Fisheries Conservation in an Anarchical System: A Comparison of Rational Choice and Constructivist Perspectives JAYE ELLIS INTRODUCTION Environmental protection and resource conservation and management in areas beyond state jurisdiction pose particularly difficult problems for international law. While it is theoretically possible to create a comprehensive web of law and policy applicable to the high seas, this requires a degree of cooperation among international actors that has thus far proven elusive. More difficult still is implementation and enforcement of legal rules on the high seas. Significant efforts are being made to develop international law and policy for the conservation and management of high seas fisheries resources, yet despite the collapse of a number of high seas fisheries and widespread acknowledgement that the long-term sustainability of these resources is in serious jeopardy,1 international regulatory efforts remain inadequate. The anarchical structure of international society and the resulting decentralised nature of international law are often viewed as serious obstacles to accomplishing goals such as sustainable high seas fisheries, but these are fundamental features of the landscape to which we must adapt.. Recent developments in high seas fisheries law indicate that such adaptations are possible. In this paper, I will explore international law’s response to illegal, unreported and unregulated (IUU) fishing on the high seas, paying particular attention to non-flag state enforcement of regional and international fisheries law. Current developments in high seas fisheries law involve the placing of limits on two venerable principles of the law of the sea, namely the freedom of states to fish on the high seas,2 and the jurisdiction of flag states over their vessels which, while not exclusive, suffers few exceptions.3 These two principles contribute to the structure of high seas fisheries as an open-access common property resource (open-access CPR), a category of resources which are notoriously difficult to conserve and manage. Certain states, along with international organisations such as the United Nations Food and Agricultural Organization (FAO), have introduced a number of innovations into high seas fisheries  Faculty of Law and School of Environment, McGill University. The author wishes to thank Elizabeth DeSombre, Ted L. McDorman, Benjamin Moss, Anthony Parr and the anonymous reviewers for their comments and suggestions, and Benjamin Moss and Anthony Parr for assistance with research and editing. The financial assistance of the Social Sciences and Humanities Research Council and the Fonds québécois de la recherche sur la société et la culture is also gratefully acknowledged. 1 See infra at 3. 2 See discussion infra at 6. 3 See discussion infra at 9. 2 Journal of International Law and International Relations Vol. 3(2) law that have the effect of gradually altering the open-access CPR structure of high seas fisheries, moving this resource closer to the category of club goods, which implies limitations on access to resources to members of a ‘club.’4 Elizabeth DeSombre describes the advantages presented by the club goods structure as follows: The main advantage that club goods have over public goods or common-pool resources for the creation of cooperative agreements is the element of exclusion. It is the possibility of free riding – actors gaining the benefits of an agreement without fully participating – that is seen as the main cause of the underprovision of collective goods. Club goods, by allowing those who do not cooperate to be kept from the benefits of the cooperative arrangement, increase the likelihood that those who would benefit from access to the advantages of the club can be persuaded to join the cooperative effort.5 In the case of high seas fisheries, attempts have been made to restrict access to fisheries to the vessels of states that are either members of the regional fisheries management organisation (RFMO) responsible for governance or that cooperate with the relevant RFMO and respect its rules.6 Members of RFMOs are bound by a series of rules and measures, both substantive and procedural, aimed at conservation and management of fish stocks and at implementation of and compliance with those rules and measures. As we will see, many states and regional organisations are experimenting with various ways of imposing penalties and disincentives on states and fishing vessels that choose to remain outside these clubs. In this article, the shift from open-access CPR to club good is analysed from the perspective of two very different theoretical frameworks: constructivism and rational choice. Constructivists consider legal rules and systems to be constituted by shared understandings developed through iterative processes of interaction. Legal rules are not regarded as commands backed by sanctions, but rather as crystallisations of shared understandings that affect the way in which actors perceive a problem, the range of possible solutions, and their own interests and priorities.7 Rational choice, on 4 See Elizabeth DeSombre, “Fishing under Flags of Convenience: Using Market Power to Increase Participation in International Regulation” (2005) 5 Global Environmental Politics 73 at 88 ff.; DeSombre, Flagging Standards: Globalization and Environmental, Safety, and Labor Regulations at Sea (Cambridge, Mass.: MIT Press, 2006), Chapter 3. 