The international framework of fisheries management
The international framework of fisheries management
Abstract and Keywords
This chapter discusses what is meant by, and what is involved in, fisheries management. Topics covered include the UN Convention on the Law of the Sea, the UN Fish Stocks Agreement, the Food and Agriculture Organization of the United Nations (FAO) Compliance Agreement, FAO's Code of Conduct for Responsible Fisheries and International Plans of Action, regional fisheries management organizations, and importing environmental issues into fisheries management.
1 Fisheries management: issues and challenges
Fisheries management is a key concern of the Common Fisheries Policy (CFP), arguably its most important concern. Fisheries management in Community waters is the subject of Chapter 4, while external aspects of fisheries management are considered in Chapter 5. In order to aid understanding of those chapters, this chapter begins by trying to explain what is meant by, and what is involved in, fisheries management.
According to the Food and Agriculture Organization (FAO), the UN's specialized agency with responsibility for fisheries, ‘[t]here are no clear and generally accepted definitions of fisheries management’.1 The FAO offers the following as a ‘working definition’:
The integrated process of information gathering, analysis, planning, consultation, decision-making, allocation of resources and formulation and implementation, with enforcement as necessary, of regulations or rules which govern fisheries activities in order to ensure the continued productivity of the resources and accomplishment of other fisheries objectives.2
It is impossible in the space available to do justice to a topic as complex as fisheries management, nor, as lawyers, are the authors equipped to do so since fisheries management primarily involves matters of biology, economics, and politics rather than law. Here no more will be done than briefly highlight some issues of fisheries management that the authors consider particularly germane to management by the EC. In doing so, the authors acknowledge that there may be considerable over-simplification of non-legal matters.
Fisheries management is, in considerable part, about regulating the impact of human harvesting activities on fish with the aim of ensuring that stocks of fish are maintained at levels that will sustain their continued exploitation as a resource indefinitely, an aim that is stressed by the FAO.3 This may require various (p.76) measures to be taken. In general terms, responsible fishing ‘should not allow more of the resource to be harvested on average than can be replaced by net growth in the stock’.4 Limits may therefore need to be placed on fishing. Such restriction may take the form of limiting the amount of fish that may be caught, or limiting the number or size of vessels that may fish, or limiting the amount of time that vessels may spend fishing for a particular stock.5 It may also be necessary to take measures to avoid adverse impacts on the rate of reproduction of a particular stock by, inter alia, protecting spawning fish (for example, by prohibiting fishing in areas where, and at times when, spawning takes place) and by preventing the catching of sexually immature fish (for example, by closing nursery areas to fishing and by regulating the size of the mesh in nets so that immature fish may escape).6
However, fish that are the target of harvesting are just a part of a much wider marine ecosystem. The concept or principle of an ‘ecosystem-based approach’ to human activities seeks to address this fact. Further reference to this approach is made in section 8 below and also in Chapter 4. Ecosystem effects of fisheries may be direct or indirect. Examples include the impact of fishing gear on seabed habitats (eg bottom trawling over cold-water corals), on non-commercial species (eg through seabird by-catch or, indirectly, through depletion of seabirds' prey species), and on commercial species (eg through by-catch of juveniles of other commercial species). At the broadest level, choices need to be made by society (not just fisheries managers) about how a particular marine ecosystem is to be used. At the narrower level of fisheries management, measures are needed to reflect such choices. What is frequently required, but seldom done in practice, is the adoption of measures based on a multi-species approach that reflects the relevant ecosystem. As is seen in Chapter 1, one of the criticisms made of the EC's system of fisheries management is that up to now it has been very largely based on single species management.
There are a number of particular difficulties in trying to manage marine fisheries. The first relates to scientific knowledge. To manage a fish stock effectively, it is necessary to have considerable knowledge of the stock, including its size, the proportion of mature individuals, the rates of mortality and reproduction, and so on.7 Such knowledge cannot be acquired through direct observation. Instead, fisheries scientists have to try to obtain this knowledge through sampling and by studying the size and composition of catches over many years. Clearly this is not an exact science. It suggests a need to be cautious in deciding on permitted levels of fishing, lest an over-generous decision lead to a serious decline of the population of the fish stock(s) concerned. Such an approach has been characterized (and more precisely defined, in a way that is explained in section 3 below) as the ‘precautionary approach’, and is strongly advocated by the FAO.8 A precautionary approach is particularly necessary in the case of fisheries directed at stocks about (p.77) whose population dynamics little is known, such as sharks, deep-water species (which have generally only become the object of exploitation in recent years), and fish stocks in the waters of many developing States which have lacked the resources to engage in anywhere near the same level of scientific research on fisheries as in most developed States.9 Problems about the lack of scientific knowledge and the need for a precautionary approach apply equally to the impact of fisheries on the wider marine environment.
A second complication in the management of marine fisheries is the fact that many fish are migratory in nature, and some are highly so. Consequently it is often the case that a fish stock at the harvestable stage does not spend its entire time in just one of the man-made zones into which the sea is legally divided (and which are explained in the following section of this chapter). Thus, in many cases, a fish stock will migrate into the waters of one or more neighbouring States, and/or onto the high seas that lie beyond national waters, so that two or more States may well be attempting to manage the same stock of fish. It is quite possible for the management measures of such States to be incompatible. For example, one State may pursue a long-term strategy of trying to build up a depleted stock through strict limits on catches and rigorous controls on the mesh size of nets in order to protect immature fish, whereas another State, whose fishermen may be struggling economically, may permit higher levels of catch for that stock in order to help its fishing industry through lean times. Unless the measures adopted by two or more States trying to manage the same stock are compatible, management undertaken by one State risks being undermined by the management measures of other States, as in the example given.10 This therefore points to the need for States to cooperate over the management of migratory stocks in which they share an interest.11 The same is true of a stock with a population that, while not migratory, straddles the boundary between two or more States or between national waters and the high seas, and of discrete high seas stocks, where no one State has the competence to manage such stocks (as explained in section 2 below).
A third factor complicating fisheries management is the fact that in most legal systems fish are not actually owned by anyone until they are caught, at which point they become the property of the fisherman or fishing vessel that caught them. This leads to fish frequently being described as a common property natural resource, although in fact, since fish are not owned in common, it would be more accurate (p.78) to refer to them as being an unowned resource. This characteristic has traditionally meant that anyone with the necessary means could engage in fishing, whether in national waters or on the high seas. This open-access nature of marine fisheries has major drawbacks. In a new fishery, those first fishing will normally make a decent profit. Seeing this, other vessels will enter the fishery. Before long, the number of vessels will be so great that none is making any profit: in other words, there will be more vessels engaged in the fishery than are necessary economically to take the available catch.12 This phenomenon is known as ‘over-capitalization’ or ‘over-capacity’. It has been present in many, if not most, of the world's fisheries over at least the past thirty or forty years, and has frequently been exacerbated by the extensive subsidies that many States give to their fishing vessels.13 Over-capacity is not only undesirable on economic grounds, it is also undesirable on conservation grounds because the presence of too many vessels in a fishery, each anxious to make money, will encourage them to break the rules and take more than the allowed catch of fish or ignore regulations on mesh size, closed areas, closed seasons, and so on.14 Some States restrict entry to their fishing fleets, but open access still persists in many national fleets and on the high seas (although in the latter case compliance measures adopted by regional fisheries management organizations are helping to curtail access). In the view of many, reducing over-capacity is the single biggest challenge facing fisheries managers today.15
Fourthly, marine fisheries are difficult to manage because many of the various management measures that may be required, and which were outlined above, are often difficult and costly to enforce, especially at sea because of the problem of detecting offences in the extensive marine areas where fishing takes places and because of the cost of operating fisheries inspection vessels. In recent years at sea enforcement has been increasingly supplemented by greater use of the powers of control of port States (see further sections 3 and 6 below). Effective enforcement is essential if fisheries management is to be successful.16
It will be apparent from the discussion so far that fisheries management has a considerable international dimension, both because management frequently requires cooperation between States and because a good deal of fishing takes place beyond the waters subject to national jurisdiction. Before the First UN Conference on the Law of the Sea, held in 1958, fisheries were regulated to a limited degree by treaties and customary international law. The four Geneva Conventions on the law of the sea, adopted at that Conference, marked the start of the development of a comprehensive international legal framework for fisheries management. The (p.79) aim of the rest of this chapter is to examine that framework. The latter, or at least its basic elements, is currently contained in the 1982 UN Convention on the Law of the Sea (hereafter, ‘the Convention’),17 the relevant provisions of which are analysed in the following section of this chapter. Although the Convention did not enter into force until 1994, its fisheries provisions have in practice been applied since their drafting was more or less finalized in the late 1970s, even before negotiations on the rest of the Convention had been completed and the Convention adopted.
By the early 1990s, there were serious concerns about the state of the world's fish stocks, about 70 per cent of which were fully exploited or over-exploited,18 and about the adequacy of the Convention as a framework for their management.19 Those concerns found particular expression at an International Conference on Responsible Fishing, held at Cancun, Mexico in May 1992,20 and at the UN Conference on Environment and Development, held the following month.21 In response to calls made at those conferences, three instruments were adopted in the mid-1990s to supplement the Convention—the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas22 (generally known as the Compliance Agreement), the 1995 Code of Conduct for Responsible Fisheries, and the 1995 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 Stocks23 (hereafter, ‘the Fish Stocks Agreement’). Those instruments, which develop many aspects of the fisheries regime of the Convention and aim to encourage better fisheries management, are the subject of sections 3 to 5 of this chapter. The various instruments mentioned so far are all global in scope. They are supplemented, and to a degree implemented, by a number of treaties that establish regional fisheries management organizations or arrangements with the power to take legally binding decisions. Those treaties and bodies are discussed in section 6. Although not having any formal law-creating powers, the UN General Assembly has, through its resolutions, played a role in stimulating various significant developments in international fisheries law such that the relevant resolutions, which are examined in section 7, may be said to have a soft-law character. Increasingly, as (p.80) already hinted at, international fisheries law is being influenced by more general environmental considerations, and this development is charted in section 8.
The discussion that follows is particularly relevant to the following two chapters of this book. Chapter 4 looks at fisheries management in Community waters. The development of the EC's system of fisheries management was heavily influenced by the Third UN Conference on the Law of the Sea and the resulting Convention (see further Chapter 1), and its substantive content has had to take account of the provisions of the Convention and the later instruments adopted during the 1990s, to all of which the EC is a party. Chapter 5 deals with the EC's international fisheries relations. After examining the EC's participation in the Convention and later fisheries instruments, that chapter focuses on the agreements that the EC has concluded with third States for the access of its fishing vessels to the waters of those States, the basic framework for which is provided by the Convention, and on the EC's participation in regional fisheries management organizations. These organizations are also the subject of section 6 of this chapter.
2 UN Convention on the Law of the Sea
The Convention was adopted on 10 December 1982 and entered into force on 16 November 1994. At the time of writing, it had 157 parties, including all twenty-seven Member States of the EC and the EC itself.24 Unless otherwise stated, references to particular Articles or Annexes in this section, including in the footnotes, are references to the Convention. Provisions of the Convention dealing with the effects of fishing on the wider marine environment are also discussed, albeit only briefly, in section 8 below.
The Convention requires that the EC ‘shall exercise the rights and perform the obligations which its member States which are Parties would otherwise have under this Convention, on matters relating to which competence has been transferred to it by those member States’.25 The corollary is that the EC Member States ‘shall not exercise competence which they have transferred to’ the EC.26 (See further Chapter 5.)
Thus the power of EC Member States to make rules for fisheries conservation is restricted not only by virtue of EC law but also by virtue of the Convention. Of course, if the EC chooses to delegate some powers for rule-making back to the Member States (as it has done in some limited respects: see Chapter 4), it is arguable that the restriction on Member State action provided for in the Convention should (p.81) not apply to the Member States to the extent of their delegated powers. The following description of the Convention's provisions concerning fishing will address the coastal State in general, rather than focusing on the division of competence between the EC and its Member States.
Although this section focuses on the provisions of the Convention, it is important to note that much customary international law on fisheries also exists. It is true that much of that has been codified by the Convention. However, it is probably not accurate to state that all of the fisheries provisions in the Convention represent codified customary international law. For example, Churchill and Lowe question whether the coastal State's fisheries management duties set out in Articles 61 and 62 have become part of customary international law.27
2.2 Fishing in internal waters and the territorial sea
Internal waters are those waters landward of the baseline from which the breadth of the territorial sea is measured.28 The normal baseline is ‘the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State’,29 and the Convention contains rules for the establishment of other types of baseline.30 Where straight baselines have been established, the area of marine internal waters can potentially be significant. The territorial sea is a belt of sea extending up to 12 nm from the baseline.31
In its internal waters and territorial sea, the coastal State has territorial sovereignty over the seabed and subsoil, the water column, and the airspace.32 That sovereignty is subject to: (a) the right of innocent passage of foreign-flagged vessels in the territorial sea;33 and (b) the same right in internal waters in cases where the valid establishment of a straight baseline ‘has the effect of enclosing as internal waters areas which had not previously been considered as such’.34
Passage by vessels is not innocent if it includes, inter alia, ‘any fishing activities’.35 So the territorial sovereignty of the coastal State in its internal waters and territorial sea means that the coastal State has exclusive rights in respect of fishing activities in those waters. Foreign-flagged vessels may not fish there without the consent of the coastal State and there is no requirement for the coastal State to provide access to surplus fish stocks in the waters in question. (On the meaning of ‘surplus’, see further below.)
The exclusive rights of the coastal State in respect of fishing activities are also made clear by Article 21 by which the coastal State may ‘adopt laws and regulations, in conformity with the provisions of this Convention and other rules of (p.82) international law, relating to innocent passage through the territorial sea, in respect of … [inter alia] … (d) the conservation of the living resources of the sea; (e) the prevention of infringement of the fisheries laws and regulations of the coastal State; (f) the preservation of the environment of the coastal State …’.
Likewise, no foreign-flagged vessel may carry out exploratory fishing in the internal waters or territorial sea of a coastal State under the guise of ‘marine scientific research’. That is because coastal States ‘have the exclusive right to regulate, authorize and conduct marine scientific research in their territorial sea’ (and hence likewise in their internal waters) and such research ‘shall be conducted only with the express consent of and under the conditions set forth by the coastal State’.36
The Convention does not establish duties on the coastal State relating expressly to fisheries management in internal waters and the territorial sea. However, Part XII of the Convention, on protection and preservation of the marine environment, contains several general duties that are potentially applicable to fishing activities in such waters (for example, Articles 194(5), 197, and 206). In addition, many provisions in Part XII are potentially relevant to reducing the impact on fisheries resources of activities generating pollution.
2.3 Fishing in the exclusive economic zone
The exclusive economic zone (EEZ) is a zone extending from the seaward limit of the territorial sea out to a maximum of 200 nm from the baseline from which the breadth of the territorial sea is measured.37 In that zone the coastal State may claim certain rights and jurisdictions. However, such rights and jurisdictions, even if claimed in their entirety, do not amount to territorial sovereignty. Furthermore, they must be exercised with due regard to the rights of other States.38 The EEZ comprises the subsoil, seabed, and superjacent water column,39 although EEZ rights and jurisdiction with respect to the seabed and subsoil must be exercised in accordance with Part VI of the Convention, on the continental shelf (on which, see subsection 2.4 below).40
Among the rights available in respect of the EEZ are ‘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 and of the seabed and its subsoil’.41 The term ‘natural resources’, in the context of the EEZ, is not defined in the Convention. However, it is clear that fish stocks are a type of living natural resources and are therefore covered by the above category of rights. Where the coastal State chooses to claim only sovereign rights for the purpose of exploring, exploiting, conserving, and managing fisheries resources, (p.83) rather than any of the other rights available under the EEZ regime, the zone in question tends to be referred to as an exclusive fishing zone (EFZ).
