Strengthening International Fisheries Law in an Era of Changing Oceans

Richard Caddell, Erik J Molenaar, Richard Caddell, Erik J Molenaar

• Publisher: Hart Publishing
• Year: 2019
• Print ISBN:
  9781509945702
• Edition: 1
• eBook ISBN:
  9781509923359
• Topic: Law
• Subtopic: International Law
• Index: Law

This collection addresses the central question of how the current international framework for the regulation of fisheries may be strengthened in order to meet the challenges posed by changing fisheries and ocean conditions, in particular climate change. International fisheries law has developed significantly since the 1990s, through the adoption and establishment of international instruments and bodies at the global and regional levels. Global fish stocks nevertheless remain in a troubling state, and fisheries management authorities face a wide array of internal and external challenges, including operational constraints, providing effective management advice in the face of scientific uncertainty and non-compliance by States with their international obligations. This book examines these challenges and identifies options and pathways to strengthen international fisheries law. While it has a primarily legal focus, it also features significant contributions from specialists drawn from other disciplines, notably fisheries science, economics, policy and international relations, in order to provide a fuller context to the legal, policy and management issues raised. Rigorous and comprehensive in scope, this will be essential reading for lawyers and non-lawyers interested in international fisheries regulation in the context of profoundly changing ocean conditions.

Part I

Introduction

1

International Fisheries Law: Achievements, Limitations and Challenges

ERIK J MOLENAAR AND RICHARD CADDELL

1.INTRODUCTION

International fisheries law is the domain (or: ‘rule-complex’) of international law that relates specifically to the conservation, management and/or development of marine capture fisheries. It consists of substantive norms (e.g. rights, obligations and objectives), substantive fisheries standards (e.g. catch restrictions) as well as institutional rules and arrangements (e.g. mandates and decision-making procedures). International fisheries law is part of public international law and can also be seen as a branch or part of the domain of the international law of the sea. The origins of international fisheries law can be traced back to the end of the 19th century, when North Sea coastal States adopted multilateral rules on fisheries enforcement at sea, and the United States unsuccessfully asserted coastal State jurisdiction for the purpose of the conservation of fur seals in high seas areas adjacent to its territorial sea.¹

The cornerstone in the current global jurisdictional framework for marine capture fisheries is provided by the LOS Convention,² which divides seas and oceans in maritime zones and specifies the basic rights and obligations of States therein. The LOS Convention regulates the exercise of entitlements to fishing that States have in their capacities as coastal or flag States through various key obligations. Whereas coastal States have exclusive access and jurisdiction over fisheries resources in essentially all their maritime zones,³ the two main entitlements of flag States are their right to fish on the high seas, and access to the surplus of the total allowable catch (TAC) in exclusive economic zones (EEZs) of coastal States.⁴

The general obligations included in the LOS Convention have been built upon by a suite of global fisheries instruments, in particular the Fish Stocks Agreement,⁵ legally binding and non-legally binding instruments adopted by the United Nations Food and Agriculture Organization (FAO) – for instance the Compliance Agreement,⁶ the PSM Agreement,⁷ the Code of Conduct⁸ and the IPOA-IUU⁹ – as well as certain (parts of) United Nations General Assembly (UNGA) Resolutions. As a result, these obligations have now developed into the following:

1.to avoid over-exploitation of target species by setting a science-based TAC, which strives for Maximum Sustainable Yield as qualified by the precautionary approach;

2.to strive for the optimum utilization of target species within the EEZ by providing other States with access to the surplus of the TAC;

3.to pursue an ecosystem approach to fisheries (EAF), which often focuses in particular on (a) predator-prey relationships; (b) impacts of fisheries on non-target species and the ecosystem as a whole; and (c) impacts of oceanographic or climate processes, or pollution, on fish stocks;

4.to cooperate in relation to transboundary fish stocks and fish stocks that occur exclusively on the high seas (further “discrete high seas fish stocks”); and

5.to exercise effective jurisdiction and control over a State’s own vessels.

The LOS Convention, the Fish Stocks Agreement and FAO’s fisheries instruments are predominantly concerned with establishing the jurisdictional framework. They do not contain substantive fisheries measures such as catch restrictions through TACs, allocations of fishing opportunities through national quotas, gear restrictions, or temporal/seasonal or area-based measures (e.g. closed areas). Actual fisheries regulation is conducted by States acting individually or collectively. The primary means for collective regulation is through regional fisheries management organizations or arrangements (RFMO/As), which have the mandate to impose legally binding fisheries conservation and management measures on their members or participants.