5 DeSombre, Flagging Standards, ibid. at 60. 6 Agreement for the Implementation of the Provisions of the Convention relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. 4 December 1995, 34 I.L.M. 1542, entered into force 2001 [FSA], art. 17. 7 Among the most influential constructivist works in international law and international relations are Jutta Brunnée & Stephen Toope, “International Law and Constructivism: Elements of an Interactional Theory of International Law” (2000) 39 Columbia Journal of Transnational Law 19; John Gerard Ruggie, “‘What Makes the World Hang Together?’ Neo-Utilitarianism and the Social Constructivist Challenge” (1998) 52 International Organization 855; John R. Searle, The Construction of Social Reality (New York: Free Press, 1995); Nicholas Greenwood Onuf, World of Our Making: Rules and Rule in Social Theory and International Relations (Columbia, S.C.: Fisheries Conservation in an Anarchical System 3 the other hand, begins with the assumption that actors’ behaviour can be understood in light of their preferences;8 changes in behaviour can be brought about through changes to incentives structures.9 In this paper I will move back and forth between constructivism and rational choice, considering the respective contributions of each to a better understanding of high seas fisheries and attempts to govern exploitation of this resource. I will at the same time consider how each theoretical approach can respond to the challenges put to it by the other. HIGH SEAS FISHERIES –PROBLEMS OF GOVERNANCE IUU fishing and its impact Overexploitation of high seas fisheries is an immense and growing problem. The FAO estimates that in 2005, as in recent years, around one-quarter of the stock groups monitored by FAO were underexploited or moderately exploited and could perhaps produce more, whereas about half of the stocks were fully exploited and therefore producing catches that were at, or close to, their maximum sustainable limits, with no room for further expansion. The remaining stocks were either overexploited, depleted or recovering from depletion and thus were yielding less than their maximum potential owing to excess fishing pressure.10 A recent study concludes that collapse of fisheries is accelerating, and “projects the global collapse of all taxa currently fished by the mid–21st century.”11 The economic value of fisheries is enormous, with total world trade in fish and fisheries products University of South Carolina Press, 1989); Nicholas Greenwood Onuf, "Constructivism: A User's Manual" in Vendulka Kubàlkovà, Nicholas Onuf & Paul Kowert eds., International Relations in a Constructed World (Armonk, N.Y.: Sharpe, 1998) at 58. 8 For particularly pithy, accessible and informative sources on the debates between constructivists and rational choice theorists, see James Fearon et al., “Rationalism v. Constructivism: A Skeptical View” in Handbook of International Relations (London: Sage, 2002) at 52 ; Duncan Snidal et al., “Rational Choice and International Relations” in Handbook of International Relations (London: Sage, 2002) at 73; Emanuel Adler et al., “Constructivism and International Relations” in Handbook of International Relations (London: Sage, 2002) at 95. 9 George W. Downs, David M. Rocke & Peter N. Barsoom, “Is the Good News about Compliance Good News about Cooperation?” (1996) 50 International Organization 379; George W. Downs, “Enforcement and the Evolution of Cooperation” (1998) 19 Michigan Journal of International Law 319; George W. Downs, Kyle W. Danish & Peter N. Barsoom, “The Transformational Model of International Regime Design: Triumph of Hope or Experience?” (2000) 38 Columbia Journal of Transnational Law 465; George W. Downs & Michael A. Jones, “Reputation, Compliance, and International Law” (2002) 31 Journal of Legal Studies S95. 10 Food and Agricultural Organization of the United Nations, “World Review of Fisheries and Aquaculture” in The State of World Fisheries and Aquaculture 2006 (Rome, 2007) at 7. 11 Boris Worm et al., “Impacts of Biodiversity Loss on Ocean Ecosystem Services” (2006) 314 Science 787 at 788, 790. 