Washington International Law Journal


At its latest session, the United Nations General Assembly urged States to consider a temporary ban on bottom trawling on the high seas. Bottom trawling technology causes extensive damage both to the habitat of deep sea living marine resources ("LMRs") and to the LMRs themselves. This damage is particularly acute at heavily fished undersea mountains known as seamounts. The pronouncement by the General Assembly, while certainly a positive step, is another unfortunate example of short-sighted fisheries management: instead of creating a legitimate protection regime—such as a moratorium or a system of High Seas Marine Protected Areas ("HSMPA")—for these rare and fragile ecosystems, it leaves the door open for the continued degradation of the global commons. This Comment begins with the assumption that such measures—namely, a system of HSMPAs—can lawfully be established, and turns to the question of enforcement. It presents a legal theory upon which a case against high seas trawling nations could be built, demonstrating that States have notice of the ecological consequences of trawling seamounts, have an affirmative duty to prevent such consequences by enacting and enforcing municipal legislation, and have breached that duty. This flag State malfeasance amounts to an internationally wrongful act, thus providing the possibility for responses by concerned States. These responses include the invocation of responsibility by noninjured States, and potential countermeasures.

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