Developments in International Fisheries Laws [1. ed.] 9041113223

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DEVELOPMENTS IN INTERNATIONAL FISHERIES LAW

Ellen Hey - 978-90-04-47838-1 Heruntergeladen von Brill.com02/15/2022 11:17:54AM via Universitat Leipzig

Ellen Hey - 978-90-04-47838-1 Heruntergeladen von Brill.com02/15/2022 11:17:54AM via Universitat Leipzig

DEVELOPMENTS IN INTERNATIONAL FISHERIES LAW Edited by

ELLEN

HEy

With a preface by Satya N. Nandan

KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / BOSTON

Ellen Hey - 978-90-04-47838-1 Heruntergeladen von Brill.com02/15/2022 11:17:54AM via Universitat Leipzig

A C.I.P. Catalogue record for this book is available from the Library of Congress.

ISBN 90-411-1322-3

Published by Kluwer Law International, P.O. Box 85889, 2508 CN The Hague, The Netherlands. Sold and distributed in North, Central and South America by Kluwer Law International, 675 Massachusetts Avenue , Cambridge, MA 02139 , U.S.A. In all other countries, sold and distributed by Kluwer Law International, Distribution Centre, P.O. Box 322, 3300 AH Dordrecht, The Netherlands.

Layout and camera-ready copy: Anne-Marie Krens- Tekstbeeld - Oegstgeest- The Netherlands

Printed on acid-free paper

All Rights Reserved © 1999 Kluwer Law International

Kluwer Law International incorporates the publishing programmes of Graham & Trotman Ltd , Kluwer Law and Taxation Publishers, and Martinus Nijhoff Publishers.

No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without written permission from the copyright owner. Printed in the Netherlands

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PREFACE

It is a great pleasure to write the preface to a bookon a topic that is close to my heart: international fisheries law. The authors of the various chapters are highly respected scholars and practitioners who have worked in the field of international fisheries law over numerous of years.

Developments in International Fisheries Law illustrates that much has happened in international fisheries law during the second half of this century and especially since the 1970s. The fisheries provision of the 1982 United Nations Convention on the Law of the Sea and the new instruments adopted in its aftermath each mark distinct phases in the development of the global regime for the conservation and management of marine fisheries resources. They reflect the concern that fundamental changes in the international fishery situation have been brought about with the introduction of highly mechanized fishing methods and technologically advanced fleets with no comparable progress in preventing over-exploitation and abuse . The book presents the topic from a number of different perspectives and illustrates that, although not all real and potential controversies have been resolved by the global instruments adopted during the 1990s, much of the substantive law to deal satisfactorily with problems that may arise is now available at the global level. This substantive law builds upon the jurisdictional framework provided by the United Nations Convention on the Law of the Sea. With the globalization of fisheries relations, it is especially these substantive rules and regulations that are needed in order to more adequately address the sustainable development of fishing activities. The challenge now is for states to foster the process towards implementation of the relevant rules and regulations at national and regional levels.

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PREFACE

The authors of the various chapters in Developments in International Fisheries Law present thorough and enlightening analyses of the legal and other issues at stake in contemporary international fisheries law. In so doing, they also illustrate the challenges that lie ahead for states, fishers and the fishing industry and international fisheries organizations. The greatest challenge ahead lies in the practical application of the legal and policy instruments that will foster the sustainable development of marine fisheries activities. Only an effective response will ensure long term sustainable use of the ever diminishing fish resources. Satya N. Nandan Secretary General of the International Seabed Authority and former Chairperson of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks . Formerly, Under-Secretary-General of the United Nations for Ocean Affairs and the Law of the Sea and Special Representative of the Secretary-General for the Law of the Sea. He was the leader of the delegation of Fiji to the Third United Nations Conference on the Law of the Sea.

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ACKNOWLEDGEMENTS

Annebeth Rosenboom, at Kluwer Law International, first thought of this book. She enquired whether I though there might be an interested readership for a volume on global fisheries instruments adopted in the post-UNCLOS III era. I reacted positively, not realizing the question that was to follow. I thank Annebeth for encouraging me to take on the editorship of this book and especially for her continued support throughout the lengthy editorial process. Special thanks are also due to Philomene A. Verlaan who provided invaluable assistance in the language-editing for this volume and to Wybo Heere for preparing the index. I especially thank Wendy Faatz, my student-assistant, who did much of the tedious technical work involved in editing a volume of this nature. I admire her for the good humor and precision with which she dealt with my many requests for further work. I thank all authors for their contributions and especially Cyrille de Klemm. Cyrille completed his chapter while he was seriously ill and it is with great sadness that I share the news of his passing away with you. Finally, I also thank the Faculty of Law of the Erasmus University Rotterdam for the research time that has been granted to me and without which this book could have never been conceived, let alone completed .

Ellen Hey

April 1999

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TABLE OF CONTENTS

Preface, Satya Nandan Acknowledgements List of Contributors Table of Instruments Table of Cases List of Abbreviations

1

V

VII XIII XXI XXXIII XXXV

INTRODUCTION

1

Global Fisheries Instruments adopted in the Post-UNCLOS III Period Ellen Hey

3

PART I: GLOBAL INSTRUMENTS 2 3 4 5 6

11

The Fisheries Provisions of the LOS Convention Ellen Hey The Compliance Agreement David A. Balton The Straddling and Highly Migratory Fish Stocks Agreement Moritaka Hayashi The Code of Conduct for Responsible Fisheries Gerald Moore The Interrelationship between the Global Instruments of International Fisheries Law Rosemary Rayfuse

13

31 55 85

107

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PART

7 8 9 10

11

12 13

14

II:

THEMES IN INTERNATIONAL FISHERIES LAW

Balancing the Freedom of Fishing and Coastal State Jurisdiction Grant Hewison The Fisheries Regimes of Enclosed and Semi-Enclosed Seas and High Seas Enclaves Michael W. Lodge The Role of Regional Fisheries Management Organizations Bob Applebaum and Amos Donohue Developments in Principles for the Adoption of Fisheries Conservation and Management Measures Gunnar J. Schram and Andre Tahindro Implementing Precaution Cautiously: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement David Freestone Compliance with and Enforcement of International Fisheries Law Christopher C. Joyner The Conservation and Management of Marine Mammals and Anadromous and Catadromous Species Patricia W. Birnie The Conservation and Management of Fish Stocks Located Solely within the Exclusive Economic Zone Donna R. Christie

PART III: THE WIDER CONTEXT OF INTERNATIONAL FISHERIES LAW

159

161 193 217 251

287 327 357 395 421

15 Fisheries Conservation and Management and the Conservation of Marine Biological Diversity Cyrille de Klemm 16 Fisheries Conservation and Management and International Trade Law Ted L. McDorman

423

501

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TABLE OF CONTENTS

XI

17 The European Community and Its Role in Some Issues of International Fisheries Law Robin R. Churchill

533

CONCLUSIONS

575

18 Reconceptualization of the Issues involved in International Fisheries Conservation and Management Ellen Hey

577

Select Bibliography Index

589 611

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LIST OF CONTRIBUTORS

Bob Applebaum is an international lawyer and former Canadian government official who has been engaged in international fisheries relations since 1973. In his work for the Government of Canada he has participated in all aspects of Canada's involvement in interriational fisheries spanning the period from the beginning of the Third United Nations Conference on the Law of the Sea to the adoption in 1995 of the United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks. From 1983 to 1996, when he retired from the Canadian Public Service, he held the position of Director-General, International Directorate, in the Department of Fisheries and Oceans. David A. Balton is an Attorney-Adviser in the Office of the Legal Adviser of the u.s. Department of State, specializing in the law of the sea and marine fisheries. He served as Head of the u.s. Delegation to the negotiations on the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas. He received an AB from Harvard College in 1981 and a 10 from Georgetown University Law Center in 1985. Professor Patricia W. Birnie is the former Director of the IMO International Maritime Law Institute in Malta. She was previously senior lecturer in law at the London School of Economics and lecturer in law at the University of Edinburgh. She specializes in law of the sea and international law and the environment. She has published and lectured widely on these subjects. Her publications include International Regulation of Whaling (2 volums, Oceana, 1985) and International Law and the Environment (with Alan Boyle, Clarendon Press, 1992). She is a member of various

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non-governmental bodies concerned with the development of the law in her fields of interest.

Professor Donna R. Christie is the Elizabeth C. and Clyde W. Atkinson Professor of Law at the Florida State University College of Law. From 1978 to 1980, she was a fellow at the Woods Hole Oceanographic Institutions's Marine Policy and Ocean Management Program. During 1980-81, she was visiting professor in the Marine Affairs Program at the University of Rhode Island. She has been at Florida State University since 1981, where she has continued her work in coastal and marine policy, publishing two Sea Grant texts on coastal and ocean law (1985, 1992) and authoring Florida's Ocean Horizon (1997). Professor Christie's recent publications include a co-authored course book, Coastal and Ocean Law (West Group , 1999) and Coastal and Ocean Management (West Group, 1999). She is currently working with the Caribbean Law Institute on model legislation for integrated coastal management. She is also serving on the Florida Governor's Ocean Policy Committee. Professor Christie is a member of the American Law Institute and serves on the Academic Board of the Ocean Governance Study Group. Dr. Robin R. Churchill is a Reader in Law at Cardiff Law School in the University of Wales , Cardiff. In 1983-84 he spend a year as a Visiting Lecturer at the Institute of Fisheries Studies at the University of Tromse. His main fields of teaching and research are European and public international law. He has written widely on international and European fisheries law and other areas of the law of the sea. His books include EEC Fisheries Law (1987) and The Law of the Sea (with A.V. Lowe) (second edition, 1988; and third edition in preparation). He has also acted as a consultant to fishermen's organizations in Ireland, Norway and the United Kingdom on European fisheries law. Amos Donohue is an officer of the Government of Canada specializing in international law. He served on Canada's delegations to the negotiations which culminated in the United Nations Agreement on Straddling Stocks and Highly Migratory Fish Stocks and the FAD Code of Conduct for Responsible Fisheries. As a Foreign Service Officer, he was Counsel to the Canadian delegation which negotiated the 1985 Annexes to the Canada-

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United States Pacific Salmon Treaty and helped establish the Pacific Salmon Commission. He I.as also served for a number of years as Counsel and Assistant Corporate Secretary of the International Air Transport Association (lATA). He received an LLB from the University of Windsor (1975) and an LLM from University College London (1978). Professor David Freestone is Legal Adviser, Environment and Head of the Environmental and International Law Unit at the World Bank, Washington D.C. He has a personal Chair in International Law at the University of Hull and is Editor-in-Chief of the International Journal of Marine and Coastal Law. He has published widely in the field of international environmental law and law of the sea. His books include Important Environmental Concept at a Turning Point (ed. With Kristina Gjerde, 1994), The Law of the Sea Convention: Unfinished Agendas and Future Challenges (ed. with Gerald Mangone, 1995) and The Precautionary Principle in International Law: The Challenge of Implementation (ed. with Ellen Hey, 1996). Professor Moritaka Hayashi is professor oflaw at Waseda University School of Law in Japan. Previous thereto he was Assistant Director-General at FAO and was head of its Fisheries Department. Before that, until late 1996, he was Director of the Division for Ocean Affairs and the Law of the Sea of the United Nations Legal Office. He was the Secretary of the United Nations Conference on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. His previous positions include Counselor and later Minister at the Japanese Mission to the United Nations and Legal Officer at the Codification Division of the United Nations Legal Office. In this latter capacity he was involved in various codification and treaty-making processes including the law of the sea. Before joining the United Nations he taught at Hosei University in Tokyo. Grant J. Hewison is a fellow at the Centre for Strategic Studies at Victoria University, Wellington, New Zealand and Strategic Manager (Public Policy) at Manukau City Council. He has also been a visiting law fellow with the Center for International Environmental Law in Washington DC and acted as legal counsel to Greenpeace New Zealand. As an expert of international standing in the areas of trade and the environment and ocean

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law and policy, he has participated in numerous international conferences, including being New Zealand representative to the Maritime Working Group of the Council for Security Cooperation in Asia Pacific. His publications include Trade, Environment and Sustainable Development - A South Asian Perspective (1996), Guidelines on New Zealand's International Obligations Affecting the Coastal Environment (1994), Reconciling Trade and Environment: Issues for New Zealand (1995). He is also co-editor of Freedom of the Seas in the 21s1 Century : Ocean Governance and Environmental Harmony (1993). Dr. Ellen Hey is Associate Professor in public international law and Deputy Director of the GLaDIS Institute at the Faculty of Law of the Erasmus University Rotterdam. She is Editor-in-Chief (together with Professor Jutta Brunnee) of the Yearbook ofInternational Environmental Law, a member of the Editorial Board of the International Law FORUM du Droit International, book review editor of the International Journal of Marine and Coastal Law, a member of the ACOPS Advisory Commission on coastal zone management, a member of the mCN International Council of Environmental Law and chairperson of the Working Group on the Law of the Sea of the Nederlandse Vereniging voor Internationaal Recht. Her publications include The Regimefor the Exploitation ofTransboundary Marine Fisheries Resources (1989) and The Precautionary Principle in International Law: The Challenge ofImplementation (ed. with David Freestone, 1996). She has worked as a consultant for various UN Agencies, the government of the Netherlands and non-governmental organizations. Professor Christopher C. Joyner is professor of international law in the Department of Government at Georgetown University. He is currently on the Executive Council of the American Society of International Law and Chair of the International Law Section of the International Studies Association. He also serves as a consultant in international law for various organizations and has published widely on foreign policy and legal issues . His recent books include Governing the Frozen Commons: Environmental Protection in the Antarctic (1998), Eagle over the lee : The U.S. in the Antarctic (with Ethel Theis, 1997), The United Nations and International Law (ed. contributor, 1997), United Nations Legal Order (co-ed., with Oscar Schachter, 1995), Antarctica and the Law of the Sea (1992) . He

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received his Ph.D. in Foreign Affairs, in 1977, from the University of Virginia and taught at Muhlenberg College, George Washington University and Dartmouth College. He was a Senior Research Fellow at the Marine Policy Center at Woods Hole Oceanographic Institution and a Visiting Research Fellow with the Institute of Antarctic and Southern Ocean Studies at the University of Tasmania, Australia.

Dr Cyrille de Klemm received a doctorate in law from the University of Strasbourg. In 1988 he received the Elisabeth Haub Prize for his contribution to the development of international environmental law. He has been a member of the IUCN International Council of Environmental Law since 1967 and is a founding member of the International Council of Environmental Law. He is vice-president of the French Society for Environmental Law, has participated in the drafting of several nature conservation conventions and has also been a consultant for several international organizations, including the Council of Europe, UNESCO and IUCN. He has published widely in the field of international and comparative conservation law. (Also see Acknowledgements.) Michael W. Lodge is the Head of the Office of Legal Affairs of the International Seabed Authority. In this capacity he also serves as Secretary of the Authority's Council and Legal and Technical Commission. From 1991 to 1995 he was Legal Council for the South Pacific Forum Fisheries Agency and was the legal adviser to the 16 member States of the Agency throughout the United Nations Conference on Straddling and Highly Migratory Fish Stocks. He also participated in the negotiation of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas and the FAD Code of Conduct for Responsible Fisheries. He has worked as a consultant on the law of the sea and fisheries in the South Pacific, Caribbean, United Kingdom and Eastern Europe as well as for FAD. He is a Barrister of Gray's Inn, London and holds a MSC in Marine Policy from the London School of Economics. Professor Ted L. McDorman teaches public international law, law of the sea, Asian comparative law and international trade law at the University of Victoria in British Columbia, Canada. He is a member of the Oceans

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LIST OF CONTRIBUTORS

Institute of Canada and has been a visiting professor at the World Maritime University in Malmo, Sweden, the University of Utrecht in the Netherlands, the Universities of Toronto and Windsor in Canada and Thammasat and Chulalungkorn Universities in Thailand . He has published extensively in the leading international journals on ocean law and policy and international trade law. Gerald Moore is the Legal Counsel of the Food and Agriculture Organization of the United Nations (FAa). He is a Barrister and holds a BS degree in Law from Cambridge University and an LL.M. from the University of California at Berkeley . Before joining the FAa he served with the British Foreign Office and with a commercial law firm in New York. As Legal Counsel of FAa, he is responsible for the legal aspects of agreements and other international instruments concluded under the aegis of FAa. He has published numerous articles on fisheries and marine environmental law. Rosemary Rayfuse is a lecturer in International Law at the University of New South Wales, Sydney, Australia. Her main areas of teaching and research are international fisheries law and international humanitarian law. She has written on a number of areas of international law, including international environmental law and international fisheries law, with particular reference to Antarctica. She is editor of the lCSlD Report and a member of the Editorial Board of the Australian Indigenous Law Reporter. She has acted as a consultant to various non-governmental organizations in Australia on fisheries matters. Professor Gunnar G. Schram is professor of international and constitutional law and Chairperson of the Center for International Studies at the University of Iceland. He received a Ph.D. in international law from the University of Cambridge. Between 1971 and 1974 he served as Iceland's Deputy Permanent Representative to the United Nations; between 1973 and 1982 he was a member of the Icelandic delegation to the Third United Nations Conference of the Law of the Sea; and he was Chairperson of the Icelandic Committee for the Rio Conference on Environment and Development (UNCED) and Iceland's Preparatory Committee for UNCED. He has also served as a Member of Parliament and as Legal Advisor to the Ministries

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LIST OF CONTRIBUTORS

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of Environment and Foreign Affairs of Iceland. He has published widely both in the field of Icelandic and international law. His more recent publications include The European Economic Area (1992), The Future ofthe Planet Earth (1993), Constitutional Law (1994) and Environmental Law (1995). Andre Tahindro is Ocean AffairslLaw of the Sea Officer at the Division for Ocean Affairs and the Law of the Seal Office of Legal Affairs of the United Nations . He served as a member of the Secretariat to the United Nations Conference on Straddling Fish and Highly Migratory Fish Stocks and, while working for the United Nations Kingston Office for the Law of the Sea, as Law of the Sea Officer and Assistant Secretary of Special Commission I of the Preparatory Commission for the Seabed Authority and the International Tribunal for the Law of the Sea. He has also served with the Permanent Mission of Madagascar to the United Nations and with the Ministry of Foreign Affairs of Madagascar.

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TABLE OF INSTRUMENTS

African Convention on the Conservation of Nature and Natural Resources (African Convention, Algiers), 1968,442,492 Agenda 21, 1992,7,93, 109, 111-3, 118, 130,264,267,272,297,304, 310, 311, 313, 316, 368, 378, 391,409, 411, 415, 416, 482, 493, 559 Agreement Concerning Co-operation in the Field of Fisheries, 1985, 375 Agreement concerning Fisheries (sc-Iceland), 1992, 570 Agreement Establishing the World Trade Organization (WTO Agreement), 1994, 101, 502 Agreement for the Establishment of a General Fisheries Council for the Mediterranean, 1949, 435, 493 Agreement for the Establishment of the Indian Ocean Tuna Commission, 1993, 434 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 (Straddling and Highly Migratory Fish Stocks Agreement), 1995, 7, 33,41, 55, 108, 218, 392,494 Preamble, 121, 236, 258, 313 Art. 1, 218, 219, 557 2, 82, 122, 314, 332, 338 3,59, 75, 76, 123, 130, 134, 231, 234, 240, 315, 338, 413 4, 8, 118, 134, 231, 280, 313, 557 5, 59, 73, 75, 123, 125-8, 130, 232-4, 241, 254, 255, 257-60, 263, 264, 266,268,315,338,339,345,413-5,460 6, 8, 59, 60, 75, 76, 123, 126, 130, 233, 234, 241, 272, 287, 315-20, 330, 332, 339, 461

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Art. 7, 61, 62, 75, 76, 79, 123, 126, 133-5, 185, 186, 207, 219, 232, 234, 242,272-6,285,315,332,339,414,460 8, 67, 68, 136-9,232, 234, 235, 243, 282, 285, 351 9, 68, 136, 234 10, 92, 136, 347, 348 11, 30, 136, 139, 234, 258, 283 12, 136,234 13, 67, 102, 136, 234, 351 14, 137,234 15, 137, 195, 206 16, 80, 137, 195, 206, 214, 216 17, 68, 139, 234, 245, 247, 284, 583 18, 41, 64, 98, 142, 143, 244, 346, 347, 583 19, 51, 64, 65, 142, 144, 187, 235, 345, 346, 583 20, 65, 142, 144, 146, 149, 150, 245, 272, 333, 345-8 21, 8, 68-71, 120, 142, 146, 147, 150, 152, 189, 231, 235, 272, 345, 346, 347, 557, 583 22, 70, 120, 142, 147, 148, 151,557 23, 71, 72, 142, 152, 188, 240, 348, 584 24, 130,235 25, 130,235 26, 130 28, 247 30,74,247,283 33, 81, 154, 284 34, 145, 282, 557 36, 286 40, 55, 218, 557 47,555-7 50, 557 ANNEX I, 73, 74, 114, 126, 233, 242, 255, 261 ANNEX II, 8, 59, 60, 126, 129-31, 241, 258, 266, 320-3, 330,415 Agreement for the Protection, Preservation and Extension of the Pacific Salmon Fisheries in the Fraser River, 1930, 363, 377 Agreement on Co-operation in Research, Conservation and Management of Marine Mammals in the North Atlantic (NAMMCO Agreement), 1992, 381-4

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Agreement on Fisheries and the Marine Environment, 1993, 570 Agreement on Sealing and the Conservation of the Seal Stock in the North West Atlantic, 1971, 365 Agreement on Technical Barriers to Trade, 1994, 508, 509, 526, 527 Agreement on the Application of Sanitary and Phytosanitary Measures, 1994, 101, 508, 509 Agreement on the Conservation of African-Eurasian Migratory Waterbirds (AEW A), 1996, 446, 486 Agreement on the Conservation of Cetaceans of the Baltic Sea, Mediterranean Sea, and Contiguous Atlantic Area (ACCOBAMS), 1996, 381, 382,384,447,557,467,493,586 Agreement on the Conservation of Small Cetaceans of the Baltic and North Sea (ASCOBANS), 1992, 380-2, 393,446,472,493, 586 Agreement on the Conservation of Nature and Natural Resources (ASEAN Agreement), 1985,442,486,492 Agreement on the Conservation of Seals in the Wadden Sea, 1990,446, 479 Agreement Relating to the Implementation of Part XI of the United Nation Convention on the Law of the Sea of 10 December 1982, 1994, 119 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement), 1994, 7, 31, 33, 34, 65, 87, 90, 109, 238, 392,494 Preamble, 6,46, 118, 122 Art. 1,47 II, 47, 123, 238, 239 111,49-51,65,66,98, 139, 140, 143, 144, 190, 239, 335, 337, 580, 583 IV, 51, 72, 191, 335 V, 152, 191, 239, 333, 335, 337, 583, 584 VI, 52, 127, 146, 191, 238, 240, 333, 337, 349 VII, 52, 580 VIII, 52, 154, 338 X,562 XI,39 Antarctic Treaty, 1959, 365,435,457, 459, 491 Bluefin Tuna Action Plan Resolution, 1994, 245

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Canada - United States Free Trade Agreement, 1998,514,515 Code of Conduct for Responsible Fisheries (Code of Conduct), 1995, 7, 38,46, 85, 87, 109, 311, 392, 416 Para. 1.1, 8, 90, 416 1.2,237,416,582 1.3,416 1.4,560 2,91 3.1, 83, 118,416 3.2, 93, 118, 416 4.1, 237, 417 6.1, 126, 334 6.4,334 6.5, 334 6.6, 267 6.10,334 6.11, 334 6.12, 133, 334 6.13, 136 6.14, 237 6.15,237, 334 6.18,237 7.2,416 7.5.1, 8, 131,416 7.6.2,98 7.8,582 8.2,583 8.3,584 9.2.2, 100 9.2.3 10.1.1, 100 10.1.5, 101 10.3, 101 11.2.1, 101 11.2.7, 101 11.2.9, 101 11.3.3, 101 12.12, 102

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Para. 12.15, 102 Code of Conduct on the Distribution and Use of Pesticides, 1985, 90 Constitution of the Food and Agricultural Organization of the United Nations, 1945, 103, 109, 560 Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region (Abidjan), 1981,445,478,490 Convention for a North Pacific Marine Science Organization, 1990, 497 Convention for the Establishment of an Inter-American Tropical Tuna Commission, 1950, 34, 352,434 Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean (North Pacific Salmon Convention), 1992, 34, 37, 140, 375,376,385,435,586 Convention for the Conservation of Antarctic Seals (Convention on Antarctic Seals), 1972, 365, 446 Convention for the Conservation of Salmon in the North Atlantic Ocean, 1982, 34, 377,435,542 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific (Wellington Driftnet Convention), 1989, 34, 308, 467, 520-2, 563, 587 Convention for the Protection and Conservation of Sea Turtles (Caracas Convention), 1996, 468, 473, 493 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena Convention), 1983, 200,445 - Protocol on Specially Protected Areas and Wildlife in the Wider Caribbean Region (Kingston Protocol), 1990, 444, 454, 463, 476, 477,479,486,492 Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region, 1985,444 - Protocol on Protected Areas and on Wild Fauna and Flora in the East Africa Region (Nairobi Protocol), 1985, 44, 454, 463, 477, 479,486 Convention for the Protection of the Marine Environment and Coastal Areas of the South-East Pacific, 1981,445

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TABLE OF INSTRUMENTS

- Protocol for the Conservation and Management of Protected Marine and Coastal Areas of the South-East Pacific, (Paipa Protocol), 1989, 445,476,486 Convention for the Protection of the Marine Environment of the NorthEast Atlantic, 1992, 296, 445 Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention), 1976, 200,444,462 - Protocol concerning Mediterranean Specially Protected Areas (Geneva Protocol), 1982,444, 463, 479, 486 - Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean (Barcelona Protocol), 1995, 444, 455,462,463,465,475-7,479,486,496 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (Noumea SPREP Convention), 1986,445,478,490 Convention for the Protection of the World Cultural and Natural Heritage (World Heritage Convention), 1972,437,441, 452 Convention for the Regulation of Whaling, 1935, 363 Convention on Biological Diversity (Biodiversity Convention), 1992, 7, 108,296,417,424,437,453,475,491,496 - Jakarta Mandate on Marine and Coastal Biological Diversity (Jakarta Mandate), 1995, 7, 289, 410, 418, 461, 489, 498 Convention on Fishing and Conservation of the Living Resources in the Baltic Sea and Belts (Baltic Convention), 1973, 389, 435, 542, 545 Convention on Fishing and Conservation of the Living Resources of the High Seas (1958 Geneva Convention), 1958, 15,24,28, 77, 168-172, 177, 192, 290, 293, 314, 316, 362, 363 Convention on Future Multilateral Co-operation in the North-East Atlantic Fisheries, 1980, 34, 222, 276, 277, 542, 544 Convention on Future Multilateral Co-operation in the North-west Atlantic Fisheries, 1978, 34, 48, 80, 219, 276, 277, 435, 541, 544, 550 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973,437,441,452,453,497, 520, 522 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (Western Hemisphere Convention), 1940, 442, 492

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Convention on the Conservation of European Wildlife and Natural Habitats, (Berne Convention), 1979, 298,442,455,486,491, 492, 496 Convention on the Conservation of the Living Resources of the Southeast Atlantic, 1969, 34, 223 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (Donut Hole Agreement), 1994, 33, 34, 37, 141,203,219,309,316,435,586 Convention on the Conservation of Antarctic Marine Living Resources, 1980,34,307,435,457,468,486,491 Convention on the Continental Shelf, (Geneva) 1958, 21 Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), 1979, 298, 382,432,437,442,486,492, 496 Convention on the High Seas, (Geneva) 1958, 16, 168, 169, 172, 362 Convention on the Law of Treaties, (Vienna) 1969, 115, 118, 407 Convention on the Law of the Non-navigational Uses of International Watercourses, 1997, 496 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention), 1972, 71, 72, 470 - Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1996, 72, 296, 470 Convention on the Protection of and Use of Transboundary Watercourses and Lakes, 1992, 296 Convention on the Protection of the Black Sea against Pollution (Bucharest Convention), 1992, 296, 445, 463 Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention), 1992, 389,445, 464, 478 Convention on the Protection of Polar Bears, 1973,446 Convention on the Territorial Sea and the Contiguous Zone (Geneva), 1958, 16, 168 Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar Convention), 1971, 298, 437, 441, 452, 479,482,496 Declaration of Canetin, 1992, 37, 46, 86, 93, 94, 118, 265, 267, 311, 415, 416, 559 EC - Argentina Agreement on Relations in the Sea Fisheries Sector, 1994, 570 EC - Canada Agreement, 1995,542-4

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TABLE OF INSTRUMENTS

EC - Greenland Agreement on Fisheries, 1985, 570 EC - Mauritania Agreement on Co-operation in the Sea Fisheries Sector, 1996, 569 EEC - Angola Agreement on Fishing off Angola, 1989,568 EEC - Cape Verde Agreement on Fishing off the Coast of Cape Verde, 1990, 568 EEC - Comores Agreement on Fishing off Comores, 1988, 568 EEC - Dominica Agreement on Fisheries Relations, 1993, 566 EEC - Equatorial Guinea Agreement on Fishing of the Coast of Equatorial Guinea, 1984, 567 EEC - Estonia Agreement on Fisheries Relations, 1992, 566 EEC - Farces Agreement on Fisheries, 1977, 566 EEC - Gambia Agreement on Fishing off Gambia, 1987, 568 EEC - Guinea Agreement on Fishing off the Guinean Coast, 1983, 567 EEC - Guinea Bissau Agreement on Fishing off the Coast of Guinea Bissau, 1980, 567 EEC - Ivory Coast Agreement on Fishing off the Coast of Ivory Coast, 1990, 568 EEC - Latvia Agreement on Fisheries Relations, 1992, 566 EEC - Lithuania Agreement on Fisheries Relations, 1992, 566 EEC - Madagascar Agreement on Fishing off Madagascar, 1986,567 EEC - Mauritania Agreement on Fishing off the Coast of Mauritania, 1987 ,568 EEC - Mauritius Agreement on Fishing in Mauritian Waters, 1989, 568 EEC - Mozambique Agreement on Fisheries Relations, 1987, 568 EEC - Morocco Agreement on Cooperation in the Fisheries Sector, 1996, 568 EEC - Norway Agreement on Fisheries, 1980,566 EEC - Sao Tome and Principe Agreement on Fishing off Sao Tome and Principe, 1984, 567 EEC - Senegal Agreement on Fisheries off the Coast of Senegal, 1979, 567 EEC - Seychelles Agreement on Fishing off Seychelles, 1985, 567 EEC - Sierra Leone Agreement on Fishing off Sierra Leone, 1990, 568 EEC - Tanzania Agreement on Fishing off Tanzania, 1990, 568 GATT, 1947, 503 Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities, 1995,464

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Inter-American Convention for the Protection and Conservation of Sea Turtles (Caracas Convention), 1996,446 Inter-American Tropical Tuna Convention, 1950, 219, 380 International Convention for High Seas Fisheries of the North Pacific Ocean (North Pacific Fisheries Convention), 1952, 305, 366, 375 International Convention for the Conservation of Atlantic Tunas, 1966, 34,48,245,306,351,434,545 International Convention for the North West Atlantic Fisheries, 1949, 222, 365 International Convention for the Prevention of Pollution from Ships (MARPOL 73178), 1973, 71, 72, 99 International Convention for the Regulation of Whaling, 1946, 34,48, 306,363,364,434,497,518 International Convention on North Pacific Fur Seals, 1957, 363 International Convention on the Safety of Life at Sea (sotxs Convention), 1975, 71 International Undertaking on Plant Genetic Resources, 1983, 90, 91 Ministerial Declaration on the Protection of the Black Sea, 1993, 296 Majuro Declaration, 1997, 83, 277 North American Free Trade Agreement (NAFTA), 1993 ,447, 521 Panama declaration, 1995,472 Regional Convention for the Conservation of the Red Sea and Gulf of Adan Environment, 1982, 200 Rio Declaration on Environment and Development (Rio Declaration), 1992, 59, 93-5, 112, 118, 294, 378, 391,409, 411 Single European Act, 1986, 298 Treaty Concerning Pacific Salmon, 1985, 221, 377 Treaty for the Preservation and Protection of Fur Seals (Fur Seal Convention), 1911, 362 Treaty of the La Plata River and its Maritime Jurisdiction , 1973, 221 Treaty on European Union, 1992, 296 Treaty Relating to Spitsbergen, 1920, 202 United Nations Conference on the Human Environment (Stockholm Declaration, UNCHE Declaration of Principles), 1972, 112, 297, 304, 310, 366, 436, 439 United Nations Convention on the Law of the Sea (LOS Convention), 1982, 108 Preamble, 121

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TABLE OF INSTRUMENTS

Art. 1,450 2,20, 175 3, 16 7,278 19, 20, 151, 175 20, 20 21, 175 25, 20 42, 20 49,20, 175 51,20, 175 54, 20 55-75,46, 175 56, 21, 124, 176, 253, 430, 431 61,21,61, 73, 11, 124, 125, 127, 129, 130, 133, 176,200, 211, 214, 219, 224-6, 263, 271, 273, 276, 278, 281, 318, 331, 397-407,413, 416,419,433,450,460,579 62,21,22, 111, 124, 125, 130, 176,211,227,263,301,331,369,370, 398,399,450,579 63, 17,24,47,66, 77, 111, 122, 124, 132, 135, 177, 180, 211, 219, 227, 228, 232, 253, 263-5, 278, 281, 285, 302, 312, 373, 407, 433 64,17,25,66,77,79,111,122,124,132,136,137,177,180-2,219, 228, 232, 253, 263-5, 274, 275, 278, 281, 285, 302, 312, 370, 373, 407,431,433 65, 17,25, 77, 177, 180,225,228, 230, 233, 320, 358, 369, 370, 373, 379, 381, 383 66, 17, 25, 26, 77, 177, 180,219, 225, 228, 304, 358, 371-3, 385, 431 67, 17, 26, 77, 177, 180,229, 358, 373, 374, 431 69, 22, 229 70, 22, 229 73, 150, 183 74, 21, 135, 278 76, 26 77,21,230,431 83, 135,278 87, 23, 76, 124, 177, 272, 584 90, 122, 142 91, 50, 122, 142

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Art. 92, 32, 64, 68, 141, 148 94, 122 110, 141, 149, 183 111, 141, 149 116,23,47, 76, 77, 79, 80, 122, 124, 125, 132, 140, 177, 179, 182, 204, 229, 253, 264, 271-5, 281, 285, 300, 313, 318, 373 117,23,47,50, 77, 122, 125, 127, 140-2, 145, 178, 180, 200, 229, 252, 265,272,300,302,304,313,349,432,579,584 118, 17,23,28,47,77, 125, 135, 140, 153, 178, 180,200,219,225, 229, 233, 283, 300, 313, 433, 584 119,23,28,47,64,73,77, 125, 127, 130, 132, 135, 138, 178,200, 225-7, 299, 233, 252, 255, 258, 262, 271, 283, 285, 300, 301, 304, 313,315,318,333,450,460,579,584 120, 23, 230, 358, 370, 383 122, 195, 196, 204 123, 195, 197-200, 204, 211, 214, 216 145,432,451 165, 490 177, 64 192,303,451,484 194,303,412,450,451,474,476 196,451,486 197, 303 206,409 211,474 218, 70, 71, 152 234,474 297, 22, 75, 135, 225, 398, 399 300, 145 305, 547 311(2), 76 Part IV, 13,215 V,13 VII, 13, 23, 177, 300 IX, 194, 200, 206, 555 X,215

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TABLE OF INSTRUMENTS

Part XI,286 XII, 303,412 XV, 13, 74, 247 Annex I, 181, 370 IX, 547,548, 557,558 United Nations Framework Convention on Climate Change, 1992, 296, 423,499 Convention for the Protection of the Ozone Layer, 1987,499 World Charter for Nature, 1982, 112, 436

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TABLE OF CASES

INTERNATIONAL COURT OF JUSTICE Case Concerning the Gabcikovo-Nagymaros Project (Gabcikovo-Nagymaros case), 1997, 157, 292, 408, 419, 588 Fisheries Jurisdiction case (Jurisdiction) (United Kingdom v. Iceland), 1972, 168, 176 Fisheries Jurisdiction cases (Merits) (UK v. Iceland and Federal Republic of Germany v. Iceland) , 1974 , 17, 145, 169, 172 Lockerbie case (Libya v. UK) (Libya v. US), 1992, 146 Nicaragua case (Jurisdiction) (Nicaragua v. USA) , 1984, 116 North Sea Continental Shelf cases, 1969, 173

GATT/WTO Canada - Measures Affecting Exports Unprocessed Herring and Salmon, GATT, 1988, 515 United States - Restrictions on Imports of Tuna, (Tuna/Dolphin l) GATT, 1991,472,502,512,519,524 United States - Restrictions on Imports of Tuna, (Tuna/Dolphin ll) GATT 1994, 155, 472, 502, 524 United States - Standards for Reformulated and Conventional Gasoline, (US Standards for Gasoline), WTO Panel, 1996, 513 United States -Import Prohibitions of Certain Shrimp and Shrimp Products (Shrimp-Turtle), WTO Panel, 1998,473, 526 United States -Import Prohibitions of Certain Shrimp and Shrimp Products (Shrimp Turtle), WTO Appelate Body, 1999, 473

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TABLE OF CASES

COURT OF JUSTICE OF THE EUROPEAN COMMUNITY

Commission v. Council, 1996, 538, 561 Commission v. Greece, 1989, 541 Commission v. Spain, 1991, 538 Commission v. United Kingdom, 1981, 540 ERTA case (Commission v. Council), 1971, 536, 546 Germany v. Commission, 1992, 541 Mondiet v. lslais, 1993, 539 Officier van Justitie v. Kramer, 1976, 537, 546

OTHERS

Bering Fur Seal arbitration, 1895, 362, 391 Canada's Landing Requirement for Pacific Coast Salmon and Herring, (Canada's Landing Requirement), Canada-us Free Trade Agreement, 1989, 515 I'm Alone case , arbitration, 1935, 151 Lobsterfrom Canada (Canada-us Lobster decision), Canada-us Free Trade Agreement, 1990, 516, 524 Lotus Case (Francev. Turkey), Permanent Court of International Justice, 1927, 32

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LIST OF ABBREVIAnONS

ACCOBAMS

AEWA

AHL APPIC ASCOBANS CCAMLR CCSBT CEFA CECAFC CEMP CITES CFC COFI COP CPPS CTE CTMFM DOALAS DSB

Agreement on the Conservation of Cetaceans of the Baltic Sea, Mediterranean Sea and Contiguous Atlantic Area African-Eurasian Waterbirds Agreement Allowable Harvest Level Asian-Pacific Fishery Commission Agreement on Small Cetaceans on the Baltic and North Sea Convention on the Conservation of Antarctic Marine Living Resources Commission for the Conservation of Southern Bluefin Tuna Committee for Enforcement, Finance and Administration Fisheries Committee for the Eastern-Central Atlantic CCAMLR Ecosystem Monitoring Programme Convention on the International Trade on Endangered Species Chlorofluorocarbon Committee on Fisheries Conference of the Parties Permanent Commission for the South Pacific Committee on Trade and Environment Mixed Technical Commission for the ArgentinalUruguay Maritime Front Division for Ocean Affairs and The Law of Sea of the UN Office of Legal Affairs Dispute Settlement Body

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DWFN EC ECR ECOSOC ECU EEC EEZ EFfA ESCAP EU FAO FFA GATT GEF GESAMP

GFCM GRT HACCP HCFC HELCOM IATTC IBSFC ICCAT ICES ICJ ICNAF ICNT ICRW ICSEAF ILM IMO

LIST OF ABBREVlAnONS

Distant Water Fishing Nation European Community European Court Report Economic and Social Council European Currency Unit European Economic Community Exclusive Economic Zone European Free Trade Association Economic and Social Commission for Asia and the Pacific European Union Food and Agricultural Organisation of the United Nations Forum Fisheries Agency General Agreement on Tariffs and Trade Global Environment Facility Group of Experts on the Scientific Aspects of Marine Environmental Protection General Fisheries Council for the Mediterranean Gross Register Tons Hazard Analysis Critical Control Point Hydrochlorofluorocarbon Helsinki Commission Inter-American Tropical Tuna Commission International Baltic Sea Fishery Commission International Commission for the Conservation of Atlantic Tunas International Council for the Exploration of the Sea International Court of Justice International Commission for the Northwest Atlantic Fisheries Informal Composite Negotiating Text International Convention for the Regulation of Whaling International Commission for the Southeast Atlantic Fisheries International Legal Materials International Maritime Organization

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LIST OF ABBREVIAnONS

IOC IOFC ISNT IUCN IWC

LME LOS MARPOL MIT MSC MSY NAFO NAFTA NAMMCO NASCO NEAFC NGO NPAFC NPC OECD OSCOM PARCOM

rcn

PICES PPM PRC RECIEL RSNT SAC SBC SBSTTA

XXXVII

Intergovernmental Oceanographic Commission Indian Ocean Fisheries Commission Informal Single Negotiating Text International Union for the Conservation of Nature and Natural Resources (World Conservation Union) International Whaling Commission Large Marine Ecosystem Law of the Sea International Convention for the Prevention of Pollution from Ships Massachussets Institute of Technology Marine Stewardship Council Maximum Sustainable Yield Northwest Atlantic Fisheries Organization North American Free Trade Agreement North Atlantic Marine Mammal Conservation Organization North Atlantic Salmon Conservation Organization Northeast Atlantic Fisheries Commission Non Governmental Organization North Pacific Anadromonous Fish Commission North Pacific Commission Organization for Economic Co-operation and Development Oslo Commission Paris Commission Permanent Court of International Justice North Pacific Marine Scientific Organization Process and Production Method People's Republic of China Review of European Community and International Environmental Law Revised Single Negotiating Text Special Area of Conservation Sea Bed Committee Subsidiary Body on Scientific, Technical and Technological Advice

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SOLAS SPAMI SPS TAC TBT TED TIAS UK UN UNCED UNCLOS UNESCO UNGA UNEP UNHCE UNTS US UST WCED WCMC WECAFC WHO WTO

LIST OF ABBREVlAnONS

Safety of Life at Sea Specially Protected Areas of Mediterranean Importance Sanitary and Phytosanitary Measures Total Allowable Catch Technical Barriers to Trade Turtle Excluder Device Treaties and other International Acts Series United Kingdom United Nations United Nations Conference on Environment and Development United Nations Conference on the Law of the Sea United Nations Educational , Scientific and Cultural Organisation United Nations General Assembly United Nations Environment Programme United Nations Conference on the Human Environment United Nations Treaty Series United States United States Treaties and other International Agreements World Commission on Environment and Development World Conservation Monitoring Centre Fisheries Commission for the Western-Central Atlantic World Health Organization World Trade Organization

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INTRODUCTION

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1 GLOBAL FISHERIES INSTRUMENTS ADOPTED IN THE POST-UNCLOS III PERIOD Ellen Hey

INTRODUCTION

Upon the conclusion of the negotiations at the Third United Nations Conference on the Law of the Sea (UNCLOS III), it was generally believed that international fisheries regulations from then on would be adopted mainly within regional and species-specific international fisheries management organizations and through the conclusion of bilateral agreements among states. The fisheries provisions of the United Nations Convention on the Law of the Seal (LOS Convention), it was thought, would provide an adequate jurisdictional framework within which these regulations could be adopted, implemented and enforced. During the 1980s and 1990s a number of problems and controversies arose in international fisheries relations that brought to the fore shortcomings in the global fisheries regime provided by the LOS Convention . The result was the adoption, during the first half of the 1990s, of a number of global instruments for regulating fishing activities.' These new fisheries instruments and their implications for fisheries conservation and management regimes are the topic of this book.

1

2

(1982) 21 lIM 126. Also see Ellen Hey, "Global Fisheries Regulations in the First Half of the 1990s," (1996) 11 The International Journal of Marine and Coastal Law, pp. 459-490.

E. Hey (ed.), Developments in International Fisheries Law, p. 1-10. © 1999 Kluwer Law International. Printed in The Netherlands .

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ELLEN HEY

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PROBLEMS AND CONTROVERSIES The problems and controversies that arose in the post-UNCLOS III period in some cases find their origin in issues that had not been resolved during the negotiations at UNCLOS III; in other cases they originated from new insights and developments that arose after UNCLOS III. The controversies over the regimes for straddling and highly migratory stocks are an example of the former; the problems regarding the effects of fishing activities on the degradation of the marine environment and marine biodiversity are an example of the latter. The problems and controversies that arose in the 1980s and 1990s can be divided into four categories . First, there is the problem of the exercise of jurisdiction by coastal states and flag states over stocks that migrate between an exclusive economic or fishing zone and the adjacent high seas area. The controversies over the regimes for the exploitation of straddling stocks, highly migratory stocks and fishing activities in high seas pockets are illustrative of this problem.' Second, the problem of the exercise of jurisdiction by coastal states within their exclusive economic zones presents itself. The decline of stocks in some of these areas demonstrates that the extension of coastal state jurisdiction out to 200 nautical miles, does not provide a guarantee for the proper conservation and management of the stocks in question. Examples of this type of problem are the decline of stocks in the Northwest Atlantic Ocean and in the North Sea which, at least to some extent , have been attributed

3

For further information see Frida Marfa Armas Pfirter, "Straddling Stocks and Highly Migratory Stocks Latin American Perspective and Legislation: New Perspectives in Light of Current International Negotiations", 26 Ocean Development and International Law 1995, pp. 127-150; Barbara Kwiatkowska, "The High Seas Fisheries Regime: At a Point of No Return?", 8 The International Journal of Coastal and Estuarine Law 1993, pp. 327-358; Evelyne Meltzer, "Global Overview of Straddling and Highly Migratory Fish Stocks: The NonSustainable Nature of High Seas Fisheries", 25 Ocean Development and International Law 1995, pp. 255-344 ; Edward L. Miles and William T. Burke, "Pressures on the United Nations Convention on the Law of the Sea of 1982 Arising from New Fisheries Conflicts : The Problem of Straddling Stocks", 20 Ocean Development and International Law 1989, pp. 343-357.

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5

to lack of proper management by the coastal states" involved , respectively, Canada" and the European Community ." Third, we are confronted with the problem of the exercise ofjurisdiction by flag states over fishing activities conducted by vessels flying their flag and fishing for high seas stocks. The question that arises in this case is whether flag states exercise proper controls over their vessels while these are engaged in fishing activities on the high seas. The problems associated with fishing vessels that reflag in order to avoid the imposition of conservation and management measures" and those associated with large-scale driftnet fishing on the high seas are illustrative in this respect." Fourth, the extent to which coastal and flag states should incorporate concerns over the conservation and sustainable use of marine biodiversity

The term "states" in this chapter also refers to the European Community which for purposes of the conservation and management of fish stocks has competences similar to those of states. For further information see R.R. Churchill, "EC Fisheries and an EEZ - Easy!", 23 Ocean Development and International Law 1992, pp. 145-163. However, for some of the questions to which the position of the Community may give arise in public international law see Ellen Hey , "The European Community, the Law of the Sea and Accountability: An Ever Chang ing and Challenging Relationship", in Malcolm D. Evans (ed.), Aspects of Statehood and Institutionalism in Contemporary Europe, Dartmouth, 1997, pp.277-3oo. 5 For further information see Douglas M. Johnston, "Is Coastal State Fishery Management a Success or Not?", 22 Ocean Development and International Law 1991, pp. 199-208; William E. Schrank, "Extended Fisheries Jurisdiction", 19 Marine Policy 1995, pp. 285-299. 6 For further information see R.R. Churchill, "Shared Fisheries Management in the European Community, 2 REClEL 1993, pp. 260-269; by the same author, "Fisheries in the European Community: Sustainable Development or Sustained Mismanagement," in Alastair Couper and Edgar Gold (eds.), The Marine Environment and Sustainable Development: Law, Policy and Science, 1993, pp. 140-177. 7 , Patricia Binie, "Reflagging Fishing Vessels on the High Seas," (1993) 2 REClEL, pp. 270-276. 8 James Carr and Matthew Gianni, "High Seas Fisheries, Large Scale Drift Nets, and the Law of the Sea", in Jon M. Van Dyke, Durwood Zaelke and Grant Hewison (eds.), Freedom ofthe Seas in the Zl" Century, Island Press, Washington D.C., 1993, pp. 272-291. 4

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ELLEN HEY

into fisheries conservation and management regimes arose." This problem finds its basis in the awareness that fishing activities may have detrimental effects on marine biological diversity. The effect has been that the traditional focus of fisheries regulations on the conservation of commercial fish stocks and the management of fishing activities for such stocks , has come under attack and that demands for incorporating concerns related to the conservation of marine biodiversity have come to the fore. This problem may of course manifest itself jointly with any of the three other categories of problems identified. The controversies over driftnet fishing illustrate this point, because in this case, together with the conservation of target stocks, the conservation of marine mammals and other non-targeted species is of major concern. 10 Each of the four problems summarized above raises the question as to the proper extent of international involvement in issues which traditionally have been regarded as within the jurisdiction of an individual state - coastal or flag - or as having to be dealt with by two or more states directly involved in a fishery, through cooperation among themselves. The more general issue at stake is the extent to which international regulations should set minimum standards for activities that, according to the traditional perspective in international law, are regarded as within the jurisdiction of a single state or within the jurisdiction of two or more states having a direct interest in the matter. It illustrates the lack of recognition that the traditional perspective in international law offers to the interests of third states or common interests. 11 The above-mentioned problems and controversies resulted in pressure to adopt additional global instruments for the regulation of fishing activities.

9

10 11

For further information see Ellen Hey, "A Healthy North Sea Ecosystem and a Healthy North Sea Fishery: Two Sides of the Same Regulation?", 23 Ocean Development and International Law 1992, pp. 217-238. Second and fourth paragraphs, Preamble to UNGA Resolution 46/225; also see Carr and Gianni, supra note 8. Christine Chinkin, Third Parties in International Law, ClarendonPress, 1993.

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7

NEW GLOBAL INSTRUMENTS During the first half of the 1990s a number of global fisheries instruments were adopted. These include the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas'? (Compliance Agreement), adopted within the FAO on November 24, 1993, the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea December 10,1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks" (Straddling and Highly Migratory Fish Stocks Agreement) , adopted within the United Nations on December 4, 1995 and the Code of Conduct for Responsible Fisheries" (Code of Conduct), adopted within the FAO on October 31, 1995. In addition, the United Nations General Assembly adopted a number of resolutions on driftnet fishing, 15 the United Nations Conference on Environment and Development (UNCED) addressed fisheries conservation and management in Chapter 17 of Agenda 21 16 and the parties to the Convention on Biological Diversity" addressed fisheries conservation and management in what has become known as the Jakarta Mandate." Although only two of the instruments adopted, the Compliance Agreement and the Straddling and Highly Migratory Fish Stocks Agreement, will be legally binding when they enter into force, all of the new instruments

(1994) 33 lIM 968. (1995) 34 lIM 1542. 14 Code of Conduct for Respons ible Fisheries, FAO, Rome, 1995. 15 UNGA Resolution 44/225 of December 22, 1989 «1990) 29 lIM 1555), UNGA Resolution 45/197 of December 21, 1990 and UNGA Resolution 46/215 of December 20, 1991 «1992) 31 lIM 241). 16 Sections C and D of Chapter 17 of Agenda 21 « 1992) 22 Environmental Policy and Law pp. 284-287). 17 (1992) 31 lIM 818. 18 The Jakarta Mandate consists of the Recommendation on Scientific, Technical and Technological aspects of the Conservation and Sustainable Use of Coastal and Marine Biological Diversity (SBSITA Recommendation), Doc. UNEP/CBD/COPI 215, September 4-8, 1995, pp. 34-43 and Decision 1I/10 on the same subject (Decision II1lO), Doc. UNEP/CBD/COP/2I19, November 30,1995, adopted respectively by the SBSITA Committee and by the Conference of the Parties to the Convention on Biological Diversity. 12 13

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address lacunae in the LOS Convention that became apparent as a result of the problems and controversies discussed above . The new instruments, including the two treaties, do not aim to replace the jurisdictional framework provided by the fisheries provisions of the LOS Convention; rather, they aim to add to and build upon that framework in order to establish a global fisheries conservation and management regime that is conducive to the sustainable development of fishing activities." While the fisheries provisions of the LOS Convention mainly address jurisdictional issues and only contain a minimum of substantive rules, the new instruments address both jurisdictional and substantive aspects of fisheries conservation and management. The main jurisdictional innovation introduced by these new instruments is undoubtedly the enhanced enforcement powers of non-flag states in high seas areas adjacent to the exclusive economic zone, included in the Straddling and Highly Migratory Fish Stocks Agreement. 20 This innovation seeks to provide a solution to the "agreements to disagree" reached at the UNCLOS III on the regimes for straddling stocks and highly migratory species, contained in, respectively, articles 63(2) and 64 of the LOS Convention. The main substantive innovations relate to the emphasis that the new instruments place on the relationship between fishing activities and the protection and preservation of the marine environment." The latter development reflects the growing concern for environmental degradation and the realization that, at least, some global minimum standards are required to adequately address global environmental concerns. The new instruments establish a new legal context for the regulation of fishing activities. This context is determined by both the new jurisdictional provisions contained in the new instruments, the interrelationship among the different instruments and new substantive developments in international fisheries law. Such new developments relate to the adoption and implementation of the precautionary principle and rules and regulations on the conserva-

Preambles to the Driftnet Resolutions, paras. 17.44 and 17.70, Agenda 21, 1'1 para. Preamble, Compliance Agreement, Art. 4, Straddling Stocks Agreement, art. 1.1, Code of Conduct, art. 22(2), Convention on Biological Diversity juncto para . 12(e), SBSITA Recommendation which was explicitly supported in para. l(b) of Decision HIlO. 20 Art. 21, Straddling and Highly Migratory Fish Stocks Agreement. 21 See, e.g., article 6 and Annex 11 of the Straddling and Highly Migratory Fish Stocks Agreement and article 7.5 of the Code of Conduct. 19

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tion of biological diversity, but also to developments outside the fisheries regime as such: most notably those within the multilateral trade regime. The new instruments place familiar and often controversial topics in international fisheries policy and law in this new context. Such topics are the freedom of fishing , coastal state jurisdiction, the regimes of enclosed and semi-enclosed seas and high seas enclaves, the role of regional and species specific fisheries management organizations, principles for fisheries conservation and management, compliance and enforcement and the role of the European Community. The above-mentioned context and topics are discussed in the chapters of this book. Together these chapters illustrate that the new instruments already have had a significant effect on fisheries management and conservation practices , but also that implementation of the rules and regulations agreed at the global level is not always an easy task, especially where the integration of fisheries interests and environmental concerns are at stake. As in other sectors of the economy , the attainment of sustainable development also in this case presents significant difficulties.

THE STRUCTURE OF THE BOOK

The book is subdivided into five parts, including an introductory and concluding part; the latter two each consist of a single chapter. The other three parts are entitled "Global Instruments," "Themes in International Fisheries Law" and "The Wider Context of International Fisheries Law." The first part focuses on the content of and the interrelationship between the LOS Convention and the main global fisheries instruments adopted in the first half of the 1990s: the Compliance Agreement, the Straddling and Highly Migratory Stocks Agreement and the Code of Conduct. The other new instruments adopted in this period are referred to throughout these and other chapters in the book. In Part I, Hey considers the fisheries provisions of the LOS Convention, Balton the Compliance Agreement, Hayashi the Straddling and Highly Migratory Fish Stocks Agreement, Moore the Code of Conduct and Rayfuse the interrelationship between these different instruments. This part sets out the background, content and potential role of each of the instruments discussed .

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The second part of the book addresses familiar and new themes in international fisheries law in the context of the new instrument. Hewison, Lodge, Applebaum and Donohue, Schram and Tahindro, Freestone, Joyner, Birnie and Christie address respectively the balance between the freedom of fishing and coastal state jurisdiction, the regimes of enclosed and semi-enclosed seas and high seas enclaves, the role of regional fisheries management organizations, developments in principles for the adoption of fisheries conservation and management measures, the precautionary principle, compliance and enforcement, the regimes for marine mammals and anadromous and catadromous species and the conservation and management of fish stocks located solely within the exclusive economic zone. These chapters illustrate that the new instruments have changed both the jurisdictional framework and the substantive content of fisheries conservation and management regimes . These changes are relevant not only for the conservation and management regimes applicable to the stocks addressed by the Compliance Agreement and the Straddling and Highly Migratory Fish Stocks Agreement, i.e., high seas stocks and straddling and highly migratory stocks, but also for the regimes applicable to marine mammals, anadromous stocks, catadromous stocks and stocks located solely in exclusive economic zones. In the third part of the book, issues are addressed that play a role in international regimes for fisheries conservation and management but that also are relevant in a wider context. De Klemm discusses fisheries conservation and management and the conservation of marine biological diversity, McDorman fisheries conservation and management and international trade law and Churchill the role of the European Community in international fisheries conservation and management regimes. The book ends with a chapter in which overall conclusions are drawn from the analyses presented in the previous chapters. That chapter seeks to provide a synthesis of the changes that have taken place in global fisheries conservation and management law and policy since the early 1980s. It identifies the legal and policy context in which fisheries conservation and management policies are to develop in the future. That chapter also identifies challenges that may arise in the further development of international fisheries conservation and management regimes.

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PA R T I

GLOBAL INSTRUMENTS

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2 THE FISHERIES PROVISIONS OF THE LOS CONVENTION Ellen Hey

INTRODUCTION

The second half of the 20th century, in terms of fisheries management, can be characterized as a search for legal mechanisms to replace or amend the freedom of fishing applicable to the high seas. The fisheries provisions of the United Nations Convention on the Law of the Seal (LOS Convention) mark the end of a distinct phase in that search. They reflect the attainment of international consensus on the legitimacy of the extension of coastal state jurisdiction up to 200 nautical miles for, among other purposes, fisheries management. As a result of this development, the geographical scope of application of the freedom of fishing was significantly reduced. As the other chapters in this book illustrate, this consen sus, however, did not end the search for legal mechanisms to replace or amend the freedom of fishing. In this chapter the background to and the content of the fisheries provisions of the LOS Convention will be discussed. Its focus is on how these provisions replace or amend the principle of the freedom of fishing .

(1982) 21 fUrl 126. The fisheries provisions of the LOS Convention are to be found mainly in Parts v and VII, Section 2, on, respectively, the exclusive economic zone and the conservation and management of the living resources of the high seas. In addition, provisions relevant to fisheries activities also are included in other parts of the LOS Convention, such as, for example, those concerning other maritime zones, e.g. the territorial sea (Part II) and archipelagic waters (part IV), and Part xv on dispute settlement.

E. Hey, (ed.), Developments in Internat ional Fisheries Law, p. 13-29. © 1999 Kluwer Law International . Printed in The Netherlands .

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THE BACKGROUND TO THE FISHERIES PROVISIONS OF THE LOS CONVENTION After the Second World War, the jurisdictional framework that originated in the 17th century continued to govern the management of marine fishing activities . It consisted of two distinct regimes : that of maritime internal waters and the 3-nautical mile territorial sea, where fishing activities were subject to the sovereignty of the coastal state, and that of the high seas, where the freedom of fishing applied and where fishing activities were subject solely to the jurisdiction of the flag state.' During the following decades developments in state practice signaled dissatisfaction with this legal framework, which subjected most fishing activities - those on the high seas to the freedom of access.' On the one hand, coastal states extended or proposed to extend the geographical scope of their jurisdiction over fishing activities . On the other hand, states established cooperative arrangements for purposes of managing fishing activities on the high seas. Proposals were put forward that included the establishment of a global institution for man-

2

3

For further information see: F.W. Fulton, The Sovereignty ofthe Sea, William Blackwood and Sons, 1911, esp. pp. 537-603; D.P. O'Connell, The International Law of the Sea, Clarendon Press, 1982-84, Vol. I, pp. 124-161,510-527, Vol. II, pp. 792-799; J.K. Oudendijk, Status and Extent of Adjacent Waters, A Historical Orientation, A. Sijthoff, 1970. See David Attard, The Exclusive Economic Zone in International Law, Clarendon Press, 1987, esp. pp. 1-31 and 146-191; William T. Burke, The New International Law of Fisheries, Clarendon Press, 1994, esp. pp. 1-25; Ellen Hey, The Regime for the Exploitation ofTransboundary Fisheries Marine Resources, Martinus Nijhoff, 1989, esp. pp. 5-11; Douglas M. Johnston, The International Law ofFisheries: A Frameworkfor Policy Oriented Inquiries, Yale University Press, 1965; Albert W. Koers, International Regulation of Marine Fisheries, Fishing News (Books) , London, 1973, esp. pp. 15-21; Barbara Kwiatkowska, "The High Seas Fisheries Regime : At a Point of No Return?," (1993) 8 The International Journal of Marine and Coastal Law, pp. 327-358; Myres Mc Dougal and William T. Burke, The Public Order ofthe Oceans, Yale University Press, 1962, pp. 63-87 and 453-482 ; Rene-Jean Dupuy and Daniel Vignes, A Handbook on the New Law of the Sea, two volumes, Martinus Nijhoff Publishers, 1991, Chapter 19, Vol. II, pp. 989-1126. For an analysis of international fisheries law prior to the Second World War see: A.P. Dagget , "The Regulation of Maritime Fisheries by Treaty," (1934) 28 American Journal of International Law, pp. 693-717; Fulton, supra note 2, pp. 693-740.

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aging fishing activities, enhanced powers of regional and stock-specific fisheries organizations and more extended coastal jurisdiction." Coastal states, and in particular the United States, proposed to extend their jurisdiction on a stock-specific basis by establishing special conservation zones in areas adjacent to their territorial sea for the purpose of conserving stocks in which they had a special interest.' A similar mechanism was incorporated into the Convention on Fishing and Conservation of the Living Resources of the High Seas (1958 Fisheries Convention)." This Convention, however, never gained wide-spread acceptance.' As a result the

4

5

6

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For a comprehensive analysis of these proposals see Koers, id. pp. 229-277. (At id. pp. 279-323 and Appendices I and II, Koers presents a proposal encompassing all three elements: a global conservation organization; improved regional fisheries organizations, including stock-specific arrangements for highly migratory stocks; and coastal state preferential rights). Proclamation of the President with respect to Coastal Fisheries in Certain Areas of the High Seas, September 25, 1945, reprinted in (1946) 40 American Journal of International Law, pp. 46-47. In the so-called Truman Proclamation on Fisheries Resources, the United States claimed the right to adopt conservation measures for fishing activities by its nationals in high seas areas adjacent to its coast and claimed that foreigners who subsequently entered such a fishery should comply with these same conservation measures. For information on the Truman Proclamation on Fisheries Resources see Burke, supra note 3, pp. 6-14. Art. 7, 1958 Fisheries Convention, 559 VNTS 285. The 1958 Fisheries Convention provided that coastal states were entitled to adopt unilateral conservation measures for stocks in high sea areas adjacent to their territorial sea if, within a period of six months, no agreement with other concerned states could be reached. In addition, it provided that such measures would only be valid for the other states concerned if: (1) the urgency of the measures was shown; (2) the measures were based on appropriate scientific findings; and the measures did not discriminate against foreign fishermen (art . 7(2». If states fishing for the resources disputed the measures, recourse to binding dispute settlement procedures under article 9 of the convention was available (art. 7(4» . At the Geneva Conference a resolution on the rights of coastal states that are especially dependent on the fisheries resources in high seas areas adjacent to their coasts also was adopted (UN doc. A1Conf.13/L 56, in 2 Geneva Conference Records 1958, p.1l4). This resolution entitled coastal states, if necessary and in cooperation with other states fishing for the resources, to adopt catch limitations for such fisheries resources. The 1958 Fisheries Convention entered into force on 20 March 1966, but did not obtain more than 37 ratifications.

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global legal regime applicable to fishing activities on the high seas continued to be based on the freedom of fishing ." Some coastal states also sought to increase their jurisdiction over marine fisheries resources by extending their territorial sea, and thus their sovereignty, to an area up to a maximum of 12 nautical miles. Others extended their jurisdiction by establishing a fishing zone located beyond the territorial sea and extending up to a maximum of 12 nautical miles from the baselines along their coast." Agreement to include this development in a global treaty could not be reached at the First United Nations Conference on the Law of the Sea 10 (1958) nor at the Second United Nations Conference on the Law of the Sea (1960).11 Consensus on this point, in fact, was reached only at the Third United Nations Conference on the Law of the Sea (19731982) (UNCLOS III) with the agreement to extend the territorial sea, and thus coastal state sovereignty, to 12 nautical miles. 12 As of the 1950s, several coastal states also claimed fisheries jurisdiction zones extending beyond 12 nautical miles, up to a maximum of 200 nautical miles. However, it was not until the second half of the 1970s that this practice became wide-spread." As late as 1974 the International Court of JustArt. 2, 1958 Convention on the High Seas, 450 UNTS II. For further information see Burke, supra note 3, pp. 14-17. IO The fact that no agreement could be reached on the breadth of the territorial sea is reflected in article 1 of the Convention on the Territorial Sea and Contiguous Zone (1958) (516 UNTS 205). Article I determines that the sovereignty of a state extends to the territorial sea but it does not specify the breadth of the territorial sea. For further information on the First United Nations Conference on the Law of the Sea see J.H .W. Verzijl, "The United Nations Conference on the Law of the Sea, Geneva 1958," (1959) 6 Netherlands International Law Review, parts I and II, pp. 1-42 and 115-139. II This conference was organized for the purpose of reaching agreement on the extent of the territorial sea and on the extent of coastal state fisheries jurisdiction. Neither of these aims was accomplished. In fact, a proposal providing for a 6-nautical mile territorial sea and an additional 6-nautical mile fishing zone failed to obtain the two-thirds majority required for acceptance by only one vote. For further information on the Second United Nations Conference on the Law of the Sea see J.P.A. Francois, "La Deuxieme Conference sur le Droit de la Mer," (1960) 7 Netherlands International Law Review, pp. 249-254. 12 Art. 3, LOS Convention. 13 For further information see: Attard, supra note 3, pp. 1-31; Burke, supra note 3, pp. 17-19. 8 9

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ice (IeI), in the Fisheries Jurisdiction cases," concluded that, while the extension of coastal state exclusive fisheries jurisdiction to 12 nautical miles had become part of customary international law, 15 beyond 12 nautical miles coastal states were entitled only to preferential fishing rights to be defined in cooperation with other states fishing for the resource." The Icelandic claim to a 50-nautical mile fishing zone as part of customary international law was thus not recognized. In parallel to the extension of coastal state jurisdiction, especially between 1945 and 1970, states concluded treaties for the purpose of cooperating towards the management of high seas fishing activities.'? These treaties either focused on a particular geographical region, potentially covering all stocks in that region, or on a specific stock and its migratory range. International fisheries commissions often were established by these treaties. In practice, many of the cooperative arrangements, however, were found to be unsatisfactory for regulating high seas fishing activities because they operated subject to the freedom of fishing. This meant that a flag state that chose not to become a party to the arrangements could not be prevented from engaging in fishing activities and that vessels of states that were parties to the arrangements but that chose not to abide by the regulations adopted could not be forced to do so by state parties other than the flag state. The bottom line was that states refused to give sufficient decision-making and enforcement powers to fisheries commissions to enable them to function effectively. The LOS Convention, while allocating an important role to international fisheries commissions," did not resolve these problems, as is illustrated by the subsequent negotiations regarding the regimes for straddling

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15 16 17 18

Fisheries Jurisdiction case (UK v. Iceland) (Merits), ICJ Reports, 1974, p. 3 and Fisheries Jurisdiction case (Federal Republic of Germany. v. Iceland) (Merits), ICJ Reports 1974, p. 175. For further information see: Attard, supra note 3, pp. 148-149; Burke, supra note 3, pp. 20-22; RR Churchill, "The Contribution of the International Court of Justice to the Debate on Coastal State Fisheries Rights," (1975) 24 International and Comparative Law Quarterly , pp.82-105. Para. 52, UK v. Iceland and para. 44, FRG v. Iceland. Id. and para. 72, UK v. Iceland and para. 59, FRG v. Iceland. See Koers, supra note 3. Art. 118 (for high seas stocks), and arts. 63(2)-67 (for stocks that occur in one or more exclusive economic zones and high seas areas), LOS Convention.

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and highly migratory species and high seas stocks, both of which are discussed in other chapters of this book." Simultaneous with the developments in the legal regime, as outlined above, the awareness arose that increasingly marine fisheries resources were being over-fished, exploited in uneconomical ways and wasted as a source of human protein." In addition, technological developments, available especially to eastern European and developed states, were enabling fishing vessels to fish in waters further away from their "horne" coasts." As a result newly independent states realized that they were not obtaining benefits from fishing resources located in waters off their coasts. Such benefits were being obtained instead by states often located at the other end of the globe. By the end of the 1960s, the developments as summarized above resulted in a widely felt need to reassess the international legal regime governing marine fishing activities. The mandate for UNCLOS III thus included the following with respect to the regulation of marine fishing activities: Decides to convene in 1973, ..., a conference on the law of the sea which would deal with the establishment of an equitable international regime including an international machinery - for the area ..., and a broad range of related issues including those concerning ... fishing and conservation of the living resources of the high seas (including the question of the preferential rights of coastal States), .. .22

19 See in particular Balton, infra Chapter 3 and Hayashi, infra Chapter 4, also

Ellen Hey, "Global Fisheries Regulations in the First Half of the 1990s," (1996) 11 The International Journal of Marine and Coastal Law, pp. 459-490. 20 For further information see: Francis T. Christy, Jr. and Anthony Scott, The Common Wealth in Ocean Fisheries, Resources of the Future, 1965. 21 For further information see: Jon L. Jacobson, "Future Fishing Technology and Its Impact on the Law of the Sea," S. Oda, "Impact of Fisheries Technology on International Law," J. Sharfe, "Interrelations between Fishing Technology and the Coming International Fisheries Regime," in F.T. Christy, Jr., T.A. Clingan, J.K. Gamble. H.G. Knight and E. Miles (eds.), The Law of the Sea: Caracas and Beyond, Law of the Sea Institute, 1975, at respectively, pp. 237250,251-258,259-264. 22 Para. 2, UNGA Res. 2750 (xxv), December 17, 1970.

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At the Caracas session OfUNCLOS III, in 1974, consensus emerged on the geographical extent of coastal state jurisdiction out to 200 nautical miles." The basic content of the fisheries provisions of the LOS Convention was included in the Informal Single Negotiating Text (ISNT) prepared in 1975, after the first session of UNCLOS III. 24

THE STRUCTURE AND CONTENT OF THE FISHERIES PROVISIONS OFTHE LOS CONVENTION The fisheries provisions of the LOS Convention provide a legal framework for regulating marine fishing activities based on three basic regimes and six regimes related to stocks that occur in two or more maritime zones." The three basic regimes provide for coastal state sovereignty in maritime internal waters, archipelagic waters and the territorial sea, coastal state sovereign rights in the exclusive economic zone and continental shelf areas and flag state jurisdiction in high seas areas. The six regimes related to stocks that migrate between two or more maritime zones can be subdivided into two general regimes and four stock-specific regimes. The two general regimes concern stocks that occur in two or more exclusive economic zones and stocks that occur in one or more exclusive economic zones and the adjacent high seas area: the so-called straddling stocks. The stock-specific regimes relate to highly migratory species, marine mammals, anadromous stocks and catadromous species. The three basic regimes in each case identify the rights and duties of the state that is entitled to regulate the use of the resources and obtain the

Robert Hodgson, "National Maritime Limits: The Economic Zone and the Seabed," in Christy et at. (eds.), supra note 21, pp. 183-192; Edward Miles, "An Interpretation of the Caracas Proceedings," in Christy et al., supra note 21, pp. 77-81; John Stevenson and Bernard H. Oxman, "The Third United Nations Conferenceon the Law of the Sea: The 1974Caracas Session," (1974) 69 American Journal of International Law, pp. I-3D, esp. pp. 15-18. 24 NConf.62/wP 8/Part II, arts. 45-61. 25 For a comprehensiveanalysis of the fisheriesprovisionsof the LOS Convention see Burke, supra note 3; S. ada, "Fisheries under the United Nations Convention on the Law of the Sea," (1983) 77 American Journal ofInternational Law, pp. 739-755. 23

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benefits therefrom. The six regimes related to stocks that occur in two or more maritime zones in each case identify several states that have an interest in the stock and that are to cooperate in managing the fisheries for the stocks in question.

Coastal state sovereignty According to the LOS Convention, the coastal state or the archipelagic state exercises sovereignty over the fisheries resources located in its maritime internal waters," archipelagic waters" and the territorial sea." In both the archipelagic waters and the territorial sea, the LOS Convention explicitly endows, respectively, the archipelagic state and coastal state with powers to prevent fishing by foreign vessels engaged in, respectively, archipelagic sealanes passage and innocent and transit passage." In the case of archipelagic waters, the LOS Convention also provides that archipelagic states shall recognize existing fishing agreements as well as traditional fishing rights." At the request of any state concerned, bilateral agreements are to be concluded to regulate the exercise of such traditional fishing rights." The LOS Convention does not contain provisions that require the coastal state or archipelagic state to conserve or optimally utilize the fisheries resources that are subject to its sovereignty . On the basis of the LOS Conven tion, coastal states and archipelagic states thus have a wide margin of discretion in regulating the use of the resources in maritime internal waters, archipelagic waters and the territorial sea. They also are entitled to the benefits to be obtained from the fisheries resources in these zones, subject to the explicit condition that in archipelagic waters existing treaties and traditional fishing rights are to be respected.

26

Art. 2(1),

LOS

Convention.

27 Art. 2(1) juncto art. 49(1) and (2), LOS Convention. 28

Art. 2(1),

LOS

Convention.

29 For archipelagic waters art. 54 juncto art. 42(1)(c), LOS Convention. For the

territorial sea arts. 19(2)(i), 20(1)(d) and (e), 25 and 42(1)(c), LOS Convention. Art. 51(1), LOS Convention. 31 [d. 30

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Coastal state sovereign rights The LOS Convention specifies that coastal states are entitled to exercise sovereign rights over the fisheries resources located in or on, respectively, their exclusive economic zone" and continental shelf." In the case of the continental shelf regime, the LOS Convention, as the 1958 Convention on the Continental Shelf,34 endows the coastal state with the right to exploit sedentary species without providing any further indication as to how such exploitation is to take place. The regime for sedentary species on the continental shelf thus resembles the fishing regime of the territorial sea in that, on the basis of the LOS Convention, the use of sedentary species is subject to the discretion of the coastal state. In the case of the exclusive economic zone, the LOS Convention does provide a regulatory regime that further defines the rights and duties of coastal states. In the exclusive economic zone the coastal state has the sovereign right to explore and exploit, conserve and manage fisheries resources." This means that the coastal state, in principle, is entitled to access to the resources and the benefits to be obtained from those resources. It also means that the coastal state has this right subject to the duty to conserve the fisheries resources in question. Conservation of the resources, according to the LOS Convention, is to be secured through determining the maximum sustainable yield (MSY) as qualified by environmental and economic factors and taking into account available scientific information." In addition, the LOS Convention subjects the right of the coastal state to the duty to optimally use the fisheries resources in the exclusive economic zone." This duty

Art. 56(l)(a), LOS Convention. For further information on the fisheries regime of the exclusive economic zone see M. Dahmani, The Fisheries Regime a/the Exclusive Economic Zone, Martinus Nijhoff, 1987. 33 Art. 77(4), LOS Convention. Note also that article 68 provides that the regime of the continentalshelf, insteadof that of the exclusiveeconomic zone, applies to sedentary species. 34 499 UNTS 311. Article2(4) of the Continental ShelfConvention, as article 77(4) of the LOS Convention, defines the natural resources of the continental shelf as including sedentary species. 35 Art. 56(l)(a), LOS Convention. 36 Art. 61 and in particular its paragraphs 3 and 5, LOS Convention. 37 Art. 62, LOS Convention. 32

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entitles the coastal state to use the available fisheries resources, as determined on the basis of its duty to conserve the resource, to the extent of its harvesting capacity." Other states are to be given access to the remainder of the resource, the so-called surplus." A coastal state may condition any foreign access to the fisheries resources of its exclusive economic zone by imposing conservation and enforcement measures and demanding payment in return for access to the surplus.'? The LOS Convention does not prescribe the form that such payment is to take. It instead provides an open-ended list of the possible forms that payment may take, including financial returns in the form of, for example, license fees, as well as landing and training requirements." The coastal state has a wide margin of discretion in determining whether and to which other states it gives access to any surplus that it may have determined . This is despite the language of the LOS Convention that suggests that a preferential right of access to any surplus may exist for developing states in the region, land-locked states and geographically disadvantaged states." In the case of the fisheries regime of the exclusive economic zone and the continental shelf, the LOS Convention identifies the coastal state as the regulator and beneficiary of fishing activities. Although the obligations to ensure the conservation and optimal use of the resource, applicable in the exclusive economic zone, are also in the interest of the international community, it is also the coastal state who is to protect this interest.

38

Art. 62(2), LOS Convention.

39 Id.

Art. 62(4), LOS Convention. Id. 42 Arts. 62(3), 69 and 70, LOS Convention. Also see the dispute settlement provision, article 297(3), applicable to the fisheries regime of the exclusive economic zone. For an analysis of these provisions and the 'right' of access to surplus see Hey, supra note 3 pp. 47-48 (It makes the point that in the exclusive economic zone a coastal state has a large measure of discretion in determining whether and to which states it gives access to any surplus. Only if it is alleged that the coastal state 'arbitrarily refused to allocate' the surplus (art. 297(3)(b)(iii), LOS Convention), will a state desiring such access be able to submit the dispute to binding conciliation, not entailing a binding decision, under Annex V, section 2, of the LOS Convention). 40

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Flag state jurisdiction In ocean areas not subject to coastal state sovereignty or sovereign rights, i.e. the high seas, the principle of the freedom of fishing, in accordance with Section 2 of Part VII of the LOS Convention, continues to apply." Accordingly, all states have the right for their nationals to have access to the fisheries resources of the high seas and through such access to obtain benefits from the resources." This right is subject to the duty to conserve the fisheries resources of the high seas and maintain stocks at levels that can produce the maximum sustainable yield, as qualified by environmental and economic factors and taking into account available scientific information." If vessels of two or more states fish in the same region or for the same stock, the states in question are to cooperate towards these ends." The freedom of fishing on the high seas also is subject to the rights, duties and interests of coastal states with respect to stocks that occur in an exclusive economic zone and the high seas, as provided in the provision on straddling stocks and in the four stock-specific regimes." The high seas fisheries regime, as included in the fisheries provisions of the LOS Convention, thus entitles flag states to regulate and obtain the benefits from the fisheries resources of the high seas and requires that these same states protect the wider interest of the international community in the conservation and proper utilization of the resources."

Six regimes for stocks that occur in more than one maritime zone The six regimes for stocks that occur in several maritime zones accommodate the interests of states in specific fisheries resources." These interests derive

43 44 45 46 47 48

49

Arts. 87 and 116-120, LOS Convention. Art. 116, LOS Convention. Arts. 117 and 119, LOS Convention. Art. 118, LOS Convention. Art. 116(b), LOS Convention. Note that a requirement to promote the optimum utilization of high seas resources is not included in the LOS Convention, only a requirement that stocks be maintained at levels that can produce the maximum sustainable yield (art. 119(1)(a), LOS Convention). For a more extended analysis of these regimes see Hey, supra note 3.

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in part from the basic jurisdictional regimes as discussed above and in part from fishing activities conducted by states prior to the extension of coastal state jurisdiction.

Stocks occurring in several exclusive economic zones In the case of the same stock or stocks of associated species occurring in two or more exclusive economic zones, the coastal states concerned are to seek to cooperate towards the conservation and development of such stocks without prejudice to the fisheries provisions applicable in the exclusive economic zone." The coastal states concerned are to cooperate in implementing the fisheries regime of the exclusive economic zone. Thus, in the case of stocks migrating between two or more exclusive zones, coastal states share the right to regulate and obtain the benefits from the fish stocks as well as the duty to ensure the conservation and optimum utilization of the stocks. Straddling stocks With respect to the same stocks or stocks of associated species occurring in an exclusive economic zone and in an adjacent high seas area, i.e. straddling stocks, the LOS Convention provides that coastal states and states fishing for the resource on the high seas shall seek to cooperate in order to ensure the conservation of these stocks in the high seas area." The provision in fact endows coastal states with the right to participate in cooperative arrangements regarding high seas fishing activities in areas adjacent to its exclusive economic zone, regardless of whether the coastal state engages in fishing activities in that high seas area. Given the fisheries regime of the high seas, which entitles only states actually fishing for the resource to participate in any cooperative arrangements, such a provision was necessary to ensure that a coastal state could voice its interest in a regime applicable to a stock that also occurs in its waters." The geographical scope of the provision clearly is limited to the high seas migratory range of the stock and excludes the exclusive economic zone. The provision also does

Art. 63(1), LOS Convention. Art . 63(2), LOS Convention. 52 A similar provision was also included in article 6 of the 1958 Fisheries Convention with respect to high seas areas adjacent to the territorial sea . 50

51

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not entitle the coastal state to a preferential right to use the stock in the high seas area. Highly migratory species The provision on highly migratory species, such as tuna, covers the migratory range of the stocks both in high seas areas and the exclusive economic zone." Coastal states and states fishing for highly migratory species are to cooperate in order to ensure the conservation of the stocks and promote their optimum utilization. The provision on highly migratory species applies in addition to the fisheries regime of the exclusive economic zone." The latter means that the provisions on conservation and optimum utilization that are part of the fisheries regime of the exclusive economic zone also apply to highly migratory species, at least while these are located in that zone. Marine mammals The LOS Convention provides that the use of marine mammals may be regulated in a more restrictive manner than provided by either the provisions on the exclusive economic zone or those on the high seas." It also provides that states shall cooperate towards the conservation of marine mammals and that with respect to marine mammals they shall do so through the appropriate international organizations. Anadromous stocks With respect to anadromous stocks, for example, salmon, the LOS Convention provides a regime that covers the full migratory range of the stocks.56 It identifies the state of origin as the main beneficiary and regulator of any fishing activities for such stocks." The state of origin also has the duty to ensure the conservation of anadromous stocks and may establish total

53

Art. 64, LOS Convention and Annex I, LOS Convention, which includes a list

54 55 56 5?

of highly migratory species. Art. 64(2), LOS Convention. Art. 65, LOS Convention. Art. 66, LOS Convention. Art. 66(1), LOS Convention.

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allowable catches for stocks originating in its waters." In principle, fishing activities for anadromous stocks shall be conducted only in waters landward of the outer boundary of the exclusive economic zone.59 The state of origin, however, is to cooperate with a number of states in the realization of the fisheries regime. The relevant other states are: any states fishing for the stocks," including in exceptional cases in high seas areas," which would otherwise suffer economic dislocation, states that together with the state of origin have taken measures for the renewal of the stocksf and states through whose waters the stocks migrate." All these states also have an interest in the stock in question and are entitled to participate in the development of the conservation regime and the use of the resource . Catadromous species In the case of catadromous species, for example, eels, the full migratory range of the species is also covered." The LOS Convention identifies the state in whose waters the species spends the greater part of its life cycle as the state with the primary responsibility for managing these species and for ensuring their ingress and egress." This state, however, shares these responsibilities as well as the right to use the species with any state through whose exclusive economic zone the species migrates." In order to ensure proper management of the species, these states are to cooperate. As in the case of anadromous stocks, the LOS Convention provides that harvesting of catadromous species shall take place only landward of the outer boundary of the exclusive economic zone."

58 59 60 61 62 63 64 65 66 67

Art. 66(2), LOS Convention. Art. 66(3)(a), LOS Convention. Art. 66(3)(b), LOS Convention. Art. 66(3)(a), LOS Convention. Art. 66(3)(c), LOS Convention. Art. 66(4), LOS Convention. Art. 67, LOS Convention. Art. 67(1), LOS Convention. Art . 67(3) , LOS Convention. Art. 76(2), LOS Convention.

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CONCLUSIONS - THEFISHERIES PROVISIONS OF THE LOS CONVENTION AND THE FREEDOM OF FISHING The biggest encroachment on the freedom of fishing that the fisheries regime of the LOS Convention introduced is, of course , the geographical extension of coastal state jurisdiction. This extension was achieved by the expansion of the territorial sea to 12 nautical miles, the acceptance of the regime for archipelagic waters and the introduction of the exclusive economic zone. It is estimated that these developments in fact abrogated the freedom of fishing for over 90% of the then commercial fisheries. In the relevant areas the freedom of access to the resources and to the benefits to be obtained therefrom, as well as the concomitant exclusive flag state jurisdiction, were replaced by coastal state access to the resources and benefits and by coastal state jurisdiction. Coastal states, by virtue of the LOS Convention, obtained the instruments to effectively regulate the use of the fisheries resources in these zones. These instruments, as is well known, were not always used to further the conservation of the fisheries resources in question." The LOS Convention also amended the freedom of fishing in other ways. First, the provisions on straddling stocks, highly migratory species, marine mammals, anadromous and catadromous stocks clearly place limitations upon the freedom of fishing in remaining high seas areas. This is most clearly illustrated by the provisions of the LOS Convention on anadromous and catadromous stocks . These provisions prohibit (partially for anadromous stocks) fishing in high seas areas and explicitly identify the state of origin and the state in which the stock spends the greatest part of its life cycle as the states that have a primary interest in and management responsibility for these stocks. Moreover, the provisions on marine mammals explicitly sanction regulations that limit the freedom of access to marine mammals in high seas areas. In addition, the provisions on straddling stocks explicitly recognize a coastal state interest in the high seas conservation regime applicable to stocks that occur both in its exclusive economic zone and the adjacent high

68 See R.R. Churchill, "Shared Fisheries Management in the European Community"

(1993) 2 RECIEL, pp. 260-269; Douglas M. Johnston, "Is Coastal State Fisheries Management a Success or Not?," (1991) 22 Ocean Development and International Law, pp. 199-208; William E. Schrank , "Extended Coastal State Jurisdiction," (1995) 19 Marine Policy, pp. 285-299 .

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seas area. The provisions on highly migratory species introduce a regime that subjects the resources throughout their migratory range to a cooperative management regime to be operated by coastal and high seas fishing states. It is, of course, a well-known fact that the wording of the latter two provisions was the result of what might be called "agreements to disagree" on the appropriate regimes for managing straddling stocks and highly migratory species. Disagreements that led to numerous disputes over the proper interpretation and application of these provisions and eventually to the adoption of new multilateral fisheries instruments, as discussed in other chapters of this book. A further amendment of the freedom of fishing introduced by the LOS Convention consists of the emphasis that the high seas fisheries provisions place on conservation over exploitation. While the 1958 Fisheries Convention emphasized the need to adopt measures that would render "possible the optimum sustainable yield" with the object of securing "a maximum supply of food and other marine products.?" the main goal of the measures adopted under the high seas fisheries provisions of the LOS Convention is to be the "conservation of the living resources of the high seas"." These provisions furthermore emphasize that the main aim of any cooperative arrangements to be adopted by states whose vessels fish on the high seas is to be the conservation of the fisheries resources. The emphasis on conservation over exploitation means that interests extending beyond short-term interests in exploitation and human consumption also are to playa role in determining the regulation of high seas fishing activities. Practice, however, has shown that the high seas fisheries provisions of the LOS Convention left too much of the freedom of fishing intact. The registration and re-registration of fishing vessels under flags of convenience" and the non-participation in fisheries management regimes or the opting-out of fishing regulations by flag states" illustrate that the free-

69 70

Art. 2, 1958 Fisheries Convention. Art. 118 as further defined in article 119, LOS Convention. Also see Freestone,

infra Chapter 11. See Patricia Birnie, "Reflagging Fishing Vessels on the High Seas," (1993) 2 RECIEL , pp. 270-276 . 72 See, for example, James Carr and Matthew Gianni, "High Seas Fisheries, Large Scale Drift Nets, and the Law of the Sea", in Jon M. Van Dyke, Durwood Zaelke and Grant Hewison (eds.), Freedom ofthe High Seas in the 21" Century, 71

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dom of fishing and thus the freedom of access and exclusive flag state jurisdiction, continued to present an obstacle to the adequate regulation of fishing activities in high seas areas. The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas," the 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 the Code of Conduct for Responsible Fisheries 75, discussed in the rest of this book, are the results of efforts to resolve these problems. They also are illustrative of the continued search for legal mechanisms to replace or amend the freedom of fishing during the second half of the 20th century.

Island Press, 1993, pp. 271-291; Edward L. Miles and William T. Burke, "Pressures on the United Nations Convention on the Law of the Sea of 1982 Arising from New Fisheries Conflicts: The Problem of Straddling Stocks", (1989) 20 Ocean Development and International Law, pp. 343-357. 73 (1994) 33 lIM 968. Specifically on the Compliance Agreement see BaIton, infra Chapter 3. 74 (1995) 34 lIM 1542. Specifically on the Straddling and Highly Migratory Stocks Agreement see Hayashi, infra Chapter 4. 75 Code of Conduct for Responsible Fisheries, FAO, Rome, 1995. Specifically on the Code of Conduct see Moore, infra Chapter 5.

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3 THE COMPLIANCE AGREEMENT David A. Bolton'

As the Cubists and early Modernists had correctly realized, a painting was not a window through which one could peer into the distance. '" A painting was a flat surface with paint on it.2 INTRODUCTION

From the Renaissance until the end of the 19th century, artists (and their viewing public) generally accepted the fiction that a painting was a window. An artist would paint a scene on a canvas to "represent reality," giving the viewer the illusion oflooking through a window into the distance. We have, in stages, come to realize that a canvas is just a canvas and that a painting is just a "flat surface with paint on it." This realization has freed us to see that a painting need not represent anything at all. A similar realization may be forming with respect to fishing vessels. The international community has traditionally accepted the fiction that a fishing vessel (like other commercial ships) is a floating piece of the territory

2

The author wishes to thank his colleagues in the us Departments of State and Commerce for their assistance in the preparation of this article . However, the views expressed herein are those of the author and do necessarily reflect those of the us Department of State or of the us Government generally . Tom Wolfe, The Painted Word, Bantam, 1975, pp. 49-50.

E. Hey, (ed.), Developments in International Fisheries Law, p. 31-53. © 1999 Kluwer Law International. Printed in The Netherlands.

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of the nation whose flag it flies.' Just as a nation exercises exclusive jurisdiction over its territory, it has followed from this fiction that, save in exceptional circumstances, only the flag State can exercise jurisdiction over fishing vessels on the high seas." The international community, in stages, has begun to realize that a fishing vessel is just a fishing vessel - a construct of metal, wood, plastic and rope that is outfitted for fishing - rather than a floating piece of national territory. This change in attitude has undoubtedly resulted from downturns in an alarming number of the world's most valuable fisheries," caused in large

3

4

5

See, e.g., Lotus Case (France v. Turkey) 1927 PCIJ (ser.A) No.9, p. 25 ("[Al ship on the high seas is assimilated to the territory of the State of the flag of which it flies .... [B]y virtue of the principle of the freedom of the seas, a ship is placed in the same position as national territory"); G. Von Glahn,lAw Among Nations, MacMillan, 1986, p. 412, (''The concept that vessels flying the flag of a given state represent a sort of floating extension of the territory of that state was taken quite literally .... Many decisions handed down, especially by British and American courts, affirmed this fiction of extra-territoriality"); L. Oppenheim, International Law: A Treatise, 8th ed., Longman Green and Co. Ltd., 1955, Vol. I, p. 597 ("Private vessels are considered as though they were floating portions of the flag State only in so far as they remain whilst on the open sea in principle under the exclusive jurisdiction and protection of the flag State") In 1814, President James Monroe wrote: "That the vessels of a Nation are considered a part of its Territory (with the exception of the belligerent right only), is a principle too well established to be brought into discussion." quoted in T. Baty , The Canons of International Law, John Murray, 1930, p. 54. United Nations Convention on the Law of the Sea (LOS Convention), opened for signature Dec. 10, 1982. UN Doc. AlCONF.62/122, 1982, reproduced in Official Text of the United Nations Convention on the Law of the Sea, UN Sales No. E.83.V.5, 1983 and (1982) 21llM 1261, article 92 ("Ships shall sail under the flag of one State only and, save in exceptional cases provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas."). Specifically on the fisheries provisions of the LOS Convention see Hey, supra Chapter 2. According to the Food and Agriculture Organization of the United Nations (FAa), approximately 70 percent of marine fish stocks are fully to heavily exploited, overexploited, depleted or slowly recovering (the State of World Fisheries and Agriculture, FAa, 1998. See also D. Balton, "Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks," (1996) 27 Ocean Development and International Law , pp. 125-152, pp. 130-133.

