Cooperation and compliance control in areas beyondnational jurisdiction

Dorota Englender a,n, Jenny Kirschey a, Aleke Stöfen a, Andreas Zink a

a Institute for Environmental and Technology Law, University of Trier, Campus II, 54286 Trier, Germany

a r t i c l e i n f o

Keywords:Law of the seaAreas beyond national jurisdictionCompliance controlState cooperationUNFSAICRW

a b s t r a c t

Past decades have shown a constant increase in the number of international agreements regulatingmarine areas. Environmental changes as well as technological developments resulting in an increaseduse of oceans ensure the need for further governance in the future of high seas. At the same time,compliance by States with international obligations remains a considerable challenge in internationallaw. In particular, regulations governing areas beyond national jurisdiction (ABNJ) are at risk of not beingobeyed due to factual challenges posed to the control of high seas territories and the (legal) limits of thelaw of the sea. This article evaluates a stronger cooperation between States through the incorporation ofcompliance control systems in agreements regulating ABNJ in order to enhance compliance by States. Forthis purpose, provisions on compliance control measures which have already been established in twoagreements regulating ABNJ, namely the International Convention for the Regulation of Whaling and theUnited Nations Fish Stocks Agreement, are analyzed. It is argued that the incorporation of compliancecontrol elements into agreements regulating ABNJ is a promising avenue to secure improved complianceamong States Parties and further implementation of this approach is recommended.

& 2013 Elsevier Ltd. All rights reserved.

1. Introduction

Scientific and technological developments have increased andexpanded the use of High Seas in recent decades. In order toensure equal opportunities concerning the use of marine resources(economic considerations) and to preserve marine species and theenvironment (ecological considerations), the future of the HighSeas will require further regulation. At the same time, ensuringcompliance by States with international obligations remains one ofthe main challenges in international law [1]. In particular, regula-tions governing areas beyond national jurisdiction (ABNJ) are atrisk of not being obeyed, not only due to factual challenges butalso due to legal obstacles.

One such legal obstacle affecting compliance in ABNJ is theweakness of flag State jurisdiction. The principle of flag Statejurisdiction constitutes the cornerstone of the current high seasenforcement system. As regulated in Article 92 (1) of the 1982United Nations Convention on the Law of the Sea (UNCLOS) [2],the flag State is responsible for exercising jurisdiction over shipsflying its flag, irrespective of the ship's geographical location [3].Hence, the jurisdiction of the flag State encompasses vessels onthe High Seas. Unfortunately, the past has shown, as evident in the

Black and Grey Lists contained in the annual reports of the Parisand Tokyo Memoranda of Understanding [4,5], numerous flagStates not effectively exercising their jurisdiction [6,7].

Considering the dearth of effective exercise of flag Statejurisdiction, it remains to be seen how compliance by States couldbe enhanced. One possible option could be a revision of theprinciple of flag State jurisdiction. However, since that optionrequires the abandonment of long existing traditions, it is to beexpected that attempts to modify the parameters of flag Statejurisdiction will involve a protracted process. Therefore, in order toestablish compliance, the use of traditional, rather confrontationalmeans of enforcement under international law may be relevant[7,8], in particular, countermeasures, such as reprisals, retorsionsand/or sanctions [8,9]. However, the principle of State sovereignty,which includes the concept of equality among States, limits theextent and success of those traditional means of enforcement.Consequently, neither traditional measures of enforcement nor amajor reform of the principle of flag State jurisdiction seem torepresent genuine options to tackle the problems surrounding theissue of compliance with international obligations within ABNJ.

In order to enhance compliance by States with agreementsregulating ABNJ, this article suggests considering a cooperativeapproach. It will be argued that compliance control systemsenhance cooperation among States Parties. Therefore, the incor-poration of compliance control systems in agreements regulatingABNJ is a promising approach to tackle the challenges facing high

Contents lists available at ScienceDirect

journal homepage: www.elsevier.com/locate/marpol

Marine Policy

0308-597X/$ - see front matter & 2013 Elsevier Ltd. All rights reserved.http://dx.doi.org/10.1016/j.marpol.2013.11.022

n Corresponding author. Tel.: þ49 651 201 4145.E-mail address: englender@uni-trier.de (D. Englender).

Please cite this article as: Englender D, et al. Cooperation and compliance control in areas beyond national jurisdiction. Mar. Policy(2013), http://dx.doi.org/10.1016/j.marpol.2013.11.022i

Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎

seas governance in regard to compliance by States. Compliancecontrol systems as part of an institutionalized form of inter-Statecooperation are seen as promising in ensuring and improvingcompliance. This article will first provide a brief overview oncompliance control systems. Thereafter, compliance control sys-tems within two existing agreements regulating ABNJ will beexamined, namely the International Convention for the Regulationof Whaling (ICRW) and the United Nations Fish Stock Agreement(UNFSA) [10,11]. Both conventions are prominent examples ofagreements partly regulating ABNJ and which include, to a greateror lesser extent, elements of compliance control systems.

2. Compliance and compliance control

In order to set the methodological background to the analysisof compliance control measures in existing agreements, it isnecessary to elaborate certain underlying elements and concepts.

2.1. Definition

There is no generally accepted definition of the terms “com-pliance” and “compliance control” in international law [12].Despite the fact that multilateral environmental agreements andsoft law instruments, such as the UNEP Agenda 21 [13], often usethe terms “compliance” and/or “non-compliance”, they frequentlydo not provide a definition. The term “compliance” can be brieflydescribed as the fulfillment by States Parties of their obligationsunder an international agreement [14]. This description is similarto the non-binding definition provided in the 2002 UNEP Guide-lines on Compliance with and Enforcement of Multilateral Envir-onmental Agreements which defines compliance in Part 1 as “thefulfillment by the contracting parties of their obligations under amultilateral environmental agreement and any amendments tothe multilateral environmental agreement” [15]. With regard tothe uncertainty concerning the definition of the term “compli-ance” [12], the aforementioned definitions constitute the lowestcommon denominator and serve as a starting-point.

The systems of compliance control describe a variety of meanswhich are based on stronger cooperation among States Parties andwhich ultimately serve to enhance compliance [12,16]. Elements ofcompliance control systems have already been included in armscontrol regimes, however, they have most notably been developedin the field of international environmental law during the pastdecades [17]. Prominent examples include the compliance controlprocedures laid down in the 1987 Montreal Protocol on Substancesthat deplete the Ozone Layer or the procedures under the 1997Kyoto Protocol to the United Nations Framework Convention onClimate Change [18,19].

2.2. Structure and content

Although compliance control systems can include a variety ofprocedures, the systems often share the underlying idea thatstronger transparency through the comprehensive supply ofinformation serves as the basis for the enhancement of complianceby States. Therefore, principally, though not exclusively, theyinclude measures such as reporting, monitoring and verificationobligations [8,20]. Additionally, the systems often provide mea-sures in response to instances of non-compliance [16,20]. A cleardistinction between these measures is not always possible, nor is aclear distinction required [12], rather, a brief description can beprovided.

