Conservation issues in coastal waters: state sovereignty,
indigenous peoples and international obligations
By Maxim Zadorin
Small Master’s Thesis
Masters of Laws in Law of the Sea
University of Tromsø
Faculty of Law
Fall 2011
Стр.1
Contents
Chapter 1. Introduction……………………………………………………………………..iii
1.1 Background and aim of the Master’s thesis………………………………………………iii
1.2 Delimitations and method…………………………………………………………………iv
1.3 Abbreviations and acronyms………………………………………………………………v
1.4 List of legal sources ………………………………………………………………………vi
Chapter 2. States’ obligations for conserving coastal waters……………………………...1
2.1 States’ ‘sovereignty and jurisdiction’ over territorial waters……………………………...1
2.1.1 ‘Conservation’ definition and basic reasons for it……………………………….2
2.1.2 General types of fish species for coastal conservation…………………………..3
2.1.2.1 ‘Anadromous species’…………………………………………………...4
2.1.2.2 ‘Catadromous species’ and ‘coastal species’…………………………….4
2.2 States’ obligations to protect the environment in territorial waters………………………..5
2.2.1 UNCLOS, Part XII: interpretation marks…………………………………..........6
2.2.2 CBD and ‘precautionary approach’……………………………………………...6
2.2.3 Interaction between UNCLOS and CBD norms, CBD novels und updates……..7
2.3 Opportunities and offers vis-à-vis fishery and neighboring states………………………...9
2.3.1 ‘MPA’ instrument…………………………………..............................................9
2.4 An illustration on how Russia has interpreted the international obligations on sustainable
development…………………………………………………………………………………..11
2.4.1 Environmental protection of territorial waters………………………………….11
2.4.2 Protection and management of fish resources………………………………….12
Chapter 3. Indigenous peoples’ rights to fishery………………………………………….15
3.1 Human and collective rights and a state’s sovereignty: contradiction or consent? ...........15
3.2 International legal framework on indigenous peoples’ fishery rights……………………16
3.2.1 Substantial rights: ICCPR, CERD Rec.26, ECHR, ILO
169……………………………………………………………………………………16
3.2.2 Procedural rights: CBD etc………………………………………………..........18
3.2.3 Non-legally binding instruments: UNDRIP, FAO Code, Draft Nordic Sámi
Convention....................................................................................................................21
3.2.4 Russian acts on indigenous peoples rights: specificity and legal gaps…………24
3.3 Indigenous ‘traditional knowledge’ and ‘sustainable development’: theory and
international practice (cases)……………………………………………………………..26
Chapter 4. Conclusion………………………………………………………………………30
4.1 Summary of the major findings with respect to the issues.................................................30
References................................................................................................................................34
ii
Стр.2
Chapter 1. Introduction
1.1 Background and aim of the Master’s thesis
The small master thesis is dedicated to the problem of coastal states’ jurisdiction over their
marine biological resources, the challenge of ratio between states’ sovereignty and
international obligations on conservation management and human rights (collective
indigenous peoples’ rights to fishery) and a sustainable use of marine living resources. The
basic reason for the conservation policy is the environmental destruction. Fishing methods are
often highly dangerous, and paradoxically the viability of some stocks is threatened by certain
conservation restrictions, where targeting only larger fish alters the genetic diversity, which
means the variability among living organisms from all sources, of the stocks and results
eventually in smaller fish, and ‘industrial fishing’, where fish are not taken for human
consumption but are processed into meal for use as cattle or poultry feed of as fertilizer can
make reductions in seabird colonies1.
The first doctrinal and political claim to the special rights on fishery was stated in the
Middle Ages, where the famous Dutch commentator, Hugo Grotius, as the counsel to the East
India Company, opposed the Portuguese claim that the Indian Ocean should be closed to trade
by foreign vessels and attempted to justify the freedom of the sea. His work “Mare Liberum”
presented this argument2. The opposition to Hugo treatise was “Mare Clausum” by Selden3,
who concluded that “the private possession of the sea had been a widely recognized fact of
life”4.
At first impression, Grotius’ “Mare Liberum” and Selden’s “Mare Clausum” appear
completely contradictory in their content. In fact, however, Selden did not deal with the open
oceans; while the freedom of the sea which Grotius advocated did not pertain to the sea areas
close to land. The claim to the possession of seas near the coast has become the basis of the
present regime of the territorial sea. On the other hand, the concept of freedom of the seas has
provided the foundations of the regime of the high seas. Thus, it can be seen that the division
of the ocean into the high seas and the territorial seas has a most respectable historical base.
The existence of two disparate regimes, namely exploitation under the full control of the
1 Birnie et al., ‘International Law and the Environment’ (2009) p. 703.
2 Grotius, H., ‘The Freedom of the Seas, or the Right Which Belongs to the Dutch to Take Part in the Eastern
Indian Trade (translated by Magoffin, 1916)’, Carnegie Endowment for International Peace.