4 Journal of International Law and International Relations Vol. 3(2) reaching an export value of US$71.5 billion in 2004, which represents a 17.3% increase during the period 2000-04.12 The impact of IUU fishing on fish populations, and on the ability of interested states to manage those fisheries, can be devastating. In the Southern Ocean, it is estimated that IUU fishing for Dissostichus spp., better known as Patagonian toothfish or Chilean sea bass, reached 3,080 tonnes in the 2005-6 season, while the total allowable catch for the same period was 4,566 tonnes.13 Another fishery greatly affected by IUU fishing is the Mediterranean tuna fishery, with IUU fishing accounting for over 50% of the catch.14 A large and growing network of conventions, codes of conduct and plans of action exists to manage high seas fishing,15 but these efforts risk being compromised or even undermined by fishing in violation of applicable rules or by vessels flagged to states that are not parties to the relevant conventions, which are different aspects of the phenomenon of IUU fishing. High seas fisheries as an open-access CPR Mention has already been made of the challenges for resource conservation and management posed by the open-access CPR structure of high seas fisheries. Open- access CPRs are defined in light of two criteria: they are rival, meaning that harvesting of a resource by one actor leaves less of that resource for other actors; and they are non-excludable, meaning that anyone who wants to exploit these resources may do so.16 12 “World Review of Fisheries”, supra note 10 at 7. 13 Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), Conservation Measures 41-02, -03 and -04 (2005). 14 Marine Resource Assessment Group Ltd., IUU Fishing on the High Seas: Impacts on Ecosystems and Future Science Needs – Final Report (London, 2005) at 14. 15 The central instruments are the FSA, supra note 6; the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas [Compliance Agreement], 29 November 1993, entered into force 24 April 2003; and two non- binding instruments, the United Nations Food and Agricultural Organization (FAO), International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing [International Plan of Action], 2 March 2001, available online at <http://www.fao.org/DOCREP/003/y1224e/ y1224e00.HTM> (consulted 23 April 2007) and the FAO Code of Conduct for Responsible Fisheries (Rome, 1995). 16 J. Samuel Barkin and George E. Shambaugh, “Hypotheses on the International Politics of Common Pool Resources” in Barkin and Shambaugh, eds., Anarchy and the Environment: The International Relations of Common Pool Resources (Albany: State University of New York Press, 1999) 1 at 3 ff; DeSombre, Flagging Standards, supra note 4 at 56 ff. Fisheries Conservation in an Anarchical System 5 Table 1: Types of goods Excludable Yes No Private goods (e.g.: a Common pool resources Rival Yes fishing vessel) (e.g.: high seas fisheries) Club goods (e.g.: a toll Public goods (e.g.: public No highway) radio) (Adapted from DeSombre, Flagging Standards at 57) High seas fisheries resources are constructed as open-access CPRs in part because of geographic and physical features of the resources: their scarcity, their mobility, their location at some distance from land, etc. But the legal regime applicable to the oceans, and to fisheries resources more particularly, also plays a vital role in the way we understand this resource. This legal regime is shaped, first and foremost, by the decentralised structure of international law, and second by three fundamental principles within the law of the sea: the rule against pacta tertiis, or treaties binding third parties;17 freedom of the high seas, including freedom to fish;18 and flag state jurisdiction.19 None of these principles is absolute and, as I will seek to demonstrate, important limitations on the last two principles are gradually gaining acceptance. Excludability refers to the possibility of limiting access to the resource to certain actors. Because fish move back and forth across the jurisdictional boundaries that are created for the regulation of ocean spaces, they are non-excludable by nature. This remains true regardless of where boundaries are fixed; indeed, it would be the case even if all ocean spaces were under state jurisdiction. Nevertheless, jurisdictional rules create important distinctions among ocean fisheries, the most important being that between the jurisdictional waters of states (internal waters, the territorial sea, and the exclusive economic zone (EEZ)) and the high seas. From the international point of view, fisheries resources in jurisdictional waters may be roughly assimilated to private 17 This is a fundamental principle of international law, flowing from the sovereignty of states. It has been codified in the Vienna Convention on the Law of Treaties, 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331, 21 I.L.M. 1261 (1982), at art. 34. See Eric Franckx, “Pacta Tertiis and the Agreement for the Implementation of the Straddling and Highly Migratory Fish Stocks Provisions of the United Nations Convention on the Law of the Sea” (2000) 8 Tulane Journal of International and Comparative Law 49. 