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part by the failure of nations, both individually and collectively, to prevent overfishing. The fiction that a fishing vessel is a floating piece of national territory has contributed to this failure. Nations too often allow their flags to be flown over fishing vessels whose activities they cannot or will not control. The international community has responded to this situation by adopting a number of agreements designed to improve the regulation of these vessels. One of these agreements is the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement) ." The Compliance Agreement, by itself, does not alter the rule of exclusive flag-state jurisdiction over fishing vessels on the high seas. Indeed , as this chapter demonstrates, the Compliance Agreement is premised on the rule of exclusive flag-state jurisdiction over such vessels. While preserving this rule, the negotiators of the Compliance Agreement nevertheless understood that the international community must begin to dispense with the fiction that a fishing vessel is floating piece of national territory . A fishing vessel is just a fishing vessel and, given current technology, can wreak considerable havoc on the marine environment if not properly regulated. The Compliance Agreement represents an elaboration of the responsibilities that flag states must fulfill in order for them to maintain the rule of exclusive jurisdiction over their fishing vessels on the high seas. What the Compliance Agreement implies is that, if flag states do not fulfill these responsibilities, the international community will find other ways to control fishing vessels on the high seas.'

6 7

(1994) 33 ILM 968. Indeed, at least two international agreements concluded in recent years create regimes in which certain states other than the flag state can take limited action against fishing vessels on the high seas that are found to have violated agreed fishery conservation rules, particularly where the flag state is unable or unwilling to respond to such violations. See, article XI of the Convention on the Conservation of and Management of Pollock Resources in the Central Bering Sea, reproduced in (1995) 34 ILM 1; Arts. 21-22 of the 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, (Straddling and Highly Migratory Fish Stocks Agreement), UN Doc. NCONF.I64/137, 1995,

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ORIGINS OF THE AGREEMENT

The reflagging problem The Compliance Agreement began as an effort to solve the "reflagging" problem - a problem little known to the public at large but well known to fisheries managers. Over the past few decades, nations whose vessels participate in ocean fisheries have created numerous organizations to regulate those fisheries. These organizations, which typically regulate fisheries within specific ocean regions," periodically adopt rules for such regulation. These rules are collectively referred to as "conservation and management measures" and include measures such as catch quotas, seasonal and area closures, minimum mesh sizes and the like. These conservation and management measures, however, are binding only on nations that are members of the

8

reproduced in (1995) 341LM 1547. See also M. Hayashi, "Enforcement by NonFlag States on the High Seas Under the 1995 Agreement on Straddling and Highly Migratory Stocks," (1996) 9 Georgetown International Environmental Law Review, pp. 1-36. See, e.g., International Convention for the Conservation of Atlantic Tunas, May 14, 1966,20 UST 2887, TIAS No. 6767, 673 UNTS 63; Convention for the Establishment of an Inter-American Tropical Tuna Comm ission, March 3, 1950, 1 UST 230, TIAS No. 2044, 80 UNTS 3; Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, October 24, 1978, reproduced in K. Simmonds (ed.), New Directions in the Law of the Sea, Vol. III, Oceana Publications, 1986, p.2; Convention on Future Multilateral Cooperation in NorthEast Atlantic Fisheries, November 8, 1980, 1285 UNTS 130; Convention on the Conservation of the Living Resources of the Southeast Atlantic , October 23, 1969,801 UNTS 101; Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, February 11, 1992, United States Senate, 102nd Congress 2nd session, Treaty Doc. 102-130; Convention for the Conservation of Salmon in the North Atlantic Ocean, March 2, 1982, TIAS No. 10789; Convention on the Conservation of Antarctic Marine Living Resources, May 20, 1980,33 uST3476, TIAS NO. 10240; Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, November 24, 1989, reproduced in (1990) 291LM 1449; and the Convention for the Conservation and Management of Pollock Resources in the Central Bering Sea, supra note 7. Some multilateral agreements for the conservation of living marine resources are global in scope rather than regional. See, e.g., International Convention for the Regulation of Whaling, Nov. 19, 1946, 10 UST 952, TIAS No. 4228, 338 UNTS 366.

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regional fisheries organizations that adopted them and, consequently, only on fishing vessels flying the flags of such nations. To evade these rules, the owners of fishing vessels "reflag" their vessels - i.e., register their vessels in, and fly the flags of, nations that are not members of regional fishery organizations. The nations that offer their flags to such vessels are generally known as "flag of convenience states," a testament to the convenience they provide (for a price) to fishing vessel owners. Once a vessel takes on a new flag of convenience, it can continue to participate in the fishery with impunity , not bound by the adopted rules. The practice of reflagging raises serious concerns. First, fishing activities by reflagged vessels can directly undermine the effectiveness of conservation and management measures adopted by regional fisheries organizations. Suppose, for example, that such an organization sets a total catch quota for a particular fish stock in a given year, based on the best available scientific information for maintaining the fishery on a sustainable basis. The member nations of the organization, typically after protracted negotiations, divide up that total catch quota among themselves. Each member then subdivides its national quota among each of its vessels in the fishery . If some owners of those vessels, unhappy with their allotment, reflag to a non-member nation and participate in the fishery unconstrained by any quota at all, it is not hard to see how overfishing of the stock would result. Second, in such a circumstance, the vessel owners that do not reflag and who accordingly remain bound to their assigned allotment would find themselves disadvantaged. These owners would begin to question the wisdom of playing by the rules when others do not. Pressure would build on them to reflag as well, or to find other ways of evading the rules. Finally, the regional fishery organization would also find itself disadvantaged by the uncertainty of knowing how much fishing by reflagged vessels would occur in a given year. Without such knowledge, the ability of the organization to establish meaningful conservation and management measures would be greatly compromised.

Calls to action The reflagging problem loomed particularly large in the early 1990s. Evidence of significant overfishing in a number of ocean fisheries involving

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reflagged vessels had become undeniable." Further, in December 1991, the United Nations General Assembly adopted a resolution establishing a global moratorium on the use of large-scale driftnet vessels on the high seas, which took effect at the end of 1992. 10 Many worried that the large driftnet fleets of Asian nations (700-800 vessels) would be re-equipped for other fisheries, would switch to flags of convenience and would further contribute to the mounting conservation problem. In theory, one approach to the problem of reflagging would have been to invite the flag of convenience states to join the regional fishery organizations in order to bind them - and their fishing vessels - to agreed conservation rules. However, many of the flag of convenience states have no desire to join such organizations. They have no "indigenous" fishing fleet of their own capable of participating in the fishery . Even the fishing vessels that fly their flags of convenience typically retain the same captains and crews they had before reflagging, who are not nationals of flag of convenience states. Moreover, the flag of convenience states often have no interest in taking on the obligations of membership in regional fishery organizations, which include ensuring compliance by their vessels with adopted rules and payment of dues to the organization. Even if flag of convenience states did join regional fishery organizations, they might encounter a chilly reception among the existing members. Longtime member nations might regard the participation of flag of convenience states in the organization as strictly mercenary in nature. If the fishery in question were already being harvested to capacity, the existing members might be reluctant to accord to flag of convenience states any significant share of the resources, claiming that the new members had no historical right or tradition to catch those fish . The international community instead decided upon another approach the negotiation of a legal instrument designed to curtail the reflagging of fishing vessels for the purpose of evading conservation rules. The first prominent call for such action occurred in May 1992, at a meeting of nations

9 See, e.g., State of World Fisheries and Agriculture, FAO, 1995. 10 UN General Assembly Resolution 46/215, December 20, 1991.

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concerned with ocean fisheries, which was hosted by the Government of Mexico. The resulting Declaration of Cancun" proclaimed, inter alia, that: States should take effective action, consistent with international law, to deter reflagging of vessels as a means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas.

One month later, and somewhat further south, the nations of the world gathered in Rio de Janeiro, Brazil, for the United Nations Conference on Environment and Development (UNCED). Among the documents adopted at the Conference was Agenda 21, a blueprint for action to achieve sustainable development in the corning century. Agenda 21 echoed virtually verbatim the call to action on reflagging: States should take effective action, consistent with international law, to deter reflagging of vessels by their nationals as a means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas."

The issue of reflagging unquestionably had arrived on the agenda of the international community. Any number of regional fora reiterated the call for action to address the problem. 13

11 Annex 2 to the Papers presented at the Technical Consultation on High Sea

Fishing, FAG Fisheries Report, No. 848, Supp!., FAG, 1992, p. 70. The Declaration of Cancun also called upon the FAG "to draft, in consultation with relevant international organizations, an International Code of Conduct for Responsible Fisheries." As discussed herein, the FAG in fact responded favorably to both calls by providing the forum for the negotiation of the Compliance Agreement and the Code of Conduct. 12 Report of the United Nations Conference on Environment and Development, UN Doc NCONF.151126, 1992, Vol. 2, Agenda 21, ch. 17, para. 17.52. 13 See, e.g., article IV(3) of the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, supra note 8, ("Each Party shall take appropriate measures aimed at preventing vessels registered under its laws and regulations from transferring their registration for the purpose of avoiding compliance with the provisions of this Convention"); article XII (4) of the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, supra note 7, ("Each Party shall take appropriate measures

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The

FAO

as a negotiating forum

The Food and Agriculture Organization of the United Nations (FAO) took up the call. In September 1992, the FAO hosted a Technical Consultation on High Seas Fishing to consider a wide range of marine fishery issues. Sixty-five member states of the FAO, several non -member states and numerous intergovernmental and non-governmental organizations participated in the Technical Consultation. The reflagging issue received prominent attention during this meeting, resulting in a recommendation for urgent action to address growing problems caused by the reflagging of fishing vessels. In particular, the Technical Consultation: requested the [FAD] Secretariat to bring this issue to the attention of the [FAD'S] Committee on Fisheries for it to consider means through which an international agreement could be reached as quickly as possible to prevent the reflaggingof fishing vesselsfor the purpose of non-compliance with conservation and management measures for high seas fisheries.14 In November 1992, the FAD Council endorsed this recommendation and decided that the FAO should host negotiations toward an international agreement on reflagging, an agreement which would become part of an "International Code of Conduct for Responsible Fisheries.?" The Council further decided that the negotiations of the reflagging agreement would proceed expeditiously, while the elaboration of other parts of the Code of Conduct would unfold at a more measured pace. The decision of the FAO to place the negotiation of the reflagging agreement on a "fast track" reflected the urgency of the reflagging problem as it appeared in 1992. As a practical matter, the FAO also decided to proceed expeditiously with negotiation of the reflagging agreement because it recognized that the agreement, as a legally binding instrument, would not become

aimed at preventing fishing vessels registered under its laws and regulations from transferringtheir registration for the purposeof avoidingcompliance with the provisions of this Convention or conservation and management measures adopted pursuant thereto"). 14 Report of the Technical Consultation on High Seas Fishing, FAD Fisheries Report No. 484, FAD, 1992, para. 45. 15 Specifically on the Code of Conduct see Moore, infra Chapter 5.

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effective until it entered into force following its formal acceptance by governments." The remainder of the International Code of Conduct for Responsible Fisheries, by contrast, would be non-binding in nature and would not be delayed by the requirement of formal acceptance by governments.

Negotiation of the Agreement The FAO began the negotiation of the proposed agreement by inviting a group of experts from the most interested nations to develop a negotiating text. The group of experts met in Rome at FAO headquarters in early February 1993. Their task was a daunting one: to produce in one week's time a single negotiating text of an agreement to present to the FAO'S Committee on Fisheries (COFI) the following month. The larger objective was equally daunting: approval and final adoption of such an agreement by FAO Conference in November 1993. At the initial meeting of experts, the United States presented a "notional draft" of a text for such an agreement, which served as a basis for discussion. The FAO Secretariat provided the experts with a variety of other materials. Contributions from invited academicians and employees of regional fisheries organizations also greatly informed the work. The notional draft presented by the United States focused on the essential aspects of the reflagging problem. Under the notional draft, parties would be required to prohibit owners of fishing vessels subject to their jurisdiction from reflagging those vessels to other nations for the purpose of avoiding compliance with conservation and management measures adopted by regional fishery organizations. The United States' notional draft would also have required parties to take practical steps to enforce this prohibition. Two fundamental differences of view emerged during the meeting of experts. First, a number of experts (and later, a number of delegations in subsequent negotiations) raised concerns about a key aspect of the United States' notional draft, namely, the requirement on parties to prevent owners

16

Article Xl of the Compliance Agreement provides that it will enter into force upon the receipt by the Director-General of the FAO of the twenty-fifth instrument of acceptance.

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of fishing vessels from reflagging those vessels for the purpose of avoiding compliance with conservation and management measures. Some delegations noted that fishing vessel owners frequently reflag their vessels for perfectly legitimate reasons, and that reflagging also often occurs legitimately when fishing vessels are sold to owners in other countries. At the time a given fishing vessel is about to be reflagged, a government cannot know whether the vessel owner is reflagging the vessel with the intent to avoid compliance with conservation and management measures. Certainly, a fishing vessel owner on the verge of reflagging a vessel is unlikely to announce such intent. Many governments are not even aware of when vessels subject to their jurisdiction are in the process of being reflagged, making the regulation of reflagging quite difficult for them. Other delegations acknowledged these concerns, but responded that governments face similar circumstances in trying to regulate or prohibit any activity, where one necessary element is the intent of the person undertaking the activity. In such situations, governments can adopt laws or regulations prohibiting persons from undertaking the activity in question, then penalize those who subsequently undertake the activity if evidence exists that such person had the requisite intent. Accordingly, if a government has evidence that a reflagged fishing vessel is participating in a high seas fishery in a manner that would have been forbidden to it had it not been reflagged, the government would have at least a prima facie case that the vessel owner reflagged the vessel for that purpose. On the strength of such evidence, the government could prosecute the owner and others involved, assuming the government could obtain jurisdiction over such individuals. The government might also be able to take certain actions against the vessel directly (e.g., by prohibiting the vessel from ever reflagging back to the original flag state) or against other vessels owned by the same owners that have not yet been reflagged (e.g., by revoking fishing permits applicable to them). The second difference of view arose following the presentation of detailed information to the group of experts that, in recent years, the reflagging of fishing vessels had become only a part of a much larger problem. This information showed that a growing number of newly built high seas fishing vessels are registered directly (i.e., without reflagging) in nations that are not members of the major regional fisheries organizations, precisely because these nations are not bound by the restrictions adopted by those

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organizations. On the strength of this information, some delegations believed that the proposed agreement should address issues broader than the reflagging problem, particularly issues relating to the responsibility of flag states for the activities of all their fishing vessels on the high seas, reflagged or otherwise. Other delegations expressed concern that the FAO Council had created a mandate to deal only with the reflagging problem and that the negotiators therefore lacked authority to consider larger issues. As noted above, the group of experts that met in February 1993 succeeded in producing a single negotiating text for consideration by COFI. The text included two groundbreaking requirements : (l) that each flag state ensure that its fishing vessels on the high seas do not undermine the effectiveness of conservation and management measures adopted by regional fishery organizations, whether or not the flag state is a member of those organizations and (2) that each flag state permit its vessels to fish on the high seas only pursuant to specific authorization issued by competent authorities of that state. As discussed below, these concepts eventually became core features of the Compliance Agreement." The inclusion of these elements decisively broadened the scope of the proposed agreement from one limited to the reflagging problem to one addressing the full range of responsibilities that flag states bear to promote compliance with agreed conservation rules. For example, the negotiating text produced by the group of experts required each party: To create a registry of all its vessels capable of fishing on the high seas; to allow its flag to be flown only over fishing vessels with which it has a genuine link;

17

These same concepts also became core features of the Straddling and Highly Migratory Fish Stocks Agreement, supra note 7. Article 18(1) provides that "States whose vessels fish on the high seas shall take such measures as may be necessary to ensure that vessels flying its flag comply with subregional and regional conservation and management measures and that such vessels do not engage in any activity which undermines the effectiveness of such measures ." Article 18(2) provides that "A State shall authorize the use of vessels flying its flag for fishing on the high seas only where it is able to exercise effectively its responsibilities in respect of such vessels under the LOS Convention and this Agreement."

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to prevent high seas fishing vessels from "flagging in" or "flagging out" if there are reasonable grounds to believe that the vessels will be used to undermine agreed conservation and management measures; to take measures to ensure that its vessels do not undermine agreed conservation and management measures; to cooperate with other nations in enforcing against violations of agreed conservation and management measures; and to provide information on its high seas fishing vessels to the FAO, which will act as a clearinghouse for such information.

The COFI, meeting in March 1993, expressed appreciation for the work of the experts and created a working group to consider the negotiating text further. The working group, representing delegations from approximately 25 nations, met in six sessions and developed a series of "comments" on the text. The comments revealed a considerable range of views on the proposed agreement - including outright opposition from some quarters to the very idea for such an agreement. In particular, some developing country participants in the working group claimed that the effort to deter reflagging was a disguised attempt by developed countries to prevent developing countries from acquiring high seas fishing vessels through "legitimate" reflagging. Some Latin American delegations also questioned the premise that the reflagging problem was sufficiently serious to warrant a new international agreement on the subject. At the end of its meeting, COFI acknowledged the divergence of views, but endorsed the continuation of efforts toward an agreement. In June 1993, the FAO Council met again and decided to establish a "technical committee" to serve as the forum for the continuing negotiations. Discussions in the technical committee unfortunately served to undo understandings on a number of points that had been reached previously . Thorny questions arose concerning which vessels would be covered by the agreement (all fishing vessels? all fishing vessels over a certain size? all fishing vessels capable of fishing on the high seas? fishing support vessels, such as "mother" ships and transportation vessels?), how to deal with areas such as the Mediterranean Sea, where the high seas begin close to shore because coastal states had not established 200-mile zones, how to deal with vessels that had a history of illicit fishery operations but whose current owners were not involved in such operations, etc. These unresolved issues, along with

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internal differences within the delegation of the European Community," temporarily brought negotiations to a standstill, calling to mind at one point the doldrums faced by Coleridge's Ancient Mariner: Day after day, day after day We stuck, nor breath nor motion As idle as a painted ship Upon a painted ocean./ 9

The technical committee nevertheless completed a thorough deliberation of all aspects of the negotiating text produced by the experts group, and of the "comments" generated by the COFI working group, and produced a comprehensive draft agreement, with sev.eral bracketed provisions denoting areas that required further consideration. One issue that remained in brackets related to the difficulty of deterring "illegitimate" reflagging without hampering "legitimate" reflagging. Over the course of the next few months, many of the individuals who had participated in the FAO negotiations on the Compliance Agreement found themselves in New York, participating in the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks." Informal consultations on the Compliance Agreement ensued on the margins of the United Nations Conference and produced conceptual breakthroughs on the remaining issues. The primary breakthrough resolved the question of "illegitimate" vs. "legitimate" reflagging . Consensus emerged among the participants in the informal consultations that, instead of trying directly to regulate the act of reflagging, the Compliance Agreement could achieve its objectives by prohibiting flag states from issuing fishing authorizations to reflagged vessels that had previously undermined agreed conservation measures.

Specifically on the role of the European Community see Churchill, infra Chapter 17. 19 Samuel Taylor Coleridge, The Rime of the Ancient Mariner, II St. 8., 1798. 20 This Conference, which also grew out of a recommendation in Agenda 21, ultimately produced the Straddling and Highly Migratory Fish Stocks Agreement, supra note 7. Specifically on the Straddling and Highly Migratory Stocks Agreement see Hayashi, infra Chapter 4. 18

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On the strength of these conceptual breakthroughs, the FAD Committee on Constitutional and Legal Matters considered the text at its meeting in October 1993, paving the way for a final negotiating round in a technical committee created by the FAD Council at its meeting early the following month. On November 5, 1993, the FAD Council approved the final text of the Compliance Agreement, claiming it as "a momentous achievement and a milestone in the international management of high seas fisheries." The FAD Conference followed suit on November 24,1993, in Resolution 15/93, urging its members to accept the Compliance Agreement as soon as possible so as to bring it into force at the earliest possible time." The entire negotiation of the Compliance Agreement, from the first meeting of experts in early February 1993 to the final adoption of the Agreement by the FAD Conference in November 1993, took approximately 10 months, an extraordinary achievement in the annals of treaty negotiation. The intensity and efficiency of the negotiating process undoubtedly reflected the seriousness of the issues at hand, as well as a growing international consensus on the need for better regulation of high seas fishing vessels. The able support of the FAD Secretariat immeasurably facilitated this process, proving that the decision of governments to negotiate the Compliance Agreement under FAD auspices was a sound one.

ELEMENTS DF THE AGREEMENT

The Compliance Agreement has two primary objectives: (1) to specify the obligations of states whose fishing vessels operate on the high seas in order to make the activities of those vessels consistent with conservation and management needs and (2) to increase international cooperation in the maintenance of sustainable high seas fisheries, particularly through the

21

Reactionsof FAD members to the adoption of the ComplianceAgreementwere very positive.Typicalwasa statementreadon behalfof UnitedStates Secretary of State Warren Christopher, who "congratulated the FAD for adopting the Agreement expeditiously. The United States was pleased to take part in this initiative, as part of the broaderdiscussions on an International Code of Conduct forResponsible Fisheries. TheUnited Statesexpects the Agreement willenhance conservation of the world's fishery resources, and looks forward to its wide ratification and early entry into force."

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collection and dissemination of data on the activities of high seas fishing vessels." This section considers the key elements of the Compliance Agreement.

Title The title of this treaty, "Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas," reflects the broad scope of its reach. As discussed above, the Compliance Agreement not only addresses the reflagging problem, but also sets forth a full range of responsibilities borne by flag states for all their high seas fishing vessels, reflagged or otherwise. If flag states fulfill these responsibilities, they will "promote compliance" with agreed fishery conservation rules." The title of the Compliance Agreement also reveals an important limitation in its scope - that it applies only to fishing activities on the high seas; i.e., in waters beyond the fishery jurisdiction of any nation. The negotiators of the Compliance Agreement understood that, under international law, coastal states have the exclusive right and responsibility to regulate fishing activities within areas subject to their respective fishery jurisdiction." While fishery regulation by many coastal states has been inadequate

For additional reviews of the provisions of the Compliance Agreement, see G. Moore, "The Food and Agriculture Organisation of the United Nations Compliance Agreement," (1995) 10 The International Journal of Marine and Coastal Law, pp. 412-425; Message from the President, Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, April 26, 1994, S. Treaty Doc. 103-24, 103d Cong ., 2d Sess. (Message from the President) . 23 During the negotiation of the Compliance Agreement, some delegations suggested the term "ensure compliance" in lieu of "promote compliance." It was recognized , however, that governments cannot guarantee (i.e., "ensure") perfect compliance by people and vessels subject to their jurisdiction with any set of rules , even through the most vigilant oversight. 24 Under intemationallaw, coastal states may establish exclusive economic zones extending up to 200 nautical miles from their shores. Within their exclusive economic zones, coastal states have sovereign rights for the purpose of exploring, exploiting, conserving and managing all living resources, as well as the 22

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to prevent overfishing of some critical stocks in these areas," the negotiators of the Compliance Agreement saw their mandate as limited to the establishment of more specific rules for regulating fishing activities in areas where no nation has exclusive authority . The negotiators were also aware that other parts of the International Code of Conduct for Responsible Fisheries, although non-binding, would address the need for better coastal state regulation of fishing."

Preamble

Most paragraphs in the lengthy preamble to the Compliance Agreement review the legal and factual context in which the negotiation of the Agreement occurred. Accordingly, the preamble contains appropriate references to the 1982 United Nations Convention on the Law of the Sea (LOS Convention), to Agenda 21 and to the Declaration of Canciin. The preamble also describes the reasons why the scope of the Compliance Agreement expanded from the initial focus on the reflagging problem. The ninth preambular paragraph notes that both "the practice of flagging and reflagging fishing vessels as a means of avoiding compliance with international conservation and management measures, and the failure of flag states to fulfill their responsibilities with respect to fishing vessels entitled to fly their flag, are among the factors that seriously undermine the effectiveness of such measures." The tenth preambular paragraph recognizes that, in order to achieve better regulation of high seas fishing, the Compliance Agreement must address both issues.

authority to take measures as may be necessary to ensure compliance with rules they have established in the exercise of these rights. See LOS Convention, supra note 4, arts. 55-75 . 2S Given that approximately 90 percent of all fish currently caught in the ocean are harvested within 200 miles of land, it is reasonable to assume that a fair share of the blame for the collapse of key fish stocks must fall on coastal states . 26 By contrast, the conservation rules of the Straddling and Highly Migratory Fish Stocks Agreement apply both within and beyond coastal state zones . See Straddling and Highly Migratory Fish Stocks Agreement, supra note 7, arts. 3,5-7.

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Definitions and application Articles I and II of the Compliance Agreement set the precise parameters of its scope . Article I defines a number of critical terms for putposes of the Compliance Agreement. Article I(a) defines "fishing vessel" very broadly to cover "any vessel used or intended for use for the purposes of the commercial exploitation of living marine resources ." The definition also reflects the outcome of a lengthy debate during the negotiations over which "fishery support" vessels would also be covered: "mother ships and other vessels directly engaged in such fishing activities. " The definition, although broad , would exclude vessels that support fishing activities only in indirect ways; e.g., cargo vessels that merely deliver fuel and other provisions to fishing vessels. Article I(b) defines "international conservation and management measures" to mean: measures to conserve or manage one or more species of living marine resources that are adopted and applied in accordance with the relevant rules of international law as reflected in the 1982 United Nations Convention on the Law of the Sea. Such measures may be adopted either by global, regional or sub-regional fisheries organizations, subject to the rights and obligations of their members, or by treaties or other international agreements.

This definition includes all living marine resources, not just fish. Thus, agreed measures to conserve whales and other cetaceans, coral and other organisms that live in the ocean all fall within the scope of the Compliance Agreement." However, in order for a measure to be covered, it must be "adopted and applied in accordance with the relevant rules of international law." Those rules, as reflected primarily in articles 63(2)-67 and 116-119 of the LOS Convention, require cooperation among states whose vessels participate in high seas fisheries. If the living marine resources in question also occur in adjacent coastal zones, the relevant coastal states also are to be

27 The Compliance Agreement is in this respect much broader than the Straddling

and Highly Migratory Fish Stocks Agreement, which generally applies only to certain categories of fish (straddling fish stocks and highly migratory fish stocks).

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included in the development of conservation and management measures for those resources. If, for example, one state tried unilaterally to establish measures for a high seas fishery without the cooperation of other relevant states, those measures would not be adopted and applied in accordance with the relevant rules of international law and would thus fall outside the scope of the Compliance Agreement. Generally speaking, the negotiators of the Compliance Agreement intended this definition to cover the measures that are adopted periodically by multilateral fisheries organizations, most of which operate on a regional basis." Some of the treaties establishing these organizations allow parties to "opt-out" of specific measures adopted by the organizations by filing timely objections." While the exercise of such opt-out rights has undoubtedly contributed to conservation problems in marine fisheries , the negotiators decided not to alter these pre-existing rights through operation of the Compliance Agreement. The phrase "subject to the rights and obligations of their members" in Article I(b) is intended to preserve these pre-existing rights. Article II, which describes more specifically the fishing vessels to which the Compliance Agreement applies, strikes a balance between the goal of comprehensive coverage and the desire not to impose undue administrative burdens on states with large numbers of high seas fishing vessels. As noted above, the definition of "fishing vessel" generally covers all fishing vessels that are used or intended for fishing on the high seas. Article 11(2), however, allows a party to exempt its fishing vessels less than 24 meters in length from most of the administrative requirements of the Compliance Agreement, subject to certain important limitations. A party that exercises its right to make such an exemption must nevertheless prohibit each of its high seas fishing vessels, regardless of length, from engaging in any activity that undermines the effectiveness of international conservation and management

28

29

As noted above, however, the International Convention for the Regulation of Whaling, supra note 8, creates conservation measures applicable on a global basis. See, e.g., the International Convention for the Conservation of Atlantic Tunas, supra note 8, article VIII; the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, supra note 8, article XII; the International Convention for the Regulation of Whaling, supra note 8, article v.

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measures and must take enforcement action with respect to vessels that violate this prohibition. Article 11(3) creates a special rule of application for those few marine regions, such as the Mediterranean Sea, that include significant areas of high seas close to shore solely because the coastal states have not declared 200mile zones. In such regions, numerous vessels shorter than 24 meters may fish "on the high seas." For this reason, article n(3) allows the coastal states of such a region to establish a different minimum length below which the Compliance Agreement will not apply in respect of coastal state fishing vessels that operate exclusively in that region.

Flag state responsibilities Article m (supplemented by article IV) is the heart of the Compliance Agreement. These provisions elaborate a broad range of obligations for parties whose fishing vessels operate on the high seas. Articles m(l), m(2) and m(3) contain three rules of fundamental significance that need to be considered together. The first of these rules, found in article m(l)(a), provides that, "[E]ach Party shall take such measures as may be necessary to ensure that fishing vessels entitled to fly its flag do not engage in any activity that undermines the effectiveness of international conservation and management measures." As noted above, this obligation applies to all international conservation and management measures, whether or not the party is a member of the regional fishery organization that adopted such measures. Article m(2) creates the second fundamental rule: "[N]o Party shall allow any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless it has been authorized to be so used by the appropriate authority or authorities of that Party." Article m(3) completes the trilogy: "[N]o Party shall authorize any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless the Party 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." These three rules represent a new vision for high seas fisheries. To abide by these rules, states may no longer allow their fishing vessels to venture

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out into high seas areas in the way that the early explorers ventured out beyond the frontiers of known society. Flag states must now actively oversee the high seas fishing operations of their vessels. They must decide on a caseby-case basis whether to authorize any vessel flying their flag to fish on the high seas. Most importantly, they may not permit any such vessel to fish on the high seas at all, unless they are able to prevent the vessel from undermining agreed high seas conservation rules. Prior to the Compliance Agreement, none of these rules had found explicit expression in any international agreement. All three rules, however, derive directly from more general provisions of the LOS Convention obligating states to take measures for their respective nationals for the conservation of high seas living resources" and requiring that there must be a "genuine link" between a state and a vessel entitled to fly its flag." The remainder of article III sets forth ancillary obligations. Article m(5) represents the resolution of a protracted debate during the negotiation of the Compliance Agreement over how to deal with fishing vessels that reflag for the purpose of undermining agreed conservation measures. As discussed above, this provision does not regulate the act of reflagging directly, but rather prohibits the new flag state from authorizing a reflagged vessel to fish on the high seas if the vessel has a prior record of having undermined agreed conservation measures. Exceptions to this prohibition are permitted only in limited situations, including where there has been a real change of ownership of the vessel. The negotiators of the Compliance Agreement believed that this provision, if properly enforced, would effectively deter "illegitimate" reflagging by decreasing the possibility that "illegitimately" reflagged vessels could fish on the high seas. Article m(6) requires all flag states to ensure that their high seas fishing vessels are properly marked in accordance with recognized international standards. This requirement will obviously assist all states in monitoring

30 LOS Convention,

31

article 117 ("All States have the duty to take, or to co-operate with other States in taking,such measures for their respectivenationalsas may be necessary for the conservation of the living resources of the high seas."). LOS Convention, article91(1) ("EveryState shallfix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must be a genuine link between the State and the ship.").

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high seas fishing operations and in detecting violations of agreed conservation measures. To increase the transparency of high seas fishing operations still further, article m(?) obligates flag states to require their high seas fishing vessels to provide relevant information on their activities, particularly information relating to the high seas areas in which their activities occur and on their catches and landings of fish. Such data are the life blood of effective fisheries management, but too often have remained unreported. Article m(8) obligates flag states to take enforcement action against their vessels that contravene the provisions of the Compliance Agreement. The penalties for these violations must be more than "slaps on the wrist" - they "shall be of sufficient gravity as to be effective in securing compliance with the requirements of this Agreement and to deprive offenders of the benefits accruing from their illegal activities." For serious violations, flag states must refuse, suspend or withdraw the authorization for the vessel to fish on the high seas." Article IV requires each party to maintain a record of all vessels entitled to fly its flag and authorized to fish on the high seas. This record may be separate from any general register of vessels the party may keep.

Cooperation Articles V through IX of the Compliance Agreement are designed to fulfill its second objective, the enhancement of international cooperation in the management of high seas fisheries, particularly through the collection and dissemination of data pertaining to those fisheries. Although each individual flag state bears responsibilities for the activities of its high seas fishing vessels, the Compliance Agreement recognizes that states must also take certain collective actions to create sustainable high seas fisheries.

32

Article 19(2) of the Straddling and Highly Migratory Fish Stocks Agreement contains comparable language pertaining to penalties for fishery violations: "Sanctions applicable in respect of violations shall be adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and shall deprive offenders of the benefits accruing from their illegal activities."

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Article v of the Compliance Agreement seeks to promote cooperation among states in its implementation, particularly through the exchange of information relating to the activities of high seas fishing vessels . For example, in many cases, states other than the flag state are in possession of evidence revealing violations of agreed conservation rules. Article v( 1) calls for the provision of such evidence to the flag state for use in possible enforcement actions against the vessel alleged to have been engaged in such violations. Article vI(2) also envisions the possibility that a state other than the flag state may take certain investigatory actions with respect to a foreign fishing vessel that is voluntarily in its port, where there are reasonable grounds to believe that the vessel has undermined agreed conservation rules. Under Article VI, each flag state must make readily available to the FAO detailed information on each of its registered fishing vessels that operate on the high seas and must update this information promptly. The FAO will maintain and circulate this information periodically among the parties to the Compliance Agreement and also to multilateral fishing organizations, subject to any restrictions that a flag state may impose; e.g., relating to the confidentiality of certain business information. If a flag state exercises its right under article 11(2) to exempt vessels less than 24 meters in length from these reporting requirements, it must inform the FAO of the number and type of fishing vessels covered by the exemption and the geographical areas in which such vessels operate. Flag states also must inform the FAO when any of their vessels have engaged in activities that undermine agreed conservation rules on any measures the flag state has taken in response. Article VII calls for the parties to cooperate with developing countries through the provision of assistance, including technical assistance, to aid them in fulfilling their obligations under the Compliance Agreement. Article VIII obligates the parties to take certain actions with respect to states that are not parties to the Compliance Agreement so that the vessels of non-parties do not undermine the effectiveness of international conservation and management measures . Article IX requires parties to consult and cooperate with respect to any dispute concerning the interpretation or application of the Compliance Agreement, and suggests consensual means for the settlement of such disputes .

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CONCLUSION

When the bounty of the seas seemed endless, it was easy to maintain the fiction that a fishing vessel is a floating piece of national territory. It did not matter much that individual flag states did not, or could not, control the activities of high seas fishing vessels. Today, we must reassess our willingness to accept this fiction, as we face the reality that key ocean fishery resources are both scarce and declining . When President Clinton transmitted the Compliance Agreement to the United States Senate in April 1994, he urged acceptance of the treaty on the following basis: This Agreement represents a major step forward in the effort to strengthen the integrity of conservation and management measures adopted by international fisheries organizations and to improve knowledge about high seas fishing in general. The Agreement also stands for the proposition that no State should allow a fishing vessel to fly its flag on the high seas unless that State can effectively exercise responsibility over that vessel.P

This statement remains an effective summary of the promise and the premise of the Compliance Agreement.

33 Message from the President, supra note 22, p. iii.

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4 THE STRADDLING AND IDGHLY MIGRATORY FISH STOCKS AGREEMENT Moritaka Hayashi'

INTRODUCTION

The 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? (the Straddling and Highly Migratory Fish Stocks Agreement or the Agreement) was adopted by consensus on August 4, 1995.3 It is the outcome of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks (the Conference). The Agreement constitutes an important contribution to the development of international fisheries law. Its main objective is to facilitate the implementation of some of the fisheries-related provisions of the United Nations Convention on the Law of the Sea" (LOS Convention). It, however, also streng-

2 3

4

The opinions expressed in this chapter are solely those of the author and do not necessarily reflect the views of FAD. (1995) 34 lIM 1542. The Agreement was opened for signature at the United Nations on December 4, 1995. As of May 13, 1999, 59 states had signed and 21 states had ratified or acceded to the Agreement. According to article 40, the Agreement will enter into force 30 days after the date of deposit of the 30th instrument of ratification or accession. (1982) 21 lIM 1261. Specifically on the fisheries provisions of the LOS Convention see Hey, supra Chapter 2.

E. Hey, (ed.), Developments in International Fisheries Law, p. 55-83 . © 1999 Kluwer Law International. Printed in The Netherlands.

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thens and further develops the general, or framework, rules set out in the LOS Convention by providing specific rights and obligations for states.' This chapter reviews those provisions of the Straddling and Highly Migratory Fish Stocks Agreement which mark significant progress in the further clarification and development of international fisheries law. It analyses, in particular, the implications of the Agreement for the freedom of fishing on the high seas.

UNITED NATIONS CONFERENCE ON STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS

In December 1992, the United Nations General Assembly decided to convene the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks." This decision was the result of a number of developments in the preceding years. Among the most important of these developments were: the over-exploitation of, and serious decline in, important commercial fish stocks in many fishing grounds around the world, and in particular the collapse of groundfish stocks of the Grand Banks off Newfoundland, the increased awareness of the critical nature of fisheries-related issues for environment and development and the emerging global consensus on the need to establish a more effective regime for the conservation and management of the living resources of the ocean. During the 1970s and ' 80s, when nations around the world were concerned with re-shaping the global legal order of the oceans and subsequently with adjusting themselves to the new order, the world's fishing fleets expanded at an unprecedented rate -'- a rate that was about twice as high as the rise in catches.' According to the Food and Agriculture Organization of the United Nations (FAD), the global fleet had reached a level of overcapacity whereby fishing activities were no longer developing in an

5

6

7

See Moritaka Hayashi, "The 1995 Agreement on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks: Significance for the Law of the Sea Convention," (1996) 29 Ocean and Coastal Management, pp. 51-69 . UNGA Res. 47/192, December 22, 1992. FAD, World Fisheries Ten Years after the Adoption ofthe 1982 United Nations Convention on the Law of the Sea, FAD Doc. CDFi/93/4, 1992, p. 5.

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economically sound manner," In 1989, the global production of fish and shellfish from marine capture fisheries had peaked at 86 million metric tons. Thereafter, for the first time in the history of fisheries, it decreased for two consecutive years." The situation was so serious at the beginning of the 1990s that FAO, in a report to the 1993 meeting of the Committee on Fisheries (COFI), found that "69 per cent of the world's marine stocks, for which data are available, were either fully to heavily exploited (44 per cent), overexploited (16 per cent), depleted (6 per cent), or very slowly recovering from overfishing (3 per cent)."!" FAO accordingly warned that the situation was "globally nonsustainable and major ecological and economic damage is already visible."!' The over-exploitation of major and commercially important species was evident in several fishing areas of the world." Concerned with this serious situation, and in particular with that of the Northwest Atlantic, Canada, in 1990, seized the preparatory process for the United Nations Conference on Environment and Development (UNCED) to raise the question of conservation and management of high seas fisheries. After prolonged and last-minute negotiations, it was agreed to refer the question, now restricted to straddling fish stocks and highly migratory fish stocks, to a special conference. The UNCED recommendation, adopted by consensus, contained the terms of reference for the conference.13 On the basis of the UNCED recommendation, the UN General Assembly, in December 1992, adopted Resolution 47/192, by which it decided to convene the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks in 1993. The Conference was requested to identify and assess existing problems related to the conservation and management of straddling

Id. Global fish production started to show a very slight increase since 1992 without reaching the 1989 record. However, in 1995 it again showed a small decline. See The State of World Fisheries and Aquaculture, FAG, 1995, p. 4, Table 1, The State of World Fisheries and Aquaculture, 1996, FAG, 1997, p. 5, Table 1. 10 The State of World Fisheries and Aquaculture, 1995, id., p. 8. 11 Id., p. 6. 12 See id., pp. 8-11. 13 United Nations, Report ofthe United Nations Conference on Environment and Development, Rio de Janeiro, June 3-14, 1992, Vol. I, Resolution 1, Annex II (Agenda 21), para. 17.49.

8 9

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and highly migratory stocks, consider means of improving fisheries cooperation among states and formulate appropriate recommendations. The General Assembly Resolution further provided that the work and results of the Conference should be fully consistent with the provisions of the LOS Convention. The Conference held six sessions between April 1993 and August 1995.14 The Conference was not specifically requested to elaborate a binding treaty and views regarding the desirable format of its outcome differed. Nevertheless, a majority in support of the treaty format developed, particularly after the Chairman submitted a negotiating text in the form of a draft agreement at the fourth session of the Conference, in August 1994.15

KEy PROVISIONS OF THE AGREEMENT

The precautionary approach When the LOS Convention was adopted the precautionary approach, or principle, had not been conceptualized. However, this changed in the mid1980s, with its inclusion in domestic and regional legal instruments for the protection of the terrestrial, and subsequently the marine, environment. When, early in the negotiations, several coastal state delegations introduced the concept of precaution to the Conference, other delegations, especially those representing distant water fishing nations (DWFNS), took a cautious attitude. The latter argued, inter alia, that the concept had developed

14

15

For the report of the Secretary-General on the Conference submitted to the General Assembly, see UN Doc. N50/550, October 12, 1995. For the report of each session of the Conference, see UN Doc. NCDNF.164/9, 16 (and corr. 1),20,25,29 and 36. Reproduced in Jean-Pierre Levy and Gunnar G. Schram (eds.), United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks : Selected Documents, Martinus Nijhoff, 1996at respectively pp. 45, 101 (107), 471, 657, 715 and 755. See DavidJ. Doulman, Structure and Process ofthe 1993-1995 United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, FAD

Fisheries Circular No. 898 (FIO/C898), 1995, p. 16.

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in the context of pollution prevention and was not suitable for application to fisheries conservation and management. 16 On the basis of, in particular , Principle 15 of the Rio Declaration, 17 however, the Conference adopted "the precautionary approach" for the conservation and management of the fish stocks concerned . The Agreement requires states to apply the precautionary approach widely to conservation, management and exploitation of straddling and highly migratory fish stocks." It is important to note that, while most of the provisions of the Agreement apply to the conservation and management of the two types of fish stocks in high seas areas only, the provisions on the precautionary approach apply both to areas under national jurisdiction and to high seas areas." The Conference developed basic precautionary rules, as contained in article 6 of the Agreement, and a more specific set of "Guidelines for the application of precautionary reference points in conservation and man-

See Moritaka Hayashi, "United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks : An Analysis of the 1993 Sessions," (1994) 11 Ocean Yearbook, pp. 20-45, p. 37-38. 17 Principle 15 of the Rio Declaration provides that "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." 18 Arts. 5(c) and 6, Straddling and Highly Migratory Fish Stocks Agreement. 19 Art. 3(1), id. This was also the clear intention of FAG, as evidenced by a basic FAG background document on the subject ( UN Doc. NCONF.164/INF/8, The Precautionary Approach to Fisheries with reference to Straddling and Highly Migratory Fish Stocks, reproduced in Levy and Schram (eds.) supra note 14, p. 555). The senior FAG official responsible for the document clarified that, even though the document was prepared for the conference, FAG considered it to be pertinent to all resources and fisheries, whether in high seas areas or in areas under national jurisdiction. He further explained that, it was felt that if a resource required precaution, precaution should be provided regardless of the jurisdictional zone in which it is located. Furthermore, the set of management measures applied to the various life stages of a transboundary resource should be coherent across its entire area of distribut ion. See Serge Garcia, "The Precautionary Approach to Fisheries and its Implications for Fishery Research, Technology and Management: an Updated Review," in, Precautionary Approach to Fisheries. Part 2: Scientific Papers, FAO Fisheries Technical Paper, No. 350, Part 2, FAG , 1996, pp. 1-63, p. 10. 16

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agement of straddling fish stocks and highly migratory fish stocks," contained in Annex II to the Agreement. These provisions were elaborated with great care through two working groups of technical experts" and with the assistance of technical studies by FAO . 21 Given that the traditional concept of the maximum sustainable yield (MSY) was considered to be inadequate to regulate fishing activities in an era of poor resource condition, the Guidelines recommend the use of two types of "precautionary reference points." These are conservation (or limit) reference points and management (or target) reference points. Conservation reference points set boundaries for safe biological limits within which the stocks can produce MSY, while management reference points are intended to meet management objectives. The Guidelines require states to ensure that the risk of exceeding conservation reference points is very low and that management reference points are not exceeded on average. Article 6(4) of the Agreement, furthermore, provides that States shall take measures to ensure that, when reference points are approached, they will not be exceeded. In the event they are exceeded, States shall, without delay, take the specified action determined under paragraph 3(b) to restore the stocks. The need to take special precaution when new or exploratory fisheries are being undertaken is also recognized in the Agreement. It provides that in such cases states shall adopt "as soon as possible cautious conservation and management measures," including catch limits and effort limits. These measures are to be kept in force until sufficient data have been collected to assess the impact of the fisheries on the long-term sustainability of the

20 For the reports of the working groups, see UN Doc. NCONF.I64/wP.l and wr.z,

both dated March 24, 1994. 21 FAO, at the request of the Conference, prepared two studies on the precautionary approach: The Precautionary Approach to Fisheries with reference to Straddling Fish Stocks and Highly Migratory Fish Stocks (UN Doc. NCONF.I64/1NF/ 8, supra note 14); and Reference Points for Fisheries Management - their Potential Application to Straddling and Highly Migratory Resources (UN Doc. NCONF.I64/ lNF/9, January 26, 1995, reproduced in Levy and Schram, supra note 14, p. 577).

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stocks . The assessment is to provide the basis for the implementation of conservation and management measures." The Agreement also applies the precautionary approach in respect of emergency situations caused by natural phenomena. Such phenomena, like EI Nino, may have a significant adverse impact on the status offish stocks . If a phenomenon of this nature occurs, states are required to adopt emergency measures to ensure that fishing activities do not exacerbate any adverse impact that may result. These measures must be of a temporary nature and based on the best scientific evidence available."

Compatibility of conservation and management measures Another fundamental and new concept, which was developed at the Conference, is that of the compatibility of conservation and management measures adopted for an area under national jurisdiction and those adopted for the adjacent high seas area. The Straddling and Highly Migratory Fish Stocks Agreement requires coastal states and states fishing on the high seas to cooperate for the purpose of achieving compatible conservation and management measures for the entirety of the stock concerned." It enumerates the factors to be taken into account by states in attaining this goal. 25 The Agreement first mentions the conservation and management measures, based on article 61 of the LOS Convention, that the coastal state has adopted and applies to the stocks when these are located within areas under its national jurisdiction. It requires states to "ensure that measures established in respect of such stocks for the high seas do not undermine the effectiveness of such measures.'?" However, states also must take into account previously agreed measures for the relevant high seas area, the "biological unity and other biological characteristics of the stocks and the relationships between the distribution of the stocks, the fisheries and the geographical particularities

Art. Art. 24 Art. 25 Art. 26 Art. 22 23

6(6) , Straddling and Highly Migratory Fish Stocks Agreement. 6(7), id.

7, id. 7(2), id. 7(2)(a), id.

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of the region concerned," as well as the respective dependence on the stocks concerned of the coastal states and states fishing on the high seas." Coastal states and states fishing on the high seas also are obliged to inform each other about the measures that they have adopted with regard to the stocks concerned for, respectively , areas under national jurisdiction and for their vessels fishing on the high seas." Furthermore, pending agreement on compatible measures, the states concerned shall make every effort to enter into provisional arrangements of a practical nature. In the event that they are unable to agree on provisional arrangements, any of the states concerned may invoke the dispute settlement provisions of the Agreement." The provisions on compatible conservation and management measures are the result of difficult negotiations. The compromise was not easy to achieve; especially taking into consideration the objective of those coastal states that had promoted the Conference. They sought to obtain the international community's endorsement for their policy of applying the fisheries regime adopted for their own exclusive economic zones to foreign vessels operating in adjacent high seas areas. The "conclusions" reached at the meeting of "like-minded" coastal state experts held at St. John's, Canada, in 1990, may serve to illustrate this point. The participants unanimously agreed, inter alia, that "all States whose nationals carry out fishing activities on the high seas should endeavor to ensure that such activities do not have an adverse impact on living resources under the coastal State's jurisdiction." Most participants, however, also agreed that, with respect to straddling stocks, "the management regime applied to the high seas portion of the stock should be consistent with the management regime of the coastal State applicable to its EEZ," and that "management regimes applicable to highly migratory species must fully recognize the jurisdiction of coastal States in their EEZs and be consistent with conservation and management measures applied by them. ,,30 The issue was followed up by a group of coastal states, led by Canada, at the UNCED Preparatory Commission. The group, which expanded to 27 Art. 7(2) (b)-(e), id. 28 Art. 7(7) and (8), id. 29 Art. 7(5), id. 30 Conference on the Conservation

and Management of the Living Resources of the High Seas, St. John's, Newfoundland, 5-7 September 1990, App. II, pp. 2-3. See Hayashi, supra note 5, pp. 26-27.

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include 40 coastal and island states, introduced a joint paper." One of the "principles" included in the paper and submitted for adoption to the Conference provided that states fishing for a straddling stock or highly migratory species on the high seas must take all measures necessary to "give effect to the special interest and responsibility of the coastal State" in the portion of a straddling stock located beyond the 200-mile limit and in a highly migratory species while located outside that limit. 32 The paper, furthermore, provided that high seas fishing must not have an adverse impact on the resources under coastal state jurisdiction. The intention of this group of coastal and island states, thus, was clear when the Conference started. They would try to maximize what they considered to be the "special interest" of coastal states in areas of the high seas adjacent to their exclusive economic zones. As they presented their position to the Conference, the group faced strong resistance from a group OfDWFNS. The latter group considered that the question of the extent of coastal state fisheries jurisdiction had been settled at the Third United Nations Conference on the Law of the Sea (UNCLOS III). They regarded the proposals submitted by the group of coastal states as a renewed attempt to restrict the freedom of high seas fishing, through creeping jurisdiction. The inclusion of the "compatibility principle" in the Straddling and Highly Migratory Fish Stocks Agreement, therefore, was a significant achievement.

Duties of the flag state The LOS Convention requires every state to exercise effective jurisdiction and control over ships flying its flag." In particular, it requires a state to maintain a register of ships flying its flag , to assume jurisdiction under its internal law over each ship flying its flag as well as over the master, officers and crew of such ships and to take specific measures for purposes of ensuring the safety of life at sea." The LOS Convention further requires all

31 UN Doc. AlCONF.I5l!PCIWG.lUL.I 6/Rev.1, March 16, 1992. 32 For further discussionon the "special interest" of the coastal states, see the text 33 34

after infra note 95. Art. 94(1), LOS Convention. Art. 94(2)-(5), id.

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states to take measures for their nationals as may be necessary for the conservation of the living resources on the high seas." Except for the need to apply the qualified MSY principle and the need to take into consideration the interdependence of stocks," the LOS Convention does not indicate the types of measures that a flag state is to adopt for its fishing vessels which are engaged in fishing activities on the high seas. The Straddling and Highly Migratory Fish Stocks Agreement fills the gap left by the LOS Convention , by elaborating at great length on the duties of the flag state. First, it makes the "effective control" provision of the LOS Convention more stringent by determining that a state shall authorize vessels flying its flag to fish on the high seas only when it is able to exercise effectively its responsibility as a flag state, both under the LOS Convention and the Agreement." Secondly, the Agreement requires the flag state to take a number of concrete measures in respect of high seas fishing activities that take place under its flag. These measures include : control over fishing activities by means of licenses, authorizations or permits in accordance with regionally or globally agreed procedures , national regulations to ensure that its vessels only engage in fishing activities if authorized to do so, a national record of authorized fishing vessels, requirements for recording and timely reporting on vessel position, catch of target and non-target species , fishing effort and other relevant fisheries data, monitoring, control and surveillance of vessels, their operations and market statistics, and regulation of fishing activities in accordance with regional and global measures ." Moreover, the Agreement imposes on the flag state the duty to ensure compliance by its vessels with regional conservation and management measures." To this end, the flag state must enforce such measures irrespective of where a violation occurs. Moreover, it must investigate any alleged violation of a conservation and management measure and, if sufficient evidence is available in respect of a violation, refer the case to its authorities for instituting proceedings. Where appropriate the flag state must detain the vessel concerned. Furthermore, it must ensure that, where it has been es-

35 Art. 177, id. 36 Art. 119(1), id. 37 Art. 18(2), Straddling and Highly Migratory Fish Stocks Agreement. 38 Art. 18(3), id. 39 Art. 19(1), id.

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tablished that a vessel has been involved in the commission of a serious violation, it does not engage in fishing operations until all outstanding sanctions have been complied with. It is further stipulated that the sanctions imposed in respect of violations shall be adequate in severity to be effective in securing compliance and in discouraging violations." The Agreement imposes an additional obligation on the flag state to investigate its fishing vessels on the high seas where there are reasonable grounds for believing that a vessel has been engaged in unauthorized fishing within areas under the jurisdiction of a coastal state. If the coastal state submits a request for such an investigation to the flag state, the flag state must cooperate with the coastal state in taking appropriate enforcement action." Attaining agreement on the provisions regarding flag state responsibility was greatly facilitated by the successful conclusion of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas" (Compliance Agreement), adopted by the FAD Conference in October 1993. Negotiations on the Compliance Agreement, under the auspices of FAD, took place almost in parallel with the negotiations at the Straddling Fish Stocks and Highly Migratory Fish Stocks Conference. Some key negotiators , in fact, participated in both conferences. The Compliance Agreement provides, inter alia, the following duties for states-parties to it: to take the measures necessary to ensure that fishing vessels entitled to fly its flag do not engage in any activity that undermines the effectiveness of international conservation and management measures," not to allow any fishing vessel flying its flag to be used for fishing on the high seas unless the vessel has been authorized to be so used by the appropriate authority" and to take enforcement measures in case a vessel flying its flag acts in contravention of the Compliance Agreement,

40 41

42 43 44

Art. 19(2), id. Art. 20(6), id. (1994)33 lIM 968.Specifically on the Compliance Agreement see Balton, supra Chapter 3. Art. m(l), Compliance Agreement. Art. m(2), id.

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including the application of sanctions of sufficient gravity so as to be effective in securing compllance." It should be noted that the Compliance Agreement has a much wider coverage than the Straddling and Highly Migratory Fish Stocks Agreement in that it applies to all fishing activities taking place on the high seas, irrespective of the type of stocks concerned . However, the Compliance Agreement, as opposed to the Straddling and Highly Migratory Fish Stocks Agreement, allows states to exempt fishing vessels of less than 24 meters in length from its application."

Strengthening regional fisheries organizations and arrangements The LOS Convention contains only a few very general provisions regarding the role of regional organizations or arrangements for conservation and management of straddling and highly migratory fish stocks. For straddling stocks, it requires that the coastal state and states fishing for such a stock in the adjacent high seas 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.?" In the case of highly migratory fish stocks, the coastal state and other states whose nationals fish for such stocks in the region shall co-operate 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 . .. . In regions for which no appropriate international organization exists, the coastal State and other States whose nationals who harvest these species in the region shall co-operate to establish such an organization and participate in its work."

45 Art. 11I(8), id. 46 The possibility of this exemption,however, does not affect the basic legal obligation of parties as set out in article 1II (1)(a) of the Compliance Agreement, i.e., the duty to take measures necessary to ensure that fishing vessels flying its flag do not engage in any activity that undermines the effectiveness of international conservation and management measures. 47 Art. 63(2), LOS Convention. 48 Art. 64, id.

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The duties of the states concerned are thus limited to seeking to agree upon the necessary conservation measures for straddling fish stocks , or cooperating with a view to ensuring conservation and optimum utilization, for highly migratory stocks. In addition, for highly migratory species they must cooperate to establish appropriate international organizations. However, the above remains far short of the obligation to establish regional fisheries organizations for the stocks in question. The Straddling and Highly Migratory Fish Stocks Agreement reflects an attempt to enhance considerably the role of regional organizations or arrangements. The Agreement first provides that states shall cooperate to strengthen existing organizations or arrangements "in order to improve their effectiveness in establishing and implementing conservation and management measures" for the two types of fish stocks." The Agreement furthermore provides that, where a competent regional organization or arrangement already exists, the states concerned "shall give effect to their duty to cooperate by becoming members of such organization, or by agreeing to apply the conservation and management measures established by such organization.t'" The organization, for its part, must be open on a non-discriminatory basis to all states having "a real interest" in the fisheries concerned." To reinforce these provisions, the Agreement stipulates that only those states that are members of the relevant organization or that agree to apply the measures established by the organization shall have access to the fishery resources in question." The combined effect of these provisions is to exclude from the relevant fishery those states that are not members of the existing regional organization and that do not agree to apply the relevant measures to their vessels . These states, thus, are denied the freedom to fish on the high seas. Simply put, it means that "only those who play by the rules may fish.?" The Agreement attempts to ensure the implementation of this rule by imposing on those

Art. 13, Straddling and Highly Migratory Fish Stocks Agreement. 50 Art. 8(3), id. 51 Id. 52 Art. 8(4), id. 53 David A. Balton,"Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks," (1996) 27 Ocean Development & International Law, pp. 125-151, p. 138. 49

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states the obligation not to authorize vessels flying their flag to engage in fishing operations for the fish stocks concerned." With respect to regions where no regional organization or arrangement exists, the Agreement requires that the relevant coastal states and states fishing on the high seas for straddling stocks or highly migratory stocks "cooperate to establish such an organization or enter into other appropriate arrangements" and participate in their work.55 The Agreement provides a set of detailed rules that contain minimum requirements for establishing regional organizations or arrangements, identify their functions , establish the factors that such organizations or arrangements are to take into account when determining the rights of new members and set standards of transparency that are to be met by the organizations and arrangements."

Regional cooperation on enforcement

In accoraance with well-established customary international law and the Convention, ships on the high seas are in principle subject to the exclusive jurisdiction of their flag state. Thus, normally, it is only the flag state that can board and inspect or enforce its law against a fishing vessel on the high seas. The only exceptions to this rule are those explicitly provided for in the LOS Convention or other international agreements. 57 The Straddling and Highly Migratory Fish Stocks Agreement provides an entirely new exception to this principle of exclusive flag state jurisdiction. It creates an elaborate system of regional cooperation for the enforcement of regionally agreed measures against vessels that are suspected of violating them." Thus, in any high seas area covered by a regional organization or arrangement, a state party to the Straddling and Highly Fish Stocks Agreement which is also a member of such an organization or arrangement may board and inspect fishing vessels flying the flag of another state party to the Agreement for the purpose of ensuring compliance with management LOS

Art. 17(2), Straddling and Highly Migratory Fish Stocks Agreement. Art. 8(5), id. 56 Arts. 9-12, id. 57 Art. 92(1), LOS Convention. 58 Art. 21, Straddling and Highly Migratory Fish Stocks Agreement. 54 55

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measures adopted by that regional organization or arrangement. It is important to note that this type of enforcement action is allowed regardless of whether the flag state is a member of the regional organization or the arrangernent." The Agreement also provides that where, following boarding and inspection, there are clear grounds for believing that a foreign flag vessel has engaged in any activity contrary to the regional measures, the inspecting state shall secure evidence and notify the flag state." The latter state must respond within three working days and either take enforcement action itself or authorize the inspecting state to investigate the matter. 61 In the latter case, the inspecting state is required to communicate the results of the investigation to the flag state, which then must, if evidence so warrants, take enforcement action, or authorize the inspecting state to take such enforcement action as the flag state may specify." The Agreement goes on to provide a more stringent enforcement procedure for those cases where, following boarding and inspection, there are clear grounds to believe that the vessel has committed a "serious violation,"? and the flag state has failed to respond or to take the above-mentioned action. In such a case, the inspectors may remain on board the vessel for further investigation and where necessary may bring it to the nearest port.

S9 Art. 21(1), id. 60 Art. 21(5), id. 61 Art. 21(6) , id.

62 Art. 21(7) , id. 63 A "serious violation" is defined in the article 21(11) of the Agreement as: (a)

fishing without a valid license, authorization or permit; (b) failing to maintain accurate records of catch and catch-related data, as required by regional measures, or serious mis-reporting of catch contrary to the regionally-established requirements; (c) fishing in a closed area, fishing during a closed season or fishing without or over a quota established by regional measures; (d) directed fishing for a stock under a moratorium or prohibition; (e) using prohibited fishing gear; (f) falsifying or concealing the markings , identity or registration of a vessel; (g) concealing, tampering with or disposing of evidence relating to an investigation; (h) multiple violations which together constitute a serious disregard of conservation and management measures; or 0) such other violations as may be specified by the regional organization or arrangement.

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If the latter indeed occurs, the inspecting state is to inform immediately the flag state of the port to which the vessel has been taken/" Due to regional peculiarities and different circumstances prevailing in each region or management area for straddling or highly migratory fish stocks, the Agreement leaves the task of developing the detailed procedures for boarding and inspection to the regional organizations. The procedures developed by these organizations, however, must follow the minimum standards established in article 22 of the Agreement. The provisions on cooperation on enforcement, as contained in article 21 of the Agreement, are the outcome of negotiations on what was one of the most controversial topics at the Conference." They are the product of a compromise between a group of coastal states which insisted on putting real "teeth" in the Agreement by permitting coastal states to arrest and prosecute the violators of regionally established measures, on the one hand, and some of the DWFNs which were opposed to such a drastic departure from the traditional principle of flag state jurisdiction, on the other hand.

Port state jurisdiction The LOS Convention introduced the concept of "port state enforcement" into the law of the sea." According to this concept, when a vessel is voluntarily within a port or at an off-shore terminal of a state, that state - the port state - is empowered to investigate and, where the evidence so warrants, institute proceedings, in respect of any discharge in violation of applicable international rules and standards from the vessel that took place in an area outside those areas where it exercises jurisdiction." The LOS Convention does not provide for port state enforcement powers with respect to fishing

64 65

66 67

Art. 21(8), Straddling and Highly Migratory Fish Stocks Agreement. For the details of negotiations and the issues at stake, see Moritaka Hayashi, "Enforcementby Non-Flag Stateson the High Seas under the 1995 Agreement on Straddling andHighly Migratory Stocks," (1996) 9 Georgetown International Environmental Law Review, pp. 1-36. See Patricia W. Birnie and Alan E. Boyle, International Law and the Environment, Clarendon Press, 1992, pp. 281-283 (who confirm this view). Art. 218, LOS Convention.

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vessels that may have violated international fisheries conservation and management measures. The Straddling and Highly Migratory Fish Stocks Agreement, however, does contain a provision on port state enforcement vis-a-vis fishing vessels . Under article 23(2) of the Agreement, a port state, when a fishing vessel is voluntarily in its port or at its offshore terminals may, inter alia, inspect documents, fishing gear and catch on board the vessel. Although this provision is silent as to the purpose of the inspection, it can be deduced from article 23(1), which provides that a port state has the right and the duty to take measures "to promote the effectiveness of subregional, regional and global conservation and management measures .,,68 The Agreement also mentions one specific type of action that the port state may take after conducting the inspection: the prohibition oflandings and transshipments where it is established that the catch has been.taken in a manner which undermines the effectiveness of regional or global conservation and management measures on the high seas." During the Conference, several delegations expressed serious doubts about the appropriateness of creating a regime of port state jurisdiction for fishing vessels. One commentator considered it a "misapplication of the port State concept.'?" A major difficulty of relying on article 218 of the LOS Convention would be the fact that in the field of fisheries there is no equivalent to "applicable international rules and standards established through the competent international organization or general diplomatic conference." In the field of the prevention of marine pollution these standards are generally considered to mean such universally accepted rules and standards as contained in the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78),71 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Conven-

Art. 21(1), Straddling and Highly Migratory Fish Stocks Agreement. Art. 23(3), id. 70 R. Barston, "United Nations Conference on Straddling and Highly Migratory Fish Stocks," (1995) 19 Marine Policy, pp. 159-166, p. 166. 71 (1973) 12 lIM 1319.

68

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tion '72),72 International Convention on the Safety of Life at Sea (saLAs Convention)," their technical annexes and other related instruments." It may also be recalled that, during the negotiations for the Compliance Agreement, a proposal on port state enforcement was rejected because of lack of consensus. The Compliance Agreement thus merely contains a provision requiring the port state to notify the flag state of any case where the former has reasonable grounds to believe that a fishing vessel flying the flag of the latter and which is in its port has been used for an activity that undermines the effectiveness of international conservation and management measures." The same provision, however, also provides that its parties may conclude special agreements among themselves for the conduct of investigatory measures by the port state." The port state enforcement scheme, as provided in article 23 ofthe Straddling and Highly Migratory Fish Stocks Agreement, thus establishes a system similar to that included in the LOS Convention for combating vessel -source pollution. The scope of the applicable rules and standards in the field of fisheries, however, has been expanded to include regionally agreed measures, in addition to global measures. This could be considered to be a logical and reasonable expansion. Given the regional character of most fisheries, most of the internationally agreed rules and standards are inevitably agreed at the regional level. Very few rules and standards similar in nature to MARPOL 73/78 or the London Convention '72 and their annexes have been adopted for regulating fishing activities."

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73 74

75 76 77

(1972) 11 lLM 1294. In 1996 the London Convention '72 was amended by Protocol of November 7, 1996. The 1996 Protocol is reproduced in (1997) 36 lLM 1. (1975) 14 lLM 959. See, e.g., Bernard Oxman, "The Duty to Respect Generally Accepted International Standards," (1991) 24 NYU Journal of International Law and Policy, pp . 109-159; Budislav Vukas, "Generally Accepted International Rules and Standards," in A.H.A. Soons (ed.), Implementation of the Law of the Sea Convention through International Institutions, Law of the Sea Institute, Hawaii, 1990, pp. 405-421. Art. V(2), Compliance Agreement. Id. The only conservation and management rules or standards existing at the global level may be those of the International Whaling Commission if they can indeed be considered as accepted globally or nearly universally. Another example,

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Collection and sharing of data and scientific information The collection, compilation and analysis of various kinds of data relating to fisheries as well as scientific information are essential for the development of effective fisheries conservation and management regimes . This is why the LOS Convention imposes the obligation on states to contribute and exchange "available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks... on a regular basis through competent international organizations .':" This obligation applies both to fishing activities in exclusive economic zones and on the high seas. The FAO and regional bodies are examples of the competent international organizations referred to. The Straddling and Highly Migratory Fish Stocks Agreement expands this basic obligation in a detailed manner in its Annex I, entitled "Standard requirements for the collection and sharing of data." The Agreement lays down the basic principle according to which coastal states and states fishing on the high seas shall "collect and share, in a timely manner, complete and accurate data concerning fishing activities on, inter alia, vessel position, catch of target and non-target species and fishing effort, ...as well as information from national and international research programmes.,,79 In doing so, they are to follow the "standard requirements" as set out in Annex I. The "Standard Requirements" provide general principles of data collection, compilation and exchange. These requirements include : (a) the need for states to ensure that data are collected on fishing activities by vessels flying their flag on the basis of the operational characteristics of each fishing method, (b) the need to ensure the verification of the data collected, (c) the need to compile fishery-related and other supporting scientific data and exchange these through the relevant regional organization or other coopera-

which has the potential of becoming a globally accepted standard, is General Assembly Resolution 46/215 of December 20, 1991 (reproduced in (1992) 31 ILM 241) on the moratorium on the use of large-scale pelagic driftnets on the high seas. Although General Assembly resolutions are not legally binding, this particular resolution may well become part of customary international law because of its widespread acceptance by states, and as a consequence could become a globally accepted standard. 78 Arts. 61(5) and 119(2), LOS Convention. 79 Art. 5(j), Straddling and Highly Migratory Fish Stocks Agreement.

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tive mechanisms, (d) the need to agree on the specification of data and its format and (e) the need for regional organizations to compile data and ensure its availability in a timely manner to all interested states under the terms and conditions set by the organization." The "Standard Requirements" further specify the basic fisheries and vessel-related data and information that states are to collect and make available to the relevant regional fisheries organization." The Agreement thus not only clarifies the general rules and terms as contained in the LOS Convention, but also specifies a number of requirements that states are to follow in order to fulfill their basic obligations. It has, furthermore, strengthened the provisions of the LOS Convention by requiring that data be "complete" and "accurate" and processed "in a timely manner."

Settlement of disputes Part VIII of the Straddling and Highly Migratory Fish Stocks Agreement contains a compulsory procedure for the peaceful settlement of disputes. It relies entirely on the LOS Convention, by incorporating, through reference, its Part xv on Dispute Settlement into the Agreement. Article 30( 1) of the Agreement provides that the provisions which are set out in Part xv of the Convention apply mutatis mutandis to any dispute between states parties to the Agreement relating to the interpretation or application of the Agreement, irrespective of whether they are parties to the LOS Convention. Moreover, article 30(2) provides that Part xv of the LOS Convention also applies to any disputes between states parties to the Agreement concerning the interpretation and application of a regional or global fisheries agreement to which they are party and which relates to straddling or highly migratory fish stocks, again regardless of whether the parties to the dispute are parties to the LOS Convention. The Agreement thus expands the scope of application of the dispute settlement provisions of the LOS Convention to states that would not be bound by these provisions on the basis of the LOS Convention itself.

80 81

Art. 2, Annex I, id. Arts. 3 and 4, Annex I, id.

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Furthermore, the Agreement has an important legal effect on the scope of the exceptions to the compulsory dispute settlement procedures as contained in the LOS Convention . Under the Convention, the coastal state is exempted from compulsory settlement procedures with regard to any dispute "relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise." This includes the coastal state's discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surplus to other states and the terms and conditions established in its conservation and management laws and regulations." It is understood that this exemption applies to disputes concerning the conservation and management of straddling fish stocks and highly migratory fish stocks while they are within the exclusive economic zone of the coastal state concemed.f The sweeping mutatis mutandis application of the dispute settlement provisions of the LOS Convention to disputes concerning the provisions of the Agreement must include those concerning articles 5, 6 and 7 of the latter. These articles relate to general principles, the precautionary approach and compatibility of conservation and management measures, respectively, and also apply to straddling stocks and highly migratory stocks while they are located within areas under national jurisdiction. The question therefore arises whether the exemption from compulsory dispute settlement procedures, under article 297 of the LOS Convention, also applies to articles 5, 6 and 7 of the Agreement. The answer to this question depends on whether or not the matters covered by these articles are encompassed in the coastal states' "sovereign rights with respect to the living resources in the exclusive economic zone or their exercise." In this connection, it should be noted that the Agreement makes a clear distinction between article 5, on the one hand, and articles 6 and 7, on the other. For the application of the general principles of article 5 to the two types of stocks in areas of national jurisdiction, the Agreement directs the coastal state to do so "in the exercise of its sovereign rights.':" On the

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Art. 297(3)(a), LOS Convention.

83 Division for Ocean Affairs and the Law of the Sea of the UN Office of Legal

Affairs (DOALOS) , The Law of the Sea: The Regime for High-Seas Fisheries - Status and Prospects, United Nations, 1992, p. 12. 84 Art. 3(2), Straddling and Highly Migratory Fish Stocks Agreement.

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other hand, the Agreement makes no such qualification with respect to the application of articles 6 and 7.85 It is to be noted, however, that the application of article 7(1) is "without prejudice to the sovereign rights of coastal States." No such safeguard clause appears in article 6. It thus may be concluded, a contrario , that the application and interpretation of articles 6 and 7(2) are subject to compulsory dispute settlement procedure provided in the LOS Convention, whereas that of article 7(1) is subject to such procedure only insofar as the provision concerned does not fall under the sovereign rights of the coastal state .

THE AGREEMENT AND THE FREEDOM OF HIGH SEAS FISHING As illustrated above, the Straddling and Highly Migratory Fish Stocks Agreement develops and introduces innovations to the international legal regime governing marine fisheries, as reflected in the LOS Convention. Some of these aspects touch the very heart of the traditional concept of the freedom of fishing on the high seas. To what extent does the Agreement affect the freedom of fishing? The freedom of fishing on the high seas, well established in customary international law, is embodied in article 87 of the LOS Convention. This freedom is not absolute. It, according to article 87, is to be exercised "subject to the conditions laid down in section 2" of Part VII on the high seas . Section 2 is entitled "Conservation and management of the living resources of the high seas" and one of its provisions, article 116, entitled "the right to fish on the high seas," provides that all states have the right for their nationals to engage in fishing on the high seas subject to three types of obligations. First, fishing is subject to the obligations arising from existing treaties to which the states concerned are parties." Such treaties, however, must be compatible with the LOS Convention and not affect the rights or obligations of the states parties under the LOS Convention."

85 Art. 3(1), id. 86 87

Art. 116(a), LOS Convention. Art. 311(2), id.

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Second, the freedom of fishing, apart from whaling," is subject to the provisions of articles 117-119 of the LOS Convention." Under these provisions, the states concerned have a series of obligations. These include the obligations, to take, or to cooperate with other states in taking, conservation measures/" to enter into negotiations with other states with a view to taking the necessary conservation measures for identical resources or for different resources in the same area," to cooperate to establish, where appropriate, subregional or regional fisheries organizations." to take measures, based on the best scientific evidence available, aimed at maintaining or restoring harvested species to MSY levels, as qualified by relevant environmental and economic factors," and to contribute and exchange, among other things, scientific data, catch and fishing effort statistics through competent international organizations." Third, the freedom of fishing is subject to "the rights and duties as well as the interests of coastal States, provided for, inter alia, in article 63(2), and articles 64 to 67."95 On the basis of this provision, and a similar provision referring to the "special interests" of coastal states in the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas" (1958 Fishing Convention), coastal states stressed their rights and interests with respect to straddling and highly migratory fish stocks in high seas areas adjacent to the areas in which they exercise juris-

Whaling activities are governed by a special regime, both in exclusive economic zones and on the high seas (arts. 65 and 120, LOS Convention). 89 Art 116(c), id. 90 Art. 117, id. 91 Art. 118, id. 92 [d. 93 Art. 119(1), LOS Convention. 94 Art. 119(2), id. 95 Art. 116(b), id. 96 The Convention on Fishing and Conservation of the Living Resources of the High Seas, 559 VNTS 285. Article 1 formulates the freedom of fishing on the high seas as subject to, inter alia, "the interests and rights of coastal States as provided for in this Convention," and article 6 provides that a "coastal State has a special interest in the maintenance of the productivity ofthe living resources in any area of the high seas adjacent to its territorial sea." 88

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diction. Some coastal states, like Argentina, Chile, Peru," and Canada," have adopted domestic laws extending, or empowering the government to extend, their jurisdiction over certain stocks outside their exclusive economic or fishing zones. On the other hand, DWFNs generally denied the existence of any such rights or special interests by pointing out that proposals by the 0-77 for including an explicit reference to the "special interests" of coastal states were defeated at UNCLOS III, and that all subsequent attempts to propose similar rights or interests beyond exclusive economic zones were either not accepted or had to be abandoned." Some of the DWFNs also argued that it would be very unbalanced and unjust to give coastal states such extra rights after they had acquired approximately 95% of all marine resources, through the establishment of exclusive economic zones. 100

Act No. 23.968 of September 14, 1991 of Argentina; Act 19.079 of August 12, 1991 amending Act 18.892 of 1992 (Fisheries Law) of Chile; Ley General de Pesquerfas, approved by Decree Law 25977 of December 7,1992 of Peru, quoted by Frida Maria Armas Pfirter, "Straddling Stocks and Highly Migratory Stocks in Latin American Practice and Legislation: New Perspectives in Light of Current International Negotiations ," (1995) 26 Ocean Development & International Law, pp. 129-150, pp. 135-137. 98 Canada extended its jurisdiction in 1994 by amending the Coastal Fisheries Protection Act, (1994) 33 lIM 1383, and actually applied the amended law to exercise enforcement action against Spanish fishing vessels in March 1995. See Christopher C. Joyner and Alejandro Alvarez von Gustedt, "The Turbot War of 1995: Lessons for the Law of the Sea," (1996) 11 The International Journal of Marine and Coastal Law, 425 -458, pp. 441-443. 99 A number of coastal states attempted without success to include similar concepts of "special interest" in areas beyond exclusive economic zones in the draft convention on the law of the sea. In 1982, Australia, Canada, Cape Verde, Iceland, Philippines, Sao Tome and Principe, Senegal and Sierra Leone tabled amendments to draft Article 63(2) of the LOS Convention, spelling out the right of the coastal state in the event of failure to reach agreement on conservation measures within a reasonable time to bring the dispute to an appropriate tribunal and empowering such a tribunal to determine the measures to be applied in the adjacent areas of exclusive economic zones, taking into account those measures applied to the same stocks by the coastal state within its exclusive economic zone (Doc. NCONF.62/L.114, April 13, 1982). At the request of the President of the Conference, however, the sponsors of the proposed amendments did not press for a vote. See DOALOS, supra note 83, pp. 23-24. 100 See Hayashi, supra note 16, p. 42. 97

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It may be added that the argument in support of the "special interests" of coastal states on the basis of the 1958 Fishing Convention is legally flawed. This is because such interests in the 1958 Fishing Convention were closely related to the fact that the maritime area in which coastal states exercised jurisdiction for purposes of fishing consisted of a very narrow territorial sea with a normal breadth of three nautical miles and the high seas starting immediately beyond it. 101 It appears totally unjustified both from the point of view of law and that of equity to argue that similar "special interests" exist under the contemporary regime, with exclusive economic zones extending up to 200 nautical miles. With respect to the "duties" mentioned in article 116, it is clear that they include the duties formulated in the specific provisions on straddling and highly migratory stocks. For straddling stocks, coastal states and states fishing on the high seas have the duty to ,"seek ... to agree upon the measures necessary for the conservation of these stccks.?"" For highly migratory stocks, coastal states and states fishing for the stocks have the duty to "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," and, in case no such international organization exists, "to co-operate to establish such an organization and participate in its work."!" The Straddling and Highly Migratory Fish Stocks Agreement first re-confirms these provisions of the LOS Convention,'?' and, as discussed above, then enunciates the basic principle of compatibility of measures established for the high seas and those adopted for areas under national jurisdiction, and elaborates on the specific factors to be taken into account by both parties for that purpose.I'" The Agreement, without specifically defining the "rights" and "interests" of the coastal state, thus considerably clarifies and develops the relevant LOS Convention provisions. This was a wise solution because, given the sharp division of positions on this crucial issue, no

101 See E.D . Brown, The International Law of the Sea, Volume I, Introductory 102 103 104 105

Manual, Dartmouth, 1994, pp. 317-319. Art. 63(2), LOS Convention. Art. 64(1), id. Art. 7(1), Straddling and Highly Migratory Fish Stocks Agreement. Art. 7(2) , id. For the relevant factors see the text at supra note 25 and following.

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agreement on the exact definition of such "rights" and "interests" would have been possible. It was also an important innovation given that the LOS Convention does not refer to the concept of compatibility'f" nor give any guidance on the nature of the relationship between the conservation and management measures adopted for the two zones. It should be added that the Agreement contains a slightly more stringent compatibility requirement for areas of high seas surrounded entirely by an area under the national jurisdiction of a single state, like the Sea of Okhotsk. In such a high seas enclave, states are required to "pay special attention to the establishment of compatible conservation and management measures" having regard to the natural characteristics of the area. Moreover, states also are obliged to agree on measures for monitoring, control, surveillance and enforcement to ensure compliance with such measures in respect of the high seas enclaves . 107 From the point of view of the freedom of fishing on the high seas, the compatibility principle is another element, in addition to those mentioned in article 116 LOS Convention, that limits the freedom of fishing on the high seas. Such a limitation has become inevitable given that the sustainable harvesting of straddling and highly migratory fish stocks is becoming increasingly difficult to attain. Unless new global and regional measures are taken to ensure the conservation and management of these stocks throughout their migratory range, the fisheries concerned will continue to be at risk of being unsustainable. While it affects the freedom of fishing, the compatibility principle also may serve as a deterrent against unilateral

A possible precedent for the "compatibility principle" of the Agreement was the "consistency principle" in the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries. (1989) 1135 UNTS 369. Under article 11 of that Convention, the Fisheries Commission must "seek to ensure consistency" between proposals for the management of straddling stocks in its Regulatory Area beyond 200 miles and management and conservation measures taken by the coastal state in respect of that stock within its 200-mile zone . 107 Art. 16, Straddling and Highly Migratory Fish Stocks Agreement. Specifically on high seas enclaves see Lodge, infra Chapter 8. 106

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attempts by coastal states to extend the application of their domestic law beyond areas of national jurisdiction. 108 The Agreement also affects the freedom of high seas fishing by excluding from fishing those states that are not members of, or do not cooperate with, regional fisheries organizations. This clearly constitutes a further limitation of the freedom of fishing as laid down in the LOS Convention.l'" It is obvious, however, that this provision does not apply to non-parties to the Agreement. Nevertheless, states parties to the Agreement have the duty to take measures to deter the activities of the vessels of states non-parties and which undermine the effective implementation of the Agreement.!" Therefore , states that are not parties to the Agreement in practice may expect to face difficulties unless their vessels abide by the conservation and management measures prevailing in the region concerned.

CONCLUSIONS

This chapter has focused only on several key provisions of the Straddling and Highly Migratory Fish Stocks Agreement. The main aim of the Agreement, including the provisions not referred to in this chapter, is to enhance cooperation among states. Relevant provisions which have not been included in the analyses conducted in this chapter include those related to the functions of regional organizations and arrangements, the rights of new members or participants in such organizations or arrangements, the duties

108

109

110

Indeed, some delegations at the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks openly stated that unless satisfactory agreement was reached, their government would not be able to resist the pressure from their fishermen to extend their jurisdiction over straddling stocks beyond 200 miles. The "Suggested Guidelines" accompanying a study undertaken by the DOALOS with the assistance of a group of experts in 1991 contained a paragraph stating that "[t]he exercise of the right to fish in particular areas of the high seas should not be limited only to States fishing in accordance with the terms of a fisheries conservation and management regime established by them ." DOALOS, supra note 83, p. 40. Art. 33(2) , Straddling and Highly Migratory Fish Stocks Agreement.

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of non-members or non-participants and the special requirements of developing states and cooperation with such states. Taken together, the provisions of the Straddling and Highly Migratory Fish Stocks Agreement, as stated in its article 2, are meant to facilitate the effective implementation of the relevant provisions of the LOS Convention. The Agreement provides a considerable amount of detail, clarification, and additional rules. In some cases it also provides new legal concepts and developments. As Ellen Hey concluded, the Agreement, if widely implemented, would no doubt represent "a big step towards more adequate fisheries management" of straddling fish stocks and highly migratory fish stocks. I I I Furthermore, since these two types of fish stocks are the most important stocks for high seas fisheries in almost all main fishing areas in the world, the Agreement may prove to be a major device through which the fisheries-related provisions of the LOS Convention will be implemented. On the other hand, precisely because it is "far-sighted, far-reaching, bold and revolutionary," as the Chairman of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, Ambassador S. Nandan, characterized the Agreement upon its adoption.l" the implementation process is not likely to be simple and may be expected to be rather prolonged. One of the essential steps toward its implementation, whether or not the Agreement comes into force in the near future, is the enhancement of regional cooperation. As the Agreement itself urges, existing regional organizations or arrangements must be strengthened, and where no such mechanism exists, relevant states must cooperate to establish a regional organization or arrangement. In this regard, as one of the key negotiators of the Agreement rightly predicted ,"! the Agreement has already influenced the work of FAO and some regional fishery bodies . In fact, encouraging signs of strong support for the objectives and spirit of the Agreement are emerging in a number of quarters.

Ellen Hey, "Global Fisheries Regulations in the First Half of the 1990s," (1996) 11 The International Journal ofMarine and Coastal Law, pp. 459-490, p. 481. 112 UN document NCONF.I64/35, September 20, 1995, p. 1. 113 David Anderson , ''The Straddling Stocks Agreement of 1995 - An Initial Assessment," (1996) 45/nternational & Comparative Law Quarterly, p. 463-475 , p.475. III

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The need for strengthening regional fisheries organizations was one of the major agenda items of the 1997 con-meeting. The Committee "strongly endorsed the need for effective regional fishery organizations and arrangements," particularly in the framework of the Code of Conduct for Responsible Fisheries.!" The FAO Secretariat has been making systematic efforts to bring this message to the various fishery bodies created under its Constitution, including the General Fisheries Council (now Commission) for the Mediterranean (GFCM). The GFCM, at its recent meeting, adopted drastic amendments to its constituting agreement with the aim of making itself financially independent from FAO and upgrading the level of its activities, taking into account the recently-adopted international instruments, including the Straddling and Highly Migratory Fish Stocks Agreement.!" In the western and central Pacific, a number of South Pacific countries and several DWFNs fishing for highly migratory fish stocks, soon after the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks had completed its task, started consultations on the conservation and management of those stocks. In June 1997, at the second high-level conference, they declared their commitment to "establish a mechanism" for the conservation and management of such stocks in accordance with the LOS Convention and the Agreement and decided to establish such a mechanism within three years.!" These are important initiatives in support of the Agreement. It is hoped that these and other regional and global efforts will lead to wide acceptance of the Agreement by states and the European Community"? in order to enable it to enter into force before the current alarming trends in fisheries become irreversible.

Report of the 22nd Session of the Committee on Fisheries, Rome, March 17-20, 1997, FAO document CLl1217 , para. 30. According to article 3.1(a) of the Code, it is to be interpreted and implemented in a manner consistent with the provisions of the Agreement. 115 Report of the 23rd Session of the General Fisheries Council for the Mediterranean , Rome, October 13-16, 1997, FAO, 1997 [in press]. 116 See Majuro Declaration, adopted on June 13, 1997, para.L, annexed to the Report of the Second Multilateral High-Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific , Majuro, Marshall Islands, June 10-13, 1997. 117 Specifically on the role of the European Community in fisheries see Churchill, infra Chapter 17. 114

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5 THE CODE OF CONDUCT FOR RESPONSmLE FISHERIES Gerald Moore)

INTRODUCTION

On October 31st, 1995, the Twenty-eighth Session of the FAO Conference adopted by consensus the Code of Conduct for Responsible Fisheries' (Code of Conduct or Code) with the aim of providing an internationally agreed framework for national and international efforts to ensure sustainable exploitation of aquatic living resources in harmony with the environment. The Code represents the most complete and up-to-date expression of the principles of sustainable fisheries management and development and is likely to have a substantial impact on fisheries management at both national and international levels. The present chapter reviews the origins of the Code, its structure and its legal nature . It also examines its relationship with the new FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas' (Compliance Agreement), on the one hand, and the 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

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3

The views expressed in this chapter are personal to the author and do not necessarily reflect the official views of FAO. Code of Conduct for Responsible Fisheries, FAO, Rome, 1995. (1994) 33 lIM 968. Specifically on the Compliance Agreement see Balton, supra Chapter 3.

E. Hey, (ed.), Developments in International Fisheries Law, p. 85-105. © 1999KluwerLaw International. Printed in The Netherlands.

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of Straddling Fish Stocks and Highly Migratory Fish Stocks" (Straddling and Highly Migratory Fish Stocks Agreement), on the other hand . It then describes some of the more striking aspects of the Code and the ways in which it may influence future fisheries management.

THE ORIGINS OF THE CODE

Concern has been expressed for some time regarding the long -term sustainability of fisheries, given the over-exploitation of most major fish stocks and the increasing damage caused to ecosystems through pollution and coastal zone degradation, at a time when the contribution of fisheries to world food security is critical. At the present time, many of the world's major conventional fisheries are heavily fished or over-exploited and the volume of fish that is harvested from the wild in the world's oceans seems to be very close to the sustainable Iimit," The world 's marine fish catch declined from a high of over 72 million Mt. in 1989 to less than 68 million Mt. in 1991. More recently, world fish supplies have expanded. However, this increase is due mainly to the rapid growth in aquaculture production as well as recent peaks in production from highly fluctuating harvestable stocks of pelagic species off the West Coast of South America", which themselves present formidable problems from the fisheries management point of view. It was these considerations that led the FAD Committee on Fisheries (COA) at its Nineteenth Session in March 1991, to recommend that FAD develop the concept of responsible fisheries and elaborate a code of conduct to this effect. The process was taken a significant step forward at the International Conference on Responsible Fishing organized by the Mexican Government in collaboration with FAD in Canciin in May 1992. The Declaration of Canciin7 announced that the concept of responsible fishing should encompass

4

5 6

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(1995) 34 ILM 1542. Specifically on the Straddling and Highly Migratory Fish Stocks Agreement see Hayashi, supra Chapter 4. Major Issues in World Fisheries, 1997, FAO COFI, Doc. cOFJl97/2, para. 7. The State of Food and Agriculture, 1997, FAO Conference, Doc . C 97/2. Annex 2 to the Papers presented at the Technical Consultation on High Seas Fishing, FAO Fisheries Report No. 848, Supp!., FAO, Rome, 1992, p. 70.

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the sustainable utilization of fisheries resources in harmony with the environment; the use of capture and aquaculture practices which are not harmful to ecosystems, resourcesor their quality; the incorporation of added value to such products through transformation processes meeting the required sanitary standards; (and) the conduct of commercial practices so as to provide consumers access to good quality products. Both the Canciin Conference and the FAO Technical Consultation on High Seas Fishing held in Rome, in September 1992, supported the proposal for FAO to prepare a code of conduct on responsible fisheries. These recommendations were funneled to the FAO Council at its Hundred and Second Session in November 1992. It confirmed the mandate and recommended that priority be given to high seas issues and in particular to the formulation of an international agreement to deter reflagging of fishing vessels as a means of avoiding international conservation and management measures." While in 1993 COFI examined a first draft of general principles for the Code and endorsed a program for its further elaboration, the main activity for that year centered on the negotiation of the Compliance Agreement." Indeed, the eagerness of a number of developed countries to conclude the negotiation of the Compliance Agreement "on the fast track" prompted a number of developing countries, particularly those from Latin America, to insist that the Compliance Agreement should constitute an integral part of the Code of Conduct and that the developed countries should also commit themselves to an early start on the negotiations for the Code. The Compliance Agreement was finally adopted by the FAO Conference at its Twentyseventh Session in November 1993, and, at the same session, the FAO Conference committed itself to preparing the General Principles of the Code of Conduct, also on the "fast track," in order to orient the formulation of the thematic articles. The negotiation of the entire Code of Conduct was carried out during the period 1994-95. In February 1994, a secretariat proposal for the General

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9

Report of the Hundred and Second Session of the FAD Council, Doc. CL 102/REP, FAD, Rome, 1992, paras. 57-59. For an account of the negotiations leading to the adoption of the Compliance Agreement,see Gerald Moore, "The Food and AgricultureOrganizationof the United Nations Compliance Agreement," (1995) 10 The International Journal of Marine and Coastal Law, pp. 412-425 .

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Principles was reviewed by an informal Working Group of Governmentnominated Experts. Informal consultations with non-governmental organizations were held in New York in August 1994, during the fourth session of the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, and the full text of the draft Code was reviewed at a Technical Consultation held in Rome in September 1994. At this time, the practical difficulty arose of how to ensure consistency between the Code of Conduct and the ongoing negotiations on the Straddling and Highly Migratory Fish Stocks Agreement in New York, given the substantial area of overlap between the two negotiations. As a modus operandi, it was agreed that the final wording of the provisions of the Code dealing with high seas issues should be left in abeyance pending the outcome of the negotiations in New York. A revised draft of the Code, taking into account the work of the Technical Consultation and other comments received, was then considered by an Open-ended Working Group established by the CGFI at its Twenty-first session in March 1995 and again by an Open-ended Technical Committee established by the Hundred and Eighth Session of the FAG Council in June 1995. A second Session of the Technical Committee was held in September 1995 to harmonize the provisions of the Code on high seas issues with those of the Straddling and Highly Migratory Fish Stocks Agreement adopted by the UN Conference in August 1995. The completed text of the Code of Conduct was endorsed by the FAG Council at its Hundred and Ninth Session in October 1995 and adopted by the FAG Conference on October 31, 1995. In its resolution adopting the Code," the Conference called on states, international organizations and all those involved in fisheries to collaborate in the fulfillment and implementation of the objectives and principles contained in the Code, requested FAG to make provision for advice to developing countries in implementing the Code, called for the elaboration of technical guidelines to support the implementation of the Code and called on FAG to monitor and report on the implementation of the Code and its effects on fisheries .

10 FAG Conference Resolution 4/95 .

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THE STRUCTURE OF THE CODE

The Code of Conduct consists of an introduction and twelve articles. The first three articles deal with the nature and scope of the Code, its objectives and its relationship with other international instruments. The fourth article deals with implementation, monitoring and updating and the fifth with the special requirements of developing countries. The sixth article is the core of the Code and sets out a series of nineteen general principles, from which the rest of the Code is derived. The remaining six thematic articles deal with the implementation of the general principles in the area of fisheries management, fishing operations, aquaculture development, integration of fisheries into coastal area management, post-harvest practices and trade and fisheries research . Early on in its development, it was envisaged that the Code would be supplemented by a series of technical guidelines that would spell out in more detail the general concepts dealt with in the Code. A number of such technical guidelines have now been developed. I I The guidelines, however, are not referred to in the Code itself, although FAa was specifically requested to prepare them in the Conference Resolution adopting the Code." They thus have no formal legal status, but are technical documents developed by the secretariat under its own responsibility, without being subject to intergovernmental scrutiny and approval.