2.2.1. Reporting and monitoringReporting serves as a fundamental basis of compliance control.

It comprises collection and recording of facts in order to determinethe factual situation of a certain area of regulation [17,20]. In thisregard, States Parties mainly provide the required information byself-reporting [12,20]. The reporting system constitutes a pre-condition for informed and advanced decision-making and servesthe purpose of understanding whether and if so, to what extent,States are fulfilling their obligations under the pertinent agree-ments [12]. Monitoring complements reporting and includesfurther collection of data. It encompasses various measures suchas inspections [12]. Overall, the importance of fact-finding as aprerequisite for subsequent steps in the compliance controlprocedure places it at the heart of that mechanism.

2.2.2. Verification and evaluationAnother level in the context of compliance control procedures

is the verification and evaluation of the received information. Therole of verification is to examine the plausibility and relevance ofinformation submitted and it is a necessary pre-requisite for thesubsequent evaluation [8,12]. The mechanisms of verification havemostly been developed for cold war arms control agreements as aresult of the hostility and suspicion between the United States andthe Soviet Union [17]. During the factual and legal evaluationprocess, the level of compliance reached by a State as well as thereasons for non-compliance are assessed [8,20].

2.2.3. Measures in responseThe aforementioned measures provide mechanisms to detect

constellations where States are not complying with their treatyobligation(s) and to evaluate the reasons for instances of non-compliance. It has been stated that States generally intend tocomply with their international obligations [17]. Nonetheless, non-compliance remains one main challenge of international law [1]. Infact, the reasons and motives for non-compliance are oftenmanifold and have a political dimension [17]. That said, appro-priate measures can only be determined, when the reasons fornon-compliance are identified. Possible measures of responsecould, for example, relate to compliance assistance in terms offinancial, technical or administrative aid [21]. This would addresscases in which non-compliance is the result of a lack of capacityand/or financial means.

2.2.4. Dispute settlementIn international law, States may avail non-judicial or judicial

means of dispute settlement. Non-judicial refers to negotiationswhereas judicial concerns proceedings before arbitrational tribu-nals and international courts [22]. Generally, dispute settlement isnot regarded to be a part of compliance control systems. However,frequent cooperation between States increases the potential for avariety of conflicts. Therefore, dispute settlement should be seenas an annex to compliance control measures as it appliesin situations in which States are unable to find a solution to aspecific matter and wish to rely on the expertise of third partiesexpert panels or judicial bodies.

2.3. Cooperation through compliance control systems

Cooperation between States is a basic element in internationalrelations. It facilitates the possibility for sovereign States to act on acommon level with regard to certain issues [23]. Moreover, coopera-tion not only addresses factual and political aspects in internationalrelations, but it also comprises a legal dimension. In this respect, theterm “cooperation” has never been defined by an internationaltreaty or a resolution of an international organization [24].

D. Englender et al. / Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎2

Please cite this article as: Englender D, et al. Cooperation and compliance control in areas beyond national jurisdiction. Mar. Policy(2013), http://dx.doi.org/10.1016/j.marpol.2013.11.022i

Nevertheless, special fields of international law such as interna-tional environmental law or the law of the sea have recognized theimportance of cooperation and even stipulated a “duty to coop-erate” for the use of common spaces concerning issues in theinterest of the international community. International environ-mental law, for instance, establishes the duty to cooperate invarious agreements and plays an important role in progressivelydeveloping and implementing the legal regime in question [24,25].

In the law of the sea, several provisions of the UNCLOS, such asArticles 64 (1), 65, 118 and 197 UNCLOS respectively, relate to theduty of States to cooperate in different regulatory areas [26]. Theexact form of cooperation among States is, however, not specifiedor determined by the UNCLOS, and hence, States are able to availseveral forms of cooperation. For instance, UNCLOS States Partiesare obliged to cooperate either directly or through appropriateinternational organizations in order to ensure the conservation ofliving resources such as marine mammals or fish stocks in ABNJ.With regard to marine pollution, States shall “cooperate on aglobal or regional basis and formulate and elaborate internationalrules and standards for the protection and preservation of themarine environment” (Article 197 UNCLOS) [27].

Compliance control systems provide a forum for increasedcooperation between States with the aim of enhancing compli-ance.2 The aforementioned measures institutionalize the interac-tions between States with the purpose of ensuring continuouscooperation in order to foster compliance with relevant obliga-tions. Mutual control, in conjunction with the transparencyprovided through the undisclosed facts, promotes common trustamong States Parties. This system of mutual monitoring of effortsto adhere to obligations enhances stronger cooperation amongStates Parties and ultimately fosters compliance [8].

3. Case study 1: United Nations fish stocks agreement

The UNFSA, signed in 1995, amends and substantiates Articles63, 64 and 116 to 120 UNCLOS on the conservation and manage-ment of straddling and highly migratory fish stocks in ABNJ for its80 States Parties (status of ratification as of November 2013)[28,29]. The States Parties are obliged to take measures to ensurethe sustainable use for the conservation and management ofstraddling and highly migratory fish stocks (Article 5 UNFSA). Tothat end, States Parties shall apply various principles, measuresand mechanisms that include, amongst others, the precautionaryapproach, impact assessments, monitoring programs and scientificresearch.

3.1. Flag state jurisdiction and the duty to cooperate underthe UNFSA

Two general obligations of the States Parties to the UNFSA areparticularly important with respect to high seas governance. First,the duty of flag States to ensure effective control over all fishingvessels flying their flag and, second, the duty to cooperate. Inaccordance with Articles 92 and 94 UNCLOS, States Parties to theUNFSA, when acting as flag States, have the primary right and dutyto exercise effective control over fishing vessels flying their flag.This means that flag States must ensure compliance with nationalregulations of all fishing vessels sailing under their flag. Inaddition, fishing vessels shall comply with conservation measuresstipulated by regional fishery management organizations (RFMOs)when fishing in areas of the High Seas that are within the scope of

a competent RFMO (Article 18 (1) UNFSA). RFMOs are centralactors in fishery activities in ABNJ, as they adopt and enforcespecial conservation and management measures. ExemplaryRFMOs include the NEAFC (North East Atlantic Fishery Commis-sion) or the NAFO (Northwest Atlantic Fishery Organization). Inorder to ensure fishing vessels are complying with nationalregulations and regional conservation measures within ABNJ, flagStates shall adopt national regulations on the authorization of highseas fishing activities and fulfill their obligation to establishnational records of fishing vessels flying its flag (Article 18 (3)(c) UNFSA).

The general obligation on States to cooperate in conservationand management measures on the High Seas, as contained in theUNCLOS, is stated in a more “institutionalized form” in Articles 8 to16 UNFSA [2]. According to those provisions, States Parties shallcooperate either directly or through RFMOs. For that reason,Article 8 (3) explicitly underlines that States shall give effect totheir duty to cooperate by becoming members of RFMOs. Non-members of RFMOs shall at least give effect to measures adoptedby RFMOs and ensure the effective compliance and enforcement ofsuch measures in ABNJ when conducting fishing activities in highseas areas covered by a competent RFMO [30]. The details ofcooperation are to be regulated by the relevant RFMO andconsequently vary between different organizations. As Article 8(4) UNFSA provides access to the fishery resources in the high seaareas governed by RFMOs only for those States which are mem-bers of a RFMO or, alternatively, which apply their conservationand management measures, States are strongly encouraged tocooperate with RFMOs or to ensure that the measures adopted bythe responsible organizations are implemented effectively byvessels flying their flag [28,30].

