ENDNOTES


1. International law comes from several sources: (1) multilateral and bilateral treaties and conventions, (2) international custom as evidenced by the practice of States, (3) general principles recognized by States and articulated by learned scholars in treatises, and (4) judicial decisions by the International Court of Justice (ICJ), other international tribunals and, to a lesser extent, the national courts of sovereign States. (Statute of the International Court of Justice 1970, art. 38.) Of all these sources only the first, treaty law, is considered "hard law". The rest form a body collectively regarded as customary international law. Customary law, however, may be equally as binding as treaty law depending on its general acceptance by nation States and evidenced by the extent to which those States honor and enforce it. Customary international law, like treaty law, is being continuously created and modified. While it used to take many decades, if not centuries, of common practice by States to establish that a certain general principle of international law imparted an obligation on all States regardless of any treaty, that process may now be accomplished in a few years. For example, even though the 1982 United Nations Convention on the Law of the Sea is not yet in force, it has become generally accepted as customary international law that coastal states now have a right to exercise jurisdiction over the resources of a 200-mile wide exclusive economic zone once considered part of the high seas.

2. Several multilateral and bilateral agreements and conventions also limit freedom of fishing, including the Convention on Fishing and Conservation of the Living Resources of the High Seas, the International Convention for the Regulation of Whaling (IWC), the International Convention for the High Seas Fisheries of the North Pacific Ocean (INPFC), the on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (NAConventionFO), the Convention on the Conservation of the Living Resources of the Southeast Atlantic (ICSEAF), the International Convention for the Conservation of Atlantic Tunas (ICCAT), the Migratory Bird conventions, the Convention on Conservation of North Pacific Fur Seals, the Convention between the U.S.A. and the Republic of Costa Rica for the Establishment of an Inter-American Tropical Tuna Commission (IATTC), The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), the United Nations Convention on the Law of the Sea, and the Convention on the Prohibition of Driftnet Fishing in the South Pacific (the Wellington Convention). In addition to restricting fishing methods that needlessly prey on endangered species, the bulk of these conventions require fishing practices that permit taking only the maximum sustainable catch. The Wellington Convention bans driftnet fishing from an entire region, including portions of the high seas.

(new endnote) "International conservation and management measures" is defined to mean measures adopted and applied in accordance with UNCLOS by global, regional or subregional fisheries organizations. A flag state may not allow its fishing vessels to fish on the high seas without authorization, and may not authorize fishing by a vessel unless it is satisfied that it can exercise effectively its responsibilities under the Agreement in respect of that vessel. Each party must maintain a record of fishing vessels entitled to fly its flag and authorized to fish on the high seas, and must ensure that its flag vessels are marked in such a way that they can be readily identified. Parties must provide detailed information to FAO on their fishing vessels; FAO will than circulate this information to all parties.

3. The largest three companies account for 7075% of Thailand's canned tuna production: Unicord Investment Co., Ltd., Thai Union Manufacturing Co., Ltd, and Ta Kong Food Industries Co., Ltd. Other significant Thai tuna canners include Tropical Canning (Thailand) Co., Ltd., Pataya Food Industries, Co., Ltd., Kingfisher Holdings Ltd., and B & M Products, Ltd. (USITC 1990 p. 51).

4. One of the general principles of international law recognized by States is that conventional law may give rights to nonparty States, but may obligate only States that are parties to a convention. To the extent that a treaty codifies customary law, however, it is binding on all States, whether or not they are parties. In the last two decades treaties dealing with resource exploitation and environmental degradation have multiplied. Most of these conventions have incorporated into them certain common principles, including the obligation of "reasonable use" of shared resources and the obligation of a State to insure that activities within its jurisdiction do not damage its neighbors. (Brownlie 1990; Springer 1983; Stockholm Declaration 1972)

5. States have an obligation to consider "all relevant factors", including whether the extra-territorial activity has a "substantial, direct, and foreseeable effect upon or in the territory;" Restatement (Third), at sec. 403(2)(a). Additional factors to consider that are particularly relevant to transnational activities are (1) the importance of the regulation to the regulating State, (2) the extent to which other States regulate such activities, and (3) the degree to which the desirability of such regulation is generally accepted and consistent with the traditions of the international system. Restatement (Third), at sec. 403(2)(c) and (f).

Return to Table of Contents

Return to Earthtrust's DriftNetwork Page