THE LEGAL NATURE OF THE CODE

The Code is voluntary and does not, in itself, establish any legal rights or obligations. In this sense, the Code has the same legal status as other non-

Five sets of Technical Guidelines for Responsible Fisheries have been published covering respectively, Fishing Operations, FAO Technical Guidelines for Responsible Fisheries, No.1, FAD, Rome 1996; Precautionary Approach to Capture Fisheries and Species Introductions, FAD Technical Guidelines for Responsible Fisheries, No.2, FAD, Rome, 1996; Integration of Fisheries into Coastal Area Management, FAa Technical Guidelines for Responsible Fisheries, No.3, FAD, Rome, 1996; Fisheries Management, FAD Technical Guidelines for Responsible Fisheries, No.4, FAD, Rome, 1997; and Aquaculture Development, FAD Technical Guidelines for Responsible Fisheries, No.5, FAD, Rome, 1997. 12 Operative para. 5, FAD Conference Resolution 4/95.

11

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legally binding instruments developed within the framework OfFAO. Indeed FAO has a long tradition of developing technical non-legally binding instruments, such as the 1985 FAO Code of Conduct on the Distribution and Use of Pesticides 13, the 1983 International Undertaking on Plant Genetic Resources" and the related Code of Conduct on Plant Germplasm Collecting and Transfer adopted by the FAO Conference in 1993. 15 However, certain of its provisions are based on relevant rules of international law as reflected in the United Nations Convention on the Law of the Sea" (LOS Convention), which are legally binding in their own right." The Code also expressly provides for the possibility of parts of it being given binding legal effect by means of other agreements between the parties. IS This, in effect, is the case of the Compliance Agreement, which, as a result of the political compromise referred to above, is stated as constituting an integral part of the Code, despite the apparent incongruity of a binding legal agreement forming part of an otherwise non-binding instrument. 19 Indeed one of the

13 14

15 16

17 18

19

Adopted by the FAG Conference at its Twenty-third Session, November 1985, FAG Conference Resolution 10/85. Adopted by the FAG Conference at its Twenty-second Session, November 1983, FAG Conference Resolution 8/83. Adopted by the FAG Conference at its Twenty-seventh Session, November 1993, FAG Conference Resolution 6/89. (1982) 21 IlM 1261. Para 1.1 of the Code makes specific reference to this fact. See art. 1.1 of the Code which provides as follows: "The Code also contains provisions that may be or have already been given binding effect by means of other obligatory legal instruments amongst the Parties, such as the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, 1993, which, according to FAG Conference Resolution 15/93, forms an integral part of the Code." The concept of parts of a voluntary instrument being given legally binding effect by separate agreements amongst the Parties thereto is by no means new or surprising. For example, the Prior Informed Consent procedures established in the FAG International Code of Conduct on the Distribution and Use of Pesticides and the UNEP amended London Guidelines for the Exchange of Information on Chemicals in International Trade (London Guidelines for the Exchange of Information on Chemicals in International Trade, amended 1989, Decision of the UNEP Governing Council, May 25, 1989, UNEP, Nairobi, November 1990) are now being given full legal effect through the negotiation of a International Legally-binding Instrument for the Application of the Prior In-

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main purposes of the Code is to present a series of principles on responsible fisheries that can be drawn upon in the formulation of national legislation as well as binding international agreements and less formal arrangements."

THE RELATIONSHIP BETWEEN THE CODE OF CONDUCT, THE COMPLIANCE AGREEMENT AND THE STRADDLING AND HIGHLY MIGRATORY FISH STOCKS AGREEMENT

The Straddling and Highly Migratory Fish Stocks Agreement, the Code of Conduct and the Compliance Agreement were negotiated contemporaneously and covered overlapping ground. Many of the delegates actually participating in the negotiations were also the same. There are thus a number of common concepts and indeed provisions between the three instruments; as noted above, the Compliance Agreement constitutes an integral part of the Code. In a sense, then, they can be viewed as a package of measures that reinforce

formed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, under the joint auspices of FAD and UNEP (For a progress report on the negotiations, see FAD Docs. C 97/6; C 97/6-Suppl. 1; C 97/6-Suppl. 2; and Report of the Twenty-ninth Session of the FAD Conference, November 1997, paras. 64-69). The FAD International Undertaking on Plant Genetic Resources is also under renegot iation, with the distinct possibility that the final instrument will be given legally binding effect. 20 The objectives of the Code, as set out in article 2, include : to serve as an instrument of reference to help states to establish or to improve the legal and institutional framework required for the exercise of responsible fisheries and in the formulation and implementation of appropriate measures and to provide guidance which may be used where appropriate in the formulat ion and implementation of international agreements and other legal instruments, both binding and voluntary (art. 2 (c) and (dj) . During a recent session of the General Fisheries Council (now Commission) for the Mediterranean (GFCM) in October 1997, a proposal was made to make reference in amendments to the Agreement establishing the GFCM to the precautionary approach as defined in the Code of Conduct on Responsible Fisheries, which would have had the effect of giving legal effect to those provisions of the Code dealing with the precautionary approach as between the Contracting Parties to the GFCM Agreement. In the event, however, the reference to the Code was not accepted by the GFCM, although the concept of the precautionary approach was included in the amendments .

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and complement each other, although the Code is much broader than the other instruments in its scope. The Straddling and Highly Migratory Fish Stocks Agreement, on the one hand, deals with the specific problem of straddling fish stocks and highly migratory fish stocks, but in so dealing sets out concepts, general obligations and guidelines for responsible, environmentally friendly fisheries management on the high seas from the point of view of those stocks, including, for example, standard requirements for the collection and sharing of data, general requirements regarding the use of the precautionary approach in fisheries management, the importance of using an ecological approach in fisheries management, general obligations concerning flag state responsibility and broad provisions regarding the functions and powers of regional fisheries bodies. The Compliance Agreement, while covering overlapping ground with the Straddling and Highly Migratory Fish Stocks Agreement, particularly where the concept of flag state responsibility is concerned, envisages an added dynamic dimension by providing for the establishment of a data base of fishing vessels authorized to fish on the high seas. The Code of Conduct, on the other hand, takes those gener~ c.(oncepts and provides guidelines and supporting measures for their proper inwlementation, not only by states but by all actors in fisheries. The Straddling and Highly Migratory Fish Stocks Agreement itself gives explicit recognition to this role in Article 10 when it provides, in connection with regional fisheries management bodies, that states shall adopt and apply generally recommended international minimum standards for responsible conduct of fishing operations. Indeed, it is arguable that while the Code itself is voluntary in nature and does not create legally binding obligations, its provisions with respect to fishing operations are given binding force by this provision. Given that the three instruments were negotiated contemporaneously, the process of negotiation of each instrument has had its impact on the other instruments and the content of each has broadly been kept in line with that of the others. In the relationship between the Code and the Straddling and Highly Migratory Fish Stocks Agreement, the preponderant influence has been of the Agreement on the Code. However, the FAO Secretariat made a strong technical input to the discussions on fisheries management in the UN Conference on Straddling and Highly Migratory Fish Stocks , including in particular on the application of the precautionary approach in fisheries management, the use of reference points for fisheries management and the collection and sharing of data, which had a substantial influence on the provisions of the Straddling and Highly Migratory Fish Stocks Agreement

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on this matter." As noted above, the Code itself eventually decided to defer to the Straddling and Highly Migratory Fish Stocks Agreement on the provisions dealing with high seas fishing, although at the outset these provisions were developed in parallel. 22 The Code itself reflects this deference by providing specifically that the Code is to be interpreted and applied in a manner consistent with the relevant provisions of the Straddling and Highly Migratory Fish Stocks Agreement." The provisions on flag state responsibility negotiated in the Compliance Agreement formed the basis for the further negotiations in the Straddling and Highly Migratory Fish Stocks Agreement and still form the core of the treatment of flag state responsibility in that Agreement. While it is tempting to dwell on the similarities and interactions between the three instruments , it must also be recognized that the scope of each of the three instruments is in fact quite different. The Straddling and Highly Migratory Fish Stocks Agreement is restricted to the treatment of straddling fish stocks and highly migratory fish stocks, while the FAD Compliance Agreement deals with all fishing on the high seas and the Code of Conduct deals with all fishing activities both on the high seas and in waters under national jurisdiction as well as aquaculture, coastal zone management, fish processing and trade and research .

See S.M. Garcia, The Precautionary Approach to Fisheries with reference to Straddling Fish Stocks and Highly Migratory Fish Stocks, FAa Fisheries Circular, No. 871, Rome, FAa, 1994. 22 Perhaps one of the unforeseen consequences of this approach was to restrict . the wording of the pertinent provisions in the Code to states , rather than the wider coverage of all actors concerned with fisheries, including pressure groups and fishers themselves, originally envisaged throughout the Code . 23 Art. 3.2(a), Code of Conduct. The article includes a long list of instruments that are to guide its interpretation and application in descending order of importance and binding nature . The first is of course the LOS Convention; the Code is to be interpreted and applied in conformity with the Convention. Second comes the Straddling and Highly Migratory Fish Stocks Agreement. Last come the various non-binding declarations and other instruments such as the Declaration of Cancun and the Rio Declaration on Environment and Development and in particular Chapter 17 of Agenda 21. The Code is to be interpreted and applied in the light ofthese declarations. On this point see W.R. Edeson, "The Code of Conduct for Responsible Fisheries: An Introduction, (1996) 11 The International Journal of Marine and Coastal Law, pp. 233-238. 21

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THE SIGNIFICANCE OF THE CODE OF CONDUCT There have been a number of wide-ranging, non-binding international instruments dealing with fisheries management and development over the last two decades. Foremost amongst these have been the Strategy and Programmes of Action adopted by the FAO World Conference on Fisheries Management and Development in 198424, Chapter 17 of Agenda 21 of the United Nations Conference on Environment and Development (UNCED),25 the Declaration of Cancun and the Rome Consensus on World Fisheries adopted by the Ministerial Conference meeting held in conjunction with the 1995 COFI meeting." What then makes the present Code of Conduct so significant? The answer lies in three aspects of the Code. The first aspect is the all-encompassing scope of the Code, a scope that is readily apparent from the titles of the various articles of the Code." While other instruments have dealt with many aspects of fisheries, this is the first time that a systematic approach has been adopted to cover all dimensions of fisheries management and development, including aquaculture, fish processing and trade. As developed by the technical guidelines, the Code provides a veritable bible for fisheries . The all-encompassing scope is paralleled by the wide spectrum of actors at which the Code is aimed, including not only states and fisheries managers at the national and regional levels, but also non-governmental organizations, fisherfolk, fishing industries, fish processors, fish marketers, and indeed all actors , whether public or

Report ofthe FAO World Conference on Fisheries and Management , FAO, Rome, 1984. 25 Chapter 17 was reproduced in (1992) 22 Environmental Policy and Law, p. 281. 26 The Rome Consensus on World Fisheries, adopted by the FAO Ministerial Conference on Fisheries, Rome , March 14-15, 1995. 27 Nature and Scope of the Code; Objectives of the Code; Relationship with other International Instruments; Implementation, Monitoring and Updating; Special Requirements of Developing Countries; General Principles; Fisheries Management ; Fishing Operations; Aquaculture Development; Integration of Fisheries into Coastal Area Management; Post-harvest Practices and Trade ; and Fisheries Research. 24

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private, concerned with the conservation, management and utilization of fisheries resources and trade in fish and fishery products. The second aspect is the Code's stress on the precautionary approach and the introduction into the Code of new, more sophisticated, technical understanding of the complex nature of fisheries and methods of dealing with the uncertainties inherent in fisheries management. While the seeds of the precautionary approach can be seen as far back as the Strategy for Fisheries Management and Development adopted by the FAa World Conference on Fisheries Management and Development in 198428, it was not until the adoption of Agenda 21, at UNCED, that the concept was clearly enunelated" and not until the Straddling and Highly Migratory Fish Stocks Agreement and the Code of Conduct that the full extent of the precautionary approach in fisheries conservation and management has been spelled out. The Code of Conduct provisions on ,the precautionary approach will be covered in more detail in the next section of this chapter. The third aspect is the dynamic nature of the Code, the fact that progress in implementing the Code will be monitored through periodic reports to COFI as well as through discussions in the various regional fisheries management bodies and that the Code will be revised and updated as necessary in light of those reports and discussions.

Para. 8(v) of the Strategy, for example, provides that " ... To this end , countries should introduce appropriate conservation and management measures based on scientific evidence. Where there is little information on the resources and potential yields, expansion or investment should be undertaken judiciously." Similarly, para . 14(iv) provides that "As management of fisheries is an integral part of the development process, there is a need to introduce effective management mechanisms at all stages and particularly at the beginning of fisheries development rather than wait until the effects of over-fishing have begun to be felt" (Report of the FAO World Conference on Fisheries Management and Development, FAO, Rome, 1984). 29 Principle 15 of the 1992 Rio Declaration adopted at UNCED (reproduced in (1992) 22 Environmental Policy and Law, p. 268) describes the precautionary principle in the following terms : "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." 28

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SOME SALIENT PROVISIONS OF THE CODE AND ITS POTENTIAL IMPACT ON FISHERIES MANAGEMENT

It is perhaps difficult to do justice to the many innovative provisions of the Code of Conduct beyond noting that the Code, even if it inevitably fell below the highest aspirations of some of its initial proponents, still remains the best, most complete and innovative statement of principles of responsible fisheries and fisheries management. Of particular significance are the provisions of the Code dealing with fisheries management. Here specific mention must be made of the central role accorded in the Code to the precautionary approach in fisheries conservation and management." In a sense, the precautionary approach, whose central theme is that scientific uncertainty should not be used as an excuse for failing to take conservation and management measures, seems tailor-made for fisheries, where the knowledge of resource abundance and productivity and the impact of fishing effort and natural phenomena is by its very nature approximate. The approach is described in general terms in Article 7.5.1 of the Code: States should apply the precautionary approach widely to conservation, management and exploitation of living aquatic resources in order to protect them and preserve the aquaticenvironment. The absenceof adequate scientific information should not be used as a reason for postponing or failing to take conservation and management measures. The Technical Guidelines, which elaborate the precautionary approach, describe the philosophy underlying the precautionary approach in the context of fisheries management in the following terms: Management according to the precautionary approach exercises prudent foresightto avoidunacceptable or undesirable situations, takinginto account that changes in fisheries systems are only slowly reversible, difficult to

30

On the precautionary principle generally, see David Freestone and Ellen Hey (eds.), The Precautionary Principle and International Law, The Challenge of Implementation, Kluwer Law International, 1996 and Freestone, infra Chapter 11.

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control , not well understood, and subject to change in the environment and human values."

Translated into practical terms, the Code provides that states and management organizations should set target reference points and stock-specific limit reference points and determine in advance the measures that should be taken if such reference points are exceeded or, in the case of limit reference points, approached. Target reference points indicate the desired outcomes for the fisheries, and may themselves be set at precautionary levels, such as a target fishing mortality of less than Maximum Sustainable Yield (MSY). Limit reference points represent a new concept designed to respond to the uncertainties inherent in our knowledge of the true state of fish stocks. They indicate undesirable outcomes that are to be avoided, such as the decline of spawning stock biomass beneath a specified critical level that would affect recruitment, rather than the target levels at which actual production should be aimed . They reflect the fact that the complex nature of fisheries , the myriad of fluctuating ecological influences of stocks and consequently our imperfect, approximate knowledge of the actual state of fish stocks makes it almost impossible to ensure that target levels are not exceeded. Reference limits are thus an important new and additional tool for precautionary fisheries management. The recognition of this new concept in both the Straddling and Highly Migratory Fish Stocks Agreement and the Code of Conduct also represents the first concrete scientific response in international instruments to deal with the impact of statistical uncertainties with respect~o the state of fish resources. In each case , the precautionary approach would call for the monitoring of the fisheries in respect of these prior determined reference points, and contingency plans for the introduction of prior determined, prenegotiated measures, such as measures to reduce effort , once those targets are reached or approached. Central to the precautionary approach, although expressed in a separate paragraph in the Code, is the stress on the importance of policies that are designed to ensure sustain ability of fisheries over the long term, rather than responding only to short-term considerations, as well as the notion that excess fishing capacity should be prevented or eliminated and fishing effort maintained at levels that are commensurate with the sus-

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Para. 19, Precautionary Approach to Capture Fisheries and Species Introductions, supra note 11.

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tainable use of the fishery resources . Excess fishing capacity will always lead to the undermining of conservation and management measures. This is critical for all fisheries, including new or exploratory fisheries , for which states should adopt cautious conservation and management measures, including, inter alia, catch and effort limits. In the cases where natural phenomena, such as EI Nino, have a significant adverse impact on stocks, states should adopt emergency measures to ensure that fishing activity does not aggravate the situation . The articulation of the precautionary approach in the Code and in the Straddling and Highly Migratory Fish Stocks Agreement is new, even if the underlying principles have always been present in the philosophy of fisheries conservation and management. The Code, however, also includes provisions that seem self-evident and fundamental, but which until recently have not found their way into international instruments on fisheries and have not in fact have not in fact been accepted in a number of fisheries administrations. One such concept is that set out in paragraph 7.6.2 to the effect that States should adopt measures to ensure that no vessel is allowed to fish unless so authorized , in a manner consistent with international law for the high seas or in conformity with national legislation within areas of national jurisdiction.

Similar provisions are set out in the Straddling and Highly Migratory Fish Stocks Agreement" and the Compliance Agreement." The same concept is carried through to the paragraphs dealing with implementation of fisheries management measures, where states are called on to ensure that violations of conservation and management measures are subject to effective sanctions "including sanctions which allow for the refusal, withdrawal or suspension of authorizations to fish." Like both the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement, the Code of Conduct devotes a number of provisions to the concept of flag state responsibility, giving prominence in this case to responsibilities connected with vessel and gear marking, compliance with safety requirements, insurance coverage and

32 Art. 18, Straddling and Highly Migratory Fish Stocks Agreement. 33 Art. m(2), Compliance Agreement.

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care and repatriation of crew members, in addition to the requirements connected with authorizations to fish and compliance control measures. Perhaps one provision that is particularly interesting is the requirement in the article on fisheries management that states should encourage banks and financial institutions not to require, as a condition of a loan or mortgage, that fishing vessels or fishing support vessels be reflagged to a jurisdiction other than that of the state of beneficial ownership where such requirement would increase the likelihood of non-compliance with international conservation and management measures . It remains to be seen whether such measures, aimed at a critical link in the chain of fisheries operations, can in fact be more effective than other more strictly legal measures adopted to date. In the provisions of the Code dealing with fishing operations, particular stress is laid on fishing gear selectivity, in order to minimize wastes, discards, bycatch of non-target species and undesirable impacts on associated or dependent species and the need for research into fishing gear selectivity, methods and strategies. States should also develop and apply technologies, materials and operational methods that minimize the loss of fishing gear and the ghost-fishing effects of lost or abandoned fishing gear. In an application of the precautionary approach, states should ensure that the impacts of new fishing gear, methods and operations introduced on a commercial scale are properly evaluated prior to their introduction. The Code also includes provisions to promote energy optimization and to ensure the protection of the aquatic environment from pollution, drawing heavily on the 1973/78 International Convention for the Prevention of Pollution from Ships," as well as to ensure the protection of the atmosphere, inter alia through the phasing out of chlorofluorocarbons (CFCS) and hydrochlorofluorocarbons (HCFCS) in the refrigeration systems of fishing vessels. The provisions of the Code on responsible aquaculture represent a new departure in international instruments dealing with fisheries. In this context, the Code focuses on the need to evaluate and avoid potential adverse impacts of aquaculture on both genetic diversity, through the release of exotic species into the natural aquatic environment, and impacts on ecosystem integrity, primarily through the release of pollutants and the transmission of diseases. But the Code also urges countries to take into account the potential economic

34

(1973) 12 lIM 1319.

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and social impacts of aquaculture operations on the livelihoods of local communities and to promote responsible aquaculture practices in support of both rural communities and producer organizations as well as the fish farmers themselves. Of particular interest in this section of the Code are the provisions relating to international cooperation within transboundary aquatic systems, drawing on principles of prior consultation and good neighborliness from international water and environment law." Coastal area management, or rather the lack thereof, has always been of critical significance for fisheries and in particular small-scale fisheries, dependent as they are on areas such as mangroves which provide spawning and nursery grounds for inshore fisheries. Coastal area development also tends to give little weight to traditional fisheries interests, including the need to preserve landing areas, areas for the deployment of traditional gear, such as beach seines, and the need to protect traditional shellfisheries, when faced with the thrust of economic development including, in particular, the development of tourism and beach-front hotels. The provisions of the Code on the integration of fisheries into coastal area management deal with this problem by calling for the development of an appropriate policy, legal and institutional framework for integrated coastal area management which takes into account the fragility of coastal ecosystems and the finite nature of their natural resources as well the needs of coastal communities." Representatives of the fisheries sector and fishing communities should be consulted in coastal area management planning and development and involved in the decision-making process. In particular, the rights of coastal fishing communities and their customary practices should be taken into account in developing frameworks to determine possible uses of coastal resources and to govern access to those resources, to the extent compatible with sustainable development. The Code also calls on states to promote the establishment of procedures to settle conflicts both within the fisheries sector and between

Art. 9.2.2 , Code of Conduct, requires that "States should, with due respect to their neighboring States and in accordance with intemationallaw, ensure responsible choice of species, siting and management of aquaculture activities which could affect transboundary aquatic ecosystems." Similarly, art. 9.2.3 requires that "States should consult with their neighbouring States, as appropriate, before introducing non-indigenous species into transboundary aquatic ecosystems." 36 Art. 10.1.1, Code of Conduct. 35

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fisheries resource users and other users of the coastal area." Similar provisions to those on aquaculture are set out in the Code for trans boundary consultation and cooperation with neighboring states in respect of coastal area management and conservation." The provisions of the Code relating to post-harvest practices stress the food safety and quality aspects, the protection of consumers and the need to avoid waste and to improve the use of bycatch, as well as the environmental protection dimensions. The need for harmonization of standards is also emphasized with particular regard to the role of the FAOIwHO Codex Alimentarius Commission." The Code's provisions on international trade in fish and fish products are, as may be expected, heavily reflective of and deferential to the role of the World Trade Organization and the Agreements established as a result of the Uruguay Round of Trade Negotiations." The Code's paragraphs in this part are thus replete with references to transparency, avoidance of trade distortion and discrimination and hidden trade barriers . Of particular interest are the provisions against conditioning access to markets on access to resources, the requirement that states should cooperate in complying with relevant international agreements regulating trade in endangered species, and the call for the simplification of laws, regulations and administrative procedures applicable to trade in fish and fish products." The final chapter of the Code deals with fisheries research, a crossdimensional topic reflecting the needs outlined in the other substantive parts of the Code, including in particular fisheries management, data collection and assessment, stock assessment and gear selectivity as well as economic,

37

Art. 10.1.5, Code of Conduct.

38 Art. 10.3, Code of Conduct. 39 On the role and activities of the Codex Alimentarius Commission see J. P.

Dobbert, "Food and Agriculture," in Oscar Schachter and Christopher Joyner (eds.), United Nations Legal Order, Grotius Publications, Cambridge University Press, Vol. II, 1995, pp. 907-992 at pp. 945-955. 40 The 1994 Marrakesh Agreement Establishing the World Trade Organization and the related agreements such as the Agreement on the Application of Sanitary and Phytosanitary Measures (the so-called SPS Agreement) «1994) 33llM 1125). Art. 11.2.1 of the Code specifically requires that the provisions of the Code should be interpreted and applied in accordance with the principles, rights and obligations established in the World Trade Organization Agreement. 41 Arts. 11.2.7; 11.2.9; and 11.3.3, Code of Conduct.

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social, marketing and institutional aspects of fisheries . Of particular interest in this part is the requirement that States should investigate and document traditional fisheries knowledge and technologies, in particular those applied to small-scale fisheries, in order to assess their application to sustainable fisheries conservation, management and developmentf

and the calls for the adoption of uniform guidelines governing fisheries research conducted on the high seas."

THE IMPLEMENTATION OF THE CODE OF CONDUCT In adopting the Code of Conduct for Responsible Fisheries in 1995, the FAO Conference called on states, international organizations, whether governmental or non-governmental, and all those involved in fisheries to collaborate in the fulfillment and implementation of the objectives and principles contained in the Code. 44 It called in particular for FAO, in collaboration with Members and interested organizations, to elaborate technical guidelines in support of the implementation of the Code. The progress achieved to date by the Organization in developing such guidelines has already been noted." The Conference Resolution also called on FAO to make provision in its Programme of Work and Budget for providing advice to developing countries in implementing the Code and for the elaboration of an Interregional Assistance Programme for external assistance aimed at supporting implementation of the Code. 46 Technical assistance missions have already been mounted to a number of countries and groups of countries for this purpose, and an Interregional Programme of Assistance to Developing Countries for the Implementation of the Code of Conduct has already been drawn up and

Art. 12.12, Code of Conduct. Art. 12.15, Code of Conduct. This is one area that might lend itself eventually to separate treatment in the context of a binding international instrument. 44 Operative para. 2, FAD Conference Resolution 4/95. 45 See the text at supra note 11 and for a list of the Guidelines already published, see supra note 11. 46 Operative para. 4, FAD Conference Resolution 4/95 . 42

43

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financial support obtained from the Government of Norway for two of its sub-programs." FAO Conference Resolution 4/95 further calls on FAO to monitor and report on the implementation of the Code and its effects on fisheries, including action taken under other instruments and resolutions by UN organizations. Two such reports have been submitted to the UN General Assembly since the adoption of the Code. The monitoring process is also underway, with discussions of the implementation of the Code taking place in all the FAO regional fisheries management bodies ; a comprehensive questionnaire on national implementation of the Code will be sent out to countries and regional fisheries management organizations in the near future. The responses to the questionnaire will form the basis for the discussions on the Code at the next session of the FAO Committee on Fisheries (COFI) scheduled for February 1999. Indeed, while the subject will also be discussed in the UN General Assembly and the Economic and Social Council (ECOSOC) on the basis of FAO'S periodic implementation reports, the focus of implementation monitoring and corrective revisions to the Code will remain with COFI and the FAO Conference. In its final operative paragraph", the FAO Conference Resolution also calls for the strengthening of regional fisheries bodies in order to deal more effectively with fisheries conservation and management issues, a call reflecting similar provisions in the Straddling and Highly Migratory Fish Stocks Agreement." Action to review the structure and functions of the various FAO regional fisheries management bodies" has already been initiated and

Those dealing with the provision of Policy Advice and Assistance on Monitoring, Control and Surveillance. 48 Operative para. 7, FAD Conference Resolution 4/95 . 49 In particular, article 13 of the Straddling and Highly Migratory Fish Stocks Agreement. 50 These include the General Fisheries Council (now Commission) for the Mediterranean (GFCM), established in 1949, the Asia-Pacific Fishery Commission (APFlC) established as the Indo-Pacific Fishery Commission in 1948, and the Indian Ocean Tuna Commission established in 1996 and operational in 1997. All of the above bodies were established under separate legal agreements adopted under article XIV of the FAD Constitution. Other regional fisheries management bodies have been established under article VI of the FAD Constitution by resolution of the FAD Councilor act of the Director-General on 47

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is on the agenda of the various regional bodies as well as that of COFI. Wideranging amendments to strengthen the General Fisheries Council (now Commission) for the Mediterranean (GFCM), including the establishment of its own autonomous budget and the inclusion of a requirement that the GFCM apply the precautionary approach in considering conservation and management issues, were adopted at the Twenty-second Session of the GFCM in October 1997.51 Discussion of the Code of Conduct at sessions of the regional fisheries bodies will also allow for the development of a regional focus for Code implementation, which many feel to be an essential prerequisite to its effectiveness .

CONCLUSIONS

It is perhaps too early to assess the impact of the Code of Conduct on fisheries management at the national and regional levels, although, as noted above, some examples of that impact are already evident. While the Code remains voluntary in nature, that fact in itself and the wider scope of actors that the Code thus can target, may indeed be the Code's strongest point. Already signs are apparent of the Code being used as a reference document , not only by states in the reformulation of national

the basis of such resolutions. These include the Fisheries Committee for the Eastern-Central Atlantic (CECAFC), the Fisheries Commission for the WesternCentral Atlantic (WECAFC) and the Indian Ocean Fisheries Commission (IOFC). 51 The amendments entered into force on their approval by the Hundred and thirteenth Session of the FAD Council session in November 1997, (FAD Council Resolution 3/113, CL 113 REP para. 67) with the exception of the provisions relating to the autonomous budget of the GFCM, which will come into force only after their acceptance by two-thirds of the GFCM membership and thereafter for each GFCM Member, on its acceptance thereof.

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legislation, and fisheries management bodies in the formulation of management strategies, but also by ecological pressure groups and the proponents of eco-labelling."

52

See, e.g., the so-called Marine Stewardship Council (MSC) Initiative, launched in September 1997, which proposes the establishment of a broad set of principles for sustainable fishing and standards for individual fisheries, on the basis of which MSC-accredited certifying bodies may certify fisheries for the purpose of labeling products from those fisheries . The draft principles make specific reference to the Code of Conduct as well as other relevant international instruments and draw heavily on the substantive provisions of the Code. For further information on this initiative , see http://www.msc.org.

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6 THE INTERRELATrONSHIP BETWEEN THE GLOBAL INSTRUMENTS OF INTERNATIONAL FISHERIES LAW Rosemary Rayfuse

INTRODUCTION

Previous chapters in this book have dealt with the development and codification of international fisheries law and have analyzed, in detail, the four major global agreements regulating international fisheries: the United Nations Law of the Sea Convention! (LOS Convention), the 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' (the Straddling and Highly Migratory Fish Stocks Agreement), the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas' (the Compliance Agreement), and the FAO Code of Conduct for Responsible Fisheries" (the Code of Conduct). This chapter will focus primarily on the relationship between the three formal treaties , the LOS Convention , the Straddling and

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(1982) 12/LM 1261. Specifically on the provisions of the LOS Convention see Hey, supra Chapter 2. (1995) 34/LM 1542. Specifically on the Straddling and Highly Migratory Fish Stocks Agreement see Hayashi, supra Chapter 4. (1994) 33 /LM 968. Specifically on the Compliance Agreement Balton , see supra Chapter 3. Code of Conduct for Responsible Fishing, FAa, Rome, 1995. Specifically on the Code of Conduct see Moore , supra Chapter 5.

E. Hey, (ed.), Developments in International Fisheries Law, p. 107-158 . © 1999 Kluwer Law International. Printed in The Netherlands.

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Highly Migratory Fish Stocks Agreement and the Compliance Agreement. Reference to the Code of Conduct will also be made where relevant. 5 The chapter will attempt to identify commonalities and areas of conflict and/or overlap where the relationship between the agreements is unclear and might lead to problems of interpretation or application in the future. It will begin by establishing the context in which their interrelationship must be studied. It will then briefly address issues relating to the legal status of the agreements and to their interpretation. Finally, it will look at a number of selected issues relating to what will here be referred to as inter-operability" between the agreements.

THE CONTEXTFOR ASSESSING THE INTERRELATIONSHIP OF THE INSTRUMENTS Before considering substantive aspects of the interrelationship of the LOS Convention, the Straddling and Highly Migratory Fish Stocks Agreement, the Compliance Agreement and the Code of Conduct, a number of distinctions between these agreements that are germane to their interpretation and interrelationship must be acknowledged and considered. To begin with, these agreements originated and were negotiated in different fora. The LOS Convention and the Straddling and Highly Migratory

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This is not to suggest that these agreementsrepresent the entire legal framework for the regulation of international fisheries: far from it. International fisheries are also regulated directly by a plethora of regional and bilateral fisheries agreements and, indirectly, by many global and regional environmental agreements such as the 1992 Conventionon BiologicalDiversity ((1992) 31 lIM 818) . To deal with the former is beyond the scope of this chapter and this book. The relationship of international fisheries law within the latter, wider, context is addressed in Part III of this book. See also, Alison Rieser, "International Fisheries Law, Overfishing and Marine Biodiversity," (1997) 9 Georgetown International Environmental Law Review, pp. 251-279 . The term is borrowed from the peace-keeping terminology, where contingents from many states, all bound by different rules of international law and domestic law, must work together and operate under one banner. In the circumstances the analogous use of the word seems appropriate. For further information on the term inter-operability see M.J. Kelly,. Peace Operations : Tackling the Military, Legal and Policy Challenges, Australian GovernmentPrinting Service, Canberra, Australia, 1977, esp. pp. 2-29 to 2-40.

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Fish Stocks Agreement are products of the United Nations diplomatic conference system. The LOS Convention was the product of more than a decade of negotiations at the Third United Nations Conference on the Law of the Sea (UNCLOS III). The Straddling and Highly Migratory Fish Stocks Agreement grew out of the work of the United Nations Conference on Environment and Development (UNCED), including Agenda 21 which was adopted at that conference,' and General Assembly Resolution 47/192 of 22 December 1992 which called for the establishment of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. Although likewise stimulated by the UNCED process and Agenda 21, the Compliance Agreement was negotiated within the framework of the FAO. It is an agreement under Article 14 of the FAO Constitution" and an integral part of the Code of Conduct. The Code of Conduct was also negotiated within the FAO; however, it originated in the work of the FAO Committee on Fisheries (COF!) and the 1992 Declaration of Cancun" adopted at the International Conference on Responsible Fishing jointly sponsored by the FAO and the Government of Mexico . The UN was established in 1945 to "maintain international peace and security...to develop friendly relations among nations....to achieve international cooperation in solving international problems ...and to be a centre for harmonising the actions of nations in the attainment of these common ends.?'? The FAO , on the other hand, was established in 1945 "to alleviate hunger and malnutrition through improvement of food production and distribution."!' Differing political, diplomatic and practical agendas are thus at work in each of these fora. In addition, these agreements, at least to some extent, were drafted by different delegates participating in the various negotiating processes. Admit-

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United Nations, Report ofthe United Nations Conference on Environment and Development, Rio de Janeiro, June 3-4, 1992, Vol. I, Resolution I, Annex II (Agenda 21), para. 17.49. Constitution of the Food and Agricultural Organization of the United Nations, Yearbook ofthe United Nations, 1946-47, pp. 693-7, United Nations Publication Sales No. 1947.1.18. Annex 2 to the Papers presented at the Technical Consultation on High Seas Fishing, FAO Fisheries Report No. 484, Suppl. FAD, Rome, 1992, p. 70. Art. 1, UN Charter. E.A. Norse (ed.), Global Marine Biological Diversity: A Strategy for Building Conservation into Decision-Making, Island Press, 1993, p. 244.

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tedly many delegates involved in the negotiation of the LOS Convention were also involved in the negotiations for the Straddling and Highly Migratory Fish Stocks Agreement, the Compliance Agreement and the Code of Conduct. However, these delegates were joined in these latter negotiations by others who had taken part in the UNCED process and who thus brought different, more environmentally focused, perspectives to the negotiations. Furthermore, as distinct from the negotiations for the LOS Convention, non-governmental organizations played an increased role in the negotiations for the other three agreements. Well over fifty NGOs concerned with both fisheries and environmental matters in general, involved themselves in the Straddling and Highly Migratory Fish Stocks Agreement process, holding their own parallel conference, holding intersessional consultations and lobbying national delegations. Their role in the FAa processes was even more significant. The influences that these organizations have brought to bear on the final agreements produced - in particular on the Code of Conduct - cannot be ignored. Furthermore, the agreements address different parties. The LOS Convention, the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement are directed at states . The Code of Conduct, however, is addressed to any and all participants in fishery activities, both organizational and individual, from the individual and community level to the global. Perceptions of what these agreements do (or are intended to do) will depend on the situation of those addressed and will differ between, for example, distant water fishing nations, coastal states , regional fisheries organizations, national fisheries authorities and fishers . These perceptions may affect implementation of the agreements and could lead to inconsistencies in interpretation and practice. Finally, and most importantly, these agreements originate in different historical reference points : the 1970s and the 1990s. Issues of "intertemporality" therefore arise and provide the context within which our assessment of the interrelationship of these agreements must proceed. When the LOS Convention was adopted, three important assumptions underlay its fisheries provisions. First, it was assumed during its negotiation that conflicts over international fisheries exploitation would be solved by the extension of 200-mile fishing and exclusive economic zones . Allowing states to exercise their domestic jurisdiction over fisheries within these zones

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would ensure the proper conservation and management of these resources. 12 A second assumption was that states would cooperate to develop and adopt fisheries regulations dealing with transboundary, straddling and highly migratory fish stocks." Third, it was assumed that the then existing economic paradigm of optimum utilization of fisheries resources would be ensured by the application of the management reference point of maximum sustainable yield (MSy).14 With the benefit of hindsight one can say that each of these assumptions was ill-conceived. It is now a matter of historical fact that the jurisdictional framework of the exclusive economic zone has proved an inappropriate mechanism for the resolution of fisheries conservation and management issues. Within their exclusive economic zones coastal states have, by and large, failed to properly manage their fishery resources, resulting in overexploitation." On the high seas, states have made little or no attempt to regulate fishing activities by vessels flying their flags." Cooperation in the management of transboundary, straddling and migratory fish stocks has been minimal or, in some cases, non-existent, and has resulted in controversies such as the 1995 dispute between Canada and Spain." In addition, the vagueness of the LOS Convention fisheries provisions, in particular with

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Art. 61, LOS Convention. Arts. 63 and 64, LOS Convention. The former merely requires that states "seek to agree", the latter that states shall "cooperate with a view to." Art. 62, LOS Convention. Agenda 21, Chapter l7(D), para 17.72, lists the following problems in areas under national jurisdiction: local overfishing, unauthorized incursions by foreign fleets, ecosystem degradation, overcapitalization and excessive fleet size, underevaluation of catch, insufficiently selective gear, unreliable databases, and increasing competition between artisanal and large scale fishing and between fishing and other types of activities. According to Agenda 21, Chapter 17(D), para 17.45, "management of high seas fisheries, including the adoption, monitoring and enforcement of effective conservation measures, is inadequate in many areas and some resources are overutilised. There are problems of unregulated fishing , overcapitalisation, excessive fleet size, vessel reflagging to escape controls, insufficiently selective gear, unreliable databases and lack of sufficient cooperation between States ." For further information see, Christopher C. Joyner and Alejandro von Gustedt, "The 1995 Turbot War : Lessons for the Law of the Sea," (1996) 11 The International Journal of Marine and Coastal Law, pp. 425-458.

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respect to the obligations of states to cooperate and the notion of the MSY, has given rise to difficulty and disagreement over their interpretation and application. The years since the drafting of the LOS Convention have seen the development of a range of new principles and concepts in international environmental law. Developed through the processes, declarations and programs of action emanating from, inter alia, the 1972 United Nations Conference on the Human Environment (UNCHE), the 1987 World Commission on Environment and Development (WCED) and the 1992 United Nations Conference on the Environment and Development (UNCED), these principles and concepts provide new assumptions and understandings on which our efforts to conserve and manage international fisheries resources are now based. IS Central to the formation of these new assumptions and understandings has been the articulation of the concept of sustainable development. Developed by the WCED in 1987,19 and endorsed by states in the Rio Declaration and Agenda 21 adopted at UNCED, sustainable development is an anthropocentric concept," the goal of which is conservation and management of living resources to ensure their continuing availability to meet the needs of both present and future generations." A corollary of the concept of sustainable development has been the transmutation of the meaning of conservation. No longer defined as preservation, conservation now means the sustainable use of living resources. In other words, "living resources shall not be utilized in excess of their natural capacity for regeneration.t'" The ramifications of this for the development of reference points for management of living resources have been far-reaching.

18 For a moredetailedaccountof thissee PatriciaBirnie,"Are Twentieth-Century

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Marine Conservation Conventions Adaptable to Twenty-First Century Goals and Principles?: Part I," (1997) 12 The International Journal of Marine and Coastal Law, pp. 307-339, pp. 307-322. See (Anon), Our Common Future, World Commission on Environment and Development, Oxford University Press, 1988. Principle 1 of the Rio Declaration provides as follows "[h]uman beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature." Our Common Future, supra note 19, p. 8. . UNGA Resolution37/7, annexed to the World Charterfor Nature at para. lO(a), (1983) 22 lIM 455.

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A number of substantive principles and procedural requirements have been developed which relate to the attainment of the sustainable use of living resources. These include , inter alia: maintenance of biological diversity, intergenerational equity, the precautionary approach, international cooperation on the basis of the common concern of mankind and common but differentiated responsibilities, informed and transparent decision making, national implementation of international commitments, institutional capacity to evolve and accommodate new members and effective monitoring, compliance and enforcement. Also important in the fisheries context, the concept of the oceans as an integrated whole has been expounded and is being developed." Many of these principles and requirements have found their way into the Straddling and Highly Migratory Fish Stocks Agreement, the Compliance Agreement and the Code of Conduct. The question for this chapter will be to what extent their introduction, interpretation and application can proceed in the context of, and in a manner consistent with, the provisions of the LOS Convention.

LEGAL STATUS OF THE INSTRUMENTS

The LOS Convention, the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement are treaties . They are binding on the parties to them. This raises two preliminary issues relating to their interrelationship. First, as global agreements these treaties do not necessarily apply to all states. Although they are open to all states to accede to them , not all states have done so. Indeed, while the LOS Convention is now widely accepted, very few states are party to the other agreements. There are currently 123 parties to the LOS Convention," 15 to the Straddling and Highly Migratory Fish Stocks Agreement" and 10 to the Compliance Agreement." Furthermore, the Straddling and Highly Migratory Fish Stocks Agreement and the

Introduction and para. 17.1, Chapter 17, Agenda 21. On December 23, 1997 (out of 165 signatories). 25 On August 5, 1997 (out of 59 signatories). 26 As of February 1998.

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Compliance Agreement are not yet in force." When the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement come into force, until their membership is coextensive with that of the LOS Convention, the obligations binding on states will, therefore, differ. For example, parties to the LOS Convention but not to the Straddling and Highly Migratory Fish Stocks Agreement may not be obliged to implement a precautionary approach to fisheries management. Nor will they be bound by or able to rely on the enforcement provisions in the Straddling and Highly Migratory Fish Stocks Agreement. Likewise, parties to the LOS Convention but not to the Compliance Agreement will not be obliged to require vessels flying their flag to have specific authorization from them to fish on the high seas. Nor will they be obliged to withhold the grant of their flag to vessels over which they cannot effectively exercise their flag state responsibilities in respect of high seas fishing . The potential therefore exists for conflict between parties and non-parties, between members of regional or subregional fisheries organizations or arrangements and between members and non-members of these organizations and arrangements, who have undertaken different legal obligations. Such conflict is likely to have adverse consequences for the effective operation of regional organizations and arrangements and for conservation and management efforts as a whole. This issue of inter-operability is further complicated by the provisions of Resolution I which was adopted at the conclusion of the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks," which calls on states and other entities which have signed the Straddling and Highly Migratory Fish Stocks Agreement to apply it provisionally pending its entry

27 The Straddling and Highly Migratory Fish Stocks Agreement, according to its

article 40, will enter into force 30 days after the deposit of the 30th ratification. The Compliance Agreement, according to its article 11, will enter into force upon receipt of the 25th instrument of ratification. 28 Resolution on "Early and effective implementation of the 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", Annex I, Final Act of the Conference, AlCONF.164/38, September 7, 1995, reproduced in JeanPierre Levy and Gunnar G. Schram (eds.), United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, Selected Documents, Martinus Nijhoff, 1996, p. 809.

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into force. Presumably, this provisional application can only be vis-a-vis other states that have acceded to or ratified the agreement or, at the very least, other signatories. However, this does nothing to clarify the relationship between this call for provisional application and the obligation on states which have signed the agreement not to do anything to defeat its object and purpose prior to its coming into force," or what the practical content of that obligation in the context of the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement is. According to Rogoff, an act will 'defeat' the object and purpose of a treaty if it materially reduces the anticipated benefits for other signatories and parties ." The question is whether, and if so what, acts short of provisional application of the agreements as a whole will be sufficient to defeat their object and purpose. For example, parties to the Straddling and Highly Migratory Fish Stocks Agreement may argue that signatories fishing in violation of conservation and management measures by which these signatories are not otherwise bound defeats the object and purpose of the Agreement and attempt to take enforcement action against them on that basis. Signatories may argue that their fishing activities are not inconsistent with the object and purpose of the Agreement as states are still free to cooperate and assign conservation and management measures as between themselves, and any enforcement action taken in the name of provisional application is unlawful as the Agreement is not yet binding on them. As can be seen, the differing interpretations likely to be given by states to these obligations will undoubtedly lead to disputes . Second, the legal implications of these agreements also depend on the extent to which they embody rules of customary international law. As mentioned above, the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement contain provisions based on many recently formulated principles and concepts, the status of many of which as rules of customary international law is not yet settled. This has several important ramifications. For those provisions that are agreed as embodying existing customary international law, the content of their rules will already be binding

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This rule is embodied in article 18 of the Vienna Convention on the Law of Treaties , (1969) 8 lIM 679. Martin Rogoff, "The International Legal Obligations of Signatories to an Unratified Treaty," (1980) 32 Maine Law Review, pp. 263-299. pp. 298-299.

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on both parties and non-parties to the agreement. This is regardless of whether the agreements ever come into force. Thus, if, for example, the precautionary approach can now be considered a rule of customary international law, all states are bound to apply it.31 The difficulty lies in identifying which of the provisions in these agreements reflect current rules of customary international law and whether the content of the customary rules is coextensive with the content of the conventional provisions." More complex still is the potential for these agreements to crystallize developing, or generate new, rules of customary international law . Even if the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement never come into force - or their coming into force is long delayed, as was the case with the LOS Convention - state practice and opinio juris, in future, may confirm various rules embodied in these agree ments as rules of customary international law. For example, regional fisheries organizations and arrangements might start taking forms of enforcement action against non-members leading to a new rule regarding the opposability of these agreements to non-members. That this is not altogether fanciful is illustrated by two cases. Russia has taken action against states fishing in the "Peanut Hole" in the Sea of Okhotsk, including denunciation of bilateral trade and fisheries agreements, refusal of allocation of quotas in its exclusive economic zone and prohibition of port servicing of the fishing vessels involved." Likewise, at its meeting in 1997, members of the Commission on the Conservation of Antarctic Marine Living Resources considered a number of measures which they might take against non-members, including trade-related measures and denial of transshipment and port ser-

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See David Freestone and Ellen Hey (eds.), The Precautionary Principle in International Law: The Challenge ofImplementation, Kluwer Law International, 1996. See, e.g., the Nicaragua Case, (Nicaragua v. USA), 1984 IC] Reports and 1986 IC] Reports wherethe ICJ found that treatyand customary rules can coexistand that the two may not necessarily be coextensive. Alex G. Oude Elferink, "Fisheries in the Sea of Okhotsk High Seas Enclave - The RussianFederation's Attempts at CoastalControl,"(1995) 10 The International Journal ofMarine and Coastal Law pp. 1-18,pp. 6-8. Also see Lodge, infra Chapter 8.

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vicing facilities." Alternatively, if the agreements come into force in the near future but without universal participation, the number and power status of those states participating may also influence the crystallization of provisions embodying developing rules of customary international law into firm legal rules. The difficulty in each case is to determine at what point in time these rules have crystallized into rules of custom binding on all and in discerning the exact content of the customary obligations . The status of the Code of Conduct, while different , gives rise to similar complications. The Code of Conduct is a "voluntary" agreement. In other words it is not legally binding. However, according to article 1 of the Code of Conduct "certain parts of it are based on relevant rules of international law, including those reflected in" the LOS Convention . It also contains provisions "that may be or have already been given binding effect by means of other obligatory legal instruments" such as the Compliance Agreement. Thus, the Code of Conduct contains reiterations of already existing treaty and customary obligations as well as the enunciation of obligations based on developing rules of customary international law. As the Code of Conduct is voluntary, the issue is not the extent to which it binds, but the extent to which it can be used, both through its negotiation and its implementation, as evidence of state practice and opinio juris from which to determine the content and customary status of provisions in the other legally binding agreements .

ISSUES OF APPLICATION AND INTERPRETATION

When considering the interrelationship of a number of treaties , the issues of application and interpretation arise. With respect to the former, as a general rule two principles apply to counteract problems of overlap and contradiction: jus posterior derogat juri priori and lex specialis prevails over lex generalis." With respect to the latter, treaties are to be interpreted in good

Report of the Commission on Conservation of Antarctic Marine Living Resources, CCAMLR-XVI (1997). 35 These rules are basically embodied in article 30 of the Vienna Convention on the Law of Treaties (Convention on the Law of Treaties), (1969) 8 ILM 679, which deals with the application of successive treaties . 34

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faith in accordance with the ordinary meaning of their terms in their context and in light of the treaty's object and purpose." In theory, according to these principles, the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement - both of which are later in time, deal with particular specific aspects of the law of the sea and, indeed, are intended as specific detailed development of certain less specific provisions in the LOS Convention - would prevail over the relevant provisions of the LOS Convention. However, the application of these principles is not so straightforward in this case. Article 4 of the Straddling and Highly Migratory Fish Stocks Agreement specifies that it "shall be interpreted and applied in the context of and in a manner consistent with the" LOS Convention. The Compliance Agreement contains no provision similar to that in the Straddling and Highly Migratory Fish Stocks Agreement. However, the preamble of the Compliance Agreement does refer to the LOS Convention and the duties on states recognized in the LOS Convention in respect of high seas fishing. In addition, the Compliance Agreement is an integral part of the Code of Conduct. 37 Article 3.1 of the Code of Conduct provides that it is to be interpreted and applied "in conformity with the relevant rules of international law as reflected in the" LOS Convention. Article 3.2 further provides that the Code of Conduct shall be interpreted and applied "in a manner consistent with the relevant provisions ofthe" Straddling and Highly Migratory Fish Stocks Agreement, "in accordance with other applicable rules of international law" including the provisions of treaties to which states are parties, and "in the light of' the 1992 Declaration of Canctin, the 1992 Rio Declaration on Environment and Development, and Agenda 21. The Compliance Agreement is thus intended to function within the overall LOS Convention framework as well. As far as the issue of application is concerned, the question is whether the LOS Convention "prevails" over the later agreements. Article 30(2) of the Convention on the Law of Treaties provides: When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty will prevail.

36 Art. 31, Convention on the Law of Treaties. 37 Para. 11, Preamble, Compliance Agreement.

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Leaving aside possible semantic arguments about whether "in the context of' and "in a manner consistent with" equate to specifying "subject to" or "not to be considered incompatible" it would appear that in the case of doubt or conflict, the provisions of the LOS Convention are intended to prevail. As Yturriaga points out, this interpretation is strengthened in the case of the Straddling and Highly Migratory Fish Stocks Agreement when the 1994 Agreement on Implementation of Part XI of the LOS Convention" (1994 Agreement) is considered. In that case, acceptance ofeither the LOS Convention or the 1994 Agreement involves ipso facto acceptance of the other. This is not the case with the Straddling and Highly Migratory Fish Stocks Agreement (or with the Compliance Agreement), acceptance of which has no ramifications for a state's acceptance of the LOS Convention. In addition, the 1994 Agreement specifically provides that Part XI of the LOS Convention and the provisions of the 1994 Agreement shall be interpreted and applied together and, in cases of divergence, the provisions of the 1994 Agreement shall prevail." Yturriaga concludes that the absence of such a provision in the Straddling and Highly Migratory Fish Stocks Agreement is decisive of the matter." Where states are party to all three agreements (or at least to the LOS Convention and one other) no difficulty in determining application should arise. However, at least the theoretical possibility exists that non-parties to the LOS Convention might find themselves governed by its provisions through their participation in either the Straddling and Highly Migratory Fish Stocks Agreement or the Compliance Agreement. At the time of writing, the United States, for example, will find itself in this position should the Straddling and Highly Migratory Fish Stocks Agreement or the Compliance Agreement come into force prior to its ratification of the LOS Convention. Admittedly, the United States' objections to the LOS Convention have centered on the deep seabed mining provisions of Part XI and in accepting the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agree-

Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, GA Res NRes.48/263, 28 July 1994, (1994) 33 lIM 1309. 39 Arts. 1(1) and 2(1), 1994 Agreement. 40 Jose A. de Yturriaga, The International Regime of Fisheries: From UNCWS 1982 to the Presential Sea, Martinus Nijhoff Publishers, 1997, p. 202. 38

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ment the US has, presumably, been aware of their relationship with the LOS Convention. As such, there can be no objection to 'back door ' application of the LOS Convention. Nevertheless, this does little to assist the goal of universal acceptance of the LOS Convention and leaves the door open for numerous disputes relating to the application and interpretation of the two later agreements. When combined with the issue of interpretation an even more complex picture arises. Not only must the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement be interpreted in their own context and in light of their own objects and purposes but in the context of and in a manner consistent with the LOS Convention. Thus, interpretation of the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement requires interpretation of the LOS Convention as well. Given the intended interpretational framework, it is clear that the strengths and weaknesses of the LOS Convention regime will affect the interpretation of the later agreements and their ability to achieve their stated aims. As we have seen, much has changed in international law since the drafting of the LOS Convention. Application of a strict interpretation doctrine might mean that provisions in the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement which reflect these developments in international law would be considered inconsistent with the LOS Convention. Yturriaga, for example, considers certain of the provisions of articles 21 and 22 of the Straddling and Highly Migratory Fish Stocks Agreement relating to the position of non-parties, enforcement by states other than flag states and the use of force by inspectors, to be directly contrary to the provisions of the LOS Convention and hence, 'ultra vlres't" A more liberal interpretation, and the one whose application is argued for here, would recognize these developments embodied in the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement as filling the lacunae in the LOS Convention and interpret the agreements together in light of these new realities and recent developments in international law. To do otherwise would render the international legal regime of high seas fisheries forever hewn in admittedly flawed stone. In any event, as Tahindro says "[i]n any case, for those who defend a strictu sensu reading' of the Convention these provisions are conventional rules, and pursuant to the pacta sunt

41

Id., pp. 222-227.

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servanda principle , will be binding only on states that become parties to the [Straddling and Highly Migratory Fish Stocks Agreement] ."? Unless and until, one might add, they crystallize into rules of customary international law.

ISSUES OF INTER-OPERABILITY

Having established the context in which the interrelationship of these agreements must be studied and having examined the preliminary issues relating to application and interpretation of the agreements , some of the substantive issues of inter-operability can now be examined.

Objectives and scope Objectives The objective of the LOS Convention is to establish "with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment"." The LOS Convention thus was intended to act as the "constitution" for the oceans . Like all constitutions, in some aspects it is lacking in detail. Germane to our inquiry, the LOS Convention failed to provide adequate provisions relating to conservation and management of transboundary, straddling and highly migratory fish stocks; this failure gave rise to a number of problems and conflicts. The Straddling and Highly Migratory Fish Stocks Agreement was drafted to address these issues and to fill those lacunae." Its objective is "to ensure

42 Andre Tahindro, "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," (1997) 28 Ocean Development and International Law, pp. 1-59, p. 50 . 43 Para. 4, Preamble, LOS Convention. 44 Para . 5, Preamble, Straddling and Highly Migratory Fish Stocks Agreement.

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the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of the" LOS Convention." The relevant provisions of the LOS Convention are, in particular, articles 63(2) , 64 and 116(b). Since the objective of the Straddling and Highly Migratory Fish Stocks Agreement is to develop the inadequate provisions of the LOS Convention with respect to high seas fisheries, its objective must be seen as consistent with that of the LOS Convention. The Compliance Agreement seeks to elaborate on the duty in article 117 of the LOS Convention which requires states to "take, or to cooperate with other States in taking, such measures in respect of their nationals which are necessary for the conservation of the living resources of the high seas ." This duty is reiterated in the preamble of the Compliance Agreement, the objective of which is said to be achievable "through specifying flag States' responsibility in respect of fishing vessels entitled to fly their flags and operating on the high seas, including the authorization by the flag State of such operations, as well as through strengthened international cooperation and increased transparency through the exchange of information on high seas fishing"." The particular aspect that the Compliance Agreement addresses is the deterrence of reflagging of vessels fishing on the high seas. It may be argued that the Compliance Agreement places unacceptable restrictions on the right of states to grant their nationality to vessels sailing on the high seas as provided for in article 90 of the LOS Convention. This right, however, is not unlimited even in the LOS Convention. Article 91 provides that states shall fix the conditions for their grant of nationality to ships and that there must be a genuine link between the ship and the state. Article 94 sets out certain duties of the flag state with respect to its vessels, which relate to administrative, technical and social matters and safety at sea. No specific flag state duties are referred to in the provisions on conservation and management of the living resources of the high seas in the LOS Convention. Hence, it is open to states in fulfilling their duty under article 117 to determine what measures may be necessary for flag states to take in respect of their vessels engaged in such operations. Seen in this respect, as a development and elucidation of the general provision, the objective

45 Art. 2, Straddling and Highly Migratory Fish Stocks Agreement. 46 Para . 10, Preamble, Compliance Agreement.

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. . of the Compliance Agreement appears also to be consistent with the LOS Convention.

Scope The scope of the LOS Convention is both global and comprehensive. It applies to all aspects of ocean use in all ocean areas and establishes the rights and duties of states within and outside the areas under their national jurisdiction. The Straddling and Highly Migratory Fish Stocks Agreement applies primarily to the conservation and management of straddling and highly migratory fish stocks beyond areas under national jurisdiction." However, certain of its provisions, in particular articles 6 and 7 relating to the precautionary approach, and compatibilityof conservation and management measures, apply within areas under .national jurisdiction." In addition, coastal states are to apply within their exclusive economic zones (in the exercise of their sovereign rights within these zones) the general principles set out in article 5.49 This reflects the acknowledgment of the biological unity of straddling stocks and of the need for conservation and management measures to apply throughout their migratory ranges regardless of the legal regimes applicable in the particular area in which they are found. 50 Thus, while essentially a high seas agreement, the Straddling and Highly Migratory Fish Stocks Agreement has legal ramifications for the activities of coastal states in respect of certain fish stocks within their exclusive economic zones as well. The question is whether these ramifications are consistent with coastal states' exclusive economic zone rights under the LOS Convention. The Compliance Agreement applies to all fishing vessels that are used or intended for fishing on the high seas." The agreement allows an exemption for vessels under 24 meters in length in certain circumstances, presumably on the basis that vessels under that size will not be fishing on the high seas." The agreement thus is aimed at flag states and the duties in-

47 48 49

50 51 52

Art. 3, Straddling and Highly Migratory Fish Stocks Agreement. Art. 3(1), Straddling and Highly Migratory Fish Stocks Agreement. Art. 3(2), Straddling and Highly Migratory Fish Stocks Agreement. Ellen Hey, The Regimefor the Explo itation ofTransboundary Marine Fisheries, Martinus Nijhoff, 1989, p.16. Art. II, Compliance Agreement. Art. 11(2), Compliance Agreement.

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cumbent on them. In this respect its scope is within that of the vention.

LOS

Con-

Conservation and management Under the LOS Convention regime, coastal states have the sovereign right to explore, exploit, conserve and manage the living resources within their exclusive economic zones.53 In return (or this unfettered right they have certain obligations. They are to determine total allowable catches.i" the allocation of those catches to their own fishers or to fishers of other states permitted to fish within their exclusive economic zone.55 They are to promote optimum utilization of their fisheries resources/" Their activities are subject to the proviso that they ensure that these resources are not endangered by overcxploitation." With respect to straddling stocks occurring in their exclusive economic zone and adjacent high seas areas, coastal states and states fishing for such stocks in the adjacent area shall seek to agree upon necessary conservation measures to be taken in the adjacent area, either directly or through appropriate subregional or regional organizations." In the case of highly migratory species, coastal states and other states whose nationals fish for those species in the region shall cooperate directly or through appropriate international organizations with a view to ensuring their conservation and promoting their optimum utilization throughout the region, both within and beyond the exclusive economic zone." On the high seas, the freedom of all states to fish 60 is circumscribed by fishing states' treaty obligations," the rights, duties and interests of coastal states relating, inter alia, to straddling fish stocks and highly

53 54

55

56 5? 58 59 60 61

Art. Art. Art. Art. Art. Art. Art. Art. Art.

56, LOS Convention. 61, LOS Convention. 62, LOS Convention. 62(1) , LOS Convention. 61(2), LOS Convention. 63(2), LOS Convention. 64, LOS Convention. 87, LOS Convention. 116(a), LOS Convention.

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migratory fish stocks/? the duty to take measures or cooperate with other states in regulating the activities of their nationals in order to ensure conservation of the living resources of the high seas," and the duty to cooperate in the conservation and management of high seas fisheries resources/" States are also obliged to ensure that any agreed conservation and management measures and their implementation do not discriminate in form or in fact against the fishermen of any state." Certain basic principles are common to both the exclusive economic zone and the high seas regimes. Conservation and management measures are to be taken on the basis of the best scientific evidence available." Measures taken 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 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.t"? In addition, states are to take into consideration the effects on dependent and associated species with a view to ensuring they are maintained at or restored to levels above which their reproduction may become seriously threatened." Finally, scientific information, statistics and other relevant data are to be contributed and exchanged on a regular basis through international organizations by all states concerned and participating in these organizations." These common principles have been incorporated in the Straddling and Highly Migratory Fish Stocks Agreement and have been elaborated on in light of post-uNCLOS III developments. Article 5 of the Straddling and Highly Migratory Fish Stocks Agreement sets out 12 general principles which coastal states and fishing states are to implement in giving effect to their duty

62 63 64 65 66 67 68 69

Art. 116(b), LOS Convention. Art. 117, LOS Convention. Art. 118, LOS Convention. Art. 119(3), LOS Convention. Arts. 62(2) and 119(l)(a), LOS Convention. Arts . 61(3) and 119(l)(a), LOS Convention. Arts. 61(4) and 119(l)(b), LOS Convention. Arts. 61(5) and 119(2), LOS Convention.

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to cooperate under the agreement." Application of the precautionary principle is elaborated in article 6 and Annex II of the Straddling and Highly Migratory Fish Stocks Agreement and the requirements of data collection and exchange are elaborated in Annex 1. Article 7 articulates the important concept of "compatibility." The principles and concepts embodied in these articles are also enunciated in articles 6 and 7 of the Code of Conduct which, in article 6.1, makes the point that the right to fish carries with it the obligation to do so in a responsible manner. These principles are the embodiment of what is considered to constitute responsible fishing practices . General principles By and large article 5 of the Straddling and Highly Migratory Fish Stocks Agreement is consistent with the relevant provisions of the LOS Convention and where it goes beyond the LOS Convention many of its new aspects are seen merely as the development of the "meagre and imprecise" provisions of the LOS Convention and, therefore, uncontroversial. For example, introduction of the concept of long-term sustainability is not controversial- indeed it can be inferred from the duty to conserve in the LOS Convention - al-

70 These are the requirements to: adopt conservation measures to ensure long-term

sustainability and promote optimum utilization, use the best scientific evidence available to design measures to ensure maintenance or restoration of MSY as qualified by the relevant environmental and economic factors , apply a precautionary approach, assess impacts of fishing, other human activities and environmental factors on targeted stocks and dependent and associated species in the same ecosystem and adopt conservation measures for these stocks or species where necessary, minimize pollution, waste, discards, bycatch, catch by lost or abandoned gear, and impacts on associated or dependent species through development and use of selective and environmentally safe and costeffective gear and techniques, protect biodiversity of the marine environment, take measures to prevent or eliminate overfishing and excess fishing capacity and ensure fishing effort does not exceed levels commensurate with sustainable use of fisheries, take into account the interests of artisanal and subsistence fishers, collect and exchange data on research, vessels, catch and effort and all other aspects listed in Annex I, promote scientific research and develop appropriate technologies in support of conservation and management, and implement and enforce conservation and management measures through effective monitoring, control and surveillance.

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though exactly what its pursuit requires is the subject of debate." The requirement to use the best scientific evidence available is also essentially consistent as between the two agreements . Likewise, the requirement to collect and exchange scientific information and data on fishing activities is a more detailed exposition of the obligation under article 119(2) of the LOS Convention. It is also consistent with, and far more extensive, than article VI of the Compliance Agreement, which deals with exchange of information on identity, description, ownership and history of high seas fishing vessels. The new requirements to minimize pollution and waste and to prevent or eliminate overfishing, reflect developments in the law of the sea and environmental law which have occurred outside the LOS Convention context to address problems such as bycatch, incidental mortality of non-targeted species, and excessive fleet capacity due to subsidization , which were not contemplated when the LOS Convention was negotiated . The obligation to assess adverse impacts of fishing and other activities on the ecosystem can be seen as implementing articles 61(4) and 119(l)(b) of the LOS Convention which require effects on associated or dependent species to be taken into account in development of fisheries management regimes . The requirement to take into account the interests of artisanal and subsistence fishers is arguably no more than an elucidation of certain aspects of the coastal states' interests which article 116(b) stipulates must be taken into account. Finally, the obligation to implement and enforce conservation and management measures in article 5(1) may be read, in the context of article 117, as simply an exhortation to states to "fully assume their responsibilities ... with respect to fishing vessels flying their flags.?" Nevertheless, some notable developments in article 5 of the Straddling and Highly Migratory Fish Stocks Agreement require comment in terms of their inter-operability with provisions of the LOS Convention . The first See, for example, S. Garcia and J. Majkowski, "State of the High Seas Resources," in T. Kuribayashi and E.L. Miles (eds.), The Law ofthe Sea in the 1990s: A Frameworkfor Further International Cooperation, Law of the Sea Institute, 1992, 175-236, p. 220; The Precautionary Approach to Fisheries with Reference to Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc . AlCONF.164/INF/8 (1994) paras . 48-49, reproduced in Levy and Schram (eds.), supra note 28, p. 555. 72 Tahindro, supra note 42, p. 12.

71

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relates to the concept of optimum utilization. Article 5(a) of the Straddling and Highly Migratory Fish Stocks Agreement calls for the adoption of measures to ensure long-term sustainability and to promote the objective of optimum utilization of straddling and highly migratory fish stocks. However, the terminology of optimum utilization is used in the LOS Convention only with respect to fish stocks within exclusive economic zones and with respect to highly migratory fish stocks. The LOS Convention thus appears to intend that different obligations exist for coastal states and fishing states as between straddling fish stocks and highly migratory fish stocks. Highly migratory fish stocks are to be optimally utilized throughout their range, both within and outside exclusive economic zones. Straddling fish stocks, on the other hand, are subjected to two separate regimes: coastal state optimum utilization within the exclusive economic zone and separate internationally agreed conservation measures beyond . The Straddling and Highly Migratory Fish Stocks Agreement, however, alters this by applying the terminology of optimum utilization to straddling fish stocks as well. According to Hey, optimum utilization requires the setting and allocation of the total allowable catch (TAC).73 The potential thus exists for complications within regional organizations dealing with straddling fish stocks between members who, on the one hand, are bound by the obligation to seek to agree on conservation measures only, and those, on the other hand, who are bound to promote optimum utilization through setting and allocating TACS. In addition, while the emphasis of the Straddling and Highly Migratory Fish Stocks Agreement on the now recognized biological unity of stocks seems to imply that a TAC should be set for a straddling fish stock over its entire range, it leaves unanswered the questions of who is to set it - coastal states or regional organizations - who is to allocate it and in what manner. A second issue relates to the concept of maximum sustainable yield . Article 5(b) of the Straddling and Highly Migratory Fish Stocks Agreement uses virtually the identical wording to the LOS Convention with respect to MSY. However, the concept as used in the Straddling and Highly Migratory Fish Stocks Agreement has undergone some amendment. MSY has generally been found to be unacceptable as a safe target management reference point. In particular, it is not necessarily the appropriate reference point for rebuil-

73

Hey, supra note 50, p. 56.

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ding depleted stocks." Annex II to the Straddling and Highly Migratory Fish Stocks Agreement sets out guidelines for the application of precautionary reference points in conservation and management of straddling and highly migratory fish stocks. These are to be stock-specific to account, inter alia, for reproductive capacity, stock resilience, characteristics of fisheries exploiting the stock and other sources of mortality and major sources of uncertainty. Two types of precautionary reference points are to be used: conservation, or limit, reference points and management, or target, reference points. MSY is to be regarded as the minimum standard for limit reference points . In other words, conservation reference points should be set not to exceed the MSY . Management reference points therefore are to be set lower than would previously have been the case under the LOS Convention so as to ensure that conservation reference points are not exceeded. Third, apart from the obvious implications arising from the change in the conception of MSY as a reference point for setting TACS, this appears to have implications for the application of the "qualified MSY" concept set out in both the LOS Convention and the Straddling and Highly Migratory Fish Stocks Agreement. Qualified MSY in article 61(3) of the LOS Convention allows for the possibility that biologically acceptable MSY (assuming there is one) might be exceeded for reasons unrelated to the health of fish stocks. In article 5(b) of the Straddling and Highly Migratory Fish Stocks Agreement, qualified MSY, when read in light of Annex II, would appear to have to operate within the limits of precautionary reference points. In other words, MSY cannot be exceeded for reasons related to environmental or economic factors. Under the Straddling and Highly Migratory Fish Stocks Agreement those factors must now clearly operate within the MSY. A fourth issue relates to the relative weight to be given to the various environmental, economic and other factors by which the MSY can be qualified. No hierarchy exists in either the LOS Convention or the Straddling and Highly Migratory Fish Stocks Agreement provisions. However, unlike the LOS Convention, the Straddling and Highly Migratory Fish Stocks Agreement contains specific provisions relating to the interests and requirements of

74 Reference Points for Fisheries Management: Their Potential Application to

Straddling and Highly Migratory Resources, UN Doc. AlCONF.164/INF/9 (1994), reproduced in Levy and Schram (eds.), supra note 28, p. 577.

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developing states." It is argued that this is intended to give priority to the requirements of developing states over other relevant factors both in allocation of quotas and in determination of other measures." Finally, article 3(2) of the Straddling and Highly Migratory Fish Stocks Agreement provides that within their exclusive economic zones coastal states shall apply mutatis mutandis the general principles enumerated in article 5. To the extent that these principles have not yet attained the status of customary law, this article represents a fetter on coastal state rights and imposes obligations on them over and above those set out in articles 61 and 62 of the LOS Convention.

Precautionary approach The application of the precautionary approach to fisheries management is a relatively recent phenomenon." As enunciated in Principle 15 of the Rio Declaration, the precautionary principle requires that "where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." Chapter 17 of Agenda 21 makes clear that the precautionary approach is to be applied in the fisheries context and that approaches to fisheries management should be precautionary and anticipatory in ambit. 78 As a post-LOS Convention legal development, the precautionary principle is nowhere enunciated in that document. Articles 61(2)-(3) and 119(1)(a) require only that conservation and management measures be designed on the best scientific evidence available and to maintain or restore populations of harvested species at levels that can produce the qualified MSY. Articles 61(4) and 119(1)(b) require states to take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring their populations above levels at which their reproduction may become seriously threatened. The precautionary approach required by article 6 and Annex II of the Straddling and Highly Migratory Fish Stocks Agreement, the provisions

75 76

77 78

Arts. 11(t)and 24-26, Straddling andHighly Migratory FishStocksAgreement. Tahindro, supra note 42, p. 6. Specifically on the precautionary principle see Freestone, infra Chapter 11. Para. 17(5)(d), Chapter 17, Agenda 21.

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.of which are also reflected in article 7.5 of the Code of Conduct, does not appear to alter these obligations. Rather it provides parameters within which they are to be carried out. Caution is to be used when information is uncertain, unreliable or inadequate and the absence of adequate scientific information is not to be used as a reason for postponing or failing to take conservation and management measures. Article 6 sets out a number of requirements for implementing the approach, the emphasis being at all times to err on the side of caution and conservation rather than exploitation of both targeted species and of non-target, associated and dependent species. Annex II provides guidelines for the application of the approach and the determination of conservation and management reference points. While questions as to the "operationalization" of the concept and choice of reference points may arise," this does not, per se, raise issues of inter-operability with the provisions of the LOS Convention in respect of high seas fishing. It should be noted, however, that together with the apparent change in the concept of MSY discussed above, a change appears to have occurred in the level at which non-target, associated and dependent species are to be maintained. The differentiation between harvested and non-harvested stocks in the LOS Convention provisions indicates that the level above which reproduction may become seriously threatened is considered to be a lower level than MSY (however established). However, according to Annex II to the Straddling and Highly Migratory Fish Stocks Agreement, the fishing mortality rate which generates MSY should be regarded as the minimum standard for conservation or limit reference points. Management strategies are to take into account effects on dependent and related species and, where necessary, set precautionary reference points for them. As precautionary reference points must be set at MSY as a minimum, it would appear that states under the Straddling and Highly Migratory Fish Stocks Agreement are obliged to inter-

79

See L. Juda, "The 1995 United Nations Agreement on Straddling Fish Stocks and Highly MigratoryFish Stocks: A Critique,"(1997)28 Ocean Development and International Law, pp. 147-166, pp. 152-153. 'Operationalization' raises questionssuch as" what,exactly is to be done?", "how much precautionshould there be?", "what is to trigger precautionary efforts?", "what should the nature of those efforts be?" "who will bear the cost of such efforts?". With respect to reference pointsJuda notes"there is a multiplicity of possiblereferencepoints from which to select, each with different biological and socioeconomic implications" and controversy is likely.

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pret articles 61(4) and 119(l)(b) as requiring the maintenance or restoration of associated or dependent species to the level of MSY as well. Clearly, this has the potential to give rise to conflicts between states impugning the bona fides of each other's "precautionary" strategies . The principle's application has already been heavily criticized in the context of the moratorium on high seas driftnet fishing" and the effect of its implementation within the Bering Sea "Donut Hole" and the possibility of the precautionary approach resulting in developmental paralysis has been noted by many authors ." However, as the principle itself appears to be passing into the corpus of customary international law, at least one source of conflict - that as between states party to and those not party to the Straddling and Highly Migratory Fish Stocks Agreement - should, in principle, be removed. In addition, as with article 5 above, article 3(1) of the Straddling and Highly Migratory Fish Stocks Agreement provides for the application of article 6 to highly migratory fish stocks and straddling fish stocks within areas under national jurisdiction. Again, this represents a fetter on coastal state rights under the LOS Convention although it is arguable that this fetter exists independently of the LOS Convention as a result of the customary obligation now incumbent on states. Nevertheless, disputes are likely to arise between fishing and coastal states over the extent of precaution observed within exclusive economic zones and its effect on conservation and management of, and access to, straddling fish stocks and highly migratory fish stocks. Compatibility

It can be inferred from article 116 of the LOS Convention, which subjects the freedom of fishing on the high seas to coastal state rights , duties and interests as provided for in article 63(2) and 64, that states fishing on the high seas are obliged to refrain from undermining the interests of coastal states in the conservation and management of straddling fish stocks and high-

80

81

See for example W. Burke,M. Freeberg and E. Miles,"United Nations Resolutions on Driftnet Fishing: An Unsustainable Precedent for High Seas and Coastal Fisheries Management" (1994) 25 Ocean Development and International Law, pp. 127-186, pp. 170-176. See, for example, Daniel Bodansky, "Scientific Uncertainty and the Precautionary Principle," (1991) 33 Environment, pp. 1-46, pp. 4-5 and 43-44; and Precautionary Approach to Fisheries , supra note 71.

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ly migratory fish stocks on the high seas.f However, the extent ofthe coastal states' 'interests' in high seas fisheries resources has been controversial. Coastal states have generally taken the view that their interests in the high seas areas adjacent to their exclusive economic zones are superior to those of high seas fishing states who, for their part, have seen the coastal state claims as unjustified extensions of coastal state sovereignty beyond the limits of the exclusive economic zone in violation of the freedom of high seas fishing. The Straddling and Highly Migratory Fish Stocks Agreement attempts to resolve the issue by balancing the interests of the two groups through the mechanism of 'compatibility' of conservation and management measures which are to be taken without prejudice to the sovereign rights of coastal states and the right of all states for their nationals to engage in fishing on the high seas. Article 7(1) essentially reproduces articles 63(2) and 64 of the LOS Convention calling on coastal states and those states fishing for straddling fish stocks to seek to agree on conservation and management measures to be applied in adjacent high seas areas and for those fishing for highly migratory fish stocks to cooperate with a view to ensuring conservation and promoting optimum utilization of the stocks throughout the region, both within and beyond areas under national jurisdiction. The article may thus be seen as an elucidation of the rights and duties enunciated in articles 63(2) and 64. Acceptance of the concept of compatibility is further enhanced by its inclusion in article 6.12 of the Code of Conduct. As a mere elucidation, the relationship of article 7 with the LOS Convention is, however, fraught with interpretational difficulties. Article 7(2) provides that measures adopted in respect of high seas areas and those adopted in respect of areas under national jurisdiction are to be compatible in order to ensure conservation of straddling and highly migratory fish stocks in their entirety, in other words over their entire range, and that the measures adopted are not to undermine the effectiveness of coastal state measures adopted in accordance with article 61 of the LOS Convention. At first blush it appears that the Straddling and Highly Migratory Fish Stocks Agreement gives priority to coastal state interests. However, coastal state superiority is fettered by the notion of biological unity, a fetter not found in the LOS Convention. Thus, article 7(2) goes on to list a number of factors

82

Tahindro, supra note 42, p. 15.

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that must be taken into account in determining compatibility: measures adopted by coastal states in their exclusive economic zones in accordance with article 61 of the LOS Convention, high seas measures previously agreed to by coastal states and high seas fishing states, previously agreed measures established by regional or subregional fisheries organizations, biological unity and other biological characteristics of the stocks and the relationships between the distribution of the stocks, the fisheries and the geographical particularities of the region concerned, including the extent to which the stocks occur and are fished in areas under national jurisdiction and the respective dependence of the coastal states and fishing states on the stocks concerned. States are also to ensure that measures adopted do not result in harmful impacts on the living marine resources as a whole. Nevertheless, the exact meaning of compatibility remains unclear. No indication is given of the relative weight to be accorded these factors, of how the measures are to be determined (other than through a duty to cooperate), or of what is to be compatible with what. As Juda points out, coastal states are likely to take the position that measures which they have established for application within their exclusive economic zones should simply be applied in adjacent high seas areas by high seas fishing states. High seas fishing states are likely to take the position that coastal states have an obligation to take their interests and needs in the adjacent high seas into account when establishing conservation and management measures within their exclusive economic zones." This latter interpretation is somewhat strengthened by the provision in article 3( 1) of the Straddling and Highly Migratory Fish Stocks Agreement that article 7, too, is to apply to the conservation and management of straddling fish stocks and highly migratory fish stocks within areas under national jurisdiction as well. However, that application is made subject to the different legal regimes that apply within areas under national jurisdiction and in areas beyond national jurisdiction as provided for in the LOS Convention. Thus, article 7 applies within exclusive economic zones subject to the legal regime of coastal state sovereignty . This is either an effective fetter on coastal state sovereignty or it is essentially irrelevant; the latter interpretation being strengthened by reference to article 4 which provides that nothing in the Straddling and Highly Migratory Fish Stocks Agreement shall prejudice the rights, jurisdic-

83

Juda, supra note 79, p. 154.

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tion and duties of states under the LOS Convention. Whether the concept of compatibility solves disputes relating to management of fish stocks or exacerbates them remains to be seen. Article 7 further provides that states are to "make every effort to agree" on compatible measures within a reasonable period of time and where no such agreement is reached, resort can be had to the dispute settlement provisions of the Agreement. In addition, provision is made for the use, pending agreement, of practical provisional arrangements without prejudice to final agreements qr dispute resolution . Two comments are worth noting here. First, article 297(3) of the LOS Convention specifically exempts from the Convention's settlement mechanisms disputes relating to the sovereign rights of coastal states with respect to living resources within their exclusive economic zones or their exercise of those rights. Thus, while states may dispute the relative weight to be given to coastal states measures as a factor, they cannot dispute the content of those measures. Second, the use of provisional arrangements is an innovation going beyond the LOS Convention's fisheries provisions. Provisional arrangements are there envisaged only in respect of delimitations ofthe exclusive economic zone and continental shelf between adjacent and opposite coasts." Nevertheless, their use in the fisheries context, while not reflective of the letter of the LOS Convention, would seem to be reflective of its spirit.

International cooperation Articles 118 and 119 of the LOS Convention establish the general obligation on states to cooperate in the conservation and management of high seas living resources. States exploiting the same or different living resources in the same area "shall enter into negotiations" with a view to taking necessary conservation measures and shall, "as appropriate" cooperate to establish subregional or regional fisheries organizations. With respect to straddling fish stocks, article 63(2) establishes the obligation on coastal states and states fishing for straddling fish stocks in the area adjacent to the exclusive economic zone to "seek to agree" on conservation measures for the stocks in that area "either directly or through appropriate subregional or regional

84

Arts. 74(3) and 83(3), LOS Convention.

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organisations." Article 64 places an obligation on coastal states and those fishing for highly migratory fish stocks to cooperate either directly or through appropriate organizations to ensure their optimum utilization and where no such organizations exist, states are to cooperate to establish and participate in them. Articles 8 to 16 of the Straddling and Highly Migratory Fish Stocks Agreement implement these provisions and set out the mechanisms by which this international cooperation is to be accomplished. The difference between being bound to "seek to agree" and beingbound to "cooperate" is no longer considered of significance" and article 8 of the Straddling and Highly Migratory Fish Stocks Agreement adopts this approach by obliging coastal states and states fishing on the high seas to pursue cooperation either directly or through appropriate regional or subregional organizations or arrangements to ensure effective conservation and management of both straddling fish stocks and highly migratory fish stocks. States are to enter into consultations in good faith and without delay, particularly where there is evidence of overexploitation or where a new fishery is being developed. States fishing for the resources and coastal states are to give effect to their duty to cooperate by becoming members of existing organizations and arrangements or by agreeing to apply the conservation and management measures established by those organizations. Where no organizations or arrangements exist, states are to cooperate to establish them and only states which are members of such organizations, or those which have agreed to apply the conservation and management measures established by such organizations, are entitled to have access to the relevant fishery resources. The specific content of the duty to cooperate is also elaborated. Article 9 sets out the issues on which states are to agree in establishing regional and subregional organizations and arrangements. Article 10 sets out the functions to be ascribed to regional and subregional organizations and arrangements. Article 11 sets out mechanisms for determining participatory rights for new members or participants and article 12 provides mechanisms to ensure transparency, which are also reflected in article 6.13 of the Code of Conduct. Article 13 calls for cooperation in strengthening existing organi-

85 LA. Shearer, "High Seas: Drift Gillnets, Highly Migratory Species, and Marine

Mammals," in Kuribayashi and Miles (eds.), supra note 71, pp. 237-258, p. 244.

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zations and arrangements and article 14 sets out obligations with respect to collection and provision of information and cooperation in scientific research. Article 15 provides modalities for cooperation in enclosed and semienclosed seas and article 16 deals with areas of high seas entirely surrounded by areas under the jurisdiction of one state. In general, these articles are unremarkable in that they seek only to elucidate the duty to cooperate enunciated in the LOS Convention. In particular, and this is of central importance to the structure of the agreement, the Straddling and Highly Migratory Fish Stocks Agreement seeks to institutionalize and strengthen the role of regional and subregional fisheries organizations and arrangements. It may be argued, however, that in doing so it limits the high seas freedom to fish beyond its qualification in the LOS Convention. Some aspects of these provisions thus require comment in terms of their inter-operability with the LOS Convention. The requirement to establish regional organizations is found in the LOS Convention only in article 64 with respect to highly migratory fish stocks. Yet article 8(5) of the Straddling and Highly Migratory Fish Stocks Agreement provides that in respect of both straddling fish stocks and highly migratory fish stocks, where no regional organization exists, coastal states and states fishing for the stocks "shall cooperate to establish such organisation" or enter into other appropriate arrangements. A strict application of the LOS Convention might lead to the interpretation that regional and subregional organizations are to be established in respect of highly migratory fish stocks while "other appropriate arrangements", presumably bilateral agreements, are to be negotiated with respect to straddling fish stocks. It is arguable, however, that over the past two decades, the international community has come to recognize the desirability of regulating both these types of stocks through regional and subregional organizations, and that the Straddling and Highly Migratory Fish Stocks Agreement provisions, with their heavy emphasis on the role of such organizations and arrangements, are a reflection of this. Seen from this perspective it would seem that the preference is for the establishment of regional and subregional organizations and arrangements in respect of both types of stocks, although the Straddling and Highly Migratory Fish Stocks Agreement does not foreclose the possibilities of other modalities for cooperation. Related to the emphasis on regional and subregional organizations, the LOS Convention calls only for coastal states and states fishing for the same

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stocks to cooperate. Article 8(2) of the Straddling and Highly Migratory Fish Stocks Agreement, however, provides that all states having "a real interest" in the fisheries concerned may become members of the regional and subregional organizations or arrangements. What constitutes a "real interest" is not defined . Presumably, this is intended to ensure access for all states fishing for the resource as well as all relevant coastal states. It is arguable, however, that all, or at any rate, other, states might have a "real interest" in the sustainable conservation and management of fisheries resources located in the high seas in order to ensure continuing supplies for present and future generations. In addition, states having an interest in preserving other species offish or mammals caught as unwanted and incidental bycatch, such as albatross, turtles, sharks, whales and dolphins, might have a "real interest" in a particular fishery in terms of its impact upon those states' , or the earth's, 'ecosystem'. Conservation minded non-fishing states might seek to join these organizations and arrangements with a view to influencing determination of conservation and management measures, much as non-whaling states succeeded in doing in the International Whaling Commission." As the terms for their participation cannot be applied to discriminate against any state or group of states having a real interest in the fishery, should this be considered a real interest, the effect on the work of regional and subregional fisheries organizations and arrangements could be significant. Whether this would be beyond the intention of the LOS Convention duty to cooperate, with its requirement, in article 119(1)(b), to consider effects on associated and dependent species, is debatable. In any event, the potential exists for overlap in the management of various species by different organizations interested in them as, on the one hand, target catch and, on the other, as bycatch. Apart from the problem of establishing and defining a real interest, the obligation to join regional and subregional organizations and arrangements gives rise to the issue of how to accommodate new entrants. This is not, strictly speaking, an inter-operability issue, as article 119(3) of the LOS Convention already calls upon states concerned in high seas fisheries to ensure that conservation measures and their implementation do not dis-

86

See , Gregory Rose and Saundra Crane, ''The Evolution of International Whaling Law, " in Philippe Sands (ed.), Greening International Law, Earthscan Publications Ltd , 1993, pp. 159-181, p. 165.

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criminate in form or in fact against the fishermen of any state. Article 11 of the Straddling and Highly Migratory Fish Stocks Agreement merely sets out a number of factors that states are to take into account in determining the nature and extent of participatory rights for new entrants. Rather, the problem is one of "operationalization", the issue being primarily one of allocation arising from the conflict between the maintenance of an effective conservation regime and the pressures of existing participants seeking to maintain their share of the pie. Conflict over which factors are to be considered may arise within organizations between those states party to the Straddling and Highly Migratory Fish Stocks Agreement and those not. This may be particularly likely to occur where the new entrant is not a party to the Straddling and Highly Migratory Fish Stocks Agreement, the existing members not wishing to give the new entrant the benefit of the considerations mandated by the Straddling and Highly Migratory Fish Stocks Agreement. Expanding the membership of fisheries organizations and arrangements is thus bound to be fraught with difficulties. Most importantly, however, article 8(4) of the Straddling and Highly Migratory Fish Stocks Agreement seeks to prohibit states from fishing within regulatory areas unless they are members of the relevant organization or, if non-members, unless they agree to apply the conservation and management measures established by that organization. This is a development from article 1II of the Compliance Agreement which merely requires that parties ensure that their vessels do not engage in any activity that undermines the effectiveness of international conservation and management measures. In other words, membership - or at least agreeing to play by the same rules - is the sine qua non of access to a fishery. Article 17 provides that non-member and non-participant states which do not agree to apply the relevant conservation and management measures are not discharged from their obligation to cooperate, in accordance with the LOS Convention and the Straddling and Highly Migratory Fish Stocks Agreement, in the conservation and management of the relevant straddling fish stocks or highly migratory fish stocks. As part of this they must not authorize vessels flying their flag to fish for straddling fish stocks or highly migratory fish stocks that are subject to conservation and management measures established by relevant organizations. In addition, members and participants are to exchange information on the fishing activities of vessels of non-members and are to take measures consistent with international law and the Straddling and Highly Migratory

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Fish Stocks Agreement to deter the activities of these vessels which undermine the effectiveness of regional or subregional conservation and management measures. Again, this builds on article V of the Compliance Agreement which requires parties to exchange information relating to activities offishing vessels in order to assist flag states in identifying their vessels which are reported to have engaged in activities undermining international conservation and management measures . These provisions give rise to two fundamental questions: whether these restrictions are a fetter on the freedom of high seas fishing as qualified by the LOS Convention and whether the Straddling and Highly Migratory Fish Stocks Agreement provisions, in particular, violate the pacta tertiis rule. With respect to the former, these provisions prima facie purport to limit the rights of non-members to regional organizations, not by mandating membership, but by mandating respect for the measures adopted by regional organizations. However, the LOS Convention recognizes that effective conservation and management of straddling fish stocks and highly migratory fish stocks requires cooperation of all range and fishing states. In addition, the right of states to fish on the high seas in article 116 of the LOS Convention is counterbalanced by the duty to cooperate as set out in articles 117 and 118. As Tahindro points out, the substantive content of this duty is already recognized under international law and includes obligations of notification, consultation and negotiation. Other positive obligations to act can be derived from other provisions of the LOS Convention. Thus, he concludes that participation in these organizations andlor compliance with their measures "may be considered as among the implementing actions of the 'duty to cooperate' provided in the [LOS Conventionl.?" Accordingly, this restriction is arguably consistent with the intention of the LOS Convention. With respect to the latter, it may be argued that restriction of access by non-members to regulatory areas is now accepted in international fisheries law. Article m(l) of the Compliance Agreement requires parties to ensure that their vessels do not engage in activities that undermine the effectiveness of international conservation measures . Likewise, provisions restricting the access of non-members and calling upon members to take action against non-members whose actions undermine regulatory regimes are found in the 1991 Convention for the Conservation of Anadromous Stocks in the North

87

Tahindro, supra note 42, p. 27.

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Pacific Ocean", the 1993 Convention for the Conservation of Southern Blue Fin Tuna" and the 1994 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea.90 Accordingly, if these provisions are declaratory then all states are bound and the pacta tertiis rule does not apply. If, however, they are not, (and state practice would seem to indicate they are not - yet) then there is nothing inconsistent in parties to the Straddling and Highly Migratory Fish Stocks Agreement agreeing, in that agreement, to limit their rights vis-a-vis regional agreements to which they may not be a party. The major challenge for the Straddling and Highly Migratory Fish Stocks Agreement will be in achieving the universal participation of fishing states to ensure that these provisions are operable. Failing that, it will be a challenge for members and non-members of regional organizations to develop the customary status of these rules .

Enforcement

The LOS Convention contains no provisions relating to monitoring, control , surveillance and enforcement with respect to vessels fishing on the high seas. Article 92 merely sets out the accepted customary norm of exclusivity of flag state jurisdiction, and hence enforcement, over vessels on the high seas. Article 110 provides for exceptions to this exclusivity in certain circumstances, allowing a right of visit in the case of vessels engaged in piracy, unauthorized broadcasting, slave trade, or where vessels are without nationality. Article 111 provides for a right of hot pursuit and subsequent enforcement by a coastal state where a violation has occurred and pursuit has commenced within waters under the national jurisdiction of a coastal state. With respect to high seas fishing activities, article 117 confirms that the duties of flag states in respect of high seas fishing vessels includes the duty to take, or to cooperate with other states in taking, measures in respect of their nationals as may be necessary for conservation of high seas living re-

Copy on file with author, received from the North Pacific Anadromous Fish Commission, Vancouver B.c., Canada. Art. 15(4), 1994 Australian Treaty Series 16. Art. 3, Bering Sea Convention, reproduced in (1995) 10 The International

88 Art. IV(4), 89 90

Journal of Marine and Coastal Law, p. 127.

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sources . This duty is generally understood to mean that states have an obligation to legislate domestically to regulate the activities of their nationals and provide effective remedies for breaches by their nationals of such legislation." The precise content of this duty and methods of ensuring its observance are not, however, spelled out. Both the Compliance Agreement and the Straddling and Highly Migratory Fish Stocks Agreement provide content to the duty expressed in article 117. The Compliance Agreement addresses the issue of "reflagging" while articles 18-23 of the Straddling and Highly Migratory Fish Stocks Agreement spell out specific flag state duties together with requirements for flag and non-flag state enforcement through domestic measures, regional cooperative schemes and port state control. Again, many aspects of these articles reflect developments in state practice and opinio juris since 1982 and are thus uncontroversial in terms of their interrelationship with the LOS Convention. Some aspects, however, are controversial and possibly in direct conflict with the LOS Convention. Thus, their interpretation and application "in the context of and in a manner consistent with the" LOS Convention becomes problematic. Flag states Under the LOS Convention all states have the right to grant their flag to vessels subject only to such conditions as the state determines and to the requirement of a genuine link between the state and the vessel." States then enjoy exclusive legislative and enforcement jurisdiction over their vessels on the high seas. While accepting these rights, not all states accept their correlative obligations of performance. In the high seas fisheries context, many states have shown themselves to be either unwilling or unable to exercise their flag state jurisdiction in a manner consistent with their duty under article 117, if at all.93 Reflagging of vessels has become especially problematic for regional and subregional fisheries organizations as vessels have been deregistered

91 Tahindro, supra note 42, p. 33. 92 Arts. 90 and 91, LOS Convention. 93 This is not always a function of unwillingness to do so. Issues of cost, distance,

domestic political and economic imperatives and infrequency of vessels returning (if ever) to their flag state can all combine to make enforcement of flag state jurisdiction difficult for even those flag states most willing .