18United Nations Convention on the Law of the Sea, 10 December 1982, entered into force 16 November 1994, 1833 U.N.T.S. 3, 21 I.L.M. 126 [LOSC], art. 87(e). 19Ibid. at art. 92. 6 Journal of International Law and International Relations Vol. 3(2) property20 exclusive to coastal states, which may authorize the vessels of other states to exploit this resource but to which no right of access by such vessels obtains.21 High seas fisheries, on the other hand, are subject to the high seas freedom to fish.22 Public international law describes the high seas as res communis: no state can assert jurisdiction over these areas, and no state can be excluded from them, so access to this area and its resources is open to the vessels of all states.23 States are bound, through customary and conventional law, to respect certain conditions in exercising high seas freedoms,24 but they have access and exploitation rights. One of the main features of international law as a decentralised system is that rules must be adopted through horizontal processes. In the absence of a central legislator with the authority to impose rules, states must consent to be bound; hence the rule against pacta tertiis. This rule must be qualified in various ways. First, while states may be formally free to consent or not to be bound by rules of international law, there are myriad forces – political, economic, social – that operate to constrain that choice. One of the objectives of certain recent developments in the law of high seas fisheries is to place pressure on states to cooperate with international regimes for conservation and management. Second, rules of customary international law are generally applicable. As a result, customary law forms a vital backdrop against which the various global, regional and bilateral conventions adopted by states are arrayed. Freedom of the high seas is one of the most venerable principles of international law,25 and the strength of this principle is reinforced by the vastness and inhospitability of ocean spaces and the practical difficulties of exercising authority on the high seas. Freedom to fish, one of the high seas freedoms, is the starting premise in any discussion about obligations to conserve and manage resources or to preserve 20 However, when looked at from the point of view of municipal law and policy, this analogy does not hold. 21 Coastal states are authorized to establish the total allowable catch (TAC) of fish stocks in the exclusive economic zone (EEZ): LOSC, supra note 18, art. 61(1). They are also authorized to grant access by other states, through agreement, to that portion of the catch not exploited by the coastal state (ibid. at art. 62(2)). The TAC is to be established in light of criteria set out in art. 61 (2) and (3), which are oriented toward conservation of the resources, but art. 62(1) obligates coastal states to “promote the objective of optimum utilisation” of those resources. It is doubtful that these provisions could be interpreted to establish a lower limit for the TAC. The discretion of the coastal state is wide, and exercises of this discretion that favour conservation over exploitation would be easily justified on the basis of the relevant provisions. Furthermore, no other state would be able to claim a right to access of any surplus. This interpretation is supported by LOSC at art. 297(3)(a), which exempts from compulsory dispute settlement disputes arising out of the “discretionary powers [of the coastal state] for determining allowable catch, its harvesting capacity, [or] the allocation of surpluses to other States … .” 22Ibid. atart. 87 particularly para. (e). 23Ibid. 24 See discussion infra at 7. 25 R.R. Churchill and A.V. Lowe describe this principle as “a cornerstone of modern international law:” The Law of the Sea, 3rd ed. (Manchester: Manchester University Press, 1999) at 204. Fisheries Conservation in an Anarchical System 7 ecosystems. High seas freedoms have never been without limits, the most basic coming from the obligation to respect the exercise by other states of their rights in these spaces. More specific and often very detailed rules have been adopted to impose a range of constraints on the exercise of all high seas freedoms; of particular relevance in the fisheries context are customary and conventional obligations to preserve the marine environment, to adopt and implement conservation and management measures for fisheries exploitation, and to cooperate with other states