In practice, the large majority of coastal States claiming rights beyond the territorial sea now claim an EEZ rather than just an EFZ.42 The EEZ or EFZ is of great importance for commercial fisheries. For example, Churchill and Lowe reported in 1999 that ‘[t]he universal establishment of 200-mile EEZs and EFZs would embrace an area where about ninety per cent of commercial fishing currently takes place’.43
In contrast to internal waters or the territorial sea, the Convention contains many provisions relating expressly to management of fisheries in the EEZ. Those provisions may be regarded as applying equally to an EFZ. Most of the provisions are found in Part V of the Convention, although others are located in Part XII (on protection and preservation of the marine environment), Part XIII (on marine scientific research), and Part XV (on settlement of disputes). Of note, Part V does not apply to sedentary species (on which, see subsection 2.4 below).44
General provisions for the conservation and utilization of fish stocks are laid down in Articles 61 and 62. (Subsection 2.6 below addresses the Convention's provisions on particular species and stocks.) Article 62 establishes a duty on coastal States to promote ‘the objective of optimum utilization’ of fish stocks.45 This duty is without prejudice to various conservation duties set out in Article 61, including the obligation to ensure, through proper conservation and management measures, that maintenance of fish stocks ‘is not endangered by over-exploitation’.46
The said measures are to be ‘designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global’.47 In taking the measures, the coastal State is to take into consideration effects on associated or dependent species.48
The coastal State is required to determine the total allowable catch (TAC) of fish stocks in its EEZ or EFZ.49 Where it does not have the capacity to harvest the entire TAC, the coastal State must give other States access to that surplus by means of ‘agreements or other arrangements’.50 In doing so, it must have ‘particular regard to the provisions of articles 69 and 70 [on the rights of land-locked and geographically disadvantaged States], especially in relation to the developing States mentioned therein’.51
In giving other States access to fisheries in its EEZ, the coastal State is to take into account ‘all relevant factors’, including ‘inter alia, the significance of the living (p.84) resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70, the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks’.52
The coastal State, in providing access, is entitled to impose certain conditions on the vessels in question.53 A non-exhaustive list of the types of conditions is provided in Article 62(4), with the qualification that they must be ‘consistent with this Convention’. The conditions may include, inter alia, the payment of fees and other forms of remuneration as well as conservation and management measures for the stock in question.54 The vessels granted access to the EEZ must comply with those conditions.55 The use by the EC of fisheries access arrangements is discussed in detail in Chapter 5.
With a significant exception, Part XV of the Convention requires disputes concerning the interpretation or application of the Convention's fisheries provisions to be settled in accordance with the Convention's provisions in section 2 of Part XV on compulsory procedures entailing binding decisions.56 The said exception, set out in section 3 of Part XV, states that:57
the coastal State shall not be obliged to accept the submission to such settlement of any dispute relating to its sovereign rights with respect to the living resources in the [EEZ] or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations.
As can be seen, the exception is broad in that it relates to ‘any dispute’ relating to the coastal State's ‘sovereign rights with respect to the living resources in the [EEZ] or their exercise’. Thus, for example, the coastal State would not be required to accept the application of the section 2 procedures to any dispute over whether or not its particular conservation and management regime had ensured that maintenance of fish stocks is not endangered by over-exploitation. However, the exception does not preclude a coastal State invoking the section 2 procedures against, say, a flag State whose vessels were fishing in its EEZ in breach of the Convention.
A dispute covered by the exception is not totally exempt from the Convention's dispute resolution procedures. The Convention implies that the parties are still required to attempt settlement of the dispute by recourse to section 1 of Part XV.58 That section contains general provisions on peaceful settlement but none regarding compulsory procedures entailing binding decisions. Failing settlement by recourse to section 1, a dispute regarding any of the following specific allegations is to be (p.85) submitted to conciliation under section 2 of Annex V to the Convention at the request of any party to the dispute:59
(i) a coastal State has manifestly failed to comply with its obligations to ensure through proper conservation and management measures that the maintenance of the living resources in the [EEZ] is not seriously endangered;
(ii) a coastal State has arbitrarily refused to determine, at the request of another State, the allowable catch and its capacity to harvest living resources with respect to stocks which that other State is interested in fishing; or
(iii) a coastal State has arbitrarily refused to allocate to any State, under articles 62, 69 and 70 and under the terms and conditions established by the coastal State consistent with this Convention, the whole or part of the surplus it has declared to exist.
The conciliation commission may not ‘substitute its discretion for that of the coastal State’60 and, in any event, such conciliation does not entail binding decisions.61 Nonetheless, the possibility of scrutiny by a conciliation commission may be some incentive to a coastal State to, for example, avoid an allegation of manifest failure to adopt appropriate conservation and management measures. In practice, the Convention's provisions on conciliation have not yet been employed.
It is also possible that a breach by the coastal State of the conservation duties for fish stocks in the EEZ could be pursued by means of arguing a breach of the duty in Article 300 on States Parties to, inter alia, ‘fulfil in good faith the obligations assumed under this Convention’. However, such an argument has not so far been tested. Overall, it is probably fair to say that compliance by coastal States with the Convention's conservation requirements for EEZ fish stocks is not likely to be driven primarily by the threat of recourse to the Convention's dispute resolution provisions.
Article 73 sets out the enforcement powers of the coastal State in the exercise of its sovereign rights to explore, exploit, conserve, and manage the living resources in the EEZ. In the exercise of such rights, the coastal State may ‘take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention’.62 Thus boarding, inspection, and arrest by the coastal State of foreign-flagged vessels fishing in the EEZ, and legal proceedings, are expressly permitted by the Convention. Those powers are supplemented by the provisions on hot pursuit in Article 111.
Article 73 also contains provisions on prompt release, non-permissible sanctions (namely ‘imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment’), and prompt notification to the flag State of any arrest or detention. Regarding prompt release, the Convention requires that ‘[a]rrested vessels and their crews shall be promptly released (p.86) upon the posting of reasonable bond or other security’.63 The International Tribunal for the Law of the Sea (ITLOS) has decided five cases on prompt release of fishing vessels where the original arrest of those vessels related to their alleged fishing activities in the EEZ64 and two cases on prompt release of vessels allegedly associated with fishing activities in the EEZ.65 In each case, the jurisdiction of the ITLOS arose by virtue of Article 292 in Part XV of the Convention.
The sovereign rights of the coastal State to explore, exploit, conserve, and manage the living natural resources of the EEZ are reflected in Part XIII of the Convention, on marine scientific research. Thus Article 246 permits coastal States to withhold their consent to the conduct of a marine scientific research project by a third State in the EEZ if, inter alia, that project ‘is of direct significance for the exploration and exploitation of natural resources, whether living or non-living’.66
Just as for internal waters and the territorial sea (see subsection 2.2 above), Part XII of the Convention, on protection and preservation of the marine environment, contains several general duties that are potentially applicable to fishing activities in the EEZ (supplementing the fisheries management duties in Part V) as well as many provisions that are potentially relevant to reducing the impact on fisheries resources of activities generating pollution.
2.4 Fishing on the continental shelf
The term ‘continental shelf’ has both a legal meaning and a meaning derived from geology and geomorphology. In this section, the terms ‘continental shelf’ or ‘shelf’ will be used to mean the continental shelf in its legal sense. The Convention's regime for the continental shelf is provided mainly by Part VI, although there are also important provisions in Parts V, VII, XI, XII, and XIII.
The continental shelf consists of the seabed and subsoil.67 It extends from the seaward limit of the territorial sea.68 Assuming no geographical constraints created by the proximity of neighbouring States,69 it extends out to at least 200 nm from the baseline from which the breadth of the territorial sea is measured.70 However, given appropriate geology and geomorphology (as defined by Article 76(2)–(6)), it may extend further than that to an overall limit of 350 nm from the baseline or 100 nm (p.87) beyond the 2,500 m isobath.71 The Convention does not use a specific term to describe the part of the shelf lying beyond 200 nm from the baseline; this section will use the terms ‘outer continental shelf’ or ‘outer shelf’ to refer to that part of the shelf.
Article 77(1) states that: ‘The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.’ As with the EEZ, such sovereign rights do not amount to territorial sovereignty. In contrast to the EEZ, the continental shelf rights ‘do not depend … on any express proclamation’. Furthermore, no occupation of the shelf is required.72 The coastal State's sovereign rights in relation to the continental shelf ‘are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State’ (emphasis added).73
The rights of the coastal State over the continental shelf ‘do not affect the legal status of the superjacent waters’74 and their exercise ‘must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States as provided for in this Convention’.75 That is particularly significant with regard to the outer shelf. The waters superjacent to the outer shelf are the high seas, in which there is, inter alia, a qualified freedom of fishing. The interaction between the rights of the coastal State regarding the outer shelf and the high seas freedom of fishing is addressed in subsection 2.5 below.
The term ‘natural resources’, in the context of the continental shelf, is defined as ‘the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species’.76 It is the ‘living organisms belonging to sedentary species’, rather than the ‘non-living resources’, that are of interest in this book. The term ‘sedentary species’ is in turn defined as ‘organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil’.77
Commonly cited examples of sedentary species for which there may be fisheries include abalone, clams, and oysters.78 In some cases, it may be unclear whether a particular target species is sedentary or not (for example, lobsters or scallops). That is unlikely to be problematic in cases where that species occurs on the shelf within the 200 nm limit. That is because if it is a sedentary species, it is covered by the continental shelf regime and if it is not, it is covered by the EEZ regime (assuming that appropriate EEZ rights have been claimed by the coastal State).
However, any uncertainty is likely to be problematic in cases where the species occurs on the outer shelf: if it is not a sedentary species, it is not covered by the continental shelf regime and cannot be covered by the EEZ regime either because (p.88) the maximum seaward limit of the EEZ is 200 nm from the baseline. Instead, in such cases the species is subject to the qualified freedom of fishing on the high seas.
Although the sovereign rights of the coastal State in relation to its continental shelf extend to the exploitation of sedentary species, it is notable that Part VI itself does not establish a conservation regime for such species. That is in contrast to Part V on the EEZ (see subsection 2.3 above). What is more, by virtue of the exclusion of sedentary species from the scope of Part V,79 the general provisions for the conservation and utilization of living resources set out in Articles 61 and 62 in Part V do not apply to such species either.
However, that does not necessarily mean that sedentary species must or may be exploited without limit. As noted above, the coastal State's sovereign rights for the exploitation of sedentary species are exclusive, with the result that the coastal State may choose not to exploit such species on certain parts of its shelf or may choose to attach conditions to the exploitation of such species. Such choices may be motivated by a desire to conserve the species or to protect the wider marine environment from the exploitation activity.
Furthermore, Part XII of the Convention, on protection and preservation of the marine environment, contains several general duties that are potentially applicable to fishing activities for sedentary species on the continental shelf as well as many provisions that are potentially relevant to reducing the impact on fisheries resources of activities generating pollution (as is likewise the case in respect of internal waters, the territorial sea, and the EEZ—see subsections 2.2 and 2.3 above).
It was noted in subsection 2.3 above that the Convention's compulsory dispute resolution procedures entailing binding decisions, as set out in section 2 of Part XV, apply to disputes concerning the interpretation or application of its fisheries provisions, with an exception relating only to the EEZ. Thus disputes concerning interpretation or application of provisions regarding fisheries for sedentary species on the shelf remain subject to the section 2 procedures.
The Convention establishes a mechanism to provide certainty about the limits of the outer shelf. Thus Article 76(8) states that:
Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.
Several EC Member States potentially have outer shelves. However, at the time of writing, to the authors’ knowledge, no Member State had established limits to the (p.89) outer shelf that are final and binding in accordance with Article 76(8). Of the EC Member States, France, Ireland, Spain, and the UK had made submissions to the Commission on the Limits of the Continental Shelf (CLCS), such submissions comprising (in respect of territories to which the CFP applies): (a) one joint submission by the four Member States in May 2006 (which is only a partial submission for each State); (b) a separate submission by Ireland in May 2005 (which, again, is only a partial submission, and on which the CLCS adopted recommendations in spring 2007); and (c) a separate submission by France in May 2007 (regarding French Guiana).80
The deadline in the Convention for submitting information on the shelf limits to the CLCS is ‘within 10 years of the entry into force of this Convention for that State’.81 However, in May 2001 the States parties to the Convention decided that for a State party for which the Convention had entered into force before 13 May 1999, the deadline would be ten years from 13 May 1999—thus falling in May 2009.82 In June 2008, a further decision by the States parties to the Convention allowed the ten-year time period referred to in both the Convention and the May 2001 decision to be satisfied by submission of, amongst other things, ‘preliminary information indicative of the outer limits’ of the outer shelf.83 In practice, the CLCS may well be inundated with submissions by the May 2009 deadline referred to above and may need considerable time to deal with them all. Furthermore, there is clearly scope for the coastal State to disagree with the CLCS's recommendations. In case of disagreement, the Convention requires that ‘the coastal State shall, within a reasonable time, make a revised or new submission to the [CLCS]’.84
Thus it may be quite some time before a coastal State is able to establish final and binding limits on the basis of the CLCS's recommendations and hence be certain about the seaward limits of its outer shelf. In the meantime, practice is likely to vary between States as to the extent to which they are willing to exercise shelf rights on the shelf beyond 200 nm. Some States may be very cautious about exercising such rights; others may be less cautious. The need for coastal State action may be precipitated by, for example, the activities of third State fishing vessels undertaking bottom trawling on the outer shelf (see further subsection 2.5 below).
Whereas Part V of the Convention, on the EEZ, contains a provision (Article 73) giving express powers to the coastal State to enforce its laws and regulations regarding living resources, the Convention contains no equivalent provision regarding enforcement of laws and regulations regarding sedentary species on the continental shelf. Despite the absence of such a provision, the power of the coastal (p.90) State to enforce such laws and regulations against, inter alia, third State fishing vessels operating in the high seas superjacent to the outer shelf can probably reasonably be implied. Hot pursuit, pursuant to Article 111, may be undertaken in respect of violations of continental shelf laws and regulations.
The sovereign rights of the coastal State to explore the shelf and exploit its natural resources are reflected in Part XIII of the Convention, on marine scientific research. Thus Article 246 permits coastal States to withhold their consent to the conduct of a marine scientific research project by a third State on the continental shelf if, inter alia, that project ‘is of direct significance for the exploration and exploitation of natural resources, whether living or non-living’ (subject to a limited exception regarding the outer shelf).85 The living natural resources of the shelf referred to in Article 246 are the living organisms belonging to sedentary species.
2.5 Fishing on the high seas
The high seas comprise ‘all parts of the sea that are not included in the [EEZ], in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State’.86 The seabed and its subsoil lying beneath the high seas comprise, for the greater part, ‘the Area’87 and, for the lesser part, the outer continental shelf. The high seas and the Area are commonly referred to jointly as ‘areas beyond national jurisdiction’.
Part VII of the Convention, on the high seas, states that the high seas are open to all States but adds that freedom of the high seas is ‘exercised under the conditions laid down by this Convention and by other rules of international law’.88 Freedom of the high seas is stated to comprise, inter alia, ‘freedom of fishing, subject to the conditions laid down in section 2 [of Part VII]’.89 Thus the high seas freedom of fishing is qualified both by a specific reference to section 2 of Part VII as well as a more general reference to ‘the conditions laid down by this Convention and by other rules of international law’. The conditions laid down by the Convention clearly include section 2 of Part VII, but they also include, inter alia, Articles 87(2) and 147(3) and Part XII.
Article 87(2) requires high seas freedoms to be exercised ‘with due regard for the interests of other States in their exercise of the freedom of the high seas’. Article 87(2) also requires the same freedoms to be exercised ‘with due regard for the rights under this Convention with respect to activities in the Area’. Likewise, Article 147(3) requires that: ‘Other activities in the marine environment shall be conducted with reasonable regard for activities in the Area.’
(p.91) Part XII of the Convention contains many environmental protection duties. Just as for internal waters, the territorial sea, the EEZ, and the continental shelf (see subsections 2.2, 2.3, and 2.4 above), Part XII contains several general duties that are potentially applicable to fishing activities on the high seas (as well as many provisions that are potentially relevant to reducing the impact on fisheries resources of activities generating pollution).
Section 2 of Part VII comprises Articles 116–120. Article 116 states that the freedom of fishing is subject to: (a) States' treaty obligations; (b) coastal States’ rights, duties and interests provided for, inter alia, in Articles 63(2), 64, 65, 66, and 67 (on which, see subsection 2.6 below); and (c) the provisions of section 2 itself. Article 117 requires States to take, or cooperate with other States in taking, ‘such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas’.
The cooperation theme in Article 117 is continued in Article 118. After reiterating a general duty to cooperate, Article 118 focuses on the specific instance where States' nationals ‘exploit identical living resources, or different living resources in the same area’. In that instance, those States are to ‘enter into negotiations with a view to taking the measures necessary for the conservation of the living resources concerned’. As appropriate, the States are to ‘cooperate to establish subregional or regional fisheries organizations’ for that purpose.
Article 119 sets out some requirements for States when they are determining the allowable catch and establishing other conservation measures for the living resources in the high seas, including the measures referred to in Articles 117 and 118. As with the EEZ, the measures are to be designed to maintain or restore maximum sustainable yield (with some qualifications similar to those for the EEZ) and States are to take into consideration effects on associated or dependent species.90 However, in contrast to the EEZ, there is no underlying duty to ensure, through proper conservation and management measures, that maintenance of high seas fish stocks is not endangered by over-exploitation. Article 119 also prohibits discrimination on grounds of nationality.91 Article 120 applies Article 65, on marine mammals, to the high seas (on which, see subsection 2.6 below).