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from member states and reregistered in non-member states in order to avoid application of conservation and management measures enacted by those organizations. The Compliance Agreement seeks to limit reflagging by placing obligations on states to maintain records of fishing vessels and to refrain from granting their flag to vessels which have been previously registered elsewhere and which are known to have undermined the effectiveness of international conservation and management measures unless and until certain criteria are satisfied, including compliance with any sanctions formerly imposed on the vessel. Parties are to provide information on every vessel that they have authorized to fish on the high seas to the FAD, which in tum makes it available to other parties. The objective of the exercise is to be able to identify "rogue" fishing vessels and create a climate in which they cannot obtain a flag. Article III of the Compliance Agreement requires parties to ensure that their vessels do not engage in activities that undermine the effectiveness of international conservation and management measures . They must not allow their vessels to fish on the high seas without authorization or in contravention of the conditions of such authorization, which must not be given unless the party is satisfied that it is able to effectively exercise its responsibilities under the Agreement in respect of the vessel. Parties are required to obtain information from their vessels, in particular pertaining to the area of fishing operations, catch and landings; they are to take enforcement measures against their vessels acting in contravention of the Agreement, including making contravention of the Agreement an offense under national law. Sanctions are to be of sufficient gravity to effect compliance and are to deprive offenders of the benefits accruing from their illegal activities. The provisions of the Straddling and Highly Migratory Fish Stocks Agreement embody many of the provisions of the Compliance Agreement but go considerably further. Article 18 requires flag states to take necessary measures to ensure their vessels comply with regional and subregional conservation and management measures and do not engage in any activity which undermines the effectiveness of such measures. States are only to authorize their vessels to fish on the high seas where they can exercise their responsibilities in respect of those vessels effectively. Article 18 sets out a number of measures which are to be taken by flag states to control their vessels including licensing, establishment of regulations for high seas fishing and

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a national register of vessels authorized to fish on the high seas, requirements for marking vessels and gear, recording and reporting vessel position and catch of target and non-catch species together with verification programs, adoption of monitoring, control and surveillance measures including national, regional and global schemes, observer programs and the implementation of vessel monitoring systems (VMS), regulation of transshipment and regulation of fishing activities to ensure compliance with regional, subregional and global measures. In addition, where a subregional, regional or global system of monitoring, control and surveillance exists, flag states must ensure their measures are compatible with that system. Article 19 and, in part, article 20, deal with compliance and enforcement by flag states. Flag states are required to ensure compliance with subregional and regional conservation and management measures. They are obliged to enforce such measures irrespective of where violations occur, conduct immediate and full investigations of alleged violations, and require their vessels to provide information to investigating authorities relating to the vessel's fishing activities. Flag states may request the assistance of other states in conducting these investigations and may undertake them either directly or in cooperation with other interested states or with regional or subregional organizations. Where sufficient evidence of violation exists, flag states are obliged to prosecute without delay and where serious violations have been proven they are to ensure that the vessel does not engage in any further fishing activities on the high seas until such time as all outstanding sanctions have been complied with. Investigations and judicial proceedings are to be carried out expeditiously and sanctions imposed are to be adequate in severity to be effective in securing compliance and discouraging violations. Sanctions shall also deprive offenders of the benefits accruing from their illegal activities. Information on the progress and outcome of judicial proceedings is to be communicated by the flag state to all interested or affected states . Interestingly, the provisions on sanctions differ slightly between the two agreements. Article m(8) of the Compliance Agreement states that sanctions shall, for serious offenses, include refusal, suspension or withdrawal of the authorization to fish on the high seas. Under article m(2) it is the vessel which is authorized to fish. Thus it is the vessel's authorization which is revoked. It seems this may simply precipitate a move to reflag, despite the Agreement's intentions. Article 19(2) of the Straddling and Highly Migratory Fish Stocks Agreement provides, instead, for measures to be taken against masters and officers of fishing vessels including refusal, withdrawal or sus-

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pension of authorizations to serve as masters or officers on such vessels. Thus, the vessel can presumably return to fish with a different crew, although the threat of loss of professional status may deter at least some individuals from participating in further illegal fishing activities. Clearly, to ensure optimum conditions of enforcement, states will need to be party to both agreements. By and large the provisions of both agreements are unremarkable as an elucidation of flag state duties which are binding on their parties. Interestingly , the criterion of a "genuine link" referred to in article 91 of the LOS Convention, in the high seas fishing context, has come to mean "effective control," which is defined in terms of a flag state's ability to ensure its vessels do not undermine international conservation and management measures and to take effective enforcement action against those that do. This seems to be consistent with the letter and the spirit of the LOS Convention, even though it is not necessarily consistent with state practice. With respect to non-parties, it is arguable that the duty to conserve in article 117 may be considered to be a rule of customary intemational law.?' Therefore, as implementing measures which have been agreed upon by the international community, the provisions, of the Straddling and Highly Migratory Fish Stocks Agreement in particular, might also be considered to reflect customary international law and thus be binding on non-parties. According to Tahindro, failure or refusal by a flag state to exercise control in the manner established by these provisions in the know ledge that no other slate could do so without their express consent, might then constitute an abuse of right contrary to customary international law, article 300 of the LOS Convention and article 34 of the Straddling and Highly Migratory Fish Stocks Agreement. In any event it would also likely undermine conservation and management measures established by regional or subregional organizations or arrangements," thereby presumably violating both the duty to cooperate and the duty to conserve. Whether or not these provisions are accepted as implementing the duty to conserve, the extent of observance by flag slates of these measures is sure to give rise to disputes where non-flag states seek to require flag states

94 Fisheries Jurisdiction Cases, (Merits) (UK v. Iceland), 1974 ICJ Reports 3 at 31 and (FRO v. Iceland), 1974 ICJ Reports 175 at 200. 95

Tahindro, supra note 42, pp. 35-6.

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to live up to their obligations. Problems similar to those encountered with the 'extradite or prosecute' rule are sure to emerge as non-flag states impugn the bona fides of investigatorial and prosecutorial action by flag states."

Non-flag states Investigating and other states. The recognition that flag states do not or cannot always effectively exercise their jurisdiction over their vessels has led to new mechanisms being developed to supplement the concept of flag state jurisdiction. Article V(l) of the Compliance Agreement requires all parties to assist flag states to identify vessels undermining international conservation and management measures through active cooperation, including the exchange of information and evidentiary material relating to fishing activities of each others' vessels. As an aspect of the duty to cooperate and the duty of flag states to take action in respect of their nationals to conserve high seas living resources this seems unremarkable, although it is unclear what type of information or evidentiary material is envisaged. As an adjunct to flag state enforcement, articles 20 and 21 of the Straddling and Highly Migratory Fish Stocks Agreement provide a more detailed international cooperative scheme for enforcement of regional and subregional conservation and management measures at the subregional, regional and global levels . Article 20 obliges all states, flag and non-flag, to cooperate either directly or through regional or subregional organizations to ensure compliance with enforcement of their conservation and management measures . Non-flag states are obliged to endeavor to meet reasonable requests of flag states to assist with investigations. States are to assist each other in identifying vessels reported to have engaged in activities that undermine the effectiveness of regional, subregional or global conservation and management measures and, to the extent permitted by their national laws, states are to establish arrangements for making evidence relating to violations available to prosecuting authorities in other states. In cases of illegal fishing within national jurisdiction, flag states shall investigate and cooperate with the coastal state in taking appropriate enforcement action and may authorize the coastal state to board and inspect the vessel on the high seas. Members of subregional or regional organizations may also take action against vessels

96

See, for example, the proceedings in the Lockerbie Case, (Libya v. (Libya v. us), 1992 IC] Reports 3 and 1998 IC] Reports.

UK)

and

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whose activities undermine the effectiveness of or otherwise violate the conservation and management measures established by that organization until such time as the flag state takes appropriate action. Article 21 establishes an exception to the exclusivity of flag state enforcement jurisdiction. Members of regional and subregional organizations may board and inspect vessels of non-members that are within the relevant regulatory area, to ensure compliance with that organization's conservation and management measures, where both states concerned are parties to the Straddling and Highly Migratory Fish Stocks Agreement. In addition, where there are clear grounds for believing a violation of the organization's measures has occurred, non-flag coastal state members may board and inspect such vessels if they enter an area under their national jurisdiction during the same fishing trip. States are to establish, through regional and subregional organizations, boarding and inspection procedures which are to be consistent with the provisions set out in article 21 and also with those in article 22 which sets out the basic procedures to be followed in boarding and inspection. Where organizations have not established procedures within two years of the date of adoption of the Straddling and Highly Migratory Fish Stocks Agreement, they are to utilize the procedures set out in that Agreement. Where organizations have established an alternative mechanism which effectively discharges the obligation to ensure compliance, then members may limit the right of boarding and inspection as between themselves within the relevant regulatory area . Article 21 goes on to provide that where there are clear grounds for believing a vessel has violated conservation and management measures, the inspecting state shall secure evidence and promptly notify the flag state . The flag state has three working days in which to respond and either investigate and take enforcement action itself or authorize the inspecting state to investigate and take such enforcement action as the flag state may specify. In cases of "serious violation?" where the flag state has either failed to respond or to take any action, the inspectors may remain on board and may request the master to bring the vessel to the nearest appropriate port, in which case the flag state is to be notified immediately of the name of the port and of the results of any further investigation. The flag state may at

97 Defined in article 21(11) , Straddl ing and Highly Migratory Fish Stocks Agreement.

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any time request release of the vessel into its custody along with full information on the progress and outcome of the inspecting state's investigation. Action taken by non-flag states shall be proportionate to the seriousness of the violation and states are liable for damage or loss attributable to them when such action is unlawful or exceeds that reasonably required in light of the available information. "Stateless" vessels may be boarded and inspected and the inspecting state may take such action as is appropriate in accordance with international law. Article 22 sets out the basic procedures for boarding and inspection, including the duties of the inspectors, the scope of the inspection, the obligation of the flag state to ensure masters of their vessels comply with the inspection requirements and, where they do not, to suspend the vessel's authorization to fish and order it to return to port immediately. Notably, inspectors are to avoid the use of force except when and to the degree necessary to ensure their safety and where they are obstructed in the execution of their duties. The degree of force used must not, however, exceed that reasonably required in the circumstances. The drafting of these provisions was extremely contentious, taking up a disproportionate amount of the negotiations during the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks;" some commentators consider several of these provisions to be wholly inconsistent with the LOS Convention." The question is whether they in fact are, given the intent, and spirit of the Convention as developed since 1982. While flag state jurisdiction is the norm under the LOS Convention and customary international law, article 92 of the LOS Convention recognizes that certain exceptions to this may exist "in exceptional cases expressly provided for in international treaties or in this Convention." While only certain exceptions are provided in the LOS Convention, this does not preclude the existence of other treaties providing for legislative and enforcement jurisdiction to be exercised by non-flag states. Indeed, Hayashi surveys a number of bilateral and multilateral fisheries treaties that have been concluded and which contain provisions permitting various degrees of non-

Moritaka Hayashi, "Enforcement by Non-Flag States on the High Seas Under the 1995 Agreement on Straddling and Highly Migratory Fish Stocks," (1996) 9 Georgetown International Environmental Law Review , pp. 1-36, p. 11. 99 See, e.g., Yturriaga, supra note 40, p. 223. 98

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flag police or coercive enforcement. Although he appears to conclude that the exception may not, at the time of drafting of the Straddling and Highly Migratory Fish Stocks Agreement, have attained the status of customary international law, 100 there is clearly considerable authority for the proposition that the need for effective enforcement of conservation and management measures for straddling fish stocks and highly migratory fish stocks may constitute an "exceptional case" worthy of being included in a global treaty; particularly since the problems that have been encountered were not envisaged at the time the LOS Convention was drafted. As such, the provisions are not , in their conception, inconsistent with the LOS Convention. Nor do these provisions ipso facto and ab initio violate the pacta tertiis rule as alleged by some commentators.101 In the absence of a customary right of enforcement against non -members of regional and subregional organizations - a right which may, but has not yet developed - these provisions are clearly limited to situations where both states involved are parties to the Straddling and Highly Migratory Fish Stocks Agreement. Of course this does not render their application free from difficulty within regional and subregional organizations where fishing states are not all party to the Straddling and Highly Migratory Fish Stocks Agreement. Nor does it mean that these provisions are wholly unproblematic in terms of their interpretation and consistency with the LOS Convention. For example, as we have seen, the LOS Convention admits of exceptions to the rule of flag state enforcement only in exceptional cases as determined by treaty and in cases involving the exercise of the right of visit under article 110 and the right of hot pursuit under article 111. Article 20(6) of the Straddling and Highly Migratory Fish Stocks Agreement provides that where there are reasonable grounds for believing that a vessel on the high seas has been engaged in unauthorized fishing within an area under the jurisdiction of a coastal state, then the flag state, at the request of the coastal state, shall immediately investigate and shall cooperate with the coastal state in taking appropriate enforcement action. To this end the flag state may authorize the coastal state to board and inspect the vessel while it is on the high seas. This provision is stated to be without prejudice to the right of hot pursuit under article 111 of the LOS Convention. Thus, that right continues to exist

100 101

Hayashi, supra note 98, pp. 9-10. See Yturriaga, supra note 40, pp. 224-225.

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where coastal states commence pursuit in their waters in respect of violations that have occurred in their waters. However, article 20(6) addresses the situation where the offending vessel is already on the high seas and no pursuit has been undertaken. In this respect, the provision can be seen as going beyond and being wholly inconsistent with the right of hot pursuit under the LOS Convention. However, an alternative reading may be helpful for giving this provision a reading consistent with the LOS Convention. Such a reading would see this provision as an aspect of the duty of respect for the sovereign rights of coastal states, the duty of cooperation between states and the responsibilities of flag states vis-a-vis their nationals. Indeed, the problem of unauthorized fishing in areas under national jurisdiction has become of increasing concern to the international community and the United Nations General Assembly has passed resolutions calling upon flag states to take responsibility to deter such activities.l'" When read in this way, the provision requires simply that flag states cooperate with coastal states when requested to do so and that if the flag state wishes, it may allocate some of its enforcement powers to the coastal state by agreement. This is inconsistent with neither the LOS Convention nor general international law. Likewise, article 21(14) of the Straddling and Highly Migratory Fish Stocks Agreement allows members of regional and subregional organizations to board and inspect vessels believed to have violated conservation and management measures of those organizations on the high seas when those vessels, during the same trip, enter waters under the national jurisdiction of the member concerned. Prima facie , this represents a significant fetter on the right of innocent passage in the territorial sea and the freedom of navigation in the exclusive economic zone of a coastal state. Under the LOS Convention, within their exclusive economic zone coastal states may only board , inspect, arrest and take judicial proceedings to ensure compliance with laws and regulations which they have adopted in conformity with the LOS Convention.l'" not which have been adopted by regional or subregional organizations. Within their territorial seas, coastal states may only prevent passage which is not innocent, in other words, passage which is

Resolution 49/116, 19 December 1994, UNGA Resolution 50/25, 22 December 1995 and UNGA Resolution 51/36,9 December 1996. 103 Art. 73, LOS Convention. 102 UNGA

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.considered to be prejudicial to the peace, good order or security of the coastal state.'?' Engaging in unauthorized fishing activities within the territorial sea is considered to render passage non-innocent. However, merely traversing the territorial sea of a state after having conducted unauthorized or unregulated fishing activities on the high seas does not result in a loss of innocence unless those fishing activities can now be taken to be prejudicial to the peace, good order or security of the coastal state. It may be arguable that the "security" of a coastal state is now considered to involve economic, political, and sociological concerns, which extend beyond mere military interests, to encompass interests in living resources that straddle its exclusive economic zone. Two other alternative readings are possible. It may be argued that this is an extension of the LOS Convention's right of visit and search, which simply recognizes the development in intemationallaw emphasizing enforcement of high seas conservation and management measures through regional and subregional organizations. It may also be argued that this provision elaborates on nothing more than aspects of the duty to cooperate . In either case, the reading would be sufficient to render the article's interpretation consistent with the LOS Convention . Perhaps most problematic is article 22(1)(f) which implicitly permits the use of force to the degree necessary to ensure the safety of inspectors where they are obstructed in the execution of their duties. This provision is considered by some to be inconsistent with both the LOS Convention and general principles of international law.!" However, while not expressly acknowledged in the LOS Convention, in customary international law the right exists to use necessary and reasonable force to effect an arrest during a hot pursuit, although compensation is payable for any loss or damage resulting from an unjustified pursuit or the excessive or unjustified use of force. 106 The principle of the use of force is thus established in international law and is implicit in the hot pursuit provisions of the LOS Convention. The principle's existence recognizes the fact that fleeing vessels are not likely to stop unless forced to do so. An analogous concern underlies

Art. 19, LOS Convention. Yturriaga, supra note 40, p. 226. 106 R.R. Churchill and A.V. Lowe, The Law of the Sea, Manchester University Press , 1988, p. 173. See also the I'm Alone case, (1935) III RIM 1609. 104 105

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its extension to the inspection provisions of the Straddling and Highly Migratory Fish Stocks Agreement. It is recognized that inspectors may be thwarted in their activities by vessels refusing to stop and submit to inspection or by threats or actual violence against their person. Article 21(18) incorporates the customary obligation to provide compensation for loss or damage attributable to excessive or unlawful use of force. Therefore, although applied in a new situation, the concept is consistent with that in customary international law and thus arguably not inconsistent with the LOS Convention. Port states. Port state enforcement is provided for in both the Compliance Agreement and the Straddling and Highly Migratory Fish Stocks Agreement, although in different terms. Article v of the Compliance Agreement provides that where a vessel is in port voluntarily and the port state has reason to believe it has been used in an activity that undermines the effectiveness of international conservation and management measures, the port state shall notify the flag state. Parties may make arrangements for port states to investigate the matter. In this respect the port state is in a position similar to an investigating state. As discussed above, nothing in international law or the LOS Convention prohibits states from entering into agreements to devolve some of their investigatory powers to other states in appropriate cases. The concept of port state enforcement in the Straddling and Highly Migratory Fish Stocks Agreement is, however, different. Article 23 provides that a port state has the right and duty, on a non-discriminatory basis, to take measures to promote the effectiveness of subregional, regional and global conservation and management measures. When vessels are voluntarily within its ports, the port state may inspect documents, fishing gear and catches. Port states may also adopt regulations prohibiting landings and transshipments where it has been established that the catch has been taken on the high seas in violation of subregional, regional or global conservation and management measures on the high seas. These powers are not dependent on prior agreement with the flag state. Their legal basis must be located elsewhere. Although the concept of port state enforcement exists in the LOS Convention, its presence there is limited to the provisions relating to protection of the marine environment, specifically with respect to discharges by vessels outside areas under the jurisdiction of port states. Pursuant to article 218, port states are entitled to investigate and institute proceedings against vessels

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when they are voluntarily in their ports, where the vessels have violated applicable international rules and standards. In extending the concept to fishing vessels that have violated international conservation and management measures, the Straddling and Highly Migratory Fish Stocks Agreement establishes a new regime and the question is whether it is only binding on parties to the agreements. The concept of port state enforcement was originally developed in the LOS Convention as a response to the recognition of the failure of flag states to take proper enforcement action against their vessels which polluted in areas beyond national jurisdiction - areas in which most of the discharges occurred.!" Its introduction in the high seas fisheries context is based on similar concerns. Arguably, port state enforcement can be seen simply as one aspect of the duty to cooperate under article 118. In addition, the right to regulate to prohibit landings and transshipment is an aspect of the legitimate exercise of state sovereignty, as is the right to deny access to ports (subject, of course, to treaty obligationsj.l'" The adoption of the concept in the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement is thus arguably not inconsistent with the spirit, or the letter, of the LOS Convention.

The position of non-parties Given that the LOS Convention regime has so clearly not worked as a mechanism to conserve and manage straddling fish stocks and highly migratory fish stocks, it is axiomatic that the Compliance Agreement and Straddling and Highly Migratory Fish Stocks Agreement will do nothing to improve the situation unless states become party to them. To be effective, both fishing and coastal states and other fishing entities must become party to them. While referring to organizations such as the European Community which has jurisdiction over fisheries matters of its members.l'" "entities" is the term also used to apply to Taiwan which is in the peculiar position of being

107 108 109

Churchill and Lowe, supra note 106, p. 255. Id., pp. 52 and 253. Specifically on the European Community and international fisheries law see Churchill, supra Chapter 17.

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an extremely active participant in high seas fishing but unable to become party to the LOS Convention.'!" The potential exists in particular for fishing states and entities to undermine virtually every aspect of these agreements by refusing to become parties, thereby avoiding the application of the sui generis monitoring, control, surveillance and enforcement measures against them and fatally undermining the effectiveness of regional and subregional organizations and arrangements. In essence, fishing states and entities can hold the rest of the international community hostage to their interests. With predictions of further declines and crashes in fish stocks, this can only lead to increased tensions and conflicts between those fishing states seeking to achieve a rational, sustainable utilization of the resource and those seeking only to maximize their own immediate gain . Both the Compliance Agreement and the Straddling and Highly Migratory Fish Stocks Agreement contain provisions calling on parties to encourage non-parties to become parties and to adopt laws and regulations consistent with their provisions. Article VIII of the Compliance Agreement goes on to provide that parties shall cooperate in a manner consistent with the Agreement and with international law such that fishing vessels entitled to fly the flags of non-parties do not engage in activities that undermine the effectiveness of international conservation and management measures and that parties shall exchange information relating to such activities by vessels of non-parties. Article 33 of the Straddling and Highly Migratory Fish Stocks Agreement provides that parties shall take measures consistent with the Agreement and with international law to deter the activities of vessels of non-parties which undermine the effective implementation of the Agreement. Some authors suggest that these provisions not only go beyond the LOS Convention but are contrary to principles of general international law as well .III Certainly there are no similar provisions in the LOS Convention.

For information on the status of Taiwan in international law and with respect to environmental matters in particular see, for example, Jiun-Rong Yeh, "Taiwan," (1993) 4 Yearbook ofInternational Environmental Law, pp. 444-448; David Chow, "Recognizing the Environmental Costs of the Recognition Problem: The Advantages of Taiwan's Direct Participation in International Environmental Treaties," (1995) 14 Stanford Environmental Law Journal, pp.256-299. 111 See, e.g., Yturriaga, supra note 40 p. 223. 110

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However, given the comprehensive global scope and anticipated acceptance of the LOS Convention at the time it was drafted, this would not have been necessary. In any event, much of what is in the LOS Convention was already binding as custom. There is no general prohibition in international law on states taking measures consistent with international law to protect the comparative advantages they have negotiated for themselves in treaties. The real issue is what measures are consistent with international law. For example, if boarding and inspection by members of regional and subregional organizations is no more than a development of the customary right of visit and search, then such boarding may lawfully occur against non-members who are non-parties to the Straddling and Highly Migratory Fish Stocks Agreement. It is obvious, however, that while some states may take this position, non-members of regional or subregional organizations will not. The potential for disputes between states taking opposing views on the issue is obvious. Likewise, the use of trade-related measures may run afoul of the General Agreement on Tariffs and Trade (GA11) and lead to disputes in the World Trade Organization (WTO). 112 These articles perhaps can be seen not as binding third parties but as formalizing the obligations of parties to attempt, within the parameters of international law, to promote respect for the agreements which they have entered into; agreements which are the product of extensive international negotiations in which the non-parties concerned participated. In this respect they are merely an enunciation of the obligation on states to ensure respect for international law, and recognition of the need both to seek and to achieve peaceful coexistence in this interdependent world. In this respect it may be useful to distinguish between two "types" of non-parties - those who cannot, at the time, become parties for domestic legislative reasons or matters of cost, and those who will not because they seek to avoid the obligations. The former may not be unduly concerned by these provisions. The latter undoubtedly will.

112

See e.g. the precedent of the Tuna-Dolph in controversy and decision of the GATT Panel. Tuna/Dolphine II, United States- Restrictions on ImportsofTuna, Report of the GATT Panel, May 20 , 1994, (1994) 33 lIM 839. Specifically on fisheries management and international trade law see McDorman, infra Chapter 16.

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A SUCCESSFUL INTERRELATIONSHIP?

When it was drafted, the LOS Convention was considered the 'constitution' of the oceans. It was intended to establish, once and for all, the fundamental principles governing jurisdiction over and use of ocean spaces. However, given the consensual nature of international law, the provisions of this constitution were limited to those areas over which agreement and consensus could be achieved at the time. In particular, although some thought was given to it, only a vague framework was provided in the LOS Convention for the effective conservation and management of straddling and highly migratory fish stocks. Both the practical realities and the legal imperatives of conservation and management of straddling and highly migratory fish stocks have changed since the LOS Convention was drafted. The global crisis in conservation and management of straddling and highly migratory fish stocks is well acknowledged and new principles and concepts have been developed to attempt to deal with the various causes of the crisis. Some of these have achieved the status of customary international law; others may be on their way to achieving that status. The Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement attempt to address these new realities and to locate these legal and practical developments within the framework of the LOS Convention. As implementing agreements they provide detail to the vague, general obligations enunciated in the LOS Convention. While at times they may go beyond the letter of the LOS Convention, this chapter takes the position that they do not go beyond its spirit. Rather they reflect a consensus in the international community on the need for more effective regulation of conservation and management of straddling and highly migratory fish stocks and agreement on the measures required to achieve that aim. There is no denying that a strict interpretation of the three agreements may give rise to interpretational difficulties and conflicts in their application, both as between parties and non-parties and as between parties. However, a 'constitution' is a document whose interpretation must evolve to accommodate changing legal and practical realities. It is "a living tree capable of

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growth and expansion within its natural limits". 113Therefore, if the LOS Convention is to maintain its relevance and stature as the 'constitution' of the oceans, interpretation of its provisions today must account for these altered realities and customary developments, particularly given that the cause and effect of the crisis were not considered when the LOS Convention was drafted . A more progressive interpretation, which takes into account the changes and developments since 1982, avoids the ossification of international law and allows for interpretation and application of the latter agreements in a manner consistent with the underlying principles established in the LOS Convention . The correctness of this approach appears to have been accepted by the International Court of Justice, which stated in the Gabcikovo-Nagymaros case: Throughout the ages, mankind has, for economic reasons, constantly interfered with nature . In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind - for present and future generations - of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development. 114

If these new norms and standards are to be considered in the construction of a dam, there can be no doubt but that they must be considered in the regulation and development of global fisheries. The agreements themselves work well together. The real challenge to the success of their interrelationship lies in the realm of participation. As

113 The 'living tree doctrine' of progressive constitutional interpretation finds its

origins in Anglo-Canadian law in the judgment of Lord Snakey in Edwards v. A.-G. Canada [1930] A.C. 124, p. 136. 114 Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), Iel, 25 September 1997, para. 140, pp. 54-55, obtained from http ://www.icj-cij.org.

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more and more fish stocks are driven to the edge of commercial extinction, it is imperative that all states become parties to these agreements and undertake, in utmost good faith, the obligations which they have agreed are incumbent upon themselves.

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PART II THEMES IN INTERNATIONAL FISHERIES LAW

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7 BALANCING THE FREEDOM OF FISHING AND COASTAL STATE JURISDICTION Grant Hewison

INTRODUCTION

The warning bells for the state of the world's fishery resources have been ringing long and hard now for about a decade. The United Nations Food and Agriculture Organisation (FAO) reported in 1990 that the harvest of global fish stocks had declined for the first time ever. Since then stocks in northern fisheries have collapsed, with effort subsequently relocating to southern oceans where more intensive fishing pressure is now leading to these waters being over-fished. Contrary to earlier views, scientists now believe that fishery resources may not be 'renewable' in the face of overexploitation and that the ecosystems they inhabit will break down along with the fish stocks, leading to permanent collapse. Like so many other global environmental problems involving exploitation or pollution of the "commons," the fate of the world's fisheries currently hangs in the balance. Although an extraordinary effort has been made to develop rules for mitigating the threat to global fishery resources, the necessary international cooperation has not been forthcoming and, instead, national interests, greed and failure to meet or enforce existing rules has been the mainstay. Our efforts to establish an appropriate regime to govern common exploitation of the shared riches of the sea has reverted to a struggle for state jurisdiction. Coastal states, whose nationals fish close to their shores, have demanded greater control over fishery resources out into the high seas, while distant water fishing states, whose nationals fish on the high seas, have demanded freedom to continue fishing in these areas.

E. Hey, (ed .), Developments in International Fisheries Law, p. 161-192. © 1999 Kluwer Law International. Printed in The Netherlands.

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The saga that is international fisheries law is essentially a story of the struggle between those favoring freedom of fishing and those seeking extended coastal state jurisdiction. In the end we will no doubt find that neither regime succeeds in curbing our excessive exploitation ofthe world 's fishery resources . Instead, as we have found with other common global resources within the biosphere, there are limits to the clear demarcation of property rights. In the end it is only through genuine and sincere cooperation among all concerned that long-lasting solutions will be achieved . We need to promote the objective of collectivism over individualism in managing international fisheries.

THE PRINCIPLES OF FREEDOM AND SOVEREIGNTY

The principle of freedom, as applied to the oceans, guarantees equal access for all states to the riches of the ocean with the rider that they must have due regard for the interests of other states. However, the principle of freedom "... does not avoid the adverse consequences of intensive use of the ocean space. The principle of freedom is a negative freedom, it is a permissive freedom, and it ignores adverse consequences. It is not a positive freedom - in other words, it does not permit management."! Although the principle of sovereignty, on the other hand, permits management within each sovereignty and although it is a very useful principle for governing the exclusive uses of the sea, it cannot adequately govern inclusive or common uses of the sea, particularly when sovereignty is fragmented among more than 100 different states throughout the ocean com-

See Arvid Pardo, "Perspectives on Ocean Governance" in Jon M . VanDyke, Durwood Zaelke and Grant Hewison (eds.), Freedom of the Seas in the 21st Century , Island Press, 1993, pp. 38-40. For a discussion of the struggle between freedom and sovereignty, see, William T. Burke, The New International Law ofFisheries, Clarendon Press, 1994, esp . pp. 1-25 ; M . Dahmani, The Fisheries Regime of the Exclusive Economic Zone, Martinus Nijhoff Publishers, 1987, pp. 1-2; D. M. Johnston, The International Law of Fisheries, Yale University Press, 1965, pp. 310-315; G. P. Smith II, Restricting the Concept ofFree SeasModern Maritime Law Re-Evaluated, Robert E. Krieger Publishing, 1980, pp. 13-24 ; D. P. O'Connell, The International Law of the Seas, Edited by 1. A. Shearer, Vol. 1, 1982, Clarendon Press, 1982, pp. 1-28 and 510-511.

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mons. For example, while sovereignty might be a useful principle for governing an exclusive use of the sea, such as the management of inshore fish stocks or coastal sand mining, it is not so useful in managing inclusive uses of the seas, such as the management of highly migratory species or navigation. As one commentator has argued: "We must resolve the dichotomy between the need to use and exploit ocean space and the need to avoid the adverse consequences of such use. Neither freedom nor sovereignty can avoid this pitfall.'? Increasingly, states have sought to rely on an expanded notion of "cooperation" to resolve this dichotomy, not only with regard to common fishery resources, but also with other global resources, such as climate, ozone and water.

HISTORIC PERSPECTIVE

The struggle between the principle of freedom (mare liberum or open seas or freedom of the seas) and the principle of sovereignty (mare clausum or closed seas or sovereignty over the seas) is not new.' For the past two thousand years the two key principles have dominated traditional international law regarding the oceans and, by consequence, international fisheries law. Depending upon the political climate of the times, one principle or the other has dominated . Indeed, as one commentator has put it: "The history of the law of the sea has been dominated by a central and persistent theme: the competition between the exercise of governmental authority over the sea and the idea of the freedom of the seas.?' The struggle between these two key principles of the law of the sea has tended to reflect the particular political and economic environment of the times. When one or two powerful states have had dominance over world affairs then the principle of freedom also has had preeminence. On the other hand, when the powerful states have been

2 3 4

See Pardo, id. For further discussion of the topic see the authors referred to in supra note 1. See Dahmani, supra note 1, pp. 1-2; Johnston, supra note I, pp. 310-315; Smith II , supra note 1, pp. 13-24; O'Connell, supra note 1, pp. 510-511. O'Connell, id., pp. 1-28.

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in decline or they have been unable to secure their dominance over smaller states or where a balance of power has been achieved among many states, then the principle of sovereignty has had preeminence.' However, in more recent times we have begun to realize, particularly with regard to common global resources, that neither sovereignty nor freedom provide for effective management. Instead, we have sought to fmd a balance between these two competing principles in the notion of "cooperation." Initially, within the Roman world there was freedom of the seas, but it was a freedom ruled over and controlled by the Roman Empire. Following the collapse of that political system there was a period of anarchy that lasted several hundred years." The principle of sovereignty as applied to jurisdiction over land then began to be applied to the oceans. Over about 800 years, the principle of sovereignty slowly expanded over the seas. Following the discovery and exploitation of the Americas, in the 15th century, Spain and Portugal became the dominant naval powers. So that they could extend their control over the sea and better exploit the Americas, Spain and Portugal laid claims to vast areas of oceans. They based these claims upon the doctrine of mare clausum (or closed seas) . At the basis of the principle of mare clausum was the claim that state sovereignty could extend out beyond land territory to encompass the sea.' With the rise in power of the Dutch and British navies, in the 16th and 17th centuries, and in order to counter the control of Spain and Portugal, the doctrine of mare liberum (open sea) was conceived and championed." The principle of freedom or mare liberum was most notably advanced by the Dutch legal philosopher Grotius in the early 17th century. His arguments were based on the proposition that the oceans were the common property of all. According to Grotius: [t]he sea can in no way become the private property of anyone, because nature not only allows but enjoins its common use ... Nature does not give

sId. Id.

6

7

See Pardo, supra note 1.

8

Id.

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a right to anybody to appropriate such things as may inoffensively be used by everybody and are inexhaustible, and therefore, sufficient for all.9

The Grotian theory was not without controversy. Indeed, eminent Scottish and English scholars confronted Grotius with theories and publications of their own. In 1635, Selden published his own celebrated work, Mare Clausum. 1O The first half of this work challenged the claims made by Grotius. Selden claimed that the research he had undertaken affmned the exercise of authority or sovereignty over the sea. II Welwood, another British scholar, published a reply to Grotius based on theological grounds and upon a questioning of the distinction made between exhaustible and inexhaustible resources. Finally the academic debate gave way to a resolution through conflict during the time of Cromwell: conflict that eventually led to a naval stalemate that in fact proved the Grotian theory. Over time the principle of mare liberum gained widespread acceptance. By the end of the 17th century, the principle of mare liberum finally became accepted over its rival - the principle of mare clausum. An essential element of mare liberum was that fishing in the open ocean or on the high seas also should be free. No state could prohibit or regulate the fishing activities of the nationals of other states. However, the underlying premise of the principle of mare liberum and in particular freedom of fishing was that the resources of the oceans were inexhaustible and that one state's right to exploit those resources would not interfere with the corresponding rights of other states .12

Quoted in James B. Morell, The Law ofthe Sea: An Historical Analysis ofthe 1982 Treaty and Its Rejection by the United States, McFarland, 1992, p. 2. See H. Grotius, Mare Liberum (1633): Translation by R.V.D. Magoffin, Oxford University Press, 1916. 10 J. Selden, Mare Clausum, seu de dominis maris, 1635; translation by Gent as Dominion or Ownership of the Sea (1652) and republished with 'Republican matter expunged' in 1663. 11 1d. 12 This perception also formed the basis for some of the underlying argument posited by Grotius. In particular, Grotius argued that the seas should remain open and free for everybody to use because "[n]ature does not give a right to anybody to appropriate such things as may inoffensively be used by everybody and are inexhaustible, and therefore sufficient for all." Quoted in Morell, supra

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While the principle of mare liberum became generally accepted with regard to areas of the open ocean, at the same time, international law began to recognize the principle of sovereignty as applied .to the territorial sea. Under this principle, a coastal state was permitted to claim exclusive jurisdiction over a narrow belt of sea (initially three to four nautical miles) adjacent to the coastal state's land territory Y Until the middle of the 20th century, the balance between the principle of freedom as applied to the high seas and the principle of sovereignty as applied to the narrow territorial sea was accepted. Following the Second World War, however, the assumptions underpinning this balance between freedom and sovereignty were challenged by several new imperatives: there were increasing demands for access to the ocean's resources, there were challenges to the existing legal order from developing nations who had not participated in the evolution of these principles and who felt the existing regime did not meet their needs, and there were challenges from new technologies that permitted greater exploitation of the resources of the open oceans by distant water fishing fleets. As a result, the Grotian assumption that the world's fisheries were inexhaustible and accessible to all was replaced by a realization that conservation and allocation measures were required to prevent their over-exploitation." The main legal response to these challenges has been the extension of national jurisdiction, or sovereignty, over what previously was considered the high seas. But although mare liberum has been giving way to mare clausum, states have, in addition, accepted that the international community as a whole has a role in establishing general rules for the conduct of state activities on the high seas and where there is no clear jurisdiction over common resources, the international community has sought to require states to 'cooperate' in their common exploitation of those resources . In examining how states have sought to balance the competing notions of freedom of fishing on the high seas and extended sovereign rights since World War II, several milestones will be identified in this chapter: the 1958

note 9, p. 2. O 'Connell, supra note 1, pp. 1-28. 14 G.J. Hewison, "High Seas Driftnet Fishing in the South Pacific and the Law of the Sea," (1993) 5 Georgetown International Environmental Law Review, pp. 313-374, p. 335. 13

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Conventions on the Law of the Sea (1958 Conventions)," the Second United Nations Conference on the Law of the Sea (UNCLOS II), held in 1960,16 the United Nations Law of the Sea Convention (LOS Convention), adopted in 1982 ,17 and most recently the 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 (Straddling and Highly Migratory Fish Stocks Agreement)" and the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement)." This chapter now turns to an examination of each of these milestones.

THE 1958 GENEVA CONVENTIONS ON THE LAW OF THE SEA The first post-World War II attempt by the international community to establish a legal framework for the management of fish stocks on the high seas occurred during the 1958 United Nations Conference on the Law of the Sea (UNCLOS 1).20 UNCLOS I took place not only in response to changing patterns in global politics at the time, but also in response to "the development of modem techniques for the exploitation of the living resources of the sea, [which while] increasing man's ability to meet the need of the world's ex-

See, the Convention on the Territorial Sea and Contiguous Zone, 516 VNTS 205; the Convention on the High Seas, 450 VNTS 82; the Convention on the Continental Shelf, 499 VNTS 311; and the Convention on Fishing and Conservation of the Living Resources of the High Seas (1958 Fisheries Convention), 599 VNTS 285. 16 The Conference took place in Geneva from March 17 to April 26, 1960, see Official Records, UN Doc. NCONF.19/8 and 9. 17 21 lIM 1261 (1982). Specifically on the Fisheries provisions of the LOS Convention see Hey, supra Chapter 2. 18 (1995) 34 lIM 1542. Specifically on the Straddling and Highly Migratory Fish Stocks Agreement see Hayashi, supra Chapter 4. 19 (1994) 33 lIM 968. Specificallyon the ComplianceAgreementsee Balton, supra Chapter 3. 20 See UN Conference on the Law of the Sea. Geneva, February 24-April 27, 1958, Official Records, Vols. I-VII , UN Doc. NCONF.13/37-43. 15

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panding population for food, has exposed some of these resources to the danger of being overexploited.,,21 During UNCLOS I, various permutations were suggested for the extension of coastal state jurisdiction over adjacent areas of high seas and the fishery resources therein. The United States proposed a six-plus-six method (a six nautical mile territorial sea with a six-nautical mile fishing zone). Asian and Latin American states called for a twelve-nautical mile territorial sea while the Soviet approach was for every state to declare the width of its territorial sea at a distance between three and twelve nautical miles." At UNCLOS I states did not succeed in reaching consensus regarding the outer limits of any exclusive fisheries zone, the Conference, however, did confirm that such zones existed. However, the Convention on the Territorial Sea and the Contiguous Zone, adopted at UNCLOS I, while not being able to define the breadth of the territorial sea, confirmed what had now become customary international law. As Judge Gerald Fitzmaurice argued in the Fisheries Jurisdiction (Jurisdiction) case." ... While there might be and was controversy as to the permissible extent, and as to the location of the outer limit of the territorial sea (or maritime belt as it was sometimes called) there was no doubt that within it the coastal state possessed imperium (jurisdictio) if not dominium (proprietas) or its equivalent (the 1958 Geneva Territorial Sea Convention, Article 1, calls it "sovereignty"); and that it possessed in consequence exclusive rights of various kinds there, - amongst other exclusive fishery rights."

also adopted the Convention on the High Seas, which set forth that one of the fundamental freedoms of the high seas is the freedom to fish." Although the Convention on the High Seas recognized that this freeUNCLOS I

21 Preamble, 1958 Fisheries Convention. 22 See Burke, supra note 1, pp. 15-19.

(United Kingdom v. Iceland), rcr Reports 1972. Separate Opinion of Judge Sir Gerald Fitzmaurice, id., pp. 23-24. 25 Art. 2 of the Convention on the High Seas provides that: "The high seas being open to all nations, no State may validly purport to subject any part of them to its sovereignty. Freedom of the high seas is exercised under the conditions laid down by these articles and by the other rules of international law . It comprises, inter alia, both for coastal and non-coastal States: 23

24

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dom was to be exercised with reasonable regard to the interests of other states, it did not elaborate on this requirement.P The detailed formulation of the freedom to fish on the high seas was left to the 1958 Fisheries Convention, which was also adopted at UNCLOS I. Article 1 of this Convention contains the more detailed expression of the freedom of states to fish on the high seas: 1. All states have the right for their nationals to engage in fishing on the high seas, subject (a) to their treaty obligations, (b) to the interests and rights of coastal States as provided for in this Convention, (c) to the provisions contained in the following articles concerning conservation of the living resources of the high seas . 2. All States have the duty to adopt, or to cooperate with other States in adopting, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas."

(2) Freedom of Fishing." 26 Art. 2, Convention on the High Seas in its second paragraph provides ''These

freedoms ... shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas." The duty to have due regard for the interests of other states thus balances the exer cise of a high seas freedom by one state against the high seas freedom of another state. Where one state in the exercise of its freedom of the high seas unduly interferes with or restricts another freedom being exercised by another state, then the balance is upset and the first state can be said to be acting contrary to this duty. The second state may then require modification of the first state's activity so that they are again in balance. Judge Dillard in the Fisheries Jurisdiction (Merits) case, infra note 35, p. 69 noted that: "The obligation to pay due regard to the interests of other States contained in Article 2[of the Convention on the High Seas] is, of course, a norm of law which lies upon all States . It can be triggered by any State whose interests are allegedly infringed by another State involving thereby an obligation to come to some kind of peaceful arrangement. It is worth noting, also, that the International Law Commission in commenting on the preliminary draft which ultimately emerged as Article 2 of the High Seas Convention indicated that its rules concern particularly: 'The rights of States relative to the conservation of the living resources of the seas (Yearbook of the International Law Commission, Vol. II, 1956, p. 278).' '' 27 Art. 2, 1958 Fisheries Convention.

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In seeking to strike a balance between states fishing on the high seas and coastal states, the 1958 Fisheries Convention introduces the concept of the right to fish that further defines the concept of freedom. As noted by the International Law Commission, the principle of freedom was not considered absolute. "Freedom was inseparable from regulation: that was the classical distinction between freedom and licence.?" The right to fish on the high seas was itself further qualified by the Convention. It subjects the right to fish to: treaty obligations, the interests and rights of coastal states as provided for in the Convention, the provisions of the Convention relating to conservation and specifically, in article 1(2), "the duty to adopt, or to cooperate with other States in adopting" conservation measures." The 1958 Fisheries Convention also sets forth a number of key measures for the regulation of fishing in areas of the high seas adjacent to the territorial seas of coastal states. It provides that coastal states have a special interest in the living resources of the high seas adjacent to their territorial sea. In the light of this special interest, coastal states would be entitled to take part equally in research and regulation of those fishery resources." Under the Convention, distant water fishing states were not to put in place conservation measures that were opposed to those adopted by a coastal state in its tetritorial sea. Coastal states could also request that distant water fishing states enter into negotiations with them with a view to prescribing conservation measures for those fishery resources in adjacent high seas areas." If negotiations did not lead to an agreement within six months,

28

Mr. Schelle of the International Law Commission, International Law Commission 1955 Vol. 1, p. 102, para. 26. See Hewison, supra note 14.

29

[d. Art. 6(1) and (2) of the 1958 Fisheries Convention provide:

30

"I. A coastal State has a special interest in the maintenance of the productivity of the living resources in any area of the high seas adjacent to its territorial sea. 2. A coastal State is entitled to take part on an equal footing in any system of research and regulation for purposes of conservation of the living resources of the high seas in that area, even though its nationals do not carry on fishing there ." 31 Art. 6(3) and (4) of the 1958 Fisheries Convention provide: "3. A State whose nationals are engaged in fishing in any area of the high seas adjacent to the territorial sea of a State shall, at the request of that coastal State, enter into negotiations with a view to prescribing by agreement the measures

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the 1958 Fisheries Convention provides that the coastal state "adopt unilateral measures of conservation appropriate to any stock of fish or other marine resources in any area of the high seas adjacent to its territorial sea,m provided: there was an urgent need for conservation measures, they were based on appropriate scientific findings and that they did not discriminate against foreign fishermen." The measures could remain in force until there was a negotiated agreement, although if agreement could not be reached, the Convention provided for compulsory binding dispute resolution proced-

ures." necessary for the conservation of the living resources of the high seas in that area. 4. A State whose nationals are engaged in fishing in any area of the high seas adjacent to the territorial sea of a coastal State shall not enforce conservation measures in that area which are opposed to those which have been adopted by the coastal State, but may enter into negotiations with the coastal State with a view to prescribing by agreement the measures necessary for the conservation of the living resources of the high seas in that area." 32 Art. 7(1) of the 1958 Fisheries Convention provides: "Having regard to the provisions of paragraph 1 of Article 6, any coastal State may, with a view to the maintenance of the productivity of the living resources of the sea, adopt unilateral measures of conservation appropriate to any stock of fish or other marine resources in any area of the high seas adjacent to its territorial sea, provided that negotiations to that effect with the other States concerned have not led to an agreement within six months." 33 Art. 7(2) of the 1958 Fisheries Convention provides: "The measures which the coastal State adopts under the previous paragraph shall be valid as to other States only if the following requirements are fulfilled: (a) That there is a need for urgent application of conservation measures in the light of the existing knowledge of the fishery; (b) That the measures adopted are based on appropriate scientific findings; (c) That such measures do not discriminate in form or in fact against foreign fishermen. " 34 Art. 6(5) of the 1958 Fisheries Convention provides: "If the States concerned do not reach agreement with respect to conservation measures within twelve months, any of the parties may initiate the procedure contemplated by article 9. Also see article 7(3) and (4) of the 1958 Fisheries Convention that provide: 3. These measures shall remain in force pending the settlement, in accordance with the relevant provisions of this Convention, of any disagreement as to their validity.

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The overall effect of these provisions of the 1958 Fisheries Convention was to significantly advance the interests and rights of coastal states over those states whose nationals fished on the high seas. The balance, at least in terms of the provisions of the 1958 Fisheries Convention, was being tipped markedly in favor of coastal states. As noted in the Fisheries Jurisdiction (Merits) case, the former laissez-faire treatment of the living resources of the sea in the high seas has been replaced by a recognition of a duty to have regard to the rights of other States and the needs of conservation for the benefit of

all."

However, failure by the international community to widely adopt the 1958 Fisheries Convention meant that the less-conditioned concept of freedom of fishing, as expressed in the Convention on the High Seas prevailed, at least in legal terms, over the more-conditioned right to fish as expressed in the 1958 Fisheries Convention . As a result, states fishing on the high seas demanded freedom of access to the world's fisheries while coastal states upped their demands for further expansion of their jurisdiction over fishery resources adjacent to their coasts. Despite the 1958 Fisheries Convention not being widely adopted, important principles contained in the Convention became accepted as customary international law. In particular, it came to be accepted that while all states had the right for their nationals to engage in fishing on the high seas, this was subject to a duty to adopt, or to cooperate with others in adopting, measures necessary for conservation of the living resources." Judge Dillard of the International Court of Justice, in his separate opinion in the Fisheries Jurisdiction (Merits) case, noted that: "... in light of the practice of States and the widespread and insistent recognition of the need for conservation

4. If the measures are not accepted by the other States concerned, any of the parties may initiate the procedure contemplated by Article 9. Subject to paragraph 2 of Article 10, the measures adopted shall remain obligatory pending the decision of the special commission." 3S (United Kingdom v. Iceland), tci Reports 1974, para. 72, p. 31. 36 Art. 2, 1958 Fisheries Convention. See also for a discussion of the duty to cooperate, A.W. Koers, International Regulation ofMarine Fisheries, Fishing News Books, 1973 and a.I. Hewison, supra note 14, pp. 345-371.

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measures that the principle [Article 1(2) of the 1958 Fisheries Convention] that it announces may qualify as a norm of customary international law.t'" Moreover, the concept of an exclusive coastal state fisheries zone of up to twelve nautical miles began to crystallize into customary international law."

THE SECOND UNITED NAnONS CONFERENCE ON THE LAW OF THE SEA UNCLOS II was a second attempt by the international community to agree on the extension of sovereignty over the oceans. UNCLOS II, however, also failed to reach agreement regarding the extent of the territorial sea and fishing zone. Yet, the view that coastal states should be able to claim an exclusive fisheries zone of twelve nautical miles was strongly supported. Indeed, subsequent to the 1960 Conference, a number of states extended their fisheries jurisdiction out to a twelve-nautical mile limit." In response to the lack of clarity in the law, in the late 1960s and early 70s we witnessed increased pressure by many states, particularly new and developing states, to establish a more effective legal regime for the management of international fisheries . Many states were concerned with the unregulated nature of the high seas fishing industry and with the ineffectiveness of regional fishery laws. New technologies were available to obtain access to areas of the open ocean that were previously unattainable and exploit their resources . Moreover, many developing coastal states were increasingly agitated by the fishing boats of distant water fishing states extracting huge amounts of fish from waters near their shores at the expense of local inshore

37 Supra note 35, Separate Opinion Judge Dillard, p. 69. See also William T.

Burke, "International Law of the Sea Concerning Coastal State Authority over Driftnets on the High Seas," (1990) 3 Georgetown International Environmental Law Review, pp. 265-310, p. 271. See further, the reference made by Judge Dillard to the observations of Judge Jessup in his Separate Opinion in the North Sea Continental Shelf cases, "in which he alluded to the principle , fortified by State practice, of the need for international cooperation in the exploitation of a "natural" resource common to more than one state" . (FRG V. Denmark; FRG v. The Netherlands) ,/CJ Reports, 1969, pp. 82-83 referred to in supra note 35, Separate Opinion Jude Dillard, p. 70. 38 See Burke, supra note I, pp. 14-16. 39 See id. p. 10.

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fishers. At the same time, many developed coastal states aspired to extend their jurisdiction over the living resources of oceans adjacent to their ter-

ritory." Over the same period (1960s and 1970s), various coastal states claimed extended jurisdiction over the high seas, although the extent of these claims varied considerably. Some states claimed an extended territorial sea of up to 200-nautical miles. Others created various 200 nautical mile zones aimed at regulating only fishery resources. Initially the United States and the Soviet Union opposed any extension of coastal state jurisdiction into the high seas. However, in 1976 the United States declared its own 200-nautical mile zone of jurisdiction after which the concept of a 200-nautical mile zone became widely accepted throughout the international community." In 1969, the United Nations General Assembly responded to these pressures by establishing the Sea-Bed Committee to examine issues regarding the sea bed lying beyond the limits of national jurisdiction. In 1970, General Assembly Resolution 2570 42 called for a new conference on the law of the sea. The conference first met in 1973.

THE

THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA

The area previously considered the high seas was considerably circumscribed by the new legal regime established by third milestone: the LOS Convention. Exclusive coastal state jurisdiction over fishery resources was extended out to 200 nautical miles, which placed much greater restrictions on those areas of ocean in which distant water fishing nations could enjoy freedom of fishing on the high seas. Indeed, in one commentator's view: ''The EEZ . .. represents the triumph of individualism over collectivism in international relations. ,,43 According to the LOS Convention, jurisdiction over fishery resources is held exclusively by coastal states where those resources occur within areas subject to the coastal state's fishery jurisdiction. These areas include the

See Hewison, supra note 14. See Wallace, supra note 22, pp. 151-154. 42 UNGA Res. 2750 (XXV), December 17, 1970. 43 O'Connell, supra note 1, p. 552. 40 41

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internal waters and territorial seas of a coastal state as well as the exclusive economic zone or fishery zone of a coastal state (if claimed) and archipelagic waters (if claimed) ." The LOS Convention provides that conservation and management of fishery resources that straddle or migrate between exclusive economic zones or between exclusive economic zones and the high seas is to be shared by coastal states and distant water fishing states. Although there were suggestions early in the negotiations that high seas fisheries should be managed internationally, with some arguing that the task should be given to the International Sea-bed Authority, these proposals were never adopted." Further provisions within the LOS Convention grant coastal states a primary interest in anadromous stocks and responsibility for catadromous stocks while, with regard to marine mammals, coastal states or international organizations are, as appropriate, able to prohibit, limit or regulate their exploitation." These provisions will not, however, be addressed in this chapter, but will be explored in other chapters."

Internal waters and territorial seas The LOS Convention recognizes the rights of coastal states to exercise sovereignty over their internal waters and territorial seas and the fisheries resources located therein." As a result of this right coastal states are entitled to 44 See articles 2, 19(2)(i), 21(1)(e), 49, 51, 55-72, LOS Convention. See also W.T.

Burke, ''The Law of the Sea Convention Provisions on Conditions of Access to Fisheries Subject to National Jurisdiction," (1984) 63 Oregon Law Review, pp. 73-119, pp. 73-74; Gerald Moore, "National Legislation for the Management of Fisheries Under Extended Coastal State Jurisdiction," (1980) 11 Journal of Maritime Law and Commerce, pp. 153-182. 45 J. E. Carroz , "Institutional Aspects of Fishery Management under the New Regime of the Oceans", (1984) 21 San Diego Law Review, pp. 513-540, pp. 516-517. 46 See the references in supra note 44 and 45. 47 Specifically on the regimes for anadromous and catadromous species and marine mammals see Birnie, infra Chapter 13. 48 This is certainly a rule of customary international law. For a discussion of this rule of customary international law, see Burke, supra note 44, p. 75. Burke states that:

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prohibit fishing by foreign vessels within these areas." The LOS Convention also recognizes the fact that the breadth of the territorial sea at twelve nautical miles was now generally accepted in international law.

The exclusive economic zone Under article 56 of the LOS Convention, the sovereign rights of coastal states are extended out to 200 nautical miles for the purpose of exploring and exploiting, conserving and managing the natural resources of the seabed, subsoil and superadjacent waters. Under articles 61 and 62, the coastal state is given management and enforcement responsibilities, rights and interests over the living resources of the exclusive economic zone, including duties to conserve the living resources and promote their optimum utilization. The conditions for access by foreign fishing vessels to the fishery resources of the exclusive economic zone are considerably restricted under the LOS Convention. Access is decided solely by the coastal state and is subject to the terms established in the laws and regulations of the coastal state, although these must be consistent with the general rules established by the LOS Convention. Nationals of distant water fishing states that are granted access to the exclusive economic zone must comply with those conservation measures established by the coastal state. 50

"It is universally agreed that a coastal State enjoys sovereignty over all living resources found within the limits of the State's national territory, as well as over the area in which the living resources are located. Access to such resources by a foreign vessel requires authorisation by the coastal State. Any regulations affecting exploitation are those of the coastal State, except as may be modified by agreement." . 49 See references in supra notes 44 and 45. See also Separate Opinion of Judge Sir Gerald Fitzmaurice, Fisheries Jurisdiction (Jurisdiction) case, quoted at supra note 24. 50 Art. 62, LOS Convention, also see references in supra notes 44 and 45.

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The high seas Beyond the 200-nautical mile exclusive economic zone, distant water fishing nations are permitted, under the LOS Convention, to continue to exploit the living resources, but the previous freedom of fishing on the high seas is now circumscribed by several conditions imposed on high seas fishing states. Specific conditions are established in article 87(1)(e) ofthe LOS Convention, which provide that freedom of fishing on the high seas is to be exercised subject to the conditions laid down in section 2 of Part VII. 51 Article 116 is the first article in section 2 of Part VII of the LOS Convention and sets the framework for these conditions. Article 116 provides that all states have the right for their nationals to engage in fishing on the high seas subject to their respective treaty obligations, the rights and duties as well as the interests of coastal states and the further provisions of section 2 of Part VII.

52

Article 116 is based closely on article 1 of the 1958 Fisheries Convention. As in the 1958 Fisheries Convention, the LOS Convention declares that all states "have the right for their nationals to engage in fishing on the high seas." The use of the word "right" rather than the word "freedom" in both the 1958 Fisheries Convention and the LOS Convention appears to recognize that restrictions have been placed upon the principle of freedom of fishing. It would seem that the exercise of a right is more restricted than the exercise of a freedom." What is ultimately required is to accept that the previous 51 See Hewison, supra note 14. 52 M. Rafiqul Islamd argues that the effect of article 116, with regard to articles

63 to 67 is as follows: "In order to dispel any doubts on the competence and interest of coastal States in stocks occurring within the exclusive economic zone and in an area beyond and adjacent to it, freedom of fishing on the high seas in Article 116 has explicitly been made subject to, among others, Articles 63-67. This means that the prohibition or restriction on the fishing of joint stocks on the high seas embodied in Articles 63-67 supersedes the right to freedom of fishing on the high seas in Article 116." See also Hewison, supra note 14. 53 See W.C. Extavour, The Exclusive Economic Zone - A Study of the Evolution and Progressive Development ofInternational Law ofThe Sea , Institut Universitaire des Hautes Etudes Intemationales, 1979, p. 110. Extavour examines proposals tabled at the Geneva Conference on the Law of the Sea to dilute the

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"freedom" to fish on the high seas has been downgraded to a "right" and that this right is subject to the interests of coastal states." Again, as in the 1958 Fisheries Convention, articles 117 and 118 of the LOS Convention impose duties on all states with interests in fisheries on the high seas to take and to cooperate with other states in taking conservation measures for the living resources of the high seas." Article 119 of the LOS Convention provides a set of rules for determining the allowable catch of fishery resources on the high seas and any other measure that should be taken to conserve those fishery resources." Finally, a question must be raised about whether the progress made from the early 1960s (general acceptance of the twelve-nautical mile adjacent fishery zones) to the LOS Convention (establishing the 200-nautical mile exclusive economic zone) involves merely an extension of the limit or a fundamental shift in the regime of international fisheries management. It seems, from observation of subsequent state practice, that the shift in law regarding the exclusive economic zone and the high seas has not been so much in the substance of the various doctrines governing international fisheries, but more a change in the area subject to national jurisdiction. What appears to have changed more considerably are the new requirements for "cooperation" between high seas fishing states and coastal states over the management of straddling stocks and highly migratory species - species that evade clear jurisdictional boundaries.

concept of 'freedom' by replacing it with the lesser concept of a 'right' : "... the use of the term 'freedom' rather than 'right' was too categorical since these so-called freedoms were far from being unlimited ... The proposed substitutionof "right" for "freedom" appearsat first glance, to have been aimed at diluting that freedom of the high seas." 54 One leading commentator has argued that: "The most recent multilateral agreement dealing with freedom of fishing on the high seas [the LOS Convention] affirms this right once again and confirms that states generallyare agreedon the obligationsthat burden this right ... While it is evident that the principle of freedom of fishing on the high seas continue to protect [high seas fishing activities], it is also evident that conditions burden the exercise of this right and need to be taken into account ...." Burke, supra note, 37, p. 271. 55 Also see Hewison, supra note 14. 56 [d.

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Straddling stocks and highly migratory species The LOS Convention specially provides for the management and conservation of those fish species that migrate beyond a coastal state's exclusive economic zone during their life cycle or due to seasonal patterns into either the high seas or into areas under other states' jurisdiction. These species include straddling stocks and highly migratory species. At UNCLOS III, attempts were made to affirm greater rights for coastal states in respect of these straddling stocks and highly migratory species . During early informal conference negotiations there were particular attempts to include explicit references to the "special interests" of coastal states in respect of these species as found in the 1958 Fisheries Convention. However, no provision along these lines was incorporated into the text. A similar formal proposal was made by those representing the Group of 77 later on in the Conference, but again the proposed amendment was not brought into the text." Even later at UNCLOS III other attempts were made to deal with the interests of coastal states in areas beyond their exclusive economic zone and to provide them with some authority to extend their conservation measures out onto the high seas beyond the 200-nautical mile zone. These included proposals by Argentina in 1979 and 1980, a joint Argentine-Canadian proposal co-sponsored by 15 other states in 1980 and a similar co-sponsored proposal in 1982. All of these proposals met with significant opposition and despite suggested modifications to make them more attractive to a broader group of states, they were not finally adopted. Indeed, at the request of the President of the Conference, the sponsors did not press for a vote on their amendments. 58 The failure on the part of these coastal states to attain the inclusion in the LOS Convention of an explicit recognition of a "special interest" for coastal states in high seas fishing might be seen as weighting the balance of rights back in favor of the freedom to fish on the high seas. However, article 116 of the LOS Convention makes the freedom to fish on the high

57

See Jose Luis Meseguer, "Le Regime Juridique de l'Exploitation de Stocks Communs de Poissons au-dela des 200 Milles," (1982) 28 Annuaire Francais de Droit International, pp. 884-899.

58 Id.

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seas expressly "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.,,59 In addition, articles 117 and 118 affirm an important interest held by coastal states with regard to high seas fisheries. These important qualifications of the right to fish on the high seas provide a significant legal basis in the LOS Convention for the settlement of the issue over straddling stocks and highly migratory species in favor of coastal states.

Straddling stocks Straddling stocks are those stocks of fish that occur both within and in an area beyond and adjacent to the political boundaries established by the exclusive economic zone. While most stocks that occur on the high seas could be considered "straddling," as they typically exist both inside and beyond an exclusive economic zone at some time during their life cycle or seasonal migration pattern, for the purposes of LOS Convention, the term "straddling stocks" does not apply to anadromous or catadromous stocks or to highly migratory species or marine mammals. Under article 63(2) of the LOS Convention, states fishing on the high seas for straddling stocks are required to "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." As noted above, these stocks are not subject to the regime of freedom of fishing on the high seas, but to a special regime. There is a requirement on both coastal states and distant water fishing states to 'seek to agree' on conservation measures. In law this seems to suggest agreement must be achieved prior to fishing, although in practice it appears that this is not always achieved . During UNCLOS III, the Portuguese delegation proposed that the Total Allowable Catch (TAC) for straddling stocks be set jointly by both coastal states and distant water fishing states. This might have clarified the situation, but the proposal was never adopted. Thus, although the LOS Convention establishes that distant water fishing states are obliged to conserve straddling stocks and to cooperate with the adjacent coastal state(s), who are afforded special rights over these stocks,

59 See Hewison, supra note 14

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the Convention unfortunately does not stipulate a time limit, nor impose compulsory dispute settlement mechanisms should the states involved fail to reach agreement. Finally, as noted above, there are no enforcement rights enabling coastal states to exact compliance by states fishing for these stocks in the area beyond and adjacent to their fisheries zones. Although the law strikes a balance in favor of coastal states, there is little authority given to coastal states to enforce those interests . Ultimately, the LOS Convention requires both coastal states and high seas fishing states to cooperate in achieving common management of these resources .

Highly migratory species Highly migratory species might be defined as those species that move considerable distances over vast expanses of the ocean during their life-cycle. Rather than providing a general definition for highly migratory species, the LOS Convention defines them as those species listed in Annex 1 of the LOS Convention." Annex 1 includes tuna-like species (billfish, dolphins and sharks) , and certain cetaceans. The issue of highly migratory species was argued at length during the negotiations at UNCLOS III. The United States proposed that there should be international regulation of such species irrespective of whether they were in or outside the exclusive economic zone. Coastal states, led by Canada, argued instead that coastal states should have the same rights in the exclusive economic zone with respect to highly migratory species that they had over other species. What emerged from the negotiations was a compromise in article 64 of the LOS Convention, which provides that coastal states and distant water fishing states are required, with regard to highly migratory species, to "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 exclusive economic zone." Article 64 obliges coastal and foreign fishing states to cooperate to develop a "coherent, unified management regime" for

60

Art. 64(1), LOS Convention.

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highly migratory species both within and beyond the 200-nautical mile exclusive economic zone. Despite the carefully crafted compromise in article 64, what emerged after UNCLOSIII were two different interpretations regarding these provisions - one that coastal states had sole jurisdiction over these species while they were present within their exclusive economic zone and another that they did not. The principal, although not the only, proponent of the view that coastal states did not have sole jurisdiction was the United States. Using the sanctions provided for in the Magnuson Fishery Conservation and Management Act, the United States sought throughout the 1980s to secure free access for its distant water tuna fishing fleet to the exclusive economic zones of coastal states. In the end, however, the United States changed its position and eventually, through an amendment, in 1992, to the Magnuson Fishery Conservation and Management Act, made highly migratory species subject to the jurisdiction of the coastal state when inside its exclusive economic zone." It thereby effectively accepted the view of Canada and other coastal states. With regard to fishing for highly migratory species on the high seas, as opposed to within the exclusive economic zone, coastal states have argued that, when read together, articles 64 and 116(b) restrict distant water fishing states from unilaterally adopting conservation measures on the high seas . The reason is that such measures could undermine the conservation and management efforts of coastal states both within and beyond the exclusive economic zone." This interpretation tends to reinforce the view that the coastal state has an important interest in the conservation of highly migratory species when they are present outside the exclusive economic zone. 63 The main distinction under the LOS Convention between highly migratory species and straddling stocks is that with highly migratory species, the interested states are obliged to cooperate while they are only urged to "seek to agree," when negotiating over straddling stocks. In addition, article 64 imposes a binding duty with regard to highly migratory species for all in-

J.M. Van Dyke and C. Nicole, "U.S. Tuna Policy: A Reluctant Acceptance of the International Norm," in DJ. Doulman (ed .), Tuna Issues and Perspectives in the Pacific Region, PacificIslandDevelopment Program, 1987, pp. 105-132. 62 See Hewison, supra note 14. 63 /d. 61

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terested states to cooperate both within the exclusive economic zone and beyond. Again, however, although the law strikes a balance that seems to favor the interests of coastal states, there i ~ little authority given to coastal states to enforce those interests. The overall requirement for both coastal states and high seas fishing states is to "cooperate" in achieving common management of these resources .

Enforcement

The authority of the coastal state to enforce its fishery laws within its exclusive economic zone is a necessary part of its right to establish an exclusive economic zone. In negotiating the LOS Convention, the question of enforcement tended to playa secondary role to the more important task of clearly establishing legislative jurisdiction over the exclusive economic zone. Few issues of concern arose during UNCLOS III in adopting the provisions of article 73 and, in fact, the provisions of article 73 remained unchanged from the time they were first incorporated into the negotiating text. Under I article 73, the coastal state has the right to take such measures as boarding, inspection, arrest and judicial proceedings as are necessary to ensure compliance with its laws regarding the exclusive economic zone. On the high seas the LOS Convention does not entitle a state to enforce fishery regulations against the vessels of another state. Although article 110 of the LOS Convention provides for a few situations where a vessel of one state can board the vessel of another state on the high seas, none of these situations involve fishing activities. The LOS Convention provides only for flag state jurisdiction regarding all high seas fishing activities. Despite attempts during UNCLOS III by coastal states to enlarge their enforcement powers out onto the high seas, particularly with regard to straddling stocks and highly migratory species, the LOS Convention does not allow coastal states to take enforcement action on the high seas. Again, the LOS Convention seeks to provide a framework whereby both high seas fishing states and coastal states will cooperate in ensuring that the vessels of flag states comply with conservation and management measures.

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THE STRADDLING AND Hrom,Y MIGRATORY FISH STOCKS AGREEMENT AND THE COMPLIANCE AGREEMENT

The latest milestones in the balance between mare liberum and mare clausum in the area of international fisheries law are the Straddling and Highly Migratory Fish Stocks Agreement" and Compliance Agreement. 65 It was evident throughout the negotiation of the Straddling and Highly Migratory Fish Stocks Agreement that, despite the legal framework established by the LOS Convention (following the developments initiated in the 1958 Conventions) and customary international law, there remained a significant divergence of views among the states concerned with straddling stocks and with highly migratory species about what precisely were the legal rules

applicable." Throughout the negotiations, distant water fishing states sought to protect their access to high seas fisheries while coastal states sought to prevent overfishing of high seas fishery resources that occurred adjacent to their exclusive economic zones. Essentially the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement seek to elaborate upon and provide detail for the concept of "cooperation" that formed the basis of the settlement achieved in the LOS Convention.

THE STRADDLING AND HIGlll..Y MIGRATORY FISH STOCKS AGREEMENT

Compatibility of conservation and management measures Many distant water fishing states and non-governmental organizations argued that the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks (Straddling and Highly Migratory Fish Stocks Con-

For a discussion of this Agreement see Hayashi, supra Chapter 4 and E. Meltzer, "Global Overview of Straddling Stocks and Highly Migratory Fish Stocks: The Nonsustainable Nature of High Seas Fisheries", (1994) 25 Ocean Development and International Law, pp. 255-344. 65 For a discussion of this Agreement see Balton, supra Chapter 3. 65 See UN Conference on the Law of the Sea, Geneva, February 24-Apri127, 1958, Official Records, Vols. I-VII, UN Doc . NCONF.13/37-43. 66 See Meltzer, supra note 64. 64

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ference) should consider conservation and management measures for particular fish stocks as one biological unit over its entire range of distribution, and not separate jurisdiction over stocks along the political boundaries established by the exclusive economic zone." Many coastal states were concerned that this position compromised their sovereign rights over the fish stocks within the exclusive economic zone as provided for under LOS Convention and denied any special interests they had in ensuring that measures on the high seas were consistent with conservation and management measures taken within their exclusive economic zone. Many delegates from coastal states also questioned whether the Straddling and Highly Migratory Fish Stocks Conference had the mandate to consider conservation and management of fish stocks within the exclusive economic zone at all. Indeed, some delegates argued that references to exclusive economic zones should be stricken from the negotiating text. Two opposing views thus emerged during the course of the Conference, which required a careful compromise." What emerged from negotiations as an acceptable notion for both coastal states and distant water fishing nations was the concept of compatibility. The idea behind the concept of compatibility recognized that conservation and management measures implemented on the high seas would be 'compatible' with those taken by coastal states in areas under their sovereign jurisdiction. The concept of compatibility also rested heavily on a requirement for states to cooperate in achieving compatible conservation and management regimes. One commentator has stated that compatibility is "the kernel of the Agreement's vision for solving" the fish stock disputes." The concept of compatibility is found in article 7 of the Straddling and Highly Migratory Fish Stocks Agreement, paragraphs l(a) and (b) of which read:

See H. L. Brown, "The United Nations Conference on Straddling Stocks and Highly Migratory Fish Stocks: An Analysis ofIntemational Environmental Law and the Conference's Final Outcomes," (1996) 21 Vermont Law Review, pp. 547-589 and E. Meltzer, supra note 64. 68 [d. 69 Jon. K. Goltz, Comment, "The Sea of Okhotsk Peanut Hole: How the United Nations Draft Agreement on Straddling Stocks Might Preserve the PolIack Fishery", (1996) 4 Pacific Rim Law & Policy Journal, pp. 443-478, p. 465. 67

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(a) with respect to straddling fish stocks, the relevant coastal States and the States whose -nationals fish for such stocks in the adjacent high seas areas shall seek, either directly or through appropriate mechanisms for cooperation provided for in Part III, to agree upon the measures necessary for the conservation of these stocks in the adjacent high seas area; (b) with respect to highly migratory fish stocks, the relevant coastal States and other States whose nationals fish for such stocks in the region shall co-operate, either directly or through the appropriate mechanisms for cooperation provided for in Part III, with a view to ensuring conservation and promoting the objective of optimum utilization of such stocks throughout the region, both within and beyond the areas under national jurisdiction.

Pursuant to the LOS Convention, coastal states may establish any management system within their exclusive economic zone as long as it is consistent with the LOS Convention. Article 7 of the Straddling and Highly Migratory Fish Stocks Agreement ensures that the management programs that coastal states establish will not be undermined by those of other coastal states or distant water fishing nations. The introductory paragraph of article 7(2) states: Conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety . To this 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 such stocks.

Moreover, article 7(2)(a) reads in part that: "[States shall] ensure that measures established in respect of such stocks for the high seas do not undermine the effectiveness of [measures taken by coastal states to conserve and manage those resources within their exclusive economic zone] ." Thus article 7(2) implicitly, but unquestionably, establishes a superior right for coastal states to manage stocks that straddle or migrate through their exclusive economic zone. As noted above, it is the management programs of coastal states that are not to be undermined by measures taken by other states. This superior right is, however, qualified by new duties imposed on coastal states to take into account a number of matters that will , in some instances, favor distant water fishing states. Coastal states are required to take into account any existing agreed measures, the biological unity and other characteristics

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of the stocks, the geographical particularities of the region in which the stocks occur, the respective dependence of coastal states and distant water fishing states on the fish stocks concerned and the impact that management measures will have on the living marine resources as a whole."

Enforcement measures

With regard to enforcement, the Straddling and Highly Migratory Fish Stocks Agreement goes much further in developing fisheries enforcement for high seas stocks than the LOS Convention or customary international law." It suggests four different enforcement regimes: (a) enforcement by the flag state," (b) enforcement by the port state," (c) enforcement through international cooperation" and (d) enforcement through regional agreement." There are claims by coastal states that the Straddling and Highly Migratory Fish Stocks Agreement allows states-parties to undertake enforcement on the high seas, while distant water fishing states reject this interpretation, arguing instead that enforcement jurisdiction on the high seas remains their preserve. However, a close examination of the Agreement suggests that the actual position appears to be more of a balance between both. Flag state enforcementjurisdiction. Article 19 of the Straddling and Highly Migratory Fish Stocks Agreement outlines those provisions which advance enforcement of fishing activities on the high seas by the flag state. Article 19 reads in part: 1. A State shall ensure compliance by vessels flying its flag with subregional and regional conservation and management measures for straddling fish stocks and highly migratory fish stocks. To this end, that State shall :

70 See Meltzer, supra note 64 and Brown, supra note 67. 71 See T .L. McDorman, "The International Law of Fisheries Enforcement on the

72 73 74 75

High Seas and Within 200-Mile Zones: A Changing Global Attitude?", 14 Feb. 1996, unpublished paper . Art. 19, Straddling and Highly Migratory Fish Stocks Agreement. Art. 23, Straddling and Highly Migratory Fish Stocks Agreement. Art. 20, Straddling and Highly Migratory Fish Stocks Agreement. Artt. 21-22, Straddling and Highly Migratory Fish Stocks Agreement.

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(a) enforce such measures irrespective of where violations occur; (b) investigate immediately and fully any alleged violation of subregional or regional conservation and management measures, which may include the physical inspection of the vessels concerned ...; (c) require any vessel flying its flag to give information to the investigating authority ...; (e) ensure that, where it has been established, in accordance with its laws, a vessel has been involved in the commission of a serious violation of such measures, the vessel does not engage in fishing operations on the high seas until such time as all outstanding sanctions' ... have been complied with.

Consequently, primary enforcement authority under the Straddling and Highly Migratory Fish Stocks Agreement remains with the flag state. The problems inherent in previous international agreements regarding enforcement by the flag state will no doubt persist under this Agreement. In particular, flag states will need to improve their technological ability to ensure that their nationals are in compliance with various conservation and management regimes wherever they might be around the globe. They must overcome the political pressures nationals exert on flag state governments to ease fishing restrictions and be lenient when it comes to enforcement. On the other hand, one commentator has suggested that the threat of coastal states unilaterally extending their jurisdiction to vessels fishing on the high seas may serve as an incentive for flag states to more fully enforce the Straddling and Highly Migratory Fish Stocks Agreement." Port state enforcement jurisdiction. Article 23 of the Straddling and Highly Migratory Fish Stocks Agreement provides that a "port State has the right and the duty to take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures." Perhaps the key issue in this opening paragraph of article 23 is that the port state has "the duty to take measures." It raises the question of what consequences might follow from a port state not meeting its duty under this article. Article 23( 1) also provides that a port state may "inter alia, inspect documents, fishing gear and catch on board ." Under this provision, it might

76

See McDorman, supra note 71.

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also be useful, for example, for the port state to interview the captain and crew. Port states may also prevent fishing vessels from landing catches or transshipping catches where it has been established that the catch has been taken in a manner that undermines the effectiveness of conservation and management measures on the high seas. While these provisions explicitly provide greater powers for coastal states than the LOS Convention, it should be noted that they apply only if vessels fishing on the high seas wish to use a foreign port. Enforcement through international cooperation. The Straddling and Highly Migratory Fish Stocks Agreement provides for a new cooperative enforcement regime that is based on information sharing, assistance in making prosecutions and cooperative investigations . For example, a flag state that is making inquiries regarding possible violations of a conservation and management regime may make reasonable requests for assistance from other states. Once a request is made, these other states must respond to the requests. All states are required to offer assistance to one another in identifying rogue fishing vessels and must furnish prosecutors in other states with information about possible violations by fishing vessels. Finally, under these new provisions, coastal states may request that flag states investigate the activities of their nationals or flagged vessels within the coastal states' exclusive economic zone. Importantly, the Straddling and Highly Migratory Fish Stocks Agreement states that the flag state shall cooperate with the coastal state in taking appropriate enforcement action. However, despite the fairly strong language of the Agreement in this respect, enforcement of conservation and management measures is still reliant upon the flag state. Enforcement through regional agreements. Perhaps the most unique aspect of the enforcement regime in the Straddling and Highly Migratory Fish Stocks Agreement is contained in the provisions that provide for enforcement through subregional or regional agreements made in accordance with the Agreement. Article 21 of the Straddling and Highly Migratory Fish Stocks Agreement permits states that are a party to these kinds of regional agreements to board and inspect fishing vessels of another state in high seas areas regardless of whether that other state is a party to the regional agreement. Where a boarding state finds that the vessel has breached regional conservation and management measures, officers from the boarding state are to

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secure evidence and promptly notify the flag state of the alleged breach. The flag state is then required to investigate and, if necessary, take enforcement action against the vessel or give authority to the boarding state to continue inquiries. If the boarding state fmds clear grounds that indicate that the vessel has committed a violation of a serious nature, and the flag state has not fulfilled its obligations, the boarding state may bring the vessel to port." While these powers considerably strengthen the role of coastal states in enforcing conservation and management measures against vessels fishing on the high seas, it should be noted that the boarding state's powers are limited as the flag state may fulfill its obligations at any time. Moreover, the flag state has the power to require the boarding state to release the vessel upon its request. The powers of boarding states are also checked somewhat by the fact that they bear liability for any damage or loss attributable to their boarding activities . It appears that loss might include loss of opportunity to fish while inspections are being carried out. Nonetheless, these provisions do go much further than those in the LOS Convention and tip the balance a little more in favor of coastal state jurisdiction.

The Compliance Agreement In addition to the Straddling and Highly Migratory Fish Stocks Agreement, states also negotiated the Compliance Agreement. The central purpose of this Agreement is to deter the practice by fishers of reflagging their vessels in order to avoid compliance. The Compliance Agreement reinforces some of the provisions of the Straddling and Highly Migratory Fish Stocks Agreement by providing further details on the responsibilities of the flag state. Taken together, the two Agreements significantly develop the notion of cooperation, as provided in the LOS Convention and customary international law. There are three key advances made in the Compliance Agreement; these are contained in its articles 3, 4, 5 and 6. Article 3 outlines in considerable detail the responsibilities of flag states to ensure that vessels flying their flag do not undermine the effectiveness

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Article 21, Straddling and Highly Migratory Fish Stocks Agreement.

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.of international conservation and management measures. It might be noted that the flag state must ensure compliance with applicable conservation and management measures by vessels flying its flag even if it is not legally bound by such measures . Article 3(5) provides that flag states are to ensure that any vessel that is seeking to reflag under its flag is not doing so in order to avoid compliance. Articles 4 and 6 of the Compliance Agreement establish a regime for the international exchange of information concerning the records of fishing vessels, including any information concerning activities being undertaken by fishing vessels that would undermine the effectiveness of international conservation and management measures. Article 5 provides for international cooperation between states, including measures that are to be taken by port states to alert a flag state to any activities being undertaken by vessels flying its flag that are undermining the effectiveness of international conservation and management measures . In essence these provisions provide a further regulation of the right to fish on the high seas. This means that the Compliance Agreement reinforces the notion that on the high seas the more conditioned right to fishing prevails over the less conditioned freedom to fish.

CONCLUSIONS

The fact is that we have been too focused on short-term gain. Several international fisheries have collapsed and many more are under threat from overfishing. The promise of an everlasting "breadbasket from the sea" will not be realized unless we control our avarice for these resources. Although numerous official reports , conferences and international laws have recognized the perilous state of international fisheries, our efforts to fmd a regime for exploitation of the ocean's fisheries we share in common has been difficult to come by. Initial efforts to manage our access to the sea rested on advancing either the principle of freedom or the principle of sovereignty . Although the principle of freedom guarantees equal access, it is problematic in that it does not avoid the adverse consequences of intensive use of ocean resources. The principle of sovereignty, on the other hand, while permitting management within each sovereignty, cannot adequately govern common uses of the sea.

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8 THE FISHERIES REGIMES OF ENCLOSED AND SEMI-ENCLOSED SEAS AND HIGH SEAS ENCLAYES Michael W. Lodge

INTRODUCTION

One of the principal outcomes of the Third United Nations Conference on the Law of the Sea (UNCLOS III) was the near-universal acceptance of the concept of the extension of national jurisdiction over living marine resources as a means of promoting the conservation and management of such resources. The issue of the extent of national jurisdiction was indeed the dominant issue before the Conference, particularly in light of the failure of the 1958 and 1960 Conferences on the Law of the Sea to resolve some of the fundamental jurisdictional issues relating to law of the sea, including the issue of the breadth of the territorial sea and the extent of jurisdiction over the continental shelf. As a result of the widespread adoption by coastal states of 200 nautical mile exclusive economic or fisheries zones (exclusive economic zones), the fisheries resources of large areas of the ocean are now subject to the jurisdiction of coastal states. Along most of the world's coasts , the seaward limits of the exclusive economic zone abut large expanses of open ocean. This is not the case in enclosed and semi-enclosed seas, where, in most cases, the exclusive economic zones claimed by the littoral states overlap. In a number of places, however, the exclusive economic zones do not quite overlap, leaving small areas of high seas surrounded by waters under national jurisdiction. In terms of fisheries management, such small high seas areas arguably pose a special problem in that the coastal state or states are prevented from assuming full control for conservation purposes over the marine

E. Hey, (ed.), Developments in Internat ional Fisheries Law, p. 193-216. © 1999 Kluwer Law International. Printed in The Netherlands.

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living resources of an enclosed or semi-enclosed sea. Such sea areas are, by their nature, relatively confined regions that would be amenable to a coherent conservation and management regime under the authority of one or two states. In certain notable areas, states have gone to great lengths to conserve and manage fisheries resources in enclosed and semi-enclosed seas, only to find their efforts undermined by those who would use the freedom of the high seas to fish unregulated for the same resources in the center of an otherwise protected environment. In the Mediterranean Sea, for example, a semi-enclosed sea in which a majority of the littoral states have not claimed zones of extended jurisdiction, serious problems have arisen as a result of uncontrolled fishing by non-Mediterranean industrial fishing fleets which do not respect the recommendations of regional fisheries organizations such as the International Commission for the Conservation of Atlantic Tunas (ICCAT) and the General Fisheries Council for the Mediterranean (GFCM). To combat such activities, Spain has recently established a "fishing protection zone" extending outwards from its Mediterranean coastline, in which it exercises sovereign rights for the conservation, management and control of fishing activities, without prejudice to measures adopted or to be adopted by the European Union as regards the protection and conservation of marine living resources.' While an attempt was made in the United Nations Convention on the Law of the Sea (LOS Convention)? to reflect the concerns of states bordering enclosed and semi-enclosed seas,' it is apparent that issues relating to conservation and management of fisheries generally were subsumed under the dominant issue of the extent of national jurisdiction. In this respect, the major maritime powers were reluctant to assert any claims of jurisdiction that might create a precedent for further expansion of coastal state jurisdiction and it was not considered that enclosed and semi-enclosed seas warranted special treatment. In the years since the adoption of the LOS Convention, increased pressure on most commercial fish stocks has given rise to an extensive debate over

2

3

Royal Decree 1315/1997, 1 August 1997, cited in Oceans and the Law of the Sea: Report of the Secretary-General, N521487. (1982) 21 ILM 1261. Specifically on the fisheries provisions of the LOS Convention, see Hey. supra Chapter 2. Part IX. Enclosed or Semi-Enclosed Seas. LOS Convention.

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conservation and management of fisheries, culminating in the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks (the Conference). Important commercial fisheries for straddling stocks in enclosed and semi-enclosed seas have fared no better than , and in many cases worse than, fisheries for straddling stocks elsewhere. As a result, the Conference was put under pressure to create a special regime for enclosed and semi-enclosed seas, as well as to deal with the particular problem of high seas areas surrounded by waters under the jurisdiction of a single state - the so-called high seas enclaves. This pressure was resisted, largely because of concerns that it would create a precedent for the extension of coastal state jurisdiction elsewhere. Nevertheless, the Agreement adopted by the Conference - the 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" (Straddling and Highly Migratory Fish Stocks Agreement or the Agreement) - contains specific provisions relating to enclosed and semi-enclosed seas and areas of high seas surrounded entirely by an area under the jurisdiction of a single state.' These new provisions add a gloss to the provisions of Part IX of the LOS Convention without conferring any new or additional jurisdiction on coastal states bordering such areas .

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA In order to fully understand the way in which the LOS Convention and the Straddling and Highly Migratory Fish Stocks Agreement deal with the problem of enclosed and semi-enclosed seas in relation to fisheries, one has to commence with an examination of articles 122 and 123 of LOS Convention. The terms "enclosed" and "semi-enclosed" seas are difficult to define. Geographically, a "closed" sea is one that has no outlet through which to drain. Examples of closed seas include the Caspian Sea and the Aral Sea.

4

5

(1995) 34 ILM 1542. Specifically on the Straddling and Highly Migratory Fish Stocks Agreement Hayashi, see supra Chapter 4. Respectively, arts. 15 and 16, Straddling and Highly Migratory Fish Stocks Agreement.

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These "closed" seas must be distinguished from "enclosed" seas, which have outlets to the open ocean. There are five enclosed seas in which over 95 per cent of the periphery is occupied by land. These are the Baltic Sea, the Black Sea, the Mediterranean Sea, the Persian Gulf and the Red Sea. All of these seas suffer from slow exchange rates of water. They also tend to have unique ecosystems whose species developed in relative isolation from species in other marine ecosystems located beyond the enclosed sea in question . A semi-enclosed sea, on the other hand, may have a much broader connection with a larger body of water. Such is the case with the East China Sea, Sea of Japan, Sea of Okhotsk and the South China Sea. The Bay of Bengal, which may also be considered geographically as a semi-enclosed sea, has a 700-nautical mile opening onto the Indian Ocean, between Sri Lanka and Thailand. It is, in fact, very difficult to draw a distinction between semi-enclosed seas and mere curvatures of the coast based on the ratio of land to water alone and it is therefore necessary to take other factors into account, including the general geographic configuration of the area." Article 122, of the LOS Convention, defmes an enclosed or semi-enclosed sea as a gulf, basin or sea surrounded by two or more states and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal states.

Article 122 does not differentiate between enclosed and semi-enclosed seas, but indicates that, for the purposes of Part IX of the LOS Convention, if a sea meets either of the criteria specified in the article, it will be considered an enclosed or semi-enclosed sea. The criteria do not appear to be mutually exclusive, in the sense that a particular body of water may be surrounded by two or more states and connected with other waters by a narrow outlet while at the same time consisting "entirely or primarily" of the territorial seas or exclusive economic zones of two or more coastal states. Such is the case, for example, in the Mediterranean Sea. The definition is sufficiently broad to include a great many bodies of water as either enclosed or semi-

6

Lewis M. Alexander, "The Management of Enclosed and Semi-enclosed Seas," in Paolo Fabbri (ed.), Ocean Management in Global Change, Elsevier Applied Science, 1992, pp, 539-549.

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enclosed seas and permits relatively large and open areas to be included. During the debate on this issue in the Second Committee at the second session (1974) of UNCLOS III, the following bodies of water were referred to as coming within the general classification of enclosed and semi-enclosed seas: the Andaman Sea, the Baltic Sea, the Black Sea, the Caribbean Sea, the Celebes Sea, the East China Sea, the Mediterranean Sea, the Persian Gulf, the Red Sea, the Sea ofJapan, the Sea of Okhotsk and the South China Sea. Indeed, it has been suggested that the only real requirement is that the sea must be bordered by two or more states.' Article 123 of the LOS Convention addresses the rights and duties of states bordering enclosed and semi-enclosed seas. It emphasizes the need and desirability of cooperation between states bordering such areas and encourages them to initiate attempts to coordinate certain activities, policies and functions listed in the article. The article reads as follows: States bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization: a) to co-ordinate the management, conservation, exploration and exploitation of the living resources of the sea; b) to co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; c) to co-ordinate their scientific research policies and undertake where appropriate joint programs of scientific research in the area; d) to invite, as appropriate, other interested States or international organizations to co-operate with them in furtherance of the provisions of this article.

Article 123 recognizes that the special geographic situation of enclosed and semi-enclosed seas requires cooperation among the states bordering them, in particular with regard to the matters listed in subparagraphs (a) to (d). In this respect, article 123 recognizes that activities undertaken by one state in an enclosed or semi-enclosed sea may have a direct impact on the rights, duties and interests of other states bordering that sea. It is important to note that article 123 contains the only specific provisions in the LOS Convention

7

/d.