3.2. Information as a basis of compliance control: data collection andinformation exchange under the UNFSA

Data and information about fishery activities in ABNJ are thegeneral basis for RFMOs to decide whether States are in compli-ance with their respective treaty obligations. A central aspect ofthe duty to cooperate is thus the duty on States to record andexchange relevant information about fishery activities withincompetent organizations, as contained in Article 119 (2) UNCLOS.This general regulation of data collection and of data exchange issubstantiated by Article 5 (j) UNFSA and obliges States Parties tocollect and share data concerning fishery activities [31]. Article 14UNFSA obliges flag States to require fishing vessels flying their flagto provide scientific, technical and statistical data with respect tofisheries for straddling and highly migratory fish stocks. Addition-ally, States must also verify the data and submit all information tothe RFMOs to which they are party. Flag States shall maintainnational registers of fishing vessels flying their flag and requirevessels to record and report relevant data like vessel position,catch of target and non-target species and fishing effort (Article 18(3) UNFSA). The extent and form of data submission are subject toprovisions in the agreements establishing RFMOs or certaindecisions adopted by RFMOs for its member States. RFMOs mayrequire member States to submit comprehensive reports on aregular basis and to inform about national and internationalactions taken to implement measures of RFMOs, see for instanceArticle 16 of the NEAFC Convention.

In addition, certain RFMOs can rely on special scientificcommittees, established to support the work of fishery commis-sions, e.g. Article 14 NEAFC Convention provides that the NEAFCmay seek the advice of the International Council for the Explora-tion of the Sea on aspects of fishery management through the“Permanent Committee on Management and Science”. Under theUNFSA, different actors for the collection and submission of

2 Similarly, Maurahn [20] describes “compliance control as a co-operativemeans of law enforcement.”

D. Englender et al. / Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎ 3

Please cite this article as: Englender D, et al. Cooperation and compliance control in areas beyond national jurisdiction. Mar. Policy(2013), http://dx.doi.org/10.1016/j.marpol.2013.11.022i

compliance-related data can thus be identified. Due to their broadduty to share scientific, technical, and statistical data with respectto fisheries, the primary source of information is the contractingflag States of the UNFSA. In cases where flag States do not exercisetheir jurisdiction and comply with reporting obligations effec-tively, information may be obtained through other actors, includ-ing other UNFSA States Parties that have obtained compliance-related information or special scientific committees of compe-tent RFMOs.

Also, fishing vessels are an indirect actor playing a role in datacollection, since they are obliged to submit all relevant data to thefishery authorities of their flag State or to a competent RFMO(Article 5, Annex I to the UNFSA). Although not expressly men-tioned in the UNFSA, it can be argued that environmental non-governmental organizations should, in principle, also be compe-tent to submit compliance-related information [8]. This wouldenhance the volume of information available, thereby enhancingthe possibility of securing valid information on high seas activities.Admittedly, such an approach can and should not replace thereporting obligations of States, but could be seen as a comple-mentary source of information, strengthening the factual basis onwhich further steps in the compliance control process are taken.

The importance of data collection is explicitly recognized in theUNFSA. Article 1 (1) of Annex I to the UNFSA states that “timelycollection, compilation and analysis of data are fundamental”. Thecollection of information and submission of fishery related datanot only serves the purpose of informing flag States about theactivities of vessels flying their flag but also has the secondaryeffect that States constantly monitor all fishery activities in ABNJ,leading in turn to a common basis for possible compliance controlprocedures being compiled. Therefore, all flag States not only havethe duty to collect fishery data but also the duty to share thisinformation with other flag States through appropriate systemsmaintained by RFMOs in a timely manner (Article 14 UNFSA andArticle 7 (1) Annex I to the UNFSA). Even though the extent andform of data submission can differ between several RFMOs, Article3 Annex I to the UNFSA lists “basic fishery data” which establish ageneral standard for the collection of relevant information anddata by flag States.

3.3. Verification and evaluation of compliance-related data

The collection and exchange of information (“reporting”) isfollowed by verification and evaluation procedures. The text of theUNFSA itself does not stipulate detailed provisions on compliancecontrol procedures beyond reporting obligations. However, AnnexI to the UNFSA sets out general rules on data verification andevaluation. States Parties as well as RFMOs shall establish mechan-isms to verify fishery data (Article 6 Annex I to the UNFSA). Thesubmitted data has to be analyzed by the States Parties andcompetent RFMOs (Article 2 (f) Annex I to the UNFSA), and thedetails of this verification and evaluation process have to beadopted by the RFMOs, thus leading to variances betweendifferent RFMOs.

Currently, the agreements that have led to the establishment ofRFMOs do not contain explicit provisions regarding compliancecontrol measures that go beyond reporting obligations. Rather, it ismerely stated that the submitted reports and fishery data ought tobe verified and evaluated prior to a substantive reaction by theRFMO. Special committees may be vested with the competence toreview and evaluate compliance and enforcement measures,including reports of the member States. Under the NEAFC Con-vention a “Permanent Committee on Control and Enforcement”(PECCOE) has already been established. According to the PECCOETerms of Reference, its main function is to review the complianceand enforcement efforts of member States of NEAFC [32]. The

“Standing Committee on International Control” (STACTIC) estab-lished under NAFO has similar competences [33].

3.4. Measures in response to non-compliance

The UNFSA constitutes a legal framework for cooperationbetween States in ABNJ relating to high seas fisheries but it doesnot contain detailed provisions on compliance control. Rather,RFMOs and the member States of RFMOs are responsible for theadoption of compliance control measures. Compliance controlmeasures adopted by RFMOs generally review and assess flagState compliance. They contain mechanisms intended to react toinstances of non-compliance with flag State obligations as well asspecial obligations deriving from relevant international agree-ments [34]. On the basis of fishery data submitted, competentbodies within RFMOs can then detect situations where StatesParties are not in compliance with their obligations. Following theevaluation of possible reasons for non-compliance, RFMOs mayadopt special assistive measures for member States, such astechnical, financial or administrative assistance, to foster futurecompliance with the regulations in question.

To that end, Articles 8 and 9 of the NEAFC Convention enablethe NEAFC to adopt “recommendations” for its member States andthe Commission of NAFO may adopt binding “proposals” onfishery management measures under Article XI NAFO Convention.Currently, neither the UNFSA nor the various conventions estab-lishing RFMOs contain detailed provisions on compliance controlmeasures and possible measures to be adopted in the event thatStates are not compliant. Although, in theory, RFMOs may adoptsuch specific compliance control measures, they have not madeuse of that option on a regular basis [35,36].

