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Under the contemporary law of the sea, coastal States enjoy sovereign rights within their exclusive economic zones (EEZs) to manage and exploit fishery resources. At the same time, States maintain the traditional freedom to fish on the high seas subject to some treaty obligations, including those arising from regional management fisheries organizations (RMFOs) and other treaties, such as (once it enters into force) the agreement on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ agreement). Given that straddling stocks and highly migratory species of fish move with ease between EEZs and the high seas, the 1982 U.N. Convention on the Law of the Sea (LOSC) contains provisions that seek to bridge the gap for conservation and management of such stocks within the two zones.

Those provisions were elaborated in the 1995 Fish Stocks Agreement, notably in its Article 7(2), which provides in part that “[c]onservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety.” A similar “compatibility” concept may be found in Article 19(b) of the BBNJ agreement, albeit in the context of the compatibility of high seas marine protected areas and RFMOs or other bodies. Unfortunately, Article 7(2) contains several ambiguities as to its interpretation, which over time have not been resolved and may be inhibiting sound conservation and management measures. Indeed, studies indicate that the current legal framework has not succeeded in addressing declines in fish stocks either within EEZs or on the high seas.

The purpose of this chapter is to consider the legal framework within which this “compatibility requirement” rests and to identify the ambiguities that may be impeding international cooperation. To promote greater cooperation, this chapter considers whether an advisory opinion should be sought by an RFMO from the International Tribunal for the Law of the Sea (ITLOS) on the nature and scope of the compatibility requirement. While doubts have been expressed about addressing abstract legal questions through advisory proceedings, doing so might allow for a more granular legal understanding as to how States should be cooperating in the management and conservation of straddling fish stocks and highly migratory species.

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