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which address the rights and duties of states bordering enclosed and semienclosed seas. As the chapeau to article 123 makes clear, the general law of the sea set out in the remainder of the LOS Convention applies in enclosed and semi-enclosed seas. No additional rights or jurisdiction are granted to the states bordering those seas. Such states have the same rights, jurisdiction and duties as all other coastal states. It is clear from an examination of the negotiating history of articles 122 and 123 that the concerns of states bordering enclosed and semi-enclosed seas were originally jurisdictional in nature," Early proposals relating to enclosed and semi-enclosed seas, such as proposals in the Sea-Bed Committee (sac) by Turkey and Uruguay , were made in the context of determining the breadth of the territorial sea." These proposals envisaged cooperation between littoral states in determining the breadth of the territorial sea in enclosed and semi-enclosed seas. At the second session of UNCLOS III, in 1974, several proposals were introduced that addressed direct cooperation or the establishment of regional arrangements between states bordering enclosed and semi-enclosed seas. Proposals by Turkey, Iraq and particularly Iran suggested that the "general rules" set out in the Convention shall apply to enclosed and semi-enclosed seas in a manner "consistent with the special characteristics of these seas and the needs and interests of their coastal States .?'" These proposals also provided for greater coastal state rights in enclosed and semi-enclosed seas than would otherwise have been the case, particularly with respect to protection of the marine environment and management of renewable resources. The various proposals made by, inter alia, Algeria, Iran, Iraq, Libya, Romania, Turkey and Yugoslavia were drawn together in a paper prepared by an informal consultative group on enclosed and semi-enclosed seas at

Myron H. Nordquist (ed. in chiet), The United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. 1II, Martinus Nijhoff, 1995, pp . 356 et seq. 9 UN Doc . NAC.138/SC.II/L.l6 (Rev.1), paragraph 2, III SBC Report 1973 at 2 (Turkey) and UN Doc . NAC.l381SC.II/L.24 art. 2, para . 2, III SBC Report 1973 at 23, 25 (Uruguay). 10 UN Doc . NCONF.621C.2IL.72 (1974), arts. 2-4, 1II Official Records of the Third Law of the Sea Conference, p. 237 (Iran) . 8

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the third session of UNCLOS III, in 1975.11 These ideas were consolidated in articles 134 and 135 of the Informal Single Negotiating Text (lSNT) which, for the first time, set out the main spheres of activity in which states bordering enclosed and semi-enclosed seas were expected to cooperate. The draft articles also made it clear that the provisions on enclosed and semienclosed seas were to be applied "in a manner consistent with" the other provisions of the Convention. Further proposals, including those by Denmark and the United Arab Emirates, sought to ensure the freedom of navigation in enclosed and semi-enclosed seas and proper coordination of fishing activities to ensure that the living resources in such seas would not be endangered by over-exploitation. The Danish proposal specifically called for regional arrangements to find equitable solutions to problems resulting from the introduction of economic zones affecting traditional fishing activities of littoral states in enclosed and semi-enclosed seas." Following informal negotiations, the text of article 134 was further revised and appeared as article 134 of the Revised Single Negotiating Text (RSNT). Whereas earlier versions had proposed a strict obligation to cooperate, the RSNT used hortatory language; "should cooperate" and "shall endeavour." At the sixth and seventh session orusctos III, various proposals were made to address concerns relating to delimitation of maritime space, freedom of navigation and overflight and the relationship between the rights and duties of states bordering enclosed and semi-enclosed seas and the other provisions of the Convention. None of these proposals was accepted, however, and article 134 of the RSNT became article 123 of the Informal Composite Negotiating Text (lCNT) . This was later incorporated in the Draft Convention, following minor drafting changes to bring the text into line with other provisions of the Convention. The thrust of article 123 is to encourage states bordering enclosed and semi-enclosed seas to initiate attempts to coordinate the functions, activities and policies mentioned in subparagraphs (a) to (d). There is, however, no mandatory obligation to join with the states bordering such seas in the activities specified in the article. States also are encouraged to work through

C.2IBlue Paper No. 13 (1975. mimeo.), Provisions 223 and 225 (Working Paper 1), reproduced in Renate Platzoder (ed.), Third United Nations Conference on the Law of the Sea: Documents, Vol. IV, Oceana Publications, 1983, p. 350. 12 Denmark (1976, mimeo .), art. 134 (ISNT 11), reproduced in Platzoder, id., p. 355.

11

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"an appropriate regional organization" to coordinate the activities listed and, to this end, regional organizations and agreements have been established under the auspices of international organizations such as FAO, IMO, IOC and UNEP. In particular, regional coordination of activities intended to protect the marine environment has been established under the auspices of UNEP's Regional Seas Programme. These include, for example, the 1983 Cartagena Convention for the Protection and Development of the Wider Caribbean Region," the 1982 Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment" and the 1976 Barcelona Convention for the Protection of the Mediterranean Sea against Pollution.15 With regard to fisheries resources, subparagraph (a) of article 123 makes it clear that the activities to be coordinated include the "management, conservation, exploration and exploitation" of the living resources of the sea. This gives emphasis to the provisions of article 61, paragraph 2, which requires coastal states to take "proper conservation and management measures" to ensure that living resources are not endangered by over-exploitation, as well as article 63, paragraph 1, which requires coastal states to "coordinate and ensure the conservation and development" of stocks occurring in the economic zone of two or more states. Articles 117-119 of the LOS Convention require all states to cooperate in the conservation and management of high seas living resources and require that measures be taken to regulate the exploitation of such resources. It is the conflict between the interests of coastal states and the interests of fishing states in the implementation of these provisions that gave rise to the Straddling and Highly Migratory Fish Stocks Agreement. As a result of acute fisheries problems in several enclosed and semi-enclosed seas, it became apparent that there was a need to give effect in a more concrete way to the provisions of Part IX of the LOS Convention. Problems in three particular areas helped to focus international attention on enclosed and semi-enclosed seas. These areas included the "loophole" of the Barents Sea, the "doughnut hole" in the central Bering Sea and the "peanut hole" in the Sea of Okhotsk. The Sea of Okhotsk merits special

13 14

15

(1983) 22 lIM 227. (1982) 9 Environmental Policy and Law , p. 56 (1976) 15 lIM 285.

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consideration as an area of high seas surrounded entirely by an area under the jurisdiction of a single state.

ENCLOSED AND SEMI-ENCLOSED SEAS

The "loophole" (Smuthullet in Norwegian) is an area of high seas in the central Barents Sea. It is situated north of the Kola Peninsula, west of Novaya Zemlya and southwest of the Svalbard archipelago, roughly equidistant from them. It is triangular in shape, bounded on the east by the Russian exclusive economic zone, on the southwest by disputed waters that are claimed by both Norway and the Russian Federation, and on the northwest by the Svalbard fisheries protection zone (under Norwegian sovereignty). The Barents Sea itself represents 0.3% of the world's ocean area, but 4% of the annual fish harvest worldwide. The most important fish stocks of the Barents Sea are North-East Arctic cod, haddock and capelin; these occur both within areas under national jurisdiction and in the loophole. From 1991, pressure on the stocks in the loophole began to increase as first French and Greenlandic, and then various flag-of-convenience fishing vessels began to fish in the area. In 1993, Icelandic fishing vessels began to fish for cod in the loophole in large numbers, leading to open conflict with Norwegian fishermen , who claim that the loophole is an important spawning ground for North-East Arctic cod. In 1993, the estimated catch in the loophole was 12,000 Mt., but escalated in 1994 to 60,000 Mt., much of which, it is claimed, consisted of juvenile cod which would otherwise have migrated back into Russian or Norwegian waters." Over-fishing in the loophole thus presents a threat to the future health of fish stocks under the national jurisdiction of Norway and the Russian Federation. The situation in the loophole represents more than a simple dispute over catch allocations on the high seas. The Barents Sea has important strategic and foreign policy significance for both Norway and the Russian Federation. Historically, nearly half Norway's total catch has been taken in the Barents Sea and both Norway and the Russian Federation have followed a policy of conflict avoidance in the region, manifested in close bilateral cooperation

16 William V. Dunlap, "Straddling Stocks in the Barents Sea Loophole," (1996-97)

4 Boundary and Security Bulletin, pp. 79-91.

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for their mutual benefit. Iceland's strong presence in the loophole has been seen as a response to Norway's reluctance to grant Iceland fishing quotas in the Svalbard fisheries protection zone. Under the terms of the 1920 Spitsbergen Treaty," which Iceland ratified in 1994, each signatory has the right to exploit the natural resources of the Svalbard zone, subject to nondiscriminatory regulation by Norway. On this basis, fishing rights have been allocated to states that have traditionally fished in the region, including the European Union, the Faroes, Greenland, Norway, Poland and the Russian Federation. By 1996, however, catches in the loophole had reduced to about 23,000 Mt. and Iceland, Norway and the Russian Federation had entered into multilateral negotiations with a view to reaching agreement on fishing quotas for Iceland. It seems probable that, at least for cod stocks, the problems in the loophole will be amenable to a multilateral solution in accordance with the provisions of the LOS Convention and the Straddling and Highly Migratory Fish Stocks Agreement. Far more serious problems have been encountered in the Bering Sea. The urgent need to find a solution to these problems led to the conclusion of a significant multilateral agreement between the states concerned and also played an important role in the successful outcome of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. The Bering Sea consists largely of the exclusive economic zones of the Russian Federation and the United States. In the Aleutian Basin of the central Bering Sea, a high seas enclave exists of approximately 55,000 square nautical miles, entirely surrounded and defined by the seaward limits of the exclusive economic zones of the Russian Federation and the United States. This enclave is known as the "doughnut hole" and encompasses about 8% of the Bering Sea. The Bering Sea contains highly valuable fisheries, particularly for Alaska Pollock. Fishing in the exclusive economic zones of the Russian Federation and the United States is regulated by national laws and regulations . For both countries, the Bering Sea is an important domestic fishing ground. The Aleutian basin Pollock stock straddles the zones of the Russian Federation and of the United States and is fished in the doughnut

17

Treaty Relating to Spitsbergen, Paris, 9 February 1920, entered into force 14 August 1925, 2 UNTS 7.

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hole by vessels from China, Japan, the Republic of Korea, Poland and Taiwan. These vessels were progressively displaced from the Russian and United States zones during the 1980s, as domestic fishermen from those states became capable of harvesting the optimum sustainable yield. As a result, catches in the doughnut hole escalated rapidly from 363,000 Mt. in 1985 to 1.4 million Mt. in 1989. 18 The fishery collapsed over the next two years to such an extent that by 1992 annual harvests were down to approximately 10,000 Mt. It was also alleged that foreign vessels were using the doughnut hole as a staging area for illegal forays into the exclusive economic zones of the Russian Federation and United States. In an effort to conserve the pollock stock, the Russian Federation and the United States reduced, then suspended, domestic fisheries inside their respective zones, causing hardship for domestic fishermen. Distant-water fishing nations, however, refused to suspend their operations in the doughnut hole until, in 1993, the fishery collapsed and was no longer economically viable. A voluntary moratorium came into effect for 1993 and 1994, while at the same time, the Russian Federation and the United States spearheaded multilateral efforts to establish an effective international conservation regime for the Bering Sea. Between 1991 and 1994, ten diplomatic conferences were held between the coastal states and distant-water states fishing in the region . The outcome of these negotiations was the Convention on the Conservation and Management ofPollock Resources in the Central Bering Sea 19 (Doughnut Hole Agreement), signed in 1994 by representatives of China, the Republic of Korea, the Russian Federation and the United States. The Doughnut Hole Agreement is a particularly interesting agreement because it was developed more or less in parallel with the Straddling and Highly Migratory Fish Stocks Agreement. It both influenced and was influenced by the negotiations at the United Nations, particularly in the way it reflects the strong United States position against any further enclosure

Doc. NCONF.I64/L.33. Conservation and management of Straddling Fish Stocks in the BeringSea and the Sea of Okhotsk, submitted by the delegations of the Russian Federation and the United States of America, July 28, 1993, reproduced in Jean-Pierre Levy and GunnarG. Schram (eds.), United Nations

18 UN

19

Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, Selected Documents, Martinus Nijhoff, 1996, p. 263. (1994) 5 Yearbook of International Environmental Law, p. 821.

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of the seas as a solution to the problems of straddling fish stocks and enclosed and semi-enclosed seas. One approach to the doughnut hole problem would clearly have been for the coastal states involved to seek a bilateral solution based on articles 122 and 123 of the LOS Convention, in conjunction with article 116(b), and to establish a conservation and management regime for the entire Bering Sea. 20 Instead, consistent with its position during UNCLOS III, the United States called for all states involved to enter into negotiations to establish international conservation measures. At the same time, both the United States and the Russian Federation took the position that, in the case of enclosed and semi-enclosed seas , in view of the threat of serious or irreparable harm to the coastal state or states from excessive unregulated fishing, the coastal state or states had the right, prior to agreement on international management arrangements, to take interim protective measures designed to afford due and necessary protection to the relevant fish stocks. Such interim measures are to be taken bearing in mind that they "should not be discriminatory, either in form or in substance, and should apply equally to nationals of the coastal States and nationals of States fishing in the enclaves, and that the lack of full scientific certainty may not constitute a reason for the postponement of such measures.'?' The Doughnut Hole Agreement avoids any language that could have strengthened the position of any side in the debate over the freedom of the high seas and coastal state interests in straddling fish stocks beyond areas under national jurisdiction. The Agreement applies to the high seas of the Bering Sea and establishes an annual conference of the parties that will serve as a forum for, inter alia, the establishment of conservation and management

20

21

L. Miovski, "Solutions in the Conventionon the Law of the Sea to the Problem of Overfishing in the Central Bering Sea: Analysis of the Convention, Highlighting the Provisions ConcerningFisheries and Enclosed and Semi-enclosed Seas," (1989) 26 San Diego Law Review, pp. 525-574. UN Doc. NCONF.I64/L.45. Letter from the Chairman of the delegation of the Russian Federation addressed to the Chairman of the Conference, March 29, 1994. The Annex to the letter contains a draft resolution of the United Nations Conferenceon Straddling Fish Stocksand HighlyMigratory Fish Stocks relating to fishing in areas fully surrounded by the exclusive economic zones of one or more states. The letter and Annex are reproducedin Levy and Schram (eds.) , supra note 18, p. 551.

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measures. In view of the failure of many existing international fisheries organizations to achieve sustainable management of stocks, the Agreement contains a number of radical provisions designed to ensure that timely and effective decisions are made and enforced. The main role of the annual conference is to establish annually the allowable harvest level (AHL) for Alaska Pollock and individual national quotas. In setting the AHL, the annual conference is to take full account of the reports and recommendations of a scientific and technical committee established by the Agreement. Decisions on matters of substance are to be taken by consensus. However, if consensus cannot be reached, the AHL is to be determined according to a pre-established procedure set out in the annex to the Agreement. Under this agreed procedure, the pollock biomass is to be established by agreement between two institutions, one designated by the Russian Federation and the other designated by the United States. If the two institutions cannot agree, the biomass will be set automatically by basing it on the United States institution's calculation of the biomass of a specific area in the exclusive economic zone of the United States. The AHL is then calculated from the biomass according to detailed rules. This procedure is designed to overcome one of the major drawbacks of multilateral fisheries agreements, namely the failure to achieve consensus on critical stock conservation issues and the availability of "opting-out" procedures under which anyone party may decline to apply particular conservation and management measures if it disagrees with the decision taken by the majority. It is apparent that the Doughnut Hole Agreement leans heavily in favor of coastal state interests in conserving and managing the fish stocks of the Bering Sea. However, in doing so, it avoids any assertion of extended jurisdiction based on the provisions of the LOS Convention. In addition, it reinforces the concept of compatibility of measures in areas under national jurisdiction and on the high seas - a concept that is central to the Straddling and Highly Migratory Fish Stocks Agreement. In this way, the United States and the Russian Federation, both major maritime powers as well as coastal states, have successfully reconciled their conflicting interests in preserving the freedom of the high seas while at the same time ensuring better conservation and management of fish stocks. A similar approach was adopted during the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. During its early stages, several delegations, including the delegation of the Russian

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Federation, sought to distinguish between straddling stocks generally and straddling stocks in enclosed and semi-enclosed seas. Because of the situation in the Bering Sea it was convenient for the United States to distinguish between situations where the greater part of the stocks were under the jurisdiction of one or two states, and thus amenable to management by the coastal state or states, and situations where the stock was shared between several states. However, neither the United States nor many other maritime and fishing states, including China, the European Union and Poland, were prepared to countenance any extension of coastal state jurisdiction beyond ZOO nautical miles, even in the case of enclosed and semi-enclosed seas. Once a multilateral solution to the Bering Sea problem was found in 1994, it was no longer necessary for the Conference to focus specifically on the issue of enclosed and semi-enclosed seas in isolation from the issue of straddling stocks in general. The attention of the Russian Federation turned to fmding a solution to its problems in the Sea of Okhotsk; it was to spend the remainder of the Conference pressing (successfully) for recognition of the special circumstances of areas of high seas surrounded entirely by an area under the jurisdiction of a single state. As far as enclosed and semi-enclosed seas are concerned, the Straddling and Highly Migratory Fish Stocks Agreement, like the LOS Convention, contains a single brief article, which provides as follows : In implementing this Agreement in an enclosed or semi-enclosed sea, States shall take into account the natural characteristics of that sea and shall also act in a manner consistent with Part IX of the Convention and other relevant provisions thereof."

Article 15 makes it clear that Part IX of the LOS Convention remains the basis for cooperation in enclosed and semi-enclosed seas. It also makes it clear that there is no special jurisdiction over enclosed and semi-enclosed seas and that other relevant provisions of the Convention and the Agreement continue to apply. The one additional factor that article 15 requires states to take into account is the "natural characteristics" of the sea. Article 15 was adopted at a relatively late stage of the negotiations in the Conference and was intricately linked to the negotiations on article 16 (Areas of high

22 Art. 15, Straddling and Highly Migratory Fish Stocks Agreement.

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seas surrounded entirely by an area under the national jurisdiction of a single state). In earlier drafts of the Agreement, the article made specific reference to straddling fish stocks and highly migratory fish stocks and required states to take into account the geographical and ecological characteristics of the enclosed or semi-enclosed sea." As late as April 1995, the Russian Federation submitted an informal proposal to add to article 15 a requirement that States shall take into account geographical, natural and ecological characteristics of that sea, legal and other relevant conditions of the conduct of the fishery, any conservation and management measures mutually agreed by the coastal States, and, taking into consideration the rights, duties and interests of coastal States."

This proposal was not accepted. By the final session of the Conference in August 1995, it was generally accepted that article 15 should be retained in the text, but that its emphasis should be on the need for consistency with Part IX of the LOS Convention and the other provisions of the Agreement. In the last informal revision of the Chairman's Draft Agreement, the words "ecological characteristics" which had replaced the words "geographical and ecological characteristics" in earlier drafts were changed to "natural characteristics."25 Notwithstanding the widespread reluctance of the Conference to make special provision for enclosed and semi-enclosed seas, it is apparent that some of the particular concerns of states with respect to the situations in the Bering Sea, the loophole and other semi-enclosed seas such as the Mediterranean Sea, are reflected in other provisions of the Agreement, particularly article 7 on compatibility of conservation and management measures. Thus, in listing the factors to be taken into account in determining compatible conservation and management measures, paragraph 2 of article 7 requires that states shall take into account, inter alia, the following: - the conservation and management measures adopted and applied in accordance with article 61 of the Convention in respect of the same stocks

Doc. AlCONF.I64/22/Rev.1. Chairman's Revised Negotiating Text, April 11, 1995, reproduced in Levy and Schram (eds.), supra note 18, p. 671. 24 Informal proposal by the Russian Federation, April 6, 1995 (mimeo.). 25 Informal draft text, August 2, 1995, 3 p.m. (mimeo.) , 23

UN

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by coastal States within areas under national jurisdiction and ensure that measures established in respect of such stocks for the high seas do not undermine the effectiveness of such measures." - the biological unity and other biological characteristics of the stocks and the relationships between the distribution of the stocks, the fisheries and the geographical particularities ofthe region concerned, including the extent to which the stocks occur and are fished in areas under national jurisdic-

tion;" - the respective dependence of the coastal States and the States fishing on the high seas on the stocks concerned:"

Although article 7 applies to all straddling fish stocks and highly migratory fish stocks, it is apparent that the matters listed above assume special relevance in the case of enclosed and semi-enclosed seas. This approach to the problem is fully consistent with the position of the United States and of many other maritime states such as China, the European Union, Japan, and the Republic of Korea, that enclosed and semi-enclosed seas do not merit special treatment on jurisdictional grounds, but, for practical reasons, should be recognized as having certain distinguishing characteristics.

HIGH SEAS ENCLAYES

The LOS Convention makes no special provision for so-called "high seas enclaves," or areas of high seas surrounded entirely by an area under the jurisdiction of a single state. This is hardly surprising since there are, in fact, very few such areas, the main examples being the so-called "peanut hole" in the Sea of Okhotsk, two tiny enclaves within the exclusive economic zone of New Zealand and a high seas enclave within the exclusive economic zone of Japan . For practical purposes, because of their small size, the New Zealand and Japanese enclaves have little significance. None of them are sufficiently large to support independent fishing operations. Indeed for fisheries purposes , New Zealand 's enclaves are treated as part of the exclusive economic zone. The Sea of Okhotsk is the only example of a semi-

26 Art. 7(2)(a) , Straddling and Highly Migratory Fish Stocks Agreement. 27 Art. 7(2)(d), Straddling and Highly Migratory Fish Stocks Agreement. 28 Art. 7(2)(e) , Straddling and Highly Migratory Fish Stocks Agreement.

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enclosed sea having a high seas enclave surrounded by the zone of a single state. The "peanut hole" makes up some 3% of the total area of the Sea of Okhotsk and measures some 300 miles from north to south and some 30 miles from east to west. The most important commercial fish stock in the Sea of Okhotsk is Alaska Pollock. The stock is fished by Russian fishermen in the Russian Federation's exclusive economic zone as well as by fishermen of other states in the peanut hole. According to submissions made by the Russian Federation to the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, the peanut hole is of particular importance for regulating the fishing of Alaska Pollock in the Sea of Okhotsk since it is there that the subpopulations of Alaska Pollock, which reproduce in the north-west, east and north of the Sea, intermingle. Fishing for Alaska Pollock in the peanut hole could also have detrimental effects on stocks of other commercial species which spend certain periods of their life cycle in this area, namely, herring, halibut, salmon, seals, fur seals and sea lions." As is the case with the Bering Sea, the pollock spawning grounds are inside the areas of national jurisdiction. For these reasons, the Russian Federation unilaterally introduced a permanent ban on fishing in the peanut hole, which was observed by states traditionally fishing in the area. The Russian Federation assumed responsibility for conservation and management of the stocks in the Sea of Okhotsk, taking the initiative to establish a total allowable catch for Alaska Pollock for the Sea as a whole which was then divided up among the various fishing areas. Catch quotas within the exclusive economic zone were allocated to a number of other countries on the basis of bilateral agreements. From 1991, however, fishing vessels from China, Panama, Poland and the Republic of Korea started large-scale fishing activities in the peanut hole. Between 1991 and 1993 it was estimated that 1.5 million Mt. of fish were taken from the peanut hole alone. According to the Russian Federation, in 1992 alone the total Alaska Pollock catch in the peanut hole exceeded the total allowable catch of Alaska Pollock by one and a half times . It was also claimed that the enclave was being used for illegal fishing forays into

Doc. NCONF.I64/L.21. Consequences of unscientific fishing for Alaska Pollock in the enclave of the Sea of Okhotsk, submitted by the Russian Federation, July 22, 1993, reproduced in Levy and Schram (eds.), supra note

29 UN

18, p. 223 .

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Russian waters adjacent to the enclave. Because of the extent of over-fishing, scientists were obliged to reduce the total allowable catch in the Russian zone in 1992 and 1993 in order to prevent spawning stocks from being totally eliminated. This reduction in the total allowable catch aroused protests from Russian fishermen. In 1992, the Russian Federation commenced diplomatic efforts to reduce over-fishing in the peanut hole." The first multilateral negotiations between the Russian Federation and states fishing on the high seas in the Sea of Okhotsk took place in April 1992. No measures to regulate the fishery were agreed upon, although Poland agreed to voluntarily adopt measures consistent with the conservation and management measures adopted by the Russian Federation in its own exclusive economic zone. In 1993, the Russian Federation adopted legislation under which it assumed complete responsibility for the conservation of living resources on the high seas of the Sea of Okhotsk and established a moratorium on fishing by Russian and foreign vessels until an international agreement on this issue could be reached. At the same time, Japan agreed voluntarily to abide by the moratorium, while China, Poland and the Republic of Korea offered to reduce their catches in the peanut hole by up to 25%. These measures were deemed insufficient by the Russian Federation, which continued to negotiate with individual states on a bilateral basis for reductions in fishing effort, while at the same time pressing the case for special treatment of high seas enclaves at the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. It is important to note that, in the case of the Sea of Okhotsk, none of the states fishing on the high seas rejected the need for conservation and management measures, including, if necessary, a moratorium on fishing. They considered, however, that under international law the issue should be resolved through cooperation between all interested states, not through extension of coastal state jurisdiction. The Japanese position, in particular, is complicated by the fact that, contrary to assertions by the Russian

30

Alex Oude Elferink, "Fisheries in the Sea of Okhotsk High Seas Enclave," (1995) 10 The International Journal of Marine and Coastal Law, pp. 1-18.

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Federation, Japan is a coastal state in the Sea of Okhotsk, although its 200nautical mile zone would not extend as far as the peanut hole." In its submissions to the Conference, the Russian Federation sought to draw a distinction between, on the one hand, straddling fish stocks which are exploited in high seas areas adjacent to the exclusive economic zones of coastal states and, on the other hand, straddling fish stocks which are exploited in high seas enclaves in enclosed and semi-enclosed seas.32 According to the Russian Federation, in view of the fact that high seas enclaves occupying small areas within enclosed and semi-enclosed seas in fact lie across the migration routes of certain fish species exclusive to the coastal states, the basic provisions of the regime for the conservation and rational utilization of such fish stocks of enclosed and semi-enclosed seas should be based not only on articles 63 and 123, but also on articles 61 and 62 of the LOS Convention, which imposes a duty on the coastal state to conserve the stocks. Accordingly, the coastal states of enclosed or semi-enclosed seas should independently determine the total allowable catch for all fish stocks in these seas and should establish annual catch quotas for each species." A number of factors were cited in support of such an approach. These included the social and economic dependence of the coastal state on the exclusive economic zone portion of such stocks, the fact that in most cases the coastal state has assumed the financial burden of monitoring the status of the stocks, developing and implementing measures for their conservation and carrying out surveillance of fishing activities and the fact that the coastal state has at its disposal the results of scientific, oceanographic and environmental analyses of the area and stocks in question. In addition, the Russian Federation pointed out that, as a rule, the practice of fishing for straddling fish stocks in areas beyond and adjacent to an exclusive economic zone has emerged over the last five to seven years with a lack of scientific foundation

Due to a dispute between Japan and the Russian Federation over sovereignty over the Kurile Islands, Habomai Islands and Shikotan, the precise extent of their respective maritime zones in the Sea of Okhotsk is uncertain. 32 UN Doc. NCONF.164/L.18. Definition of straddling stocks of marine life and list of their main species, submitted by the delegation of the Russian Federation, July 20, 1993, reproduced in Levy and Schram (eds.), supra note 18, p. 215. 33 UN Doc. AlCONF.164/L.32. Letter from the Alternate Chairman of the delegation of the Russian Federation addressed to the Chairman of the Conference, July 27, 1993, reproduced in Levy and Schram, supra note 18, p. 257. 31

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and without any effort to elaborate and comply with conservation measures. This has caused a decline in stocks and the breakdown of existing systems for the regulation of fishing established by the coastal state. While early proposals by the Russian Federation dealt with the issue of enclosed and semi-enclosed seas in general, it soon became apparent that its main pre-occupation was with the special situation of the Sea of Okhotsk. This became more evident as it became apparent that a multilateral solution to the Bering Sea problem was imminent. By the third session of the Conference, in March 1994, the Russian Federation and the United States introduced a draft resolution to deal with the problem of unregulated fishing in "areas fully surrounded by the exclusive economic zones of one or more States.?" The text of the draft resolution referred to such areas as "enclaves" and affirmed the right of the coastal state, in the absence of any agreement with fishing states, to take "interim protection measures designed to afford due and necessary protection to the relevant fish stocks." While many delegations acknowledged the particular problems of the Sea of Okhotsk, the draft resolution failed to attract widespread support, largely because of concerns over affording legal recognition to the concept of "enclaves." It was correctly pointed out in this regard that most areas of high seas are "fully surrounded by the exclusive economic zones of one or more States," including, for example, a number of "enclaves" in the western Pacific." A more specific proposal by the Russian Federation, dealing with "areas of high seas forming an enclave surrounded entirely by areas under the national jurisdiction of one State," attracted a greater degree of support and was incorporated into the Chairman's Draft Agreement as article 14, im-

Doc. NCONF.164/L.45. Letter from the Chairman of the delegation of the Russian Federation addressed to the Chairman of the Conference, March 29, 1994, reproduced in Levy and Schram (eds.), supra note 18, p. 551. Five such "enclaves"exist.These occurbetweenthe exclusiveeconomiczones of (l) Australia I Papua NewGuineaI Solomon Islands(500 knr') , (2)Federated States of Micronesia I Papua New Guinea I Indonesia I Palau (375,000 km'), (3)FederatedStates of Micronesia I Marshall Islands I Nauru I Kiribati I Tuvalu I Fiji I Solomon Islands (792,000 knr'), (4) Solomon Islands I Fiji I Vanuatu (76,000 krrr'), (5) Cook Islands I Kiribati I French Polynesia (103,000 km') .

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mediately following the article on enclosed and semi-enclosed seas." The basic philosophy behind the proposal of the Russian Federation - to encourage active cooperation with the coastal state in such areas - received widespread support, particularly from coastal states with interests over straddling stocks, such as Canada, Peru and the United States. Nevertheless, in the face of quite strong opposition from China, the European Union and the Republic of Korea, it was not possible to reach agreement on the language of article 14 until the final stages of the Conference. As proposed by the Russian Federation, article 14 would have required states whose nationals intend to fish for straddling fish stocks and highly migratory fish stocks in an area of the high seas surrounded entirely by an area under the national jurisdiction of a single state, to cooperate with that state to establish conservation and management measures for the high seas area. Such measures should be agreed prior to the commencement of fishing and should be no less effective than the measures in force as adopted by the coastal state for surrounding areas under its jurisdiction. The proposal further provided that if, within a reasonable period of time, the fishing states concerned were unable to reach agreement with the coastal state, then provisional measures "shall be applied" in accordance with article 7 of the draft Agreement. Such provisional measures, among other things, would have had to take into account the conservation and management measures in force in the areas under national jurisdiction. Opposition to the proposal by the Russian Federation focused on the implication that the coastal state had some form of special jurisdiction in high seas enclaves. Both China and Poland, for example, insisted that no exception should be made simply to deal with the special circumstances of one state and objected to any recognition of a special status for "enclaves." The European Union considered that the special provision was unnecessary and the problem should be considered in the framework of Part II of the draft Agreement on compatibility. In essence, the Russian problem was no different to the problems faced by other coastal states with regard to straddling fish stocks.

36 UN Doc . AlCONF.164/L.47. Letter from the Permanent Representative of the

Russian Federation to the United Nations addressed to the Chairman of the Conference, March 24, 1995, reproduced in Levy and Schram (eds.), supra note 18, p. 725.

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Article 14 of the Chairman's Draft Agreement was incorporated into the final text of the Agreement as article 16, under the title "Areas of high seas surrounded entirely by an area under the national jurisdiction of a single State," all references to "enclaves" having been deleted. Article 16 requires that States fishing for straddling fish stocks and highly migratory fish stocks in an area of the high seas surrounded entirely by an area under the national jurisdiction of a single State and that State [i.e., the coastal state] shall cooperate to establish conservation and management measures in respect of those stocks in the high seas area.

The article goes on to specify that states shall pay special attention to establishing compatible conservation and management measures, having regard to the natural characteristics of the area. Measures taken in respect of the high seas shall take into account the rights, duties and interests of the coastal states under the LOS Convention, shall be based on the best scientific evidence available and shall take into account also any conservation and management measures adopted and applied in respect of the same stocks in accordance with article 61 of the LOS Convention by the coastal state in the area under national jurisdiction. Article 16 goes further than article 123 of the LOS Convention in the sense that it draws attention to a specific, and virtually unique, situation . Nevertheless, it is clear that article 16 creates no additional rights for coastal states beyond those which are already provided for in the LOS Convention. The article is carefully worded so as not to confer any special legal status on "enclaves." However, by requiring states to pay "special attention" to establishing compatible conservation and management measures, and by drawing attention to the need for states to act in good faith and make every effort to agree without delay on conservation and management measures, it establishes an appropriate framework for cooperation between states consistent with the other provisions of the Straddling and Highly Migratory Fish Stocks Agreement.

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CONCLUSIONS It is widely recognized that one of the main strengths of the LOS Convention is that it is a product of consensus among the international community as a whole . Most, if not all, legitimate interests are taken into account in one way or another in the LOS Convention, largely as a result of initiatives taken during the negotiating process by special interest groups sharing particular problems and concerns. Examples of such special interests include the landlocked and geographically disadvantaged states, whose interests are reflected in Part x of the LOS Convention and archipelagic states, whose interests are reflected in Part IV. Nevertheless, as the purpose of the LOS Convention was to establish general principles and norms applicable to all states, there were some areas in which it was not possible to fully reflect the specific concerns of individual states while at the same time preserving the integrity of the fundamental jurisdictional limits which had been agreed upon. Such was the case with enclosed and semi-enclosed seas. In this regard it should be recalled that, for the maritime powers, the provisions in the LOS Convention concerning resource conservation in the exclusive economic zone constituted a concession to coastal states that wanted exclusive control over resources on, under and above their continental shelves. The 200 nautical mile boundary is arbitrary in the sense that it is respected neither by migratory nor fixed resources. During the 1980s, it became very apparent that UNCLOS III did not give the issue of conservation and management of fisheries resources the attention it deserved. However, while the problems of fisheries for straddling stocks were particularly exacerbated in a number of enclosed and semi-enclosed seas, they were in essence the same as the problems of fisheries for straddling stocks generally. During the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, attempts were made to establish a special status for enclosed and semi-enclosed seas. These attempts failed, largely for the same reasons that they failed during UNCLOS III. The notion of extending coastal state jurisdiction beyond 200 nautical miles, even in limited circumstances, was not acceptable to the large majority of states. It was considered that the answer to fisheries problems lay in giving effect to the duty to cooperate enunciated in the LOS Convention . Nevertheless, as a result of concerns expressed by a number of important states, particularly the Russian Federation, the Conference did recognize the fact that the problems

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of managing straddling fish stocks are amplified in enclosed and semi-enclosed seas. Accordingly, the Straddling and Highly Migratory Fish Stocks Agreement adds a gloss to article 123 of the LOS Convention by requiring states to take into account the "natural characteristics" of enclosed and semienclosed seas in fulfilling their duty to cooperate. The Conference expressly rejected attempts to create a special status for high seas enclaves . Nevertheless, in response to the concerns of one particular state, the Russian Federation, the Conference recognized the unusual situation of areas of high seas surrounded entirely by an area under the jurisdiction of a single state. No special legal status is given to such areas, but, in its article 16, the Straddling and Highly Migratory Fish Stocks Agreement establishes an appropriate framework for cooperation between states in such areas, consistent with the other provisions of the Agreement.

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9 THE ROLE OF REGIONAL FISHERIES MANAGEMENT ORGANIZAnONS

Bob Applebaum and Amos Donohue

INTRODUCTION

The United Nations 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, I (the Straddling and Highly Migratory Fish Stocks Agreement)," can be considered a "great leap forward" for the role of regional fisheries organizations.' in the conservation and management of marine fish stocks. The Straddling and Highly Migratory

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UNGA document NCONF.I64/37, 8 September 1995, (1995) 34 ILM 1542. Specifically on the Straddling and Highly Migratory Fish Stocks Agreement see Hayashi , supra Chapter 4. The Straddling and Highly Migratory Fish Stocks Agreement is also frequently referred to as "the Straddling Stocks Agreement," but this is a misnomer as it excludes reference to highly migratory stocks, one of the two types of stocks with which it is concerned. There are, understandably , sensitivities on this point. The authors will use this term to connote all entities relevant to this study, comprising "subregional or regional fisheries management organizations and arrangements" referred to in the Straddling and Highly Migratory Fish Stocks Agreement. See discussion on definitions, infra p. 2, regarding the meaning of "organization" and "arrangement." The Straddling and Highly Migratory Fish Stocks Agreement does not ascribe different roles to these two different types of entity and the authors found no need to differentiate between them in terminology used in this text.

E. Hey, (ed.), Developments in International Fisheries Law, p. 217-249 . © 1999 Kluwer Law International . Printed in The Netherlands .

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Fish Stocks Agreement was signed by 59 states and as of August 1997 had been ratified or acceded to by 154 of the 30 states or entities required for entry into force.' The Straddling and Highly Migratory Fish Stocks Agreement both codifies widely accepted concepts and rules and introduces new ones. The value of the approaches it takes is such that it is likely to be regarded, in situations where it is not binding, as a charter for the sector of global maritime relations to which it relates: the conservation and management of straddling and highly migratory fish stocks . The Agreement is also bound to influence international relations concerning conservation and management of fish stocks to which the Straddling and Highly Migratory Fish Stocks Agreement does not apply and which also occur in areas beyond the exclusive jurisdiction of states. (Such stocks are excluded either expressly, e.g., sedentary species," by exclusion from the subject matter, e.g., anadromous species, or implicitly, e.g., marine mammals.) While the Straddling and Highly Migratory Fish Stocks Agreement is a major source for this commentary on the role of regional fisheries organizations it is not, of course, the only source. Other sources, including in particular the United Nations Convention on the Law of the Sea of 10 December 1982 7 (LOS Convention), will also be canvassed.

DEFINITIONS AND EXAMPLES The fisheries-related provisions of the LOS Convention use a variety of terms to refer to regional fisheries organizations; for example, "competent intema-

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Bahamas, Fiji, Iceland, Federated States of Micronesia, Mauritius, Nauru, Norway, Russian Federation, Saint Lucia, Samoa, Senegal, Solomon Islands, Sri Lanka, Tonga, United States of America. Information issued by the Division of Ocean Affairs and the Law of the Sea at its web site www.un.orglDepts/losl los 164st.htm. Art. 40, Straddling and Highly Migratory Fish Stocks Agreement. Art. l(c) of the Agreement expressly excludes sedentary species. (1982) 21 lLM 1261. Specifically on the fisheries provisions of the LOS Convention see Hey, supra Chapter 2.

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tional organizations, whether subregional, regional or global." "subregional or regional organizations,"? "international organizations.?'? "regional organizations"" and "subregional or regional fisheries organizations.':" The terms are undefined, presumably because the drafters did not consider definitions necessary. The Straddling and Highly Migratory Fish Stocks Agreement employs the term "subregional or regional fisheries management organization or arrangement." It first appears in article 7(2)(c),(7) and (8), before becoming the focal point of Part III, entitled, "Mechanisms for International Cooperation Concerning Straddling Fish Stocks and Highly Migratory Fish Stocks." While "organization" is not defined, the short defmition section 13 provides that "arrangement" means a cooperative mechanism established in accordance with the Convention and this Agreement by two or more States for the purpose, inter alia, of establishing conservation and management measures in a subregion or region for one or more straddling fish stocks or highly migratory fish stocks.

A wide variety of entities, including those commonly considered "organizations" because they are constituted by treaty and are endowed with secretariats, would seem to fit within this definition. The Northwest Atlantic Fisheries Organization (NAFO)14 and the Inter-American Tropical Tuna Commission (IATIC)15 exemplify this type of entity. The 1994 Convention on the Conservation and Management of Pollock Resources in the Central

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Arts. 61(5) and 119(2), LOS Convention. Art. 63(1) and (2), LOS Convention. Arts. 64(1) and 65, LOS Convention. Art. 66 LOS Convention. Art. 118, LOS Convention. Art. l(d), Straddling and Highly Migratory Fish Stocks Agreement. Established by article II of the 1978 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, OJ, 1978, L 378/2. For further information see Ellen Hey, The Reg imefor the Exploitation of Transboundary Marine Fisheries Resources, Martinus Nijhoff, 1989, pp. 187-191. Established by article 1(1)of the 1950 Inter-American Tropical Tuna Convention, 80 UNTS 4. For further information see id., pp. 217-219 .

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Bering Sea,16 which established an organization of states" operating without the benefit of a secretariat, would also appear to fit within the definition. Similarly, in the southern Pacific and Indian Oceans, a variety of organizations, some established by treaty, some bilateral, some multilateral and some informal, would also appear to fall within the definition, together with the less structured entities commonly referred to as "arrangements.':" Thus, any international entity engaged in fisheries management, irrespective of whether it is called an "organization" or an "arrangement," would appear to fit within the definition of "arrangement" quoted above. Accordingly, it would seem to be largely a matter of semantics, rather than legal consequence, whether the entity (established by treaty or informally, with or without a secretariat) is referred to as an organization, an arrangement or otherwise. The term "regional fisheries organization," in this chapter, thus will be used to refer to all international entities engaged in the function of fisheries management for straddling and highly migratory stocks.

TwENTIETH CENTURY DEVELOPMENTS

While the historical development of regional fisheries organizations predates the 20th century, their proliferation and development during this century

Commonly referred to as the Donut Hole Agreement, reproduced as an appendix to William V. Dunlap, "The Donut Hole Agreement", in (1995) 10 The International Journal of Marine and Coastal Law, p. 27, pp. 114-135. 17 Art. n(4), Donut Hole Agreement 18 For an overview of relevant organizations , agreements and arrangements, see World Review ofHighly Migratory Species and Straddling Stocks, FAO Fisheries Technical Paper No. 337, FAO, Rome, 1994, pp. 34-35. For a more detailed description see also Evelyne Meltzer, "Global Overview of Straddling and Highly Migratory Fish Stocks: The Nonsustainable Nature of High Seas Fisheries," (1994) 25 Ocean Development and International Law, pp. 255-344, pp. 305-317 and pp. 321-322 (an earlier version of this article was commissioned by the Government of Canada for and distributed at the Conference of LikeMinded States, St. John's, Newfoundland, January 1993); S.H. Marashi, Summary Information on the Role ofInternational Fishery and Other Bodies with Regard to the Conservation and Management ofLiving Resources ofthe High Seas, FAD Fisheries Circular No. 908, FlPUC908, Rome, 1996, pp. 60-80; a summary table is at Annex I. 16

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has been considerable." Many forces have been at work in this respect. The technological evolution of fishing vessels and equipment, including motorization and refrigeration, for example, extended the range and fishing capacity of fishing fleets. As a result, competition for the resources increased. At the same time demand for fish increased as a result of similar technological developments in land transportation combined with population growth and concentration in urban centers. Moreover, scientific progress led to new capacities in fields such as fish biology and population assessments that resulted in improved techniques for fisheries management. Finally, beginning in mid-century, the geographically limited extent of coastal state jurisdiction (mostly extending to 12 nautical miles) was replaced by 200-nautical mile exclusive fishing or economic zones. These developments, together with the growing efforts of states to deal with fisheries conflicts, led to a proliferation, and in some cases renovations, of regional fisheries organizations. In responding to these forces, governments had primarily two considerations in mind. First, they wanted to respond to the tendency of competitive fishery situations to lead to stock depletion. The aim was to manage fisheries in a manner that would make them as productive and stable as possible. Second, they wanted to avoid international conflict, possibly armed conflict, in the competition for these resources. When governments turned their attention to the establishment of regional fisheries organizations, these organizations took many different forms . Some were bilateral, in situations where , because of geography, only two states were involved. One typical example is the Mixed Technical Commission for the ArgentinalUruguay Maritime Front (CTMFM),20 established in 1974. It adopts and coordinates conservation and management measures for marine living resources found in the Common Fishing Zone and measures to protect the marine environment. The CTMFM also determines the total allowable catches and allocates fishing quotas to each party in the area of the Common Fishing Zone. Another example is the Canada-United States Pacific Salmon

19 For an overview of regional fisheries organizations and their mandates generally, 20

see, S.H. Marashi, id. Established by article 80 of the 1973 Treaty of the La Plata River and its Maritime Jurisdiction, (1974) 13 lIM 251. For further information see Hey, supra note 14, pp. 143-145 .

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Commission, established in 1985. 2 1 Its function, broadly speaking, is to regulate catches of various species of salmon, which originate in the rivers of each state, by fishers of the two countries who operate along the coast. Its main objectives are to allow sufficient escapements to spawning grounds to enable stocks to rebuild if required, to manage stocks to produce the optimum yield and to divide the yield between the two states in accordance with the principles established in the Treaty. No other states were involved, as the stocks concerned are fished legally only in Canadian and United States waters. Most fisheries organizations are multilateral, because the fish stocks involved are harvested by fishers from more than two countries, usually operating in high seas as well as coastal areas. One early regional fisheries organization of this type was the International Commission for the Northwest Atlantic Fisheries (ICNAF).22 Another was the Northeast Atlantic Fisheries Commission (NEAFC).23 Both these organizations from the outset included a large number of states as participants" and were established to manage a large number of stocks, primarily groundfish, of many different species. Similar multilateral organizations developed with a narrower focus in terms

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Established by article n(l) of the 1985 Treaty Concerning Pacific Salmon, concluded between the Government of Canada and the Government of the United States of America, us TIAS No. 11091. For further information see id. pp.263-269. Established by article 11(1) of the 1949 International Convention for the Northwest Atlantic Fisheries, 157 UNTS, 157. ICNAF was terminated on December 31, 1978, and replaced by the Northwest Atlantic Fisheries Organization (NAFO). For further information see Hey, supra note 14, pp. 188-191. Established by article 3 of the 1980Conventionon Future MultilateralCooperation in North-East AtlanticFisheries, OJ 1980,L 227/22. For further information see id., pp. 181-185. Art. 20 of the NEAFC Convention lists the following Parties as eligible to sign: Bulgaria, Cuba, Denmark (in respect of the Faroe Islands),the European Economic Community, Finland, German Democratic Republic, Iceland, Norway, Poland, Portugal, Spain, Sweden and the Soviet Union; ICNAF was negotiated by Canada,Denmark,France,Iceland, Italy, Norway,Portugal,Spain, the United Kingdom, and the United States.

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of stocks and species to be managed. Typical examples include the IATIC,25 the main purpose of which is to conserve and manage the populations of yellowfin and skipjack tuna in the eastern Pacific , and the International Commission for the Southeast Atlantic Fisheries (ICSEAF),26 which, in the Southeast Atlantic convention area," sought to promote and encourage research and to manage all fish and living resources, subject to arrangements with other bodies. Generally the various regional fisheries organizations established in the first half of the 20th century approached the process of fisheries management (including enforcement) in a gradual and evolutionary manner. The initial effort focused international cooperation on gathering and analysis of data to enable scientists and managers to establish the databases required for the development of management approaches. As databases were developed, rudimentary management systems such as mesh size limits and closed seasons and/or areas were put into place and then supplemented by more sophisticated systems, including total allowable catch limits (TACS) and national quotas. In the closing years of the 20th century more sophisticated management and enforcement tools are being implemented. These include limitations on effort, international observer programs, international inspection programs at sea and in port, and satellite monitoring of vessel position and catches at sea.

See supra note 15. The initial parties were Costa Rica and the United States; subsequently other coastal states as well as states fishing for the resource also became parties to the Convention. 26 1969 Convention on the Conservation of the Living Resources of the South Atlantic. A protocolof termination, however, was drawn up in 1990and sessions of the Commission have not been held since that year. Marashi, supra note 19, p.45. 27 South of the Congo River and north of parallel 50 degrees south.

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THE LOS CONVENTION AND REGIONAL FISHERIES ORGANIZATIONS The primary fisheries provisions of the LOS Convention" contain numerous references to regional fisheries organizations." The LOS Convention, however, does not ascribe specific duties to these organizations. Instead, the relevant provisions are premised on the assumption that regional fisheries organizations exist for purposes that are well understood, that any new regional fisheries organizations will be established in a manner consistent with the framework envisioned in the Convention and that all regional fisheries organizations will operate within this framework. Upon analysis of the various provisions, however, it becomes clear that the LOS Convention envisions a greater role for regional fisheries organizations than their founders may have generally intended. Article 61, on the conservation of living resources in the exclusive economic zone, in its second paragraph, provides that "[tjhe coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by overexploitation." The paragraph goes on to state "[a]s appropriate the coastal State and competent international organizations (regional fisheries organizations) shall cooperate to this end.?" A number of points are noteworthy about this provision. With regard to stocks located entirely within exclusive economic zones, the role of regional fisheries organizations may be considered to be different from their role with regard to straddling and highly migratory stocks. For the former, and as regards fisheries for straddling and highly migratory stocks inside 200 miles , their role as envisaged in the LOS Convention would seem to be limited to giving advice to the coastal state. For the latter, the formulation

Part V, Exclusive Economic Zone, and part VII, High Seas, Section 2, Conservation and Management of the Living Resources of the High Seas, LOS Convention. 29 See the discussion supra at pp. 218-220 . 30 As regional fisheries organizations will not be parties to the LOS Convention, they will not be legally bound by provisions like this; quaere whether states parties to LOS Convention and members of a regional fisheries organization are legally bound to initiate and support decisions by the regional fisheries organization to honor this obligation . 28

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leaves open the possibility that the regionalfisheries organization's role (and obligation) also relates to high seas fisheries for these stocks, i.e., to cooperate with the coastal state which seeks that cooperation in order to honor its obligation to "ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation." Indeed, without the cooperation of the relevant regional fisheries organization, the coastal state's obligation in this respect would appear to be difficult, if not impossible, to carry out for straddling and highly migratory stocks. The coastal state's obligation thus would appear to include pressing the relevant regional fisheries organization to adopt the necessary measures. The significance of article 61(2) for the high seas can be logically accommodated within the ambit of the term "as appropriate" with which the second sentence of the paragraph begins. Further, the term "as appropriate" also qualifies the obligation, as denoted by the use of "shall," imposed on the regional fisheries organization (and the coastal state) to cooperate. This qualification raises uncertainties about the nature of the obligation to cooperate and may give rise to disputes. Resort can then be had to the dispute settlement provisions of the LOS Convention. These include the possibility for the regional fisheries organization, through its member states, to obtain compulsory conciliation pursuant to article 297(3)(b)(i), if it is alleged that "a coastal State has manifestly failed to comply with its obligations to ensure ... that the maintenance of the living resources in the exclusive economic zone is not seriously endangered." It, accordingly, may be considered part of the role of a regional fisheries organization to pursue, through its member states and where appropriate, dispute settlement options . This role also arises under other LOS Convention provisions, which use similar language, creating obligations to cooperate through regional fisheries organizations where appropriate. Of the provisions discussed below, article 65, on marine mammals, article 66, on anadromous stocks, article 118, on cooperation of states in the conservation and management of living resources of the high seas and article 119, on conservation of the living resources of the high seas, would appear to envisage this role? The ability of regional fisheries organizations to pursue dispute settlement options is, of course, limited by the fact that regional fisheries organizations cannot themselves be parties to LOS Convention. This also will present a problem to any coastal state that wishes to challenge a regional fisheries

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organization under article 61(2). Presumably, in the former situation, a regional fisheries organization could call on its member states to act on its behalf and, in the latter situation, a coastal state could launch proceedings against the member states of the regional fisheries organization that it alleges is failing to cooperate as required. The significance of the word "proper" in the formulation "...ensure through proper conservation..." in article 61(2) should not be overlooked. The term would not appear to connote "effective", the need for effectiveness being addressed by the obligation to "ensure" that the maintenance of the living resources is not endangered by over-exploitation. Presumably the term "proper" refers to the appropriateness of the measure within the overall context of the fishery in question. It, for example, can be taken to mean that the management measures used must be environmentally sound and consistent with international law. It would, for instance, be improper to ensure the maintenance of one or more living resources by endangering one or more other stocks, for example, of species that prey on the species to be protected or that consume the same nutrients. To assume otherwise would be contrary to the objectives expressed in article 61(4) and article 119l(b). Similarly, in the context of a regional fisheries organization cooperating with a coastal state with regard to straddling or highly migratory stocks, the word "proper" may be taken to mean that it would be improper for a regional fisheries organization to advise a coastal state to close its fishery within its exclusive economic zone while high seas fishing for these stocks continues. The role of a regional fisheries organization under article 61(2) to cooperate with the coastal state (and vice versa), is limited, for all stocks, i.e., those entirely inside 200 miles and those both inside and outside 200 miles, to the situation described in paragraph 2, where it is necessary to ensure that the "maintenance" (not the development) of the living resources is not "endangered" (not just affected) by "over-exploitation.'?' There is no reference to regional fisheries organizations in paragraph 3, which establishes the obligation of the coastal state to maintain or restore populations at levels

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Not by, for instance, a bloom of predators attacking a stock which is not being exploited.

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which can produce the maximum sustainable yield, and thus provides no equivalent role for regional fisheries organizations." However, paragraph 3 does point to another role for regional fisheries organizations. It requires the coastal state to take into account "fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global." It seems, accordingly, to be part of the role of a regional fisheries organization to give the coastal states concerned all relevant information relating to the high seas area adjacent to their exclusive economic zones and to inform the coastal states of any international minimum standards the relevant regional fisheries organization may have developed. Another role for a regional fisheries organization would be to develop minimum international standards, and to bring these standards to the attention of relevant coastal states, particularly in situations where the regional fisheries organization considers that a coastal state is not taking these standards into account in the management of the fisheries within its exclusive economic zone. Regional fisheries organizations are referred to again in article 61(5), with their role described as recipients of and exchange mechanisms for "available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks...where appropriate and with participation by all states concerned...." Article 62, on the utilization of the living resources, does not specifically refer to regional fisheries organizations. However, it indicates another role for them. Paragraph 5 requires coastal states to "give due notice of conservation and management laws and regulations" pertaining to their exclusive economic zones. While coastal states are not required to use regional fisheries organizations for this purpose, they would seem to provide the most appropriate avenue for performance of this obligation. Article 63 33 assigns to regional fisheries organizations the role of an optional forum for the development of conservation and management measures for the stocks concerned. It specifies that, for straddling stocks,

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The role of regional fisheries organizationsin this respect arises through article 119(l)(a) for high seas areas. On stocksoccurringwithinthe exclusiveeconomic zonesof two or more coastal states, or both within the exclusive economic zone and in an area beyond and adjacent to it.

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the role of the regional fisheries organization is limited to the adjacent area, i.e., the high seas area adjacent to the exclusive economic zone ofthe coastal state. It is important to note that this provision and article 64 incorporate a special interest for the coastal state in the high seas area: even if the coastal state is not fishing the straddling or highly migratory stocks concerned, on the high seas or in its exclusive economic zone, the coastal state must be included in the negotiations for the measures to be applied in this high seas area . Other states must actually be engaged in fishing in this high seas area, for the stock concerned, in order for both the right and duty to participate in the negotiations to materialize for them . It must be assumed to be part of the role of the regional fisheries organization to involve the coastal state in the negotiation process, even if the coastal state is not a member of the regional fisheries organization. Like article 63, article 64, on highly migratory species, provides for regional fisheries organizations to serve as an optional forum for cooperation, "with a view to ensuring conservation and promoting ... optimum utilization ... both within and beyond the exclusive economic zone ." It seems somewhat odd, however, that while states are required to "cooperate...with a view to ensuring conservation ...," they have no obligation to cooperate for this purpose through a regional fisheries organization, but are nonetheless obliged, in regions where no appropriate regional fisheries organization exists, to "co-operate to establish such an organization and participate in its work." Article 65, concerning marine mammals, refers specifically to "appropriate international organizations." The first sentence appears, prima facie , simply to protect any function that such an organization may exercise pursuant to its founding instrument to "prohibit, limit or regulate...more strictly than provided for in this Part ." It, however, thereby recognizes a role for a relevant regional fisheries organization to consider such action. The second sentence, furthermore, requires states, in the case of cetaceans, to "work through the appropriate international organizations for their conservation, management and study." Accordingly, the role of regional fisheries organizations must include providing a forum and avenues for states to engage in such cooperation. Article 66, which deals with anadromous stocks, refers specifically to regional fisheries organizations in its paragraph 5. It provides that

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[T]he State of origin of anadromous stocks and other States fishing these stocks shall make arrangements for the implementation of the provisions of this article, where appropriate, through regional organizations.

In this case, the fairly complex preceding provisions of this article are to be implemented by the relevant states through regional fisheries organizations "where appropriate." The remaining articles of Part V do not expressly provide a role for regional fisheries organizations. However, a few points and anomalies are worth noting . First, it is unclear why, unlike the preceding four articles, article 67, which deals with catadromous species, makes no reference to the role of regional fisheries organizations. The situation with respect to the conservation and management of catadromous species appears no different, in principle, from the situations applicable to the other species that migrate outside exclusive economic zones. Secondly, the provisions regarding the rights of landlocked and geographically disadvantaged states" refer to bilateral, subregional or regional agreements but envisage no role for regional fisheries organizations. Lastly, article 75 requires the coastal state to "give due publicity" to its charts or lists of geographical coordinates concerning the outer limits of its exclusive economic zone. The relevant regional fisheries organization might be a convenient recipient and disseminator of this information and a role in this respect can be assumed. The high seas fisheries section of the LOS Convention" contains provisions regarding the role of regional fisheries organizations similar to those discussed above pertaining to the exclusive economic zone. Article 118 requires "States whose nationals exploit identical living resources, or different living resources in the same area" to, "as appropriate, co-operate to establish" regional fisheries organizations to provide for the conservation of the living resources concerned. Article 119 provides roles for regional fisheries organizations both implicitly and expressly. Paragraph 1(a) requires that "any generally recommended international minimum standards, whether subregional, regional or global" be taken into account in managing fish stocks. In paragraph 2 there is a requirement that scientific information, etc., be contributed and exchanged on a regular basis through the relevant regional fisheries

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Arts. 69 and 70, LOS Convention. Arts. 116-120, LOS Convention.

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organizations "where appropriate." From this it may be concluded that regional fisheries organizations should develop international minimum standards, receive and disseminate the indicated information and indeed, when necessary, press states to provide it. Article 120 simply extends the marine mammal provisions found in article 65 to the high seas. In summary regional, fisheries organizations, pursuant to the LOS Convention, are expected to engage in a number of activities that are either closely, or fairly, consistent with what their founders probably intended. These activities include: to provide forums for international cooperation in the conservation of the various types of marine fish stocks (not including sedentary species, which are provided for in article 77) in accordance with the terms of the respective articles and, more specifically, to serve as recipients of and exchange mechanisms for scientific information and data on relevant fish stocks. However, the organizations are also expected to engage in a number of activities that probably, in most cases, go considerably beyond what their founders may have anticipated. These activities include: following a new standard, the requirement to protect stocks associated with harvested stocks from depletion, conserving stocks outside 200 miles in accordance with this standard and in a manner that assists coastal states in implementing all the applicable standards inside 200 miles, for straddling and highly migratory stocks, involving the coastal state in their conservation outside 200 miles (even if the coastal state is not fishing the stock in the relevant high seas area or its own zone and chooses not to become a member of the organization), giving advice to coastal states on the conservation of stocks inside the 200 mile zone in order to avoid stocks becoming endangered by overexploitation, in appropriate cases, pursuit of compulsory dispute settlement options, providing coastal states with all relevant information regarding fishing activities in high seas areas adjacent to their exclusive economic zone and the transmission to coastal states of appropriate minimum standards, providing a conduit through which coastal states can fulfill their obligation to give due notice of their relevant conservation and management laws and regulations as well as make available information on the outer limits of their exclusive economic zones, and finally, with regard to marine mammals, to consider stricter regulations than those required for other species and to provide for states that choose not to be members of the relevant organizations, avenues for "working through" the organizations for the purpose of conservation, management and study.

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Implementation of the above-listed activities requires considerable management authority on the part of regional fisheries organizations. The LOS Convention, however, failed to confer such authority on these organizations. The Straddling and Highly Migratory Fish Stocks Agreement, as will be considered in the next section of this chapter, fills this gap.

THESTRADDLING AND HIGHLY MIGRATORY FISH STOCKS AGREEMENT AND REGIONAL FISHERIES ORGANIZAnONS While the LOS Convention treats regional fisheries organizations as part of its general framework, in the Straddling and Highly Migratory Fish Stocks Agreement, to a large extent, regional fisheries organizations actually constitute the framework from which rights and duties (on the high seas) emanate, and without which these rights and duties would be largely, and in some cases entirely, inoperable. For example, in article 8(3) and (4), where a regional fisheries organization has the competence to establish management measures, states fishing for the stocks and the relevant coastal states must either join or agree to apply , on the high seas, the measures established by the regional fisheries organization. Also, under article 21, a state other than the flag state can board, inspect and, in specified situations, take further action on the high seas against vessels of other states parties, only if the inspecting state is a member of the competent regional fisheries organization. Moreover, the conservation and management measures that the latter state may investigate are those established by the regional fisheries organization. The starting point in the LOS Convention and the Straddling and Highly Migratory Fish Stocks Agreement, however, is similar: both identify the problem of fisheries management as the absence of a single management authority for any region or subregion. For the area adjacent to a coastal state, the LOS Convention solves this problem by permitting the establishment of an exclusive economic zone, a zone of up to 200 miles subject to the jurisdiction of a single fisheries management authority - the coastal state. For high seas areas, the Straddling and Highly Migratory Fish Stocks Agreement does something similar by requiring states to establish regional fisheries organizations and providing compelling incentives, as indicated above, for

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them to do SO.36 Within the cooperative regime established by the Agreement, these organizations are to become single management authorities on the high seas for stocks subject to their conservation and management jurisdiction. The difference of approach between the Convention and the Agreement is obscured by the care taken in the Straddling and Highly Migratory Fish Stocks Agreement, as in the LOS Convention, to make resort to regional fisheries organizations optional. The language used is similar to that used in the LOS Convention when reference is made to regional fisheries organizations. For instance, language used in article 63(2) of the LOS Convention, requiring states to "seek, either directly or through appropriate subregional or regional organizations, to agree ..." essentially is reproduced in the provisions of the Straddling and Highly Migratory Fish Stocks Agreement such as article 7(l)(a). It requires states to "seek, either directly or through the appropriate mechanisms for cooperation provided for in Part III, to agree ...." Clearly, the result is that states can avoid using regional fisheries organizations to achieve cooperation. However, it is important, in understanding what is intended (though not required) in the Agreement, to distinguish the practical from the theoretical. In the LOS Convention's fisheries provisions there is neither preference for one option over the other, nor any suggestion that seeking to agree directly rather than through regional fisheries organizations is not a practical solution. The Straddling and Highly Migratory Fish Stocks Agreement, on the other hand, is premised on the assumption (although the option of direct cooperation is available), that direct cooperation is not, in most cases, intended, nor practical, if obligations are to be honored, or rights exercised on the high seas. The obligations expressed in the LOS Convention as simple duties to "seek to agree.':" i.e., cooperate, begin to take shape more specifically in article 5 of the Straddling and Highly Migratory Fish Stocks Agreement. A few examples should suffice to illustrate this point. LOS Convention articles 63(2) and 64 treat direct cooperation and cooperation through regional fisheries organizations as equally viable in establishing conservation measures between a number of states, while providing not a clue as to the

36

Art. 8(5), Straddling and Highly Migratory Fish Stocks Agreement.

37 E.g., art. 63. LOS Convention.

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nature of the conservation measures required. Article 118 takes a similar approach. There appear to be only two exceptions: article 65, on marine mammals, which requires states to "work through" the appropriate international organizations and article 119, which, while preserving the option of direct cooperation, provides such specifics regarding the objectives of the conservation measures to be applied as to tilt the balance away from direct cooperation towards cooperation through regional fisheries organizarions ." The specificity in article 119 regarding objectives does not, however, approach the specificity in the Straddling and Highly Migratory Fish Stocks Agreement, in particular articles 5 and 6, regarding the nature of the conservation measures and their content. This specificity provides the basis for a coherent set of management measures unlikely to be achieved in a multilateral setting except through regional fisheries organizations. In the LOS Convention, the overall approach to the achievement of internationally agreed conservation measures suggests incoherence, or at best coherence achieved through an incoherent process. The Straddling and Highly Migratory Fish Stocks Agreement, on the other hand, comes close to mandating coherence in both process and result. This approach can be seen clearly in article 5, pursuant to which parties are required to adopt measures to ensure long-term sustainability and promote the objective of optimal utilization, ensure" that such measures are based on the best scientific evidence available designed to maintain or restore stocks at levels capable of produc ing maximum sustainable yield (MSY), apply the precautionary approach, minimize pollution, waste, discards, protect biodiversity and collect and share, in a timely manner, complete and accurate data as set out in Annex 1. That the Straddling and Highly Migratory Fish Stocks Agreement aims for a coherent process, i.e., a coherent means to achieve a coherent end, and its dependence on regional fisheries organizations to achieve that process, is brought out more fully as the text continues . It then becomes clear

38

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The obligation in article 119 is not just "conservation" as in article 63(2), but management measures "designed ... to maintain or restore populations ... at levels which can produce the maximum sustainable yield" while taking into consideration "the effects on species associated with...harvested species" to maintain or restore them "above levels at which their reproduction may become seriously threatened ." The term "ensure" does not appear in the similar LOS Convention provision, article 119(l)(a).

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that most of the substantive provisions of the Straddling and Highly Migratory Fish Stocks Agreement are intended to be implemented, on the high seas, by and through regional fisheries organizations." The emphasis on coherence, and therefore on regional fisheries organizations, begins, as indicated, with article 5 and continues with article 6. The latter sets out the precautionary approach and specific roles for regional fisheries organizations on the high seas and coastal states inside their zones, e.g., to "apply the guidelines set out in Annex II and determine...stock-specific reference points and the action to be taken if they are exceeded. ,,41 Article 7 provides for compatibility between measures established for the high seas and those adopted for areas under national jurisdiction, with paragraphs 2 and 7 setting out detailed obligations as to how this is to be achieved. In Part III, on mechanisms for international cooperation, the focus of the Straddling and Highly Migratory Fish Stocks Agreement on regional fisheries organizations becomes even more explicit. Article 8(3), for example, requires the relevant states to join competent regional fisheries organizations, or to apply, on the high seas, the conservation and management measures they establish. Article 9 provides detailed obligations for states in establishing regional fisheries organizations. Article lO describes, with considerable precision, the "functions" of regional fisheries organizations and requires states which are members to cooperate so that these functions are carried out. These functions are described in further detail in article 11, dealing with new members, article 12, dealing with transparency, article 13, requiring the strengthening of existing regional fisheries organizations, article 14, requiring collection of scientific data and cooperation in scientific research and article 17(4), dealing with states that are not members of the relevant regional fisheries organizations and whose vessels, on the high seas, undermine the effectiveness of their conservation and management measures. The Straddling and Highly Migratory Fish Stocks Agreement in its Part VI, on compliance and enforcement, deals with a different role of regional fisheries organizations. This part is founded on the radical innovation estab-

Articles 5, 6 and 7, pursuant to article 3 of the Straddling and Highly Migratory Stocks Agreement, affect the areas inside as well as outside 200 miles, and the need for coherence will require an inter-relationship between regional fisheries organizations and coastal states in the development by the latter of measures to apply inside their zones to straddling and highly migratory fish stocks . 41 Art. 6(3)(b), Straddling and Highly Migratory Fish Stocks Agreement. 40

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lished earlier in the text in article 8(3) and (4), and repeated in article 19(1), which requires states to ensure that their vessels, on the high seas, comply with the conservation and management measures established by competent regional fisheries organizations, whether or not they are members. Based on this foundation, the Straddling and Highly Migratory Fish Stocks Agreement confers on members of regional fisheries organizations the right to enforce these measures on the high seas against vessels of states parties to the Agreement whether or not they are members of the relevant regional fisheries organization, and establishes a number of functions for regional fisheries organizations in this regard. For example, pursuant to article 21(2), states must, through regional fisheries organizations, establish procedures for boarding and inspection of the fishing vessel of any state party present in the high seas area, whether or not it is actually fishing (with the procedures specified in article 21(3) to apply in the interim). Further, article 21(11)(i) provides that regional fisheries organizations, if they choose, may specify other serious violations, in addition to those set out in sub-paragraphs (a) to (h), which, if committed, activate the enforcement measures provided in paragraph 8. Article 21(15) provides that regional fisheries organizations may establish "an alternative mechanism which effectively discharges the obligation ... to ensure compliance," with the effect that any member of a regional fisheries organization that does this can agree with any other member or members to limit the application of the enforcement mechanism established pursuant to paragraph 1, "as between themselves." Finally, regional fisheries organizations are assigned additional roles in Part VII, on requirements of developing countries. These include to "provide assistance to developing states,"? to "enhance the ability of developing states ... to conserve and manage ... and to develop their own fisheries," to assist them to participate in high seas fisheries for the relevant stocks and to facilitate their participation in regional fisheries organizations."

42 Art. 24(1), Straddling and Highly Migratory Fish Stocks Agreement. 43 Arts. 25(1)(a) and (b) respectively. It is noteworthy that the following provisions

do not envision any role for regional fisheries organizations: Art. 7(4),(5) and(6); Art. 15, "Enclosed and Semi-Enclosed Seas"; Art. 16, "Areas of High Seas Surrounded Entirely by an Area Under the National Jurisdiction of a Single State.

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As the Preamble to the Straddling and Highly Migratory Fish Stocks Agreement indicates in its penultimate substantive clause, the Agreement is intended to implement the relevant provisions of the LOS Convention for the relevant stocks. The Agreement, thus, can be compared to regulatory instruments used in the national sphere to implement statutes in order to achieve the objectives sought by the legislators. Put in its simplest terms, the major objective sought by the "legislators" of the LOS Convention, with regard to fisheries, was the conservation of the living resources of the sea. For the 200-mile areas adjacent to coastal states, they provided an implementing mechanism in the form of a single management authority - the coastal state, which is required to establish and implement conservation, management and enforcement measures following specified guidelines. For the area outside 200 nautical miles, no implementing mechanism was provided, leaving gaps regarding both the system for establishing conservation and management measures (much more complex under the "freedom of the high seas" and in the case of straddling and highly migratory stocks) and the identification of effective authorities to enforce them. The Straddling and Highly Migratory Fish Stocks Agreement fills both these gaps. As indicated above, the Agreement provides the necessary framework in the form of detailed rules to be followed in establishing multinationally agreed conservation and management measures for straddling and highly migratory stock; and, through the operation of the Agreement, regional fisheries organizations are expected to become the single management authorities for the establishment of these measures for the high seas, and for their enforcement, through member states, on the high seas.

OTHER INTERNATIONAL INSTRUMENTS

Two additional recently developed international instruments, the Code of Conduct for Responsible Fisheries" (Code of Conduct) and the Agreement to Promote Compliance with International Conservation and Management

44 Text availableon the FAO web site: www.fao.org!wAICENTIFAOINFOIFISHERY/agreem/codecond. Specifically on the Code of Conduct see Moore, supra Chapter

5.

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Measures by Fishing Vessels on the High Seas" (Compliance Agreement), to some extent supplement the provisions of the LOS Convention and the Straddling and Highly Migratory Fish Stocks Agreement with regard to the role of regional fisheries organizations. Neither adds significantly, in this respect, to what is provided in LOS Convention and the Straddling and Highly Migratory Fish Stocks Agreement, nor provides much in the way of a direct focus on regional fisheries organizations as purveyors of choice for the functions these instruments describe. However, both instruments provide scope for regional fisheries organizations that choose to expand their activities in fulfilling their primary role: providing for the conservation and management of the stocks for which responsibility has been assigned to them.

Code of Conduct Regional fisheries organizations are included in the long list of agencies that are tasked with implementing the provisions of the Code.46 The provisions of the Code relevant to regional fisheries organizations closely track those in the LOS Convention and more so those in the Straddling and Highly Migratory Fish Stocks Agreement. This should not come as a surprise, since the Agreement and the Code were being developed over the same time period. The drafters of the Code, accordingly, relied extensively on the guiding principles of the Straddling and Highly Migratory Fish Stocks Agreement as it was being developed . Unlike the Straddling and Highly Migratory Fish Stocks Agreement, however, the Code applies to all fisheries, not just straddling stocks and highly migratory stocks, and extends to fisheries-related matters well beyond those covered by the LOS Convention or the Straddling and Highly Migratory Fish Stocks Agreement." While it is doubtful that most regional fisheries organizations will be interested in expanding their roles to include most of these matters, it is

(1994) 33 fLM 968. Specifically on the Compliance Agreement see Balton, supra Chapter 3. 46 Arts. 1.2 and 4.1, Code of Conduct. 47 See, e.g., international trade (art. 6.14), education and training (art . 6.15), "safe, healthy and fair working and living conditions ..."(art. 6.18).

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conceivable that some regional fisheries organizations may be suited to the implementation of some of them.

Compliance Agreement The Compliance Agreement assigns to the FAO rather than to regional fisheries organizations the primary role for international coordination, where required." However, some provisions of the Compliance Agreement can be seen as suggesting roles for regional fisheries organizations. These provisions, as well as those providing scope for regional fisheries organizations that choose to expand their activities in fulfilling their primary roles, are discussed below. Substantive scope of application Article 11(2) of the Compliance Agreement allows a party to exempt any fishing vessels under 24 meters in length from application of the Agreement, subject to specified conditions . Paragraph 3 provides that without prejudice to paragraph 2, in any region conforming to the description specified in paragraph 3, the relevant coastal states parties may agree, either directly or through appropriate regional fisheries organizations, to establish a minimum length of fishing vessels below which the Agreement shall not apply in respect of fishing vessels flying the flag of any such coastal state operating exclusively in such fishing regions. It is unclear whether paragraph 3 means that the relevant coastal states can choose to agree on a minimum length longer than 24 meters (which would appear to defeat the "without prejudice" provision referred to above) or whether it means that the relevant coastal states can choose to agree on a minimum length shorter than 24 meters (which would appear to be selfevident) . In any event, since the relevant coastal states can legally make this decision in concert with each other, it is unlikely that they would choose to settle the issue through a regional fisheries organization, where other distant-water fishing states would become involved in determining the new limit for exemption. Accordingly, while the provision suggests a potential

48

See, e.g., art. VI, on the exchangeof information, of the ComplianceAgreement.

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role for regional fisheries organizations, actual implementation through regional fisheries organizations is unlikely.

International cooperation Article v(3) of the Compliance Agreement provides that the Parties shall, when and as appropriate, enter into cooperative agreements or arrangements of mutual assistance on 'a global, regional, subregional or bilateral basis so as to promote the achievement of the objectives of the Agreement.

This provision does little more than imply a possible role for regional fisheries organizations in that one possible way to negotiate and implement the cooperative agreements or arrangements called for would be through regional fisheries organizations. Even then, that function would not involve regional fisheries organizations in implementing any of the provisions of the Agreement, but only in promoting the achievement of its objective - deterrence of reflagging to avoid compliance with regional fisheries organization conservation and management measures. However, states members of a regional fisheries organization could use this provision as a basis for a proposal to expand the role of the organization so as to include implementation of specific provisions of the Compliance Agreement." A recent example of a regional fisheries organization taking a measure in line with the broad objective of the Compliance Agreement is found in a 1997 NAFO Resolution." The Resolution provides a "Scheme to Promote Compliance by Non-Contracting Party Vessels with the Conservation and Enforcement Measures Established by NAFO .,,51 Since most such fishing in recent years is attributable to vessels owned by nationals of NAFO member

Examples: to propose a minimum length for exemptions under art. II, in a situation where the relevant coastal states are avoiding regional fisheries organization involvement, to bring to the attention of a party (whether or not the party belongs to the relevant regional fisheries organization) that the party should not have exercised its right, under art. III paragraph 5(d), to authorize fishing by a vessel which, under a previous flag, undermined the effectiveness of international conservation and management measures, etc. 50 NAFO/GC Doc 97/6. 51 See discussion infra p. 247.

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states but which have been reflagged to flag of convenience jurisdictions, this measure can be regarded as a deterrent to such reflagging. However, this scheme seems more closely linked to implementation of the concepts contained in article 23 of the Straddling and Highly Migratory Fish Stocks Agreement concerning actions which can be taken by port states .

Exchange of information Paragraphs 4 and 10 of article VI of the Compliance Agreement provide regional fisheries organizations with the opportunity to obtain from the FAO, subject to any restrictions on dissemination that may be imposed by the relevant party, detailed information on vessels which the Compliance Agreement requires its parties to maintain and transmit both to each other and to the FAO. Paragraph 11 confers on regional fisheries organizations, in addition to the FAO, a role in the exchange of information relating to the implementation of the Compliance Agreement. This suggests a role for a regional fisheries organization to be active in monitoring the implementation of the Compliance Agreement with respect to its members that are parties to the Agreement and with respect to other parties whose vessels affect its responsibilities . It should be noted that this provision creates a clear legal obligation for parties to exchange this information through both the FAO and appropriate regional fisheries organizations. Cooperation with developing countries Article VII of the Compliance Agreement sets out a role for regional fisheries organizations, in addition to the FAO, in supporting parties to provide assistance to other parties to the Agreement that are developing countries, to fulfill their obligations under the Agreement.

EXAMPLES OF THE ROLE OF THE STRADDLING AND HIGHLY MIGRATORY FISH STOCKS AGREEMENT IN STRENGTHENING REGIONAL FISHERIES ORGANIZATIONS The Straddling and Highly Migratory Fish Stocks Agreement in article 3 calls for states to cooperate to strengthen existing regional organizations to improve their effectiveness. This section reviews key provisions of the Straddling and Highly Migratory Fish Stocks Agreement which can form

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the basis for future action towards this end and notes developments in a number of regional fisheries organizations in which the authors have participated.

General principles Article 5 of the Straddling and Highly Migratory Fish Stocks Agreement would seem to be the starting point for strengthening regional fisheries organizations. While directed at coastal states and states fishing on the high seas, it is clear that the cooperative implementation of most of these principles can best be undertaken through regional fisheries organizations. While some regional fisheries organizations will already be implementing many of these principles, it is doubtful that anyone regional fisheries organization is currently implementing them all. The conservation activities of regional fisheries organizations would clearly improve greatly by doing SO.52 Paragraph (h), which requires states to "take measures to prevent or eliminate overfishing and excess fishing capacity and to ensure that levels of fishing effort do not exceed those commensurate with the sustainable use of the fishery resource" would appear to be directed primarily at states rather than regional fisheries organizations. However, there is scope for effort control by regional fisheries organizations. A rudimentary system introduced in NAPO in 1995 with respect to a single species provides an example. Pursuant to this measure, each NAPO member with fishing rights for this species in the NAPO Regulatory Area must submit a fishing effort plan prior to deploying its vessels for that fishery and submit an annual report on its implementation of the plan." The application of the precautionary approach referred to in paragraph (c) and developed in article 6 and in guidelines set out in Annex II, provides another direction for the strengthening of regional fisheries organizations. At least two regional fisheries organizations have taken this principle to heart already. Work is underway in both NAPO and in the North Atlantic Salmon

52 53

NEAFC, for example, has constituted a working group to assess the need for new recommendations or amendments to its convention, NEAFC, FC 15/27. NAFO Conservation and Enforcement Measures, Part 111 (D)(4) NAFOIFCIDOc. 96/1. The species is Greenland halibut.

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Conservation Organization (NAsca )54 to assess means for implementation. The fact that the Straddling and Highly Migratory Fish Stocks Agreement is not yet in force has not proved a deterrent to either organization nor has the fact that the Straddling and Highly Migratory Fish Stocks Agreement does not apply to salmon, the species managed by NAsca. 55 Paragraph 0), which requires parties to collect and share, in a timely manner, complete and accurate data, presents a further challenge to regional fisheries organizations. Most regional fisheries organizations would likely benefit from an assessment of the extent to which they are currently fulfilling requirements on data collection and sharing contained in Annex I of the Straddling and Highly Migratory Fish Stocks Agreement. Based on such an assessment, regional fisheries organizations should develop action plans for implementation in order to remedy any shortcomings in time for entry into force of the Straddling and Highly Migratory Fish Stocks Agreement for their members.

Compatibility Regional fisheries organizations that do not already provide for compatibility in the manner provided by article 7, i.e. between conservation and management measures they establish for the high seas and those adopted by coastal states for areas under national jurisdiction, should probably either amend their constitutive instruments or adopt other measures with binding legal effect to reflect this requirement. Any wording adopted will have to incorporate the concept contained in article 7 that in adopting compatible measures,

54

55

See UNGA, "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," Report of the Secretary General, Document, N521555 , October 31, 1997, para. 53. This report also provides a useful overview of submissions by other regional fisheries organizations and the status of actions taken to implement the Agreement. It is available from the UNDOALOS website at: http:/www.un.org.Deptsllos/a_52_555 .htrn. On regimes for the conservation and management of fish stocks not explicitly covered by the Straddling and Highly Migratory Fish Stocks Agreement see Birnie , infra Chapter 13.

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regional fisheries organizations will have to take into account any preexisting conservation and management measures taken by the relevant coastal states and will have to "ensure that the measures established in respect of such stocks for the high seas do not undermine the effectiveness of such measures .,,56

Cooperation Article 8(3) of the Straddling and Highly Migratory Fish Stocks Agreement requires regional fisheries organizations not to preclude states with a "real interest in the fisheries concerned" from membership . Use of the adjective "real" to describe the "interest" would appear to signify that something more than the fact that a state wants membership would be required on the part of any state wishing to join. This phrase is open to interpretation but it is likely that a "real" interest would have to include the possession of suitable vessels and crews, and would exclude states that wish to join a regional fisheries organization simply in order to be able to vote on its management decisions. Article 8(4) establishes two alternative options for the operation of a legal fishery on the high seas directed at stocks subject to the jurisdiction of a regional fisheries organization - to either join the regional fisheries organization or "agree to apply the conservation and management measures." NEAFC57 and ICCAT 58 have both adopted this approach and have set aside small quotas for "cooperating states" which need not join. These states, however, must conform to the relevant rules, in particular, regular and timely catch reporting. Regional fisheries organizations which make no provision for fishing by non-members could benefit from making small quotas avail-

56

Art. 7(a) . Straddling and Highly Migratory Fish Stocks Agreement.

5? NEAFC, Report of the Fifteenth Annual Meeting, 1996, Office of the Commissi58

on. London, 1997. p.2 . The measure is in respect of Oceanic Type Redfish. Resolution by ICCAT on Coordination with Non-Contracting Parties, Annex 10, Report for Biennial Period 1994-95. Part I (1994) Vol. 1, P 97. Madrid, 1995. ICCAT has set aside some swordfish quota for "others": Annex 5-7 . Recommendation by ICCAT Regarding North Atlantic Swordfish Catch Quotas for 1997, 1998 and 1999. Report for Biennial Period 1996-97 Part I (1996) VoU , p.86. Madrid. 1997.

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able to non-member "cooperating" states that are parties to the Straddling and Highly Migratory Fish Stocks Agreement. These states would then be more likely to comply with the conservation and management rules of the relevant regional fisheries organizations, as is their obligation. 59 The incentive for the regional fisheries organizations would be a reduction in pressures to admit new members - states wishing to fish small quotas could do so without incurring the costs and pressures that are involved with the membership of such an organization.

Transparency Article 12(1) of the Straddling and Highly Migratory Fish Stocks Agreement requires transparency in the decision-making process and other regional fisheries organization activities. This is desirable because surveillance by nongovernmental organizations (NGOS) will deter pursuit of non-conservation oriented fisheries management policies by members of regional fisheries organizations. On the other hand, members of regional fisheries organizations must be able to pursue their national interests in off-the-record discussions. The article seems to strike an appropriate balance between these competing considerations. NGOs have to be afforded the opportunity to participate in meetings but in accordance with the procedures of the regional fisheries organization. These must not be "unduly restrictive." What amounts to "unduly restrictive" of course is open to interpretation." Spurred by article 12, one of the early initiatives of the United States since joining NAFO in 1996, has been to establish a policy for participation ofNGOobservers which is considered by some members to be fairly radical. Finding the appropriate balance will undoubtedly improve the decision-making function of the organization."

Art. 18(1), Straddling and Highly Migratory Fish Stocks Agreement. In ICCAT, the United States has maintained that the imposition of a US$2000.00 observer fee is unduly restrictive. 61 At the September 1997, NAFO annual meeting, the United States presented a working paper (GC Working Paper 97/4, Revised) which, inter alia, proposes that ''NGOs with a demonstrated interest in the species under the purview of the Organization should be eligible to participate in all meetings of the General Council, Fisheries Commission and Scientific Council, and, with permission 59

60

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Unregulated fishing by members and non-members of regional fishing organizations Article 17(4) of the Straddling and Highly Migratory Fish Stocks Agreement requires states members of any regional fisheries organization to take measures consistent with the Agreement and international law to deter the activities of vessels engaged in fishing operations which fly the flags of states which are not parties to the regional fisheries organization and which undermine the effectiveness of subregional or regional conservation and management measures. Article 20(7) also addresses this issue but is permissive rather than mandatory and also encompasses deterrence related to harmful activities by members of a regional fisheries organization . The action must terminate when the flag state takes "appropriate action" to rectify the situation. Both ICCAT and NAFO have introduced measures to respond to the problem. ICCAT also has laid the groundwork for future action against noncomplying members. As early as November 1994, ICCAT passed a "Resolution Concerning an Action Plan to Ensure Effectiveness of the Conservation Program for Atlantic Bluefin Tuna.?" which addresses compliance by both members'" and non-members." With regard to compliance with the applicable measures by members, a committee reviews implementation annually and the Commission determines any measures required to ensure compliance. Further action was taken in 1996 with the approval of a Recommendation providing for reductions in the quota of any member that exceeds bluefin tuna or swordfish allocations. It is relevant to note that ICCAT Recommendations are binding on members that do not exercise their right, pursuant to article VIII of the ICCAT Convention," to object. In the year following the

62 63 64 65

of the presiding officer, any subsidiary body thereof, except extraordinary meetings held in executive session or meetings of heads of delegation. " The paper further proposed that NGO observers be required to pay only the "marginal costs associated with their participation in meetings." ICCAT, Report for biennial period, 1994-1995, Part 1(1994) -Vol. 1 - Commission, Annex 7, p. 91, Madrid, Spain, 1995. Operative paragraph a. Paragraphs b. to f. ICCAT, Basic Texts, 2d Revision , Madrid, Spain, 1985.

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year in which the overrun occurs, the member's quota for the relevant species is reduced by 100 per cent ofthe amount of the overrun "and ICCAT may authorize other appropriate actions." If the overrun occurs in any two consecutive management periods, the Commission will recommend appropriate measures, which may include, but are not limited to, a quota reduction of at least 125 per cent of the amount of the overrun, and, if necessary, import restrictions by each member, consistent with its international obliga-

tions." With regard to compliance by non-contracting parties, following requests for rectification made to non-contracting parties that have been identified as fishing Atlantic bluefin tuna in a manner which diminishes the effectiveness of the relevant conservation recommendations of the Commission, the latter will recommend that contracting parties take non-discriminatory, traderestrictive measures, consistent with their international obligations, on bluefin products from the non-contracting parties that have failed to rectify their fishing activities. A similar measure was passed in respect of Atlantic swordfish in 1995. 67 At its 1996 annual meeting, ICCAT passed Recommendations naming Belize, Honduras'" and Panama" as non-contracting parties which have failed to rectify the impugned fishing activities of their vessels and from whose territories, consequently, imports of bluefin tuna and its products in any form should be prohibited. In the view of the authors, one of whom participated in the drafting of the 1994 Bluefin Tuna Action Plan Resolution, while no express reference was made to the then-developing Straddling and Highly Migratory Fish

66

67

68

69

"Recommendation by ICCAT Regarding Compliance in the Bluefin Tuna and North Atlantic Swordfish Fisheries," ICCAT, Report for biennial period, 19961997, Part I, (1996) -Vol. 1, Commission, Annex 5~14, p.95, Madrid, Spain, 1996. "Resolution by ICCAT Concerning an Action Plan to ensure the Effectiveness of the Conservation Program for Atlantic Swordfish," ICCAT, Report for biennial period, 1994-1995, Part II , (1995)-Vol. 1- Commission,Annex4, p. 91, Madrid Spain, 1996. "Recommendation by ICCAT Regarding Belize and Honduras Pursuant to the 1994Bluefin Tuna ActionPlan" ICCAT, Report for biennial period, 1996-1997, Part I, (1996) -Vol, 1 - Commission, Annex 5-11, p. 90, Madrid Spain, 1996. Id., Annex 5-12, p. 92.

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Stocks Agreement in the text of these Recommendations, those developments nonetheless provided the catalyst for adoption of these measures. Unregulated fishing by vessels from non-contracting parties has been a serious problem in the NAFO Regulatory Area since the mid-1980s, particularly by vessels flying flags of convenience or stateless vessels. Following many years of unproductive debate on practical measures to be adopted in common by NAFO members to deter this practice, agreement was finally reached at the 1997 annual meeting. Spurred on by article 17 of the Straddling and Highly Migratory Fish Stocks Agreement, NAFO adopted a "Scheme to Promote Compliance by Non-Contracting Party Vessels with the Conservation and Enforcement Measures Established by NAFO . 70 Under the scheme, any vessel flying the flag of a non-member of NAFO that is sighted fishing in its regulatory area is presumed to be undermining the effectiveness of its conservation and enforcement measures. A report of the sighting is rapidly circulated to all members. If the vessel in question seeks to land fish in a port of any member state it must be inspected and landings and transshipments of prescribed species prohibited unless, for species regulated by quota or effort limitation, the vessel can establish that the fish were caught outside the regulatory area, or, for species regulated by other means, that the vessel complied with the applicable conservation and management measures.

Peaceful settlement of disputes Article 28 of the Straddling and Highly Migratory Fish Stocks Agreement sets out the basic requirement in international law for states to cooperate to prevent disputes. This is to be done through agreement by states on efficient and expeditious decision-making procedures in regional fisheries organizations and, where appropriate, strengthening existing procedures as necessary. Article 30 of the Straddling and Highly Migratory Fish Stocks Agreement adopts the dispute settlement mechanism set out in Part xv of the LOS

70

Doc.97/6; published as Serial No.N2950. The scheme was being examined closely by NEAFC and by CCAMLR with a view to adoption mutatis mutandis.

NAFO/GC

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Convention. While paragraph 1 refers to disputes concerning the interpretation or application of the Straddling and Highly Migratory Fish Stocks Agreement, paragraph 2 also applies the LOS Convention's Part xv provisions mutatis mutandis to disputes between contracting parties concerning the interpretation or application of a subregional, regional, or global fisheries agreement relating to the conservation and management of straddling stocks or highly migratory stocks, "including any dispute concerning the conservation and management of such stocks. " The text quoted makes it clear that dispute settlement will be available to challenge the actions of contracting parties who opt out of a conservation and management decision and institute a unilateral fishing plan which threatens conservation. Although the Straddling and Highly Migratory Fish Stocks Agreement dispute settlement mechanism fills a significant gap," regional fisheries organizations are well advised to expeditiously adopt their own dispute settlement mechanisms to overcome two potential shortcomings in the foregoing scheme. First, it only applies to straddling stocks and highly migratory stocks. Second, there is the potential problem presented by regional fisheries organization members who may not be parties to the Agreement. These difficulties have been recognized in NAFO, where in 1997 and 1998 work was underway to develop a NAFo-specific dispute settlement mechanism that would also address the need for timely rulings or awards.

CONCLUSIONS The role of regional fisheries organizations may be summarized simply as conservation and management of fish stocks. However, what this means in practice has engaged, for many years, the minds of many people, government representatives, NOO representatives and fishermen alike, who have worked toward the development and effective operation of regional fisheries organizations, and the development of legal and non-legal norms and standards, which both codify and bring innovations to international fisheries

71

It applies the LOS Convention's dispute settlement provisions to states parties to the Straddling and Highly MigratoryFish Stocks Agreement but not to the LOS Convention.

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regulations. These norms and standards have been set out in international instruments adopted by the global community. The main purpose of this chapter has been to describe the role of regional fisheries organizations as envisaged in key international instruments developed over recent years. That role encompasses a wide range of functions, including: promoting data collection and scientific research and its broad dissemination, providing for the long-term sustainability of fish stocks at optimal levels and for their optimum utilization, developing and implementing precautionary systems, assisting coastal states that request advice on management inside their exclusive economic zones, conservation and management of stocks that range across the outer limits of exclusive economic zones and the adjacent high seas, protecting against pollution and waste, protecting biodiversity, integrating new members, obtaining the cooperation of non-members, providing for transparency in decision-making, establishing systems to provide for compliance with their conservation and management decisions and assisting developing states to exercise their relevant rights and obligations. The role of regional fisheries organizations may also be seen in a broader sense. The first, clearly, is to contribute to world food security, by maintaining aquatic resources as a major source of the world's food supply, 10 per cent of which is derived from wild aquatic resources on the high seas." Second, but of significant importance, is the role regional fisheries organizations play in the context of the international institutions that have developed over the course of the 20th century, through which states seek to avoid harmful conflict, and to resolve common problems through cooperation within an overall international framework dedicated to world peace .

72

World review ofhighly migratory species and straddling stocks, FAO Fisheries

Technical Paper 337, FAO, Rome, 1994, p. 3.

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10 DEVELOPMENTS IN PRINCIPLES FOR THE ADOPTION OF FISHERIES CONSERVATION AND MANAGEMENT MEASURES Gunnar G. Schram and Andre Tahindro'

INTRODUCTION

This chapter concentrates on the development of fisheries conservation and management principles . As a result its focus is on relevant parts of the 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 and Highly Migratory Fish Stocks' (Straddling and Highly Migratory Fish Stocks Agreement or the Agreement). The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas' (Compliance Agreement) will not be discussed in this chapter as it does not itself provide guidance for the development of fisheries conservation and management measures, but rather concentrates on the responsibility of the flag state for controlling high seas fishing activities by vessels flying its flag through , inter alia, the registration of fishing vessels. The aim of the Compliance Agreement is to prevent international conservation and management measures

2 3

The opinions expressed are those of the authors and do not necessarily reflect those of any institutions to which they are affiliated . (1995) 34 lIM 1542. Specifically on the Straddling and Highly Migratory Fish Stocks Agreement Hayashi , see supra Chapter 4. (1994) 33 lIM 968. Specifically on the Compliance Agreement see Balton, supra Chapter 3.

E. Hey, (ed.), Developments in Internat ional Fisheries Law, p. 251-286. © 1999 Kluwer Law International. Printed in The Netherlands.