3.5. Cooperation of States in enforcement under the UNFSA

In accordance with the provisions of the UNCLOS, States Partiesof the UNFSA, acting as flag States, have the right as well as theduty to enforce relevant national provisions and conservationmeasures of RFMOs (Article 19 UNFSA). Flowing from this primaryflag State jurisdiction, States Parties shall investigate violationsand institute proceedings when sufficient evidence for violationsby their vessels is available. With respect to Articles 20 and 21UNFSA, States Parties of the UNFSA are obliged to cooperate witheach other within RFMOs when adopting conservation and man-agement measures for certain fish stocks. In addition, they are alsorequired to cooperate when ensuring compliance with applicableprovisions on the High Seas. More precisely, UNFSA States Partiesand members of RFMOs shall cooperate in respect of enforcementon both the international and regional level. They shall provideassistance during investigation procedures or boarding andinspection operations as well as notify other States Parties aboutalleged violations.

Therefore, the UNFSA establishes a contractual right to anymember of an RFMO to board and inspect fishing vessels flying theflag of another UNFSA State Party for the purpose of ensuringcompliance with measures by that RFMO [37]. The geographicalscope of this provision is limited to areas of the High Seas coveredby the relevant RFMO. It is applicable, whether or not the State isalso member of the particular RFMO in question (Article 21(1) UNFSA) [34]. In this respect, States Parties of the UNFSAconsent to be subjected to boarding and inspection proceduresby other States Parties on their fishing vessels upon a becomingparty to the UNFSA [29]. The incorporation of mutual boarding andinspection rights into the UNFSA had been a subject of debatebetween coastal and flag States during the negotiations of theUNFSA [37]. Therefore, Article 21 UNFSA constitutes an agreementof disparate points of view and can be seen as an innovative

D. Englender et al. / Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎4

Please cite this article as: Englender D, et al. Cooperation and compliance control in areas beyond national jurisdiction. Mar. Policy(2013), http://dx.doi.org/10.1016/j.marpol.2013.11.022i

approach of enforcement, but may have deterred some States fromratifying the UNFSA [39].

To avoid disputes, States shall establish special procedures forboarding and inspection of fishing vessels through RFMOs. To date,most of the existing RFMOs have established special procedures onboarding and inspection, for instance the NEAFC Scheme ofControl and Enforcement and the NAFO Scheme of Joint Interna-tional Inspection and Surveillance. If no special procedures havebeen adopted by a RFMO, the basic procedures for boarding andinspection pursuant to Article 21 UNFSA apply. These basicprocedures aim to ensure prompt boarding procedures, thecooperation and assistance of all actors involved, as well as theimmediate submission of inspection reports to the flag State.When an act of boarding and subsequent inspection result in cleargrounds to believe that a fishing vessel has infringed relevantmeasures of RFMOs, the inspecting State is entitled to secureevidence and must then promptly notify the flag State of thealleged violation. After notification, it is the flag State's duty tofulfill its enforcement obligations without delay or alternatively,authorize the inspecting State to conduct further investigations.

Under the UNFSA, cooperation of States with enforcementactions not only consists of mutual contractual rights to boardand to inspect non-flag State vessels, it also comprises thecooperation of States regarding the subsequent investigation ofalleged violations. Flag States have the right to assume responsi-bility for the investigation at any time with a view to fulfilling theirown enforcement obligations, but they may refrain from doing soin order to make use of the assistance provided by other UNFSAStates Parties during the investigation of violations. This system ofmutual control established under the UNFSA is a remarkableapproach to cooperation between States in ABNJ. States Partiesof the UNFSA cooperate not only in matters of conservation andmanagement of fish stocks on the High Seas but also in ensuringcompliance with those adopted measures.

The prevailing primary flag State jurisdiction is supplementedby the cooperation of States Parties to the UNFSA in ensuringcompliance through mutual boarding and inspection rights. Whencompared with the traditional approach taken towards flag Statejurisdiction, this cooperative system of mutual control of fishingvessels on the High Seas leads to improved and more effectiveboarding and inspection procedures in ABNJ. Moreover, it issubmitted that consent on such a cooperative implementation offlag State jurisdiction can be reached easier than a general revisionof the principle of flag State jurisdiction.

3.6. Dispute settlement under the UNFSA

In accordance with Article 33 UN Charter, States Parties to theUNFSA are obliged to settle their disputes by peaceful means(Article 27 UNFSA). In order to prevent disputes, States Partiesshall cooperate in RFMOs and agree on efficient decision-makingprocedures (Article 28 UNFSA). Disputes of a technical nature,common in fishery issues, shall be settled by an ad hoc expertpanel appointed by the States Parties. For the judicial and arbitra-tional settlement of disputes, States may bring the dispute to theInternational Tribunal for the Law of the Sea (ITLOS), to theInternational Court of Justice (ICJ) or to arbitrational tribunals,since all provisions relating to Part XV of the UNCLOS are alsoapplicable to disputes under the UNFSA.

Articles 27 to 31 UNFSA establish a comprehensive system ofdispute settlement. It comprises the avoidance of disputes throughnegotiations and the settlement of technical disputes by ad hocpanels of experts. Finally, States Parties to the UNFSA retain theoption of using traditional instruments of public international lawthat would entail recourse to the ITLOS in case of fishery disputes

should a settlement for the particular dispute be unattainableusing non-judicial means.

4. Case study 2: The International Convention for theRegulation of Whaling

The ICRW, signed in 1946, was a consequence of the expansionof large-scale whaling with factory ships. In the first half of the19th century, extended commercial whaling in ABNJ led to over-exploitation of most large whale species [38]. The objective of theICRW is “to provide for the proper conservation of whale stocksand thus make possible the orderly development of the whalingindustry” (7th recital of the preamble to the ICRW). The ICRWestablished the International Whaling Commission (IWC), which iscomposed of one member of each contracting government (ArticleIII (1) ICRW). One of the tasks of the IWC is to amend the Scheduleto the ICRW, an integral part of the Convention (Article I (1) ICRW).The Schedule stipulates most of the duties of the States Parties andcomplements the Convention text. The actual Schedule contains amoratorium on whaling in form of a zero quota for commercialwhaling since 1986 through Paragraph 10 (d) and (e) of theSchedule.

The Convention has thus effectively established a prohibitionon commercial whaling with some substantial exceptions such asaboriginal subsistence whaling and scientific whaling (Paragraph13 of the Schedule and Article VIII (1) ICRW). Furthermore, twosanctuaries within which commercial whaling is prohibited weredesignated in Paragraph 7 (a) and (b) of the Schedule: the IndianOcean Sanctuary and the Southern Ocean Sanctuary. Due to themoratorium, most of the other provisions of the ICRW regime arecurrently not applied, since they refer to t methods and restric-tions of lawful commercial whaling and contain provisions onwhaling seasons and the classification of whale stocks. The on-going dispute concerning whether commercial whaling should beresumed has caused a deadlock in the negotiations within the IWCbetween States Parties [39]. The whaling regime under the ICRWrepresents a prime example for multilateral regulation and coop-eration of States in ABNJ but it also serves as a reminder of thechallenges of governance of ABNJ [40,41].