Part VII of the Convention makes it clear that a ship on the high seas, so long as it is flagged to one State only, is subject to the exclusive jurisdiction of its flag State ‘save in exceptional cases expressly provided for in international treaties or in this Convention’.92 The exceptions provided for in the Convention do not include verifying compliance with high seas fisheries conservation regimes. That is generally accepted as meaning that boarding, inspection, or arrest of a fishing vessel on the high seas by a third State for that purpose would require an express provision in some other treaty (for example, a treaty establishing a regional fisheries management organization).
(p.92) As noted in subsection 2.3 above, the Convention's compulsory dispute resolution procedures entailing binding decisions apply to disputes concerning the interpretation or application of its fisheries provisions, with an exception relating only to the EEZ. Thus disputes concerning interpretation or application of provisions regarding high seas fisheries remain subject to the Convention's compulsory procedures entailing binding decisions. Those procedures have been invoked on three occasions to date,93 although, for a variety of reasons, none of the resulting cases has been determined on its merits.
As noted earlier, there will be places where the seabed and its subsoil lying beneath the high seas will comprise the outer continental shelf of a coastal State. In such places, there is scope for interaction between the high seas freedom of fishing and a coastal State's sovereign rights regarding sedentary species on its outer shelf. That interaction could arise by, for example, a fishing vessel on the high seas overlying the shelf using bottom trawling to target demersal non-sedentary species on the shelf.
Despite targeting non-sedentary species, it is possible to imagine that the bottom trawling in question could involve a high by-catch of sedentary species or significant damage to the sedentary species or their habitats. Article 77(2) requires that no one may exploit the natural resources of the shelf without the express consent of the coastal State. It is arguable that high by-catch, or significant damage of species or habitats, is a form of exploitation. However, even if that were not the case, that does not mean that the bottom trawling may necessarily continue unchallenged by the coastal State.
Taking a step back, the example in question would be a case of the exercise of a high seas freedom coming into conflict with the exercise of coastal State rights. If the fishing were to continue unchecked, the coastal State might argue that its natural resources were being damaged. If the coastal State were to prevent the fishing, the flag State might argue that it was unable to exercise its high seas freedom of fishing.
The Convention anticipates this type of conflict. Article 78(2) requires that the exercise by the coastal State of its rights over the natural resources of the shelf must not ‘infringe or result in any unjustifiable interference with’ the high seas freedom of fishing. Of note, the 1958 Convention on the Continental Shelf94 (a predecessor to the 1982 Convention) requires only that the exercise of coastal State rights must not ‘result in any unjustifiable interference’ with high seas freedoms;95 it does not include a requirement not to ‘infringe’ such freedoms. At the Third UN Conference on the Law of the Sea, the additional requirement not to ‘infringe’ was introduced informally into the negotiations by the (then) USSR in 1979.96
(p.93) Attard infers from the addition of the requirement not to ‘infringe’ high seas freedoms in the Convention (compared to the 1958 Convention) that ‘the concept of “unjustifiable interference” was not felt to be sufficient to safeguard the international community's interests in view of the new extensive EEZ powers allocated to the coastal State’.97 If that is right, one can suppose that flag States wanted to guard against the possibility that numerous justifiable interferences over time might end up infringing their high seas freedoms.
On that basis, it would be open to the coastal State to show that an action to prohibit high seas bottom trawling on its outer shelf is a justifiable interference with the high seas freedom of fishing so long as overall that freedom is not infringed. The point at which infringement of the freedom of fishing might occur is open to debate. Perhaps there would be no infringement if vessels flagged to third States were still permitted to fish using other gears or in other locations on the outer shelf.
Subject to the meaning of infringement, it would be necessary for the coastal State to show that its interference was justifiable. Using an example based on potential conflict between oil exploitation and the freedom of navigation in relation to the shelf within 200 nm, Attard states that:98
It must also be pointed out that interference, even if substantial, may be justified, whilst certain forms of interference, even if insignificant, may be unjustifiable and may constitute an infringement of the freedom to navigate in the EEZ. In such cases an assessment must be made of the interests involved. Thus, for example, the estimated value of the resource-deposit and the cost to shipping of alternative routes are just two elements which would have to be considered.
On the basis that an assessment of the interests involved must be made, the coastal State might argue that the bottom trawling in question was destroying the resource that was the very subject matter of its rights and was doing so in a zone under its jurisdiction. The coastal State might also argue that the bottom trawling was preventing it from fulfilling some of its environmental protection duties set out in Part XII of the Convention (for example, Article 194(5)) as well as any duties agreed through organizations referred to in Article 197 (for example, regional seas organizations). In principle, a dispute arising from this kind of scenario could be resolved in accordance with Part XV of the Convention.
2.6 Fishing for particular species and stocks
This subsection will consider the provisions in Part V of the Convention on shared stocks, straddling stocks, highly migratory species, marine mammals, anadromous (p.94) stocks, and catadromous species as well as the provisions in Part VII on marine mammals. The Convention's provisions on sedentary species have already been discussed in subsection 2.4 above.
Shared stocks are addressed by Article 63(1), which relates to situations ‘[w]here the same stock or stocks of associated species occur within the [EEZs] of two or more coastal States’. In such situations, the coastal States in question ‘shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part’.
Thus Article 63(1) does not actually use the term ‘shared stocks’; however, that term, or ‘transboundary stocks’, has come to be used to describe the stocks referred to in that provision. Of note, Article 63(1) does not apply to stocks shared between coastal States' internal waters or territorial seas. In such cases, the Convention does not establish any duty to cooperate for fisheries conservation specifically. However, there still remains the duty in Article 197 in Part XII to cooperate for the purposes of environmental protection in general whereby:
States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.
The cooperation duty in Article 63(1) is weak in that States need only ‘seek … to agree’ upon the necessary measures. Burke observes that ‘[t]he substantive obligation imposed by Article 63(1) cannot fairly be described as awesome, imposing, or, even, perhaps, very consequential’.99 Churchill and Lowe describe some State practice on shared stocks and conclude that ‘there still exist many shared stocks for which no co-operative arrangements have yet been agreed by the States concerned’.100 Owen provides an analysis of the legal and institutional aspects of thirty-nine arrangements relevant to the management of shared stocks.101
Straddling stocks are addressed by Article 63(2), which relates to situations ‘[w]here the same stock or stocks of associated species occur both within the (p.95) [EEZ] and in an area beyond and adjacent to the zone’. In such situations, ‘the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area’.
Thus Article 63(2) does not actually use the term ‘straddling stocks’, but that is the term that has come to be used to describe the stocks referred to in that provision. The provision relates to stocks that straddle the boundary between the EEZ and the high seas. Thus it applies not only to coastal States but also to third States that are fishing on the high seas. As with Article 63(1), the cooperation duty in Article 63(2) is weak in that States need only ‘seek … to agree’ upon measures. Furthermore, any resulting measures are to relate only to the high seas, rather than to the EEZ.
Article 63(2) is referred to in Part VII of the Convention, on the high seas. Thus Article 116 states that the right of all States for their nationals to engage in fishing on the high seas is subject to ‘the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67’. So the right to fish on the high seas is subject to, inter alia, the cooperation duty set out in Article 63(2) (as well as being subject to the provisions in Articles 64–67). Article 63(2) has been implemented by means of the Fish Stocks Agreement (see section 3 below). Some regional fisheries management organizations addressing straddling stocks are introduced in section 6 below and are discussed further in Chapter 5.
Highly migratory species
Highly migratory species are addressed by Article 64. The highly migratory species to which Article 64 relates are those listed in Annex I to the Convention. That list includes, inter alia, several tuna species, swordfish, several species and families of oceanic sharks, and seven families of cetaceans. In contrast to Articles 63 and 66, but in common with Articles 67 and 68, Article 64 refers to ‘species’ rather than ‘stocks’. Article 64 applies to ‘[t]he coastal State and other States whose nationals fish in the region’ for the Annex I species. It contains two duties to cooperate.
The principal duty is that the States concerned ‘shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the [EEZ]’. Thus the duty to cooperate is not qualified by any weakening caveat like ‘seek’, ‘try’ or ‘endeavour’, in contrast to Article 63(1) and (2). However, the wording ‘with a view to ensuring conservation’, rather than just ‘to ensure conservation’, weakens the duty somewhat.
In contrast to Article 63(2), the desired outcome is not just conservation but also the promotion of ‘the objective of optimum utilization’, which reflects the general duty in Article 62 (see subsection 2.3 above). Furthermore, the desired outcome of (p.96) conservation is to apply not just to the high seas portion of the region in question but ‘throughout the region, both within and beyond the [EEZ]’. Birnie and Boyle imply from this that: ‘The coastal state thus cannot exercise its right to make decisions until it has discharged its duty to co-operate with other states in promoting conservation and use.’102
The second cooperation duty in Article 64 is that ‘[i]n regions for which no appropriate international organization exists’, the States concerned ‘shall cooperate to establish such an organization and participate in its work’. The duty to cooperate to establish a new body is relatively strong, but the duty to in turn ‘participate’ raises the question whether such participation entails the same tasks as are included in the first duty or something less. In requiring the establishment of new organizations where none currently exists, Article 64 contrasts with Article 63(2) which is silent in that regard.
Article 64(1) has been implemented by means of the Fish Stocks Agreement (see section 3 below). Some regional fisheries management organizations addressing highly migratory species are introduced in section 6 below and are discussed further in Chapter 5. Article 64(2) adds that: ‘The provisions of paragraph 1 apply in addition to the other provisions of this Part.’ In other words, the provisions of Article 64(1), insofar as they relate to the EEZ, are supplemental to, rather than an alternative for, the other provisions of Part V—notably the general duties set out in Articles 61 and 62.
Marine mammals are addressed primarily by Article 65. Marine mammals include, inter alia, cetaceans (ie whales and dolphins), seals, and sirenians. Article 65 has two parts. The first states that: ‘Nothing in this Part restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part.’
The reference to ‘[n]othing in this Part’ relates, inter alia, to the requirement in Article 62 to ‘promote the objective of optimum utilization’ and, in the case of cetaceans specifically, the same requirement in Article 64. The express disapplication of such requirements and others in Part V promoting exploitation, together with the express allowance of a prohibition on exploitation, makes it clear that marine mammals are an exception among living resources and may legitimately be protected from exploitation in the EEZ irrespective of their abundance.
The second part of Article 65 has two components. The first relates to marine mammals in general and states that ‘States shall cooperate with a view to the conservation of marine mammals’. That general duty is phrased in the same way as the principal duty in Article 64: although the duty to cooperate is not qualified by (p.97) any weakening caveat like ‘seek’, ‘try’ or ‘endeavour’, the wording ‘with a view to the conservation of’, rather than just ‘to conserve’, is a weakening influence.
The other component of the second part of Article 65 relates to cetaceans specifically and requires that States ‘in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study’. That provision endorses the use of international organizations ‘in particular’, and contrasts with Articles 63 and 64 which expressly provide for States to either work through organizations or to work with each other directly. However, the reference to international organizations, in the plural form, indicates that the International Whaling Commission is not necessarily the only international organization that may be used. Some international organizations and agreements addressing marine mammals are introduced in section 6 below and discussed further in Chapter 5.
Marine mammals are also singled out for attention in Part VII of the Convention, on the high seas. Article 120 states that: ‘Article 65 also applies to the conservation and management of marine mammals in the high seas.’ In contrast to Part V, Part VII does not contain any express requirement to promote optimum utilization. However, it does nonetheless promote exploitation (for example, Article 119(1)(a)). So one effect of Article 120 is to allow international organizations regulating conservation and management of marine mammals on the high seas to prescribe zero exploitation irrespective of the abundance of the species in question (on which, see further Chapter 5).
Anadromous stocks are addressed by Article 66. Anadromous species are those that migrate regularly between the marine environment and fresh water and breed in the latter. They include, inter alia, sea trout and species of salmon. Article 66 introduces the concept of ‘State of origin’, meaning the State ‘in whose rivers anadromous stocks originate’, ie breed.103 The State of origin has ‘the primary interest in and responsibility for such stocks’ and is given various conservation duties.104
However, Article 66 takes into account that: (a) third States may, to avoid ‘economic dislocation’, need to fish for anadromous stocks in waters beyond the EEZ (although otherwise there is a prohibition on fishing for anadromous stocks beyond the EEZ); and (b) anadromous stocks may migrate via the waters of one or more coastal States (other than the State of origin), which may or may not target such stocks. In turn, paragraphs (2)–(5) of Article 66 regulate the relationship between the State of origin and such States. There is an emphasis on cooperation. The State of origin and other States fishing the stocks in question are to ‘make arrangements for the implementation of the provisions of this article, where appropriate, through regional organizations’.105 An example of such an (p.98) organization is the North Atlantic Salmon Conservation Organization (NASCO), which is discussed in Chapter 5.
Catadromous species are addressed by Article 67. Catadromous species are those that migrate regularly between the marine environment and fresh water and breed in the former. They include some eel species. Article 67 does not use the concept of ‘State of origin’ because catadromous species originate at sea, including the high seas, rather than in fresh water. Instead, it uses the phrase ‘coastal State in whose waters catadromous species spend the greater part of their life cycle’.106
That category of coastal State has ‘responsibility for the management of these species’,107 rather than just ‘the primary interest in and responsibility for such stocks’ (emphasis added) as is the case under Article 66 for States of origin of anadromous stocks. However, ‘[i]n cases where catadromous fish migrate through the [EEZ] of another State, whether as juvenile or maturing fish’, their management is to be regulated by agreement between the two States concerned.108 The corollary of management of catadromous species falling exclusively to coastal States is that no harvesting of those species may take place beyond EEZs.109
3 UN Fish Stocks Agreement110
The Fish Stocks Agreement (hereafter, in this section, the ‘Agreement’),111 as its full title implies, is concerned with two broad categories of fish stocks only: straddling fish stocks and highly migratory fish stocks (see further subsection 2.6 above). By the early 1990s a number of disputes relating to straddling (p.99) fish stocks—notably in the Barents Sea, Bering Sea, the north-west Atlantic, and the Sea of Okhotsk—suggested that the provisions of the Convention relating to straddling stocks (which do no more than call on interested States to seek to agree on necessary conservation measures) were inadequate for the effective management of such stocks.112 That was certainly the view taken in Agenda 21, adopted at the UN Conference on Environment and Development in 1992, which called for an inter-governmental conference ‘with a view to promoting effective implementation of the provisions of’ the Convention on straddling and highly migratory fish stocks,113 a call that was endorsed by the UN General Assembly.114 The conference called for was held between 1993 and 1995, and at its conclusion adopted the Agreement.
The Agreement, which develops Articles 63(2) and 64 of the Convention, as well as section 2 of Part VII, does not contain provisions regulating particular straddling or highly migratory fish stocks. Rather, it establishes a general framework of principles and rules within which, given the necessary political will, particular straddling and highly migratory fish stocks may be better managed at the regional level. The success of the Agreement therefore depends on how well it is implemented at the regional level, as well as on the extent to which high seas fishing States and relevant coastal States become parties to it.
The Agreement begins by setting out, in Article 5, the principles that are to govern the conservation and management of straddling and highly migratory stocks. Although in general the Agreement applies only to the high seas, Article 5, along with Articles 6 and 7, also applies to coastal State management of straddling and highly migratory stocks within areas under national jurisdiction.115 The principles set out in Article 5 include, inter alia: ensuring the long-term sustainability and promoting the optimum utilization of the stocks concerned; applying the precautionary approach; minimizing pollution, waste, discards,116 catch by lost or abandoned gear, catch of non-target species, and impacts on associated or dependent species; protecting biodiversity; preventing or eliminating overfishing and excess fishing capacity; collecting data concerning fishing activities; promoting scientific research; and implementing and enforcing measures through effective monitoring, control, and surveillance. The precautionary approach listed among those principles is spelt out in detail in Article 6 and Annex II. It requires States as fisheries managers to be ‘more cautious when information is uncertain, unreliable or inadequate’ and not to postpone the adoption of conservation and management measures because of an ‘absence of adequate scientific information’.117 States must (p.100) apply the guidelines set out in Annex II and determine, on the basis of the best scientific information available, reference points for each stock that they manage. They must ensure that when such reference points are approached, they are not exceeded.118 The principles set out in Articles 5 and 6 are the most detailed of their kind yet found in a global treaty on fisheries management. If properly applied, they would lead to a significant improvement in the management of straddling and highly migratory fish stocks.