RFMO/As are designated by the Fish Stocks Agreement as the preferred vehicles for the conservation and management of straddling fish stocks (i.e. stocks occurring within the maritime zones of one or more coastal States and on the high seas) and highly migratory fish stocks (e.g. tuna).¹⁰ The adoption and entry into force of the Fish Stocks Agreement, in tandem with mounting concerns over the impacts of bottom-fishing on benthic habitats and deep-sea species since the late 1990s, have steadily led to the filling of geographical gaps in full high seas coverage with RFMO/As and the modernization of the constitutive instruments of existing RFMO/As. In addition, many existing RFMOs have conducted performance reviews. Some gaps in geographical coverage nevertheless remain and the performance of RFMO/As continues to be a concern.¹¹

2.THE FRAGMENTED AND NON-HIERARCHICAL NATURE OF INTERNATIONAL FISHERIES LAW

As suggested above, international fisheries law is noticeably fragmented and non-hierarchical, in a similar manner to public international law more generally.¹² At the global level, both the UNGA and FAO – principally through its Committee on Fisheries (COFI) – have contributed to the development of international fisheries law. Neither the LOS Convention nor the Fish Stocks Agreement establish an overall decision-making body, but meetings of parties to these treaties have been held on a near-annual basis since their entry into force. Whereas the Meeting of States Parties to the LOS Convention (SPLOS) deals largely with issues that are essentially administrative in nature and not relevant to marine capture fisheries, the ICSP¹³ were mainly intended to consider the regional, subregional and global implementation of the Agreement.¹⁴ In addition, the (Resumed) Fish Stocks Agreement Review Conferences held in 2006, 2010 and 2016 pursuant to Article 36 of the Fish Stocks Agreement, have assessed the adequacy and effectiveness of the provisions of the Agreement and proposed means to strengthen the substance of and methods for their implementation.

A much larger and diverse group of fisheries bodies operates at the regional level. In addition to the distinctions between RFMOs and RFMAs,¹⁵ and between tuna-RFMOs and non-tuna RFMO/As, there are also a considerable number of regional fisheries bodies that do not qualify as RFMO/As for lack of a mandate to impose legally binding conservation and management measures on their members or participants (e.g. the Western Central Atlantic Fishery Commission (WECAFC)). Furthermore, some regional fisheries bodies are established within the framework of FAO, and some have functions or characteristics that make them ‘more than an RFMO’.¹⁶

Apart from the regional fisheries bodies established within the framework of the FAO (e.g. WECAFC and the Indian Ocean Tuna Commission (IOTC),¹⁷) and the Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR) established in the context of the Antarctic Treaty System, regional fisheries bodies are entirely separate, autonomous bodies without formal hierarchical relationships with overarching bodies. Nevertheless, it can be assumed that any recommendations of the UNGA, COFI, ICSP or the (Resumed) Fish Stocks Agreement Review Conferences specifically directed at members or participants of RFMO/As will be given serious consideration by them. The UNGA’s recommendations relating to high seas bottom-fishing were a case in point.¹⁸ Moreover, members or participants of RFMO/As with competence over straddling or highly migratory fish stocks that are also parties to the Fish Stocks Agreement are bound not only by the objectives of the Agreement but also the features, functions and other guidance for RFMO/As set out in Articles 8–14 of the Agreement.

As noted at the outset of this section, public international law as a whole is also highly fragmented and generally non-hierarchical. It is therefore appropriate to assume there are no hierarchical relationships between the domain of international fisheries law and other distinct, specialized domains of international law. In case of an overlap in substantive and/or geographical competence, actual conflicts in the exercise of such competence can be avoided by coordination – whether ad hoc or through dedicated mechanisms – or so-called ‘primacy arrangements’, as has increasingly framed the practices of multilateral environmental agreements in their dealings with each other. Primacy arrangements can be explicitly included in the constitutive instruments of relevant bodies¹⁹ or in more informal arrangements agreed between them, for instance by means of a memorandum of understanding.

Specialized domains of international law are often in a constant state of flux due to a wide array of factors, including the evolving needs and views of the States involved, technological, economic or geopolitical developments, emerging new problems, deteriorating existing problems, or the desire to address existing problems by new regulatory tools or approaches. The potential for duplication or working at cross-purposes in such a fragmented and dynamic system is therefore quite high. States also use this system for so-called ‘forum shopping’ in order to achieve their desired result. Well-known examples in the context of marine capture fisheries are attempts to list commercially exploited fish species on the Annexes of CITES.²⁰ The primary motivation of the initiating States was their view that the balance of interests in RFMO/As was overly weighted towards utilization, and that progress in conservation could only be achieved by recourse to the more conservation-oriented balance of interests in CITES.

While interaction and conflicts between the domains of international fisheries law on the one hand, and international trade law and international envir...

Table of contents

• Cover
• Title Page
• Preface
• Table of Contents
• List of Contributors
• List of Abbreviations
• Table of Treaties
• PART I: INTRODUCTION
• PART II: IDENTIFYING FUTURE REGULATORY CHALLENGES: SCIENCE, LAW AND MANAGEMENT
• PART III: THE ECOSYSTEM APPROACH TO FISHERIES MANAGEMENT
• PART IV: COMPLIANCE AND ENFORCEMENT
• PART V: OPTIONS AND PATHWAYS TO STRENGTHEN INTERNATIONAL FISHERIES LAW IN AN ERA OF CHANGING OCEANS
• Bibliography
• Index
• Copyright Page