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from being undermined through the reflagging of vessels. The Compliance Agreement itself, however, does not provide criteria or standards that such measures are to meet; it leaves their development entirely up to regional fishing organizations. An analysis of the precautionary approach in fisheries management, as outlined in article 6 and Annex II of the Straddling and Highly Migratory Fish Stocks Agreement, is also not included in this chapter. Given that these provisions set the parameters within which conservation and management measures for straddling and highly migratory species are to be developed, the topic merits a chapter of its own." The present chapter first outlines the fisheries conservation and management principles as contained in the United Nations Convention on the Law of the Seas (LOS Convention) and the Straddling and Highly Migratory Fish Stocks Agreement. It then analyzes how the principles contained in the LOS Convention have been elaborated by the Straddling and Highly Migratory Fish Stocks Agreement. Subsequently, it analyzes the new conservation and management principles introduced by the Agreement. Thereafter, the compatibility criterion contained in the Straddling and Highly Migratory Fish Stocks Agreement is considered. Finally, conclusions will be drawn about the extent to which the Agreement, in addition to the LOS Convention, provides a clear basis for the adoption of conservation and management measures for straddling and highly migratory stocks.

GENERAL PRINCIPLES ESTABLISHED BY THE LOS CONVENTION A general obligation of conservation is set out in the LOS Convention with respect to all the living marine resources of the high seas. According to article 117, all states have the duty to take conservation measures in respect of their own nationals for the conservation of the living resources of the high seas or to cooperate with other states in taking such measures. This main obligation is further elaborated in article 119 through the incorporation

4

5

Specifically on the precautionary principle in fisheries see Freestone, supra Chapter 11. (1982) 21lLM 1261, Specifically on the fisheries provisions of the LOS Convention Hey, see supra Chapter 2.

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of additional responsibilities. These responsibilities include the duty to adopt measures to ensure that harvested species are maintained at or restored to levels that can produce the "maximum sustainable yield, as qualified by relevant environmental and economic factors," the duty to ensure that species associated with or dependent on harvested species are not depleted to levels at which they would be seriously threatened and the obligation to exchange information relevant to the conservation of the fish stocks concerned. Article 119 also stipulates that these measures must be based on the best scientific evidence available and on environmental and economic factors, including the special requirements of developing states, fishing patterns, the interdependence of stocks, as well as recommended international minimum standards; it stresses that all these factors and criteria have to be taken into account before the determination of any allowable catch. In addition, it should be noted that the traditional freedom of high seas fishing is duly qualified and is conditional on observing specific obligations. Article 116 indicates in this regard that the right to fish on the high seas is subject, inter alia, to the treaty obligations of states and to the rights and duties, as well as the interests of coastal states with respect to straddling stocks and highly migratory stocks as provided in articles 63(2) and 64, respectively. Under articles 63(2) and 64, coastal states and high seas fishing states are bound to conserve straddling stocks and highly migratory stocks on the basis of their common interests in the stocks concerned. These articles indicate that this community of interest consists of high seas fishing states actually fishing for the resource on the high seas and the coastal states through whose exclusive economic zones the stocks migrate. Whereas the interests of the distant water fishing states are based on the freedom of fishing to which all states are entitled on the high seas, as qualified in article 116, those of the coastal states are founded on article 56, which entitles coastal states to exercise sovereign rights over the resources while these are in their exclusive economic zones." Although the LOS Convention provides a general framework for the conservation and management of straddling and highly migratory stocks in areas beyond national jurisdiction, it is believed to lack the more substantive

6

Ellen Hey, The Regimefor the Exploitation ofTransboundaryMarine Fisheries Resources, Martinus Nijhoff, 1989, pp. 82-83.

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regime required to make the duty to conserve living marine resources meaningful and effective. Indeed, despite the fact that the LOS Convention contains special provisions regarding the conservation and management of those species that migrate beyond national jurisdiction into international waters, their management and the respective obligations of coastal states and distant water fishing states often are not subject to enforceable management regimes outside the exclusive economic zone.' While it is generally accepted that both the obligation to conserve and manage and the obligation to cooperate apply to fish stocks located in waters beyond national jurisdiction, the specific content of these obligations has been the subject of debate.

PRINCIPLES ESTABLISHED BY THE AGREEMENT

Article 5 of the Straddling and Highly Migratory Fish Stocks Agreement provides that in order to conserve and manage the stocks in question, coastal states and states fishing on the high seas are required to adopt measures to ensure the "long-term sustainability" of these stocks and to promote the objective of their optimum utilization. They also shall ensure that such measures are based on the best scientific evidence available and are designed to maintain or restore stocks at levels capable of producing the maximum sustainable yield, as qualified by relevant environmental and economic factors, including 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. States also are required to take certain specified actions, such as: (1) application of the precautionary approach, (2) assessment of the impacts of fishing, other human activities and environmental factors on target stocks and on ecologically related species or dependent or associated stocks, (3) adoption of conservation and management measures for ecologically related species or dependent or associated species, with a view to maintaining populations of such species at a safe level of reproduction, (4) actions aimed at

7

Evelyne Meltzer, "Global Overview of Straddling and Highly Migratory Fish Stocks: the Non-Sustainable Natureof High Seas Fisheries,"(1994) 25 Ocean Development and International Law, pp. 255-344, p. 256.

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minimizing pollution, waste, discards, catch by lost or abandoned gear, catch of non-target species and impacts on associated or dependent species through the use of selective, environmentally safe and cost-effective fishing gear and techniques, (5) protection of biodiversity in the marine environment, (6) adoption of measures to prevent over-fishing and excess fishing capacity and to ensure that fishing efforts are commensurate with the sustainable use of the resources; (7) due consideration of the interest of artisanal and subsistence fishermen, (8) collection and exchange of data concerning all aspects of fishing activities as set out in Annex I of the Agreement, (9) promotion of scientific research and development of appropriate technologies for fishery conservation and management and (10) implementation and enforcement of conservation and management measures through effective monitoring, control and surveillance. In addition to the above, coastal states and states fishing on the high seas are required to adopt compatible measures for the conservation and management of the two stocks within and beyond the areas under national jurisdiction. In summary, the Straddling and Highly Migratory Fish Stocks Agreement incorporates the basic concepts for the conservation of high seas living marine resources as established by the LOS Convention, as well as new concepts of fishery management recommended by United Nations Conference on Environment and Development (UNCED), or recently developed as a consequence of the poor state of the world fisheries. This state is characterized, inter alia, by a global decline in marine resources from traditional fishing grounds and an increased concentration of fishing effort on the high seas."

CONSERVATION AND MANAGEMENT PRINCIPLE ESTABLISHED BY THE LOS CONVENTION AND DEVELOPED BY THE AGREEMENT

Best scientific evidence available Article 5(b) of the Straddling and Highly Migratory Fish Stocks Agreement, paraphrasing article 119(l)(a) of the LOS Convention, stipulates that the requirement of the best scientific evidence available shall guide states in

8

L. Hinds , "World Marine Fisheries: Management and Development Problems," (1992) 16 Marine Policy, pp. 394-403, p. 400.

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the adoption of conservation and management measures for straddling fish stocks and highly migratory fish stocks. It thereby sets the first condition for an effective and equitable management regime for these stocks and signals that the need for precaution does not exempt fishing states and management authorities from their responsibilities to build up the necessary scientific informatlon.? Although the Agreement does not define the quality of the evidence required in any quantitative manner, the requirement that the evidence should be the best available implies that even poor evidence can be used in designing conservation measures provided that it is recognized as the best available." The rationale behind this provision is to avoid a situation where fishing activities continue unregulated under the pretext of incomplete information. II In addition, the United Nations General Assembly Resolution 44/225 on "large scale pelagic driftnet fishing and its impact on the living marine resources of the world's oceans and seas" adopted on December 22, 1989, added new elements to the debate by indicating that any regulatory measures to be taken for the conservation and management of living marine resources should take account of the best available scientific "data and analysis.'?" The new terminology seems to be an attempt to clarify the concept of "best evidence," equating it with "statistically sound evidence. "13

9

10 11

12 13

The Precautionary Approach to Fisheries with reference to Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc. AlCONF.I64/INF/8, 1994, para. 5, reproduced in Jean-Pierre Levy and Gunnar Schram (eds.), United Nations Conference on Straddling and Highly Migratory Fish Stocks: Selected Documents, Martinus Nijhoff, 1996, p. 555. Also see infra the text following note 29. /d .• para. 78. S. Garcia and J. Majkowski, "State of High Seas Resources," in T. Kuribayashi and E.L. Miles (eds.), The Law of the Sea in the 1990s: A Framework for further International Cooperation, Law of the Sea Institute, 1992, pp. 175-236, p.219. See UN General Assembly Resolution 44/225, Official Records, 44th Sess., Suppl. No. 49, UN Doc. N44/49 (1989), 147. See Precautionary Approach to Fisheries, supra note 9, paras. 5 and 92.

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Maximum sustainable yield Article 5(b) of the Straddling and Highly Fish Stocks Agreement stresses that measures taken by coastal states and states fishing on the high seas to conserve and manage straddling fish stocks and highly migratory fish stocks are to be designed to maintain or restore those stocks to levels capable of producing "maximum sustainable yield, as qualified by relevant environmental and economic factors, including 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." Maximum sustainable yield (MSY), the only technical reference point specified in the LOS Convention, is generally considered by experts to be the highest point of the curve traced between the annual standard fishing effort applied by all fleets and the yield that should result if that effort level were maintained until equilibrium is reached." This criterion was used widely by fishing commissions in the 1960s and 1970s as a target for management of single-species fisheries. Yet subsequent developments in fisheries management have cast doubts on MSY as a safe target reference point." Experts believe that MSY, as a reference point for fisheries management purposes, provided a sound basis for fisheries management policies when fisheries were in an expanding phase and MSY functioned as a rough production target. 16 As fisheries increasingly have become overexploited, MSY may be a valid reference point , but only as an upper limit beyond which stocks become progressively overexploited and a minimum requirement for effort reduction policies." In addition, other experts have identified biological objections to MSY . These objections relate to the fact that there are natural fluctuations in the abundance and productivity of many untargeted stocks, the yield that can be taken from a stock varies with the pattern of fishing (age and size of fish caught), and the possible yield from one stock

14

15 16 17

See Reference Points for Fisheries Management: Their Potential Application to Straddling and Highly Migratory Resources, UN Doc. NCONF.I64/INF/9, 1994, para. 27, reproduced in Levy and Schram (eds.), supra note 9, p. 577. ld. ld., para. 5. ld.

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depends on the status of other stocks (e.g., whether these other stocks are being fished) and on its relationship to those other stocks (e.g., stocks that feed on the target stock). Thus, it would not be possible to determine a unique and constant value for MSY for a given stock. 18 With respect to straddling fish stocks and highly migratory fish stocks which are in need of stock rebuilding, the most appropriate reference points should be those that could lead to that objective. Accordingly, as proposed by a working group established by the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks at its third session," the conclusions of which were incorporated in Annex II of the Agreement as "guidelines for application of precautionary reference points in conservation and management of straddling fish stocks and highly migratory fish stocks," MSYS should be adopted as "limit reference points" rather than "target reference points." However, for already depleted stocks, the biomass that can produce MSY may serve as an initial rebuilding target." In addition, MSY may be affected by the various factors listed in article 119(l)(a) of the LOS Convention and article 5(b) of the Straddling and Highly Migratory Fish Stocks Agreement, such as relevant environmental and economic factors, including the special requirements of developing states, fishing patterns, interdependence of stocks and recommended minimum standards. It should be noted that neither the Convention nor the Agreement establishes hierarchy among the factors to be evaluated for the determination of conservation and management measures in respect of the stocks concerned. Yet the inclusion in the Agreement of specific provisions dealing with the requirements of developing states in addition to the provisions in article 5(b), as well as the reference to "the interests of developing States" in the provisions regulating the participatory rights of new entrants," seem

a

18

J. Gulland, "Conditions of Access to Fisheries: SomeResourceConsiderations,"

19

paper presented to FAO Expert Consultation on Conditions for Access to the Fish Resources of the Exclusive Economic Zone, Rome, April 11-15, 1983, p.3. See Report ofthe Third Session ofthe United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc. NCONF.164/20, 1994,

20 21

pp. 4-5, reproduced in Levy and Schram (eds.), supra note 9, p. 471. Annex II, para. 7, Straddling and Highly Migratory Fish Stocks Agreement. Para. 8, Preamble,and Art. 11(f), Straddling and Highly MigratoryFish Stocks Agreement.

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to indicate that the special requirements of developing states would likely playa major role in the consideration of relevant socio-economic factors, whether in the allocation of quotas or in the determination of other conservation and management measures.

Non-adverse impactoffishing activities and otheractivities on the ecosystem Article 5(d) and (e) of the Straddling and Highly Migratory Fish Stocks Agreement requires coastal states and states fishing on the high seas to assess the impacts of fishing and other human activities, as well as environmental factors, on target stocks and species belonging to the same ecosystem or dependent upon or associated with the target stocks and to adopt conservation and management measures for these species, with a view toward maintaining or restoring their populations above levels at which their reproduction may become seriously threatened. Although these paragraphs seem to repeat article 119(l)(b) of the LOS Convention, they also include specific provisions that implement the relevant provisions of the LOS Convention. Indeed, article 5(d) and (e) do not merely request states to "take into consideration the effects" of conservation and management measures for harvested species on associated or dependent species, but require them also to take specific actions with a view to assessing the impacts of human activities, including fishing and other environmental factors on these species, and to adopting, where necessary, conservation and management measures for these dependent or associated species . Thus , article 5 acknowledges the effects of actions, such as heavy fishing, on the abundance of target resources and that these actions may change the relative abundance of associated species as competitors for food, prey or predators.f All fish, whether target stocks or non-target species, should be considered both as resources and as part of the ecosystem and, as such,

22 FAD,

"High Seas Fisheries Management: New Concepts and Techniques," in

Papers presented at the Technical Consultation on High Seas Fishing, Rome,

7-15 September 1992, FAD Fisheries Report No. 484 Supplement, FAD, 1992, para. 14, p. 38.

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should be duly protected from long-term or irreversible damage and taken into account in management programs." This integrated approach introduced in the Straddling and Highly Migratory Fish Stocks Agreement is referred to as the Large Marine Ecosystem (LME) concept and is a management strategy that aims to provide practical means for overcoming the existing fragmented approach to ocean studies and management. The concept focuses attention on entire marine ecosystems and programs pertinent to the environmental, oceanographic and biological characteristics of the living resources of the oceans." It defines an ecosystem as a relatively large ocean region, characterized by unique bathymetry, hydrography and productivity within which marine populations have adopted reproductive, growth and feeding strategies." Overfishing of non-target and target stocks on the high seas may well have an impact on species interaction and marine ecosystems both within national jurisdiction and on the high seas. It would adversely affect the resource base and management efforts within and beyond 200 hundred miles." This approach therefore calls for multispecies management of fish stocks in which the interrelationships between different stocks are accounted for, in addition to each stock's internal dynamics." However, as recognized in article 5(d), some level of impact on the ecosystem has to be expected if development and benefits are to be obtained from fishing activities. It is therefore necessary to accurately identify and forecast the effects of fishing activities, agree on acceptable levels of impact and develop management structures capable of maintaining fisheries within these levels. An acceptable level of impact may be defined as a level of impact that might never materialize in practice and that will be kept under constant review and modified as knowledge progresses. It is believed that fishery resources possess an assimilative capacity in terms of the fishing

Report of the Technical Consultation on High Seas Fishing, Rome, 7-15 September 1992, FAD Fisheries Report No 484, FAD, 1992, para. 62, p. 8. 24 See Hinds, supra note 8, pp. 402-403. 25 K. Sherman, "Biomass Yields of Large Marine Ecosystems," in 8 Ocean Yearbook 1989, pp. 117-137. 26 See Meltzer, supra note 7. p.261. 27 P. O. Eikeland, "Distributional Aspects of Multispecies Management - The Barents Sea Large Marine Ecosystem," (1993) 17 Marine Policy , pp. 256-271, p.257. 23 FAD,

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mortality they can withstand while still conserving most of their capacity to return to their original state once the fishery-induced stress is removed. The situation, however, becomes more complex when considering the assimilative capacity of a multispecies resource or an ecosystem for which no means of measurement are yet available. Nevertheless, an important prerequisite for the effects of fishing to be considered acceptable is that the effects be reversible if the pressure of fishing activity is reduced or sup-

pressed." In addition, because pollution from land- and sea-based sources can affect the productivity and resilience of fishing resources , fishery management not only should include measures to control fishing but also to promote the reduction and elimination of pollution and prevent the degradation of critical habitats. 29

Collection and exchange ofscientific data and promotion ofmarine scientific research

Recognizing that the starting point for the management of any fishery resources is knowledge of the nature and composition of the stocks to be managed, article 50) of the Straddling and Highly Migratory Fish Stocks Agreement provides that coastal states and states fishing on the high seas shall collect and share timely, complete and accurate data concerning fishing activities on, inter alia , vessel position, catch of target and non-target species and fishing effort, as well as information from national and international research programs. Article 5(k) requires that the states concerned promote and conduct scientific research and develop appropriate technologies in support of fishery conservation and management. In addition, Annex I, which is an integral part of the Agreement and which includes the "Standard requirements for collection and sharing of data," provides an inventory of information required for effective conservation and management of straddling fish stocks and highly migratory fish stocks. It also incorporates principles

28 See

Precautionary Approach to Fisheries, supra note 9, paras . 58, 59, 60 and

61. 29

See Report ofthe Working Group on Reference Points for Fisheries Management, UN Doc. AlCONF.164/wp.2, 1994, para. 5.

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for data collection and compilation, basic fishery data, vessel data, reporting, data verification and data exchange. From the provisions of article 119(2) of the LOS Convention, which require states to provide "scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks," it can be inferred that the availability of such scientific and technical data is crucial for the adoption of conservation and management measures for high seas living marine resources, including straddling fish stocks and highly migratory fish stocks. As these data will provide the basis for the "best scientific evidence.':" the effect of these provisions may be that scientific information, including accurate and detailed fishery data, will become of "strategic importance," with very significant potential economic consequences." Indeed, the evolution of management practice has affected the priorities assigned to fishery research. As long as world fisheries were expanding, the basic problem for fishery science was to elucidate the response of fish stocks to exploitation. However, in the present state of dwindling world fisheries, fisheries experts are of the view that two new areas of biological and ecological research should be developed. One area would involve an understanding of the variability and causality of recruitment while the other would involve the definition of fisheries management measures in terms of species, gear, fleet, areas and seasons of unit fisheries. These are units of exploitation, assessment and management including the mapping of resources (species, sizes) and their seasonal movements, the mapping of the fleets and gear and their seasonal fluctuations, as well as an estimation of fleet flexibility to modify their time and space distribution patterns and the analysis of the interrelationships between the resources and fleets and gear. It is believed that a better appreciation of the respective roles of environmental variability and spawning-stock size could improve scientific concepts and advice for stock conservation and fisheries management."

30 Also see supra the paragraph following note 8. 31 See Garcia and Majkowski, supra note 11, p. 219.

32

I.-P. Troadec, "The Mutation of World Fisheries: Its Effects on Management, Priorities and Practices," in E.L. Miles (ed.), Management of World Fisheries: Implications of Extended Coastal State Jurisdiction, paper presented at the Graduate School of Marine Affairs, University of Washington, 1989, pp. 1-18, pp. 14 -15.

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Promotion of the objective of optimum utilization Article 5(a) of the Straddling and Highly Migratory Fish Stocks Agreement provides that coastal states and states fishing on the high seas shall promote the objective of "optimum utilization" of straddling fish stocks and highly migratory fish stocks. Articles 61 and 62 of the LOS Convention, deal with, respectively, conservation and utilization of the living marine resources in the exclusive economic zone. They indicate that the adoption of a total allowable catch, the determination of harvesting capacity and the determination of surplus are the most appropriate ways to achieve optimum utilization of the stocks concerned. Therefore, with respect to highly migratory stocks for which article 64(1) of the LOS Convention requires states to promote the objective of "optimum utilization," the total allowable catch of the stocks could be allocated as follows: a part to coastal states in relation to the occurrence of the resources in their exclusive economic zones, with the remainder to be divided among coastal states and states fishing on the high seas for highly migratory fish stocks. Any surplus could be allocated to new entrants to the cooperative arrangements. 33 It should be noted, however, that article 63(2) of the LOS Convention, as opposed to article 64(1), does not require states to promote the objective of optimum utilization for straddling fish stocks "throughout the region, both within and beyond the exclusive economic zone." Article 63(2) requires merely that coastal states and states fishing on the high seas adopt joint total allowable catch and joint measures for the conservation of the shared stocks located in the area beyond and adjacent to the exclusive economic zone. Consequently, no allocations need be made to the individual states involved and each state would enjoy free access for its own vessels, since compulsory allocation of the total allowable catches, in this case, would be inconsistent with the freedom of fishing that applies to these resources while they are located in the high seas area. Through agreement, of course, the states involved may regulate the allocation of the resource among themselves ." Thus, the effect of these provisions is that the stocks might be subjected

33

34

See Hey, supra note 6, pp. 59-60. Id., pp. 55-56.

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to a dual management regime, one regime applying to the stocks within the exclusive economic zone and the other to those on the high seas." From the above discussion, it can be assumed that article 116(b) of the LOS Convention - which subjects the freedom of high seas fishing, among other considerations, to the rights, duties and interests of coastal states as provided in articles 63(2) and 64 - has a different meaning for coastal states and high seas fishing states in terms of the rights and obligations that they are expected to assume in respect of straddling fish stocks and highly migratory fish stocks. Article 5(a) of the Straddling and Highly Migratory Fish Stocks Agreement, however, does not seem to attach particular importance to this conceptual difference, since it requires all states concerned to promote the objective of optimum utilization for both straddling fish stocks and highly migratory fish stocks. Indeed, it can be argued that the intention is deliberate, because the objective of the Agreement is in fact the regulation of the conservation and management of the two stocks through the allocation of participatory rights to individual states interested in the fisheries, within the context of a managed regime of high seas resources as opposed to the traditional open-access regime applied to high seas resources.

NEWLY DEVELOPED CONSERVATION AND MANAGEMENT PRINCIPLES INCORPORATED INTO THE AGREEMENT

Long-term sustainability offish stocks Article 5(a) of the Straddling and Highly Migratory Fish Stocks Agreement requires coastal states and states fishing on the high seas to adopt measures to ensure the long- term "sustainability" of straddling fish stocks and highly migratory fish stocks. The concept applied to fishery resources seems to have gained recognition since the adoption of Agenda 21 at UNCED. Agenda 21 requested states, inter alia, to "commit themselves to the conservation

35

M. Dahmani, The Fisheries Regime of the Exclusive Economic Zone, Martinus Nijhoff, 1987, p. 115.

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and sustainable use of marine living resources on the high seas.'?" In addition, it may be recalled that the 1992 International Conference on Responsible Fishing, held in Canciin, also called on states to "adopt effective fisheries planning and management standards which, within the context of sustainable development, will promote the maintenance of quantity, quality, diversity and economic availability of fisheries resources. ?" According to some, the concept of sustainability implies that fishing can reduce resources to some agreed average level, at which its existence (reproductive capacity) is not threatened. However, this opinion recognizes that it is impossible to extract living resources from the marine ecosystem without affecting the ecosystem, making it therefore necessary to allow a compromise between the intensity of fishing and the degree of resource conservation." For others, a problem remains nevertheless with the vagueness of the term "sustainable." They argue that in theory, fisheries are sustainable at various levels of stock abundance and rates of harvesting, but that these are not equivalent in terms of risk of recruitment collapse. To be of practical use in fishery management, the concept of sustainability needs to be combined with the notion ofrisk to the resource and, consequently, to the fishing com-

munities." Although "sustainability" of living marine resources does not appear in the provisions of the LOS Convention, it may be inferred from articles 63(2), 64 and 117 that the obligation to conserve straddling stocks, highly migratory stocks and high seas living marine resources is to be dictated by the need to ensure the long-term sustainability of those resources. In this connection , it is relevant to note that the LOS Convention provides that stocks should not be driven below their MSY level of abundance. The LOS Convention, in fact, considers MSY to be the bottom-line threshold of "sustainability." However, as mentioned earlier, because of recent doubts cast on

36 Report of the United Nations Conference on Environment and Development, UN Doc. NCONF.151126, 1992, vol. 2; Agenda 21, Chapter 17, paras. 17-46.

Chapter 17 of Agenda 21 is reproduced in (1992) 7 International Journal of Estuarine and Coastal Law, p. 296. 37 Para. 1, Declaration of Canctin, reproduced in (1992) 8 International Organizations and the Law of the Sea: Documentary Yearbook , NILOS , Graham & TrotmanIMartinus Nijhoff, p. 557. 38 Garcia and Majkowski, supra note 11, p.220. 39 See Precautionary Approach to Fisheries , supra note 9, para. 48.

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as the main technical reference point in fisheries management, new reference points, not foreseen in the LOS Convention, are to be established in order to provide that species sustainability is ensured at low risk of collapse. It is therefore believed that the precautionary reference points, contained in Annex II of the Agreement, which are based on an ecosystem management approach and require that the integrity and essential functions of the ecosystem be preserved, will provide a basis for attaining the longterm sustainability of fisheries." MSY

Minimizing pollution, waste, discards, catch by lost or abandoned gear and impact on non-target species

Article 5(f) of the Straddling and Highly Migratory Fish Stocks Agreement stresses the duty for coastal states and states fishing on the high seas to minimize pollution, waste, discards or the impact of so-called "ghost fishing" through "the development and use of selective, environmentally safe and cost-effective fishing gear and techniques," whereas article 5(g) requires that states protect biodiversity in the marine environment. These provisions seem to recognize the fact that incidental catches of non-target species represent the main environmental impact of fishing on the high seas. Harvesting practices therefore should involve selective allocation of fishing effort in space, time and among species and age groups, using various types of gear in different areas and seasons in order to avoid wastage and reduce capture of non-target species." In fact, a recent global assessment of fisheries bycatch and discards estimates a discard range between 17.9 and 39.5 million Mt. per year, with a mean estimate of 27 million Mt. These include non-target or low-value species as well as undersized fish of target species." A major action to reduce the level of discards would be to improve the selectivity of fishing gear and fishing methods." The seriousness of the adverse impact of non-selective fishing gear was recognized by the United Nations General Assembly in 1991, when it

40 41

ld., paras. 49 and 50. See FAO, supra note 22, paras. 27-28, p. 40.

42 FAO, The State of World Fisheries and Aquaculture, 1995, p. 21. 43 Id.

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adopted Resolution 46/215 requesting states to "ensure that a global moratorium on all large-scale pelagic driftnet fishing is fully implemented on the high seas of the world's oceans and seas, including enclosed seas and semi-enclosed seas, by 31 December 1992.'>44 In addition, Agenda 21 and the Declaration of Canciin recommend that states "promote the development and use of selective fishing gear and practices that minimize waste in the catch of target species and minimize by-catch of non-target species.?" Lastly, the Food and Agriculture Organization ofthe United Nations (FAa) has adopted a Code of Conduct for Responsible Fisheries which, among other things, requires states to develop and apply "selective and environmentally safe fishing gear and practices" in order to maintain biodiversity and to conserve the population structure and aquatic ecosystems and protect fish quality." With regard to bycatch and discards, as such, the United Nations General Assembly, in 1994, adopted Resolution 49/118, entitled "Fisheries bycatch and discards and their impact on the sustainable use of the world's living marine resources," which stressed the gravity of the issue. It, on the one hand, invited the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks and FAa to formulate fisheries bycatch and discard provisions within their respective spheres of competence and, on the other hand, requested subregional and regional fisheries management organizations and FAa to review the impact of fisheries bycatch and discards on the sustainable use of living marine resources." In this connection, a 1996 FAa Technical Consultation on the Reduction of Wastage in Fisheries has recognized that fish discards have a direct impact on the resource, the environment and the availability of fish for consumption. It therefore recommended that the following measures be taken. First, comprehensive fisheries

Res. 46/215, para. 3 (c), reproduced in (1992) 31 lIM 24l. Para. 17.46(c), Agenda 21, supra note 36, and para. 6, Declaration of Cancan, supra note 37. Similarly see para. 17.88(c), Agenda 21, with respect to fisheries resources under national jurisdiction. Art. 6(6), Code of Conduct for Responsible Fisheries, FAD Doc . DN9878F11/ 12.95/10000 (1995). Specifically on the Code of Conduct see Moore, supra Chapter 5. UN General Assembly Resolution 49/118, paras. 4-6, Official Records of the General Assembly, Forty-ninth Session, Supplement No. 49 (N49/49), Vol. I, pp. 143-144.

44 UNGA

45

46

47

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management regimes should be adopted. Such regimes should design programs to reduce wastes and discards in fisheries, consider the value of closing areas to fishing activities, carry out research on the impact of fishing on ecosystems, provide economic analyses of various fishing scenarios , set up reasonable targets for discard reduction that could be attained in different fisheries and take into account the consequences of current effects of fishing and fishing-induced mortality on ecosystems in fisheries management. Second, better discard data collection programs for individual fisheries should be established. Data would be gathered at the national level, collated and published by FAa. Third, undertake, as a high priority, more research into the selectivity of fishing gear, particularly of trawls used in tropical industrial fisheries. Finally, it also recommended that research be undertaken to provide more definitive information on the optimum balance between discarding fish and more complete utilization, including the socio-economic benefits and costs of discarding versus utilization, the effects on food security and the bioenergetics of various scenarios. Such research also would consider the future potential yield for human consumption of undersized fish that are presently diverted to animal feed. In addition, the research would include a detailed case study of tropical shrimp fisheries. The case study would concentrate on the problems related to the large species diversity of the bycatch of this fishery and the associated complex economic considerations, which present problems particularly for developing countries."

Prevention or elimination of overfishing Article 5(h) of the Straddling and Highly Fish Stocks Agreement requires states to take measures to prevent or eliminate overfishing and excess fishing capacity and to ensure that levels of fishing effort do not exceed those commensurate with the sustainable use of fishing resources. The LOS Convention understandably does not make any explicit reference to the issues of overfishing and overcapacity, in view of the fact that its relevant provisions were negotiated at a time when fisheries management still was

48 FAO, Report ofthe Technical Consultation on Reduction ofWastage in Fisheries, Tokyo, Japan , October 28 -November 1, 1996, FAO Fisheries Report No. 547,

pp. 1, 13, 14 and 15.

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influenced largely by world fisheries abundance. However, it is presently believed that the main problems faced by the world's fisheries, particularly those relating to straddling fish stocks and highly migratory fish stocks , reside in the existence of overfishing and over-capitalization. At its twentieth session, in 1993, the FAD Committee on Fisheries (COFI) reported that 69% of the world's marine stocks for which data are available, were either fully to heavily exploited, overexploited, depleted or very slowly recovering from overfishing and therefore were in need of urgent corrective conservation and management measures." Experts believe that overfishing occurs in a broad sense when the catch exceeds the level considered desirable for achieving the stated objectives." More specifically, overfishing refers to the existence of the following situations : recruitment overfishing (i.e., where there are not enough mature fish to replenish the stock which will therefore decline), growth overfishing (i.e., where undersize, immature fish are harvested, as a result of which the capacity of the stock to replenish itself diminishes because the fish caught have not had a chance to reproduce) and community or assemblage overfishing (i.e., where increased fish mortality in multispecies fisheries results in a decreasing proportion of larger and more valuable species in the catch)." One of the causes of overfishing is the over-capitalization of the fishing industry. This is a situation where the harvesting capacity of the fleet exceeds the quantity of resources available for harvest. The term usually applies to commercial fleets that require significant capital and therefore represent a long-term investment. These units cannot afford to stop fishing if stocks become depleted and may continue to fish even while losing money in order to service their loans. Nevertheless, fleet sizes have continued to increase due to, inter alia, government subsidies and the open-access character of high seas fisheries. In 1992, the world 's total fishing fleet increased to 26 million gross register tons (GRT) while the number of vessels increased to 3.5 million, reflecting an increase of 136 000 since 1989.52 Such a situation has created excessive pressure on limited resources . Together with improved

49

See FAD, supra note 42, p. 8.

50 FAD, Fishery Management Options for Lesser Antilles Countries, FAD Fisheries

Technical Paper No. 313, 1990, p. 6. 51

[d.

52 See FAD, supra note 42, p. 16.

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fishing technology, which allows fleet fishing power to increase rapidly and to move from one fishery to another, the result is a situation in which MSY often is exceeded in the early stages of a fishery, resulting in resource depletion.f Consequently, efficient management of a naturally renewable resource such as fish requires, inter alia, an explicit allocation of user rights and responsibilities to ensure sustainability. Such user rights should be defined and controlled within an adequate institutional framework which requires coordination between regional mechanisms in order to prevent massive effort transfers between regions and oceans." Another view is that fishery management should be approached in the following sequence: (i) political decisions for allocation of exclusive user rights, (ii) socio-economic optimization of unit fisheries and (iii) resource conservation. However, with the conditions of open access prevailing in the high seas regime, these requirements could not be met and therefore fishery management has to be restricted to its last step, i.e., resource conservation. As a consequence, only the effect and not the cause of the overfishing is addressed. The cause is to be found mainly in a combination of the following three elements: the open-access regime, resource variability and the lack of mobility and flexibility of the fishing industry." In this connection, it should be noted that at its twenty-second session in March 1997, COFI agreed to organize a Technical Consultation on Management of Fishing Capacity in 1998. The main purpose of the Consultation will be the elaboration of guidelines for control and management of fishing capacity, as well as the consideration of related factors. These guidelines are to be submitted to a policymakers meeting for appropriate action .56

Taking into account the interests of artisanal and subsistence fisheries

Article 5(i) of the Straddling and Highly Fish Stocks Agreement requires coastal states and states fishing on the high seas for straddling fish stocks

53 54 55 56

See Report ofthe Working Group on Reference Points, supra note 29 para. 2. Garcia and Majkowski , supra note 11, p. 221. Troadec , supra note 32, pp. 5-6. FAD, Report ofthe twenty-second Session ofthe Committee on Fisheries, FAD, March 10-13, 1997, para.12.

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and highly migratory fish stocks to take into account the interests of artisanal and subsistence fisheries. In a recent report, FAa estimated that almost 50% of total world landings are believed to come from small-scale capture fisheries and most of this production is used for direct human consumption. Coastal fisheries, most commonly exploited by the small-scale sector, generally are overflshed in most parts of the world due to, inter alia, the inability to fish further offshore and the interaction with industrial fleets operating illegally too close to shore." Nevertheless, small-scale fisheries are an important source of employment and provide a significant amount of animal protein in many countries, particularly in the developing world." Articles 119(l)(a) and 61(3) ofthe LOS Convention deal with the conservation of living resources of the high seas and the conservation of living resources in the exclusive economic zone, respectively , and contain almost identical provisions. However, while article 61 makes an explicit reference to the economic needs of coastal fishing communities as a factor to be taken into account in ensuring levels which can produce MSY in the exclusive economic zone, no such reference exists in article 119 in respect of high seas fishing ." Moreover, articles 63 and 64 of the LOS Convention, dealing with straddling stocks and highly migratory stocks, respectively, make no reference to the interests of this category of fishers . It can be inferred from article 116(b), however, that the interests of the coastal states certainly encompass the economic interests of their small-scale fishers, including those engaged in artisanal and subsistence fisheries.

Implementation and enforcement ofconservation and management measures through effective monitoring, control and surveillance

Article 5(1) of the Straddling and Highly Migratory Fish Stocks Agreement urges coastal states and states fishing on the high seas to develop effective

57 See FAa, supra note 42, p. 22. 58 FAO Assistance to Small-Scale Fisheries (Extract from the Programme Evaluation Report 1992-1993), FAa Doc. coFIl95/INF.15, FAD, 1995, para.I . 59 United Nations , Division for Ocean Affairs and the Law of the Sea (DOALDS),

The Law ofthe Sea: The Regimefor High Seas Fisheries, Status and Prospects, UN Publication Sales No E.92.V.12, 1992, pp. 9-10.

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monitoring, control and surveillance in order to enforce conservation and management measures for straddling fish stocks and highly migratory fish stocks." It should be noted that the LOS Convention does not provide a legal mechanism for the enforcement of conservation and management measures on the high seas because the high seas are characterized by the qualified freedom of fishing as stipulated in its articles 87(e) and 116(b). The right to enforce conservation measures on the high seas therefore belongs to the flag state as provided in article 117. In fact, it seems that the obligation resting on states by virtue of article 5(1) of the Straddling and Highly Migratory Fish Stocks Agreement in terms of enforcement of high seas conservation and management measures through monitoring, control and surveillance seeks, to ensure that individual states fully assume their responsibilities with respect to fishing vessels flying their flag, as a general principle, without prejudice to the establishment of any cooperative arrangements on the issue." The new focus on an improved regime for the enforcement of high seas conservation and management measures was highlighted at UNCED. Agenda 21 provides that in order to ensure sustainable use and conservation of marine living resources of the high seas, states must, among other actions, "ensure effective monitoring and enforcement with respect to fishing activities. ,062

THE ADOPTION OF COMPATIBLE CONSERVATION AND MANAGEMENT MEASURES

In addition to the application of the precautionary approach provided in article 6, article 7 of the Straddling and Highly Migratory Fish Stocks Agreement provides parameters within which the conservation and management measures are to be adopted. Article 7 provides that, without prejudice to the sovereign rights of coastal states over their resources within areas under national jurisdiction and the rights of all states to fish on the high seas,

60 Specifically on compliance and enforcement see Joyner, infra Chapter 12. 61 62

See articles 20 and 21, Straddling and Highly Migratory Fish Stocks Agreement. Para. 17.46(d), Agenda 21, supra note 36.

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coastal states and states fishing on the high seas are required "to seek to agree" upon the measures necessary for the conservation of straddling fish stocks in the adjacent high seas area and to cooperate with a view toward ensuring conservation and promoting the objective of optimum utilization of highly migratory fish stocks throughout the region, both within and beyond the areas under national jurisdiction. These measures must be compatible "in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety." In determining those compatible conservation and management measures, the following factors need to be considered: (1) conservation and management measures adopted by coastal states and applicable to the two stocks in the exclusive economic zone in accordance with article 61 of the LOS Convention, (2) measures already established by coastal states and high seas fishing states and which are applicable to the stocks while in high seas areas , (3) measures established by a subregional or regional fisheries organization for the same stocks, (4) the biological unity and other biological characteristics of the stocks concerned and the relationships between the distribution of the stocks , the fisheries and the geographical particularities of the region concerned, including abundance of the stocks in areas under national jurisdiction, (5) the respective dependence of coastal states and high seas fishing states on the stocks concerned and (6) the impact of measures on the living marine resources as a whole. Article 7 also provides that in cases where states do not agree on compatible measures "within a reasonable period of time ," any of the states involved can resort to the procedures for settlement of disputes provided in the Straddling and Highly Migratory Stocks Agreement. Pending agreement on these compatible measures, the states concerned are to seek to agree on "provisional arrangements of a practical nature." Where they do not agree on provisional arrangements, they shall obtain the adoption of provisional arrangements through the dispute settlement mechanisms of the Agreement. Such provisional measures shall take into account the principles of conservation and management of the stocks concerned as established in the Straddling and Highly Migratory Fish Stocks Agreement, shall have due regard to the respective rights of all states concerned, shall not jeopardize the reaching of final agreement on compatible conservation and management measures and shall be without prejudice to the final outcome of the dispute settlement procedure. In addition, coastal states, on the one hand, shall

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regularly inform other states of the measures they have adopted for straddling fish stocks and highly migratory fish stocks in areas under national jurisdiction and, on the other hand, high seas fishing states also shall regularly inform other states of the measures they have adopted for regulating the activities of fishing vessels flying their flags and harvesting such stocks on the high seas . It is believed that, to be effective, conservation measures should apply throughout the migratory range of a given stock, irrespective of the legal regimes applicable to the ocean areas in which a stock occurs." Straddling fish stocks and highly migratory fish stocks may occur simultaneously within and beyond the exclusive economic zone or they may be available outside the zone at one time and inside the zone at another. Consequently the amounts taken within areas under national jurisdiction may affect the catches beyond and vice versa." For example, as indicated in the 1989 United Nations General Assembly Resolution 44/225 on large-scale pelagic driftnet fishing , "when living marine resources are overexploited in the high seas adjacent to the exclusive economic zones of coastal states, this is likely to have adverse impacts on the same resources within such zones.?" Therefore, in order to be effective, fisheries management should be concerned with the whole stock as a unit in its entire area of distribution and management measures should be harmonized among all states involved. This situation is fully recognized by the Straddling and Highly Migratory Fish Stocks Agreement. It provides that conservation and management measures adopted for areas under national jurisdiction and those adopted for high seas in respect of the two types of stocks are to be compatible in order to ensure conservation and management of the stocks concerned in their "entirety'>66 - that is, throughout their geographical range. In this connection, it should be noted that article 116 of the LOS Convention, by subjecting the freedom of fishing on high seas to the rights, duties and interests of coastal states, provided for, inter alia, in articles 63(2) and 64, seems to oblige states fishing on the high seas not to undercut the interests of coastal states with regard to the management of straddling fish stocks and highly migratory

63 See Hey, supra note 6, p. 16. 64 See Meltzer, supra note 7, p. 261. 6S See UN General Assembly Resolution 44/225, reproduced in (1990) 29/LM 1555. 66 Art.7(2), Straddling and Highly Migratory Fish Stocks Agreement.

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fish stocks on the high seas." Indeed, the rationale behind the provisions of article 116 seems to derive from the recognition that the coastal states' interest in the two stocks may be different from that of the states fishing on the high seas. While the interest of the states fishing on the high seas may be short-term or long-term exploitation of the stocks, the interest of coastal states lies in the long-term viability of the stocks, given the interdependence of such stocks with those within their own exclusive economic zones. One method to ensure that coastal states ' rights, duties and interests are not ignored, therefore, is to make the management regime of straddling fish stocks and highly migratory fish stocks on the high seas consistent with the management regime of coastal states with respect to those stocks in their exclusive economic zones." However, interpretation of article 116 does not give coastal states any special rights to take unilateral actions that would mitigate adverse effects of unregulated fishing on the stocks concerned in areas beyond national jurisdiction." It is generally understood that article 116 is to be interpreted as meaning that there must be consistency between the measures taken beyond and adjacent to the exclusive economic zone and with those taken by the coastal state inside the exclusive economic zone." Moreover, in furtherance of the provisions of article 1l6(b) of the LOS Convention, with respect to highly migratory stocks, article 64 of the LOS Convention explicitly obliges coastal states and states fishing on the high seas to cooperate towards conservation and optimum utilization "throughout the region, both within and beyond the exclusive economic zone," thus evidencing the necessity of a coherent, unified management regime applicable to those stocks throughout their geographical distribution." In this context, article 7(2)(a) to (0 of the Straddling and Highly Migratory Fish Stocks Agreement provide states with a set of factors to be taken into account in the determination of com-

C.c. Joyner and P.N. De Cola, "Chile's Presential Proposal : Implications for Straddling Stocks and the International Law of Fisheries," (1993) 24 Ocean Development and International Law, pp. 99-121, pp. 105-106. 68 DOALOS, supra note 59, p. 30. 69 See Joyner and De Cola, supra note 67, p. 106. 70 B. Kwiatkowska, "Creeping Jurisdiction Beyond 200 Miles in the Light of the 1982 Law of the Sea Convention and State Practice," (1991) 22 Ocean Development and International Law, pp. 153-187, p. 168. 71 Id. 67

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patible measures. Article 7(2)(a) explicitly refers to article 61 of the LOS Convention, which deals with conservation of the living resources in the exclusive economic zone and provides that conservation and management measures established for the two stocks on the high seas are not to undermine the effectiveness of the conservation and management measures taken within areas under national jurisdiction. It hereby seems to introduce a precedence for the interests of coastal states over those of states fishing on the high seas. The requirement of consistency of conservation and management measures for straddling fish stocks and highly migratory fish stocks can be interpreted as meaning that high seas fishing states cannot impose conservation measures on the high seas without consulting and cooperating with adjacent coastal states. This is because coastal states' conservation and management regimes in areas under national jurisdiction take precedence over those established for the high seas." As indicated by J.e. Carroz, several texts of treaties establishing regional fisheries commissions, require that these commissions consider conservation and management measures adopted by coastal states for areas under their national jurisdiction when formulating measures for areas outside the 200nautical mile limit." For instance, the text of agreements establishing the Northwest Atlantic Fisheries Organization (NAFOf4 and the North-East Atlantic Fisheries Commission (NEAFCf5 include provisions requiring both organizations to seek consistency between: 1. Measures for high seas which are to be applied to stocks that migrate between these high seas areas and adjacent areas in which coastal states exercise jurisdiction or that would affect stocks in areas subject to coastal states jurisdiction due to the interrelationship between stocks ; and

W.T. Burke, "Highly Migratory Species in the New Law of the Sea," (1984) 14 Ocean Development and International Law, pp. 273-314, pp. 276,282-283. 73 J.E. Carroz, "Institutional Aspects of Fishery Management Under the New Regime of the Ocean," (1984) 21 San Diego Law Review, pp. 413-540, p. 530. 74 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, October 24, 1978, OJ, 1978, L 378, pol. 75 Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries, November 8, 1980, OJ, 1981, L 227, po22o 72

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2. Measures adopted by coastal states for fisheries conducted in areas in which they exercise fisheries jurisdiction."

Similarly, the Permanent Commission for the South Pacific (csrs), whose mandate covers such species as tuna and jack mackerel, has indicated that conservation measures in the areas adjacent to the exclusive economic zones of coastal states should be consistent with the ones adopted by coastal states within their exclusive economic zones." In 1984, the Ministers of Foreign Affairs of CPPS member states recognized the "legitimate interests of the coastal states in the conservation and optimum utilization of the marine resources beyond their 200 mile zones, when the resources are part of the same populations of species existing in their 200 mile zones, or populations of species associated with them." They instructed the CPPS secretariat to take action with a view toward considering the possibility of establishing adequate mechanisms for the conservation and optimum utilization of these resources." In addition, the Majuro Declaration, adopted at the 1997 Second Multilateral High-Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, stresses the commitments of all participants to ensure that "conservation and management measures for highly migratory fish stocks in areas under national jurisdiction and those for the high seas are compatible. ,, 79

76 Art. XI, Convention on Future Multilateral Cooperation in the Northwest Atlantic

Fisheries; Art. 8 Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries, respectively, supra notes 74 and 75. 77 See Meltzer, supra note 7, p. 271. 78 FAO, Summary Information on the Role of International Fishery Bodies with Regard to the Conservation and Management ofLiving Resources ofthe High Seas, FAO Fisheries Circular No 835 Revision I, 1991, p. 42. 79 Para. 4, Majuro Declaration (Majuro, Republic of the Marshall Islands: Second Multilateral High-level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific, June 10-13, 1997). The following States and entities participated to the Conference: Australia, Cook Islands, Federated States of Micronesia , Fiji, French Polynesia, Japan, Kiribati, Marshall Islands, Nauru, New Caledonia, New Zealand, Niue, Palau, Papua New Guinea, People 's Republic of China, Philippines, Republic of Korea, Solomon Islands, Taiwan, Tonga, Tuvalu , United States of America, Vanuatu, Wallis and Futuna and Western Samoa.

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Another important feature of article 7 of the Straddling and Highly Migratory Fish Stocks Agreement, as indicated previously, is the inclusion of provisions requiring states, pending agreement on compatible measures, "to enter into provisional arrangements of a practical nature." Such provisions, provided in the LOS Convention only for the delimitation of the exclusive economic zone and the continental shelf between states with opposite or adjacent coasts," are likely to facilitate the adoption of agreed conservation and management measures for straddling fish stocks and highly migratory fish stocks as required in articles 63(2) and 64 of the LOS Convention. In this respect it is important to note that these provisional measures "shall have due regard to the rights and obligations of all States concerned, shall not jeopardize or hamper the reaching of final agreement on compatible conservation and management measures and shall be without prejudice to the final outcome of any dispute settlement procedure .?" Following the consideration of the issue of compatibility of conservation and management measures between areas under national jurisdiction and adjacent high seas, a question that has to be raised is how these compatible measures will be determined, given the different legal regimes of the two maritime areas involved. Regardless of whether the negotiations would be pursued directly or through subregional or regional fisheries management organizations, as provided in article 7(a) and (b) of the Straddling and Highly Migratory Fish Stocks Agreement, the fundamental problem for the coastal states and the high seas fishing states remains the actual determination of these compatible measures. It could be argued that article 7(2)(a) to (f) already provide several indications on how this has to be done by drawing attention to the relevance of article 61 of the LOS Convention, previously agreed measures for managing the stocks concerned, the relevance of the biological characteristics of the stocks and the respective dependence of coastal states and high seas fishing states on the stocks, as well as the importance of the non-adverse impact of any compatible measures on the ecosystem. Although these factors would be relevant in shaping the final characteristics of any compatible measures agreed between the coastal states and the high seas fishing states, they do not indicate which conservation

80 81

Arts . 74(3) and 83(3), LOS Convention. Art. 7(6), LOS Convention.

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measures in force in the two maritime areas would apply to fishing activities for straddling and highly migratory fish stocks. On the one hand, coastal states believe that the emerging trend, based on the recognition of the oceans as an integrated ecosystem, entails that coastal states cannot be indifferent to what happens in areas of the high seas closely related to the areas under national jurisdiction. They, thus, are of the view that given the close interrelationship that exists between the high seas and the exclusive economic zone, in terms of both biological and ecological interactions, conservation measures for the high seas need to be adopted in close cooperation with the relevant coastal states as a condition oftheir effectiveness." Moreover, for coastal states, articles 63(2) and 64(2) and article 116(b) LOS Convention (which subjects the right of high seas fishing to the rights, duties and interests 'of coastal states) provide, at least, indications that high seas fishing states are effectively prohibited from unilaterally adopting measures on the high seas because such measures could prejudice the conservation and management efforts of coastal states both within and beyond their exclusive economic zones." These articles indicate that if cooperation fails to result in the needed conservation and allocation measures, it should be permissible for coastal states to take action to initiate the needed measures for compliance beyond the exclusive economic zone." These considerations have led one state to formulate the concept of the "presential sea." It intends to respond to the special interest of coastal states in areas beyond national jurisdiction and involves coastal state participation in, and surveillance of, activities undertaken by other states in the high seas areas of particular interest to it.85 Indeed, during the second and third sessions of the Straddling Fish Stocks and Highly Migratory Fish Stocks Conference, several coastal states introduced proposals which would make con-

F. Orrego Vicuna, "Toward an Effective Management of High Seas Fisheries and the Settlement of the Pending Issues of the Law of the Sea," (1993) 24 Ocean Development and International Law, pp. 81-92, pp. 84-85. 83 See B. Applebaum, "The Straddling Stocks Problem: The Northwest Atlantic Situation, International Law, and Options for Coastal State Action," in Alfred H.A. Soons (ed.), Implementation of the Law of the Sea Convention Through International Institutions, Law ofthe Sea Institute, 1990, pp. 282-317; Meltzer , supra note 7, p. 258. 84 See Burke, supra note 72, p. 284. 85 See Orrego Vicuna, supra note 82, pp. 87-88.

82

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servation and management measures of straddling and highly migratory fish stocks on the high seas "consistent with the conservation and management measures applied by the relevant coastal State or States within their exclusive economic zones.?" Some indicated that, once a regional fisheries agreement entered into effect, and in cases where no consensus on conservation and management measures could be reached within the organization concerned, any conservation measures that states members have adopted within areas under their jurisdiction with respect to the regulated species, should be respected by all states fishing for such species within the regulatory area. 87 Others emphasized that states fishing on the high seas for the two stocks should provisionally observe conservation and management measures "equivalent in effect" to those applied by coastal states within areas under national jurisdiction." In this connection, it is relevant to note that three coastal states - Argentina, Chile and Peru - have adopted legislation that makes provision for the application of their respective conservation and management measures with respect to highly migratory and straddling stocks beyond their exclusive economic zones." On the other hand, states fishing on the high seas expressed the view that the LOS Convention does not contain provisions allowing coastal states to exercise authority beyond the exclusive economic zone on the high seas." They indicated that high seas fishing must be conducted so that all states may benefit, but that this cannot be done by the de facto extension

86

87

88 89

90

Art. 4(v), Draft Convention submitted to the Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks by Argentina, Canada, Chile, Iceland and New Zealand, UN Doc. NCONF.I64/L. l l/Rev.l , 1993, reproduced in Levy and Schram (eds.), supra note 9, p. 163. Section III, para. 6, Elements of International Agreement submitted by Chile, Colombia, Ecuador and Peru, UN Doc. NCONF.I64/L.14, 1993, reproduced in Levy and Schram (eds.) , supra note 9, p. 188. Art. 41, Draft Convention submitted by Ecuador, UN Doc . NCONF.I64/L.44, 1994, reproduced in Levy and Schram (eds.), supra note 9, p. 503. For Argentina: Act No 23.968 of August 14, 1991, reprinted in (1992) Law of the Sea Bulletin n" 20, p. 20; for Chile: Act 19.079 of August 12, 1991, amending Act 18.892, art. 154, Official Journal ofthe Republic of Chile, September 6, 1991; for Peru: Ley General de Pesquerfas approved by Decree Law 25977 of December 7,1992, art. 1, Diario el Peruano-Normas Legales, December 22 , 1992. See Burke, supra note 72, p. 287.

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of coastal states' control." They point out that high seas fishing in certain areas requires tighter control and more effective management but that they would certainly resist unilateral prescription of conservation measures by coastal states beyond the exclusive economic zones/? Furthermore, they add that conservation measures taken within the exclusive economic zone and those applied to the adjacent high seas in respect of straddling and highly migratory fish stocks should be assessed on an equal basis, ensuring that both measures are complementary." For these states, "concordance" of conservation and management measures within and beyond areas of national jurisdiction "does not simply mean the alignment of measures to be taken in international waters with those taken by the coastal state in its exclusive zone.?" Therefore they stress that "due regard" to the needs, interests and practices of both distant-water fishing states and coastal states was the point of departure for discussion on how to establish the fundamental principles for the achievement of compatibility and coherence." It may be inferred, however, from the explicit reference in article 7(2)(a) of the Straddling and Highly Migratory Fish Stocks Agreement to article 610fthe LOS Convention and the manner by which articles 63(2), 64(2) and 116(b) of the LOS Convention are worded, that coastal states' interests take priority over those of high seas fishing states, in circumstances where they would be unable to agree on compatible measures necessary for the conservation and management of straddling and highly migratory fish stocks.

91

92 93 94

95

A. Bergin and M. Howard, "The Last Jewel in a Disintegrating Crown - The Case of Japanese Distant Water Tuna Fisheries," (1994) 25 Ocean Development and International Law, pp . 187-215 , p. 199. Id. See list of issues submitted by Japan, UN Doc. NCONF.I64/L.6, 1993, para. 2, reproduced in Levy and Schram (eds .), supra note 9, p. 129. Position Statement submitted by the European Community, UN Doc. NCONF.I64/ L.8, 1993, Annex, sec. II, para . 3, reproduced in Levy and Schram (eds.), supra note 9, p. 135. Comments submitted by Japan, UN Doc . NCONF.I64/L.28 , 1993, para. 3, reproduced in Levy and Schram (eds .), supra note 9, p. 245 .

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CONSERVATION AND MANAGEMENT MEASURES, ACCESS, NEW MEMBERS AND NON-PARTICIPANTS

Various difficult legal issues may arise with respect to access to the fishery in question , such as membership in the relevant regional fisheries organizations, access by new members wishing to participate in the fishery and by those that want to fish without participating in the regional organizations. As the Straddling and Highly Migratory Fish Stocks Agreement has not yet come into force, one can only evaluate on a theoretical basis how these various issues are likely to affect its success. Obviously, the requirement of compatible conservation and management measures for straddling and highly migratory stocks would matter little unless all those that fish for the stocks play by the rules. On the question of access, considerable anxiety was discernible at the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks that a group of states would form regional fisheries organizations that would exclude other states from membership . The Agreement allays such fears in article 8(3), which provides the terms for participation in such organizations or arrangements. It determines that states "having a real interest in the fisheries concerned" shall not be precluded from membership or participation, nor shall conservation and management measures be applied in a manner that discriminates against any state or group of states having a real interest in the fisheries concerned . However, an indication that states who fulfill the criteria listed in article 8(3) might well be excluded from relevant fisheries organizations, is provided by the long-standing dispute between Iceland, Norway and Russia over the rights of Icelandic vessels to fish in a high seas loophole area between Norway and Jan Mayen. The Norwegian-Russian Fisheries Commission, established for the Barents Sea, has consistently refused to allow the participation of Iceland in the Commission, while Icelandic vessels have continued fishing under protest from the two other states concerned. All three states, however, have ratified the Straddling and Highly Migratory Fish Stocks Agreement. Obviously, in such cases, much depends upon how one interprets the terms "real interest in the fisheries concerned" as contained in article 8(3), which reflects articles 63(2) and 64 of the LOS Convention. Furthermore, article 34 of the Straddling and Highly Migratory Fish Stocks Agreement requires states to fulfill the obligations assumed "in good faith" and to

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exercise the rights concerned "in a manner which would not constitute an abuse of right." If a group of states tried to exclude another state that has an equitable claim to participate in the fishery, e.g., as a result of its dependence on the stocks concerned," that situation could give rise to a claim under article 34. The application of the provisions on new members or participants" also may become a cause of dissent among fishing states. This is so in spite of the detailed and well-drafted parameters that the states parties to regional organizations or arrangements are to take into account. The interpretation of two of those parameters will be of special interest to newcomer states. These parameters concern the needs of coastal states whose economies are overwhelmingly dependent on the exploitation of the living marine resources" and the obligation to take into account the interests of developing states from the subregion or region in whose areas of national jurisdiction the stocks also occur." In the uphill battle for fishing rights, the newcomers will be well served by the provisions of the Straddling and Highly Migratory Fish Stocks Agreement on dispute settlement. Of particular relevance is article 30(1), which provides that any dispute arising under the Agreement is subject to compulsory binding dispute settlement, except that the coastal state may prevent disputes concerning the management of fisheries within their exclusive economic zones from being brought to any forum other than one for non-binding conciliation. Finally, a few words about the situation that would develop if third states refuse to become members of the regional organizations or arrangements and are, as a result, banned from fishing in the areas of the high seas managed by these organizations. In this case a somewhat anomalous situation may arise. On the one hand, article 119(3) of the LOS Convention requires states to ensure that the implementation of conservation and management measures for high fisheries "do not discriminate in form or in fact against the fishermen of any State," on the other hand, the LOS Convention also stipulates, in its articles 63(2), 64 and 118, that states are required to

96 Art. 7(2)(d), Straddling and Highly Migratory Fish Stocks Agreement. 97

Art. 11, Straddling and Highly Migratory Fish Stocks Agreement.

98 Art. II(e), Straddling and Highly Migratory Fish Stocks Agreement. 99 Art. 11(t), Straddling and Highly Migratory Fish Stocks Agreement.

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cooperate in the conservation and management of high seas fisheries, including straddling fish stocks and highly migratory fish stocks. The Straddling and Highly Migratory Fish Stocks Agreement approaches this dilemma with two clear-cut provisions. It stipulates that two obligations rest upon states that are not a party to the relevant fisheries organizations or arrangements and which do not otherwise apply the conservation and management measures adopted by the relevant fisheries organization or arrangement. These obligations are the duty to cooperate'P' and the duty not to authorize their vessels to engage in fishing activities for the stocks in question. 101 Furthermore, article 33(1) of the Straddling and Highly Migratory Fish Stocks Agreement stipulates that its parties shall encourage non-parties to become parties to the Agreement and adopt laws and regulations consistent with its provisions. Parties also shall take measures to deter the activities of vessels flying the flag of non-parties that undermine the effective implementation of the Agreement.l'" Regardless of the above, in a world of sovereign states, however, each state has the right to determine for itself whether to become a party to the Straddling and Highly Migratory Fish Stocks Agreement. The Agreement cannot compel states to become parties to it. However, one must agree with the submission that, unlike most other treaties, the Straddling and Highly Migratory Fish Stocks Agreement develops the framework of obligations provided by the LOS Convention that are by now generally accepted as reflecting customary intemationallaw. In time the provisions of the Straddling and Highly Migratory Fish Stocks Agreement themselves may attain that same status. 103

100 Art. 17(1), Straddling and Highly Migratory Fish Stocks Agreement. 101 Art. 17(3), Straddling and Highly Migratory Fish Stocks Agreement. Also see

Ellen Hey, "Global Fisheries Regulations in the first half of the 1990s," (1996) 11 The International Journal ofMarine and Coastal Law, pp. 459-490, p.476. 102 Art. 33(2) , Straddling and Highly Migratory Fish Stocks Agreement. 103 David A. Balton, "Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks" (1996) 27 Ocean Development and International Law, pp. 125-152, p. 140.

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CONCLUSIONS The overview of conservation and management measures included in the Straddling and Highly Migratory Fish Stocks Agreement illustrates that the Agreement provides the flesh on the bones of the obligation to conserve and the obligation to cooperate as contained in articles 63(2), 64 and 116(b), juncto article 119, of the LOS Convention. While, as stated above, the obligations to conserve and to cooperate were generally accepted by states, their content remained contentious. The Agreement provides that content by specifying the substantive aspects that coastal states and high seas fishing states are to address in the development of cooperative conservation and management regimes for straddling and highly migratory fish stocks. These aspects include development of an adequate knowledge base for decisionmaking and of an ecosystem approach to fisheries conservation and management, a focus on the long-term sustainability of the stocks, reduction of overcapacity and the special position of developing states as well as of artisanal and subsistence fishers, developing adequate enforcement mechanisms, as well as the adoption of precautionary reference points. The Agreement not only lists these elements, but indicates the manner in which they should be further developed. . It is in this further development, or implementation, where the challenge for fisheries management lies. The Straddling and Highly Migratory Fish Stocks Agreement implements and develops the relevant provisions of the LOS Convention. However, in order for proper fisheries conservation and management of straddling and highly migratory fish stocks to be a fact, the Agreement itself has to be implemented by its parties through regional fisheries conservation and management organizations. Provided these organizations include all states "having a real interest in the fisheries concerned.?'?' it is within these organizations, where in case of disagreement, the discussion as to the precise significance of the compatibility criterion, contained in article 7 of the Agreement, may arise. However, given the clarity of the substantive provisions of the Straddling and Highly Migratory Fish Stocks Agreement, such discussions are now more likely to concentrate on the content of a specific conservation and management measure, rather than on the

104

Art. 8(3), Straddling and Highly Migratory Fish Stocks Agreement. Also see Applebaum and Donohue, supra Chapter 9, on this point.

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appropriateness of the organization adopting a comprehensive conservation and management regime, including enforcement mechanisms, for the fisheries in question. It is clear that if widely implemented the Straddling and Highly Migratory Fish Stocks Agreement would represent a big step towards more adequate fisheries management of the stocks concerned. At this point in time, however, only about half of the necessary number of instruments of ratification have been deposited and the question remains how many of the deep-water fishing states will be willing to accept the curtailment of their right to fish freely under the fairly vague provisions of the LOS Convention. The premise that a state cannot be bound by a treaty without its consent is also here of obvious relevance. Other imponderables include the extent to which states, other than the flag state, will be willing to enforce conservation and management measures on the high seas against vessels and be willing to use the dispute settlement procedures provided in the Agreement. Clearly the question of access and the rights of newcomers will also be relevant in this respect. These questions and others of a similar nature will be analyzed at the review Conference, which, according to article 36 of the Agreement, is to be convened four years after the entry into force of the Straddling and Highly Migratory Fish Stocks Agreement and at which the effectiveness of the Agreement is to be evaluated. Only then will it be appropriate to consider whether the seriousness of the situation would warrant fundamental changes such a bringing the marine resources of the high seas under the direct aegis of an international body in line with the provisions of Part XI on Seabed area and its resources.

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11 IMPLEMENTING PRECAUTION CAUTIOUSLY: The Precautionary Approach in the Straddling and Highly Migratory Fish Stocks Agreement David Freestone

INTRODUCTION

Article 6 of the 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 and Highly Migratory Fish Stocks! (Straddling and Highly Migratory Fish Stocks Agreement or the Agreement) specifically requires the use of the precautionary approach in the management of straddling and highly migratory fish stocks. Annex II sets out a methodology for the application of such a precautionary approach. The significance of the introduction of precaution into the global fisheries regulatory agenda should not be underestimated. As suggested elsewhere, this, together with other features of the Agreement, can be read as the introduction for the first time of a truly environmental dimension into international fisheries Iaw.'

(1995) 34lLM 1542. Specifically on the Straddling and Highly Migratory Stocks Agreement see Hayashi , supra Chapter 4. 2

David Freestone and Zen Makuch, "The International Environmental Law of Fisheries : The 1995 Straddling Stocks Agreement," (1996) 7 Yearbook ofInternational Environmental Law, pp. 3-49. In addition to the introduction of the precautionary methodology, notice in particular the references to dependent species and ecosystem conservation, as well as the use of legal enforcement procedures, such as port state jurisdiction, developed for enforcement of environmental obligations under Part XII of the Law of the Sea Convention.

E. Hey, (ed.), Developments in International Fisheries Law, p. 287-325. © 1999 Kluwer Law International. Printed in The Netherlands.

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As the twentieth century comes to an end, the last decade has been an extremely turbulent one for fisheries management and consequently for the legal regimes which attempt to regulate fisheries? In 1994 the United Nations Food and Agriculture Organisation (FAO) noted that the 1990s showed the first decline in global fish catches since a minor reversal in the 1970s.4 Annual catches of over 80 million Mt. a year represent a 400% increase since the 1950s. Scientists have suggested that the ecological limit of world fisheries may be 100 million Mt. a year and that there are considerable margins of error in all these figures (maybe up to 20%). The decline should be seen against the background of continued high capital investments in fisheries and the introduction of new technology. FAO, in fact, has suggested that we may well have reached the limits of production from "wild fisheries" and that "sustainable development" in the fisheries sector cannot, it seems, be achieved under existing "open access" regimes.' The result has been a raft of new international instruments that attempt to address these changed circumstances. As Hey has pointed out, these instruments attempt to address four crucial legal issues that have not traditionally been regarded as the concerns of international law, but rather as matters under the jurisdiction of individual states. These are: the exercise of effective jurisdiction over straddling stocks, the exercise of jurisdiction over stocks within exclusive economic zones which have experienced precipitous declines (as for example in the Northwest Atlantic and the North Sea), the effective exercise of jurisdiction by states over the vessels flying their flags and fishing for high seas stocks and the extent to which legal regimes should incorporate concerns about the conservation and sustainable use of marine biological diversity."

3

4 5 6

See, e.g., Barbara Kwiatkowska, "The High Seas Fisheries Regime: At a Point of No Return?," (1993) 8 The InternationaLJournal ofMarine and Coastal Law, pp. 327-358 and David Freestone, "The Effective Conservation and Management of High Seas Living Resources: Towards a New Regime ?," (1994) 5 The Canterbury Law Review, pp. 341-362 . Review ofthe State of World Marine Fishery Resources, FAO Technical Paper No. 335, Rome, 1994. Id. Ellen Hey, "Global Fisheries Regulations in the first half of the 1990s," (1996) 11 The International Journal of Marine and Coastal Law, pp. 459-490.

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These new instruments, of which the most prominent is the Straddling and Highly Migratory Fish Stocks Agreement, but which also include Chapter 17 of Agenda 21/ the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas" (Compliance Agreement), the 1995 Code of Conduct for Responsible Fisheries? (Code of Conduct) and the Jakarta Mandate of the Convention on Biological Diversity," have added a series of important new interpretative glosses to the regime of the 1982 United Nations Law of the Sea Convention 11 (LOS Convention)." The LOS Convention gives coastal states exclusive powers to control fisheries within their 200-nautical mile exclusive economic zones, but does little to regulate effectively those resources which are not found, or not always found, within those jurisdictional zones . Indeed, as suggested above, the evidence suggests that even stocks within the 200-mile zones have suffered from over-exploitation. The future of the world's fisheries resources has become increasingly a matter of concern to the international community, not simply because of the economic impact of depletion of these resources but because of the potential ecological significance of such depletion for marine ecosystems generally. 13

7

8

9

10

11 12 13

United Nations, Report ofthe United Nations Conference on Environment and Development, UN Doc NCONF/151126 , 1992, Vol. 2. (1994) 33 lIM 968. Specifically on the Compliance Agreement see Balton, supra Chapter 3 and Gerald Moore, "The Food and Agriculture Organisation of the United Nations Compliance Agreement," (1995) 10 The International Journal ofMarine and Coastal Law , pp. 412-426 (annexing the text of the Agreement.) Specifically on the Code of Conduct see Moore, supra Chapter 5 and W.M. Edeson, "The Code of Conduct for Responsible Fisheries : An Introduction ," (1996) 11 The International Journal ofMarine and Coastal Law, pp. 233-238 . Further discussion see Ellen Hey, supra note 6, p. 485 ; also Maas Goote, "The Jakarta Mandate," (1997) 12 The International Journal ofMarine and Coastal Law , pp. 377-395 which reproduces the text of the SBSTIA Recommendation 1/8 (paras. 10-19) as an appendix. (1982) 21 lIM 1261. Specifically on the fisheries provisions of the LOS Convention see Hey, supra Chapter 2. Also of importance are some of the new species and regional fisheries agreements, a number of which are discussed below. See e.g. David Freestone, "The Conservation of Marine Ecosystems under International Law," in M. Bowman and C. Redgwell (eds.), International Law and the Conservation of Biological Diversity, 1996, pp. 91-107 and sources

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The rapid evolution of international fisheries law in the 1990s has brought into even starker contrast the legal regime that existed prior to the LOS Convention. Others have pointed out that the 1958 Geneva Conventions reflected the general view that fish were an unlimited resource and that the overwhelming majority of fishing took place on the high seas outside the, then, three mile territorial sea." The community interest in fish stocks was simply to require that exercise of the right to fish - one of the fundamental freedoms of the high seas - had to be exercised "with reasonable regard to the interests of other states in their exercise of the freedom of the high seas.''" This "reasonable regard" test was in tum reflected in the somewhat general obligations of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas" (1958 Fisheries Convention) which required a state fishing on the high seas to take account of its treaty obligations, the interests and rights of coastal states and the (somewhat limited) requirements of conservation.I? It also imposed a duty on states to adopt, or cooperate in adopting, fisheries conservation measures for their nationals. IS However, the definition of "conservation" in the 1958 Fisheries Convention, was entirely anthropocentric and related to securing the maximum supply of food and other marine products for human consumption." The LOS Convention reflects a much wider concern with the environmental dimension of marine regulation; nevertheless, the primary change it

cited there . 14 . D.H. Anderson, "The Straddling Stocks Agreement of 1995 - An Initial As-

15 16

17

18 19

sessment," (1996) 45 International and Comparative Law Quarterly, pp. 463475. Art. 2, 1958 Convention on the High Seas, HMSO , Cmnd . 584 . Id. Art. 1(1), 1958 Fisheries Convention. For a definition of the 'conservation of the living resources of the high seas' see art. 2 of the same Convention as quoted in infra note 19. Art. 1(2), id. The definition in art. 2 of the 1958 Fisheries Convention is as follows : "the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products. Conservation programs should be formulated with a view to securing in the first place a supply of food for human consumption." Compare this with the environmental requirements of art. 119, LOS Convention, as discussed in the text after note 56 infra.

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introduced in the fisheries regime was to permit the enclosure of 200-mile zones, and much of the energy of the negotiations appears to have been directed towards ensuring that coastal states managed this resource in an effective way. In contrast, the high seas fishery regime is much less developed. Brown sums up its main objective as "to produce the maximum sustainable yield as qualified by a wide range of rather vague factors. ,,20 Similarly, the regime covering stocks that move between exclusive economic zones and high seas is even vaguer. Its provisions are essentially hortatory and it has been characterized as part of the "unfinished agenda" of the LOS Convention." These provisions all reflect a traditional view that the community interest is in minimizing interference in the exercise of high seas rights. The emergence of a body of international environmental law reflects a rather different concern. This is posited on the argument that the world community has an interest in the protection of certain key shared resources - the so-called global commons - and that high seas fisheries , like the atmosphere, the ozone layer and other aspects of biological diversity, cannot simply be left to fend for themselves. As we have argued elsewhere, "increasingly international environmental law is ... accepting that a rigid traditional view of ... state sovereignty under which activities under state control are unchallengeable by other states can no longer be compatible with serious attempts to address global problems.r'? The precautionary principle is part of this development. Its endorsement by a wide range of international and national bodies locate it firmly among the core concepts underpinning what Judge Weeramantry has recently called

20

E.D. Brown, The International Law of the Sea, Dartmouth, 1994, Vol. 1, p. 319.

21 22

See Kwiatkowska, supra note 3, and Freestone, supra note 3. David Freestone and Ellen Hey, "Implementing the Precautionary Principle: Challenges and Opportunities," in David Freestoneand Ellen Hey (eds.), The Precautionary Principle and International Law, The Challenge of Implementation, KluwerLaw International, 1996,pp. 249-268,p. 250. This developsthe

argument by GUnther Handl, "Environmental Securityand GlobalChange: the Challengeto International Law," (1990) 1 Yearbook ofInternational Environmental Law, pp. 3-33.

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the legal principle of sustainable development. 23 Acceptance of the precautionary principle entails acceptance of the fact that restrictions must be placed on activities which are likely to have significant negative impacts on the environment, even if science is unable to predict accurately what these consequences will be. It is not, or is not necessarily, an absolutist doctrine in the sense that even the concept of "significant negative impacts" involves a considerable value judgment," and so, of course, does the term "restrictions". However, the inclusion of precaution in the Straddling and Highly Migratory Fish Stocks Agreement - as well as recognition in the Agreement of the importance of ecosystem and biodiversity conservation - is part of a significant legal recognition that there are wider community interests in the issue of fish stock conservation and management. Whereas the 1958 Fisheries Convention set out the primary objective of high seas fishing as the maximization of food for human consumption, and the LOS Convention moved to the concept of maximum sustainable yield as qualified by a wide range of "rather vague factors," some of which are environmental," the Straddling and Highly Migratory Fish Stocks Agreement fleshes out these environmental factors and makes them important considerations in their own right. 26 With the precautionary approach it also introduces a methodology for dealing with the issue of scientific information." The requirements for

23 Separate Opinion in Case Concerning the Gabcfkovo-Nagymaros Project

(Hungary v. Slovakia), Judgment of September 25, 1997, [1997] ICJ Reports. As David Fleming has put it: "one person's 'unacceptable consequence' is another person's 'regrettable necessity, " see "The Economics of Taking Care : an Evaluation of the Precautionary Principle," in Freestone and Hey (eds.), supra note 22, pp. 147-167, p. 147. 25 E.D . Brown, supra note 20. The vague factors are that measures must be based "on the best scientific evidence available" and must accommodate relevant environmental as well as economic factors . Such factors are listed, non-definitively, to include the special requirements of developing states, and are to take into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards . 26 See in particular art. 5, Straddling and Highly Migratory Fish Stocks Agreement. 27 J. Cooke and M. Earle, ''Towards a Precautionary Approach to Fisheries Management," (1993) 2 REClEL, pp. 252-259. 24

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the use of scientific information have always been there;" the issue has been what to do when even the best evidence is incomplete or inconclusive. Despite the worst fears of some negotiators of the Agreement, a precautionary approach does not necessarily entail a complete moratorium on fishing operations in such situations, but what it may do is to change the burden of proof or even the requirements of proof (i.e., the standards or thresholds) which need to be engaged before predetermined conservation measures would come into operation. The significance of this is that instead of the burden of proof being on those arguing for conservation to prove definitively that stocks are threatened before conservation measures are put in place (as has been the situation in the past), a number of stock management parameters are established ab initio and if these are exceeded then conservation measures will automatically become applicable. Should there be some that wish to continue fishing at existing exploitation levels, then the burden of proof would be on them to prove, using the best scientific evidence, that such activity would not have unacceptable impacts on the stocks. This would constitute a reversal of the normal burden of proof so that it is in favor of conservation rather than exploitation, but such a reversal only engages when predetermined management parameters are exceeded. In fact, as will be discussed below, this methodology and the response measures envisaged by Annex II are certainly not draconian and may be argued to constitute a relatively cautious application of the precautionary approach . Whether they will be sufficient only time will tell, but it is important not to underestimate the significance of such a change in approach in favor of conservation. This chapter will examine the evolution of the precautionary principle, arguably the most important new policy approach in international environmental cooperation." It will assess the way in which the concept has been developed from its origins in pollution control into the sphere of capture

28 E.g., art. 7 of the 1958 Geneva Convention allows coastal states to introduce

measures if "there is a need for urgent application of conservation measures in the light of existing knowledge of the fishery" and they are "based on appropriate scientific findings". See also art. 119, LOS Convention. 29 David Freestone, ''The Precautionary Principle," in Robin Churchill and David Freestone (eds .), International Law and Global Climate Change, Kluwer Law International, 1991, pp. 21-39, p. 36.

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fisheries and into the negotiations leading to the Straddling and Highly Migratory Fish Stocks Agreement. It will then describe the way in which the concept has been incorporated into the Straddling and Highly Migratory Fish Stocks Agreement and attempt an assessment of the significance of this for the utilization of the principle in the future.

THE

EVOLUTION OF THE PRECAUTIONARY PRINCIPLE

Principle 15 of the 1992 Rio Declaration adopted at the United Nations Conference on Environment and Development (UNCED) provides that In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversibledamage lack of full scientificcertainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.t''" The origins and development of the precautionary principle have been well documented and analyzed elsewhere." However, some brief assessment may be in order of the way in which the principle has become a guiding principle in the overwhelming majority of modern international, and increasingly national, instruments and jurisprudence relating to environmental and natural resource conservation. While the principle emerged in the context of the marine pollution sector, the last ten years have seen it applied to the whole gamut of environmental and natural resource exploitation issues: from

For the documents adopted at UNCED see UN Doc. NConf.151/26 (vols. I-V), August 12, 1992. 31 Freestone, supra note 29, pp. 22-23; P. Ehlers, "The History of the International North Sea Conferences," in David Freestone and Ton IJlstra (eds.), The North Sea Perspectives on Regional Environmental Co-operation, Graham & Trotman! Martinus Nijhoff, 1990, pp. 3-14; Lothar Gundling,"The Status in International Law of the Principle of Precautionary Action," in Freestone and IJlstra (eds.), id., pp. 23-30, p. 24; David Freestone and Ellen Hey, "Origins and Development of the Precautionary Principle," in Freestone and Hey (eds.), supra note 22, particularly pp. 3-15. 30

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ozone depletion and climate change to biodiversity conservation, transport of hazardous wastes and driftnet fishing. The precautionary principle first found its way into international law and policy as a result of German proposals made to the International North Sea Ministerial Conferences." These proposals were based on the Vorsorgeprinzip of German law. From the North Sea ministerial forum the concept found its way into the work of the Oslo and Paris Commissions.P into global marine environmental regimes such as that developed under the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter" (1972 London Convention)," then into global environmental regimes and thence into a wide range of international negotiations"

The German text of the Declaration of the First International North Sea Conference, held in Bremen in 1984, contained the term Vorsorgemassnahmen while the English text refers to "timely preventive measures". For the text of the Bremen Declaration see David Freestone and Ton Ulstra (eds.), The North Sea: Basic Legal Documents on Regional Environmental Co-operation, Graham & TrotmanlMartinus Nijhoff, 1991, p. 61. The first explicit formulation of the precautionary concept at the international level was contained in the Declaration of the Second International North Sea Conference, held in London in 1987. The participants declared that they accepted that: ", in order to protect the North Sea from possibly damaging effects of the most dangerous substances, a precautionary approach is necessary which may require action to control inputs of such substances even before a causal link has been established by absolute clear scientific evidence." Paragraph VII, London Declaration, For the text of the London Declaration see Freestone and Ulstra (eds.), id., p. 3. 33 See, for example, PARCOM Recommendation 89/1, June 22,1989, on the Principle of Precautionary Action, and OSCOM Decision 98/1, June 14, 1989, on the prior justification procedure, reprinted in Freestone and Ulstra (eds.), id., respectively at p. 152 and p. 119. 34 (1972) 11 lIM 1291. 35 Resolution LDC 44(14) on the Application of the Precautionary Approach to Environmental Protection within the Framework of the London Dumping Convention, Annex 2, Doc. LDC 14/16, December 30, 1991, also see report by Ellen Hey, The Precautionary Approach and the London Dumping Convention, September 4, 1991, LDC 14/4. 36 In November 1990, the UN Secretary-General, in his 1990 Report on the Law of the Sea, expressly recognized the "considerable significance" of the precautionary principle for future approaches to marine environmental protection and resource conservation; he reported that the principle had been endorsed 32

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including those for the Straddling and Highly Migratory Fish Stocks Agreement The basic tenet of the precautionary approach," which distinguishes it from the more traditional "preventative" approach, is that positive action to protect the environment may be required before scientific proof of harm

"by virtually all recent international forums". (UN Doc. N451721 , 19 November 1990, p. 20, para. 60.) Specific examples of recent instruments endorsing the precautionary principle or approach include the following: 1993 Ministerial Declaration on the Protection of the Black Sea, (1993) 23 Environmental Policy and Law, p. 235 (for further information see Ellen Hey and Laurence D. Mee, "Black Sea, The Ministerial Declaration: An Important Step," id., pp. 215-220); United Nations Framework Convention on Climate Change, (1992) 31 lIM 848; Convention on Biological Diversity, (1992) 31 lIM 818; 1992 Convention on the Protection of the Baltic Sea Area, (1992) 3 Yearbook of International Environmental Law and 8 The International Journal of Marine and Coastal Law p. 215, with commentary by P. Ehlers, p. 191; 1992 Convention on the Protection and Use of Transboundary Watercourses and Lakes, (1992) 31 lIM 1312; the 1992 Maastricht Treaty on European Union 31 lIM 247 (1992); the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 36 lIM 1 (1997) (for further information see Rene Coenen, "Dumping of Wastes at Sea: Adoption of the 1996 Protocol to the London Convention 1972," 6 RECIEL 1997, pp. 54-61); 1992 Convention on the Protection of the Marine Environment of the North-East Atlantic, (1993) 8 International Journal of Marine and Coastal Law, p. 50 (for further information see Ellen Hey, Ton IJIstra and Andre Nollkaemper, "The 1992 Paris Convention for the Protection of the Marine Environment of the North-East Atlantic: A Critical Analysis," (1993) 8 International Journal of Marine and Coastal Law, pp. 1-49). 37 For developments in the literature see, e.g., GUndling, supra note 31; James Cameron and Juli Abouchar, "The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment," (1991) 14 Boston College International Law Review, pp. 1-27; Freestone, supra note 29, pp. 21-40; Ellen Hey, ''The Precautionary Approach: Implications of the Revision of the Oslo and Paris Conventions," (1991) 15 Marine Policy , pp. 244-254; Ellen Hey, "The Precautionary Concept in Environmental Law and Policy: Institutionalizing Caution," (1992) 4 Georgetown International Environmental Law Review, pp. 303-318; Timothy O'Riordan and James Cameron, (eds.), Interpreting the Precautionary Principle, Earthscan, 1994; Freestone and Hey (eds.), supra note 22.

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has been provided." It is clear that the precautionary principle (or precautionary thinking or action) covers a very wide range of possible obligations and actions." In its weakest formulation" it would be difficult to distinguish from the preventive principle which is already well known to international environmental law." At its strongest it can be seen as a reversal of the normal burden of proof." so that a potential actor must prove that the proposed activity will not cause harm before it can be

38 For a wider discussion, see Freestone and Hey, supra note 31, p. 13. 39 The concept can be found in pre-existing legal concepts and obligations. See,

e.g., Report ofExperts Group on Environmental Law ofthe World Comm ission on Environment and Development (wcei», published as Environmental Protection and Sustainable Development: Legal Principles and Recommendations, R. D. Monroe and J.G.Lammers (eds.), Graham & TrotmanlMartinus Nijhoff, 1987 . The Experts Group suggested that: "the obligation of States to prevent or abate transboundary environmental interference exists only to the extent that it is reasonably foreseeable [original italics] that substantial harm [emphas is added] is caused, or that there is significant risk [emphasis added] that such harm will be caused .... the nature and the extent of the measures to be taken, of course, depends on the nature and the extent of the extraterritorial harm which must be prevented or abated" (pp. 79-80) . Similarly the requirement of foreseeability, or the assessment of whether a risk is or is not significant is not a passive obligation. It must be an objective requirement that a State should exercise due care or due diligence in its investigations as to whether or not harm is likely to be caused . This must include investigation within the context of the principle of sustainable development of possible environmental impacts, prior notification of planned activities to states concerned and exchange of environmental information. Arts. 15-17 of WCED Experts Principles in id. 40 As in the Ministerial Declaration on Sustainable Development in the ECE Region (Bergen Declaration) UNECE Conference on Action for a Common Future, Bergen, 15 May 1990. A1CONF.1511pcll0. 41 The preventive principle, which imposes an obligation on states to prevent known or foreseeable harm outside their territory, is contained out in Principle 2 of the Rio Declaration and the better-known Principle 21 of the 1972 Stockholm Declaration as well as a large number of treaty provisions. This obligation is not generally regarded as strict, but dependent upon the concept of foreseeability. Thus the preventive principle is concerned with the prevention of harm and risks which are known and have been scientifically proven . 42 As in the Oslo Convention's Prior Justification Procedure, see OSCOM Decision 89/1, supra note 33.

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sanctioned. The more common understanding of the principle appears to lie somewhere between these extremes. Despite its wide acceptance, a number ofimportant operational problems obviously remain: what constitutes prima facie case that significant harm is likely? What level of risk is significant for these purposes? Some sort of balancing test is implicit in the formulation discussed above: the greater the possible risk to the environment, the greater the level of scientific uncertainty which may be acceptable for the precautionary principle to become engaged. As Nollkaemper has pointed out "The fact that the precautionary principle is a principle also means that it does not set forth absolute obligations. Principles serve as guidelines, rather than imposing concrete obligations. The precautionary principle states reasons that argue in the direction of precaution, yet do not necessitate one particular decision that would guarantee total protection. "43 Thus, many of these questions can only be resolved at a treaty level, or at a regional or sectoral level by employing a variety of methods but withmit detracting from the main thrust of the principle. However, if the above analysis is accepted as the core of the precautionary principle, then it can be seen that not only has it been accepted explicitly in a number of important international policy statements and legal instruments," but it has already been accepted implicitly or operationally in a wide variety of existing international instruments," including some relating to high seas fishing."

a

43. Andre Nollkaemper, "'What you risk reveals what you value', and Other Dilem-

mas Encountered in the Legal Assaults on Risk," in Freestone and Hey (eds.), supra note 22, pp. 73-94. 44 Including those referred to in supra notes 32 through 36, as well as many others; for sources see the literature cited in supra note 37. 45 See, e.g., Freestone, supra note 29; these include a number of wildlife treaties: 1971 Ramsar Convention, 1979 Bonn Convention on the conservation of migratory species, 1979 Berne convention on the conservation of European wildlife and natural habitats , regional seas protocols on specially protected areas and wildlife (Geneva Protocol, 1982, Nairobi Protocol, 1985, Kingston Protocol, 1990). Also precautionary thinking has been found in the Single European Act, 1986, as well as in decisions of the London Dumping Convention, the International Whaling Commission, and CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) . 46 Notably UNGA Resolutions on driftnet fishing, infra note 106.

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Commentators still disagree as to whether this principle, already accepted by the overwhelming majority of nations in a wide variety of forums, constitutes a binding principle of international environmental Iaw." Arguments have been raised that, for example, its lack of precision as a principle may mean that it imposes an impracticably vague or high standard of care for the environment." Nevertheless, this writer has argued elsewhere that: international recognition and endorsement of the precautionary principle may well have begun to change the existing purely preventative requirements of due diligence and foreseeability. At present this is probably only arguable on a sector-by-sector basis but if present trends continue [precaution] may be a general requirement of environmental law in the not too distant future."

However, as Nollkaemper suggests" above and others also have recognized," the distinctive feature of the precautionary principle/approach is not that it dictates specific regulatory measures; many different types of measures can be used to implement it. The distinctive characteristic is the way in which, and the time at which, the measures are to be adopted . As the present author and Hey have said elsewhere "it is a challenge to our way of viewing the world as much as to our views about the role of science, or the burden of proof.':" By the same token it also provides a new lens with which to view existing obligations. It is instructive to re-examine the very far-sighted language of the LOS Convention in its provisions on fisheries to see the way in which the essential elements of a precautionary approach can relatively easily be found within its provisions.

See sources in Cameron and Abouchard, supra note 37. 48 D. Bodansky, "Scientific Uncertainty and the Precautionary Principle," (1991) 33 Environment, pp. 1-46, p. 4. 49 Freestone, supra note 29, p. 37. 50 Supra note 43. 51 Freestone, supra note 29, p. 37; see Freestone and Hey, supra note 22. 52 Freestone and Hey, id., p. 249.

47

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MANAGEMENT AND CONSERVATION OF HIGH SEAS FISHERIES IN THE LOS CONVENTION Despite the fact that a number of radical elements can be found in the Straddling and Highly Migratory Fish Stocks Agreement, it is important to bear in mind that it is in essence an agreement to implement the LOS Convention." Hence the LOS Convention must be seen as the basis for the Agreement. The following section seeks to show that although not always explicit, many of the underlying values developed in the 1995 regime can be found to be rooted in the LOS Convention. Section 2 of Part VII of the LOS Convention is entitled "Conservation and Management of the Living Resources of the High Seas." Article 116 recognizes that all states have the right for their nationals to engage in fishing on the high seas. However, the article specifically subjects that right to three factors: existing treaty obligations, the rights and duties , as well as interests, of coastal states (provided inter alia in articles 63(2) and 64-67) and the provisions of Part VII Section 2, LOS Convention." Article 117 imposes on all states the individual and joint duty to take the necessary measures for the conservation of the living resources of the high seas. Article 118 imposes a correlative duty on states to cooperate in the conservation and management of high seas living resources. It can be argued that the position of the duty of conservation in the section as well as its unequivocal nature make this a primary duty." Hence, article 119 can be read as providing the means and modalities for states to comply with this primary obligation. Although article 119 requires the taking of measures to "maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield," these measures must be based "on the best scientific evidence available" and Professor Brown's "rather vague

See, e.g., Moritaka Hayashi, "The 1995 Agreement on Straddling Stocks and Highly Migratory Fish Stocks: Significance for the Law of the Sea Convention," (1995) 29 Ocean and Coastal Management, pp. 51-69. 54 It should be noted that these factors differ from those contained in the 1958 Fisheries Convention: see text at supra note 17. 55 Such a view is of course supported by the titles of Section 2 of Part VII, LOS Convention and its art. 119. Section 2 is entitled, "Conservation and Management of the Living Resources of the High Seas;" Art. 119, "Conservation of the Living Resources of the High Seas". 53

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factors.'?" namely "relevant environmental and economic factors" including the special requirements of developing states, fishing patterns, the interdependence of stocks and any generally recommended international minimum standards." Similarly, in determining such measures, article 119(l)(b) obliges states 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." This obligation could be taken to be an environmental one in that there is no requirement that these associated or dependent species be harvested or even harvestable. The formulation in article 119 of maximum sustainable yield (MSY) as qualified by environmental and economic factors, has been taken to be a description ofthe "optimum utilization" concept and the words" .. . to maintain and restore populations of harvested species at levels which can produce [such utilization] ..." has been interpreted to be enabling rather than obligatory . In other words it means that although states whose nationals are fishing on the high seas are not actively obliged to pursue the objective of optimum utilization for themselves, they are obliged not to hamper the pursuance of this objective by other states." Indeed, in contrast with article 62 of the LOS Convention, which obliges coastal states to promote the objective of optimum utilization of living resources within their own exclusive economic zones, the high seas provisions do not appear to require that high seas fishing take place at the MSY but simply require states engaged in high seas fishing to ensure that stocks are maintained or restored to levels which can (i.e., which have the potential to) produce the MSY. The absence of such

56 Brown, supra note 20. 57 Art. 119(l)(a), LOS Convention. 58 Ellen Hey, "The Provisions of the United Nations Law of the Sea Convention

on Fisheries Resources and Current International Fisheries Management Needs," FAO, The Regulation of Driftnet Fishing on the High Seas: Legal Issues, FAO Legislative Study 47, 1991, pp. 1-11, p. 4. This contrasts with the obligation on coastal states in relation to the living resources of their exclusive economic zones "to promote the objective of optimum utilisation" in art. 62( 1), LOS Convention, see also art. 61(3), LOS Convention. Also see Ellen Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources, Martinus Nijhoff, 1989, p. 50.