4.1. Flag State jurisdiction and the duty to cooperate

In accordance with Articles 92 and 94 UNCLOS, States Parties ofthe ICRW have the primary right and duty to ensure the applica-tion of the provisions of the Convention and the Schedule by anyfactory ship, land station or whale-catcher under their jurisdiction.Any infringement of these provisions during operations carriedout by persons or vessels under the jurisdiction of a State Partymust be punished by that State Party (Article IX (1) ICRW). Underthe current moratorium on commercial whaling as constituted inthe Schedule, the main duty of States Parties is to ensure that allvessels flying their flag adhere to the moratorium and that theexceptions for aboriginal and scientific whaling are exercised inaccordance with the Convention and the Schedule. The flag State'sduty to exercise its jurisdiction is specified in the Schedulewhereby every whaling operation shall be monitored by nationalinspectors, appointed and paid by the flag State (Paragraph 21(a) and (b) of the Schedule).

With regard to the conservation of marine mammals, Articles65 and 120 UNCLOS provide that States Parties have the duty tocooperate within their exclusive economic zones and on the HighSeas. The ICRW itself, adopted before the UNCLOS, neither refers tothe duty to cooperate, nor does it use the term “cooperation”,either in the Convention or in the Schedule. It was neverthelessdesigned to create a collective system for the sustainable

D. Englender et al. / Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎ 5

Please cite this article as: Englender D, et al. Cooperation and compliance control in areas beyond national jurisdiction. Mar. Policy(2013), http://dx.doi.org/10.1016/j.marpol.2013.11.022i

management of whale stocks (6th and 7th recital of the preambleto the ICRW). Therefore, the ICRW can be seen as a multilateralagreement applicable to ABNJ that provides rules and standardsfor the cooperation of States with regard to whaling in ABNJ.

In addition, the IWC is referred to as an “appropriate interna-tional organization” to work for the conservation, managementand study of marine mammals according to Article 65 UNCLOS[39]. As the principal organ of the ICRW, the IWC and its sub-committees constitute a forum for States Parties to cooperate withregard to whaling. This not only includes the review and revisionof current measures laid down in the Schedule to the Conventionwhich govern the conduct of whaling but also the advancement ofthe conservation of whales and the improvement of work by theIWC [42].

4.2. Information as a basis for compliance control: reportingobligations of States Parties

With regard to the ICRW, compliance control related informa-tion includes scientific data on whale stocks, reports by inspectorsor observers and also information submitted by States Parties incompliance with their notification and reporting duties towardsthe IWC. National inspectors and observers on vessels whichconduct whaling operations are one important source of informa-tion. National inspectors shall be “appointed and paid by the StateParty that has jurisdiction over a vessel or a land station”(Paragraph 21 (a) of the Schedule). The main task of nationalinspectors is to obtain information about all whaling operations,especially with regard to the numbers of whales and the methodsof whaling. In cases of infringement, it is the duty of nationalinspectors to report all relevant cases to the authorities of the FlagState. The State Party shall then transmit all details of the reportedinfraction to the IWC and provide information about the measurestaken for dealing with the infraction and of possible penaltiesimposed on the vessels and individuals involved (Article IX(1) ICRW).

According to Paragraph 21 (c) of the Schedule, contractinggovernments can appoint, in addition to national inspectors,whaling observers on ships flying the flag of another State Party.Observers may be seen as a form of mutual control of whalingoperations of other States Parties of the ICRW. However, the role ofinspectors and observers has not been sufficiently substantiated inthe ICRW, and the collective system of supervision and controllacks effectiveness. The rights and duties of these observers areunclear since the ICRW remains silent on their competences andreporting duties. With regard to scientific whaling and the excep-tion contained in Article VIII (1) ICRW, States Parties have the dutyto inform the IWC about scientific information gathered throughscientific programs (Article VIII (3) ICRW). In addition the IWC hasto be notified before relevant permits are granted in order to givethe Scientific Committee of the IWC the opportunity to review andto comment on these (Paragraph 30 of the Schedule). Prior to theadoption of the moratorium, the IWC also received reports oncommercial whaling operations provided by the States Parties inaccordance with Article VII ICRW and Paragraphs 25 to 28 of theSchedule.

4.3. Verification and evaluation of compliance-related data

The evaluation of the reports submitted by the States Partiesthrough the IWC led either to an amendment of the Schedule or tothe adoption of a Resolution, prior to the moratorium of commer-cial whaling. The adoption of a Resolution requires only a simplemajority within the IWC, while amendments to the Scheduledemand the support of a three-quarter majority of States Parties(Article 3 (2) ICRW). However, in contrast to the Schedule,

Resolutions of the IWC do not create a legal duty for the StateParty to whom it is addressed but ought to be seen as “recom-mendations” for future whaling operations. In case of scientificwhaling, the ICW is limited to adopting a Resolution and reactingto the information States Parties submit in relation to the scientificwhaling exception in Article VIII (1) ICRW.

After the 1986 moratoriumwas established, the IWC, supportedby the Scientific Committee, initiated a review process of theSchedule in order to develop management objectives and proce-dures that are capable of achieving the recovery of large whalestocks and ensuring that a sustainable level of commercial whalingis reached.. The new scheme was called “revised managementprocedure” (RMP) and consisted of methods of setting safe catchlimits for certain whale stocks [43]. The condition for the adoptionof the RMP and the lifting of the moratorium for commercialwhaling was the adoption of an inspection and observationscheme which ensures that pre-agreed catch limits are notexceeded [39]. This “Revised Management Scheme” (RMS)includes enhanced compliance control mechanisms with anemphasis on observation and documentation by other memberStates and the establishment of a “Compliance Review Commit-tee”. In theory, provisions for reporting, verification and evaluationare already included in the legal regime of the ICRW but, due tothe blocked negotiations within IWC, neither the RMP nor theRMS, with its comprehensive system of compliance control pro-cedures, are currently in force.

4.4. Measures in response to non-compliance

The IWC collects data on whaling operations and reportedinfractions submitted by the States Parties. Based on the informa-tion collected, the Commission may direct recommendations toone or all States Parties (Article VI ICRW). Furthermore, theScientific Committee of the IWC may issue comments on theproposed scientific whaling permits when notified by the issuingState. However, these recommendations or comments, so-calledResolutions, are not legally binding [44]. The “Infractions Sub-Committee” of the IWC considers matters and documents relatingto reports of States parties on infractions in so far as they involvemonitoring and compliance with the Schedule to the ICRW andpenalties for infractions. Nevertheless, the Infractions Sub-Committee only has the competence to issue an annual reporton reported infractions but does not have the power to adoptspecific compliance control measures [45].

4.5. Cooperation of States in enforcement

Under the regime of the ICRW and in accordance with theUNCLOS it is the primary right and duty of flag States to ensurethat vessels flying their flag adhere to the provisions of theConvention and the Schedule on the High Seas. Other StatesParties of the ICRW do not have the jurisdiction to enforceinternational rules on vessels flying the flag of another State. Inaddition, States Parties are only allowed to board and inspectvessels flying their flag. There is a lack of possible options in theICRW for enforcement assistance, in cases where the flag State isincapable or unwilling to fulfill its duty to ensure effectiveimplementation and enforcement. In the event that a State Partyhas placed observers on the vessel of another State Party to theICRW, these observers are not allowed to undertake inspectionsand they do not have the competence to enforce any provisions ofthe ICRW on vessels flying the flag of another State Party. Underthe ICRW, enforcement remains with the States Parties and nopossibility is foreseen for a cooperative enforcement through otherStates Parties as for instance in the UNFSA.