One of the biggest potential obstacles to the effective management of straddling and highly migratory fish stocks is inconsistency between the management measures taken by the coastal State(s) and those taken by high seas fishing States. If their measures are not compatible, there is a likelihood that the management efforts of one will be undermined by the other. This issue is addressed in Article 7 of the Agreement. The Article begins, in its first paragraph, by setting out general obligations of cooperation on the relevant coastal States and the States whose nationals fish for straddling and highly migratory stocks on the high seas. In the case of straddling stocks, such States are to ‘seek, either directly or through’ regional fisheries management organizations or arrangements, ‘to agree upon the measures necessary for the conservation’ of such stocks on the high seas. In the case of highly migratory stocks, such States ‘shall cooperate, either directly or through’ regional fisheries management organizations or arrangements, ‘with a view to ensuring conservation and promoting the objective of optimum utilization of such stocks throughout the region, both with and beyond areas under national jurisdiction’. These provisions use very similar wording to that found in the Convention's provisions on straddling stocks and highly migratory species (see subsection 2.6 above). Article 7(2) goes on to provide that conservation and management measures taken by the coastal State(s) in respect of particular straddling or highly migratory stocks in areas under national jurisdiction and the measures adopted for those stocks for the high seas ‘shall be compatible in order to ensure conservation and management of … stocks in their entirety’ (ie both within areas under national jurisdiction and on the high seas). To that end ‘coastal States and States fishing on the high seas have a duty to co-operate for the purpose of achieving compatible measures’ in respect of straddling and highly migratory stocks. Various factors are listed that are to be taken into account in order to determine such compatibility. States must make every effort to agree on compatible conservation and management measures ‘within a reasonable period of time’.119 If they do not succeed in doing so, any of the States concerned may invoke the Agreement's dispute settlement procedures (discussed below).120 Pending agreement on compatible conservation and management, the States (p.101) concerned ‘shall make every effort to enter into provisional arrangements of a practical nature’.121
The Agreement envisages that the primary mechanism for giving effect to the duty to cooperate referred to in Article 7(1) will be a regional fisheries management organization or arrangement.122 If an appropriate organization or arrangement does not exist in a particular region, one must be created.123 The terms of participation in such organizations or arrangements must not preclude States ‘having a real interest in the fisheries concerned’ from becoming members or participating.124 Requirements as to the scope and functions of both new and existing organizations are spelt out in Articles 9–13.
Articles 8(3) and (4) and 17 are crucial provisions of the Agreement. They provide that where a regional organization or arrangement has the competence to establish conservation and management measures for particular straddling or highly migratory stocks, a State wishing to fish on the high seas for stocks to which such measures apply must be a member of that organization or arrangement or agree to apply its measures. If not, it must not authorize its vessels to fish for those stocks. If it fails to prevent its vessels from fishing for such stocks, members of the relevant regional organization or arrangement must take ‘measures consistent with th[e] Agreement and international law to deter activities of such vessels which undermine the effectiveness of subregional or regional conservation and management measures’.125 These provisions should prevent States parties to the Agreement from being free-riders. (A free-rider in this context would be a State whose vessels enjoyed the potential benefits resulting from the conservation and management measures adopted by the organization or arrangement without having to bear the potential burden of complying with those measures.) In relation to potentially free-riding States that are not parties to the Agreement, Article 33(2) requires States parties to the Agreement to take measures ‘consistent with th[e] Agreement and international law to deter the activities of vessels flying the flag of non-parties which undermine the effective implementation of th[e] Agreement’.126
Parts V and VI of the Agreement deal with the duties of flag States and with compliance and enforcement. A flag State must take such measures as may be necessary to ensure that vessels flying its flag that fish on the high seas comply with the conservation and management measures of regional organizations and arrangements and that they do not engage in any activity that would undermine (p.102) the effectiveness of such measures.127 Where non-compliance is suspected, the flag State must investigate the matter immediately and fully, institute legal proceedings if satisfied that sufficient evidence of a violation exists,128 and, if the alleged violation is proved, impose sanctions ‘adequate in severity to be effective in securing compliance and to discourage violations wherever they occur’ and which must also ‘deprive offenders of the benefits accruing from their illegal activities’.129
Under Article 20 other States are to cooperate with the flag State in the enforcement of conservation and management measures adopted by regional organizations or arrangements, for example by providing evidence of alleged violations. Under Article 21(1) and (2) members of a regional organization or arrangement are to establish schemes whereby any member that is a party to the Agreement may, on the high seas, board and inspect vessels of any other State party to the Agreement, even if the latter State is not a member of the organization or arrangement concerned, for the purpose of ensuring compliance with the conservation and management measures adopted by that organization or arrangement. If within two years of the ‘adoption’ of the Agreement such schemes have not been established, the Agreement itself (in Article 21(3)) authorizes boarding and inspecting in the same circumstances as under Article 21(1). The Agreement does not define the term ‘adoption’, but it presumably means the date on which the text of the Agreement was adopted by the UN conference at which the Agreement was negotiated. If that is correct, it has the curious consequence that the second anniversary of the adoption of the Agreement, which activates the authorization in Article 21(3), actually occurred four years before the entry into force of the Agreement in 2001. As far as the authors are aware, Article 21(3) has not been applied in practice. Where a regional organization or arrangement has established ‘an alternative mechanism’ which effectively discharges the obligation under the Agreement to ensure compliance with the conservation and management measures of that organization or arrangement, its members may agree to limit the application of Article 21(1) as between themselves in respect of the measures that have been established in the relevant high seas area.130
Where a vessel has been boarded and inspected, and the inspection reveals that there are ‘clear grounds’ for believing that the vessel has engaged in any activity contrary to the conservation and management measures of the relevant regional organization or arrangement, the inspecting State must, where appropriate, secure evidence and promptly inform the flag State.131 The latter must either without delay investigate and, if the evidence so warrants, take enforcement action, or authorize the inspecting State to investigate: in the latter situation the flag State must either take enforcement action or authorize the (p.103) inspecting State to do so.132 If, following a boarding and inspection, there are clear grounds for believing that a vessel has committed a ‘serious violation’,133 and if the flag State takes no action, the inspectors may remain on board and secure evidence and, if appropriate, conduct the vessel to an appropriate port.134
The above provisions also apply, mutatis mutandis, to boarding and inspection by a State which is both a party to the Agreement and a member of a regional organization or arrangement and which has clear grounds for believing that a fishing vessel flying the flag of another party to the Agreement has engaged in any activity contrary to the conservation and management measures of that organization or arrangement while on the high seas and that vessel has subsequently, during the same fishing trip, entered into an area under the national jurisdiction of the first-mentioned State.135 The Agreement further provides that where a vessel on the high seas is reasonably believed to have engaged in unauthorized fishing within an area under national jurisdiction, the flag State shall investigate the matter at the request of the coastal State and may authorize the latter to board and inspect the vessel on the high seas.136
The Agreement gives an enforcement role not only to flag and coastal States, but also to port States. Article 23 provides that a port State has ‘the right and the duty’ to take measures, in accordance with international law, to promote the effectiveness of regional and global conservation and management measures. In particular, it may inspect vessels that are voluntarily in its ports and may prohibit the landing or transhipment of catches that have been taken in a manner that undermines the effectiveness of regional and global conservation and management measures on the high seas.
Article 30(1) of the Agreement applies the dispute settlement provisions of Part XV of the Convention, mutatis mutandis, to any dispute relating to the interpretation and application of the Agreement, whether or not parties to the Agreement are also parties to the Convention. Disputes of a technical character may be referred to an ad hoc panel established by the parties to the dispute.137 Article 30(2) of the Agreement is a remarkable provision. It extends the Convention's dispute settlement machinery to disputes concerning the interpretation or application of a regional or global agreement ‘relating to’ straddling or highly migratory stocks, including therefore those agreements establishing regional fisheries management organizations and arrangements of the kind referred to above, where the parties to the dispute are parties both to the Agreement and to the regional or global agreement in question, again whether or not they are parties to the Convention. There are over twenty agreements of the kind referred to in Article 30(2), many of which previously had no machinery for (p.104) settling disputes compulsorily.138 None of the dispute settlement procedures under the Agreement has yet been invoked.139
At the time of writing the Agreement had seventy-two parties, including the EC and all its Member States.140 The remaining forty-four States constitute a diverse group. Significantly, they do not include a number of major high seas fishing States, such as China and Thailand, or a number of significant coastal States (such as Argentina, Chile, Ecuador, and Peru).
Despite the fact that it took six years to enter into force and the relatively limited number of its parties, the Agreement has had a significant impact since it was adopted in 1995. Several treaties establishing new regional fisheries management organizations or arrangements have been concluded that show many influences of, and incorporate principles from, the Agreement, such as the treaties establishing the South East Atlantic Fisheries Organisation141 and the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (see further section 8 below).142 In addition, many existing organizations have changed their practices to accord with the provisions of the Agreement.
As provided for by Article 36, a conference to review the Agreement was held in May 2006. The conference showed considerable support for the Agreement and provoked much discussion as to how it might be developed. It resulted in the adoption of a document that assesses the Agreement and makes recommendations for future action.143
4 FAO Compliance Agreement144
As indicated in the preceding section, much high seas fishing is regulated and managed through regional fisheries management organizations (RFMOs). One of (p.105) the problems faced by RFMOs since the early 1980s has been the practice of some fishing vessel owners changing the registration and flag of their vessels from a member State of an RFMO to a non-member State (often a flag of convenience) in order to avoid being bound by the measures of the RFMO, thus undermining the latter's management efforts.145 One of the principal reasons for embarking on the negotiation of what became the Compliance Agreement (hereafter, in this section, ‘the Agreement’) was to tackle this problem of reflagging. At an early stage of the negotiations, an attempt was made to deal with the problem by proposing that a State should not grant the right to fly its flag to a vessel unless there was a genuine link between that State and the vessel, and the State believed that the vessel would not be used to undermine the effectiveness of international conservation and management measures. However, no agreement could be reached on that or any other measure to tackle directly the issue of reflagging.146
Instead the Agreement, which entered into force on 24 April 2003, focuses on the need for vessels fishing on the high seas to be authorized and on the duties of their flag States. Those duties are similar to, although less detailed than, those found in the later Fish Stocks Agreement. Thus, a flag State shall prohibit its vessels from fishing on the high seas unless it has authorized them to do so,147 and shall only authorize a vessel to fish if it is satisfied that ‘it is able, taking into account the links that exist between it and the fishing vessel concerned, to exercise effectively its responsibilities under this Agreement in respect of that fishing vessel’.148 With some exceptions, no party shall authorize any vessel previously registered in another State that has undermined the effectiveness of international conservation and management measures unless any period of suspension by the previous flag State of an authorization to fish has expired and no authorization has been withdrawn during the previous three years.149 This provision is intended to limit the ability of vessels with a bad compliance record (such as those involved in the reflagging problem) to shop around for a new flag. A vessel that has been authorized by a party to fish on the high seas may only fish in accordance with the conditions laid down in that authorization, must be marked in a way that permits ready identification, and must provide its flag State with such information on its operations as will enable the latter to fulfil its obligations under the Agreement.150 A flag State must maintain a record of all those vessels that it has authorized to fish on the high seas.151
Flag States must enforce the Agreement in respect of their vessels and provide sanctions for breaches of the Agreement of sufficient gravity to be effective in securing compliance and to deprive offenders of the benefits of their illegal (p.106) activities; in the case of serious breaches, sanctions must include suspension or withdrawal of the authorization to fish.152 Other parties shall assist the flag State in exercising its enforcement responsibilities, for example by providing ‘evidentiary material’.153 Such assistance includes, for the first time in a multilateral fisheries agreement, a degree of port State control. Where a party to the Agreement reasonably believes that a fishing vessel voluntarily in one of its ports has been used for an activity that undermines the effectiveness of international conservation and management measures, it shall promptly notify the flag State. ‘Parties may make arrangements regarding the undertaking by port States of such investigatory measures as may be considered necessary to establish whether the fishing vessel has indeed been used contrary to the provisions of this Agreement.’154 It may be noted that these provisions on port State control do not go as far as the corresponding provisions of the later Fish Stocks Agreement, discussed in section 3 above.
Apart from setting out the responsibilities of flag States, the other major concern of the Compliance Agreement is promoting the free flow of information about high seas fishing activities, the lack of which has been an obstacle to effective fisheries management in the past. To that end the Agreement provides that every flag State party must provide information to the FAO about the vessels that it has authorized to fish on the high seas, including action taken against vessels engaging in activities that undermine the effectiveness of international conservation and management measures.155 The FAO is to circulate that information to other parties and to international fisheries organizations.156 Apart from increasing knowledge of high seas fishing activities, such information could also be used, for example, by a coastal State to exclude a vessel with a poor high seas compliance record from fishing in its EEZ.
As noted above, the Compliance Agreement entered into force in April 2003, nearly ten years after it was adopted. At the time of writing it had thirty-six parties, including the EC (but not its Member States),157 as well as a number of major high seas fishing States, such as Japan and South Korea (though not China, Russia, or Thailand).158 Unsurprisingly, hardly any flag of convenience States, at whom much of the Agreement is aimed, have become parties to the Agreement. Without much wider participation, the Agreement is unlikely to make much contribution to improving the management of high seas fisheries. To be effective, the Agreement is also dependent on there being international conservation and management measures in place, something that is not always the case at present.
There is perhaps a rather limited incentive for States to become parties to the Compliance Agreement because its provisions duplicate, to a considerable degree, (p.107) many of those of the Fish Stocks Agreement, especially as regards the duties of flag States. The Fish Stocks Agreement, unlike the Compliance Agreement, does not apply to discrete high seas stocks, but this limitation may not be so very important in practice because most RFMOs that manage straddling stocks also manage the discrete high seas stocks of the region concerned.159 On the other hand, the Fish Stocks Agreement has in some respects a wider ambit, as it applies to all vessels fishing for straddling and highly migratory stocks on the high seas, whereas under the Compliance Agreement its parties may, under certain circumstances and subject to certain conditions, exempt vessels of less than 24 m in length from many of its provisions.160 The major aspect of the Compliance Agreement that has no corresponding provision in the Fish Stocks Agreement is the requirement for its parties to provide the international community, through the FAO, with information on high seas fishing activities. It is therefore a matter of regret that as at the beginning of 2006 only fifteen of the then thirty-two parties to the Compliance Agreement had done so.161
5 FAO's Code of Conduct for Responsible Fisheries, and International Plans of Action
As was noted in section 1 above, the FAO adopted the Code of Conduct for Responsible Fisheries in 1995.162 The Code is wide-ranging in scope, dealing not only with fisheries management (both within national jurisdiction and on the high seas), but also with aquaculture development, integration of fisheries into coastal area management, post-harvest practices and trade, and fisheries research. The Code is not legally binding: essentially it takes the form of a series of exhortations and guidance to States (whether members of the FAO or not), ‘fishing entities’ (probably a reference to Taiwan), governmental and non-governmental organizations, and all others involved in fisheries.163 As the Introduction to the Code puts it, the Code ‘sets out principles and international standards of behaviour for responsible practices with a view to ensuring the effective conservation, management and development of living aquatic resources, with due respect for the ecosystem and biodiversity’. Although the Code is not legally binding, parts of it are (p.108) based on, and to a degree replicate, existing treaties, including the Convention, the Compliance Agreement, and the Fish Stocks Agreement. Furthermore, it is to be interpreted and applied ‘in conformity with’ the Convention; ‘in a manner consistent with’ the Fish Stocks Agreement; and ‘in accordance with other applicable rules of international law’.164 There is an expectation that States and others will apply and implement the Code, notwithstanding its voluntary nature; the FAO will monitor such implementation.165 The FAO has adopted a number of technical guidelines to support implementation of the Code,166 as well as a Strategy for Improving Information on Status and Trends of Capture Fisheries within the framework of the Code.167
Since this chapter is concerned only with fisheries management, discussion of the Code will be confined to those of its provisions that deal with this matter. Articles 6, 7, and 8 of the Code set out various principles for fisheries conservation and management. According to those principles, conservation should be on a long-term and sustainable basis, founded on a precautionary approach and the best scientific advice available; management measures should ensure the conservation not only of target species but also of associated or dependent species or species belonging to the same ecosystem; States should prevent over-fishing and eliminate excess fishing capacity; selective and environmentally safe fishing gear should be developed and applied, and waste and catches of non-target species should be minimized; and States should effectively monitor and control the activities of fishing vessels so as to ensure compliance with their management measures, and impose sanctions of adequate severity for violations of those measures. States should establish an effective legal and administrative framework for giving effect to these principles. In addition, and most importantly, States should promote awareness of responsible fisheries through education and training, and ensure that fishermen are involved and consulted on the formulation and implementation of policy.168 A number of the technical guidelines adopted to promote implementation of the Code deal with fisheries management.
