “1+1>2”,the jurisdictional cooperation between port states and flag states needs to be promoted,and related mechanisms need to be established: establishing an information sharing mechanism to achieve sharing through a global information gathering and transfer platform and active declaration exchange;establishing a vessel list sharing mechanism and exchanging flags with other regional fisheries organizations to expand the scope of port state access to illegal vessels;strengthening the autonomy of port states and incorporating port states’ evaluation of the performance of flag states into the CCAMLR vessel list system;promote harmonization of flag State and port State regulatory standards.Fourth,the competition and coordination between the “coastal state” and the collective jurisdiction of CCAMLR in the conservation of Antarctic marine living resources.The claim of some countries to seize Antarctic marine living resources through EEZ is inconsistent with the constitutive elements of the EEZ system itself.States’ declaration of EEZ in Antarctic Ocean can be divided into two areas: near the continent of Antarctica and the sub-Antarctic islands extending into the Antarctic Ocean.For the EEZ near the continent of Antarctica,there is no so-called “coastal state” because the sovereignty of the continent of Antarctica is frozen.At the same time,Territorial sea baseline is the premise of the EEZ,but the status of Antarctic ice in international law is not regulated,so it is impossible to determine the baseline.For the sub-Antarctic islands,in spite of some dispute over the islands,it does not prevent the existence of a “coastal state”.The real difficulty is that if all these islands are granted by EEZ,there will be an international controversy over the limits of the high seas.In addition,sea level rise due to climate change makes it more difficult to determine the territorial sea baseline of these islands.To mitigate the impact of these countries on CCAMLR’s collective jurisdiction,CCAMLR should strengthen cooperation with these countries,recognize symbolic rights,and mitigate conflicts through the “non-prejudice” compatibility clause in the new BBNJ agreement,and clarify the “shared” legal status of living resources in the Antarctic Ocean to prioritize holistic governance.Fifth,conflict and balance between catch restrictions on Antarctic marine living resources and freedom of trade.According to the recent WTO liberal interpretation of the general exception clause,the fishing market restriction measures are in line with the specific circumstances of “measures necessary to safeguard the life or health of people,animals,and plants”(clause b)and “relevant measures for the effective protection of natural resources likely to be exhausted”(clause g)in the general exception clause of the GATT,and there are no exceptions in the general exception clause at present.In practice,judicial practice tends to adopt a restrictive interpretation of the clause,with a low success rate of quote.In particular,expert panel and appellate body also take a relatively conservative approach to the exercise of extraterritorial jurisdiction by sovereign states.Since market restrictions target fish originating in the high seas of Antarctica,it is unclear whether they can be regulated.To enhance the international legitimacy of catch market restriction measures: at the CCAMLR level,the transparency of catch trade restriction measures should be enhanced;at the WTO level,the judiciary should be flexible in interpretation,cautious in applying restrictive interpretations,and enhance the legitimacy of catch market measures through such methods as evolutionary interpretation;in terms of dispute settlement,attention should be paid to the bias of adjudication value brought by the specialized platforms of the WTO and ITLOS,disputes should be settled through external neutral platforms such as the International Court of Justice,and an internal dispute settlement mechanism of the Antarctic Treaty System should be established.Sixth,challenges posed by the conservation system for Antarctic marine living resources to China and China’s response.Conservation measures may directly limit China’s current pelagic fishing interests in Antarctica,and competition for management rights may breed new historical rights that threaten China’s long-term interests.From the legal aspects of China’s involvement in the conservation of Antarctic marine living resources: at the multilateral level,China has actively participated in negotiations for the establishment of marine protected areas in Antarctica,but has not taken proposals for high seas protected areas proactively.China has always adhered to scientific conservation values but has fallen short in providing strong scientific data to prove them.China needs to submit conservation proposals individually or jointly,and actively use the observation and inspection system to exercise conservation oversight.Also,China needs to take advantage of the multipolar pattern of global leadership,play a leading role in the negotiation of new BBNJ agreements,and use the international authority of the BBNJ forum to influence the political negotiations of CCAMLR.At the bilateral level,China’s international cooperation in conservation practice is concentrated in a few Antarctic gateway countries,and the cooperation is mainly in the form of the political declaration and memorandum,without a unified legal framework.China needs to establish a unified multilateral cooperation framework for partnership in the Southern Ocean,complement the strengths of different interest groups,and inject social power represented by NGOs into diplomatic cooperation.At the national level,China’s implementation of the Convention and the transformation of domestic laws have not yet been deepened,lacking a special law on the conservation of Antarctic marine living resources.Moreover,China hasn’t established a complete fishery port supervision system and a coordination agency for comprehensive management. |
PDF Full Text Request