D. Englender et al. / Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎6

Please cite this article as: Englender D, et al. Cooperation and compliance control in areas beyond national jurisdiction. Mar. Policy(2013), http://dx.doi.org/10.1016/j.marpol.2013.11.022i

4.6. Dispute settlement under the ICRW

The ICRW further lacks provision on the peaceful settlement ofdisputes. Despite the fact that all States Parties to the ICRW arebound to settle their disputes by peaceful means in accordancewith Article 33 UN Charter, the absence of detailed provisions ondispute settlement in the ICRW is noteworthy. If a member Statetakes the view that another State Party is in breach of itsobligations under the ICRW, and negotiations fail to bring anyresult, the only option open to the State concerned is to make theICJ seized of the matter in order to facilitate the settlement of thedispute. Under the condition that both disputing parties havemade a declaration to recognize the jurisdiction of the Court, theICJ can postulate a decision binding on both parties to the dispute.The legal regime of the ICRW, however, lacks special rules fordispute settlement within the IWC through non-judicial bodies orad hoc panels on technical or scientific aspects of whaling so thatenduring disputes, e.g. over scientific whaling, may not be settledat once.

Currently a dispute in the context of the ICRW is under scrutinyby the ICJ. On 31st May 2010, Australia instituted proceedingsagainst Japan regarding the Japanese scientific whaling program“JARPA II” [46]. Japan takes the view that the permits issued aspart of the JARPA program to hunt fin and humpback whales in theSouthern Ocean Sanctuary fall under the exception for scientificwhaling pursuant to Article VIII (1) ICRW. Australia, on the otherhand, opines it is a form of concealed commercial whaling and,thus, constitutes an infringement of the prohibition of commercialwhaling laid down in the ICRW. It remains to be seen whether theICJ will issue a comprehensive decision on the case. The disputeillustrates, however, that specific provisions enabling peacefuldispute settlement are advantageous.

5. Approaches and barriers to the institutionalization ofcompliance control measures in the UNFSA and the ICRW

Despite the fact that both agreements include, to a greater orlesser extent, elements of compliance control systems, it can bestated that both treaties lack comprehensive compliance controlmeasures. The incorporation of further compliance control proce-dures would, however, face legal and/or political challenges.

5.1. Amendments to the UNFSA

The first case study has shown that the idea of compliancecontrol procedures is already established in the legal regime of theUNFSA. However, despite the fact that the idea of compliancecontrol has been introduced into the high seas regime of theUNFSA, neither the UNFSA nor the conventions establishingRFMOs contain the full plethora of elements that would benecessary to establish a comprehensive system of compliancecontrol. While reporting obligations of flag States can be foundin both the UNFSA and the RFMO conventions, detailed verifica-tion and evaluation procedures are still lacking. The same appliesto compliance control measures in response to situations where aState is not in compliance with its obligations arising from theUNFSA or a RFMO convention. An amendment procedure would bea likely approach to incorporating provisions on compliancecontrol procedures into the UNFSA or into one of its annexes, forinstance into “Annex I: Standard requirements for the collectionand sharing of data”. The relevant amendment procedures are laiddown in Article 45 (regarding the UNFSA text) and Article 48(regarding the Annexes) UNFSA. In general, the consensus of StatesParties is needed in order to adopt any amendment to the UNFSAor an annex (Article 45 (2) and Article 48 (2) UNFSA).

Amendments of the UNFSA will only enter into force after two-thirds of the States Parties have submitted their instrument ofratification or accession (Article 45 (5) UNFSA) while a revision ofan annex can enter into force directly in cases where the revisionwas adopted by consensus.

Taking into account those amendment procedures, the incor-poration of provisions on compliance control faces considerableobstacles, both legal and political. The amendment of the UNFSAwould take a certain period of time due to the fulfillment ofconditions of the UNFSA and national law. Additionally it isunclear whether the States Parties could reach consensus onamendments in the first place. Consequently, any amendment ofthe UNFSA is highly dependent on the political will of the StatesParties. In general, UNFSA Parties have acknowledged the need toimprove compliance control procedures of the UNFSA, especiallyin the areas of reporting, data accuracy and the exchange ofinformation between States Parties and competent bodies [47].Changing or amending the agreements establishing RFMOs, suchas the NEAFC Convention of the NAFO Convention, represents analternate approach to incorporating provisions on compliancecontrol procedures into the legal regime of fishery activitiesin ABNJ.

As already outlined in the case study on the UNFSA, RFMOs arethe central actors and competent institutions not only for theadoption of conservation measures in ABNJ but also for compli-ance and enforcement, including boarding and inspection proce-dures on the High Seas. Instead of amending the UNFSA as such, itwould be easier from a legal and political perspective to incorpo-rate detailed provisions on compliance control into the agree-ments that establish RFMOs, leading to fewer States Parties beinginvolved in the amendment process. Additionally, the rules ofprocedure of compliance control committees that have alreadybeen established under various RFMOs such as the “PermanentCommittee on Control and Enforcement” (PECCOE) or the “Stand-ing Committee on International Control” (STACTIC) could bechanged or amended in order to establish more detailed compli-ance control procedures under RFMOs.

5.2. Reform of the ICRW

The case study of the ICRW has revealed the overall lack ofdetailed provisions on compliance control procedures in thecurrent legal regime governing international whaling. In order toenhance these procedures, the main approach would be similar tothe UNFSA and RFMOs and comprises amendment procedures inorder to incorporate new provisions into the ICRW or into theSchedule.

The IWC has the competence to amend the Schedule to theICRW. A proposed amendment must be adopted by a three-quartermajority of the members of the IWC (Article III (2) ICRW). Theamendment to the Schedule becomes effective for all State Partiesninety days after notification of the adoption by the IWC, exceptin situations where a State Party objects to the amendment(Article V (3) ICRW). However, amendments of the Schedule tothe ICRW are restricted to a certain type of regulation as set out byArticle 5 (1) ICRW and include regulations on protected whalespecies, whaling seasons, size limits, the designation of sanctu-aries, catch limits or the establishment of a moratorium forcommercial whaling. Specifications of reporting duties and theestablishment of compliance control procedures do not relate tothe field of regulation mentioned in Article 5 (1) ICRW.

Therefore, a revision of the Convention text is required insteadof an amendment to the Schedule. The ICRW does not contain anyprovisions for modifications of the text of the ICRW itself.Amendments must consequently be adopted in the same way inwhich the Convention was originally adopted, namely by

D. Englender et al. / Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎ 7

Please cite this article as: Englender D, et al. Cooperation and compliance control in areas beyond national jurisdiction. Mar. Policy(2013), http://dx.doi.org/10.1016/j.marpol.2013.11.022i

consensus of the States Parties involved. Any amendment adoptedbecomes effective when the procedures laid down in Article XICRW are fulfilled. Similar to the UNFSA, any amendment of theICRW depends on the political will of the States Parties. Currently,the IWC is deadlocked due to the opposing positions of the StatesParties about the purpose of the ICRW.