3 Selden, J., ‘The Right and Dominion of the Sea (translated by James Howell, 1668)’.
4 Shigeru Oda, ‘International Law of the Resources of the Sea’, Sijthoff & Noordhof, 1979, p. 3.
iii
Стр.3
coastal State and exploitation of sea resources free from interference be any country, is a
fundamental presumption underlying the exploitation of sea resources5.
The master thesis is based on the legal analytical works of scholars as Shigeru Oda,
Eric Molenaar, Brownlie, Hubold, Burke, Birnie, Stokke, Kaye, Jakobsen, Stacy, Bederman,
Ilyasov, Guculyak, Hamilton and etc.
The aim of this thesis is threefold. Firstly, it analyzes and discusses in what manner
international law limits state sovereignty with respect to nature conservation and fishery in
the territorial waters. Secondly, it analyses state obligations due to international standards visà-vis
indigenous peoples’ fishing rights. This includes both rights to fish and procedural
aspects related to the management of fisheries and traditional knowledge. Thirdly, the thesis
illustrates how these recognized international obligations have been interpreted by domestic
law by briefly describe relevant aspects of Russian law.
1.2 Delimitations and method
In avoiding unnecessary theoretical and historical factors this work is dedicated of more legal
aspects on a coastal fishery of states. The main example of domestic law will be the Russian
Federation, as one of the largest marine and fishing state. The work is divided into 2 parts.
The first part (2nd Chapter) raises the question of coastal states’ jurisdiction and
sovereignty on marine biological resources inside their territorial waters and the issue of
conservation approaches under international agreements. The distinction among fish species
is also very important, hence this part doesn’t consider ‘highly-migratory’ and
‘transboundary’ species, habitats of EEZ and High Seas, but mostly ‘anadramous’ and
‘catadramous’ species of coastal waters. Further the application of UNCLOS and CBD is
presented, showing the novels of biological diversity convention. The issue of vis-à-vis
fishery among neighboring states and MPAs regime explains the complexity of coastal
fishery norms. The final section demonstrates on the example of Russia the differences
between domestic legislation and international norms on fishery and environmental
protection.
The second part (3rd Chapter) concentrates attention on indigenous fishery rights,
raising the question of coastal states’ sovereignty prevailing over collective indigenous rights
for fishing, and about bucking the trend. Henceforth international legal framework on
indigenous peoples’ rights on fishery is performed, beginning from substantial and procedural
5 Shigeru Oda, ibid, p. 4.
iv
Стр.4
rights, ending with declarative norms at whole and specifically. Russia appears in this section
as an example of inconsistent legislation on the issue. The final section organically leads to
the ‘traditional knowledge’ of indigenous peoples as the instrument for ‘sustainable
development’.
The method is based on an analysis of foremost international treaties and scholarly
to some extent international case law. The domestic Russian law has been
literature,
translated by me, with the exception of the official English translation of the Russian
Constitution. The specific problems are vague provisions, scarcity of
challenge with the interpretation of the UNCLOS and the CBD.
literature and the
1.3 Abbreviations and acronyms
CBD – Convention on Biological Diversity
CERD – Committee on the Elimination of Racial Discrimination
DNSC – Draft Nordic Sámi Convention
ECHR – European Convention on Human Rights
EEZ – Exclusive Economic Zone
FAO – Food and Agriculture Organization
FL – Federal Law
ICCPR – International Covenant on Civil and Political Rights
ILO – International Labor Organization
ICJ – International Court of Justice
ICSU - International Council for Science
MPA – Marine Protected Area
UNCLOS – United Nations Convention on the Law of the Sea
UNDRIP – United Nations Declaration on the Rights of Indigenous Peoples
UNESCO - United Nations Educational, Scientific and Cultural Organization
UNFSA – United Nations Fish Stocks Agreement
TAC – Total Allowable Catch
TTP – Territories of Traditional Use
WCED - World Commission on Environment and Development
v
Стр.5
1.4 List of the most important legal sources
1.
Agreement for the
Implementation of the Provisions
of
the United Nations
Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation
and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995.
Folkerettslig tekstsamling, 1883-2007, 4.utgave, Cappelen Akademisk Forlag, 2008.
2.
3.
4.
5.
6.
7.
8.
9.
Convention on Biological Diversity, 1992. The Secretariat of
Biological Diversity (SCBD), URL: .
C169 Indigenous
and Tribal Peoples Convention,
.
International
Covenant on Civil
and
http://www2.ohchr.org/english/law/ccpr.htm>.
United Nations Convention on the Law of the Sea, 1982. Global and European
Treaties, 2007, Editors Ole Kristian Fauchald and Bård Sverre Tuseth. Published with
Support from the University of Oslo and Selmer Advokatfirma.
UN Declaration on the Rights of
Indigenous
.
Rio Declaration on Environment and Development, 1992, URL:
The
Draft
Nordic
Sámi
.