The principles, guidance, and best practice set out in the Code are very sound, if at a considerable level of generality and somewhat repetitive: the technical guidelines relating to implementation of the Code are, however, more detailed and precise. The crucial question is whether States (and others) will follow the Code. As Doulman explains, the Code assumes that governments desire better managed fisheries and are prepared to take the difficult decisions necessary to that end. Governments, however, may have short-term planning and policy horizons and therefore may seek ‘to minimize social and economic disruption through their fishery policy interventions, even when it is recognized that such intervention is (p.109) required to improve’ management.169 In 2007 the FAO reported that more than 90 per cent of its members had national policies and legislation in place that either totally or partially conformed to the Code, and, in the case of partial conformity, were working towards achieving complete conformity.170
The Code has been supplemented by four International Plans of Action (IPOAs), which are also non-binding. The first three were adopted by the FAO in 1999. The first is the IPOA for Reducing Incidental Catch of Seabirds in Longline Fisheries.171 It was prompted by concerns about the impact on their populations of the increasing incidental catch of seabirds in various longline fisheries in different parts of the world. The objective of the IPOA is to reduce that catch.172 To that end States with longline fisheries that have a significant incidental catch of seabirds should adopt a national plan of action for reducing such catch.173 Such a plan should include mitigation measures, as well as plans for research into mitigation measures, raising awareness of the issue among fishermen and others, and data collection. Recognizing that each longline fishery is unique, the IPOA does not recommend any particular measures, but instead simply lists a number of measures that States may find it appropriate to take.174 States should also cooperate, including through RFMOs, to reduce incidental seabird catches.175 The adoption of national plans of action has so far been a slow process. By 2008 only ten such plans had been developed, while a number of others were in draft stage or awaiting government implementation (see further Chapter 5).176
The second IPOA is that for the Conservation and Management of Sharks.177 The IPOA was prompted by concerns over the substantial increase in shark catches in recent years, concerns that were heightened by a lack of knowledge of the biology of sharks and a lack of data on catches and landings. Although not a motivation for the IPOA, there is also considerable concern over the practice of finning, whereby sharks' fins are removed for use in trade, and the remainder of the shark is then discarded at sea. The objective of the IPOA is to ensure the conservation and management of sharks and their long-term sustainable use.178 To that end States whose vessels conduct directed fisheries for sharks or regularly take sharks as by-catch were exhorted to adopt a national plan of action for the conservation and management of shark stocks by 2001. Guidance for such plans is set out in an appendix to the IPOA.179 National shark plans should, inter (p.110) alia, ensure that shark catches are sustainable; assess threats to shark populations; determine and protect critical habitats; and minimize waste and discards from shark catches.180 States should also cooperate, including through RFMOs, to ensure the effective conservation and management of sharks and the sustainability of shark stocks.181 Only about a third of those States with vessels whose activities fall within the scope of the IPOA have so far adopted national plans.182 A number of RFMOs have taken measures to conserve sharks.183
As explained in section 1 above, over-capacity is a major problem in many of the world's fisheries. The IPOA on the Management of Fishing Capacity184 has, as its immediate objective, the achievement by 2005 of an efficient, equitable, and transparent management of fishing capacity by States.185 To that end States should have carried out an assessment of their capacity by 2000, and identified national fleets requiring urgent measures by the end of the following year.186 Within a further year they should have adopted a national plan for the management of fishing capacity, giving due consideration to socio-economic requirements, including alternative sources of employment and livelihood to fishing communities that may have to bear the brunt of reductions in fishing capacity.187 Where there is over-capacity, States should endeavour initially to limit capacity to existing levels, and then gradually reduce it: to the latter end States should reduce and eliminate all factors, including subsidies and economic incentives, that contribute to the build-up of excess capacity.188 In the case of high seas fisheries, States are urged to cooperate, including through RFMOs, to ensure the effective management of fishing capacity. In particular, States should take immediate steps to address the management of capacity in international fisheries for stocks that are significantly over-fished.189 If properly implemented, the IPOA would lead to a major reduction of excess capacity, and thus probably to significant improvements in fisheries management globally. Unfortunately, however, implementation of the IPOA remains ‘weak’: by 2007 less than 10 per cent of FAO members had completed the initial assessment of their fleet's capacity that was due by the end of 2000.190
One of the biggest threats to world fish stocks is illegal, unreported, and unregulated (IUU) fishing. This term refers to a number of different kinds of illegal or undesirable fishing practices, including, inter alia, fishing in national waters without the permission of the coastal State or in contravention of its laws; fishing by a member contrary to the conservation and management measures of an RFMO; (p.111) fishing that is not reported to the relevant national authorities or RFMO; fishing by vessels whose flag States are not members of an RFMO in an area regulated by that RFMO that is not consistent with or contravenes the latter's measures; and fishing in other high seas areas in a manner inconsistent with general conservation obligations under international law.191 IUU fishing undermines the management efforts both of coastal States within their national jurisdiction and of RFMOs on the high seas, and harms vessels fishing legitimately because it reduces the amount of fish available for them to catch. In 2001 the FAO estimated IUU fishing to account for as much as 30 per cent of the world catch.192
An IPOA to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated (IUU) Fishing was adopted by the FAO in 2001.193 Although applying to both areas within national jurisdiction and the high seas, the IPOA is primarily aimed at high seas fishing. The objective of the IPOA is to ‘prevent, deter and eliminate IUU fishing by providing all States with comprehensive, effective and transparent measures by which to act, including through appropriate’ RFMOs.194 To that end, all States should, inter alia, take all possible steps to discourage their nationals and vessels from engaging in IUU fishing; impose sanctions for such fishing of sufficient severity effectively to deter, and deprive offenders of the benefits of, such fishing; undertake comprehensive and effective monitoring, control, and surveillance of fishing from its commencement, through the point of landing, to final destination; develop by 2004 national plans of action to further achieve the objectives of the IPOA and give full effect to its provisions; and cooperate with other States to prevent, deter, and eliminate IUU fishing.195 More specific measures are then set out for flag States (including provisions on the registration, authorization, and maintenance of records of their vessels); coastal States; port States (including provisions on inspection and prohibition of the landing of catches similar to those in the Fish Stocks Agreement);196 research on ways of identifying (p.112) fish species from samples of processed products; assistance to developing States; RFMOs; and the FAO. If all of those measures do not prove adequate, States should seek to prevent trade in fish caught in IUU fishing, subject to their World Trade Organization (WTO) obligations.197 States and RFMOs should report biennially to the FAO on their plans to combat IUU fishing.198 Implementation of the IPOA has been quite slow: by 2007 only about half of the FAO's members had taken steps to develop a national plan of action to combat IUU fishing.199 The FAO has published guidelines to assist States in their implementation of the IPOA.200
The EC's participation in, and implementation of, the four IPOAs is discussed in Chapter 5.
6 Regional fisheries management organizations201
As has been seen earlier in this chapter, a fish stock at the harvestable stage often does not spend its entire time in the waters of just a single State. This, together with the fact that on the high seas jurisdiction over a vessel may in principle be exercised only by its flag State, means that States need to cooperate if there is to be any possibility of effective management of shared, anadromous, straddling, highly migratory, or high seas fish stocks.202 Because it is desirable that such cooperation should take place fairly regularly and frequently, and thus preferably be institutionalized, a number of bodies (p.113) have been set up over the years to manage such stocks. As seen earlier, the Convention, the Fish Stocks Agreement, the Code of Conduct for Responsible Fisheries, and the International Plans of Action all encourage States to cooperate through regional organizations, while the Compliance Agreement assumes their existence.
Some of those organizations are concerned only with the management of shared stocks (on which, see subsection 2.6 above). The focus here is on organizations that are concerned with the management of other kinds of stocks. Such organizations may be divided into two broad categories—those that have the competence to prescribe fishery conservation and management measures that are binding on their members (ie RFMOs), and those that have no regulatory powers and whose role is primarily to advise on the status of fish stocks within their region and possibly also to recommend and/or coordinate management measures which are not legally binding. Because of their relatively limited role, the latter are not considered further here. Such organizations of which the EC is a member are discussed briefly in Chapter 5.
At the present time the principal RFMOs are as follows:
Organizations concerned with the management of straddling stocks and/or discrete high seas fish stocks: the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR),203 the General Fisheries Commission (formerly Council) for the Mediterranean (GFCM),204 the North-East Atlantic Fisheries Commission (NEAFC),205 the Northwest Atlantic Fisheries Organization (NAFO),206 and the South East Atlantic Fisheries Organisation (SEAFO).207 Negotiations are also proceeding to establish an RFMO for straddling and discrete high seas stocks in the South Pacific.208 Organizations concerned with the management of highly migratory species: the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC),209 the Commission for (p.114) the Conservation of Southern Bluefin Tuna (CCSBT),210 the Indian Ocean Tuna Commission (IOTC),211 the Inter-American Tropical Tuna Commission (IATTC),212 and the International Commission for the Conservation of Atlantic Tunas (ICCAT).213 Organizations concerned with anadromous species: the North Atlantic Salmon Conservation Organization (NASCO)214 and the North Pacific Anadromous Fish Commission.215
The above list does not include what would be considered ‘regional fisheries management arrangements’ under the Fish Stocks Agreement, ie where no formal organization is established. The main such arrangements include the 1994 Convention on the Conservation and Management of the Pollock Resources in the Bering Sea,216 the 2006 Southern Indian Ocean Fisheries Agreement,217 and a series of annual agreements relating to the management of blue whiting, Norwegian spring-spawning (Atlanto-Scandian) herring, and mackerel in the north-east Atlantic.218 In the case of the first and third of these arrangements, the participants meet regularly to adopt and review management measures.
There are also a number of organizations concerned with cetaceans. Although cetaceans are not, of course, fish, organizations concerned with cetaceans are frequently discussed in the literature on RFMOs because they share many of the characteristics of RFMOs. The main organizations concerned with cetaceans are the International Whaling Commission (IWC)219 and the North Atlantic Marine Mammal Commission (NAMMCO).220 Although operating through conferences/meetings of the parties rather than an organization as such, the 1979 Convention on the Conservation of Migratory Species of Wild Animals221 and two of the agreements concluded under its auspices, the 1992 Agreement on the Conservation of (p.115) Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas222 and the 1996 Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area,223 as well as the 2006 Memorandum of Understanding for the Conservation of Cetaceans and Their Habitats in the Pacific Islands Region,224 are concerned with the conservation and management of cetaceans.
The EC is a member of many of the RFMOs listed above. The issue of such membership and the EC's participation in those bodies is reviewed in Chapter 5.
Most RFMOs have broadly similar powers to adopt conservation and management measures. Thus, each year they usually establish TACs for at least some of the fish stocks for whose management they are responsible. Those TACs are then often divided into quotas allocated to individual members of the RFMO. TACs and quotas are frequently supplemented by other conservation measures, such as fishing gear regulations (eg minimum mesh sizes), minimum fish sizes, and by-catch levels. In addition, most RFMOs have the competence to take various steps to promote compliance with their conservation and management measures, such as the adoption of international inspection and observer schemes and vessel reporting requirements. Some RFMOs also have the power to take measures to protect the wider marine environment from the adverse consequences of fishing (see further section 8 below).
In spite of having quite extensive powers, most RFMOs have faced similar problems in managing the fish stocks for which they are responsible. Such problems include inadequate scientific knowledge of the fish stocks for which they are responsible; the inability of their members to agree on adequate conservation and management measures, of which part of the cause is the difficulty in agreeing on criteria for allocating fishing opportunities among members; the possibility in most RFMOs for members to invoke objection procedures and so opt out of such measures as are adopted; an inability or unwillingness on the part of members properly to enforce an RFMO's conservation and management measures; a failure to take sufficient account of the impact of fishing on the wider ecosystem; and the undermining of RFMO measures as a result of fishing by vessels flying the flag of non-member States (which are often flags of convenience), sometimes operated by nationals of member States of the RFMO who have re-registered their vessels under such flags specifically to avoid being bound by the RFMO's measures. Many of these problems have been exacerbated by over-capacity in many of the fishing fleets of RFMO member States.
In recent years steps have been taken in a number of RFMOs to try to overcome some of these problems. This development has been prompted especially by the various global fisheries instruments adopted in the mid-1990s which were surveyed earlier in this chapter. As far as the problem of members (p.116) invoking an RFMO's objection procedure is concerned, it has been made more difficult to invoke the objection procedures in some RFMOs, such as the SEAFO and the NEAFC, by including in, or adding to, their constitutive treaties a requirement that any member proposing to object to a measure must give reasons for its objection (and in the case of the SEAFO such objections may be made on only a limited number of grounds). Furthermore, an objecting member must indicate any alternative measures that it intends to take.225 Going further, the WCPFC Convention unusually, and uniquely for an RFMO in which decisions may be taken by majority vote (although only if consensus cannot be obtained), contains no possibility for members to object to its measures, the coastal States of the region having successfully resisted attempts made by distant-water fishing States to include such a possibility when negotiating the WCPFC Convention.226
As far as the problem of non-compliance by members of an RFMO is concerned, a number of steps have been taken to improve compliance with RFMO management measures. Many RFMOs (for example, the CCAMLR, NAFO, NEAFC, and WCPFC) have adopted international inspection schemes, whereby a fishing vessel registered in one RFMO member State may be inspected by a fisheries enforcement vessel belonging to any other member State of that RFMO. Usually in such schemes an inspector must notify the flag State of any apparent infringement and may prohibit the vessel from further fishing. The flag State must investigate such allegations of illegal fishing promptly (including ordering the vessel to a nearby port if justified), and prosecute where the evidence so warrants. For any RFMOs that do not have such schemes, the Fish Stocks Agreement gives similar powers of inspection, as was seen in section 3 above. Secondly, some RFMOs (for example, the CCAMLR, IATTC, NAFO, and WCPFC) have adopted international observer schemes under which observers must be placed on board fishing vessels. The task of observers is to monitor a vessel's compliance with the RFMO's measures. Mere presence of an observer may induce compliance. In some schemes (such as that of the NAFO) an observer must report any apparent infringements to an inspector and send a report to the RFMO and the flag State. Thirdly, many RFMOs require vessels fishing in their area of competence to report on their movements and activities within and into and out of the area. At their most sophisticated, such reporting schemes require vessels to be fitted with transponders to record their movements and send the information in near ‘real time’ to the RFMO concerned. Fourthly, a number of (p.117) RFMOs (such as the NAFO and NEAFC) have adopted schemes that require port States to inspect the vessels of RFMO member States using their ports and prohibit the landing of catches that appear to have been taken in contravention of RFMO management measures. Other means used to induce compliance include the investigation and publicizing by an RFMO of the action taken by flag States in response to allegations of non-compliance by their vessels with that RFMO's measures (a measure employed by the NAFO and NEAFC); blacklisting member States’ vessels that have engaged in IUU fishing (done, for example, by the CCAMLR, ICCAT, and SEAFO); and reducing an RFMO member's future quotas where it has exceeded its existing quotas (done so far only by the CCSBT and ICCAT).227
RFMOs have also taken various steps to combat the activities of non-members. Some RFMOs (such as the CCSBT, ICCAT, IOTC, and NEAFC) have introduced cooperating non-member schemes whereby they will allocate small quotas to those non-members that are prepared to cooperate and observe the management measures of the RFMO concerned. For non-members that are not willing to cooperate (especially flags of convenience), tougher measures have been introduced by the CCAMLR, ICCAT, NAFO, NEAFC, and others. Such measures include, inter alia, requiring members of an RFMO to prohibit the landing in their ports of catches taken by non-member vessels in the RFMO's area; the blacklisting of non-member vessels that have engaged in IUU fishing (such vessels may not then, for example, have access to RFMO member ports or be authorized to fish within the national jurisdiction of RFMO members); and regulating transhipment by prohibiting transhipment between RFMO member vessels and non-member vessels or by permitting transhipment only to authorized vessels.228
The other problems of RFMOs referred to above have been the object of less action and are less susceptible to solution. There are two provisions in the global fisheries instruments discussed earlier that could help to address some of these problems. The first such provision is the requirement in the Fish Stocks Agreement and the Code of Conduct for Responsible Fisheries to apply a precautionary approach to fisheries management. Quite a number of RFMOs have already embraced or are in the process of adopting such an approach. They include the CCAMLR, IATTC, ICCAT, NAFO, NASCO, and NEAFC,229 as well as the more recently established SEAFO and WCPFC and the reformed GFCM (p.118) whose constituent treaties require them to adopt a precautionary approach.230 Some RFMOs are also beginning to employ an ecosystem approach (see further section 8 below). The second provision that may help is the requirement in Article 12 of the Fish Stocks Agreement for RFMOs to be transparent in their decision-making processes and to permit the representatives of non-governmental organizations (NGOs) to attend their meetings as observers. The participation of NGOs in their meetings may put pressure on RFMOs to be more conservation- and sustainability-minded. Many RFMOs concerned with straddling or highly migratory fish stocks, such as the ICCAT, NAFO, SEAFO, and WCPFC, have taken steps to give effect to Article 12.
If every RFMO were to adopt the best practices of the most advanced RFMOs outlined above,231 there is a good chance that the management by RFMOs of the fish stocks for which they are responsible would overall be significantly improved.