and relevant international organisations in the furtherance of both these goals.26 Because open-access CPRs are so difficult to govern, the question arises whether it is possible to modify the structure of the high seas fisheries regime such that it is no longer an open-access good. Because the structure of the regime flows from the three principles of pacta tertiis, high seas freedom and flag state jurisdiction, which are themselves solidly anchored in international law, this seems at first glance to be a nearly impossible task. Nevertheless, current developments in international fisheries law do seem to be moving in this direction, in modest but nevertheless potentially significant ways. Innovations in global and regional fisheries conventions are being made that build on and add to existing qualifications and exceptions to the principles of high seas freedom and flag state jurisdiction. The rule against pacta tertiis has not been squarely addressed, but reliance is being placed on customary rules, applicable to all states, in order to make it more difficult for states and vessels to avoid altogether the impact of these innovations. While it is not possible to complain of a violation of a conventional rule if the state responsible is not a party to that convention, it is possible to point to more general customary obligations to adopt conservation and management measures and to cooperate in the adoption and implementation of such measures. In this way, the pacta tertiis rule is not offended, but no state can be treated as standing altogether outside the international regime for high seas fisheries. States have adopted a large number of rules at the international and regional level to limit their high seas freedoms. The most basic limitation on the exercise of high seas freedoms is found in the need to respect the exercise of these freedoms by other states.27 Beyond these basic obligations are more specific obligations geared towards the protection of the fisheries resource. The 1982 United Nations Convention on the Law of the Sea (LOSC) requires states to adopt conservation measures 26 See discussion infra at 7. 27 LOSC, supra note 18, art. 87(2). This obligation also appears in one of the predecessor agreements to the LOSC, the Geneva Convention on the High Seas. 29 April 1958, 450 U.N.T.S. 82, art. 2 [High Seas Convention], entered into force 30 September 1962. The High Seas Convention attracted 62 ratifications, but it has been superseded by LOSC, except with respect to those parties to the former that are not parties to the latter. As Francisco Orrego Vicuña argues, “it would be wrong to state that customary law provides for the unrestricted freedom of fishing in the high seas. It provides for freedom indeed, but subjecting its exercise to other controlling principles that have also been received in the corpus juris of customary international law:” Francisco Orrego Vicuña, The Changing International Law of High Seas Fisheries (Cambridge: Cambridge University Press, 1999) at 14. This corpus includes such customary principles as the requirement “to act with reasonable regard for the rights of others”, abuse of rights, and equity, ibid. at 13. 8 Journal of International Law and International Relations Vol. 3(2) applicable to their vessels on the high seas28 and to cooperate with other states whose vessels fish the same stocks with a view to adopting conservation measures.29 Under the now largely defunct Geneva Fishing Convention, coastal states were granted considerable influence over high seas conservation measures. Of particular relevance to the phenomenon of IUU fishing is the authorisation given to coastal states to adopt conservation measures applicable to high seas areas adjacent to their territorial seas,30 where coastal states were deemed to have “a special interest in the maintenance of the productivity of the living resources.”31 This preference for coastal states all but disappears in the LOSC,32 although this must be balanced against an important gain for coastal states under the LOSC, namely the entrenchment of the EEZ.33 Many coastal states were not satisfied with the creation of the EEZ, and sought, following the conclusion of the LOSC, for more extensive rights in high seas areas adjacent to their EEZ. These efforts culminated in the adoption of the Fish Stocks Agreement (FSA)34 in 1995, but this agreement does not go nearly as far as the Geneva Fishing Convention. 28LOSC, supra note 18, art. 117. 