The Constitution of the Russian Federation, Article 69, “Russian Newspaper”, N 7,
21.01.2009.
10. Tax Code of the Russian Federation (Part II) dated August 5, 2000, N 117-FZ,
“Russian Newspaper”, N 153-154, 10.08.2000.
11.
12.
13.
14.
Federal Law of 20.12.2004 N 166-FZ “On Fishing and Conservation of Aquatic
Biological Resources”, “Russian Newspaper”, N 3661, 23.12. 2004.
Federal Law of 30.04.1999 N 82-FZ “On Guarantees of the Rights of Indigenous
Numerically Small Peoples of the Russian Federation”, “Russian Newspaper”, N 90,
12.05.1999.
Federal Law of 07.05.2001 N 49-FZ “On territories of traditional nature of Indigenous
Numerically Small Peoples of the North, Siberia and the Far East of the Russian
Federation”, “Russian Newspaper”, N 88, 11.05.2001.
Federal Law of 07.02.2003 N21-FZ “On temporary measures
to ensure
the
representation of Indigenous Numerically Small Peoples of the Russian Federation,
vi
Convention,
URL:
Peoples, 2007, URL:
Political
the Convention on
1989, URL:
Rights,
URL: <
Стр.6
legislative (representative) bodies of constituent entities of the Russian Federation”,
“Russian Newspaper”, N 26, 11.02.2003.
15. The Law of
the Russian Federation from 19.02.1993 N 4520-1 (amended on
24.07.2009) “On state guarantees and compensation for those working and living in
the Far North and similar areas”, “Russian Newspaper”, N 73, 16.04.1993.
16. The Charter of Murmansk Region, Article 21, Newsletter Bulletin “Statements of the
Murmansk Regional Duma”, N 25, 14.01.2003.
17. The Unified List of Indigenous Numerically Small Peoples of the Russian Federation
(RF Government Regulation of 13.10.2008 N 760 from 18.05.2010 N 352, from
7.06.2010 N 453 from 02.09.2010 N 669), The Ministry of the National Policy of
Udmurt Republic website:
vii
Стр.7
Chapter 2. States’ obligations for conserving coastal waters
2.1 States’ ‘sovereignty and jurisdiction’ over territorial waters
The UNCLOS was the first wide scale treaty which provided the detailed scheme of the
maritime zones with specific characteristics and juridical scopes. It was really important
novel, because for centuries, customary law and not treaties governed the maritime zones and
the law of the sea at whole. As was mentioned by Schiffman early state practice on the
breadth of the territorial sea was quite inconsistent and often employed vague criteria6. Over
and above Churchill expresses the existing fisheries law was unsatisfactory to developing
states concerned about access to fishery resources near their own shorelines, where the distant
water fishing vessels of developed states were permitted to catch fish on the high seas close to
their coast7. Hence the international cooperation for resolving such conflicts was one of the
important recipes among other complexities. From the point of view of Tommy T.B. Koh, the
president of UNCLOS III, the Law of the Sea Convention is ‘a constitution for the oceans’8.
One of the best achievements of the UNCLOS is the establishment of the territorial sea
breadth and definition.
‘Territorial sea’ is defined in the UNCLOS 1982 as an adjacent sea belt beyond
coastal states’ land territory and internal waters and, in the case of an archipelagic State, its
archipelagic waters, where the sovereignty of a coastal State extends9. The breadth of the
territorial sea should not exceed 1210 nautical miles, measured from baselines11.
‘The sovereignty’ under the legal doctrine is a supreme dominion or authority, the
total and supreme power of an independent state on the concrete territory12, or in case of
territorial waters: the air space over it as well as to its bed and subsoil13. An authority could
be exercised within the limits or territory of national jurisdiction14, where restrictions upon
6 Howard S. Schiffman, ‘Marine Conservation Agreements: The Law and Policy of Reservations and Vetoes’,
Martinus Nijhoff Publishers, Leiden/London, 2008, p. 11.
7 Churchill and Lowe, ‘The Law of the Sea’, 3rd ed. Manchester: Juris, 1999, p. 287-288.
8 Remarks by Tommy T.B. Koh, President of the Third United Nations Conference on the Law of the Sea,
reprinted in, United Nations Convention on the Law of the Sea with Index and Final Act of the Third United
Nations Conference on the Law of the Sea, U.N. Sales No. E.83.V.5(1983) (remarks delivered on Dec. 6 and 11,
1982 at the final session of the Conference at Montego Bay, Jamaica).
9 UNCLOS, Article 2(1).
10 UNCLOS, Article 3.
11 Ibid. Article 5, 7.
12 “Sovereignty – Definition from the Webster's New World Law Dictionary”, URL:
(accessed: 01.06.2011).
13 UNCLOS, Article 2(2).
14 “Jurisdiction – Definition from the Merriam-Webster Online Dictionary”, URL:
(accessed: 01.06.2011).
viii
Стр.8