7 UN General Assembly resolutions
As is well known, UN General Assembly resolutions are not legally binding, except on internal organizational matters such as adoption of the UN budget and the admission of new members to the UN. Nevertheless, it is widely recognized that some General Assembly resolutions are of legal significance; for example, because they may form part of practice establishing a rule of customary international law or because they may prompt the adoption of legally binding acts in other fora.232 In this sense we may speak of General Assembly resolutions as being a form of soft law.233 The General Assembly has adopted a considerable number of resolutions relating to fisheries. Since the late 1980s it has adopted annually or biennially a resolution devoted exclusively to fisheries. In addition, the Assembly's annual Law of the Sea resolutions usually contain some paragraphs addressing fisheries. These resolutions cover many different aspects of fisheries, but there are two particular matters that have been the subject of resolutions that appear to have acquired a soft-law character. The first relates to the use of driftnets, the second to vulnerable marine ecosystems.
(p.119) A driftnet is, in broad terms, a type of net that is suspended vertically near the surface of the sea to a depth of about 30 ft and left to drift for some time before being hauled out of the water. Driftnets were often many miles in length. By the late 1980s such nets were causing widespread concern because of their indiscriminate nature, as they caught not only their target species (usually tuna, salmon, or squid) but also large numbers of other species of fish, marine mammals (particularly dolphins), turtles, and birds.234 That concern led the UN General Assembly in 1989 and 1991 to adopt resolutions that called for a moratorium on ‘large-scale’ driftnet fishing on the high seas by the end of 1992 unless it could be shown for a particular region that effective conservation and management measures to prevent the unacceptable impact of such fishing had been adopted.235 The resolutions prompted a considerable amount of legislative action prohibiting high seas driftnet fishing, including a regional treaty (the 1989 Wellington Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific236), measures adopted by various RFMOs, and national legislation.237 It has been argued that as a result of such action the moratorium for which the General Assembly resolutions call has become part of customary international law, and thus legally binding.238 EC legislation banning driftnet fishing is examined in Chapters 4 and 5.
The second matter that has been addressed in General Assembly resolutions in a way that suggests that the relevant parts of the resolutions have attained a soft-law character is the protection of high seas vulnerable marine ecosystems (VMEs) from damaging fishing practices. In recent years various kinds of marine ecosystem have increasingly attracted the attention of the international community because of their vulnerability to certain kinds of fishing practices. The ecosystems particularly identified are those associated with cold-water coral reefs, seamounts, and hydrothermal vents. Those three features are found mainly, but not exclusively, in the high seas. Although physically very different, they have certain things in common: in particular, they are areas rich in biological diversity, little is known about most of the plant and animal species living on or near them, and they are particularly vulnerable to damage (p.120) caused by certain kinds of deep-sea fishing practices, in particular bottom trawling. The concerns of the international community over this last matter have been reflected, to a considerable extent, in various General Assembly resolutions.
The first significant resolution is Resolution 59/25, adopted in 2004.239 The Resolution called on States, acting individually or through RFMOs, to take action ‘urgently’ to consider on a case-by-case basis the interim prohibition of destructive fishing practices, including bottom trawling, that had adverse impacts on VMEs until ‘appropriate’ conservation and management measures had been adopted,240 which should be done by RFMOs ‘urgently’.241 Two years later the General Assembly adopted Resolution 61/105,242 in which it called on States to take action ‘immediately’, both individually and through RFMOs or regional fisheries management arrangements, to protect VMEs, including the three kinds of features mentioned above, ‘from destructive fishing practices, recognizing the immense importance and value of deep sea ecosystems and the biodiversity they contain’.243 The Resolution goes on to call on RFMOs or arrangements with the competence to regulate bottom fisheries, as a matter of priority but by the end of 2008 at the latest, to identify VMEs and assess the damage that bottom fishing causes to them; to ‘close … areas [around VMEs] to bottom fishing and ensure that such activities do not proceed unless conservation and management measures have been established to prevent significant adverse impacts on [VMEs]’; and to ‘require’ their members to ‘cease bottom fishing activities in areas where, in the course of fishing operations, [VMEs] are encountered, and to report the encounter so that appropriate measures can be adopted in respect of the relevant site’.244 Resolution 61/105 also calls on flag States to adopt the same measures, mutatis mutandis, or cease to authorize their vessels to conduct bottom fisheries in areas beyond national jurisdiction where there is no RFMO or arrangement in operation,245 and to inform the FAO of those vessels that have been authorized to conduct bottom fisheries in areas beyond national jurisdiction and the measures that they have adopted.246 As can be seen, the language of the Resolution is somewhat repetitive and not entirely consistent, reflecting perhaps (p.121) its compromise nature and the fact that it does not contain the clear-cut prohibition on bottom fishing in areas beyond national jurisdiction that some UN member States and environmental NGOs had sought.247
Nevertheless, Resolutions 59/25 and 61/105, or at least the same concerns that prompted them, have led to action to protect VMEs being taken in other fora. A number of RFMOs, notably the CCAMLR, GFCM, NAFO, NEAFC, and SEAFO, have adopted measures to restrict or prohibit fishing in the vicinity of certain specifically identified VMEs. Secondly, the FAO has been working on producing guidelines for the management of deep-sea fisheries in the high seas. A set of guidelines was produced at the end of a Technical Consultation held in August 2008248 and was forwarded to the FAO's Committee on Fisheries with a view to its adoption at the next biennial meeting of the Committee in March 2009. The role of the Guidelines, according to paragraph 6, is ‘to provide tools, including guidance on their application, to facilitate and encourage the efforts of States and RFMOs towards sustainable use of marine living resources exploited by deep-sea fisheries, the prevention of significant adverse impacts on deep-sea VMEs and the protection of marine biodiversity that these ecosystems contain’. ‘Deep-sea fisheries’ are defined as fisheries that occur beyond national jurisdiction where the total catch includes ‘species that can only sustain low exploitation rates’ and where the fishing gear used is ‘likely to contact the seafloor during the normal course of fishing operations’.249 The concepts of VMEs and ‘significant adverse impacts’ are explained in paragraphs 14–16 (and Annex 1) and 17–20, respectively. The Guidelines then go on to address governance and management (paragraphs 21–29); ‘management and conservation steps’ (including: (a) data, reporting, and assessment; (b) identifying VMEs and assessing significant adverse impacts; (c) enforcement and compliance; (d) management and conservation tools; and (e) assessment and review of effectiveness of measures) (paragraphs 30–83); special requirements of developing countries (paragraphs 84–85); and additional considerations of implementation (paragraphs 86–89). The Guidelines are discussed in more detail in section 8 below in respect of environmental protection. The EC has adopted its own legislation in response to the General Assembly's resolutions.250 That legislation is examined in Chapter 5.
Fisheries management is no longer solely about the conservation of the target fish stocks. Instead, international fisheries management is moving towards an ecosystem-based approach, whereby the focus is the structure, processes, and functions of the relevant ecosystem as a whole rather than merely the population size of a given fish stock. A discussion of the meaning of the so-called ‘ecosystem approach’, and the means to make it operational, is beyond the scope of this chapter, but a large amount of material is now available on the subject,251 and the ecosystem approach in an EC context is discussed in Chapter 4. Instead, this section will simply seek to illustrate how consideration of species beyond the target fish stock, and their habitats, has come to play a role in international fisheries management. It does this by focusing almost entirely on the wording of certain global and regional treaties, but without any consideration of the practice under those treaties.
At a global level, the UN Convention on the Law of the Sea (see section 2 above) expressly acknowledges the interaction between fisheries and the wider environment in its Articles 61 and 119 on the EEZ and the high seas respectively. Both those provisions require States to establish fisheries conservation measures that produce maximum sustainable yield albeit ‘as qualified by relevant environmental and economic factors’ (emphasis added)252 and to ‘take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened’.253
In its Part XII, the Convention on the Law of the Sea also contains more general provisions on environmental protection including an obligation to take measures ‘necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’.254
The need to integrate environmental protection into, inter alia, the fisheries sector has also been significantly promoted by the 1992 Convention on Biological Diversity,255 in that Article 6 requires each party, ‘in accordance with its particular conditions and capabilities’, to ‘[i]ntegrate, as far as possible and as appropriate, the (p.123) conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies’. The accompanying Rio Declaration on Environment and Development256 and Agenda 21257 give additional, albeit non-legally binding, weight to that obligation.
Subsequent to the Convention on the Law of the Sea and the Convention on Biological Diversity, the Fish Stocks Agreement (see section 3 above) includes provisions reiterating, and perhaps supplementing, the Law of the Sea Convention's provisions on environmental integration. It reiterates the points from Articles 61 and 119 about maximum sustainable yield ‘as qualified by relevant environmental and economic factors’258 and contains various provisions on species associated with or dependent upon target stocks and on protection of the wider environment.259
Of note, the treaty introduces the term ‘species belonging to the same ecosystem’, which is potentially broader than a reference merely to associated or dependent species. For such species, as well as for associated and dependent species, the parties are to ‘assess the impacts of fishing, other human activities and environmental factors’ (emphasis added)260 and to ‘adopt, where necessary, conservation and management measures … with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened’.261
The Fish Stocks Agreement also uses the term ‘non-target species’, which is expressly stated as including both fish and non-fish species.262 Again, that term is potentially broader in scope than references to associated or dependent species. Regarding non-target species, assessments of the impact of fishing are to be undertaken by parties and by RFMOs,263 catch recording, reporting, and verification requirements are to be established by flag States,264 complete and accurate catch data are to be shared among the parties in a timely manner,265 and uncertainties regarding the impact of fishing activities are to be taken into account in implementing the precautionary approach.266
More substantively, catch of non-target species is to be minimized ‘through measures including, to the extent practicable, the development and use of selective, environmentally safe and cost-effective fishing gear and techniques’267 and conservation plans for such species are to be adopted where necessary.268 Enhanced monitoring, both of species' status and efficacy of conservation measures, is to be undertaken in cases of concern.269 With some exceptions or (p.124) slight modifications, the above duties likewise relate to species associated with or dependent upon the target stocks.
As well as its provisions on associated or dependent species, on ‘species belonging to the same ecosystem’, and on ‘non-target species’, the Fish Stocks Agreement also refers at one point to the protection of ‘habitats of special concern’270 and to a general principle to ‘protect biodiversity in the marine environment’.271 Overall, the Agreement is clearly an important step in developing States' duties to protect the wider environment in the course of fishing activities. That said, the Agreement is of course focused on fisheries for a relatively narrow group of stocks, namely straddling stocks and highly migratory stocks.
The provisions in the Fish Stocks Agreement on protection of the wider environment have been reflected in treaties establishing RFMOs after 1995, the year in which the Fish Stocks Agreement was adopted. Examples include the WCPFC Convention,272 the SEAFO Convention,273 and the Antigua Convention (not yet in force),274 all of which replicate wording, with some adaptations, from the Fish Stocks Agreement, as well as introducing new terminology. The same applies to the 2006 Southern Indian Ocean Fisheries Agreement.275 The SEAFO Convention defines the term ‘marine living resources’ as ‘all living components of marine ecosystems, including seabirds’,276 which of course has consequences where that term is used later in the treaty.
In addition, some RFMO treaties that were adopted prior to 1995 have recently been amended or replaced in order to provide their corresponding RFMOs with a firmer legal basis to adopt environmental protection measures. The amended version of the NEAFC Convention, which is not yet in force but is meanwhile being applied provisionally,277 uses relatively concise amendments to the previous treaty to provide the North-East Atlantic Fisheries Commission with the necessary environmental protection powers.278 As with the SEAFO Convention, the amended NEAFC Convention defines the term ‘marine living resources’ broadly as ‘all living components of marine ecosystems’.279 In contrast, the 2007 amendments to the NAFO Convention, which are yet to enter into force, involve (p.125) replacement of entire articles.280 Like the SEAFO and NEAFC Conventions, the 2007 amendments define the term ‘living resources’ as ‘all living components of marine ecosystems’.281
Some RFMO treaties pre-dating the Fish Stocks Agreement already contained express references to species other than the target species. The IATTC Convention, adopted in 1949, requires the IATTC to, inter alia, ‘[m]ake investigations concerning the abundance, biology, biometry, and ecology of … the kinds of fishes commonly used as bait in the tuna fisheries, especially the anchovetta, and of other kinds of fish taken by tuna fishing vessels; and the effects of natural factors and human activities on the abundance of the populations of fishes supporting all these fisheries’.282 However, the reference to investigations concerning bait fish may well reflect an interest in having sufficient bait for tuna fisheries rather than any broader ecosystem concern. Related to the IATTC Convention, and highly relevant to the impact of fishing on the wider environment, is the 1998 Agreement on the International Dolphin Conservation Program (AIDCP) which is discussed in Chapter 5.
The CCAMLR Convention, adopted in 1980, is well known for its early incorporation of an ecosystem approach. It defines the term ‘Antarctic marine living resources’ as ‘the populations of fin fish, molluscs, crustaceans and all other species of living organisms, including birds, found south of the Antarctic Convergence’,283 and states its objective as being the conservation of such resources.284 Many of the treaty's provisions reflect the relationship between target species and the rest of the Antarctic marine ecosystem.
The CCSBT Convention, adopted in 1993, also contains language regarding the wider environment. It uses the term ‘ecologically related species’, defined as ‘living marine species which are associated with southern bluefin tuna, including but not restricted to both predators and prey of southern bluefin tuna’.285 Express duties regarding such species include a requirement on parties to: (a) provide to the CCSBT, for collection and accumulation,286 scientific information, catch and effort statistics, and other data relevant to those species, as appropriate;287 and (b) cooperate in collection and direct exchange, when appropriate, of fisheries data, biological samples, and other information relevant for scientific research on those species.288
In addition, the Scientific Committee is to, inter alia, report to the CCSBT its findings or conclusions on the status of such species, where appropriate.289 In turn, the CCSBT is to take ‘full account’ of, inter alia, any report of the Scientific Committee on the status of ‘ecologically related species’ when deciding upon: (a) (p.126) the total allowable catch and, if necessary, any additional binding measures for the conservation, management, and optimum utilization of southern bluefin tuna; and (b) recommendations to the parties in order to further the attainment of the treaty's objective.290
The analysis so far has focused on treaties. Some soft-law instruments also address the wider impact of fishing. Central amongst these is the FAO Code of Conduct for Responsible Fisheries (see section 5 above). The Code does not expressly refer to the ecosystem approach but contains many provisions consistent with it. The FAO's International Plans of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries and for the Conservation and Management of Sharks (on which, see again section 5 above) are also clearly relevant to the wider impact of fishing. In 2001, the Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem was adopted by a conference jointly organized by the FAO and Iceland and attended by representatives of fifty-nine members of the FAO.291 The Declaration uses the term ‘ecosystem considerations’ and recognizes that ‘sustainable fisheries management incorporating ecosystem considerations entails taking into account the impacts of fisheries on the marine ecosystem and the impacts of the marine ecosystem on fisheries’.292
The Plan of Implementation of the World Summit on Sustainable Development,293 adopted in 2002, notes that ensuring the sustainable development of the oceans requires actions at all levels to ‘[e]ncourage the application by 2010 of the ecosystem approach, noting the Reykjavik Declaration … and decision V/6 of the Conference of Parties to the Convention on Biological Diversity’.294 However, the Plan itself fails to elaborate on the meaning of the term ‘ecosystem approach’. The United Nations General Assembly resolutions on driftnet fishing and vulnerable marine ecosystems (see section 7 above) may also be seen as a response to the need to address the wider impact of fishing.
In August 2008, as noted in section 7 above, an FAO technical consultation adopted International Guidelines for the Management of Deep-sea Fisheries in the High Seas,295 aimed at States and regional fisheries management organizations and arrangements.296 With a focus on fishing gear that routinely touches the seafloor,297 the Guidelines deal with conservation of the relevant fish stocks and prevention of ‘significant adverse impacts’ by relevant fishing activities on so-called ‘vulnerable marine ecosystems’ (VMEs).298 Many of the Guidelines' (p.127) sections deal with both these elements.299 However, there are also sections specifically on VMEs, namely on the meaning of the terms ‘vulnerable’ and ‘significant adverse impact’,300 on the identification of VMEs and the assessment of significant adverse impacts,301 and on the types of species and so on comprising VMEs.302
The Guidelines are a blend of the general and the specific, and are rather unclear in places by virtue of variations in terminology from one provision to the next. An important example of a specific measure is the use of impact assessments ‘to establish if deep-sea fishing activities are likely to produce significant adverse impacts in a given area’.303 The Guidelines state that the relevant fishing activities should be ‘managed to prevent such impacts [on VMEs] or not authorized to proceed, if it is assessed … that they would have significant adverse impacts’.304 The latter provision is somewhat ambiguous. However, one interpretation is that if the assessment reveals that the fishing activities, despite any mitigation measures, would have significant adverse impacts on one or more VMEs, those activities should not be authorized to proceed. If the presence of VMEs or the likelihood of significant adverse impacts ‘cannot be adequately determined’, some specific precautionary measures are to be employed.305 Pending the development of ‘a functioning regulatory framework’ to, inter alia, prevent significant adverse impacts on VMEs, interim measures should include, amongst others, ‘closing of areas to [the relevant fishing activities] where VMEs are known or likely to occur, based on the best available scientific and technical information’.306
A strong focus of the Guidelines is data collection and analysis in order to identify the location of VMEs.307 This is not surprising given the current lack of knowledge in this regard. In principle, Decision IX/20 of the conference of the parties to the Convention on Biological Diversity, adopted in May 2008, is likely to be highly relevant to the identification of VMEs, and hence to the implementation of the Guidelines, because it includes ‘scientific criteria for identifying ecologically or biologically significant marine areas in need of protection in open-ocean waters and deep-sea habitats’ (emphasis added).308
Lastly, in this brief survey, it should be mentioned that a wide variety of instruments on environmental protection that are not directly or primarily related to fishing nonetheless contain provisions that are potentially relevant to the conduct of fishing activities in relation to the wider environment. Some examples (p.128) are the 1992 Convention on Biological Diversity (see, for instance, Decision IX/20 referred to above), the 1979 Convention on the Conservation of Migratory Species of Wild Animals, and various agreements made under the latter treaty. Some such instruments are discussed in Chapter 5.