29Ibid. at art. 118. Similar obligations were found in one of the predecessor convention to the Law of the Sea Convention, the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas [Fishing Convention], 29 April 1958, 559 U.N.T.S. 285, entered into force 20 March 1966, at arts 3 and 4. The Fishing Convention attracted only 37 ratifications and has been superseded by the LOSC, except with respect to those parties to the former which are not parties to the latter. Duties of cooperation are also firmly anchored in customary international law, both with respect to high seas fisheries law and more generally: see Stuart M. Kaye, International Fisheries Management (The Hague: Kluwer, 2001) at 111 ff. 30Fishing Convention, ibid. at art. 7. Certain conditions apply: there must be an urgent need for these measures “in the light of the existing knowledge of the fishery” and the measures must be justified on a scientific basis; furthermore, they may not discriminate against foreign fishers. In case of a dispute, these measures remain in force pending resolution pursuant to art. 9. 31Fishing Convention, ibid. at art. 6(1). See Kaye, supra note 29 at 71-2. 32 See Daniel Vignes, Guiseppe Cataldi and Rafael Casado Raigon, Le droit international de la pêche maritime (Brussels: Bruylant, 2000) at 129. The LOSC, supra note 18,art. 116, does subject the rights of states to participate in high seas fisheries to the rights, duties and interests of coastal states, but this provision is ambiguous. These rights, duties and interests are described as being “provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67,” but these articles provide for cooperation between coastal and fishing states and do not recognise special rights or interests of coastal states in stocks adjacent to their EEZ. This series of articles thus gives rise to important ambiguities and interpretive difficulties: see Vignes, Cataldi and Casado Raigon, ibid. at 129-31; Francisco Orrego Vicuña, “The International Law of High Seas Fisheries: From Freedom of Fishing to Sustainable Use” in Olav Schram Stokke, ed., Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (Oxford: Oxford University Press, 2001) 23 at 28; Kaye, supra note 29 at 159-62. 33 The EEZ is defined at LOSC, supra note 18, arts 55-57. The coastal state is granted by art. 56(1)(a) “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed… :” ibid. at art. 56(1)(a). 34FSA, supra note 6. Fisheries Conservation in an Anarchical System 9 Article 7 of the FSA simply provides that measures adopted by the coastal state for its EEZ must be taken into account in negotiations between coastal and fishing states for the establishment of conservation measures for the high seas.35 Finally, the principle of flag state jurisdiction over vessels on the high seas holds that, as a general rule, only the state to which a vessel is flagged is entitled to exercise jurisdiction over that vessel on the high seas or with respect to activities taking place on the high seas.36 Because states have no territorial sovereignty on the high seas, their jurisdiction over their ships in these spaces depends on the link of nationality between the state and the vessel. In certain limited circumstances, states may also have jurisdiction over events beyond their jurisdictional waters that have an impact on their territory,37 and in an even more limited category of cases all states are entitled to exercise jurisdiction.38 When we consider the way in which jurisdiction is exercised on the high seas, we are immediately confronted with one of the most 35 Art. 7 of the FSA, ibid., refers to the duty on the part of fishing and coastal states to negotiate conservation measures applicable to straddling stocks. Among the factors to be taken into account in these negotiations are conservation measures adopted by the coastal state (ibid. at para. 7(2)(a)) and by the relevant RFMO (ibid. at para. 7(2)(b)). Furthermore, conservation measures adopted through negotiations cannot “undermine the effectiveness” of coastal state measures (ibid. at para. 7(2)(a)). 36LOSC, supra note 18, arts 91 and 92. Jurisdiction over vessels used to be based on an analogy between a vessel and state territory. Therefore, flag state jurisdiction was simply an extension of exclusive state jurisdiction over territory: Lotus Case (France v. Turkey), (1927), P.C.I.J (Ser. A) No. 9. This is no longer the case; jurisdiction is exercised by virtue of registry of a vessel, and the relevant conventional provisions make no reference to a territorial analogy: see Rosemary Gail Rayfuse, “Enforcement of High Seas Fisheries Agreements: Observation and Inspection under the Convention on the Conservation of Antarctic Marine Living Resources” (1998) 13 International Journal of Marine and Coastal Law 579; Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (Leiden: Martinus Nijhoff, 2004) at 21. 