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an obligation on states to exploit high seas stocks to MSY contrasts poignantly with the unequivocal and primary obligation of conservation of such stocks imposed on such states by article 117. Other LOS Convention provisions, which relate to fishing for straddling stocks and highly migratory species, give a similar place to conservation, although as indicated above the obligations are largely hortatory - imposing obligations to negotiate in good faith rather than to reach agreement." Article 63(2), which covers straddling stocks, strictu sensu, which occur within one or more exclusive economic zones and an adjacent high seas area, requires that "the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organisations, to agree upon the measures necessary for the conservation of these stocks in the adjacent areas.'>60 Article 64 on highly migratory species, such as tuna, also imposes an hortatory obligation to cooperate. Although controversy has surrounded the interpretation of article 64,61 this controversy has not related to the overall objective, which is "to cooperate ... with a view to ensuring conservation and promoting optimum utilisation of such species throughout the region, both within and beyond the exclusive economic zone.?"

59 See further Freestone, supra note 3. 60 Emphases added . See also Doris Ponzoni, "The International Legal Framework for the Conservation and Management of Living Marine Resources," FAa

. Legislative Study 47, supra note 58, pp. 33-43, pp. 34-37 . See W.T. Burke, Highly Migratory Species in the New Law ofthe Sea, (1984) . 14 Ocean Development and International Law, pp. 273-314, p. 281. 62 In relation to marine mammals the regime envisaged by arts . 65 and 120 is sui generis in that utilization does not appear in the wording at all. Conservation and management is the only obligation. Not only is there no obligation of optimum utilization in either the exclusive economic zone or the high seas, but in either area their exploitation may be prohibited, or more strictly limited or regulated than other species . In addition, states are obliged to "co-operate with a view to conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organisations for their conservation, management and study" (art. 65, LOS Convention). Although the International Whaling Commission is the primary organization for this purpose, it is notable that the LOS Convention uses the term "organizations," see further P.W. Birnie, The International Regulation ofWhaling, 2 Vols., Oceana Publications, 1985. Specifically on the topic of marine mammals see Birnie, infra Chap61

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Fishing for anadromous stocks'" cannot normally take place on the high seas. Article 66(2), LOS Convention, imposes on the state of origin the obligation to "ensure their conservation by the establishment of appropriate regulatory measures" and prohibits fishing for such stocks outside the exclusive economic zone "except in cases where this provision would result in economic dislocation for a State other than the State of origin." In such exceptional cases where high seas fishing is permitted, it must be preceded by "consultations with a view to achieving agreement on terms and conditions of such fishing giving due regard to the conservation requirements and the needs of the State of origin in respect of these stocks.t'" An alternative starting point for this discussion might also be the provisions of the LOS Convention relating to protection of the marine environment. These are found within Part XII of the Convention. Article 192, LOS Convention, imposes on all states the unqualified obligation to "protect and preserve the marine environment." This obligation extends further than simply the avoidance of deliberate and/or obvious damage, so as to include active measures to maintain or improve the present condition of the marine environment." as well as to cooperate towards this end." While it is true to say that the general obligations of article 192 and following articles reflect both the responsibility to conserve marine ecosystems as well as to prevent marine pollution, it must also be admitted that the LOS Convention contains even less detailed instruments for the conservation of marine ecosystems than it does for the prevention of marine pollution." Hey has argued that in the absence of detailed instruments for the conservation of

ter 13. 63 I.e ,. stocks which live in the sea and spawn in fresh water. Specifically on 64

anadromous stocks see Birnie, infra Chapter 13. Art. 66(3)(a) , see also (b), LOS Convention . Note that even in such cases the state of origin still maintains the right to establish the Total Allowable Catch (TAC).

M. Nordquist (gen. ed.), The 1982 Law ofthe Sea Convention: A Commentary, Vol. IV, S. Rosenne and B. Yankov, (eds.), Martinus Nijhoff, 1990, p. 40. 66 Art. 197, LOS Convention. 67 The only reference of significance is in art. 194(5) which enjoins states to take such 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." 65

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marine ecosystems." it can be assumed that relevant measures are to be implemented through instruments provided for elsewhere or through new instruments. In particular, if the need for conservation of marine ecosystems requires that measures be taken in the fisheries sector, then the authority for these must be found in the fisheries provisions of the LOS Convention. Thus the objectives of the fisheries provisions must be balanced with the obligations to protect and preserve the marine environment." As discussed above, international environmental law imposes increasingly strict obligations on states to refrain from damage to areas of global commons and to resources in which there is a community interest. These include high seas resources." Hence the primary obligation of conservation on those states which are involved in high seas fisheries, to be found in article 117 and related provisions of the LOS Convention, has an important environmental dimension. This is, for example, recognized in the wording of article 119.71 Therefore, for high seas fisheries as for other activities which impinge on the marine environment , international environmental law obligations and concepts have considerable significance for the performance of other rights and duties under the LOS Convention regime. As indicated above, an intrinsic part of this evolving corpus of international environmental law is of course the precautionary principle. The way in which the precautionary principle has come to be applied to fisheries management issues will be discussed in the following section.

THE DEVELOPMENT OF A PRECAUTIONARY APPROACH IN FISHERIES CONSERVATION AND MANAGEMENT

This section will consider the way in which precautionary thinking - even if it is essentially implicit - can be seen in a number of existing fishery regimes even prior to the Straddling and Highly Migratory Fish Stocks Agreement. As the subsequent section will show, some of these develop-

68

Hey in FAD Legislative Study 47, supra note 58, p. 9.

69 [d. 70

71

See Principle 21 of the 1972 Stockholm Declaration and now Principle 2 of the 1992 Rio Declaration, supra note 41. See art. 119(1)(a) and (b), LOS Convention.

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ments paved the way for the methodology developed during the post-UNCED negotiations of the Agreement. An interesting and relatively early example can be found in the 1952 International Convention for High Seas Fisheries of the North Pacific Ocean (North Pacific Fisheries Convention)" which established a system ostensibly grounded on conservation criteria, based upon the abstention principle." The North Pacific Commission, established by the treaty regime, was one of the few international fisheries bodies given the power to monitor designated stocks, to decide on conservation measures and allocate Total Allowable Catches (TACS) for them." Underpinning the regime was the concept that one or two of the parties would abstain from fishing stocks of designated species" for as long as the Commission was able to determine on a yearly basis, that three conditions, based upon scientific evidence, were fulfilled." According to these same criteria the Commission was also

72 May 9, 1952,205 VNTS 80. 73 The Convention has been much criticized as a vehicle for perpetuating the notion

that "first comers had a special claim to fishery resources already being harvested at MSY." See R.N. Scheiber, "Origins of the Abstention Doctrine in Ocean Law : Japanese-us Relations and Pacific Fisheries 1937- 1958," (1989) 16 Ecology Law Quarterly, pp. 23-99. 74 A.W. Koers, International Regulation ofMarine Fisheries, Fishing News, 1973, pp.97-100. 75 Paragraph 1 of the Annex provided that the Japanese would abstain from fishing for halibut, herring and salmon in designated high seas areas, in return for an undertaking by Canada and the United States that they would "continue to carry out necessary conservation measures". On the basis of paragraph 2 of the Annex, Japan and Canada agreed to abstain from fishing for salmon in designated waters in return for an undertaking by the United States to continue necessary conservation measures. 76 "(i) Evidence based on scientific research indicates that more extensive exploitation of the stock will not provide a substantial increase in yield which can be sustained year after year; (ii) That the exploitation of the stock is limited or otherwise regulated through legal measures by each Party which is substantially engaged in its exploitation, for the purpose of maintaining or increasing its maximum sustained productivity; such limitations and regulations being in accordance with conservation programmes based upon scientific research: and (iii) The stock is the subject of extensive scientific study designed to discover whether the stock is being fully utilised and the conditions necessary for maintaining its maximum sustained productivity." (Art IV(1) , North Pacific Fisheries

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empowered to determine whether or not new stocks qualified for abstention." The wider significance of the abstention doctrine, for which the United States, for a time, sought to gain support from the world community to elevate it to the status of general law, is that its implementation purported to be science-driven. In order for stocks to be released from abstention, evidence "based on scientific research" had to be available." Hence the burden of proof was on the party seeking to enter the fishery and thus in favor of conservation, for, in the absence of such scientific evidence, no further exploitation was possible. Virtually all high seas fishery treaties promote conservation as an objective, but no others appear to elevate the status of scientific evidence to the position it was given in the 1952 North Pacific Fisheries Convention. For example the 1966 International Convention for the Conservation of Atlantic Tunas" simply empowers the Commission "on the basis of scientific evidence" to make recommendations designed to maintain populations at levels which will permit maximum sustainable catches." The Inter-American Tropical Tuna Commission (IATIC) only had power to recommend TACS on the basis of scientific research." The International Whaling Commission, which was established by the 1946 International Convention for the Regulation of Whaling (IcRW),82 has developed a system of classification of whale stocks that is based on scientific findings and the advice of the Scientific Committee." However, the 1982 decision of the Commission to impose an indefinite moratorium

77

78

79

80

81 82 83

Con vention) . Art. m(l)(b), North Pacific Fisheries Convention. To maintain the abstention system in place the beneficiary had to maintain a conservation program "based on scientific research," art. IV(l)(b)(i) and (ii), North Pacific Fisheries Convention. UNILEG/SER.B/16, p. 483 . Art. vlll(l)(a), International Convention for the Conservation of Atlantic Tunas . 80 UNTS 4, see also Koers, supra note 74, pp. 95-97 and Hey, 1989, supra note 58, pp . 217-219. 161 UNTS 72, reproduced in Birnie, 1985, supra note 62, Vol. II, p. 689. Art. 10(2), ICRW and Art. 10, Schedule ICRW, Birnie, supra note 82, p. 713 and Hey, 1989, supra note 58, pp. 241-242.

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on commercial whaling" has made conservation the primary objective of the ICRW. In fact, although there was evidence of population decline verging on endangered status for some larger cetacean species, for some smaller species (including arguably the minke) the Moratorium may be seen as an operational precautionary measure. The Commission has recently devised new procedures that incorporate precautionary catch limits for some

species." There is also evidence that in the interpretation of the general obligation to conserve and manage high seas living resources, precautionary thinking is being more widely accepted as the proper course to adopt in the absence of adequate scientific evidence. For example, the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), established under the 1980 Convention" to coordinate research on Antarctic marine living resources and to adopt appropriate conservation and management measures," has been developing "precautionary" catch limits for fish stocks within its jurisdiction."

This was done by amending the Schedule under art. V of the Convention so that "catch limits for the killing for commercial purposes of whales from all stocks for the 1986 coastal and 1985/6 pelagic seasons and thereafter shall be zero." S. Lyster, International Wildlife Law, Grotius, 1985, p.19. 85 For a detailed discussion see Maria Clara Maffei, "The InternationalConvention for the Regulation of Whaling," (1997) 12 The International Journal ofMarine and Coastal Law, pp. 287-305 and Patricia Birnie, "Are Twentieth-Century Marine Conservation Conventions Adaptable to Twenty-First Century Goals and Principles?," (1997) 12 The International Journal ofMarine and Coastal Law, Part 1, pp. 307-340 and Part 2 pp. 488-532. 86 Convention on the Conservationof AntarcticMarine Living Resources, Canberra, May 20, 1980, (1980) 19 ILM 837. 87 This is one of the newest international fishery commissions and according to R.R. Churchill, EEC Fisheries Law, 1987, p. 188, one of the most advanced because of its ecosystem approach. Its powers include the establishment of quantities to be harvested, designation of protected species and closed seasons as well as regulation of gear. 88 In 1991 it established a precautionary catch limitation on Euphausia superba (CCAMLR Conservation Measure 32/X on Precautionary Catch Limitations on Euphasia superba in Statistical Area 48.) A Working Group of the Scientific Committee was established to develop "precautionarymeasures on krill fishing" in order to prevent the "unregulated expansion of the fishery at a time when the information available for predicting potential yield [was] very limited." 84

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Obvious precautionary thinking can also be detected in the 1989 General Assembly Resolutions on Driftnet Fishing. UNGA Resolution 44/225 entitled "Large scale pelagic driftnet fishing and its impact on the living marine resources of the world's oceans and seas?" calls on "all those involved in large scale pelagic drift netting to cooperate in the enhanced collection and sharing of statistically sound scientific data .. ." The Resolution recommends a number of measures to eliminate the practice, including moratoria on all large scale driftnet fishing on the high seas by June 30, 1992. That measure however is on the understanding that it will not be imposed on a region or, if implemented can be lifted, should effective conservationand managementmeasuresbe taken based upon statistically sound analysis ... to prevent the unacceptable impact of such fishing practices on that region and to ensure the conservation of the living marine resources of that region. This measure is precautionary in the sense that it proposes action to address a serious threat to the environment while there is still some scientific uncertainty as to the impacts of driftnet fishing'" but it is also precautionary in that it shifts the burden of proof upon those who would seek to continue the practice to demonstrate, using "statistically sound analysis", that measures have been taken "to prevent the unacceptable impact" of driftnet fishing

Working Group Report, para. 6.34. The impetus for that work was the statement, at the Ninth meeting of the Commission, by Japan, Korea and the Soviet Union that they were not in principle opposed to the idea of a precautionary limit of krill fishing, but that "the quantitative basis for such a precautionary limit on fishing should have scientific justification based on assessments performed by the Scientific Committee" (CCAMLR-IX, para. 8.7). 89 Reproduced in FAD Legislative Study, No 47, supra note 58, Annex 2. This also reproduces the text of other UNGA resolutions and regional actions against driftnets, including the Wellington Convention.See also UNGA Res.46/215; Hey, supra note 6, pp. 465-467, and Brown, supra note 20, pp. 323-325. 90 See, e.g,. the arguments adduced by Professor Kazuo Sumi, International Legal Issues Concerning the Use ofDriftnets with Special Emphasis on Japanese Practices and Responses, in FAD Legislative Study No. 47, id. Also William Burke,

Mark Freeberg and Edward Miles, "United Nations Resolutions on Driftnet Fishing: An Unsustainable Precedent for High Seas and Coastal Fisheries Management," (1994) 25 Ocean Development and International Law, pp. 127-186.

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and to "ensure conservation of the living marine resources." In this sense its effect is not dissimilar from the abstention principle discussed above in that it shifts the burden of proof, and also the requirements of proof (i.e., "using statistically sound analysis") in favor of conservation. A major landmark in the evolution of such measures was the conclusion of the 1994 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (Bering Sea Convention)." This highly innovative Convention provides that the parties will meet annually to decide allowable harvest levels and to establish catch quotas. It also endorses a precautionary approach to fishery conservation in that no fishing will be allowed unless Aleutian Basin Pollock biomass is determined to exceed 1.67 million Mt. 92 This determination is to be made by parties jointly; failing this by the United States and the Russian Federation jointly and, failing this, by the United States unilaterally. The United States and the Russian Federation have also apparently agreed , according to the record of a discussion accompanying the draft Convention," that if biomass does not meet the 1.67m Mt. target they also will suspend fishing in their own exclusive economic zones and, in any event, will take into account the level of fishing in the enclave in establishing their annual catch quotas for their exclusive economic zones .

91

92

93

It was signed in Washington DC on June 16, 1994 by China, Korea, Russia and the United States. Japan (4 August) and Poland (25 August) signed later. It entered into force on December 8, 1995 for Russia, Poland, PRe and USA, December 21, 1995 for Japan and January 4, 1996 for Korea. For text see (1995) 10 The International Journal ofMarine and Coastal Law, p. 127. For background andcomments seealsoW.V. Dunlap, "TheDonutHoleAgreement," (1995) 10 The International Journal ofMarine and Coastal Law, pp. 114-135. See Annex to the Bering Sea Convention reproduced in Dunlap, id., p. 134. See also Alex Oude Elferink, "Fisheries in the Sea of Okhotsk High Seas Enclave: The Russian Federation's Attempts at Coastal State Control", (1995) 10 The International Journal of Marine and Coastal Law, pp. 1-18, p. 14. Oude Elferink, id.

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The development ofprecaution within the straddling and highly migratory fish stocks negotiations

Despite the isolated examples of existing regimes incorporating precaution discussed above, the general thrust for the inclusion of a precautionary approach to fisheries conservation and management can be traced to the UNCED process." Hewison has skillfully mapped the way in which the precautionary approach found its way into the fisheries agenda, highlighting the strong opposition that it has encountered in certain quarters." After the endorsement of the precautionary approach to driftnet fishing by the General Assembly and its explicit inclusion in the 1992 Rio Declaration as well as in Chapter 17 of Agenda 21, FAO held a Technical Consultation on High Seas Fisheries in September 1992. The conservation and management of high seas fisheries had been a contentious issue in the UNCED negotiations." It will be recalled that in the immediate run-up to UNCED,

For the current author's discussion of the diplomatic processes leading to UNCED and a preliminary assessment of their significance see David Freestone, "The Road from Rio: International Environmental Law after the Earth Summit," (1994) 6 Journal ofEnvironmental Law, pp . 193-218 . For a more detailed assessment of the processes leading to the Straddling and Highly Migratory Fish Stocks Agreement see Freestone. supra note 3. 95 Grant J. Hew ison, "The Precautionary Approach to Fisheries Management: an Environmental Perspective." (1996) 11 The International Journal of Marine and Coastal Law, pp. 301-332. 96 For a general discussion of the issues involved see Kwiatkowska, supra note 3. Kwiatkowska points out that the issues of straddling and highly migratory fish stocks were, following their inclusion within the UNCED Agenda by the 1989 UNGA Resolution 44/228, within the general competence of Working Group II of the UNCED PrepCom. In its 1990 Decision 1/20. for example, UNCED PrepCom spelled out action areas relating to the problems of high seas fisheries including the need for the identification of gaps in existing mechanisms for the protection and development of marine living resources as well as the impact of new fishing technology and large-scale harvesting techniques. It was concerned to see the development of appropriate measures for conservation. rational use and sustainable development of high seas fisheries . In July 1991, a meeting of the Group of Technical Experts on High Sea Fisheries, under the auspices of the United Nations Office for Ocean Affairs and Law of the Sea (UNOALOS) produced some Suggested Guidelines to assist states to improve the level of co-operation in the conservation and management of such fisheries. 94

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an International Conference on Responsible Fisheries, attended by representatives of some 49 states with 70 per cent of the world fishing capacity, was hosted by the Government of Mexico in Canciin in May of 1992. The Canciin Declaration on Responsible Fishing 97 called on FAO to begin work on the development of an International Code of Conduct for Responsible Fishing. It also called on states to resolve their differences over a proposal made at the fourth UNCED PrepCom for an international conference on high seas fisheries. This proposal effectively became Paragraph 17.49 of Chapter 17 of Agenda 21, mandating the calling of a United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. The FAO Technical Consultation was to prepare technical papers for the Conference" and this initiated discussions on the role of precaution in high seas fisheries management. After vigorous debate" and despite the fact that the FAO had taken the position that a precautionary approach to fisheries management was compatible with UNCLOS, \00 the Draft Report of the Technical Consulration'?' advocated a more modest interpretation of the precautionary approach than had been advocated , for example, by NGOS. I02 In doing so it reflected the concerns of fishing states which were clearly afraid that a wholesale endorsement of the precautionary principle might entail the suspension of many fishing operations until they could be shown to be sustainable. Although hedged by caveats, the Report did show that the Consultation had agreed that fisheries should be managed in a cautious manner, that overharvesting of renewable resources can have serious consequences on fish populations and on ocean ecosystems, and that precautionary manage-

Annex 2 to the Papers presented at the Technical Consultation on High Seas Fishing, FAD Fisheries Report No. 484 , SuppI., FAD, Rome, 1992 , p. 70. 98 See UN Docs. FAD FIIHSFffCJ92JINFI-2 and TC/9211-8, 1992 . 99 In which, for example, Japan, Korea, Norway and the Russian Federation expressed "grave reservations over the use of ... precaution ... as a tool for fisheries management ," while Sweden pointed out it had been endorsed and adopted at UNCED. Cited with detailed references in Hewison , supra note 95. 100 "Legal Issues Concerning High Seas Fishing," FIlHSFffCJ9218, FAD , June 1992. 101 Draft Report 11, Technical Consultations of High Seas Fishing , FAD, 7-15 September 1992. 102 For example, Hewison reports that Greenpeace had recommended that the Draft Report be rejected as it did not reflect evolving state practice, supra note 95, p 310. 97

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ment might include, but does not necessarily require, a moratorium on fishing. It also accepted that management decisions should be based on the best scientific information, as provided for in the LOS Convention, and that precautionary management measures taken in the absence of sufficient scientific data should be revised or revoked as appropriate when new information became available.l'" After the first negotiating sessions of the Straddling and Highly Migratory Stocks Conference, in July 1993, it became clearer that it would be possible to adopt a view of the precautionary approach which would not entail the imposition of moratoria on fishing operations, except in exceptional circumstances. This view was reflected in the closing remarks of the Chairman Ambassador Satya Nandan'?' as well as in the negotiating text that emerged from the meeting. As a result FAa was asked to prepare a report on the application of the precautionary approach for the second session of the Conference, held in March 1994. The resulting FAa information paper, ''The Precautionary Approach to Fisheries with Reference to Straddling Fish Stocks and Highly Migratory Fish Stocks..105 formed the basis for subsequent discussions. Although the actual wording was continually adapted until the final language of the Agreement was approved in the August 1995 text, the paper laid the foundation for the precautionary approach as contained in article 6 and Annex II of the Agreement.

The 1995 Straddling and Highly Migratory Fish Stocks Agreement The fmal text of the Straddling and Highly Migratory Fish Stocks Agreement runs to fifty articles and two annexes .l'" As we have seen above, the Agreement is relevant to the interpretation and application of a number of key provisions of the LOS Convention, notably its articles 63(2), 64, and

103 104 105

106

Draft Report, supra note 101, paras. 65-67. Closing Statement, July 30, 1993, cited in Hewison, supra note 95, p. 310. NCONF.164I1NF/8, January 26, 1994, reproduced in Jean-Pierre Levy and Gunnar G. Schram (eds.) United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, Selected Documents, Martinus NijhoffPublishers, 1996, p. 555. The Agreement was adopted by the negotiating parties without a vote (i.e., by consensus) on 4 August 1995.

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116-120. Nevertheless, as Anderson points out, the Agreement is a "standalone" agreement in the sense that a state may become a party to the Agreement without becoming a party to LOS Convention and vice-versa/" However, the Agreement and the LOS Convention are fundamentally inter-related in the sense that one can be used to inform the interpretation of the other. lOS In fact, the very conclusion of the Agreement itself constitutes a considerable diplomatic victory for those states that had pressed for a legally binding treaty instrument rather than a non-binding declaration or code. 109 Nevertheless, although the Agreement lays down basic principles and introduces a number of important innovative concepts, it will still be dependent for its success on the way, and the extent to which, it is itself implemented by regional and species-specific fishery regimes.

The new approaches in the Agreement The new approaches of the Agreement are apparent from the Preamble as well as the initial provisions relating to conservation and management (Parts I and II). The preambular language links its origin not simply to the LOS Convenrion!" but to Chapter 17 of Agenda 21. 111 The latter is significant for the current analysis because the chapeau for the whole of Chapter 17, its paragraph 17.1, inter alia requires approaches that are "integrated in content, and are precautionary and anticipatory in ambit." After recognizing the need for more effective enforcement measures for the conservation and management of straddling and highly migratory fish stocks, the Preamble indicates that the management of high seas fisheries is inadequate in many areas: some resources are over-utilized, there are problems of unregulated fishing, problems of over-capitalization, excessive fleet sizes, vessel re-flagging in order to escape regulatory controls, insufficiently selective fishing gear, unreliable databases (and presumably data) and a lack of sufficient cooperation between states.

107 108

109 110 111

See Anderson, supra note 14. All references below are to the 1995 Straddling and Highly Migratory Fish Stocks Agreement unless the contrary is indicated. Art. 4 confirms that the Agreement must be interpreted and applied in a manner which is consistent with, and therefore does not undermine, the LOS Convention. This position had been pressed strongly right up until the final session. Para.l , Preamble. Para. 5, Preamble.

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Although a detailed discussion of each of these issues would entail trespassing on the subject matter of other chapters in this volume, some assessment of the broader issues is necessary in order to appreciate the context within which a precautionary approach could be envisaged. As discussed above, and as the evolution of the approach within the context of the Straddling and Highly Migratory Fish Stocks Conference also indicates, precaution is not a stand-alone concept. It requires the establishment of certain defining parameters as well as the identification of defining risks and values.!" In particular it is important to recall that the objectives of the Agreement are not defined in terms of the maximization of food for human consumption but, for the first time in an international agreement of this type, conservation is defined in terms of ecosystem protection and protection of biological diversity. In recital number seven is found the first and most significant statement of the environmental importance of international fisheries issues. It declares an aspiration to improve upon previous fisheries management treaties by recognizing the independent need to protect the marine environment through the protection of its biodiversity, maintenance of the integrity of marine ecosystems and the minimization of the risk of long term or irreversible effects of fishing operations. This, albeit preambular, statement means that the Straddling and Highly Migratory Fish Stocks Agreement is the first global fisheries agreement to recognize at a primary level the environmental significance of fishing activities: not as an issue to have regard to in, for example the calculation of T ACs, but as an independent issue in its own right. The implications of the recognition of these key concepts are worked out in the detail of the Agreement itself. However, it is this statement and the development in the substantive obligations of the Agreement that provide the defining environment for our understanding of the way in which the precautionary approach is to be applied under the agreement. Article 2 indicates that the objective of the Agreement is to "ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of the Convention." Sustainable use - in line with the wording of Agenda 21- is a significant development from optimum sustainable yield, in article 2 of the 1958 High Seas Fishing Convention, and may even be

112

This idea is excellently elaborated by Nollkaemper, supra note 43.

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seen as a slight modification of the term "maximum sustainable yield," in article 119(1)(1) of the LOS Convention. II3 Importantly, in pursuance of an holistic, ecosystem approach, article 3 indicates not only that the Agreement applies to the conservation and management of straddling and highly migratory stocks on the high seas but also that articles 6 and 7 are to be applied to conservation and management measures related to such stocks while in waters under national jurisdiction. Coastal states also are obliged to utilize the principles of the Agreement, as set out in article 5, when managing the stocks within such waters. Article 5 contains the general principles of stock management, article 6 the precautionary principle and article 7 the requirements for cooperation between coastal states and distant water fishing states vis-a-vis the implementation of conservation and management methodologies both within and beyond the areas of national jurisdiction in all regional fisheries. Article 5 identifies the framework of general principles to which coastal states and distant water fishing states (DWFNS) fishing on the high seas must give effect, acting on a cooperative basis . Here , the emphasis is on a proper balance between sustainability and utilization. What is significant about this key provision of the Agreement is that, as can be seen from the text ,114

113 Although not too much should be made of this as MSY is used in art. 5 of the

Agreement, as is "optimum utilisation." 114 Under art. 5 of the Straddling and Highly Migratory Fish Stocks Agreement states are required to: (a) adopt measures to ensure the long-term sustainability of straddling fish stocks and highly migratory fish stocks and promote the objective of their optimum utilisation; (b) ensure that such measures are based on the best scientific evidence available and are designed to or restore stocks at levels capable of producing maximum sustainable yield, as qualified by relevant environmental and economic factors...; (c) apply the precautionary principle ... ; (d) adopt, where necessary, conservation and management measures for other species belonging to the same ecosystem or dependent on or associated with the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened; (e) adopt, where necessary, conservation and management measures for species belonging to the same ecosystem ... ;

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seven of the twelve paragraphs relate to environmental sustainability and ecosystem protection based on precaution and best scientific evidence, while one paragraph deals with subsistence and artisanal fishers, two with data collection and one with enforcement. Gone is the dominance of human consumption so vividly expressed in the 1958 Fisheries Convention.!" Article 6 elaborates the precautionary principle, or, as it terms it, "the precautionary approach.t''" As has been indicated above, this is the first time that precaution has been specifically mentioned in an international fishery convention, or applied to straddling and highly migratory stocks. 117 As discussed above, the concept has already been accepted in a wide range of marine environmental treaties, has been accepted in practice in recent agreements such as the 1994 Bering Sea Agreement!" and in principle in the implementation of agreements such as CCAMLR 119 and the International Whaling Commission.P' The wording of article 6 is consistent with the application of the principle pursuant to Agenda 21 and the Rio Declaration, although it represents something of a compromise on the initial demands of some coastal states. Article 6 requires that to preserve the marine environment as well as protect marine living resources, the precautionary

(0 ... develop and use selective environmentally safe and cost-effective fishing gear and techniques; (g) protect biodiversity in the marine environment; (h) take measures to prevent or eliminate over-fishing and excess fishing capacity and to ensure that levels of fishing effort do not exceed those commensurate with the sustainable use of fishery resources; ... (1) implement and enforce conservation and management measures through effective monitoring control and surveillance. 115 Art. 2, 1958 Fisheries Convention, supra note 19. 116 The text uses the word "approach," not principle. This follows the terminology of Principle 15 of the 1992 Rio Declaration. See Ellen Hey, supra note 37, who suggests the approach can only be defined by reference to the principle, a view supported by other writers including A.C. Kiss, Will the Necessity To Protect the Global Environment Transform the Law of International Relations? Josephine Onoh Memorial Lecture, University of Hull, University of Hull Press, 1993. For some of the history to this issue See Freestone, supra note 94. 117 For a discussion of the significance of this see, e.g., Freestone and Hey, supra note 22. See also Hewison, supra note 95, and sources cited therein. 118 See text at supra note 91. 119 See text at supra note 86. 120 See text at supra note 82.

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approach should be applied to conservation, management and exploitation measures. For the reasons already discussed above, it cannot be said that, as in its most extreme application,'?' that the invocation of precaution in article 6 constitutes a reversal of the burden of proof in favor of conservation. It would have been politically unacceptable to fishing states to have accepted a definition of precaution that entailed the suspension of fishing until scientific data permitting further exploitation was available. The fear of certain fishing states that the acceptance of the precautionary principle would result in the wide-ranging imposition of moratoria is apparent from the discussions at the FAO Technical Consultations in 1992 as well as in the Negotiating Sessions of the Conference. The existing formulation does, however, require that "States shall be more cautious when information is uncertain, unreliable or inadequate" and that "the absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures.t''P Article 6(3) of the Straddling and Highly Migratory Fish Stocks Agreement sets out the way in which states should implement the precautionary approach. They shall: (a) improve decision-making for fishery conservation and management by obtaining and sharing the best scientific information available and implementing improved techniques for dealing with risk and uncertainty; (b) apply the guidelines set out in Annex 11 and determine, on the basis of the best scientific information available, stock-specific reference points and the action to be taken if they are exceeded; (c) take into account, inter alia, uncertainties relating to the size and productivity of the stocks, reference points, stock condition in relation to such reference points, levels and distribution of fishing mortality and the impact of fishing activities on non-target and associated or dependent species, as well as existing and predicted oceanic, environmental and socio-economic conditions; and (d) develop data collection and research programmes to assess the impact of fishing on non-target and associated or dependent species and their

121 See, e.g., the Prior Justification Procedure under the Oslo Convention, discussed

in Freestone, supra note 29, pp . 30-33. 122 Art. 6(2), Straddling and Highly Migratory Fish Stocks Agreement.

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environment,and adoptplans whichare necessaryto ensure the conservation of such species and to protect habitats of special concern. These requirements, while not reversing the normal burden of proof, do have some considerable impact on the way such issues will be perceived in the future . It is perhaps useful to explore some of the issues of burdens of proof that arise. Articles 61(2) and 119(1)(a) of the LOS Convention call for the use of the "best scientific evidence available," while article 6(2) refers to "adequate scientific information", and article 6(3)(b) uses the expression "best scientific information available ." There is clearly some deliberate intent in avoiding the use of the term "evidence" perhaps to avoid a "burden of proof' approach. Nevertheless, given that the Straddling and Highly Migratory Fish Stocks Agreement declares itself to be concerned with the implementation of the existing provisions of the LOS Convention.P' how then do the provisions of the new Agreement change our perception of the way that the high seas fisheries management and conservation provisions of the LOS Convention should be interpreted? It was argued above that the primary obligation of conservation is to be found in article 116, LOS Convention. This obligation of conservation must be borne in mind when, for the purposes of article 119, LOS Convention, a state is, individually or jointly, "determining the allowable catch and establishing other conservation measures for the living resources ofthe high seas." Thus the corresponding obligation to act "on the best scientific evidence available'v" cannot really operate as a standard of proof - availability is too flexible a concept - but as an evidential requirement to ensure that the decisions are science-driven. This requirement perhaps is similar to modem requirements of Best Available Technology (BAT) in pollution legislation. In the past a key issue of interpretation therefore has been whether, in the absence of convincing scientific evidence, (i.e., using the best scientific evidence available - which may still be unconvincing) measures should be designed to ensure continued exploitation or to ensure conservation. Should the burden of proof be in favor of exploitation or of conservation? This writer has argued in the past that an analysis of the LOS Convention's ar-

123 124

Its title explicitly refers to the implementing nature of the Agreement vis-a-vis the LOS Convention. Art I 19(1)(a), LOS Convention.

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tides, which dictates that the primary obligation is that of conservation, means that the LOS Convention provisions should be read to place the burden of proof on the putative exploiter.l" States consequently would be obliged to take measures to maintain or restore populations at levels that can produce MSY. Thus the scientific evidence must be adduced to show that projected harvesting meets those objectives, not the other way round . In fisheries, as in areas of environmental monitoring, scientists work on the basis of probabilities. Therefore, in cases of scientific uncertainty if the primary obligation is conservation and maintenance of stocks rather than simple non-sustainable exploitation, then the requirement to utilize the best scientific evidence available appears to be a rule of evidence rather than a standard of proof. Just as the word "best" cannot realistically be taken to mean that evidence for one view or another is intrinsically better, so also it seems difficult to suggest that the word "scientific" is used in a partisan way. It must be correct to say that the word "scientific" means the collection of data according to rigorous objective criteria - which would give it a "minimum standard" requirement. "Availability," however, remains an essentially pragmatic concept. Consequently, if adequate evidence is simply not available, the general obligations of the LOS Convention still remain, and the primary applicable obligation is that of conservation. As we can now see from the Straddling and Highly Migratory Fish Stocks Agreement, it is of more than academic interest that such a position is independently sustainable on the basis of the wording of the text of the LOS Convention itself. It can be argued that the LOS Convention itself already provided significant support for the increasingly wide acceptance of the precautionary principle in high seas fisheries issues. The impact therefore of the Straddling and Highly Migratory Fish Stocks Agreement can be argued to be a confirmation of this interpretation of the relevant provisions of the LOS Convention. However, just as it would have been difficult in most circumstances to argue that the existing provisions of the LOS Convention

125

David Freestone, Requirements of Proof for Conservation in High Seas Fisheries, Paper for Legal Office, FAD, 1992; Freestone and Hey, supra note 22.

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would dictate a particular course of precautionary action.I" so we find also that the Straddling and Highly Migratory Fish Stocks Agreement does not adopt an "absolutist" approach to precaution (i.e., no activities allowed until the science is clear). It sets out, rather, a precautionary agenda in which the value-system is explicitly determined (article 6) and a methodology for determining precautionary management strategies (Annex II). Nevertheless, the significance of the introduction of precaution, even if not in its strongest form, should not be underrated. There is now an obligation on states parties to be cautious and to utilize the procedures set out in Annex II . This represents a major change in the traditional approach of fisheries management which until recently has tended to be reactive to management problems only after they arrived at crisis levels.!" The new regime will allow fishing states, regional and international fisheries organizations more easily to justify pro-active measures; indeed from now on such measures should be built into their system. Stock management standards must also be handled in a precautionary manner, taking account of such factors as: uncertainties relating to size and productivity of fish stocks, levels and distribution of fish mortality and the impact of fishing activities on associated or dependent species, including existing and predicted oceanic, environmental and socio-economic conditions . 128 The application of the precautionary approach to capture fisheries represents a real challenge.l" The precautionary methodology in the Straddling and Highly Migratory Fish Stocks Agreement centres on the use of reference points . The reference points are identified as necessary to ensure the conservation and management of species and are to be based on data collection and research programs referred to in article 6(3)(d) and the Guidelines for Application of Precautionary Reference Points in Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks set out in Annex II of the Agreement. These feature strategies that: prescribe

126

127 128 129

The exception might of course be a decision to dictate a moratorium where a total collapse of a particular stock has already occurred - but such action should be argued to be preventative rather than precautionary. Freestone and Hey, supra note 22. Art. 6(3)(c), Straddling and Highly Migratory Fish Stocks Agreement. See, e.g., S. Garcia, ''The Precautionary Principle : Its Implications in Capture Fisheries Management," (1994) 22 Ocean and Coastal Management, pp. 99-126; Hewison, supra note 95.

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biological limits on harvesting, allow only a limited risk of exceeding harvesting limits and address situations where there is insufficient information on specific species by permitting provisional reference points. In the event that precautionary reference points are approached, they must not be exceeded. If they are exceeded, then states must take immediate remedial action pursuant to Annex II of the Straddling and Highly Migratory Fish Stocks Agreement. In the light of these criteria, if fishing takes place above a cautious limit when information is uncertain or inadequate, then it may be characterized as over-fishing.P" The same applies when precautionary reference points are being approached and fishing is not stopped. Naturally, until serious attempts are made to establish and implement such reference points, it will be difficult to assess the practical utility of Annex II. Nevertheless, the specificity of the language of Annex II and the variety of circumstances to which it could theoretically apply give reason for optimism that the Annex II regime will be a significant improvement on existing comparable regimes from a conservation and management perspective. It has to be said, however, that the Straddling and Highly Migratory Fish Stocks Agreement does not clarify the implications of exceeding reference points; these issues, together with the setting of reference points themselves, are left to states acting through regional fisheries organizations. These two issues must be regarded as serious criticisms of the innovative precautionary methodology, which the agreement sets out. Davies and Redgwell'" have vividly portrayed the methodology, in road traffic lights terms, as providing green and amber but not red lights - i.e., the system indicates when all is well or when dangers are threatened but does not automatically prevent fishing once the reference points are reached. The interruption or suspension of fishery operations - the "red stop light" action - still has to be determined on an ad hoc basis by the appropriate regional fisheries regulatory body.!32 The reasons for this lie of course in the fears of some negotiators, discussed above, that recognition of the precautionary approach would result in automatic moratoria in some fisheries .

This is the view taken in Freestone and Makuch, supra note 2. P.R. Davies and C. Redgwell, "To Conserve or to Exploit: The International Regulation of Straddling Fish Stocks, " (1996) 67 British Yearbook of International Law, pp. 199-275. 132 The regional bodies are of course free to add this element.

130 131

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In relation to the establishment of precautionary reference points, Annex II also leaves a great deal to be determined by the relevant regional fisheries regulatory body. In addition to the FAO approach noted above, a number of authors have developed theoretical frameworks for precautionary approaches to capture fisheries.I" Hewison has usefully analyzed the main points of contrast. They tum on a number of key issues, for which it must be said the Straddling and Highly Migratory Fish Stocks Agreement does provide a basic methodology. These include: action to be taken in the absence of sufficient data.!" a scientifically based management procedure ,135 calculation of reference stock levels.!" ecological safeguards 137 and participatory and open decision-making.l" Further work has also been done in cooperation between FAO and the Swedish National Fisheries Board in the development of Guidelines on the Precautionary Approach to Capture Pisheries'" which develops a management approach compatible with the provisions of the Agreement.

See Garcia, supra note 129; Cooke and Earle, supra note 27. See discussion in the text at supra note 122. Also art. 6(2): "The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures" and art. 6(3)(d) on the development of data collection and research programs. Note also that art. 6(6) "For new or exploratory fisheries, states shall adopt as soon as possible cautious conservation and management measures...[which] .., shall remain in force until there are sufficient data to allow assessment of the impact of the fisheries on the long term sustainability of the stocks...." 135 See Hewison, supra note 95, pp. 323-325. Art. 6(3) seeks to require use of best scientific information. See also art. 14 and the FAD Guidelines referred to in infra note 139. 136 Here there is some discrepancy between those who ague for a harvesting within the "natural variation" of abundance, and the traditional maximum sustainable yield approach, which is that endorsed by paragraph 7 of Annex 11, but other dependent species and ecosystem factors are of course also part of the equation (see art. 6(3)(c» . 137 See arts. 6(1) and 6(5), as well as impacts of 'a natural phenomenon' in art. 6(7). 138 Here the Agreement does break new ground; see art. 12 on "Transparency in activities of sub-regional and regional fisheries management organisations and arrangements." 139 Precautionary Approach to Fisheries. FAD Fisheries Technical Paper 350/1, 1995. 133 134

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CONCLUSION

It can be argued strongly that the overall significance of the Straddling and Highly Migratory Fish Stocks Agreement is its unequivocal acceptance of an environmental dimension for international fisheries law. This point has been made above as well as elsewhere.r" The precautionary methodology that the Agreement develops is an important part of that agenda. That methodology is also highly significant for the operationalization of the precautionary principle itself. Writing three years ago, Freestone and Hey argued that after the widespread acceptance of the principle, the major challenge for international law would be operationalizing the principle into workable methodologies and that "the challenge of implementing the precautionary principle while retaining the strength of its original vision cannot easily be underestimated. v'" The precautionary methodology of the Straddling and Highly Migratory Fish Stocks Agreement is an important step in fleshing out the bones of the principle and applying it to a new field of human activity. It is not precaution at its most extreme and absolutist. 142 It does not prohibit activity until the science is clear, nor does it unequivocally pass the burden of proof from exploitation to conservation. For the political reasons that were discussed above, the Agreement does not even mention the use of moratoria as responses to exceeding management reference points. Indeed it is perhaps open to criticism for not having done so. But that would be to misunderstand the radical nature of the methodology it embraces. Instead of being purely reactive it has become proactive. Reference points are set (and adjusted as necessary in the light of the best scientific information) in advance. Fishery management strategies are then set to ensure that the reference points are not exceeded.r" If they are approached, conservation measures are engaged "to facilitate stock recovery.t''" These could of course include moratoria

Freestone and Makuch, supra note 2. Freestone and Hey, supra note 22, p. 268. 142 "Absolutist" in the sense that Nollkaemper has used the term, see supra note 140

141

43. 143 144

See Annex 11, Straddling and Highly Migratory Fish Stocks Agreement. Para 5, Annex 11, id.

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(as has happened in the Bering Sea and the Northwest Atlantic), but are not limited to anyone specific measure or even type of measure. The ultimate challenge for the system which the Straddling and Highly Migratory Fish Stocks Agreement prescribes is of course the fact that it must be implemented by the species and regional fisheries organizations and agreements throughout the world. If there is a flaw in the Agreement this might be it - but if it is then it is an endemic flaw in the whole system for the regulation of high seas fishery stocks. In this respect too the Agreement provides an important pointer for the future. Its recognition of the importance of the environmental dimension of high seas fishery issues can be seen as a recognition of the interest of the world community in the maintenance of marine ecosystems and marine biological diversity. International law has moved a long way since the 1950s, when food maximization was seen as the key issue, to the current recognition of the importance of marine ecosystems and biodiversity. These latter concerns are truly community interests. It would be unrealistic to suggest that at present conservation and manage ment of high seas and straddling fish stocks could be formally classified as issues of "common concern of mankind" in the way in which, for example, global climate change was so designated in 1988 by UN General Assembly Resolution.l" Nevertheless, as Boyle has pointed out in relation to the atmosphere, the importance of this designation was that it was signaled as an area "in whose protection all states have a legal interest, and which all states have a duty to preserve from serious harm"l46 and for which a treaty-based regime needed to be developed. In some restricted senses the Straddling and Highly Migratory Fish Stocks Agreement has assumed this role in that it has redefmed the role of community interests in high seas fish stocks, or at least expanded the interests which the LOS Convention had envisaged. Freedom of fishing is no longer the dominant community interest subject to certain other ill-defined environmental conditions; the conservation

Res. 43/53 on Protection of Global Climate For Present and Future Generations of Mankind, reproduced in Churchill and Freestone (eds.), supra note 29, p. 240. 146 Alan E. Boyle, "International Law and the Protection of the Global Atmosphere : Concepts, Categories and Principles ," in Churchill and Freestone (eds.), supra note 29, pp. 7-19, p. 19. 145 UNGA

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of marine ecosystems has now assumed independent status as a basic consideration in fishing operations .147 The precautionary approach is an essential component of this new paradigm. It remains to be seen whether the regional bodies charged with its implementation will be able to "retain the strength of its original vision." Nevertheless, the tool that they have been given is a significant advance on the modalities available to balance the conflicting demands of utilization and conservation. The very survival of many capture fisheries may well depend on it. Although many would argue that a more radical formulation of the approach might have been more appropriate.!" what is most important is that the basic tenets of the approach are mainstreamed into the practice of fishery management regimes throughout the world so that the regimes can react swiftly and appropriately to existing and future threats. That objective is not perhaps best served by an overly proscriptive global regime, which might deter many states even from participation. Hard decisions will still have to be taken but these will be within the regional fisheries organizations. There is therefore more than an intellectual symmetry in the fact that in the text of the global instrument the negotiators of the Straddling and Highly Migratory Fish Stocks Agreement have chosen to outline the precautionary approach cautiously.

147 148

This idea is more fully developed in Freestone and Makuch. supra note 2. See arguments raised above and in Hewison, supra note 95.

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12 COMPLIANCE WITH AND ENFORCEMENT OF INTERNATIONAL FISHERIES LAW Christopher C. Joyner

INTRODUCTION

High seas fish stocks have traditionally been regarded as part of the ocean commons, the res communis, incapable of being owned by any state but susceptible to exploitation by everyone. Since the late 1970s, however, new jurisdictional zones, especially the 12-mile territorial sea and 200-mile exclusive economic zone, have become adopted as legal constructs by coastal, island and archipelagic states, thereby creating extensive, ready-made fishery conservation zones offshore of these states. t Ocean space has thus been subjected to creeping, albeit sweeping, state encroachment that has shrunk the high seas in the ocean commons by 40 percent and enclosed 90 percent of the world 's known fisheries within national jurisdiction.'

2

See generally United Nations Convention on the Law of the Sea (LOS Convention), opened for signature 10 December 1982, entered into force November 16, 1994, UN Doc . AlCONF./62/122 (1982), (1982) 21 lLM 1261. For discussion of creeping coastal state jurisdiction into the high seas, see Wayne S. Ball, ''The Old Grey Mare, National Enclosure of the Oceans," (1996) 27 Ocean Development and International Law, pp. 97-124. For various treatments assessing the plight of global fisheries over the past decade, see Lawrence Juda, International Law and Ocean Use Management: The Evolution ofOcean Governance, Routledge, 1996; The Regulation ofDriftnet Fisheries on the High Seas: Legal Issues, FAO Legislative Study 47,1991; Barbara Kwiatkowska, ''The High Fisheries Regime: At a Point of No Return?," (1993) 8 The International Journal ofMarine and Coastal Law , pp. 327-358; David Balton, "Strengthening

E. Hey, (ed.), Developments in Intemational Fisheries Law, p. 327-355. © 1999 Kluwer Law International . Printed in The Netherlands .

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During the same period, distant water fishing fleets pervasively searched for new fishing grounds and target species. Fishing vessels equipped with more sophisticated harvesting technology (especially driftnets, longline fishing gear, and sonar detection devices), escalated tensions and conflicts over international fishing rights to a crisis level.' The international reaction to this threat to order on the oceans produced a rapid evolution of international fisheries law." Key to the success of these new legal agreements ,

3

4

the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks ," (1996) 27 Ocean Development and International Law , pp. 125-152; Francisco Orrego Vicuna, "Toward an Effective Management of High Seas Fisheries and the Settlement of the Pending Issues of the Law of the Sea," (1993) 24 Ocean Development and International Law , pp. 81-92; Douglas M. Johnston, "The Driftnetting Problem in the Pacific Ocean: Legal Considerations and Diplomatic Options," (1990) 21 Ocean Development and International Law, pp. 5-40. See generally Edward L. Miles and William T. Burke, "Pressures on the United Nations Convention on the Law of the Sea of 1982 Arising from New Fisheries Conflicts," (1989) 20 Ocean Development and International Law , pp. 243-250; Evelyn Meltzer, "Global Overview of Straddling and Highly Migratory Fish Stocks: The Nonsustainable Nature of High Seas Fisheries," (1994) 25 Ocean Development and International Law, pp. 255-292; and James Carr and Mathew Gianni, "High Seas Fisheries, Large-Scale Drift Nets , and the Law of the Sea," in Jon M. Van Dyke, Durwood Zaelke and Grant Hewison (eds.) , Freedom of the Seas in the 21st Century, Island Press, 1993, pp. 272-291. Especially notable as new fisheries law are three United Nations General Assembly Resolutions on large-scale drift-net fishing, UNGA Resolution 44/225, December 22, 1989, reprinted in (1990) 29 lIM 1555; UNGA Resolution 45/197, December 21, 1990 and UNGAResolution 461215, December 20, 1991, reprinted in (1992) 31 lIM 241. Moreover, there are two prominent international agreements : the Food and Agriculture Organization's Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement), adopted November 24, 1993, reprinted in (1994) 33 lIM 969 and the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 Relating to Straddling Stocks and Highly Migratory Fish Stocks (Straddling and Highly Migratory Fish Stocks Agreement), opened for signature 4 December 1995, reprinted in (1995) 34 lIM 1542. For an assessment of these and other recent international efforts to regulate world fisheries, see generally Ellen Hey, "Global Fisheries Regulations in the First Half of the 1990s," (1996) 11 The International Journal ofMarine and Coastal Law, pp.

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of course, is the willingness and ability of governments to comply with (or violate) the vast assortment of new fishery rules. The new rules comprising international fishery law have been crafted such that effecting compliance is directly linked to processes of enforcement, monitoring and reporting, and dispute settlement. This chapter examines compliance as a concept with the object of explaining how it is integral to international fisheries law and of assessing the means that governments use to attain improved compliance. The analysis highlights why states comply with international fisheries rules and how such compliance through enforcement transforms rules into international norms. In the course of this treatment, the role of emergent fishery law is also set out, particularly as regards interstate compliance with and enforcement of those rules governing states' right to fish on the high seas.

COMPLIANCE AS A CONCEPT

Compliance can be defined as the behavior of a government when it conforms to agreed international obligations, in this case, specific international fishery treaties.' Enforcement refers to the process of compelling compliance with rules set out in an international agreement." Compliance thus is the process of conforming to official requirements; it is behavior by an actor that adapts to specific legal rules . Compliance becomes treaty-induced when behavior is made to conform to specific rules on account of a treaty's compliance system.' The decision to respect a rule of international law, or to violate it, depends primarily on the content of

5

459-490. Specifically on the Compliance Agreement and the Straddling and Highly Migratory Fish Stocks Agreement see, respectively, Balton, supra Chapter 3 and Hayashi, supra Chapter 4. See Roger Fisher, Improving Compliance with International Law, University Press of Virginia, 1981. p. 20; Oran Young, Compliance and Public Authority: A Theory with International Applications, Johns Hopkins University Press, 1979,

p.104. 6 7

See Young , id., p. 20. Ronald B. Mitchell, "Compliance Theory : An Overview," in James Cameron, Jacob Werksman, and Peter Roderick (eds.).Improving Compliance with International Environmental Law. Earthscan Publications Ltd., 1996, pp. 3-28, p. 5.

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the rule and the perceived implications it has for a state's national interests at a given point in time. Obviously, a rule obtains strength in relative proportion to the extent that it coincides with the interests of many states . For a limitation to be placed on some state activity, it must be done such that the restrictions imposed do not appear to be arbitrary. The rule should appeal to common sense. In the same vein, the rule should proceed from some natural, identifiable point. Conservation of high seas fisheries serves the interests of all states and that norm ought therefore to be respected. The sticking point here is not the norm of conservation so much as the breakpoint where conservation must begin - i.e., the threshold of maximum sustainable yield." Compliance entails actual changes in behavior toward specified, agreed goals. Compliance is not effectiveness, however. Effectiveness involves the extent to which goals of a fishery treaty are attained; compliance with that treaty refers to how well actors respond in adhering to policies designed to that end. In any event, though, the effectiveness of fishery regimes depends on the extent of compliance with their obligations and rules. Rules that underpin fishing laws, whether in domestic or interstate society, are not developed simply because policymakers collectively perceive that they might be useful. Rather, rules for fishery law evolve out of repeated patterns of behavior when policymakers realize: (1) that a certain pattern affecting fishery resources has emerged (e.g., overfishing or depletion of one species in an area) and (2) that new behavior will serve a useful purpose (e.g., conservation or management regimes can restore balance in the marine environment). The need for a new rule can then be recognized, given an agreed value as a "good," and reinforced, using institutions and rules to structure incentives and sanctions for compliance with that rule as law . When fishery rules are being formulated by coastal and fishing states, it is critical to stamp as much of an imprimatur of fairness upon them as possible. It seems reasonable to expect that governments would more readily comply with international fisheries rules that are supported by natural law notions of fairness and rectitude than rules that appear to be contrived. Perceptions of equity and justice are critical in this respect, as are appearances of impartiality. Further, more compliance is likely for rules that are stated in reciprocal terms. To be sure, no two states will be affected in the same

8

Art. 6 juncto Annex II, Straddling and Highly Migratory Fish Stocks Agreement.

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way, or to the same degree, by some rule of international fisheries law. Still, compliance may be enhanced if the duty is expressed in terms that make it appear to fall equally, and fairly, on coastal states and fishing states alike. Compliance with international rules for fisheries law involves two parallel tracks. On the one hand, there are the states whose governments make, and agree to enforce compliance with, international fishery rules. On the other hand, there are the individual fishermen whose behavior will determine in large part whether those rules are obeyed. Thus the law affecting fisheries derives from regulations for the management and conservation of living resources, with the extent of government compliance being decided by individuals and reflected in the ways and means that governments respond to that behavior. With what rules of international fisheries law are states expected to comply? For coastal states, contemporary fisheries law imposes the cardinal obligation to conserve living marine resources within their declared maritime zones. Fisheries located within 200-mile exclusive economic zones are exclusively subject to the national jurisdiction of the coastal states. They are outside the international commons and are regulated by domestic rules and laws set by the coastal state. Coastal states are mandated by the contemporary law of the sea to perform a number of duties affecting fisheries, among them the following: (1) To determine the allowable catch of living resources," (2) to ensure that such resources are not endangered by over-exploitation," (3) to take into account effects of management measures on non-target species, II (4) to promote the objective of optimum utilization of such resources.f (5) to determine the coastal state's own capacity to harvest such resources" and (6) to give other states access to any surplus under reasonable conditions." Importantly, the coastal state is made responsible for the manner and means used to carry out and enforce these conservation measures within the exclusive economic zone, although setting precise standards and threshold

9 10 11 12 13 14

Art. Art. Art. Art. Art. Art.

61(1), LOS Convention. 61(2), LOS Convention. 61(3), LOS Convention. 62(1), LOS Convention. 62(2), LOS Convention. 62(2)-(4), LOS Convention.

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levels for such critical variables as "allowable catch," "over-exploitation," "effects of management measures," "optimum utilization," "capacity to harvest," and "surplus" remain scientifically problematic. Contemporary ocean law ascribes particularly high degrees of freedom and responsibility to coastal states in ensuring efficient management of fisheries. Regarding the high seas, states are expected to comply with several additional fisheries rules. Contemporary fisheries law establishes for all states the unqualified obligation to protect and preserve the entire marine environment. Certain agreements have been concluded recently that furnish new principles and duties for the conservation of marine living resources, as well as rules on compliance and enforcement for high seas fishing and binding settlement of oceans disputes. IS These new international fishery rules represent agreement among states on what their future conduct should be with respect to especially" fishing beyond the limits of national jurisdiction. The purpose of these rules is to affect state behavior. The government of the state, then, determines whether that state will or will not comply with these emergent rules.

Why governments comply Fishery agreements often fulfill regulatory proscriptions of undesirable actions and prescriptions for desirable behavior. But why do states comply? Governments and individual fishermen confront various constraints in carrying out any international fishing activity . Similarly, compliance may occur for reasons other than those having to do with a rule's mandate. Perhaps the most forthright explanation for why a state behaves in accordance with a fishery law is because the state's government believes such behavior furthers its national interest. Governments negotiate rules for fishery activities to promote their national interests, either by protecting scarce living resources for their own shared use, or by limiting access to those resources by other states. Clearly, a major factor influencing a state's willingness to

15 16

See supra note 4. Note that, on the basis of article 2(1), articles 6 and 7 of the Straddling and Highly Migratory Fish Stocks Agreement also apply to straddling and highly migratory fish stocks when inside areas of national jurisdiction.

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comply is the extent of changed behavior that the treaty requires for com-

pliance." Governments might comply with fisheries law because it requires no real change in their behavior. Skillful negotiation by one state's diplomats may place substantial burdens on other states to comply. Perhaps the leading state already has implemented national legislation that exceeds the mandates contained in a newly negotiated fisheries agreement. It is reasonable to expect that that government might push other governments to accept the new obligations and a greater burden of compliance, for rules already adopted and effected by the former state . Likewise, when fishery agreements are negotiated to reflect obligations having a lowest common denominator, expectations for compliance are raised. If governments and individuals are already in compliance with certain fishery regulations, the expansion of those regulations internationally should not impose greater economic or political costs, thus rendering more likely compliance with the agreement by that government and its nationals. 18 Compliance by governments also may be facilitated if fishery agreements are purposely negotiated with vague and ambiguous provisions. Formulating rules for governing future conduct often produces areas of ambiguity wherein it is difficult to state with precision the meaning or intent of a rule . Ambiguity permits wider interpretation and less clarity about the content of rules . Using general terms such as "parties shall cooperate as appropriate'"" or "parties shall , to the extent practicable.'" or "states shall endeavor to meet reasonable requests.'?' or that states shall take conservation measures "to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield... .'022 allows for creating new rules that appear to require behavioral change, but in fact permit opportunities for engaging in "business as usual" fishing behavior. The wording is vague, qualified and eludes precise determination.

17 18 19 20

21 22

Mitchell, supra note 7, p. 7. [d. Art. v, Compliance Agreement, (author's emphasis) Art. vl(2), Compliance Agreements (author's emphasis). Art. 20(2) , Straddling and Highly Migratory Fish Stocks Agreement, (author's emphasis). Art. 119, LOS Convention, (author's emphasis).

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Ambiguity notwithstanding, to effect compliance with international fishery law, states must agree on certain key principles." Chief responsibility

23

The Compliance Agreement is complemented by the Code of Conduct for Responsible Fisheries, which was adopted under the auspices of the FAD on October 31, 1995. The FAD Code is voluntary, but furnishes critical guidelines as principles and standards for state conduct to conserve, manage, and develop global fisheries . Key among the general principles in article 6 of the Code are the following: "The right to fish carries with it the duty to conserve and manage living marine resources." (art. 6.1.) "Conservation and management decisions for fisheries should be based on the best scientific evidence available." (art. 6.4.) "States and regional fisheries management associations should apply a precautionary approach to conservation, management and exploitation of living marine resources." (art. 6.5.) "Within their respective competences and in accordance with international law, including within the framework of subregional or regional fisheries conservation and management organizations or arrangements, States should ensure compliance with and enforcement of conservation and management measures and should establish effective mechanisms, as appropriate, to monitor and control the activities of fishing vessels and fishing support vessels." (art. 6.10.) "States authorizing fishing and fishing support vessels to fly their flags should exercise their effective control over those vessels so as to ensure the proper application of this Code . They should ensure that the activities of such vessels do not undermine the effectiveness of conservation and management measures taken in accordance with international law and adopted at the national, subregional, regional, or global levels. States should also ensure that vessels flying their flags fulfil their obligations concerning the collection and provision of data relating to their fishing activities." (art. 6.11.) "States should ... cooperate at the subregional, regional, and global levels through fisheries management organizations, other international agreements or other arrangement to promote conservation and management, ensure responsible fishing and ensure effective conservation and protection of living aquatic resources throughout their range of distribution, taking into account the need for compatible measures in areas within and beyond national jurisdiction." (art. 6.12.) "States should cooperate in order to prevent disputes. All disputes relating to fishing activities and practices should be resolved in a timely, peaceful and cooperative manner, in accordance with applicable international agreements or as may otherwise be agreed between the parties ....." (art. 6.15.) Specifically on the Code of Conduct see Moore, supra Chapter 5.

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for compliance should be assigned to the flag state to "take such measures as may be necessary" to ensure that its flagged vessels do not engage in activities that contravene the effectiveness of international conservation and management measures on the high seas." In addition, the flag state is obliged to deter the reflagging of vessels used for fishing on the high seas if those vessels have had their authorization to fish withdrawn or canceled by a state party." In this regard, the records kept by a state party facilitate control and supervision of such vessels in order to monitor their activities and effect compliance." States are generally obliged under contemporary fisheries law to cooperate in implementing those rules and to exchange information, including evidence relating to vessels whose activities might have undermined conservation and management measures." In this respect, port states may investigate fishing vessels to determine whether violations have occurred" and parties are obliged to enter into global, regional or bilateral agreements to promote objectives of the agreement." A key to effecting compliance through national management is the ability of governments to secure adequate and reliable scientific information on stocks, which can be used to monitor catches , perform surveillance and exercise enforcement against offenders. Two general techniques have been used to foster national compliance with international fishery management. One involves putting controls on fishing effort, including restrictions on the type of gear and size of mesh, limits on vessels, including vessel type, length and horsepower, and restrictions on fishing seasons and areas. The other is to impose controls on fishing catches or bycatch quotas. It remains for governments themselves, however, to decide whether to manage fishery resources by effort controls or through catch quotas . For instance, in cases where scientific data on the condition of stocks are adequate and proper monitoring and enforcement are possible, determination of total allowable

24 Art. III(1)(a), Compliance Agreement. 25 Art. III(5), Compliance Agreement. 26

Art. IV, Compliance Agreement.

27 Art. V, Compliance Agreement. 28 Art. v(2), Compliance Agreement. 29

Art. v(3), Compliance Agreement.

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catch and specific allocation of quotas to take that catch might be considered appropriate for effective management of the high-seas stocks in question." Obviously, too, the absence of a specifically designated tribunal for settling fisheries disputes can encourage governments to interpret fishery regulations more broadly, closer in line with their interests, rather than what might be the common intent or good of the provision. Political consensus, needed for adopting the rule, may not be attainable with more detailed language . A general direction for policy, guided by less precise words, can be more effective for setting the broad policy for behavior, rather than the specific ways and meaning of conducting it. Likewise, too much precision can create loopholes, entwined in complexities, that require procedures for constant revision and reinterpretation. This situation creates the need for knowledgeable experts to provide authoritative interpretations about the intent and meaning of provisions and their attendant obligations. Fishery treaties are regulatory agreements. When fishery treaties mandate new behavior, they may only require that parties take actions that they can be expected to take anyway. Even though a state might have behaved the same way absent some treaty provision (viz., because it served that state's national interest to do so), the agreement's provision supplies international legitimacy for that state's behavior and policy reactions. In that case, the treaty increases domestic political support for that behavior and can encourage compliance with other treaty provisions that might otherwise be unattainable as policies. As regulatory agreements , fishery treaties give rise to new regimes or a nexus of norms, rules, regulations, and principles that set up expectations on what the conduct of states should be on a major problem area. If the fisheries regime is to persist over time, the rules and laws comprising the regime must be able to adapt to shifting conditions and changing circumstances. Correspondingly, national behavior must adapt to comply with changes in obligations perceived in the agreement.

30 UN Division for OceanAffairs

andthe Law of the Sea, Officeof Legal Affairs,

The Law ofthe Sea : The Regimefor High Seas Fisheries: Status and Prospects,

1992, p. 33.In othercircumstances, governments mayopt forcontrols on fishing effort, id.

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Contemporary fisheries law establishes two fundamental elements that must be evidenced by states to effect compliance. First, states must actually engage in permissible fishing. No government may allow fishing vessels flying its flag to fish on the high seas without its authorization." A government, moreover, may not authorize a vessel to fish on the high seas if that vessel, be it registered to a party or not, has taken actions that undermine international conservation and management measures.P Second, there is the requisite obligation of responsible enforcement. Vessels shall be duly licensed only if the flag state is able to exercise effectively its obligations under international law .33 States are expected to maintain a record of fishing vessels entitled to fly their flag and authorized to fish on the high seas. Information about vessels on the registry should be communicated to international bodies (usually the FAO) and circulated to other interested parties." Responsible states are obliged to cooperate in the exchange of information, including evidentiary material, which can enable the flag state to identify those vessels flying its flag that have engaged in activities that undermine international conservation and management measures." Moreover, international fisheries law can extend its legal reach beyond the scope of its explicit jurisdictional competence. That is, states are expected to cooperate, consistent with international law, to prevent vessels of other states from engaging in activities that would undermine the effectiveness of international conservation and management measures." Compliance might also be attributed to longer-range conceptions of selfinterest, including perceived joint gains and concern over the unintended impacts of activ ities if left unregulated, or unenforced. Governments might calculate that noncompliance could produce harmful effects not only on fisheries, but also on their relationships with other states . Decision-makers might be wary of critical public opinion, both domestically and internationally.

31 32

33 34 35

36

Art. 1II(2), Compliance Agreement. Art. 1II(5), Compliance Agreement. Art. 1II(3), Compliance Agreement. Art. VI, Compliance Agreement. Art. v(l), Compliance Agreement. FAD is to be the international clearinghouse for the information secured for each fishing vessel. Art. vIII(2), Compliance Agreement.

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Conflict between coastal states and distant water fishing fleets during the 1980s and 1990s over international over-exploitation of fish stocks was sparked by weaknesses in the applicable legal framework for jurisdiction over straddling stocks. The LOS Convention lacked specific provisions on the legal rights and duties of states harvesting fish that swim back and forth between coastal states' exclusive economic zones and adjacent high seas areas. This situation precipitated three basic developments. First, it inhibited effective enforcement and implementation of conservation measures by coastal states for living marine resources straddling their exclusive economic zones. Second, it offered opportunities for foreign fishing fleets to exploit fishery resources legally just beyond the limits of exclusive economic zones, but without regard to the coastal state's stricter, more enforceable conservation laws. Third, the resultant conflict between coastal states and distant water fishing nations (DWFNS) discouraged compliance with general fishery rules and conservation standards for living marine resources in the high seas. As a consequence, exploitation efforts worldwide during the 1990s put such straddling stocks under increasingly severe pressures." Promulgation of new fisheries law was devised to close loopholes affecting jurisdiction and management of these fishery resources, mainly by strengthening opportunities for compliance and enforcement with the general framework of the law of the sea. Compliance with general fishery law is facilitated as states are expected "to ensure the long-term conservation and sustainable use of straddling stocks ... through effective implementation of the relevant provisions of the [LOS] Convention.':" Although applicable only beyond areas of national jurisdiction," a number of general principles of law are made binding upon coastal states. Among those are the duty of states to cooperate with each other to ensure the long-term sustainability of straddling stocks,'? to apply the precautionary approach to fisheries,"

See FAO, The State a/the World Fisheries and Aquaculture, 1998 (concluding that in 1998, about 70 percent of marine fish stocks are fully to heavily exploited, overexploited, depleted, or only slowly recovering). See Rome Consensus on World Fisheries adopted at FAO Ministerial Conference on Fisheries, 14-15 March 1995, http://www.fao.org!wAICENTIFAOINFOIFISHERY/agreemlconsensu/co, visited on 21 May 1999. 38 Art. 2, Straddling and Highly Migratory Fish Stocks Agreement. 39 Art. 3(1), Straddling and Highly Migratory Fish Stocks Agreement. 40 Art. 5(a), Straddling and Highly Migratory Fish Stocks Agreement. 37

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to ensure compatibility of various conservation and management measures ,42 and to adopt measures based on "the best scientific advice available."? Critical for compliance with fisheries law are new rules dealing with conflicts between conservation measures inside the exclusive economic zone and those applicable to the high seas. As promulgated by emergent law, Conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling fish stocks ... in their entirety. To this end, coastal States and States fishing on the high seas have a duty to cooperatefor the purposeof achievingcompatible measures in respect of such stocks." This new law also sets out several factors for governments to consider in determining what measures are most appropriate for conservation and management. Among such factors are: existing exclusive economic zone and high sea regulations, measures adopted within the framework of a regional fisheries management organization, the "biological unity and other biological characteristics" of fishery stocks and even "the respective dependence of the coastal States and the States fishing on the high seas on the stocks concerned.,>45 New international fisheries law aims to facilitate compliance as it calls upon coastal and flag states to develop provisional arrangements and to inform each other about their respective national regulations and legislation." Emergent rules provide that, should no agreement on compatibility of conservation and management measures be achieved, "any of the States concerned" may bring the issue to binding and compulsory dispute settlement, using established procedures." The effort is made to resolve concerns over the compatibility between conservation measures for exclusive economic

41 42 43

44

45 46

47

Art. 6, Straddling and Highly Migratory Fish Stocks Agreement. Art. 7, Straddling and Highly Migratory Fish Stocks Agreement. Art. 5(b), Straddling and Highly Migratory Fish Stocks Agreement. Art. 7, Straddling and Highly Migratory Fish Stocks Agreement. Art. 7(2)(e), Straddling and Highly Migratory Fish Stocks Agreement. Art. 7(6)-(8), Straddling and Highly Migratory Fish Stocks Agreement. Art. 7(4), Straddling and Highly Migratory Fish Stocks Agreement.

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zones and adjacent high seas regions in a more satisfactory and effective way, thus permitting greater incentives for states to comply with that law. Once initiated and engaged in over a prolonged period, compliance can evolve into a habitual practice, above and beyond immediate perceptions of discrete national self-interest. Compliance is not a static decision. It is not merely "done." Compliance is a process that must be constantly performed over time. Changes in technology and economic conditions can influence perceptions concerning the degree of and need for compliance with a rule affecting fisheries . Clearly, this can be seen in the rapid evolution of prohibitions against driftnet fishing, and the willingness of most governments to pledge compliance with them." Compliance not only stems from a government's perceptions of its national interest. It can also arise from interactive decision making, spurred on by perceptions of goal attainment through fishery agreements that create interdependent stakes of mutual self-interest. By coordinating the behavior and policies of states parties to a certain regional fishery agreement, those states stand to gain from mutual compliance. For the world's oceans, the complementarity of interests generated by states parties to a treaty produces a convergence of interests and shared expectations over how those fishery resources will be managed and harvested . Governments realize that they will be better off in the long term if they collaborate on a public good, such as high seas fisheries. Trust of other governments is key to ensuring compliance, however, as the benefits are viewed as mutual since the obligations are held to be reciprocal. While noncompliance might produce higher fishery gains for a few over the short term, compliance is likely to yield more sustained joint gains over the long term. Noncompliance by one party also carries the costs of that party being alienated from the group , as well as the possible imposition of punitive sanctions. Moreover, one government's defection from the regime runs the risk of inciting multiple defections, which would reduce the benefits for all in a proportionately short period of time. It bears noting that powerful non-state actors such as fishery associations, non-governmental environmental organizations and scientists can influence the course of compliance with international fisheries law by helping to defme

48

See Donald Rothwell, ''The General Assembly Ban on Driftnet Fishing," paper prepared for the American Society of International Law, Project on Compliance and International Soft Law, 1998.

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state interests . New scientific discoveries or greater environmental activism can produce increases in the perceived costs of deleterious conditions affecting fisheries, thus underscoring the incentives of governments to comply with the appropriate law. In sum, compliance with fishery law remains a matter of government choice . Compliance with some fishery laws may be easy, since those laws are clearly intended to be in the national interest and little organized opposition is present. Thus, national compliance may be viewed in terms of the degree to which national resources and policies are committed to a specific goal in regulating fisheries. Put another way, when evaluating a state's compliance with an international fisheries norm, it is necessary to ascertain to what extent that government has changed its laws, policies and practices in response to the international fisheries commitment. In the main, however, national compliance with fisheries law is discerned in the practice of states, i.e., in the extent to which government actions intentionally support international obligations upholding agreed fishery laws.

Why governments disobey Why do governments fail to comply with certain international fishery rules? A government may prefer not to comply with a fishery rule simply because the benefits of non-compliance are perceived to outweigh the costs of compliance . Some governments may sign fishery agreements for the political benefits of membership, without real intentions to comply. Others may be driven by strong domestic or international pressures to become party to a treaty, irrespective of the costs of compliance. Further, those domestic pressures could shift and cause the government to view non-compliance as a more preferred alternative to the political costs of compliance." Still other

49

For elaboration, see Frida Maria Armas Pfirter, "Straddling Stocks and Highly Migratory Stocks Latin American Perspective and Legislation: New Perspectives in Light of Current International Negotiations," (1995) 26 Ocean Development and International Law, pp. 127-150; Christopher C. Joyner and Peter DeCola, "Chile's Presential Sea Proposal: Implications for Straddling Stocks and the International Law of Fisheries," (1993) 24 Ocean Development and International Law, pp. 99-121 ; Christopher C. Joyner and Alejandro Alvarez von Gustedt, "The Turbot War of 1995: Lessons for the Law of the Sea," (1996) 11 The

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governments might perceive most rules in a fishery treaty to be in their national interests, prompting them to comply with some, but not all of the rules. Certain domestic factors may encourage a state's noncompliance with international fisheries law. Some states may lack the technical ability to fulfill obligations because that government is without the technical competence to create and enforce technical regulations affecting fishing consistent with international commitments. This may be the case especially for certain developing countries, which are encumbered by few fiscal resources, a paucity of trained professionals and weak administrative capabilities to be devoted to monitoring and enforcement of fishery regulations, both within their own exclusive economic zones and on their flagged vessels that fish in the high seas. Non-compliance may also be attributed to a state's lack of necessary resources . Put tersely, a government's willingness may not be equal to its ability to pay for compliance with regulations in a fishery agreement. Violations, or lack of enforcement of a fisheries agreement, may come from financial, administrative or technological incapacity, rather than a government's sinister premeditated motives or its unwillingness to comply." It is also possible that governments might take measures sincerely aimed at compliance with treaty-based fishery rules, but still fail to meet those standards. Fishing is a difficult activity to regulate. The development of more efficient harvesting technologies and increasing demands for more food resources to feed growing populations has increased pressures against fisheries conservation.

ENFORCEMENT

An initial step in promoting compliance is to establish a management regime acceptable to all parties. Compliance also requires effective mechanisms

International Journal ofMarine and Coastal Law, pp. 425-458 ; Michael Sean Sullivan, "The Case in International Law for Canada 's Extension of Fisheries Jurisdiction Beyond 200 Miles," (1997) 28 Ocean Development and International Law, pp. 203-268. 50 Mitchell , supra note 7, p. 12-13.

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for monitoring and enforcement when non-compliance is detected, as well as means for notification of and consultation between relevant coastal states. Problems will remain , of course , with unauthorized fishing by vessels of states that are not party to the management regime or fisheries association. Means used to enforce compliance with fisheries obligations may come as carrots (incentives to alter behavior) or as sticks (penalties to punish wrongdoing). If dependency upon punitive sanctions is to be lessened, incentives to change must be made more appealing.

The state as enforcement agent Responsibility for enforcing international fisheries treaties (thus compelling compliance) usually devolves entirely to states parties, who govern fishing by their own nationals . Each state must implement treaty rules in their national law. Once a state accepts international treaty obligations, it must usually develop, adopt or modify existing national legislation that gives effect to national policies or strategies that implement treaty regulations. It is at this point that national compliance comes into play. Once an obligation affecting fisheries law is domestically implemented, governments must ensure that it is obeyed, i.e., that it is complied with by those persons under that state's jurisdiction and control. Some fisheries agreements expressly require that parties ensure such compliance, for example, by applying sanctions or punishment for breaches or violations of national implementing legislation. Others specifically provide for the application ofcriminal penalties or for punitive measures for violations . Ensuring compliance with international fisheries agreements at the national level becomes a matter for the public authorities of each state. On the high seas, the power to enforce fisheries law usually belongs to the flag state, though sometimes it may be shared with the coastal state in the latter's zones of maritime jurisdiction. But as fishing vessels move in and out of maritime zones, enforcement can involve several states, with overlapping maritime jurisdictions and legal scopes, thus becoming problematic. Enforcement can be facilitated (and the prospects for compliance enhanced) if rewards are incorporated into the treaty for governments that comply. Such positive inducements create tangible incentives for states to

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comply, and can serve as confidence-building measures strengthening tendencies to comply. Education programs about treaty rules and their domestic/ international implications for affected domestic constituencies can facilitate strategies for compliance. Government- or industry-sponsored seminars for domestic fishery organizations can help explain to fishermen what various legal provisions mean for them and their harvesting activities. Financial transfers (subsidies) from the government to affected fishermen can alleviate economic hardships caused by temporary conservation restrictions. The more traditional remedy for enforcing compliance with fishery regulations is deterrence through the threat or use of sanctions. These actions impose negative costs on transgressors and are intended to dissuade violation of the rule by making that deviant behavior more costly (economically, politically, and diplomatically) than compliance. For such negative sanctions to be effective, they must be both credible and strong. Moreover, a potential transgressor must perceive (and believe) that the political will actually exists to impose those sanctions and make the violator pay heavily for its transgressions by other parties to the agreement. Measures that encourage learning, confidence-building and capacitybuilding are all important for enhancing compliance. Compliance can be enhanced if governments are discouraged from accepting as inevitable the poor performance of other states. Expectations for compliance can be elevated if institutions and procedures are created to ensure transparency in the compliance-enforcement processes. Enforcement is also made more possible by greater transparency of member states' actions . That is, the enforcement of a fishery agreement is more likely if the quantity and quality of information on compliance or deviance by regulated parties is more available. The more parties know about each others' fishery actions and whether they are in compliance or at odds with rules in a fisheries agreement, the more likely it is that compliance can be rewarded and violations will be detected . Put bluntly, the prescription for enhanced compliance is increased transparency. To make the threat of negative sanctions credible, regulated parties must realize that violations will be detected and that punitive actions will be imposed. There is no question that the enforcement provisions in international fisheries agreement can significantly increase legal pressures on fishing vessels of parties to conform to the rules. New fishery rules clearly state the general expectation that coastal and flag states shall "implement and enforce conservation and management measures through effective monitor-

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ing, control and surveillance. ?" Specific compliance and enforcement duties have been established for flag states. These duties emphasize that governments shall "enforce such measures irrespective of where violations occur,"? The general duty is set for all states to cooperate so as to ensure compliance with and enforcement of all measures.? The verb "shall" clearly denotes deliberate intent of the parties to obligate themselves to comply with various stipulations. These provisions are commands and fiats. Governments are expected to share information and evidence of violations and to assist each other in investigations and vessel identification. In particular, where reasonable grounds exist for believing that unauthorized fishing may have occurred within the jurisdiction of some coastal state, "the flag state shall cooperate with the coastal State in taking appropriate enforcement action ... and may authorize ... the coastal State to board and inspect the vessel on the high seas.t'" Bluntly put, new fisheries law imposes upon flag states the duty to cooperate, although those states retain jurisdiction over vessels flying their flag. Yet states parties are permitted, within the framework of a regional organization, "through its [i.e., the state's] duly authorized inspectors, [to] board and inspect fishing vessels flying the flag of another State Party to this Agreement, for the purpose of ensuring compliance with conservation and management measures ..." aimed at special stocks or species." Emerging fisheries law allows for a range of permissible non-flag state monitoring and enforcement actions. New fisheries law has specific rules that reduce ambiguities in international regulation of special stocks, and thus decrease - though not eliminate entirely - the potential for conflicts over such species. Such rules for regulating fisheries activities furnish a minimum basis on which to build a regime for the conservation of living marine resources. Such a regime still requires political prudence and good faith from governments in enforcing these rules over their own nationals engaged in fishing activities. If the past

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Art. 5(1), Straddling and Highly Migratory Fish Stocks Agreement (author's emphasis). Art. 19(1)(a), Straddling and Highly Migratory FishStocks Agreement (author's emphasis). Art. 20, Straddling and Highly Migratory Fish Stocks Agreement. Art. 20(6), Straddling and HighlyMigratory Fish Stocks Agreement (author's emphasis). Art. 21(1), Straddling and Highly Migratory Fish Stocks Agreement.

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is prologue, securing those essential prerequisites will neither be easy nor quick to attain. Contemporary fisheries law obligates flag states to comply with and enforce conservation and management measures implemented through international agreement. Critical to such enforcement are determining the culpability of a given party, assigning responsibility to the flag state in case of a violation and imposing appropriate penalties. 56 These measures require states to confront the contentious issue of boarding and inspection. Contemporary fisheries law mandates flag state enforcement, which must occur regardless of the geographic location where violations take place. 57 The flag state is likewise mandated to investigate fully and promptly any alleged violation, to ensure that its vessels provide required information to an investigating authority, to ensure that a vessel involved in a violation does not engage in high seas fishing until pending sanctions are addressed and to ensure expeditious judicial proceedings and penalties of adequate

severity." International fisheries law also provides for enforcement to be carried out by regional organizations and multilateral arrangements. States whose vessels fish on the high seas are expected to take steps necessary to ensure that those vessels comply with conservation and management measures taken by regional organizations, and they are to avoid activities that undermine the efficacy of those measures/" States who are members of a regional organization may authorize duly appointed inspectors to board and inspect a fishing vessel of another state party in any high seas area covered by the organization, irrespective of whether that state is a member of that regional organization." Member states of such organizations are expected to estab-

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Art. 19,Straddling andHighly Migratory FishStocksAgreement. Investigations and judicial proceedings in response to alleged violations are to be carried out "expeditiously," and sanctions are to be "adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and shall deprive offenders of the benefits accruing from their illegal activities" (art. 19(2), id.). States parties are obligated to cooperate with one another in enforcing fishery agreements (art. 20, id.}. Art. 19(1), Straddling and Highly Migratory Fish Stocks Agreement. Art. 19, Straddling and Highly Migratory Fish Stocks Agreement. Art. 18(3), Straddling and Highly Migratory Fish Stocks Agreement. Art. 21(1), Straddling and Highly Migratory Fish Stocks Agreement.

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lish and publicize boarding and inspection procedures through these regional organizations. Procedures for boarding and inspection are not to discriminate against non-members of organization or non-participants in the arrangemerit." Requirements are to be set out for authorized inspectors from inspecting states, such as requirements to present credentials to the vessel's master, initiate notice to the flag state at the time of boarding and inspection, refrain from interference in the master's ability to communicate with flagstate authorities, provide a copy of the inspection report to the master and flag-state authorities, and avoid the use of force except to the degree necessary.? In the event that violations of conservation measures are detected, the new law for global fisheries requires that evidence be secured and the flag state notified promptly." The flag state is then given time to respond and to indicate whether it will take enforcement actions itself or whether it will authorize the inspecting state to investigate." Should the latter case prevail, the inspecting state is to communicate the findings of its investigation to the flag state, which then is either to take appropriate enforcement action or to authorize the inspecting state to do so in a manner consistent with the rights and obligations of the flag state." In fulfilling compliance through regional arrangements, states parties incur several obligations, including , inter alia, to obtain and evaluate scientific data, review the status of stocks and the impacts of fishing on target and associated species, establish mechanisms for "effective monitoring, control, surveillance and enforcement.?" promote peaceful settlement of dis-

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Art . 21(2) and (4), Straddling and Highly Migratory Fish Stocks Agreement. Art . 22, Straddling and Highly Migratory Fish Stocks Agreement. Art. 21(5), Straddling and Highly Migratory Fish Stocks Agreement. The flag state is given three working days to respond (art. 21(6), Straddling and Highly Migratory Fish Stocks Agreement). Art. 18(7) , Straddling and Highly Migratory Fish Stocks Agreement. Failure of the flag state to respond to communications from the inspecting state, following a boarding of the flag state 's vessel and discovery of clear grounds for believing that a "serious violation" has occurred, allows the inspecting state to gather and secure evidence and to bring the ship into port (art. 21(8) , Straddling and Highly Migratory Fish Stocks Agreement). Art. lO(h), Straddling and Highly Migratory Fish Stocks Agreement.

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putes and publicize appropriately the measures taken through regional arrangements." The enforcement process of a fisheries management regime can provide salient roles for authorized agents of regional organizations or arrangements, as well as for the flag state. To enhance effectiveness, fisheries rules should also create a role for the port state. Port states have the right, indeed the duty, to take measures that promote the effectiveness of regional organizations or arrangements in a nondiscriminatory manner." Port authorities should therefore be permitted to inspect documents, gear and catches on vessels entering their port, and pass laws that prohibit landing to ships whose catches were taken in ways that subvert regional conservation and management measures on the high seas." Enforcement of the fisheries regimes thus depends on many things: clarity as to the rights, duties, and obligations of flag states, coastal states , and subregional or regional organizations or arrangements, flag state investigations and assistance from other states or organizations, identification and reporting of vessels suspected of undermining conservation measures, accumulation and sharing of evidence, and actions taken to deter vessels from activities that would violate or undermine conservation and management measures. The fishery management regime sets a high standard that must be met if the conservation of high-seas fishery resources is to be ensured." Monitoring and reporting are key to detecting possible violations of rules, thereby revealing the need to compel a state's compliance. Governments usually are expected to report measures they adopt to implement their obligations under international fisheries law to the appropriate institutions created by various fishery arrangements. Typically this requires that statistical information be furnished on catch limits, harvests taken, permits given, scientific information and information on breaches or violations by nationals of the state party. These reports provide the means by which an international

67 Art. lO(d)-(m), Straddling and Highly Migratory Fish Stocks Agreement. 68 Art. 23(1) , Straddling and Highly Migratory Fish Stocks Agreement. 69 Art. 23(2) and (3), Straddling and Highly Migratory Fish Stocks Agreement. 70 Art. 20, Straddling and Highly Migratory Fish Stocks Agreement.

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fisheries body can assess the extent to which parties are complying with their obligations under the relevant agreement." It remains primarily the responsibility of the flag state to monitor vessels engaged in high seas fishing activities. The contemporary law of the sea clearly places this duty on each state: "All States have the duty to take, or to 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."? It is essential in this regard for governments to monitor fishing activities taking place in areas where they exercise jurisdiction and by vessels flying their flag.

Multilateral enforcement organizations International fisheries law creates a framework for formulating and enforcing conservation norms . Governments often establish and empower multilateral arrangements that set membership qualifications and can adopt regulations to conserve and manage resources. Under their constitutive rules, these fishery bodies formulate conservation norms and set primary rules for regulating the conduct of governments and nationals on the high seas. The constitutional structures and powers of associations entrusted with the management of fisheries resources largely determines their ability to formulate, implement, monitor and enforce conservation rules effectively. There is the critical need to ensure that decision-making in a fisheries association promotes rather than hinders effective implementation of conservation

71 As provided for in the Compliance Agreement, Each Party shall report promptly to FAa all relevant information regarding any

activities of fishing vessels flying its flag that undermine the effectiveness of international conservation and management measures, including the identity of the fish ing vessel or vessels involved and measures imposed by the party in respect of such activities. Reports on measures imposed by the party may be subject to such limitations as may be required by national legislation with respect to confidentiality, including, in particular, confidentiality regarding measures that are not yet final. Art. vI(8)(a) , Compliance Agreement. 72 Art. 117, LOS Convention.

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measures. The presence of an opt-out clause, for example, can undercut an agreement's efficacy. The Food and Agriculture Organization (FAO) and the United Nations play an important role in the development of international fisheries regulations." but their executive power to enforce agreed rules is very limited. Multilateral fishing bodies, e.g., the North Atlantic Fisheries Organization (NAFO) and the Commission for the Conservation of Antarctic Marine Living Resources, are international legal persons to which states could transfer enforcement competences, competences that would enable such organizations to seek to enforce the obligations that member governments have accepted. Even so, concerns over sovereign interests have made states reluctant to transfer much enforcement authority to international bodies and their secretariats. This reluctance has prompted non- governmental organizations to become the main international advocates for conservation and protection in international fisheries law. Although lacking full-fledged international legal personality, environmental organizations have been prominently involved in the implementation and enforcement process of rules designed to conserve high-seas fishery resources." Enforcement (and incentives for compliance) can be facilitated through regional agreements that provide for sophisticated fisheries control regimes. Such arrangements create a common political culture shared by the limited number of parties. Regional arrangements allow for more extensive involvement more easily than complicated global regulatory systems. Since fishing tends to be localized where the fish are located, regional regimes offer opportunities for closer scrutiny of activities by those states that have a direct stake in the outcome. Such a situation presumably encourages greater involvement and more serious attention to managing activities affecting regional fishery circumstances and species' conditions. In fishery agreements,

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The international instruments referred to in supra notes 4 and 23 were all developed under the auspices of the FAO or the United Nations, and often in close cooperation between the two organizations. Prominentamongnongovernmental organizations concerned about worldfisheries are Greenpeace International, International Wildlife Management Consortium, the World ConservationUnion, and the World Wide Fund for Nature. See the list of organizations attendingthe 1995FAO MinisterialConferenceat this web site: http://www.fao.org!WAICENTIFAOINFOIFISHERY/agreern!consenuslco, visited on 11 November 1997.

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negative sanctions could target not only governments, but also fishery organizations and even specified flagged vessels. In short, treaty secretariats and regional fishery councils can increase the prospects and effectiveness of positive inducements that states may unilaterally take to comply with fishery regulations. Such organizations can provide mechanisms for financial burden-sharing or joint arrangements for monitoring and inspections. Contributions can be arranged through special voluntary funds to support special multilateral fishing ventures or programs. A truly significant contribution of emerging fisheries law is the confirmation that regional and subregional organizations occupy an important role in enforcing international fisheries management. In fact, contemporary law suggests that the jurisdictional purview of these organizations should be strengthened" and states should demonstrate "their duty to cooperate by becoming members of such organization or participants in such arrangement, or by agreeing to apply the conservation and management measures established by such organization or arrangement. ,,7 6 Moreover, the law emerging for fisheries would give "[o]nly those States which are members of such an organization or participants in such an arrangement, or which agree to apply the conservation and management measures established by such organization or arrangement" access to fisheries resources covered by those agreed upon measures."

75 76 77

Art. 13, Straddling and Highly Migratory Fish Stocks Agreement. Art. 8(3), Straddling and Highly Migratory Fish Stocks Agreement. Art. 8(4), Straddling and Highly Migratory Fish Stocks Agreement.Two special fisheries agreements illustrate the importance of the regional approach to international enforcement of fisheries law on the high seas. First, there is the InternationalConventionfor the Conservationof AtlanticTunas (ICCAT). Compliance and enforcement is covered under Article IX of the ICCAT Convention, which asserts that contracting parties agree to take all action necessary to ensure enforcement of the convention. The convention creates a special Compliance Committee to evaluate compliance and make recommendations to the ICCAT Commission on how to resolve problems of non-compliance by Contracting Parties. The convention also creates a port inspection scheme to ensure observance of conservation and management measures, although few members have adoptedthe scheme and even fewer have implemented it. The Conventioncovers vast ocean space - Atlantic and adjacent seas, including Mediterranean and Caribbean - but still relics exclusively on flag state enforcement to ensure compliance with the Commission's conservation measures. Implementation of

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Agreements made through consensus offer the best prospects for compliance. Political will must push such agreements in order for them to become effective. Empowerment of a fisheries regime to impose sanctions reflects in part the seriousness with which member states assume their obligations, as well as the perceived value of compliance with that regime. Yet, there is also the view that sanctions can produce dysfunction in the regime. Sanctions do not resolve noncompliance, but rather punish a state for its transgression. Hence, the imposition of sanctions will likely exacerbate tensions among member states and almost certainly alienate one or more parties . The right of a state to enforce fisheries obligations is usually revealed by the terms of a relevant treaty. States party can be called on to apply provisions of a convention and to punish infractions carried out by persons or vessels under their jurisdiction. Prosecution of infractions is done by the government having jurisdiction over the offense. Governments are often required to submit to a regional arrangement's central body (i.e., a headquarters or commission) copies of national laws relating to fishing, annual reports detailing breaches of those laws and what sanctions were taken in response to those breaches . Due to the lack of authoritative central mechanisms to control non-compliance, enforcement of conservation and management standards in fisheries arrangements often occurs indirectly, by means

compliance and enforcement provisions in the Straddling and Highly Migratory Fish Stocks Agreement could strengthen adherence to lCCAT rules, especially by non-lCCAT members. Non-flag state boarding and inspection on high seas is greatly facilitated, which thus obviates the need for consent of the flag state to each separate case. Finally, lCCAT resolutions that potentially authorize trade sanct ions against non-members could significantly improve compliance with and enforcement of lCCAT rules . For further information see generally R. Shomura and H. Jayewardene, A Review and Analysis of International Tuna Management Bodies of the World, FAD, Rome, 1992. Second, the Convention for the Establishment of an Inter-American Tropical Tuna Commission (lATIC) requires 100 percent observer coverage in the Eastern Tropical Pacific purse seine tuna fishery. Its International Review Panel provides effective mechanisms to ensure compliance with conservation and management measures relating to dolphin mortality.