According to the most recent biennial report of the FAO on the state of world fisheries and aquaculture, the proportion of the world's fish stocks that is over-exploited and depleted increased from about 10 per cent in the mid-1970s to around 25 per cent by the early 1990s, since when it has remained stable. Furthermore, since the early 1990s about half of all stocks have been fully exploited and so producing catches at or close to their maximum sustainable limits, with no room for further expansion. In the view of the FAO, around 80 per cent of the world's fish stocks require effective, precautionary, and more controlled management.309
It is clear from those figures that fisheries management, both national and international, has not been successful over the past thirty years or more. Various reasons for this lack of success have been suggested during the course of this chapter. They include lack of the necessary scientific knowledge; the adoption of inadequate management measures, often as a result of short-term political and socio-economic pressures which are frequently caused by over-capacity in fishing fleets and the open access nature of many fisheries; and inadequate compliance with and enforcement of management measures, both within national jurisdiction and on the high seas. The Plan of Implementation adopted by the World Summit on Sustainable Development, held at Johannesburg in 2002, calls on States to ‘maintain or restore stocks to levels that can produce the maximum sustainable yield with the aim of achieving these goals for depleted stocks on an urgent basis and where possible not later than 2015’310—a goal that the FAO has described as ‘a high-order challenge’.311 While the various international instruments adopted during the 1990s that were surveyed above may not yet have led to major improvements in fisheries management, it is to be hoped that they will do so and enable States to meet the challenge set by the World Summit on Sustainable Development.
(1) FAO, FAO Technical Guidelines for Responsible Fisheries No 4. Fisheries Management (Rome: FAO, 1997), 7Guidelines
(3) Code of Conduct for Responsible Fisheries, FAO Doc 95/20/Rev 1 (1995) (available on the website of the Fisheries and Aquaculture Department of the FAO), Arts 6.2, 7.1.1, and 7.2.1. The Code is discussed in section 5 below.
(4) Guidelines, 9.
(5) Guidelines, 13, 45–6
(6) Guidelines, 46–8.
(7) Guidelines, 31–6 and 41–3.
(8) Code of Conduct, Arts 6.5 and 7.5.
(9) For further discussion of the precautionary approach to fisheries management, see FAO, FAO Technical Guidelines for Responsible Fisheries No 2. Precautionary Approach to Capture Fisheries and Species Introductions (Rome: FAO, 1996); Garcia, SM, ‘The Precautionary Principle: its Implications in Capture Fisheries Management’ OCM 22 (1994), 99; Garcia, SM, ‘The Precautionary Approach to Fisheries: Progress Review and Main Issues (1995–2000)’ in Nordquist MH and Moore, JN (eds), Current Fisheries Issues and the Food and Agriculture Organization of the United Nations (The Hague: Martinus Nijhoff, 2000), 479–560; and Hewison, GJ, ‘The Precautionary Approach to Fisheries Management: An Environmental Perspective’ IJMCL 11 (1996), 301.
(10) Guidelines, 18.
(11) Guidelines, 45.
(12) GuidelinesTroadec, J-P, Introduction to Fisheries Management: Advantages, Difficulties and Mechanisms, FAO Fisheries Technical Paper 224 (Rome: FAO, 1983), 6–9
(13) Guidelines, 17 and 52.
(14) Brown, J, Fishing Capacity Management in the EU post 2002 CFP Reform (London: Institute for European Environmental Policy, 2006), 1Guidelines
(15) FAO, The State of World Fisheries and Aquaculture 2008 (Rome: FAO, 2009), 9 and 66–7, available on the website of the Fisheries and Aquaculture Department of the FAO.
(16) Guidelines, 34 and 39–40.
(17) 1833 UNTS 396.
(18) FAO, The State of Fisheries and Aquaculture (Rome: FAO, 1995), 8
(19) Hey, E, ‘Global Fisheries Regulations in the First Half of the 1990s’ IJMCL 11 (1996) 459 at 460–?4.
(20) See, in particular, the Cancun Declaration on Responsible Fishing, reproduced in UN Doc A/?CONF.151/15, Annex. Also available on the website of the Fisheries and Aquaculture Department of the FAO.
(21) IJECL 7 (1992), 296–329
(22) 2221 UNTS 91.
(23) 2167 UNTS 3.
(24) See the website of the Division for Ocean Affairs and the Law of the Sea (DOALOS) of the Office of Legal Affairs of the United Nations.
(25) Annex IX, Art 4(3).
(26) Annex IX, Art 4(3).
(27) Churchill, RR and Lowe, AV, The Law of the Sea (3rd edn, Manchester: Manchester University Press, 1999), 290
(28) Art 8(1).
(29) Art 5.
(30) Arts 6–14.
(31) Art 3.
(32) Art 2(2).
(33) Art 17.
(34) Art 8(2).
(35) Art 19(2)(i).
(36) Art 245.
(37) Arts 55 and 57.
(38) Art 56(2).
(39) Art 56(1)(a).
(40) Art 56(3).
(41) Art 56(1)(a).
(42) See the website of the DOALOS.
(43) Churchill and Lowe, The Law of the Sea, 288.
(44) Art 68.
(45) Art 62(1).
(46) Art 61(2).
(47) Art 61(3).
(48) Art 61(4).
(49) Art 61(1).
(50) Art 62(2).
(51) Art 62(2).
(52) Art 62(3).
(53) Art 62(2) and (4).
(54) Art 62(4).
(55) Art 62(4).
(56) Art 297(3)(a).
(57) Art 297(3)(a).
(58) Art 297(3)(b).
(59) Art 297(3)(b).
(60) Art 297(3)(c).
(61) Annex V, Arts 14 and 7(2).
(62) Art 73(1).
(63) Art 73(2).
(64) ITLOS Case No 5, The ‘Camouco’ Case (Panama v France); ITLOS Case No 6, The ‘Monte Confurco’ Case (Seychelles v France); ITLOS Case No 11, The ‘Volga’ Case (Russian Federation v Australia); ITLOS Case No 14, The ‘Hoshinmaru’ Case (Japan v Russian Federation); and ITLOS Case No 15, The ‘Tomimaru’ Case (Japan v Russian Federation). The judgments of the ITLOS are available on its website.
(65) ITLOS Case No 1, The M/V ‘SAIGA’ Case (Saint Vincent and the Grenadines v Guinea); and ITLOS Case No 13, The ‘Juno Trader’ Case (Saint Vincent and the Grenadines v Guinea-Bissau).
(66) Art 246(5)(a).
(67) Art 76(1). See also Art 76(3).
(68) Art 76(1).
(69) Arts 76(10) and 83.
(70) Art 76(1).
(71) Art 76(5).
(72) Art 77(3).
(73) Art 77(2).
(74) Art 78(1).
(75) Art 78(2).
(76) Art 77(4).
(77) Art 77(4).
(78) Churchill and Lowe, The Law of the Sea, 151.
(79) Art 68.
(80) See the website of the DOALOS.
(81) Annex II, Art 4.
(82) Document SPLOS/72, Meeting of States Parties [to the United Nations Convention on the Law of the Sea], Eleventh Meeting, New York, 14–18 May 2001.
(83) Document SPLOS/183, Meeting of States Parties [to the United Nations Convention on the Law of the Sea], Eighteenth Meeting, New York, 13–20 June 2008.
(84) Annex II, Art 8.
(85) Art 246(5)(a), (6), and (7).
(86) Art 86.
(87) The term ‘the Area’ is defined by the Convention as ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’ (see Art 1(1)).
(88) Art 87(1).
(89) Art 87(1)(e).
(90) Art 119(1)(a) and (b).
(91) Art 119(3).
(92) Art 92(1).
(93) ITLOS Cases Nos 3 and 4, Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan); Annex VII Arbitral Tribunal (2000), Southern Bluefin Tuna Case (Australia and New Zealand v Japan); and ITLOS Case No 7, Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community). Case No 7 is discussed briefly in Chapter 5.
(94) 499 UNTS 311.
(95) Art 5(1).
(96) Nandan, SN, Rosenne, S, and Grandy, NR, United Nations Convention on the Law of the Sea 1982—A Commentary, Vol II (Dordrecht: Martinus Nijhoff Publishers, 1993), 905
(97) Attard, DJ, The Exclusive Economic Zone in International Law (Oxford: Clarendon Press, 1987), 144
(99) Burke, WT, ‘Annex 1–1982 Convention on the Law of the Sea Provisions on Conditions of Access to Fisheries Subject to National Jurisdiction’ in FAO, Report of the Expert Consultation on the Conditions of Access to the Fish Resources of the Exclusive Economic Zones, Rome, 11–15 April 1983: A Preparatory Meeting for the FAO World Conference on Fisheries Management and Development, FAO Fisheries Report 293 (Rome: FAO, 1983
(100) Churchill and Lowe, The Law of the Sea, 294–6.
(101) Fitzmaurice, M and Szuniewicz, M (eds), Exploitation of Natural Resources in the 21st Century (The Hague: Kluwer Law International, 2003), 247–87.
(102) Birnie, PW and Boyle, AE, International Law and the Environment (2nd edn, Oxford: Oxford University Press, 2002), 666
(103) Art 66(1) and (2).
(104) Art 66(1) and (2).
(105) Art 66(5).
(106) Art 67(1).
(107) Art 67(1).
(108) Art 67(3).
(109) Art 67(2).
(110) 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, 2167 UNTS 3. The Agreement entered into force on 11 December 2001. For fuller discussion of the Agreement, see, from a considerable literature, Anderson, DH, ‘The Straddling Stocks Agreement of 1995: An Initial Assessment’ ICLQ 45 (1996), 463; Balton, DA, ‘Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks’ ODIL 27 (1996), 125; Hayashi, M, ‘The Straddling and Highly Migratory Fish Stocks Agreement’ in Hey, E (ed), Developments in International Fisheries Law (The Hague: Kluwer, 1999), 55; Juda, L, ‘The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique’ ODIL 28 (1997), 147; Lodge, MW and Nandan, SN, ‘Some Suggestions towards Better Implementation of the United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks of 1995’ IJMCL 20 (2005), 345; and Tahindro, A, ‘Conservation and Management of Transboundary Fish Stocks: Comments in Light of the Adoption of the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks’ ODIL 28 (1997) 1.
(111) Unless otherwise stated, references to particular Articles in this section, including in the footnotes, are to those of the Agreement.
(112) Churchill and Lowe, The Law of the Sea, 305–8.
(113) Agenda 21, Chapter 17, para 17.50.
(114) Law of the Sea Bulletin 23 (1992), 14
(115) Art 3(1) and (2).
(116) Ie organisms that are thrown back into the sea after being caught because they are too small, surplus to quota, or the wrong species. Discarded organisms are usually dead, or at least damaged, as a result of the catching process.
(117) Art 6(2).
(118) Freestone, D, ‘Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement’ in Hey (ed), Developments in International Fisheries Law, 287–325.
(119) Art 7(3).
(120) Art 7(4).
(121) Oude Elferink, A, ‘The Determination of Compatible Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks’ Max Planck Yearbook of United Nations Law, 5 (2001), 551
(122) Art 8(1).
(123) Art 8(5).
(124) Molenaar, EJ, ‘The Concept of “Real Interest” and Other Aspects of Co-Operation through Regional Fisheries Management Mechanisms’ IJMCL 15 (2000), 475
(125) Art 17(4). See also Art 20(7).
(126) Arts 17(4) and 20(7) are also potentially applicable against non-parties to the Agreement.
(127) Art 18(1).
(128) Art 19(1).
(129) Art 19(2).
(130) Art 21(15).
(131) Art 21(5).
(132) Art 21(6) and (7).
(133) This term is defined in Art 21(11).
(134) Art 21(8).
(135) Art 21(14).
(136) Art 20(6).
(137) Art 29.
(138) Churchill, R, ‘The Jurisprudence of the International Tribunal for the Law of the Sea relating to Fisheries: Is there much in the Net?’ IJMCL 22 (2007), 383 at 394–400
(139) For detailed discussion of the dispute settlement provisions of the Agreement, see Boyle,?AE,?‘Prob?lems of Compulsory Jurisdiction and the Settlement of Disputes relating to Straddling Fish Stocks’ IJMCL 14 (1999), 1; McDorman, TL, ‘The Dispute Settlement Regime of the Straddling and Highly Migratory Fish Stocks Convention’ Canadian Yearbook of International Law 35 (1997), 57; and Treves, T, ‘The Settlement of Disputes according to the Straddling Stocks Agreement of 1995’ in Boyle, AE, and Freestone D (eds), International Law and Sustainable Development (Oxford: Oxford University Press, 1999), 253.
(140) Information as to the parties to the Agreement may be found on the website of the DOALOS. The issue of EC and Member State participation in the Agreement is considered further in Chapter 5.
(141) Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean (hereafter, ‘SEAFO Convention’), 2001, 2221 UNTS 189.
(142) Convention on the Conservation and Management of Highly Migratory Fish Stocks in?the?Western and Central Pacific Ocean (hereafter, ‘WCPFC Convention’), 2000, 2275 UNTS?43.
(143) Takei, Y, ‘Unfinished Business: Review Conference on the 1995 Fish Stocks Agreement’ IJMCL 21 (2006), 551
(144) For fuller discussion of the Compliance Agreement, see Balton, DA, ‘The Compliance Agreement’ in Hey (ed), Developments in International Fisheries Law, 31; Moore, G, ‘The FAO Compliance Agreement’ in Nordquist and Moore, Current Fisheries Issues, 77–91; and Grainger, R, ‘High Seas Fishing Vessel Database’ in Ibid, 93–106.
(146) For a more extended discussion of this aspect of the negotiations, see Balton, ‘The Compliance Agreement’, 34–44.
(147) Art III(2).
(148) Art III(3).
(149) Art III(5).
(150) Art III(2), (6), and (7).
(151) Art IV.
(152) Art III(8).
(153) Art V(1).
(154) Art V(2).
(155) Art VI(1), (2), (5), (6), (7), (8)(a), and (9).
(156) Art VI(4) and (10).
(157) The question of EC and Member State participation in the Agreement is discussed in Chapter 5.
(158) Information about the parties to the Agreement may be found on the website of the Fisheries and Aquaculture Department of the FAO.
(159) Further on the management of discrete high seas stocks, see Lodge and Nandan, ‘Some Suggestions’, 369–73.
(160) Compliance Agreement, Art II.
(161) See the website of the Fisheries and Aquaculture Department of the FAO. No more up-to-date information was publicly available on the website at the time of writing.
(162) For more detailed discussion of the Code, see Edeson, WR, ‘The Food and Agriculture Organization of the UN Code of Conduct for Responsible Fisheries: An Introduction’ IJMCL 11 (1996), 233;?Moore, G, ‘The Code of Conduct for Responsible Fisheries’ in Hey (ed), Developments in International Fisheries Law, 85–105; and Doulman, DJ, ‘Code of Conduct for Responsible Fisheries: Development and Implementation Considerations’ in Nordquist and Moore, Current Fisheries Issues, 307–30.
(163) Art 1.
(164) Art 3.
(165) Art 4.
(166) Available on the website of the Fisheries and Aquaculture Department of the FAO.
(168) See Arts 6.16, 7.1.2, and 7.1.10.
(169) Doulman, ‘Code of Conduct’, at 320–1.
(170) FAO Committee on Fisheries, Progress in the Implementation of the 1995 Code of Conduct for Responsible Fisheries, Related Plans of Action and Strategy, COFI/2007/2, para 6, available on the website of the Fisheries and Aquaculture Department of the FAO.
(171) Available on the website of the Fisheries and Aquaculture Department of the FAO.
(172) Para 10.
(173) Para 12.
(174) Para 16.
(175) Paras 19 and 20.