37 The most common and most well-recognised basis for the exercise of state jurisdiction is territorial. Thus, states have jurisdiction over acts that take place on their territory, in whole or in part, and may also claim jurisdiction over acts that have an impact on their territory. However, since the high seas are not subject to territorial jurisdiction, this basis of jurisdiction is less important here. Coastal states have long sought to argue that there is a territorial basis in their interest in fisheries resources in high seas areas adjacent to their territorial seas and EEZs. The notion that they have an interest in these fisheries was accepted in the 1958 Fishing Convention, supra note 29, arts 6 and 7, in the LOSC, supra note 18, arts 63 and 116, and in the FSA, supra note 6, arts 7 and 8, but none of these texts reflect the notion that this interest is linked to jurisdiction over territory. With respect to marine environmental damage, states may rely on a territorial basis for exercising jurisdiction over acts not occurring in their jurisdictional waters in two situations. First, port states are able to exercise jurisdiction over acts in the jurisdictional waters of other states if those acts cause or threaten environmental damage in the port state’s territorial waters: LOSC, supra note 18, at art. 218(2). Second, coastal states may intervene when a maritime casualty threatens pollution damage to “their coastline or related interests” (Ibid. at art. 221). 38This is known as the universal basis for jurisdiction. The classic example is piracy: see LOSC, ibid. atart. 105, which gives any state jurisdiction to seize a pirate ship. 10 Journal of International Law and International Relations Vol. 3(2) important obstacles to high seas fisheries conservation and management: the principle of exclusive flag state jurisdiction. The LOSC clear on this point: the power to prescribe and enforce rules on high seas fishing activities lies primarily with flag states, although this power is accompanied by a duty to exercise jurisdiction ‘effectively’39 and, furthermore, has certain exceptions.40 As David Balton points out, a high degree of deference to flag state jurisdiction may have seemed logical at a time when ships were regarded as floating portions of the territory of the states to which they were flagged, but this attitude is harder to understand in a time of beneficial ownership, reflagging and chartering: relationships between ships and states are increasingly complex and slippery.41 Balton notes that ‘[t]he international community, in stages, has begun to realise that a fishing vessel is just a fishing vessel – a construct of metal, wood, plastic and rope that is outfitted for fishing – rather than a floating piece of national territory.’42 Nevertheless, flag state jurisdiction is proving to be a highly resilient concept. The LOSC sets out some exceptions to this principle, but only in narrow and specific terms. The most well-established are the prohibitions on the slave trade43 and piracy.44 The LOSC adds 39LOSC, ibid. atart. 94. A similar provision is found in the High Seas Convention, supra note 27 at art 5. 40 Art. 92 of the LOSC, supra note 18, subjects vessels on the high seas to exclusive flag state jurisdiction, “save in exceptional cases expressly provided for in international treaties or in this Convention.” Virtually identical language appears at art. 6 of the High Seas Convention, supra note 27. See Churchill & Lowe, supra note 25 at 208 ff.; Rayfuse, Non-Flag State Enforcement, supra note 36 at 22. Rayfuse correctly states that we should speak of “‘primacy’ of flag state jurisdiction, the presumption being in favour of flag state jurisdiction unless a contrary rule applies:” ibid. 41 For discussions of the phenomenon of flags of convenience and its impact on the implementation of environmental labour, safety and other regulatory standards on the high seas, see DeSombre, “Fishing under Flags of Convenience,” supra note 4 at 88 ff.; DeSombre, “Flags of Convenience and the Enforcement of Environmental, Safety and Labor Regulations at Sea” (2000) 37 International Politics 213; DeSombre, Flagging Standards, supra note 4. 42 David Balton, “The Compliance Agreement” in Ellen Hey, ed., Developments in International Fisheries Law (The Hague: Kluwer, 1999), 31 at 32. 43LOSC, supra note 18, art. 99; High Seas Convention, supra note 27 at art. 13. No powers to arrest or prosecute slave ships are granted to ships flying the flag of another state. A right of visit is provided for, but is conferred only on warships and may be exercised only when there is “a reasonable ground for suspecting” that the ship is engaged in the slave trade, is a pirate ship, or is actually flagged to the same state as the visiting ship: LOSC, ibid. at art. 110; High Seas Convention, supra note 27 at art. 22. 44LOSC, ibid. at arts. 100-7; High Seas Convention, ibis., arts. 14-22. The warships of any state may seize a pirate ship on the high seas: LOSC, ibid. atart. 105; High Seas Convention, ibid. atart. 19.