The main issues arose from a different understanding of theaim of the Convention [40,41]. Thus, any substantial revision of theICRW is not likely to happen in the nearer future. The sameconclusion applies to the adoption of the “Revised ManagementScheme” which contains an inspection and observation schemeand comprehensive provisions on compliance control procedures.In the case of the ICRW, any developments with regard tocompliance control procedures depend therefore on the future ofthe ICRW as such and the ability of the States Parties to reach anagreement on the current controversial issues and adopt decisionsto reform the legal regime of the ICRW and the IWC.

6. Conclusion

As stated in the introduction, international efforts to regulate ABNJare important in order to establish a comprehensive system ofgovernance. However, it should be kept in mind that the conclusionof an agreement is merely the first hurdle and continuous complianceby States with their obligations is required in order to enable effectivehigh seas governance. While ensuring compliance in international lawremains a challenging issue, the incorporation of comprehensivecompliance control systems into multilateral agreements regulatingABNJ is a promising approach to enhance compliance by States. Basedon strong cooperation among States Parties, the continuous mutualcontrol of the state of compliance informs States Parties of the currentsituation in regard to a concluded agreement. The cooperative supplyof information promotes trust among States Parties and providescommon ground to enhance compliance. Multilateral agreementsgoverning the High Seas are typically concluded to regulate a certainfield of interest for the following decades. Since both circumstancesand the interests of States will change during this time, continuouscooperation is required in order to appropriately manage suchdevelopments. A common investigation and understanding of anyproblems with and reasons for non-compliance enhances the possi-bility for cooperative measures. Procedures which acknowledge dif-ferent circumstances are therefore preferable to schematic solutions.Accordingly, tailor-made solutions ought to be developed related tothe level and gravity of non-compliance, the factual circumstances andthe State's administrative, financial and technical options. Assumingthat the process of implementation of certain measures is complexand long-lasting, the continuous monitoring and aid by other Statesmay be seen as supportive. Therefore, adoption of measures inresponse ought not to be the last element in the compliance controlprocedural framework, but should rather be followed by continuouscompliance assistance. As stated by Beyerlin andMaurahn, compliancecontrol systems “respond to deficient compliance not by addressingthe symptoms but by removing the causes [8].”

As an additional element, it is suggested that emphasis ondispute settlement should also accompany such compliance con-trol measures. Although the obligation on States to settle theirdisputes by peaceful means is not necessarily part of compliancecontrol procedures, it is an aspect associated with compliancecontrol measures. Frequent, continuous cooperation can lead to anincreasing number of conflicts. Dispute settlement provisions arehelpful in conflicts over the implementation and application ofsubstantive law arising from agreements. Clearly defined provi-sions on procedural requirements in disputes facilitate legalcertainty and increase compliance with substantive law. The moredetailed these provisions, and the closer to the subject matter

dispute settlement is conducted within a competent organization,the greater the likelihood that a prompt and adequate solution tothe dispute will be reached.

At the same time, it needs to be kept in mind that, in practice,the incorporation of compliance control measures into existingagreements regulating ABNJ is a challenging task. As the two casestudies have demonstrated, fostering compliance control proce-dures in existing structures and agreements is aggravated by theexistence of legal and political barriers. Amending existing agree-ments to include or foster compliance control provisions is apotentially difficult undertaking due to prevailing issues andconflicts in other material matters that are not necessarily relatedto compliance control requirements (e.g. ICRW). Amending theseagreements would necessitate lengthy negotiations that couldtake several years and not necessarily result in the incorporationof pertinent provisions. Furthermore, changing the material scopeof existing agreements could potentially lead to changes thatreflect only the lowest common denominator among all States.Consequently, including compliance control provisions in initialdrafts of new agreements that address ABNJ should be seen asadvantageous in ensuring their subsequent incorporation. How-ever, in the end, although the incorporation of an institutionalizedcooperation system can promote compliance, its success willultimately depend on the political will of States.

Acknowledgments

We would like to thank Prof. Dr. Alexander Proelss, KateHoughton, Amber Rose Maggio and Killian O’Brien for their helpfulcomments. Jenny Kirschey, Aleke Stöfen and Andreas Zink aremembers of the interdisciplinary graduate school “Cooperation ofScience and Jurisprudence in Improving Development and Use ofStandards for Environmental Protection – Strategies for RiskAssessment and Management” funded by the German ResearchFoundation (DFG) at the University of Trier.

References

[1] Kiss A. Reporting obligations and assessment of reports. In: Beyerlin U, Stoll P,Wolfrum R, editors. Ensuring compliance with multilateral environmentalagreements: academic analysis and views from practice. Leiden/Bosten:Martinus Nijhoff Publishers; 2006. p. 229–46.

[2] United Nations convention on the law of the sea, entered into force 16thNovember 1994, 1833 UNTS 3; 21 ILM 1261; 1982.

[3] Rayfuse RG. Non-flag state enforcement in high seas fisheries. Leiden:Martinus Nijhoff; 2004.

[4] The black and grey lists of the Paris memorandum of understanding, ⟨https://www.parismou.org/Publications/Annual_report/⟩ [accessed 31.10.13].

[5] The black and grey lists of the Tokyo memorandum of understanding, ⟨http://www.tokyo-mou.org/publications/annual_report.php⟩ [accessed 31.10.13].

[6] Koenig D. Flags of convenience in Max Planck Encyclopedia of Public Interna-tional Law (EPIL), ⟨http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1167?rskey=gAej4P&result=1&q=flags of convenience&prd=EPIL⟩; 2008 [accessed 31.10.13].

[7] Mansell J. Flag state responsibility, historical development and contemporaryissues. Heidelberg: Springer Verlag; 2009.

[8] Beyerlin U, Marauhn T. International environmental law. Oxford: Hart Publish-ing; 2011.

[9] Churchill R. The persisting problem of non-compliance with the law of the seaconvention: disorder in the oceans. In: Freestone D, editor. The 1982 law of thesea convention at 30: successes, challenges and new agendas. Boston:Martinus Nijhoff Publishers; 2012. p. 139–46.

[10] United Nations agreement for the implementation of the provisions of theUnited Nations convention on the law of the sea of 10 December 1982 relatingto the conservation and management of straddling fish stocks and highlymigratory fish stocks, entered into force 11th December 2001, 34 ILM 1542;1995. 2167 UNTS 88.

[11] International Convention for the Regulation of Whaling, entered into force10th November 1948, 62 Stat. 1716. 161 UNTS 72.

[12] Fitzmaurice M. Environmental Compliance Control in Max Planck Encyclope-dia of Public International Law (EPIL), ⟨http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1577?rskey=AynP66&result=2&q=Compliance&prd=EPIL⟩; 2010 [accessed 31.10.13].

D. Englender et al. / Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎8

Please cite this article as: Englender D, et al. Cooperation and compliance control in areas beyond national jurisdiction. Mar. Policy(2013), http://dx.doi.org/10.1016/j.marpol.2013.11.022i

[13] The Agenda 21: programme of action for sustainable development, U.N.GAOR, 46th Sess., Agenda Item 21, UN Doc A/Conf.151/26, ⟨http://www.unep.org/Documents.Multilingual/Default.asp?documentid=52⟩; 1992[accessed 31.10.13].