(176) Report of the Expert Consultation on Best Practice Technical Guidelines for IPOA/NPOA-Seabirds, Bergen, Norway, 2–5 September 2008, FAO Fisheries and Aquaculture Report No 880, Appendix E, para?5.
(177) Available on the website of the Fisheries and Aquaculture Department of the FAO.
(178) Para 16.
(179) Para 18.
(180) Para 22.
(181) Paras 25 and 26.
(182) FAO Committee on Fisheries, Progress in the Implementation, para 31.
(184) Available on the website of the Fisheries and Aquaculture Department of the FAO. For detailed comment, see Gréboval, D, ‘The International Plan of Action for the Management of Fishing Capacity: Retrospect and Prospect’ in Nordquist and Moore, Current Fisheries Issues, 561–82. See also FAO, FAO Technical Guidelines for Responsible Fisheries No 4, Supplement 3. Managing Fishing Capacity (Rome: FAO, 2008).
(185) Para 7.
(186) Paras 13 and 14.
(187) Paras 21 and 22.
(188) Paras 7 and 26.
(189) Paras 27 and 39.
(190) FAO Committee on Fisheries, Progress in the Implementation, para 30.
(191) IPOA to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated (IUU) Fishing, para 3.
(192) Juda, L, ‘Rio Plus Ten: The Evolution of International Marine Fisheries Governance’ ODIL 33 (2002), 109 at 119. Further on the problems of IUU fishing, see Baird, R, ‘Illegal, Unregulated and Unreported Fishing: An Analysis of the Legal, Economic and Historical Factors Relevant to its Development and Persistence’ Melbourne Journal of International Law 5 (2004), 299; and Riddle, KW, ‘Illegal, Unregulated and Unreported Fishing: Is International Cooperation Contagious?’ ODIL 37 (2006), 265, especially at 266–9.
(193) Available on the website of the Fisheries and Aquaculture Department of the FAO. For comment, see Edeson, WR, ‘The International Plan of Action on Illegal, Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument’ IJMCL 16 (2001), 603. On the background to the IPOA, see Bray, K, ‘Illegal, Unreported and Unregulated (IUU) Fishing’ in Nordquist and Moore, Current Fisheries Issues, 115–35.
(194) Para 8.
(195) Paras 10–33.
(196) Report of the FAO Technical Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated FishingThe State of World Fisheries and Aquaculture 2008Closing the NetLodge, M, Anderson, D, L⊘bach, T, Munro, G, Sainsbury, K, and Willock, A, Recommended Best Practices for Regional Fisheries Management Organizations (London: Chatham House, 2007), 54–7.
(197) Paras 65–76.
(198) Para 87.
(199) FAO Committee on Fisheries, Progress in the Implementation, para 29. Note also the proposals for action to combat IUU fishing made by the Ministerially led Task Force on IUU Fishing on the High Seas, Closing the Net.
(200) FAO, FAO Technical Guidelines for Responsible Fisheries No 9. Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (Rome: FAO, 2002
(201) For more detailed studies of such organizations, see inter alia, Applebaum, B and Donohue, A, ‘The Role of Regional Fisheries Management Organizations’ in Hey (ed), Developments in International Fisheries Law, 217; Barston, R, ‘The Law of the Sea and Regional Fisheries Organisations’ IJMCL 14 (1999), 333; Henriksen, T, H⊘nneland, G, and Sydnes, A, Law and Politics in Ocean Governance: the UN Fish Stocks Agreement and Regional Fisheries Management Regimes (Leiden: Martinus Nijhoff, 2006); Lodge et al, Recommended Best Practices; Lugten, GL, A Review of Measures taken by Regional Marine Fishery Bodies to address Contemporary Fishery Issues, FAO Fisheries Circular No 940 (1999); Meltzer, E, ‘Global Overview of Straddling and Highly Migratory Stocks: Maps and Charts detailing RFMO Coverage and Implementation’ IJMCL 20 (2005), 571; and Swan, J, Summary Information on the Role of International Fishery Organizations or Arrangements and Other Bodies concerned with the Conservation and Management of Living Aquatic Resources, FAO Fisheries Circular No 985 (2003).
(202) Catadromous stocks are not considered here because fishing for such stocks on the high seas is prohibited (see subsection 2.6 above) and the only cooperative arrangement relating to the management of such stocks within areas of national jurisdiction of which the authors are aware is an EC measure, Council Regulation (EC) No 1100/2007 of 18 September 2007 establishing measures for the recovery of the stock of European eel, OJ 2007 L248/17, which is discussed in Chapters 2 and 4.
(203) Established by the 1980 Convention on the Conservation of Antarctic Marine Living Resources (hereafter, ‘the CCAMLR Convention’), 1329 UNTS 47.
(204) Established by the 1949 Agreement for the Establishment of a General Fisheries Council for the Mediterranean (hereafter, ‘the GFCM Agreement’), 126 UNTS 237. The Agreement was amended significantly in 1997 (including renaming the organization). For the text of the amendments, see 2275 UNTS 157 and 187.
(205) Established by the 1980 Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries (hereafter, ‘the NEAFC Convention’), 1285 UNTS 129. Extensive amendments to the Convention were adopted in 2004 and 2006: for the text of these amendments, see the website of the NEAFC. See further section 8 below.
(206) Established by the 1978 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (hereafter, ‘the NAFO Convention’), 1135 UNTS 369. In 2007 far-reaching amendments to the Convention were adopted which, when they enter into force, will effectively replace the present Convention with a new Convention: for the text of the amendments, see the website of the NAFO. See further section 8 below.
(207) Established by the SEAFO Convention.
(208) See the website of the South Pacific RFMO.
(209) Established by the WCPFC Convention.
(210) Established by the 1993 Convention for the Conservation of Southern Bluefin Tuna (hereafter, ‘the CCSBT Convention’), 1819 UNTS 360.
(211) Established by the 1993 Agreement for the Establishment of the Indian Ocean Tuna Commission (hereafter, ‘the IOTC Convention’), 1927 UNTS 329.
(212) Established by the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Commission (hereafter, ‘the IATTC Convention’), 80 UNTS 3. The Convention will be replaced by the 2003 Convention for the Strengthening of the Inter-American Tropical Tuna Commission (hereafter, ‘the Antigua Convention’), OJ 2005 L15/9, when the latter enters into force.
(213) Established by the 1966 International Convention for the Conservation of Atlantic Tunas (hereafter, ‘the ICCAT Convention’), 673 UNTS 63.
(214) Established by the 1982 Convention for the Conservation of Salmon in the North Atlantic Ocean, 1338 UNTS 33.
(215) Law of the Sea Bulletin 22 (1993), 21
(216) ILM 34 (1995), 67.
(217) OJ 2006 L196/15. The Agreement is not yet in force.
(218) For details of such arrangements, see Henriksen et al, Law and Politics in Ocean Governance, ch 8.
(219) Established by the 1946 International Convention for the Regulation of Whaling, 161 UNTS 72. The IWC is a global, rather than a regional, organization.
(220) Law of the Sea Bulletin 26 (1994), 318
(221) 1651 UNTS 333.
(222) 1772 UNTS 217.
(223) 2183 UNTS 303.
(224) The text of the Memorandum of Understanding is available on the website of the Convention on Migratory Species.
(225) SEAFO Convention, Art 23Report of the 23rd Annual Meeting, 8–12 November 2004
(226) Juda, ‘Rio Plus Ten’, 128. Further on objection procedures, see McDorman, TL, ‘Implementing Existing Tools: Turning Words into Actions—Decision-Making Processes of Regional Fisheries Management Organizations (RFMOs)’ IJMCL 20 (2005), 423, especially at 430–2; and Schiffman, HS, Marine Conservation Agreements: The Law and Policy of Reservations and Vetoes (Leiden: Martinus Nijhoff Publishers, 2008), see especially chs 4 and 5.
(227) Rayfuse, R, ‘To Our Children’s Children's Children: From Promoting to Achieving Compliance in High Seas Fisheries’ IJMCL 20 (2005), 509et alRecommended Best Practices
(228) et alRecommended Best PracticesOwen, D, Practices of RFMOs regarding Non-Members, Recommended Best Practices for Regional Fisheries Management Organizations, Technical Study No 2 (London: Chatham House, 2007).
(229) A Review of MeasuresMooney-Seus, ML and Rosenberg, AA, Progress in Adopting the Precautionary Approach and Ecosystem-Based Management, Recommended Best Practices for Regional Fisheries Management Organizations, Technical Study No 1 (London: Chatham House, 2007)
(230) SEAFO Convention, Art 7; WCPFC Convention, Arts 5(c) and 6; and GFCM Agreement, Art III(2).
(231) See also the summary of best practices in Lodge et al, Recommended Best Practices, 117–28.
(232) Shaw, M, International Law (6th edn, Cambridge: Cambridge University Press, 2008), 114–17.
(233) Boyle, AE and Chinkin, C, The Making of International Law (Oxford: Oxford University Press, 2007), 211–17
(234) Miller, B, ‘Combating Driftnet Fishing in the Pacific’, in Crawford J and Rothwell DR (eds), The Law of the Sea in the Asian-Pacific Region (Dordrecht: Martinus Nijhoff Publishers, 1995), 155.
(235) General Assembly Resolution 44/225, Large-scale pelagic driftnet fishing and its impact on the living marine resources of the world’s oceans and seas, adopted on 22 December 1989; and General Assembly Resolution 46/215, Large-scale pelagic drift-net fishing and its impact on the living marine resources of the world’s oceans and seas, adopted on 20 December 1991, both available on the website of the DOALOS.
(236) ILM 29 (1990), 1449
(237) Details of this legislative action may be found in the UN Secretary General’s annual reports on fisheries, available on the website of the DOALOS.
(238) Hewison, GJ, ‘The Legally Binding Nature of the Moratorium on Large-Scale High Seas Driftnet Fishing’ Journal of Maritime Law and Commerce 25 (1994), 557
(239) General Assembly Resolution 59/25, Sustainable Fisheries, including through the 1995 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, and related instruments, adopted on 17 November 2004, available on the website of the DOALOS.
(240) Res 59/25, para 66.
(241) Res 59/25, para 67.
(242) General Assembly Resolution 61/105, Sustainable Fisheries, including through the 1995 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, and related instruments, adopted on 8 December 2006, available on the website of the DOALOS.
(243) Res 61/105, para 80.
(244) Res 61/105, para 83.
(245) Res 61/105, para 86.
(246) Res 61/105, para 87.
(247) Proposal for a Council Regulation on the protection of vulnerable marine ecosystems in the high seas from the adverse impacts of bottom fishing gears, COM(2007) 605, 17.10.2007, pp 2–3.
(248) Report of the Technical Consultation on International Guidelines for the Management of Deep-sea Fisheries in the High Seas, Rome, 4–8 February and 25–29 August 2008, FAO Fisheries and Aquaculture Report No 881 (2008), available on the website of the Fisheries and Aquaculture Department of the FAO, Appendix F.
(249) Guidelines, paras 8 and 9.
(250) Council Regulation (EC) No 734/2008 of 15 July 2008 on the protection of vulnerable marine?ecosystems in the high seas from the adverse impacts of bottom fishing gears, OJ 2008 L201/8.
(251) See, for example, the following, both available on the website of the Fisheries and Aquaculture Department of the FAO: (a) FAO, FAO Technical Guidelines for Responsible Fisheries No 4, Suppl 2, The Ecosystem Approach to Fisheries (Rome: FAO, 2003); and (b) Garcia, SM, Zerbi, A, Aliaume, C, Do Chi, T, and Lasserre, G, The Ecosystem Approach to Fisheries, FAO Fisheries Technical Paper No 443 (Rome: FAO, 2003).
(252) UN Convention on the Law of the Sea, Arts 61(3) and 119(1)(a).
(253) UN Convention on the Law of the Sea, Arts 61(4) and 119(1)(b).
(254) UN Convention on the Law of the Sea, Art 194(5).
(255) 1760 UNTS 79.
(256) See, in particular, Principle 4 (available on the website of the UNEP).
(257) See, in particular, Chapters 8 and 17 (available on the website of the UNEP).
(258) Fish Stocks Agreement (abbreviated in the footnotes to this section as ‘FSA’), Art 5(b).
(259) See, inter alia, FSA, Arts 5(d)–(g) and (j), 6(1), 6(3)(c)–(d), 6(5), 7(2)(f), 10(d), and 18(3)(e)–(f) and (i).
(260) FSA, Art 5(d).
(261) FSA, Art 5(e).
(262) FSA, Art 5(f).
(263) FSA, Arts 6(3)(d) and 10(d).
(264) FSA, Art 18(3)(e) and (f).
(265) FSA, Art 5(j) and Annex I.
(266) FSA, Art 6(3)(c) and Annex II.
(267) FSA, Art 5(f).
(268) FSA, Art 6(3)(d).
(269) FSA, Art 6(5).
(270) FSA, Art 6(3)(d).
(271) FSA, Art 5(g).
(272) See, inter alia, Arts 5(d) (cf FSA, Art 5(d)), 5(e) (cf FSA, Art 5(f)), 5(f) (cf FSA, Art 5(g)), 5(i) (cf FSA, Art 5(j)), 6(1)(b) (cf FSA, Art 6(3)(c)), 6(1)(c) (cf FSA, Art 6(3)(d)), 6(4) (cf FSA, Art 6(5)), 8(2)(e) (cf FSA, Art 7(2)(f)), 10(1)(c) (cf FSA, Art 5(e)), 12(2)(c)–(e) and (g), 13(3)(b)–(c), and Annex III, Art 5.
(273) See, inter alia, Arts 3(c), 3(d) (cf FSA, Art 5(e)), 3(f) (cf FSA, Art 5(g)), 6(3)(c) and 14(3)(e) (cf?FSA, Art 18(3)(e)).
(274) See, inter alia, Arts IV(3) (cf FSA, Art 6(5)), VII(1)(a), VII(1)(f) (cf FSA, Art 5(e)), VII(1)(g) and (k) (cf FSA, Art 5(f)), and XV(3).
(275) See, inter alia, Arts 4(a), 4(e) (cf FSA, Art 5(f)), 4(f) (cf FSA, Art 5(g)), 6(1)(b), 6(1)(c) (cf FSA, Art 5(d)), 6(1)(d), 7(1)(a)(i), and 13(4)(b).
(276) SEAFO Convention, Art 1(n).
(277) See the website of the NEAFC.
(278) See, inter alia, amended Arts 1(c) and (d), 2, 4(1), 4(2)(c)–(d), and 4(3).
(279) NEAFC Convention, amended Art 1(c).
(280) See the website of the NAFO. See, inter alia, ‘new’ Arts I(k) and (l), II, III(d), (e) and (i), VI(6)(c), VI(7), VI(8)(b), VII(8)(a) and (d), VII(10)(a) and (b), and X(1)(d).
(281) NAFO Convention, ‘new’ Art I(k).
(282) IATTC Convention, Art II(1).
(283) CCAMLR Convention, Art I(2).
(284) CCAMLR Convention, Art II(1).
(285) CCSBT Convention, Art 2(a).
(286) CCSBT Convention, Art 8(1)(a).
(287) CCSBT Convention, Art 5(2).
(288) CCSBT Convention, Art 5(3).
(289) CCSBT Convention, Art 9(2)(c).
(290) CCSBT Convention, Art 8(6).
(291) The Reykjavik Declaration is available on the website of the Fisheries and Aquaculture Department of the FAO.
(292) Reykjavik Declaration, 10th recital.
(293) Report of the World Summit on Sustainable Development, Chapter 1, Resolution 2, Plan of Implementation, available on the website of the UN Department of Economic and Social Affairs, Division for Sustainable Development.
(295) Available on the website of the Fisheries and Aquaculture Department of the FAO.
(296) See, for example, paras 1 and 6 of the Guidelines.
(297) Guidelines, para 8(ii).
(298) See, for example, paras 6 and 11 of the Guidelines.
(299) See, in particular, sections 4.1 (General management considerations), 4.2 (Governance framework), 5.1 (Data, reporting and assessment), 5.3 (Enforcement and compliance), and 5.4 (Management and conservation tools).
(300) Guidelines, sections 3.2 and 3.3.
(301) Guidelines, section 5.2.
(302) Guidelines, Annex 1.
(303) Guidelines, para 47; see also paras 48–53.
(304) Guidelines, para 73; see also paras 70–2.
(305) Guidelines, para 74.
(306) Guidelines, para 63(i); see also paras 66 and 61.
(307) See, for example, paras 12(ii), 21(ii), 32, 34, 44–45, and 49 of the Guidelines.
(308) See, for example, paras 2, 17, 19, and 28 of Decision IX/20 (available on the website of the CBD).
(309) FAO, The State of World Fisheries and Aquaculture 2008, 7–8 and 30.
(310) Plan of Implementation, para 31(a).
(311) FAO, The State of World Fisheries and Aquaculture 2004 (Rome: FAO, 2004), 32–4