[14] Tanaka Y. The international law of the sea. Cambridge: Cambridge UniversityPress; 2012.

[15] Guidelines on compliance with and enforcement of multilateral environmen-tal agreements, ⟨http://www.unep.org/delc/Portals/119/UNEP.Guidelines.on.Compliance.MEA.pdf⟩ [accessed 31.10.13].

[16] Beyerlin U, Stoll P, Wolfrum R. Conclusions drawn from the conference onensuring compliance with MEAs. In: Beyerlin U, Stoll P, Wolfrum R, editors.Ensuring compliance with multilateral environmental agreements: academicanalysis and views from practice. Leiden/Bosten: Martinus Nijhoff Publishers;2006. p. 359–69.

[17] Chayes A, Chayes AH. The new sovereignty: compliance with internationalregulatory agreements. Cambridge, MA: Harvard University Press; 1995.

[18] Montreal protocol on substances that deplete the ozone layer, entered intoforce 1st January 1989, 1522 UNTS 3; 26 ILM 1550; 1987.

[19] Kyoto protocol to the United Nations framework convention on climatechange, entered into force 16th February 2005, UN Doc FCCC/CP/1997/7/Add.1, Dec. 10, 1997; 37 ILM 22; 1998.

[20] Maurahn T. Towards a Procedural law of compliance control in internationalenvironmental relations. Heidelb J Int Law 1996;56:696–731.

[21] De Chazournes L. Technical and financial assistance and compliance: theinterplay. In: Beyerlin U, Stoll P, Wolfrum R, editors. Ensuring compliance withmultilateral environmental agreements: academic analysis and views frompractice. Leiden/Bosten: Martinus Nijhoff Publishers; 2006. p. 273–300.

[22] Shaw MN. International law. 6th ed.. Cambridge: Cambridge Press; 2008.[23] Forteau M. Regional co-operation in Max Planck Encyclopedia of Public

International Law (EPIL), ⟨http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e671?rskey=8duCbf&result=2&q=cooperation&prd=EPIL⟩; 2007 [accessed 31.10.13].

[24] Wolfrum R. International law of cooperation in Max Planck Encyclopedia ofPublic International Law (EPIL); A (2), ⟨http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1427?rskey=cFvmFg&result=1&q=duty to cooperate&prd=EPIL⟩; 2010 [accessed31.10.13].

[25] Beyerlin U, Grote Stoutenburg J. Environment, international protection inMax Planck Encyclopedia of Public International Law (EPIL), ⟨http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1575?rskey=5GteDC&result=2&q=environment&prd=EPIL⟩; 2010 [accessed 31.10.13].

[26] Treves T. The law of the sea in Max Planck Encyclopedia of Public InternationalLaw (EPIL), ⟨http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1186?rskey=6oanWX&result=1&q=law%20of%20the%20sea&prd=EPIL⟩; 2011 [accessed 31.10.13].

[27] Koenig D. Marine Environment, International Protection in Max PlanckEncyclopedia of Public International Law (EPIL), ⟨http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1594?rskey=hhqhlC&result=1&q=marine%20protection&prd=EPIL⟩; 2011 [accessed31.10.13].

[28] Hayashi M. The 1995 agreement on the conservation and management ofstraddling and highly migratory fish stocks: significance for the Law of the SeaConvention. Ocean Coast Manag 1995;29(1–3):51–69.

[29] Lodge MW, Nandan SN. Some suggestions towards better implementation ofthe United Nations agreement on straddling fish stocks and highly migratoryfish stocks of 1995. Int J Mar Coast Law 2005;20(3–4):345–79.

[30] Rayfuse RG. Strengthening the law of the sea: the new agreement onstraddling fish stocks and highly migratory fish stocks. Neth Int Law Rev2004;51(1):41–76.

[31] Edeson W. Fisheries data and the law of the sea convention. In: Freestone D,editor. The 1982 law of the sea convention at 30: successes. Challenges andNew Agendas. Boston: Martinus Nijhoff Publishers; 2012. p. 147–55.

[32] NEAFC. PECCOE terms of reference, ⟨http://www.neafc.org/system/files/peccoe_termsof_reference.pdf⟩ [accessed 31.10.13].

[33] NAFO. Standing committee on international control, ⟨http://nafo.int/about/frames/about.html⟩ [accessed 31.10.13].

[34] Rayfuse RG. To our children's children's children: from promoting to achievingcompliance in high seas fisheries. Int J Mar Coast Law 2005;20(3–4):509–32.

[35] NEAFC. List of conservation measures under NEAFC, ⟨http://www.neafc.org/measures⟩ [accessed 31.10.13].

[36] NAFO. Documents of the NAFO commission, ⟨http://nafo.int/fisheries/frames/fishery.html⟩ [accessed 31.10.13].

[37] Balton DA. Strengthening the law of the sea: the new agreement on straddlingfish stocks and highly migratory fish stocks. Ocean Dev Int Law 1996;27(1–2):125–51.

[38] Sands P, Peel J, editors. Principles of international environmental law. 3rd ed..Cambridge: Cambridge University Press; 2012.

[39] Birnie P, Boyle A, Redgwell C. International law & the environment. 3rd ed..Oxford: Oxford University Press; 2009.

[40] Braig J. Whaling in Max Planck Encyclopedia of Public International Law(EPIL), ⟨http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1236?rskey=cIKBdp&result=1&q=whaling&prd=EPIL⟩; 2009 [accessed 31.10.13].

[41] Proelss A. Marine mammals in Max Planck Encyclopedia of Public Inter-national Law (EPIL), ⟨http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1189?rskey=y7QA7d&result=1&q=proel%C3%9F&prd=EPIL⟩; 2007 [accessed 31.10.13].

[42] IWC. General information, ⟨http://iwc.int/iwcmain⟩ [accessed 31.10.13].[43] IWC. The revised management procedure and the revised management

schedule, ⟨http://iwc.int/rmp⟩ [accessed 31.10.13].[44] Bowman M, Davies P, Regdwell C, editors. Lyster's international wildlife law.

Cambridge: Cambridge University Press; 2010.[45] IWC. Report of the infractions sub-committee of 2012, ⟨http://iwc.int/

cache/downloads/3aouz5nplyqs08oo88wcks8c8/64-Rep4rev1.pdf⟩[accessed 31.10.13].

[46] ICJ. Whaling in the Antarctic, Australia v. Japan: New Zealand intervening.Application instituting proceedings filed in the registry of the court on 31 May2010, ⟨http://www.icj-cij.org/docket/files/148/15951.pdf⟩ [accessed 26.11.13].

[47] United Nations general assembly. Report of the resumed review conference onUNFSA, A/CONF.210/2010/7; 27 July 2010.

D. Englender et al. / Marine Policy ∎ (∎∎∎∎) ∎∎∎–∎∎∎ 9

Please cite this article as: Englender D, et al. Cooperation and compliance control in areas beyond national jurisdiction. Mar. Policy(2013), http://dx.doi.org/10.1016/j.marpol.2013.11.022i