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of political pressure within association meetings or though bilateral diplomatic channels .78

THE BALANCE SHEET

Pervasive creeping national jurisdiction, coupled with increased fishing activities, has made new regulations for using marine resources essential for maintaining order in the oceans. Such regulatory considerations for fishery activities set up expectations as to the behavior of governments and also stimulate governments to react to deviant behavior, including by applying sanctions or otherwise inducing some kind of altered conduct by the violator. Governments must therefore be able to perceive and articulate which rules for fisheries exist when, where and in which situation so that they can be cognizant of when violation of a rule occurs (i .e., when behavior fails to comply with a rule or when deviation from a rule occurs) . Compliance with fisheries law is a function of rules, but rules are only as strong as they are enforced. Fishery measures agreed cooperatively are to be implemented by a state with respect to its own nationals. National enforcement also proceeds from the principle of flag state jurisdiction over vessels on the high seas. States whose nationals are engaged in fishing on the high seas must take the necessary legislative measures to ensure that their nationals who fail to comply with agreed rules, regulations or standards can be sanctioned for violations.

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The Forum Fisheries Agency (FFA) can facilitate common enforcement of conservation laws of member states. FFA maintains a common register of fishing vessels that apply for licenses to fish. A vessel is supposed to be in good standing on the register before it can obtain a license to fish. While "good standing" is automatically conferred on a vessel, it can be withdrawn if a vessel commits a serious fishing offense . The threat of removal of good standing can serve as a deterrent to unlawful fisheries practices. For further information see Anthony Bergin, "Political and Legal Control over Marine Living Resources: Recent Developments in South Pacific Distant Water Fishing," (1994) 9 The International Journal of Marine and Coastal Law, pp. 289-309; Transform Aqorau and Anthony Bergin, "The Federated States of Micronesia Arrangement for Regional Fisheries Access," (1997) 12 The International Journal ofMarine and Coastal Law, pp. 37-56.

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For international fisheries law to be effective, incentives for compliance with specific agreements must be extended to non-parties. States parties to an agreement must be obligated to cooperate in dissuading non-party states from engaging in activities that undermine the effectiveness of international conservation and management measures on the high seas. Included among these cooperative efforts is the exchange of information concerning any nonparty flagged vessels engaged in suspect activities. In the future regional or subregional organizations are likely to play more salient roles in enforcing compliance through agreed observer schemes on vessels and joint inspection schemes by any state for the vessel of other member states. In addition, there must be cooperation in monitoring vessels among all states participating in the fishery . Although most prosecutions will remain in the hands of the flag state, more serious attention should be given by regional fishery organizations and subregional arrangements to making arrests, prosecuting and imposing penalties upon persons who engage in unlawful fishing activities. By so doing, the prospects for enforcement will be broadened and the incentives for compliance will be deepened.

CONCLUSION

Governments comply with fishery rules and regulations because such behavior is perceived to enhance their national interests. Governments negotiate fishery agreements intentionally to create obligations that further national policy objectives and also to eschew legal obligations that might be perceived as impairing their national interest. As consensual international instruments, provisions in fisheries agreements mirror the relative success of the parties in promoting their interests." To sustain and manage international fisheries, the critical consideration comes down to the diplomatic ways to achieve accommodation and the practical means to enforce compliance. Both compliance with and enforcement of norms underpinning international fishery regulations are essential processes for making the law of the sea work to benefit all states. Compliance can result from threats (disincentives), facilitated by monitoring and verification processes, as well as actual use of coercion.

79 Mitchell, supra note 7, p. 7.

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National governments are given the preeminent role for enforcing compliance with international fisheries law. Once evidence clearly indicates that a government has failed to fulfill an obligation legally contained in a fisheries treaty, the question arises as to what legal means exercised by which lawful personalities may be used to enforce that obligation internationally. Enforcement means taking measures to ensure the fulfillment by states of their international legal obligations, or to obtain a determination from an international agency, court or tribunal that obligations are being met. The possibility of multilateral enforcement serves to promote compliance. It can also punish parties that fail to uphold their obligations under international fisheries law. The success of compliance with international fisheries law depends on the state's ability to comply with existing international conservation and management measures. These provide the minimum standards that flag states must apply to their vessels, the maximum standards that port states should apply to vessels in their ports and, ostensibly, the maximum standards that would be applied by a state other than the flag state under an agreement on high seas enforcement action. Coastal and fishing states will only cooperate on fisheries management if their governments choose to do so. Governments of states make international fisheries law, nationals of states break that law and it remains for governments of states to enforce that law. The international law regulating the use of high-seas fisheries is only as strong and effective as governments make it. Thus the critical challenge for the foreseeable future is not to make new law. Rather it is to improve state compliance with and enforcement of the law that has already been agreed to by the international community. Governments must realize the mutual benefits of interstate cooperation in order to make the law of the sea a viable regime for governing the world's oceans. Compliance with regulations that control fishery activities must be enforced by both the coastal and flag states. This stands as the most viable strategy for governments to reverse the unrelenting over-exploitation of global fishery resources in the 2pt century.

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13 THE CONSERVATION AND MANAGEMENT OF MARINE MAMMALS AND ANADROMOUS AND CATADROMOUS SPECIES

Patricia W. Birnie

INTRODUCTION

The objective of this chapter is to consider how the fisheries management regimes for marine mammals, anadromous and catadromous species, as contained in the United Nations Convention on the Law of the Seal (LOS Convention) have evolved in the light of current developments in international fisheries law and policy. These development are in particular reflected in the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas' (Compliance Agreement), the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1992 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks' (Straddling and Highly Migratory Fish Stocks Agreement) and the Code of Conduct for Responsible Fisheries" (Code of Conduct), which are discussed in other chapters in this volume . Prior to addressing the topic of this chapter, we must first ask why the LOS

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(1982) 21 ILM 1261. (1994) 33/LM968. Specifically on the Compliance Agreement see Balton, supra Chapter 3. (1195) 341LM 1542. Specifically on the Straddling and Highly Migratory Fish Stocks Agreement see Hayashi, supra Chapter 4. Code of Conduct for Responsible Fisheries, FAD, Rome, 1995. Specifically on the Code of Conduct see Moore, supra Chapter 5.

E. Hey, (ed.), Developments in International Fisheries Law, p. 357-393. © 1999 Kluwer Law International. Printed in The Netherlands.

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Convention singled out marine mammals, anadromous and catadromous species for special regimes, although otherwise including them within the general terms laid down in its Part v , concerning utilization of the "living resources" of the exclusive economic zone, and why it made these special regimes applicable to the high seas." This chapter first considers the special characteristics of marine mammals, anadromous and catadromous species. Secondly, it focuses on the conservation and management regimes developed prior to the adoption of the LOS Convention. Thirdly, the relevant provisions of the LOS Convention are discussed. Fourthly, treaties related to anadromous stocks adopted in the years after the conclusion of the Third United Nations Conference on the Law of the Sea (UNCLOS III) but prior to United Nations Conference on Environment and Development (UNCED) are considered. The development of the regimes for marine mammals and anadromous species in the post-UNCED era is then considered. Finally, the achievements and remaining challenges are addressed. It is should be noted that, as far as this writer has been able to ascertain, no international agreements that aim to protect catadromous species have been concluded.

SPECIAL CHARACfERISTICS OF MARINE MAMMALS, ANADROMOUS AND CATADROMOUS SPECIES Marine mammals, anadromous and catadromous species were singled out for special provision in articles 65/120 and 66 and 67 ofthe LOS Convention, respectively, not only because of the special problems created by the highly migratory character of most of these species but also because of other special features that render them more vulnerable to capture than other species. It has also been suggested that certain aspects of the biology of these species render them more likely to be adversely affected by human interference with their habits and habitats. It is necessary, therefore, first to consider the biological characteristics of these species.

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Specifically on the fisheries provisions of the LOS Convention see Hey, supra Chapter 2.

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Marine mammals Marine mammals in general are mammals that aeons ago adopted an aquatic life. They include cetaceans, sirenians, marine and sea otters, pinnipeds and polar bears. Those falling within the order Cetacea (whales and dolphins) are the older, most diverse group and have adapted most highly to marine life.6 Special characteristics to be taken into account in conserving and managing cetaceans include the cyclical nature of their migration between breeding and feeding grounds, a relatively low reproduction rate and thus slower recovery from stock depletion, complex family groups and social structures that are susceptible to disruption, close dependency for food, among other things on some of the over-fished resources, location as top predators in the marine food chain, which exposes them to contamination by high concentrations of certain chemical pollutants that bioaccumulate and apparent unawareness of the danger of entanglement in fishing nets.' To this could be added that, as air breathers, cetaceans are more vulnerable to capture on the surface than fish and that their bulk makes them more visible and valuable to hunters; they generally have much longer life spans than most fish if not caught or harmed in other ways and are more attractive for purposes of scientific research because of their mammalian biology as well as for viewing by the public because of their dramatic breathing, diving and blowing and their social structure, which means that they congregate in pods. Special problems are also created by the fact that only one progeny

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Seventy-nine species of whales and dolphins are recognized, divided into two sub-orders - the Mysticeti (baleen whales) and Odontoceti (toothed whales) - and 13 families . They are often popularly categorized as "large" and "small" cetaceans. The "large" whales include all the baleen whales , the right whales (including pygmy, bowhead, grey, blue, fin, sei. Bryde's, minke and humpback whales) and one toothed whale (the sperm whale) and have been the main target of the whaling industry. For further details see H.P. Castello , "An Introduction to the Whales and Dolphins," in M.P. Simmonds and J.D. Hutchinson (eds.), The Conservation ofWhales and Dolphins, John Wiley & Sons, 1996, pp. 1-22, at p. 2-9. A list of known cetaceans is provided at pp. 2-4 with their conservation status. Castello, id., pp. 9-19 ; P. Birnie, International Regulation of Whaling, 2 vols, Oceana, 1985, vol. I, pp. 11-62, esp. pp. 25-26 .

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is generally produced by females after a long pregnancy and that females nurture their young and escort them to feeding grounds. 8 Sirenians (popularly known as "sea cows") for reasons similar to those applicable to cetaceans, are vulnerable to exploitation, casual illegal hunting and other forms of destruction, such as net entanglement and human interference with their habitat," Otters are distributed from the cold temperate latitudes to the tropics and live mostly in near-coastal areas.10 A few inhabit both marine and fresh water in Europe , North America and Africa. Only two species are found exclusively in marine habitats: the sea otter of the North Pacific and the marine otter of Western South America. Because oftheir exceptionally attractive pelts there have been several periods of unregulated hunting and both species have almost been exterminated, although they are now recovering in places where protective national regulations are in place. Fishermen are known to pose a threat to otters because they exploit the shrimps and shellfish that also provide the basic diet of otters; fishermen thus often regard otters as marine pests. Pinnipeds (pinnipedia) is the term used to encompass walrus, sea lions and fur and true seals.II Fur seals, found in both the North and South Pacific, have a dense fur, which makes them especially attractive to hunters. The pinniped groups share the common characteristics, unlike the cetaceans, of not having wholly abandoned their land or ice-based origins, coming

[d. Sirenians are herbivorous aquatic mammals; there are only four living species: 3 manatees and one dugong. Two of the manatees - the West Indian and West African - inhabit both marine and fresh water; the dugong generally inhabits only marine waters . For details see R.R. Reeves, B. S. Steward and S. Leatherwood, The Sierra Club Handbook of Seals and Sea Lions, Sierra Club Books, 1992, pp. 259-294. 10 [d . pp. 259-308. 11 There is disagreement concerning whether pinnipedia are a separate order of mammals, equal to cetacea, to which they are very similar. The preferred view appears to be that they are not: rather they are classified into two well defined families and one less-defined one: (i) the Phocidae (true seals, sometimes also called earless or hair seals), which include some monk seals and elephant seals; (ii) the Otariidae, which includes two distinct groups, the fur seals and sea lions; and (iii) the less defined family , Odobenidae, of which the only surviving example is the walrus . For further information see id. pp. 3-32 , 39-257.

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ashore, according to a fixed schedule, sometimes onto floating pack ice, to mate, pup, moult, rest and escape predators and other dangers. Like cetaceans they usually produce only one pup and have long gestation periods and are thus easily endangered by over-exploitation. They are much easier to hunt and study on land but are widely distributed along continental shelves, coasts and islands and river mouths preferring to feed where plentiful supplies of fish and other food are congregated. Hence the reason why they are so often in competition and, therefore, conflict, with fishermen, who, if they are not already exploiting them, frequently demand that they be culled. Their distribution has been adversely affected by over-exploitation, human disturbance and coastal developments. Though circumpolar they are not cosmopolitan like cetaceans, but are mostly confined to either the North Pacific or North Atlantic.

Anadromous and catadromous species Anadromous and catadromous species present particularly difficult problems for conservation purposes as they are both diadromous species." That is to say, species that spend the major part of their lives in one type of water, fresh or sea water, but have to migrate into the other type of water to spawn. A prime example of anadromous species is the salmon, which spawns in rivers but spends the greatest part of its life at sea; other examples include the alewife, the Atlantic smelt and the striped bass. In contrast, catadromous species, the prime example of which are eels, spend most of their life in freshwater (rivers and estuaries) but migrate to spawning grounds in the depths of the sea. Both species are now threatened in various parts of the world, often from interference with their inland habitat as well as from overexploitation at sea.

12

For details see C.J. Rylander, Fisheries and Their Ways, MacmillanCo., 1964, pp.61-78.

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CONSERVATION AND MANAGEMENT PRIOR TO THE LOS CONVENTION Neither the 1958 Convention on the High Seas" nor the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas" (1958 Fisheries Convention) specifically addressed the conservation and management of marine mammals, anadromous or catadromous species. This is noteworthy as various types of marine mammals and anadromous stocks had been the object of controversy and regulation in the years preceding the First United Nations Conference on the Law of the Sea (UNCLOS I). Moreover, both marine mammals and anadromous species were then known to be especially vulnerable to over-exploitation. Instead, article 2 of the Convention on the High Seas maintained the long-established doctrine of the freedom of fishing, thereby emasculating the attempts by the 1958 Fisheries Convention to address the continued over-exploitation of species in the then vast areas of the high seas. While no global regulations were adopted before the LOS Convention, several species-specific treaties have a history dating back to the pre-World War II period . These include those regulating catches of fur seals," large whales" and salmon." 13 450 UNTS 11. 14 559 UNTS 285. 15 The first international regulations to protect fur seals were included in the 1911

Treaty for the Preservation and Protection of Fur Seals, in force December 15, 1911, (Fur Seal Convention) (104 BFSP 175). It was adopted following the decision in the Bering Fur Seal arbitration, in 1895 (Report of the Tribunal of Arbitration 1895, Moore, International Arbitration I, (755-961). For further information see D.M. Johnston, The International Law of Fisheries, Yale University Press , 1965, pp. 202-212 . In the Bering Fur Seal arbitration the Tribunal held that pups born on United States territory did not become United States property and that consequently the United States could not arrest foreign vessels that caught the animals once they migrated to the high seas . The Tribunal held that the animals remained ferae naturae and that the doctrine of the freedom of the high seas prevailed. The Tribunal also rejected the United States argument that the high seas were "free only for innocent and inoffensive use, not injurious to the just interest of any nation which borders upon it." It thereby implicitly accepted the British view (put forward on behalf of the Dominion of Canada) that the freedom of the seas conferred "the right to come and go thereon without let or hindrance, and take therefrom at will and pleasure the products of the sea" (Bering Fur Seal Arbitration, 839) . Note that it is this doctrine that the Compliance Agreement and the Straddling and Highly Migrat-

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Besides the lack of specific regulations for marine mammals and anadroumous and catadromous species, the 1958 Fisheries Convention provided a weak framework for conserving fish stocks. This is due not only to its failure to become generally accepted," but also the nature of its provisions. With hindsight its focus on the concept of the "maximum sustainable

ory Fish Stocks Agreement seek to rectify. The Tribunal, however, did advocate that Britain (for Canada) and the United States jointly agree and enact a number of conservation measures. However, such measures - the decision of the tribunal binding only Britain and the United States - were not applicable to the vessels of third states. This situation resulted in the adoption of the Fur Seals Convention in 1911, which was renewed in 1957.with the adoption of the International Convention on North Pacific Fur Seals (314 UNTS 105). This treaty was regularly amended and extended until 1988 when it was discontinued. These agreements, not unlike the Straddling and Highly Migratory Fish Stocks Agreement, allowed the United States to enforce the regulations that were applicable to seals in its territorial waters on the high seas. Offenders had to be handed over to the flag state for prosecution. 16 Regulations for catches of large whales were first adopted under a series of pre-World War II agreements (e.g. the 1931 Convention on the Regulation of Whaling, in force January 16, 1935, 153 LNTS 349) and culminated, at the end of the war, in 1946, in the adoption of the International Convention for the Regulation of Whaling (ICRW), in force November 10, 1948, 161 UNTS 72. The ICRW was amended by Protocol in 1956, in force May 4,1959,338 UNTS 366. 17 The first and, for many years, only agreement related to the conservation of salmon was the 1930 Agreement for the Protection, Preservation and Extension of the Pacific Salmon Fisheries in the Fraser River System, concluded between Canada and the United States (LNTS CLXXXIV, p. 305). Initially, the Commission established by the agreement had only scientific and no regulatory powers. However, with the continuing decline of the stocks, Canada and the United States, in 1946, delegated their national regulatory authority to the Commission. This change in the authority of the Commission was given formal effect by an amendment of the Agreement in 1957. At the same time a system of mutual enforcement was also introduced. In accordance with this system Canada and the United States were entitled to enforce the regulations of the Commission on each others vessels . (See A.W . Koors, The International Regulation ofMarine Fisheries, Fishing News (Books) Ltd ., 1973, pp. 82-85 ; Johnston, supra note 15, pp. 354-396. 18 Only thirty-six states became parties to the 1958 Fisheries Convention and its dispute settlement provisions were never activated, despite the emergence of significant disputes.

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yield?" (MSY) and the generation of "a maximum supply of food and other marine products'P'(emphasis added) are being questioned." However, a more significant problem is its limited aim. The Convention in fact only required that distant water fishing nations (DWFNs) voluntarily adopt conservation measures for their nationals fishing for any living resources on the high seas22 and that they enter into negotiations with a view to prescribing by agreement the necessary conservation measures, if so requested by another state whose nationals fished the same high seas stocks or by a coastal state." In addition, the nature of coastal states" "special interest'r" in the maintenance of the productivity of the living resources of the high seas adjacent to their territorial sea was ill-defined, especially with respect to the enforcement of such regulations, which continued to be frustrated by the high seas status of the areas concerned. Moreover, the importance of international enforcement schemes was not emphasized. The International Whaling Commission (IWC), established by the ICRW, was empowered to adopt legally binding regulations for whaling activities through amendment of its Schedule. Such regulations were to be based on "scientific ftndings.?" In addition, it was entitled to make recommendations, inter alia, "to any or all Contracting Governments on any matter which related to whales or whaling and to the objectives and purposes of the Convention.'?" The ICRW did not initially provide for an international inspection scheme; a 1956 amendment, however, enabled the Commission to adopt regulations concerning "methods of inspection .,,27 The adoption of such measures, as well as other amendments to the Schedule, requires

19

20 21 22 23

24 25 26 27

The concept had been developed for the United Nations Technical Conference on the Conservation of the Living Resources of the Sea, FAD, Rome, 1955, which preceded UNCLOS I. See Johnston, supra note 15, pp. 344-345,411-415. Art. 2, 1958 Fisheries Convention. For further consideration of these elements of the 1958 Fisheries Convention see Freestone, supra Chapter 11, esp. text at note 14 and further. Art. 3, 1958 Fisheries Convention. See arts. 4-7, 1958 Fisheries Convention. Art . 7, 1958 Fisheries Convention. Art. V(2)(b), ICRW . Art. VI, ICRW. Art. V was amended to add "and (i) methods of inspection" to the existing regulatory powers.

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the approval of a three-quarters majority of the IWC members present and voting; this was achieved only in 1974. The international surveillance system adopted, however, only provided for the exchange of International Observers between such parties to the ICRW as entered into formal agreements with each other to do SO.28 Such agreements, to the extent that they were concluded, generally were bilateral agreements. In addition to the Fur Seal Convention and its successors," two other agreements regulating the taking of seals were concluded. These agreements are the Agreement on Sealing and the Conservation of the Seal Stock in the North West Atlantic," concluded in 1971, and the Convention for the Conservation of Antarctic Seals," concluded in 1972. The former is a bilateral agreement between Canada and Norway and arose out of the fact that, during the 1960s, Canada extended its territorial sea and fishing zone to areas where Norwegian sealers had operated while the 1947 International Convention for the North West Atlantic Fisheries (ICNAF) did not apply to territorial waters. Cooperation with Norway was thus required to address the conservation of the seal stocks. The Commission established by the Agreement could propose inspection and control procedures, but enforcement was left to national means. The Convention on Antarctic Seals originated in the meetings of the Consultative Parties to the Antarctic Treaty, which first adopted "Agreed Measures'?" and later "Guidelines.':" However, given that the Antarctic Treaty" preserved the right of states to the freedom

28

29 30

31 32

33 34

For details see 25th Report of the IWe and DOC IWcl25/14. Four Schedules were established for (i) Antarctica (Japan/USSR); (ii) Southern Hemisphere (Australia! South Africa); (iii) North Pacific, (a) Pelagic (Japan/ussa for factory ships), (b) Land stations (US); (iv) North Atlantic (Canada/lceland; IcelandINorway). For details see Birnie, supra note 7, pp. 440-442. See supra note 15. UN Leg . Series STILEG/SER B/16, 1974, No. 23, p. 563. (1972) ll/lM 251. Third Antarctic Consultative Meeting, Polar Record, Vol. II, No. 70, 1962, pp. 73-78 . The measures were to apply to any member, at any stage of the life cycle of any species belonging to the class mammalia indigenous to the Antarctic or occurring there through natural agencies of dispersal, except whales. Polar Record, Vol. XII, No. 79, 1965, pp. 453-472. 402 UNTS 71.

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of fishing on the high seas" and that there was no global regime governing sealing, it was considered necessary to conclude a separate treaty. Although Antarctic seals have not been exploited, the Convention provides regulatory measures based on a permit system. No enforcement measures were included in the regulatory measures; however, the parties can adopt additional measures, including an effective system of control by inspection." While no agreements specifically concerned with anadromous species were concluded during the period preceding UNCLOS III, the International Convention for High Seas Fisheries of the North Pacific," adopted in 1952, was used by Canada and the United States to address bycatches of salmon in the Japanese and Korean driftnet fishery for squid and targeted salmon fisheries by Japan, also involving the use of driftnets. Given the above situation, it must be concluded that the 1958 Fisheries Convention and the new global oceans regime agreed upon at UNCLOS I had little direct impact on the nascent ad hoc regimes concerning the conservation of marine mammals and anadromous species. The prevailing situation was that the larger part of these highly migratory species could still be exploited, with little concern for their special characteristics and needs and none for the protection of their habitats, in the high seas beyond the narrow territorial sea. This situation clearly came to the fore at the United Nations Conference on the Human Environment (UNCHE), held in Stockholm in 1972. The Declaration of Principles" adopted at the UNCHE (UNCHE Declaration of Principles) emphasized that "the natural resources of the earth, including (its) fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations . .. "39 (emphasis added) and that "man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat,

35 Note that sealing, like whaling, is generally not, in terms of law, distinguished

from fishing. 36 Arts. 3(k) and 6(1). 37 205 VNTS 65. Entered into force June 12, 1953. The treaty covered all fisheries

and focussed in particular on halibut, herring and salmon. It provided for the application of the abstention principle if certain criteria were met 38 Report of the United Nations Conference on the Human Environment (UNCHE Report), Stockholm, June 5-16,1972, UN Doc . A1CONF. 28/14/Rev.l, pp. 16-17 . 39 Principle 2, UNCHE Declaration of Principles.

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which are now gravely imperilled by a combination of adverse factors ... .'>40 It thus was emphasized that interests that extend beyond those of contemporary states were involved and that both species and their habitat require protection. While the UNCHE Declaration of Principles did not specify concrete measures, the Recommendations that also were adopted at the Conference did contain more specific measures. The Recommendations adopted and relevant to the topic of this chapter concerned: a ten-year moratorium on commercial whaling to permit their recovery," the need to adopt instruments to protect species inhabiting international waters or migrating from one territory to another/" the need to strengthen the IWC,43 the need to take steps to support regulatory measures adopted by international fisheries organizations" and the need to rationalize decisionmaking procedures in international fisheries organizations to avoid a lowestcommon-denominator effect brought about by the unanimity requirement. 45 It is also important to remember that the United Nations Environment Programme (UNEP) was established to carry out the decisions taken at the UNCHE and that it adopted the oceans and aquatic resources as one of its priority areas. Maurice Strong, the first Director, at that time made a point, which is equally valid today with respect to the implementation of the LOS Convention, the Compliance Agreement and the Straddling and Highly Migratory Fish Stocks Agreement, that: UNEP should act as a "complexifier," stressing the complexities of the management problems, the interdisciplinary relationships and cross-sectoral tasks, including "the eco-regional nature of the problems.?" This, as we shall see, is how the task of effective conser-

40 41

42 43 44

4S 46

Principle 4, UNCHE Declaration of Principles . Recommendation 33, UNCHE , Declaration of Principles. The UNCHE Report, paras . 190-191, records that Japan voted against this resolution stating that its scientists advised that such a dramatic gesture was unnecessary. In the Plenary Session it was carried by a vote of 53 in favor, none against and 12 abstentions, pp. 16-17. Recommendation 32, UNCHE . Recommendation 33, UNCHE . Recommendation 46, UNCHE . Id. UNEP Governing Council, "Introductory Statement by the Executive Director," April 154, 1975, UNEP/GCIL .27, para. 10; see also "The Proposed Environment Programme: note by the Excutive Director, UNEP/GC/3/11, February 1975, pp.

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vation and management of marine mammals and anadromous species is viewed today. Both old and new agreements, whether at the global, regional or sub-regional level, address conservation and management in terms of the complexity of an ecological, cross-linked approach. This approach was consolidated in Agenda 21, adopted at the United Nations Conference on Environment and Development (UNCED) in 1992.47 The results of the UNCHE had a considerable impact on the negotiations at UNCLOS III, which commenced in 1973, and on the IWC. In 1974, at its Twenty-Fourth Meeting," the IWC rejected the moratorium called for by the UNCHE. Instead, it adopted a series of new measures. Most noteworthy among these was the replacement of the notorious "Blue Whale Unit'>49 method of establishing an overall quota by species-specific quotas. This development set the IWC on a path that for the next twenty years encouraged its members to take more account of establishing optimum population objectives than of industrial demands. In the following years the IWC adopted New Management Procedures, which recognized both the interests of consumers and conservationists and provided that management of whales should not be based only on the MSY concept, but should include factors based on the total weight of whales and interactions among species in the marine ecosystem." Ultimately this system also proved unworkable, which resulted in the adoption of the moratorium in 1982, in effect since the 1985 /86 whaling season." Several attempts were made to revise the ICRW during

1-4. 47 See text at infra note 77 and further . th 48 IWC 24 Report, Chairman's Report .

The Blue Whale Unit was a management tool whereby values were allocated to the larger whales on the basis of the number of barrels of oil that each produced . It was calculated that one blue whale produced 110 barrels of oil, whereas it took 3 humpback or 5 sei whales to produce the same amount. For further details see Birnie, supra note 7, p. 120 and footnote 50. th 50 IWC 26 Report. For further information see Birnie, supra note 7, pp. 442-450 and 453-454. th 51 The decision was taken at the 34 Meeting ofthe IWC in 1982 to suspend commercial whaling with effect from 1985-86 by setting qoutas for all species of commercially hunted whales at zero. For details see Birnie, supra note 7, pp. 614-619 . 49

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the late 1970s and early 1980s.52 All these attempts failed due to disagreements over, in particular, the inclusion of conservation interests and the ecological value of whales, the geographical scope of the Convention (should it apply to exclusive economic zones), the material scope of the Convention (should it include small cetaceans) and the desirability of providing for an international inspection system. Thus while the results of the UNCHE influenced the IWC in the sense that they created a more environmentally friendly situation in the IWC, they proved insufficient to overcome contentious difficulties. Hopes for further improvements were then placed on the negotiations at UNCLOS III.

THE LOS CONVENTION During the negotiation of the regime for the exclusive economic zone in the UN Sea-Bed Committee and at UNCLOS III, many states considered that the regime proposed for the generality of fisheries did not afford the degree of special protection necessary for the conservation of marine mammals and anadromous and catadromous species, especially cetaceans. These considerations were based on the problems within the whaling convention and on the paucity and limitations of conventions relating to sealing and salmon fishing. At UNCLOS III, the supporters of a more conservatory approach to whaling pressed, inter alia, for the exemption of marine mammals from the requirement of optimum utilization as laid down in article 62 of the LOS Convention for fisheries. This effort resulted in the inclusion of article 65 in the LOS Convention.

52 For details of the 1978 Copenhagen meeting see Birnie, supra note 7, pp. 561-

681; for details of the 1979 Estoril meeting, p. 568 and of the Reykjavik meeting, pp. 568-569. Also see the Draft Revision of the Text of the ICRW 1946, as accepted as an agreed negotiating text by the Commission at its 29 th Meeting, June 1977 new, January 1978); Revision of the Text - as adopted at the Preparatory Meeting, Copenhagen, July 4-7, 1978 (rcw. January 1979).

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Marine mammals Article 64, on highly migratory species, applies to species included in Annex I of the LOS Convention." That list includes 7 families of cetaceans that are also covered by articles 65 and 120, on marine mammals in the exclusive economic zone and high seas, respectively. Article 65 takes priority over article 64 as the former provides the lex specialis and the latter the lex generalis. 54 Articles 65 55 and 12056 originated in a Maltese proposal made in the SeaBed Committee that called for the development of conservation for "sea mammals." This idea was followed up by the United States, supported by Canada, at UNCLOS III. 57 The resulting texts, although exempting marine mammals from the requirement of optimum utilization both in exclusive economic zones and on the high seas, contain a number of ambiguities. They leave both the "appropriateness" and the "competence" of the international organizations concerned to be determined and do not identify any organization as either the sole or most appropriate body for furthering their stated purposes. The vague phrase "work through" does not indicate the degree or means of collaboration required, although the absence of specific reference to "exploitation" and the emphasis on conservation allows for adoption of moratoria. Means of enforcement are not referred to in the relevant article, although various means are referred to in article 62. It is left to coastal states and the appropriate organizations to determine and apply the enforcement

53

54

55

56

57

For the evolution of article 64, LOS Convention, see M. Nordquist (ed.), United Nations Convention on the Law of the Sea: A Commentary, 5 vols., Kluwer, 1993, Vol. II, pp. 648-658 . u .. p. 654. The text of article 65 reads as follows: 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 exploitation of marine mammals more strictly than provided for in this Part. States shall co-operate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management and study . The text of article 120, LOS Convention reads as follows: Article 65 also applies to the conservation and management of marine mammals in the high seas. Nordquist, supra note 53, pp. 660-663

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measures required in exclusive economic zones and for flag states and such organizations to do so for the high seas.

Anadromous and catadromous species The lack of specific provisions for these species in the 1958 Geneva Conventions and the paucity of regional conventions despite their vulnerability to over-exploitation and habitat spoliation, led UNCLOS III to establish, "a regime, which, coupled with the various conservation Principles and recommendations adopted by the UNCHE, in contrast to the other provisions of the treaty, reflect in considerable measure that life history and behavior of the species, as well as the conditions under which sensible management can occur.?" The particularities of the life styles of these species have already been examined above; the nature of articles 66 and 67 as well as the compromises that they represent are examined below. Anadromous species Article 66 has been described as "a complex article" that "represents an attempt to accommodate the diverse interests of all States concerned with conservation, harvesting and management of anadromous stocks.,,59 Problems that had to be resolved included deciding which states were "concerned" in these problems; was it: (i) solely the coastal state of origin, or were other states to be included, e.g., (ii) land-locked states with rivers of origin and states which were fishing or had traditionally fished the anadromous species within the exclusive economic zones, which UNCLOS III aimed to establish (iii) states fishing the species on the high seas, or only those states fishing them in high seas areas bordering the outer limits of the exclusive economic zone? Was the state of origin to be the sole determiner of the Total Allowable Catch (TAC) or had the interests of all states "concerned" to be taken into account or only the interests of those states through whose waters the species migrates? Should regional organizations be established in which all "concerned" states could participate and through which TACs and regulations could be negotiated? How would regulations,

58 Id., p. 668. For various drafts that led to this regime see id., pp. 662-667. 59 p.678.

u..

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by whomsoever adopted, be enforced: unilaterally by the state of origin throughout the whole migratory range or only in its exclusive economic zone, with only flag states enforcing regulations on the high seas, whether or not agreed through international bodies? Draft proposals based on various of the above-mentioned proposals were put forward both in the Sea-Bed Committee and at UNCLOS III. 60 Eventually a compromise began to emerge that took account of all these views. Consensus grew round recognition of the primary interest of the state of origin, i.e., not just the coastal state of origin, and its regulatory and enforcement powers within all waters landward of the outer limits of its exclusive economic zone; with the state of origin permitted to establish the TAC, after consultation with other concerned states and subject to various conditions. Such conditions include the following. Any fisheries would be carried out exclusively within the waters specified above unless a ban on high seas activities would cause "economic dislocation" (undefined) in other states. Consultation with other states must be maintained with a view to agreeing the conditions for fishing, giving due regard to both conservation requirements and the needs of the state of origin in relation to the sea stock. Enforcement of regulations beyond the exclusive economic zone would be by agreement with all concerned states; arrangements for implementation were to be made, where appropriate, through regional organizations."

60 61

For the drafting history of article 66, LOS Convention, see id., pp. 680-ff. The text of article 66, LOS Convention reads as follows: 1. States in whose rivers anadromous stocks originate have the primary interest and responsibility for such stocks. 2. The State of origin of anadromous stocks shall ensure their conservation by the establishment of appropriate regulatory measures for fishing in all waters landward of the outer limits of its exclusive economic zone and for fishing provided for in paragraph 3(b). The State of origin may, after consultations with other States referred to in paragraphs 3 and 4 fishing these stocks, establish total allowable catches for stocks originating in its rivers. (a) Fisheries for anadromous stocks shall be conducted only in waters landward of the outer limits of exclusive economic zones , except in cases where this provision would result in economic dislocation for a State other than the State of origin . With respect to such fishing beyond the outer limits of the exclusive economic zones , States concerned shall maintain consultations with a view to achieving agreement on terms and conditions of such fishing giving due regard to the conservation requirements and the needs of the State or origin in respect

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For our purposes, it is particularly important to note that whilst within its coastal waters the state of origin has sole powers of enforcement, beyond the outer limits of the exclusive economic zone enforcement is left to agreement between the state of origin and all the other states concerned. Fishing for these species on the high seas necessitates reconciliation of the authority of the state of origin and the rights of other states fishing in that area. Article 11662 subjects the right to fish on the high seas to "the rights and duties" as well as the interest of coastal states provided for, inter alia, in article 63 (2) and articles 64-67, viz . to the primary interest of the state of origin. The successful implementation of article 66 depends very much on cooperation among the concerned states, the adoption of strict conservatory measures, strictly enforced, and the extent to which "appropriate" regional organizations are established to provide the forum for this. Both the role of such regional organizations and the influence on them of the Straddling and Highly Migratory Fish Stocks Agreement, the Compliance Agreement and the Code of Conduct are important in this respect, especially in relation to their effect on the behavior of "third states."

of these stocks. (b) The state of origin shall co-operate in minimizing economic dislocation in such other States fishing these stocks, taking into account the normal catch and the mode of operations of such States, and all the areas in which such fishing has occurred. (c) States referred to in subparagraph (b), participating by agreement with the State of origin in measures to renew anadromous stocks, particularly by expenditures for that purpose, shall be given special consideration by the state of origin in the harvesting of stocks originating in its rivers. (d) Enforcement of regulations regarding anadromous stocks beyond the exclusive economic zone shall be by agreement between the State of origin and the other States concerned. 4. In cases where anadromous stocks migrate into or through the waters landward of the outer limits of the exclusive economic zone of a State other than the State of origin, such State shall co-operate with the State of origin with regard to the conservation and management of such stocks. 5. The State of origin of anadromous stocks and other States fishing these stocks shall make arrangements for the implementation of the provisions of this article, where appropriate, through regional organizations. 62 In Part VII (High Seas) , LOS Convention.

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Catadromous species Conservation of catadromous species attracted much less attention at UNCLOS III than did the conservation of anadromous species." The main elements of the agreed regime are that harvesting is to occur only landward of the outer limit of the exclusive economic zone, that the state that has jurisdiction over these waters has the main management responsibility, and that if the species migrates through the waters of several states these states shall manage the species through agreement. 64

POST-UNCLOS III SALMON CONVENTIONS Following the adoption of the LOS Convention, pending its entry into force and in the light of article 66, steps were taken to establish new agreements and establish new institutions as envisaged by article 66. These efforts eventually led to the adoption of multilateral conventions for both the North Pacific and the North Atlantic oceans."

63 Nordquist, supra note 53, p. 681, at para. 67.2. 64 The text of article 67 reads as follows :

1. A coastal State in whose waters catadromous species spend the greater part of their life cycle shall have responsibility for the management of these species and shall ensure the ingress and egress of migrating fish. 2. Harvesting of catadromous species shall be conducted only in waters landward of the outer limits of exclusive economic zones. When conducted in exclusive economic zones , harvesting shall be subject to this article and the other provisions of this Convention concerning fishing in these zones. 3. In cases where catadromous fish migrate through the exclusive economic zone of another State, whether as juvenile or maturing fish, the management, including harvesting, of fish shall be regulated by agreement between the State mentioned in paragraph 1 and the other State concerned. Such agreement shall ensure the rational management of the species and take into account the responsibility of the State mentioned in paragraph 1 for the maintenance of these species . 65 For a full account and analysis of the development of the post-UNCLOS III regime for anadromous species see W.T. Burke, The New International Law ofFisheries, Clarendon Press, 1994, pp. 151-198 and the works cited therein , esp . at p. 155, note 5.

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In the North Pacific, during the 1980s, new or amended agreements were concluded between the states of origin and Japan, the major distant water fishing state involved in salmon catches . In the western North Pacific, Japan and the former Soviet Union concluded the Agreement Concerning Co-operation in the Field of Fisheries on May 12, 1985.66 It was revised in 1987. Similarly, in the Eastern North Pacific," the North Pacific Fisheries Convention was amended in 1986 to reduce Japanese interceptions of salmon of North American origin. The 1985 agreement between Japan and the former Soviet Union is particularly relevant because of its provision on boarding, inspection and seizure of Japanese vessels on the high seas by authorized joint officials; detailed and regular reports (daily or weekly depending on the type of vessel concerned) must be submitted by Japan to the Soviet Union and observers of the latter state taken on board different types of Japanese vessels, including, from 1987, fishery patrol boats. Japan thus accepted that it could not insist that enforcement was solely the province of the flag state. As the Soviet Union and the United States became less tolerant of high seas salmon fishing they proposed the adoption of the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean (North Pacific Salmon Convention), which was concluded in February 11, 1992.68 This Convention involves Japan, Russia, the United States and also Canada. The North Pacific Salmon Convention prohibits all direct taking of anadromous species and the retention on board of incidental takings of such species, listed in its Annex, in the Convention area."

For an English translation of the treaty see (1986) 29 Japanese Annual ofInternational Law , p. 283, referred to in Burke, id., p. 173, note 63. 67 For details see id., pp. 175-183. 68 Entered into force February 21, 1993. Text in The Marine Mammal Commission Compendium ofSelected Treaties, International Agreements, and Other Relevant Documents on Marine Resources, Wildlife and the Environment (MMC Compendium), 3 volumes, 1994, Vol. II, pp. 1360-1368. See also Rules of Procedure and Financial Rules, North Pacific Anadromous Fish Commission. 69 Art. III, North Pacific Salmon Convention. The Convention area is defined as "the waters of the North Pacific Ocean and its adjacent seas, north of 33 degrees North latitude beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured." 66

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In evaluating the regime for the conservation of anadromous stocks in the light of current developments in international fisheries law and policy the enforcement provisions of the North Pacific Salmon Convention are of particular interest. Under article V of the Convention any party can board and inspect fishing vessels of other parties, which can reasonably be believed to be engaged in fishing directly for salmon or incidentally taking them. An official of another party can also seize a person or vessel if that official has reasonable grounds to believe that such a person or vessel is engaged in operations in violation of the Convention. The offending party must be notified and the person or vessel delivered "as promptly as possible" to authorized officials of the offending party. As is common in all fisheries treaties, only the vessel's flag state can try and penalize the offender; any evidence must be promptly furnished to it, and taken into account and used by it, as appropriate. Penalties must be commensurate with the seriousness of the infractions and any proposals made by the North Pacific Commission (NPC).70

While parties must co-operate in providing information relating to violation and enforcement action concerning vessels flying their flags, the "Achilles heel" of all fisheries conventions is firmly embedded in the North Pacific Salmon Convention: in relation to non-state parties and entities, members are required merely to "invite their attention" to such activities of their nationals, residents and vessels as could "adversely affect conservation" in order to encourage non-parties to adopt laws and regulations consistent with the Convention and to cooperate in meeting its objectives." Parties, however, are required to cooperate in action to prevent non-parties engaging in directed fishing for these species by their nationals, residents and vessels and in minimization of incidental takings, as well as encouraging them to adopt appropriate laws to attain these aims. Finally, Parties must take measures to prevent their own vessels from transferring their registration for the purpose of avoiding compliance with the North Pacific Salmon Convention. Clearly these provisions present a considerable advance upon previous agreements, even before the conclusion of the Compliance Agreement and the Straddling and Highly Migratory Fish Stocks Agreement.

70

Established by article

IX

(3), North Pacific Salmon Convention.

71 Art. lV, North Pacific Salmon Convention .

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In addition to the above agreements, Canada and the us in 1985 concluded the Treaty Concerning Pacific Salmon." It replaced the Convention for the Protection, Preservation and Extension of Sockeye Salmon Fisheries of the Fraser River System, concluded in 1930.73 In the 1986 agreement the two states seek to equitably allocate to each party the benefits of fishing equivalent to the estimated production from each of their rivers. In the North Atlantic states adopted the Convention for the Conservation of Salmon in the North Atlantic (North Atlantic Salmon Convention) in 1982. It established the North Atlantic Salmon Conservation Organization (NAsca). The Convention prohibits salmon fisheries in all areas outside the twelve-mile zones, except in the West Greenland area, where salmon may be caught out to 40 miles, and in the fisheries jurisdiction zone of the Faroe Islands." The management structure of NAsca consists of three regional commission for North America (Canada and the United States), West Greenland (Canada, Denmark (for Faroe Islands and Greenland), the European Union and the United States) and the North-East Atlantic (the European Union, Finland, Iceland, Norway , Russian Federation and Sweden). In contrast to the North Pacific Salmon Convention , the North Atlantic Salmon Convention leaves enforcement to the national means of each party. It must ensure that the necessary action is taken, including the imposition of adequate penalties, both to make the provisions effective and implement any binding measures. The North Pacific Salmon Convention does not specifically address the problem of third states, although the problem has arisen in practice, as we shall see. Major changes have been introduced into the Salmon Convention which were adopted in the wake of the LOS Convention. These changes reflect, inter alia, the principles adopted at the United Nations Conference on Environment and Development (UNCED), which will be outlined below.

Burke, supra note 65, pp. 181-183, citing J.M. Jenson, "The United StatesCanada Pacific Salmon Interception Treaty: An Historical and Legal Overview," (1986) 47 Environmental Law , pp. 363-422. 73 184 UVTS 305 and Protocol of 1956, 190 UNTS 104. For further information see Burke, supra note 65, pp. 159-160 and 181-183 . 74 Art. 2(1), North Atlantic Salmon Convention.

72

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THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT

Neither the UNHCE nor the LOS Convention laid down principles or rules that integrated the exploitation of marine fisheries resources and the protection of the marine environment. Reconciliation of environmental and developmental guidelines was pursued through the subsequent development of codes and guidelines in such international forums as the United Nations, UNEP and IUCN. However, it was not until the convening OfUNCED, in 1992, that the principles and actions required to effect the transition to sustainable development were identified and included in the Rio Declaration and Agenda 21. 75 Chapter 1776 of Agenda 21 is of particular relevance for the sustainable use of the marine environment, including marine fishing activities." Principle 17 of the Rio Declaration, which calls for widespread application of the "precautionary approach", is of particular relevance to fisheries, despite the limitations of its formulation, and the uncertainties involved in its application." Although Agenda 21 is a programmatic, non-binding document, its Chapter 17 recognizes that the marine environment forms an integrated whole and that the LOS Convention sets forth rights and obligations of states and provides the international basis on which to pursue the protection and sus-

75 Texts in S. P. Johnson, The Earth Summit, Graham & TrotmanIMartinus Nijhoff,

1993, (reprinted in 1995), pp. 117-124 and 307-332 respectively. 76 Entitled "Protection of the Oceans, All Kinds of Seas Including Enclosed and

Semi-Enclosed Seas and the Protection , Rational Uses and Development of their Living Resources." 77 Texts in S.P. Johnson, The Earth Summit, Graham & TrotmanlMartinus Nijhoff, 1993 (reprinted 1995), at pp. 117-124 and 307-322 respectively. See also U. Beyerlin, "New Developments in the Protection of the Marine Environment: Potential Effects of the Rio Process, (1995) 55 ZeitschriftfUr Offentliches Recht und Yolkerrecht, pp. 544-579 . 78 Specifically on the precautionary approach see Freestone, supra Chapter 11. Also see G. Hewison, ''The Precautionary Approach to Fisheries Management," (1996) 11 The International Journal ofMarine and Coastal Law, pp. 301-332; J.S . Gray and J.M. Bewers , ''Towards a Scientific Definition of the Precautionary Principle," (1996) 32 Marine Pollution Bulletin, pp. 768-772; J. Mc Donald, "Appreciating the Precautionary Principle as an Ethical Evolution in Ocean Management," (1995) 26 Ocean Development and International Law, pp. 255-286.

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tainable development of the marine and coastal environment and its resources. This "requires new approaches .... at the national, sub-regional and global levels, approaches that are integrated in content, and are precautionary and anticipatory in ambit.;"(emphasis added)." This approach is reflected in all the 6 program areas into which this chapter is divided. Program areas C and D, apply to, respectively , sustainable use and conservation of marine living resources of the high seas and to those under national jurisdiction." Many of the issues considered in these two program areas were already being dealt with in relevant international organizations, such as UNEP and FAO. However, Agenda 21 emphasizes their basis in the LOS Convention and thus infuses the element of sustainability into interpretation of the LOS Convention. Agenda 21 does so by requiring regulation of use so as to limit it to sustainable use and 'by requiring that such regulation incorporate the integrated, precautionary and anticipatory approach. Whilst the relevant articles of the LOS Convention and the specific treaties on marine mammal and anadromous species are capable of being implemented in this context, the caution and ambiguity underlying many of their provisions could produce an opposite result if not interpreted and applied in the light of Chapter 17. Program areas C and D draw attention to the inadequacies of current fisheries management and enforcement policies, identify the reasons for the inadequacies and call for better cooperation, especially on highly migratory and straddling stocks. States commit themselves to conservation, sustainable use, and restoration of stocks to levels producing qualified MSY. Neither program area specifically refers to anadromous species though they clearly fall within the scope of "living resources", but both do refer specifically to marine mammals. Paragraph 17.47, in the section relating to high seas, repeats article 65 of the LOS Convention verbatim in relation to marine mammals. However, unlike the LOS Convention, Agenda 21 also recognizes, in paragraph 17.62(a), the ambiguous "responsibility" of the IWC for conservation and management of "whale" (not cetacean) stocks and the regulation of whaling pursuant to the ICRW. It then merely goes on, in section (b), to recognize the IWC 'S "work" on "studies" of "large whales in particular, as well as other

79

Para. 17.1, Agenda 21.

80 For a full discusion of these provisions and their background see P. W. Birnie, " UNCED

and Marine Mammals," (1993) 17 Marine Policy, pp. 501-514.

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cetaceans" and the work of other organizations, such as the Inter-American Tropical Tuna Convention (IATIc) and the Agreement on the Conservation of Small Cetaceans of the Baltic and North Sea (ASCOBANS).81 This is a constructively ambiguous response to the deadlocked debate within the IWC concerning whether it has, or could have, sole competence for all cetaceans; it allows the debate to continue there. The controversial establishment by Denmark (for the Faroe Islands and Greenland), Iceland, Japan and Norway of a regional North Atlantic Marine Mammal Conservation Organisation (NAMMCO)82 is not mentioned, probably because it had not been formally concluded at that date and was strongly opposed by NGOs. Program area D repeats the above provisions verbatim, in all their ambiguity, in paragraphs 17.76 and 17.90 for marine mammals within national jurisdiction. Agenda 21 made no specific reference to the need for improved enforcement of the ICRW or anadromous species conventions, but called for the convening by the United Nations of a conference to promote effective implementation of the provisions of the LOS Convention on highly migratory species and straddling fish stocks." Agenda 21 also called for states to take effective action, consistent with international law, to monitor and control flag vessels on the high seas in order to ensure compliance with internationally agreed conservation and management rules and deter reflagging of vessels by their nationals as a means of avoiding compliance with conservation rules for high seas fishing ."

81 For further information see infra note 93 and the text there. 82 See infra note 89, and the text there. 83 Para. 17.49, Agenda 21. This call resulted in the convening of the United

Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks and the adoption of the Straddling and Highly Migratory Fish Stocks Agreement. 84 Para. 17.52, Agenda 21. This call resulted in the FAO Council endorsing a recommendation to host negotiations towards an international agreement on reflagging and the adoption of the Compliance Agreement.

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POST-UNCED DEVELOPMENTS INMARINE MAMMAL AND ANADROMOUS SPECIES CONSERVATION

Marine mammals The Post-UNCED period has been less remarkable in its effect on the ICRW and the great whales than it has been for facilitating the emergence of new conventions, which some regard as challenging the centrality of the ICRW as the appropriate body for the required cooperation on the conservation of marine mammals, as required by article 65 of the LOS Convention. The new conventions concluded during the post-UNCED period include the agreement establishing the North Atlantic Marine Mammal Conservation Organization (NAMMCO Agreement)," the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS)86 and the Agreement on the Conservation of Cetaceans of the Baltic Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS).87 The IWC'S 44 th Meeting took place very shortly after UNCED and was marked by Iceland's withdrawal from the Commission, the non-completion of the Revised Management Procedures, the absence of any commercial whaling and little or no progress on other leading issues. No agreement was reached on a French proposal to designate the Southern Hemisphere south of 40 degrees South Latitude as a whale sanctuary; the IWC'S competence with respect to small cetaceans continued to be challenged. Though an 8th edition of the IWC'S Register of Whaling Vessels was produced, Norway confirmed that it would not provide information on its vessels because of possible terrorist action . The pattern for the post-UNCED discussion, however, was set by the 45 th Meeting. Contrary to the majority view, Japan, Norway and Denmark (for the Faroe Islands and Greenland) continued to contend that NAMMCO was an appropriate organization under article 65 of the LOS Convention, as reflected in the instruments adopted at UNCED, for cooperation on all marine mammals in the North Atlantic region. Open-ended discussion on international inspection and observer schemes continued, given that the IWC had

85 See infra note 89, and the text there. 86 See infra note 93 and the text there. 87

See infra note 95 and the text there.

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decided that before whaling could be resumed not only would the Revised Management Procedure have to be in force but that an international observer scheme must be in place and more humane killing methods be used. Some states put forward detailed proposals requiring that international observers and inspectors be carried on all vessels; but some including Norway, which had resumed minke whaling in its exclusive economic zone, insisted that only national inspectors could be carried on the small coastal vessels involved in such whaling activities. Prolonged discussion on this topic has taken place . In 1994 the Southern Ocean was declared a sanctuary area as a precautionary measure, however, Japan, having lodged a formal objection against the decision , is not bound by it. The Scientific Committee, meanwhile, has been paying increasing attention to possible effects of environmental change on the whale's marine habitat following ad hoc special meetings on pollution and climate change , while reviewing the status of various small cetacean stocks on an ad hoc basis. Of the three new conventions that address conservation of cetaceans, NAMMCO emphasizes sustainable use of marine mammals, while ASCOBANS and ACCOBAMS are limited to the conservation of small cetaceans and cetaceans, respectively. The aim of the latter two agreements can be explained by the fact that they are Range State Agreements under the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals." The three agreements also differ with respect to the types of marine mammals covered. The NAMMCO Agreement was concluded on April 9, 1992.89 Its current parties are Faroe Islands, Greenland, Iceland and Norway . Its meetings are also attended by observers from Canada, Denmark, Japan and Russia. The

88 (1980) 19 lIM 15. 89 Agreement on Co-operation in Research, Conservation and Management of

Marine Mammals in the North Atlantic, 1992, MMC Compendium, supra note 68, Vol. II, pp. 1618-1620. For further information see the series NAMMCO NEWS, NAMMCO Annual Reports and other publications that may be obtained from the secretariat, Sondro Tollbodygate 9, University of Tromse, 9037 Tromso, Norway. For general discussion see: P.W. Birnie, "Small Cetaceans and the International Whaling Commission," (1997) 10 Georgetown International Environmental Law Review, pp. 1-27; W.C. Bums, The International Whaling Commission and the Regulation of Small Cetaceans: The Critical Agenda for the 19990's, International Wildlife Law Occasional Paper Series, No.5 , 1994

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Convention consists of nine articles, and provides a regional basis for cooperation with respect to all species of cetaceans and pinnipeds. Even though it can propose conservation measures, NAMMCO has not done so yet and, therefore, is not a regulatory body. The main focus of the NAMMCO Agreement, as expressed in its preamble, is "the rational management, conservation and optimum utilisation of the living resources of the sea." The Preamble also asserts the relevance of regional bodies in ensuring its objectives "with due regard to the needs of coastal communities and indigenous peoples." NAMMCO supports the LOS Convention and UNCED outcomes but stresses its members support for developmental utilization of living resources and adopts an interpretation of the provisions of these instruments that emphasizes this aspect, rather than the conservation aims reflected in articles 65 and 120 of the LOS Convention. At present NAMMCO appears to be concentrating its efforts on research related to marine mammals, their habitats and the effects of pollution on marine mammals, rather than adopting a regulatory role. It has established a Working Group on Inspection and Observation, which in 1996 produced draft "Provisions for the Joint NAMMCO Control Scheme for the Hunting of Marine Mammals."? This scheme identifies (i) common elements for national inspection schemes for coastal whaling in NAMMCO Members and (ii) an international observation scheme related to the hunting of all marine mammals, participation in which is restricted to NAMMCO Members." This simple Scheme aims to establish a minimum standard of common elements in the national inspection schemes ofNAMMCO member states, both for "near coast" and "off coast" whaling.f National authorities, however, retain discretion to determine the extent of inspection within their own jurisdiction. It seems unlikely that the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement will have a direct effect on NAMMCO's activities, except in so far as they contribute to a more responsible international attitude to enfor-

90 91 92

NAMMCO Annual Report 1996, pp. 69-76, for discussion see pp. 28-29. The intention was expressed that the scheme (or parts thereof) would be introduced in 1997. Defined respectivelyas "whaling from vessels which bring this catch fresh to land" and "whaling where the whale is flensed on board vessels which can be equipped to handle and store meat and blubber .. . in connectionwith transport! storage," rather than in spatial terms (exclusive economic zonelhigh seas).

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cement. Unlike the annual reports of the anadromous species conventions discussed below, no mention has yet been made in NAMMCO publications of these new agreements. This also may be related to the fact that NAMMCO is not a regulatory body. ASCOBANS93 covers only small cetaceans. Current parties to the Agreement are Belgium, Denmark, Germany, the Netherlands, Poland, Sweden and the United Kingdom. A further seven Range States and the European Community are considering adherence. Norway participates in ASCOBANS meeting but has stated that it will not become a party to it because of its desire to maintain a consistent national policy on marine mammals. It does submit national reports alongside those of the parties." ASCOBANS aims to improve the conservation status of small cetaceans in the Baltic and North Sea. To that end each party undertakes to apply within its jurisdictionallirnits conservation measures contained in an Annex to the Agreement. Such measures will cover habitat conservation and management, surveys, research, use of bycatches and stranded specimens and legislation. Parties must try to establish regulations prohibiting the intentional taking and killing of small cetaceans. ASCOBANS now aims to restore populations to 80% of their carrying capacity and to reduce bycatch to less than 2% of stocks. It has adopted the precautionary approach, focused study on the need for research on the influence of pollutants on these species, their stock status and threats thereto and the actions required , and recommended work leading to possible establishment of protected areas and avoidance of disturbance. ACCOBAMS 95 covers all cetaceans. Its aims are similar to those of ASCOBANS but it is too early to say how effectively ACCOBAMS will address its task, as no reports on its work are yet available. Given that ASCOBANS and ACCOBAMS do not provide for the direct taking of the species covered by them, the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement are unlikely to be of direct relevance to the Agreements. However, both these multilateral agree-

93 W.E . Burhenne (00.), International Environmental Law; Multilateral Treaties,

Kluwer Law International, p. 992:21. MMC Compendium, supra 68, Vol. II, pp. 1612-1617 . 94 Annual Compilation of National Reports, September 26, 1996. 95 Burhenne, supra note 93, p. 979:55/C.

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ments and the Code of Conduct are likely to be relevant for the implementation of bycatch regulations.

Anadromous species The North Pacific Salmon Convention At its first meeting, in February 1993, the North Pacific Anadromous Fish Commission (NPAFC)96 considered that article 66 of the LOS Convention had become part of customary intemationallaw and was therefore binding on all states." At the same meeting the parties noted with approval the work of the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, but they also noted that that Conference would not have to deal with anadromous species largely because of the work already being carried out within the framework of the North Pacific Salmon Convention and NASCO. 98 The manner in which the Convention's ban on high seas fishing was to be enforced was the subject of considerable debate. Canada proposed a Protocol for Non-Contracting Parties to the Convention aimed at prohibiting directed fishing for salmon, minimizing incidental take and prohibiting trafficking in and the keeping of salmon caught in violation of the Convention." Japan considered this premature and, moreover, that it could not legally accept two agreements with different parties but aimed at a single conservation purpose. It also found that such an approach would deter nonparties from joining the North Pacific Salmon Convention.'?" Instead a Committee for Enforcement, Finance and Administration (CEFA) was established.'?' It was charged with, among other things , developing strategies and plans to enhance compliance with the Convention by both vessels from parties

96

Established by the North Pacific Salmon Convention .

97 NPAFC Annual Report 1993, pp. 3-4. 98 [d.

99 100

101

u; p. 7.

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and non-parties.'?' In the meantime unprecedented cooperation was taking place on enforcement. Vessels from non-parties with a salmon-fishing capability (i.e., large-scale driftnets) were apprehended and inspected and not seen again.f" Canada undertook surveillance flights over 750,000 sq. miles of the area relaying information to the parties' patrol vessels.'?' In addition, lists detailing former commercial driftnet vessels were shared among the parties and cooperation with NAsca was established. Enforcement issues continued to be on the agenda. In 1995 the NPAFC concluded that its efforts were effective: only six unauthorized vessels had been sighted in 1993 and none in 1994, there had been a steady decline in violations, which were nonetheless regarded as serious and to be subjected to maximum penalties and trafficking of Pacific Salmon also had declined.'?" However, given the relatively low level of patrols in a vast area, it remains unknown how many non-party vessels have been operating unseen. In addition, a large quantity of salmon is still taken within the 200 nautical mile zones of the parties. Moreover, in 1996, Canada indicated that its patrol time had been reduced. 106 In 1995 the parties also agreed that the Compliance Agreement "could serve as a mechanism to obligate non-members States to support and cooperate with the objectives and principles of the Convention."!" The parties also agreed that non-parties to the North Pacific Salmon Convention should be encouraged to become parties to the Compliance Agreement. The parties to the North Pacific Salmon Convention seem to be satisfied that their united front and co-operation in surveillance of the ban on high seas salmon fishing have been sufficient to deter all but the occasional violator. Given the size of the area, the relatively small parts of it that can be actively surveyed and the diminution of aerial observation, one is left to wonder how much unobserved violation occurs, thus making the approaches of the Compliance Convention, Straddling and Highly Migratory Fish Stocks Agreement and Code of Conduct more relevant ex post facto than might seem to be the case .

102 103 104

u.. p. 9 u.. pp. 25-26.

u .. p. 26.

105 NPAFC, Annual Report 106 NPAFC Annual Report 107 NPAFC Annual Report

1995, p.7. 1996, pp. 16-18. 1995, p. 7

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North Atlantic Salmon Conservation Organisation/DB

In the North Atlantic catches have continued to decrease probably due, among other reasons, to high seas fishing by vessels of non-parties, including re-registered vessels of parties, and degradation of habitats on land and at sea. The West Greenland quota, for example , was reduced from 1191 Mt. in 1983 to 159 Mt. in 1994. An international cooperative surveillance project was introduced since there was no surveillance for long periods of the year and thus no means of knowing whether illegal fishing was occurring. This involves improving long-term surveillance, use in future of information provided by the member states military services and ports, highlighting public awareness and instituting better communication of information. A project involving use of North East Atlantic Coast Guard resources to help identify the extent of the problem and methods of further improving long-term surveillance was also initiated with the possibility of using information from satellites and AWAC aircraft. NAsca also has attempted to operationalize the precautionary approach for fisheries management. Initially the principle was taken simply to imply that "the absence of adequate scientific information shall not be used as a reason for postponing or failing to take measures to safeguard species or their environment'l''" The precautionary principle is now viewed as a way of handling the increasingly complex fisheries management problems; its operational factors were identified at the 1998 NAsca meeting when it adopted the Agreement on Adoption of a Precautionary Approach. The Agreement on the Precautionary Approach sets out the precautionary approach in the form of 15 points. 110 Its purpose is "to protect and preserve the environment in which (salmon) lives," its parties should be more cautious when information is uncertain, unreliable and inadequate, absence of adequate scientific information "should not be used as a reason for postponing or failing to take conservation and management measures.'?" It requires consideration of "future generations" needs, avoidance of changes that "are

108 109 110 III

For a good summary,see Ten-Year Review ofthe Atlantic Salmon Conservation Organisation 1984-1994, NASca, undated, on which this sectionis largely based. /d., p. 6. CNL (98) 46. Id., para. 1.

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not potentially reversible," prior identification of "undesirable" outcomes and measures to avoid or correct them without delay, giving priority to conserving the resources' productive capacity where the likely impact of their use is uncertain and it provides that in meeting these requirements the burden of proof shall be "appropriately" placed."? Both NAsca itself and concerned parties should be involved."! They should apply the approach to "the entire range of their salmon conservation and management activities," initially in three areas - management of fisheries, formulation of advice and relevant research, and to introduction and transfers (including aquaculture impact and use of transgenic salmonj.l" The next step to be addressed should be the application of the precautionary approach to freshwater habitat issues and bycatch in other fisheries.!" The management objective established is to promote biodiversity and abundance of stocks by maintaining them above their conservation limit (the original management objective had been maintaining the spawning stock at the level that produces MSY), taking into account "best available information and socio-economic interests, inter alia, which require application in both areas regulated by NAsca and home waters."!" Its application to salmon management is established as "an integrated process" and the Agreement identifies seven requirements for this.!" Four possible management procedures are made explicit. 118 "Cautious" conservation and management measures are called for in case of new fisheries and the attention of non-contracting parties is drawn to significant bycatch by their vessels.!" Efforts to minimize unreported catches and improve estimations thereof are also called for. l 20 Various points to be addressed in the formulation of management advice and related research by ICES and others include: providing conservation limits and management targets, taking account of the repercussions of various forms of uncertainty, current conditions in freshwater, marine environmental habitat

Id., para. 2. Id., para. 3. 114 Id., para. 4. 115 Id., para. 5. 116 Id., para. 6. 117 Id., para. 7. 118 Id., para. 8. 119 Id., para. 9. 120 Id., para. 10. 112 113

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improvement and disease prevention.121 Various NAsca agreements relating to introductions and transfers, including aquaculture impacts and possible use of transgenic salmon, also are included in the Agreement. 122 The NAsca Agreement on the Precautionary Approach follows relevant provisions of the Straddling and Highly Migratory Fish Stocks Agreement, sometimes verbatim. However, it also adapts and expands upon the Agreement because of the particular problems and needs of salmon conservation. The Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement are also relevant to NAsca's measures for ensuring compliance with its prohibition of direct salmon catches on the high seas, bycatch regulations and non- or wrongful reporting of catches.

International Baltic Sea Fishery Commission For several years parties to the 1992 Helsinki Convention on the Protection of the Baltic Sea Area 123 (Helsinki Convention) had become increasingly concerned that wild salmon stocks had disappeared from some Baltic rivers and were depleted in others due to pollution, power plants, disease, extensive salmon farming and increased offshore fishing. Reductions of the TAC and periodic bans having failed to remedy the situation, the Helsinki Commission (HELCaM) called for the International Baltic Sea Fishery Commission (IBSFCy24 to recommend urgent measures to control the above problems .F' The IBSFC, having been appointed the lead agency to develop an Agenda 21 for the Baltic fishery sector, at an Extraordinary Session in 1997 established a permanent "surveillance group" to develop the IBSFC Salmon Action Plan 1997-2010.126 The Working Group established to carry out

u; para. 11. 122 u.. para. 12. 121

Burhenne, supra note 93, p. 992:28. Establishedby the 1973Conventionon Fishing and Conservationof the Living Resources in the Baltic Sea and the Belts, (1973) 12 ILM 1291. 125 Draft HELCOM Recommendation 18/xx,to be adoptedby HELCOM March 1997 having regard to Article 13(b) of the Helsinki Convention. It recommneds the submission of a report in 1998 on the actions taken. See Report of the IBSFC, infra note 126, pp. 26-27. 126 Report of the IBSFC, ExtraordinarySessionon IBSFC Salmon ActionPlan 19972010, Warsaw, February 25-26, 1997, pp. 8-9. The members of the IBSFC include Estonia, the European Union, Latvia, Lithuania, Poland, the Russian 123 124

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this task was instructed to recognize the IBSFC'S obligations to protect these fishery resources and manage them at sustainable levels, to receive advice from ICES, to co-operate with HELCOM and the FAO in the implementation of the Code of Conduct for Responsible Fisheries and the application of the precautionary approach. 127 The IBSFC's Resolution on its Action Plan 1997-2010 requires that the level of fishing should be maintained as high as possible and that only restrictions necessary to prevent extinction of wild populations, gradually increase their production and re-establish them in potential salmon rivers should be implemented; cultured salmon are not affected, though a precautionary approach should be adopted to minimize interactions with wild salmon to avoid any adverse effects such as genetic influence. As far as possible the fishing pattern should be moved from targeting a mix of wild and reared populations to a fishery targeting mainly reared populations. The Salmon Fishery Action Plan was adopted as part of the "Agenda 21 for the Baltic Region,'?" which was to be adopted by HELCOM in June 1998.

CONCLUSIONS The route from the historical legal regime of freedom of the largest possible area of high seas to the present goal of conservation and management of the marine environment and its living resources in coastal states' exclusive economic zones and exclusive fishing zones and in the diminished area of high seas on a responsible international basis in the interest of preserving their benefits for future generations has been a tortuous one, as this and other chapters in this volume have illustrated. However, progress also has been substantial. No state can now excuse irresponsible behavior on the grounds that there are neither signposts or charts to point the way to responsible management, as was the case in the nineteenth century, nor forums within which they can inter-relate with other states to cooperate in finding and operating solutions.

127 128

Federation and observers from ICES and HELCOM. Resolution VI, Agenda21 for the BalticSea Region,Doc. ES/97/6, id., pp. 31-32. Resolution IV, IBSFC SalmonActionPlan 1997-2010, Doc. ES/97/3, id. pp. 17-19.

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One of the outstanding achievements, of relatively recent origin, has been the adaptation of fishing practice and fisheries management to the special biological characteristics and needs of highly migratory species, a need pointed out in the nineteenth-century Bering Fur Seal Arbitration. It has taken a century to fully illuminate the way forward from that decision but the principles it generated have remained remarkably valid. However, as scientific knowledge has progressed, so too have international demands for development of regulations and application of principles more in tune with the seemingly endless uncertainties that that knowledge generates, whilst rapid technical progress in the means of exploitation and the growth in world population has militated against application of appropriate and responsible measures. Albeit slowly, progress has gradually been made during the twentieth century, especially in the last 20 years, when the gaps between environmental conservatory concerns and seemingly insatiable developmental needs and demands have been narrowed by insertion of the concept of "sustainable development." Awareness of the need to bring together and balance in the same texts, whether "hard" or "soft," developmental and environmental considerations has facilitated a breakthrough. The 1958 Fishing Convention highlighted the compromises necessary, without specifically identifying the special needs of marine mammals and anadromous and catadromous species. The LOS Convention, strongly influenced by the UNCHE Declaration of Principles, Action Plan and Recommendations, was innovatory in addressing this problem. It takes account both of the advances and concomitant problems encountered in the few existing ad hoc conventions, such as the ICRW, and the emergence of degradation of the marine environment. It also provided a new framework and identified the factors and principles to be taken into account. UNCED, reflecting numerous conferences, reports, declarations, new conventions and innovatory national laws, brought together, synthesized and promulgated in the Rio Declaration and Agenda 21, the essential elements of an integrated approach to protection of the marine environment, as such and as the habitat of the living resources it sustains. It, at the same time, emphasized the need for a precautionary and anticipatory approach to conservation and management. It recognized that Agenda 21 would work only if all states implemented it at global, regional and sub-regional levels and ensured that their own citizens and flag vessels observed the new stricter measures so that the new international conservatory conventions were not

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undermined, as was increasingly the case, by illegal direct fishing , excessive bycatches and degradation of the marine environment as a whole, including rivers, coastal waters and the high seas. To this end Agenda 21 encouraged the United Nations to proceed with negotiation of the Straddling and Highly Migratory Fish Stocks Agreement and identified the requirements for responsible management of the oceans. Achieving this represents an enormous challenge. This chapter highlights both the progress now made and the problems that still beset full achievement of the aims of the LOS Convention and UNCED , as developed especially in the Straddling and Highly Migratory Fish Stocks Agreement and the Compliance Agreement. The problems have become increasingly complex in the broader ecological context and the increasing needs of development. The adoption of goals laid down in the new anadromous species conventions and the changes brought about in the existing ICRW and the new marine mammal conventions, reflect, as the reports of these bodies reveal, many other new initiatives and interrelationships of related treaties and action plans but the framework they provide is limited, non-integrated and beset by problems concerning third states' activities. Progress will undoubtedly be facilitated by the pressure generated by the existence of the recent Straddling and Highly Migratory Fish Stocks Agreement, the Compliance Agreement and the Code of Conduct but, as has been indicated, at present this lies more in strengthening the awareness of non-party states of the need for better enforcement, pointing the ways of achieving this and encouraging non-parties as well as fishing "entities" to participate in the relevant conventions and enforcement schemes, as well as in a precautionary approach to conservation of marine mammals and anadromous and catadromous species. An interesting development is the opening of non-party protocols to the anadromous species conventions; though these do not seem to have attracted the immediate participation of the targeted states, they no doubt exert further pressure to conform to the standards contained in the recently adopted global instruments. Some conventions already have acted relatively swiftly in implementing the approaches contained in the LOS Convention and UNCED documents but fmd problems of third states and incidental bycatch hard to resolve. Wide participation in the new conventions could solve these problems, as many recent studies have pointed out. Davies and Redgwell concluded, for example, in their recent comprehensive study of these treaties that "there is no doubt that the virtual lacunae which existed previously in respect of the regulation of straddling stocks

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have been filled with the amplification of the Lose by the SSA" and that "many of these treaty obligations are also reflected in customary international law".129 The Whaling Convention still covers all waters where whaling is pursued, but though the anadromous species and pinniped conventions cover both their parties' high seas activities and "home waters," they can be undermined by non-party fishing, whether direct, illegal or by incidental catch. The Sealing Conventions encounter similar problems, as well as illegal culling. The new conventions, once in force, will virtually eliminate these activities. Their adoption of a precautionary approach will enable the remaining problem, degradation of habitat of all these unusual species, to be resolved in due course. Here the Commissions concerned, especially NAseo and AseOBANS and to some extent NAMMeO, are now clearly developing their own criteria and factors for achievement of this end.

129

P.G.G. Davies and C. Redgwell,"The International Legal Regulation of Straddling Fish Stocks," (1996) LXVII British Yearbook of International Law, pp. 199-274. In this quote Lose refers to the LOS Conventionand SSA to the Straddling and Highly Migratory Fish Stocks Agreement.

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14 THE CONSERVATION AND MANAGEMENT OF STOCKS LOCATED SOLELY WITHIN THE EXCLUSIVE ECONOMIC ZONE

Donna R. Christie

INTRODUCTION By 1975, there was widespread agreement in the negotiations at the Third United Nations Conference on the Law of the Sea (UNCLOS III) that coastal states should exercise exclusive jurisdiction over fisheries in an extended economic zone.' By 1977, this consensus began to develop quickly into customary international law as over forty states acted to extend sovereign or exclusive jurisdiction over fisheries to 200 nautical miles.' The early consensus in UNCLOS III negotiations and rapidly emerging state practice reflected the urgency that coastal states perceived concerning the escalation in distant water fishing, declining fish stocks, and the failure of international fisheries organizations to manage high seas fisheries effectively. The grant of exclusive economic zone fishery management authority to coastal states by Part V of the Law of the Sea Convention (LOS Conven-

2

See generally, United Nations Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, Conservation and Utilization ofthe Living Resources ofthe Exclusive Economic Zone: Legislative History ofArticles 61 and 62 of the United Nations Convention on the Law of the Sea, 1995, pp. 113-118. By 1975, most of the basic management and conservation obligations of coastal states were also settled. See William T. Burke, The New International Law of Fisher ies, Clarendon Press, 1994, pp. 22-23. Forty-four states extended some form of jurisdiction over fisheries to 200 miles offshore between 1975 and 1977.

E. Hey, (ed.), Developments in International Fisheries Law, p. 395-419. © 1999 Kluwer Law International. Printed in The Netherlands.

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tion)! was based on a number of premises. The first was the notion that coastal state jurisdiction could provide a more functional fisheries management regime because most fisheries are located within 200 nautical miles of a coast, making the 2OG-mile exclusive economic zone a rational area for management. Second, by placing these areas under exclusive jurisdiction, entry into fisheries would be controlled, thereby reducing both the potential for overfishing and for overcapitalization of fishing fleets. In addition, the weak enforcement that characterized international fisheries regulation would be augmented by coastal state authority to enforce regulations against all vessels within the exclusive economic zone. Finally, prevailing theories of fisheries management were presumed to be adequate to protect and maintain fisheries if jurisdictional control and effective enforcement authority were established. None of these premises turned out to be entirely valid. Since the extension ofjurisdiction over exclusive economic zone fisheries by coastal states in the mid-1970s, worldwide marine catch has increased from about 60 million Mt. to a highpoint of about 85 million Mt. in 1994. 4 But the latest analysis of two hundred of the most important marine resources indicates that about thirty-five per cent of these fisheries are in decline, twenty-five per cent are fully exploited and only forty per cent are considered developing." In addition, fishing effort, in the form of fishing capacity and more efficient technologies, has increased much more quickly than catch, and juvenile and lower-value species represent a larger proportion of landings." These indicators, along with recent leveling-off or decline in total marine catch, suggest that fisheries cannot be sustained at current levels and that exclusive economic zone fisheries management, even by developed nations, has been unsuccessful."

3

(1982) 21 lIM 1261.

4

FAa, FisheriesDepartment, Recent Trends in Global Fisheries Production, 1997.

5

FAa, The State of World Fisheries and Aquaculture - 1996, [hereinafter SOFIA 1996].

6

See Christopher D. Stone, ''Too Many Fishing Boats, Too Few Fish: Can Trade Laws Trim Subsidies and Restore the Balance in Global Fisheries?," (1997) 24 Ecology Law Quarterly, pp. 505-544, pp. 507-508. See, e.g., Elizabeth Mann Borgese, and Krishan Saigal, "Managerial Implications of Sustainable Development in the Ocean," in E. Borgese, N. Ginsburg and J. Morgan (eds.), (1996) 12 Ocean Yearbook, University of Chicago Press, pp. 1-18, p. 9; Burke, supra note 2, pp. 80-81, and DouglasM. Johnston,"Is Coastal

7

Summary, 1997

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Although a great deal of recent international attention has focused on the effects on exclusive economic zone management of intense high seas fishing for straddling stocks and highly migratory species, coastal states cannot totally shift responsibility for the failure of fisheries management in the exclusive economic zone to distant water fishing fleets. Over ninety per cent of the fish are located within 200 miles offshore, currently distant water fishers account for only about five per cent of the total marine landings," and even commercial species located entirely within the exclusive economic zone or associated with the continental shelf largely continue to decline. In light of this, questions have arisen concerning the adequacy of the management principles embodied in articles 61 and 62 of the LOS Convention to manage the exclusive economic zone sustainably.

THE EXCLUSIVE ECONOMIC ZONE MANAGEMENT STANDARDS OF THE LOS CONVENTION Articles 61 and 62 of the LOS Convention set out the primary obligations of coastal states in managing the fisheries resources of the exclusive economic zone. Article 61 addresses the principles applicable to conservation of living resources, which include: 1) 2) 3) 4)

8

the determination of allowable catch by the coastal state; use of the best available scientific information; adoption of measures to prevent overexploitation; maintenance of stocks to produce maximum sustainable yield (MSY), as qualified by relevant environmental and economic factors; and

State Fishery Management Successful or Not?," (1991) 22 Ocean Development and International Law, pp. 199-208, p. 204. For example, on the failure of United States management within the exclusive economic zone, see J.L. McHugh, "Fisheries Management under the Magnuson Act: Is It Working",' (1990) 21 Ocean Development and International Law, pp. 255-261, pp. 255-256. FAD, supra note 4. Distant water fishery production has declined generally since 1973 as a percentage of annual fisheries production; since 1989, distant water fisheries catch also has declined sharply. FAD figures for distant water fisheries include both foreign exclusive economic zone and high seas catch.

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5) consideration of associated or dependent stocks," Article 62, which concerns utilization of exclusive economic zone living resources, primarily addresses the circumstances and conditions under which foreign fishers may have access to a country's exclusive economic zone fisheries .10 The most important management principle incorporated in article 62 is the obligation of the coastal state to "promote the objective of optimum utilization" of exclusive economic zone living resources. 11 The objective of optimum utilization is to be applied "without prejudice to article 61," clearly giving coastal states the discretion to set conservative levels for exploitation of stocks if justified by conservation principles.

INADEQUACY OF THE MANAGEMENT PRINCIPLES OF ARTICLES

61

AND

62

Allowable catch Article 61(1) provides that a state "shall determine the allowable catch of living resources" within the exclusive economic zone. In spite of the use of the mandatory language, it seems axiomatic that a state is not required to determine an allowable catch for all species within the exclusive economic zone . The language is ambiguous as to the responsibility it creates,'! but to the extent an obligation is created, it would extend only to those stocks expected to be significantly exploited or potentially exploited beyond a sustainable harvest level. In many states , the number of these stocks has increased significantly as fishers move from one depleted fishery to another. 13 States' resources have been strained as more and more stocks require management and resource planning has largely lacked perspective when respon-

9 10 11 12 13

Art. 62(1)-(4), LOS Convention. Art. 62(2)-(4), LOS Convention. Art. 62(1), LOS Convention. The negotiators specifically rejected adoption of an objective of maximum or full utilization. See art. 297(3) of the LOS Convention which refers to a state's "discretionary powers for determining allowable catch." The FAO reports that the numberof stocksrequiringmanagement has increased from almost none in 1950 to over sixty percent in 1994. SOFIA 1996, supra note 5, Summary.

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ding to one management crisis following another. This situation has forced many states into a pattern of incremental management by quotas on a species-by-species basis with little opportunity to consider alternative approaches. As the first provision in article 61, allowable catch seems to hold a preeminent position as a management technique. This interpretation has been challenged, because of the difficulties of administering fishery regulation by quotas. ... [T]he central place of allowable catch in the convention scheme is curious, because regulating the allowable catch is but one means of managing fishery exploitation , and it both encounters and creates serious problems. The data requirements for catch quotas are difficult to meet, particularly for developing states, because the scientific basis for data collection and analysis is frequently inadequate . Therefore, regulation of fishing by this method is difficult and often impossible . In developed communities, catch quota regulation is also costly and provokes serious economic problems . In both developed and developing states, allowable catch regulation may lead to distorted information because of willful under reporting of catch stimulated by the regulation ." The prominence of allowable catch in article 61 may have had little relationship to its importance as a management tool for exclusive economic zone living resources. Rather, its significance may have been as the critical element of the formula in article 62(2) for determining when foreign fishers would have access to surplus stocks within a state's exclusive economic zone. Without a determination of allowable catch, there would be no measure to determine whether surplus stocks exist beyond domestic harvesting capacity to be available to foreign fishing fleets." Even in this context, the

Burke, supra note 2, p. 45. Burke concludes that even if the LOS Convention requires states to set allowable catch, "it does not follow that ... catch regulations must be used for management. . ., but management might proceed on any other basis the coastal state believes proper under the circumstances." p. 47. 15 The importance of allowable catch in the context of foreign access to surplus fisheries is emphasized by the fact that the refusal of a coastal state to set allowable catch is one of the very few coastal state obligations concerning fisheries management that is subject to any type of compulsory dispute resolution. Art. 297(3)(b) requires submission of a dispute to compulsory concili-

14

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setting of allowable catch now presents an illusory requirement. By the time the LOS Convention came into effect, many states already excluded foreign fishers because domestic harvesting capacity exceeded allowable catch or because allowable catch was set at domestic harvesting capacity." In addition, most commentators agree that there is no obligation to set an allowable catch above zero. This conclusion that allowable catch is an illusory principle is further reinforced by article 297(3) of the LOS Convention which provides that the setting of allowable catch and access to surpluses are considered discretionary and not subject to compulsory dispute resolution. Given the ambiguity of the coastal states' obligation concerning the determination of allowable catch, the problems with allowable catch as a regulatory technique and its ultimate unenforceability as a method to procure foreign access to exclusive economic zone fishery stocks, allowable catch should not be presumed to represent the primary method for exclusive economic zone fisheries management."

Best scientific evidence available Article 61(2) directs coastal states to "tak[e] into account the best scientific evidence available" in management of the living resources of the exclusive economic zone . This language can be considered facilitative in that it recog nizes state authority to manage fisheries even when scientific information is inadequate or unavailable. However, an equally plausible interpretation is that the LOS Convention relegates scientific evidence to merely a consideration in development of management measures with little determinative weight. The term "available" also puts little burden on the coastal state to acquire data. Funding for fisheries research is not a high priority in most countries. Much fisheries data must be extrapolated from reporting by fishermen and landing data . Because funding for enforcement of fisheries regulation, in-

16 17

ation if "a coastal State has arbitrarily refused to determine, at the request of anotherState,the allowable catchandits capacity to harvest livingresources ..." See S. Garcia, J. Gulland and E. Miles, "The New Law ofthe Sea, and Access to Surplus Fish Resources," (1986) 10 Marine Policy, pp. 192-200. See Burke, cited in supra note 14.

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eluding reporting requirements, is also low and fishermen have strong incentives to under-report, such data may be unreliable at best. Reliable reports of unlanded species and discarded incidental catch may be particularly difficult to establish.

Measures to prevent over-exploitation The requirement to prevent over-exploitation is perhaps the clearest obligation created for coastal states by article 61. However, left to their own discretion in implementing this requirement, states have been quite unsuccessful in accomplishing this goal. 18 Control of access to fisheries created the possibility for coastal states to address the "tragedy of the commons" within the exclusive economic zone. Displacement of foreign fishers from exclusive economic zones was viewed by many nations, however, as the opportunity to develop their domestic fishing industries and freedom of the high seas was replaced by virtually open access to national fishermen. In addition, many countries subsidized the development of their fishing industries, further fueling overcapitalization as fishing effort, in terms of time, resources and technology, increased to capture diminishing stocks. Some nations that lacked the resources to either exploit or effectively manage the exclusive economic zone simply sold access rights to foreign fleets. The result is that extension of national jurisdiction has not adequately addressed the issue of open access and, therefore, has not been able to control effort or prevent over-exploita-

tion."

See Peter Weber, Net Loss: Fish, Jobs. and the Marine Environment, 1994, Worldwatch Paper No. 120, pp. 13-15. 19 See Stone, supra note 6, pp. 510-511; Burke, supra note 2, p. 343; Alison Rieser, "International Fisheries Law, Overfishing and Marine Biodiversity," (1997) 9 Georgetown International Environmental Law Review, pp. 251-279, pp. 263-264.

18

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Qualified maximum sustainable yield MSY is a pre-UNCLOS conservation concept that is generally defined as the largest annual catch or yield of a fishery that can be taken continuously from a stock, based on the renewability of the resource. The concept is clearly tied to the objective of maximizing food production from the ocean. Even at the time of the negotiations at UNCLOS III, MSY was subject to much criticism. Among the problems attributed to management to produce MSY were the difficulties in defming MSY due to variations in environmental conditions, the complex interrelationships of stocks and the failure to take into account the economics of fisheries and the role played by density of population." Article 61(3) of the LOS Convention was viewed as addressing many of the deficiencies of management to produce MSY by providing that coastal states' conservation measures should be designed to "produce the maximum sustainable yield, as qualified by relevant environmental and economic factors." However, this formulation grants states the discretion to take into account not only the scientific and economic shortcomings OfMSY, but to incorporate a wide range of social and political considerations as well. Coastal states are specifically authorized to adjust MSY to "meet [their] interests as [they] deterrnine[] them.'?' Although the environmental and economic problems of MSY may be addressed by downward adjustment of annual harvest, the LOS Convention does not limit adjustments to lowering of MSy.22 In fact,

See generally, Gary Knight, "International Fisheries Management - A Background Paper," in Gary Knight (00.), The Future of International Fisheries Management, West Publishing Co., 1975, pp. 16-37. The failure of MSY to incorporate fisheries economics is said to lead to overfishing and overcapitalization . As available stock is depleted, fishing effort will tend to increase to inefficient levels; the cost to harvest the last fish is much greater than the cost to harvest the first fish and may eventually exceed the value of the fish. John J. Rooney, "Impact of the Magnuson Fisheries Conservation and Management Act Fisheries in the U.S. Exclusive Economic Zone," in Borgese, Ginsburg and Morgan (eds.), supra note 7, pp. 92-108, p. 96. 21 Burke, supra note 2, p. 55. 22 Interestingly, in 1996, the us Magnuson-Stevens Fishery Conservation and Management Act's provisions on establishment of optimum yield of a fishery were amended to limit modifications of MSY for economic, social and ecological factors to lowering the permissible catch. 16 U.S.C.A. section 1802(2) (West Supp. 1997). 20

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the list of factors that may be taken into account in qualifying MSY in article 61(3) includes "the economic needs of coastal fishing communities and the special needs of developing states." The inclusion of these factors leads to the conclusion that the LOS Convention drafters contemplated circumstances in which a coastal state might find it in its best interest to qualify MSY by adjusting the allowable catch of a fish stock upward." In spite of the flexibility created by qualifying MSY by relevant economic and environmental factors, the methodology has received increased criticism as a threshold or target reference point for management. The original problems concerning the inadequacy of information and models to predict MSY reliably in a changing environment and in relation to other species persist. Critics continue to assert that the manner in which MSY has been applied has failed to take into account biological variables based on short-term and long-term variations in abundance, composition, and environment.f In assessing how this relates to the effectiveness of coastal state fisheries management, Douglas Johnston stated: Fishery management specialists today acknowledge that in the past ... too much weight was given to fishing effort and not enough to environmental and hydroclimatic factors. In short, the natural variability of stocks was underestimated. Today it is recognized more widely that fishery management cannot be conducted on the basis of informational certainty.25

The implication here should not be that all adjustments of harvest in excess of MSY of a particular stock will have negative impacts . Previous fishing or overfishing may have altered the balance of species in an area and fishing patterns that maximize catch of predators or food competitors may have the effect of restoring or enhancing levels of more valued species. But see, Lewis M. Alexander, "Large Marine Ecosystems," (1993) 17 Marine Policy, pp. 186198, p.198, warning about such a mitigative strategy because of unanticipated effects on the ecosystem. 24 See generally, John M. Macdonald, "Appreciating the Precautionary Principle as an Ethical Evolution in Ocean Management," (1995) 26 Ocean Development & International Law, pp. 255-286, pp. 271-276; G.L. Kesteven, "MSY Revisited," (1997) 21 Marine Policy , pp. 73-82 , pp. 74-76. 25 Johnston, supra note 7, p. 204. Johnston adds that "political and social objectives add to the uncertainty inherent in [fishery management]." 23

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In addition, more fundamental objections to the use OfMSY have been raised due to the nature of managing a fully exploited or declining resource: The choice of [MSY] as the accepted reference point for fisheries management purposes was applicable when fisheries were in an expanding phase and this reference point was used as a rough production target. As fisheries have become increasinglyoverexploited,MSY may still be a reference point, but only as representing an upper limit beyond which stocks become progressively overexploited and a minimum requirement for effort reduction policies." In other words, as fisheries management has changed orientation from maximization of catch to risk management, the role of MSY must be reassessed.

Consideration of associated or dependent stocks Article 61(4) of the LOS Convention is not clear concerning what is included in terms of considering effects on associated or dependent stocks" in managing exclusive economic zone fisheries. The background of the reference in the Convention is vague and did not have a common usage. It may have been formulated in reference to fisheries interactions with marine mammals, it may have been intended to include biological relationships between and among other stocks and "associated" species may have had reference to all types of incidental catch." This discussion will assume all of these considerations were included in the language." Most current fishery management does not take adequate account of relations between and among stocks for at least three reasons. In the majority of situations, regulation has, of necessity and in response to sharp declines

26 FAO, Reference Points for Fisheries Management: Their Potential Application

to Straddling Fish Stocks and Highly Migratory Resources, 1994, p. 2. 27 Art. 61(4), LOS Convention.

Note also that the threshold for consideration of effects on associated or dependent species seems to be the point "at which their reproduction may become seriously threatened." 28 Burke, supra note 2, p. 58. 29 However, marinemammal/fisheries interactions will not be specifically discussed in this chapter.

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in particular stocks, developed on a species-by-species basis. In other cases, fishery managers lacked enough information about the biological relationships within food webs and ecosystems to take them into account. Finally, the exclusive economic zone may simply not "fit" the natural systems being

regulated." The inadequacy of scientific understanding of complex relationships among species means that states have had difficulty in developing management measures that consider associated and dependent species except in a limited number of fisheries. Because states generally lacked the capacity, it seems unlikely that the LOS Convention's drafters envisioned states' obligations under this section to extend to ecosystem management. Even much more recent analyses of states' capabilities for ecosystem management are pessimistic. For example, an FAO Technical Paper reported: The management implication of the term "ecosystem management" presumes a reasonable understanding of the physical and chemical environmentaland biological species which describe an ecosystem, plus an understanding of the interactions among and between the species complex and their environment.Effectiveecosystemmanagement wouldalso requirean understanding of the flow of material energy and nutrients within the ecosystem. At the present the totality of interactions is not sufficientlyunderstood in any ecosystem to allow for comprehensive ecosystem management." Much better understood than the indirect effects of a fishery on other species in an ecosystem are the direct effects of fisheries on non-targeted species taken as incidental catch or bycatch. Bycatch can be almost anything, including seabirds, marine mammals, nontargeted and lesser-valued fish stocks and juveniles of the targeted species. The FAO estimates that fisheries now take about 20 million Mt. per year of bycatch." This bycatch is discarded

William T. Burke, "UNCED and the Oceans," (1993) 17 Marine Policy, pp. 519533, pp. 519-520. 31 Burke, supra note 2, p. 59, quoting Report ofthe ACMRR Working Party on the Scientific Basis of Determining Management Measures, 1980, FAa Fisheries Tech. Paper No. 236, UN Doc. FIRMlR22336, p.20. 32 FAa, Fisheries Department, Committee on Fisheries, Fisheries Bycatch and Discards, caFI/97/Inf.7, December 1996, para. 8. FAa had estimated bycatch during the 1980s and early 1990s as between 17.9 and 39.5 million Mt. per 30

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at sea, because of lack of markets, regulations prohibiting possession of the bycatch (size, season or other limits), or to maximize the value of the harvest (highgrading). Discarding often results in a total mortality rate of the bycatch. Although the FAa estimates that the total level of bycatch has begun to decrease significantly, the effect of bycatch and discards still requires study to determine the effects on the bycatch stocks, the effect on targeted species of bycatch of juveniles and the ramifications for the ecosystem of both the removal of bycatch species and the discard of dead bycatch. As fishing effort increases to catch diminishing levels of target species, the bycatch problem could be further exacerbated. In summary, the provisions of article 61 of the LOS Convention have failed to create a regime that effectively manages the living resources of the exclusive economic zone. Many of the assumptions underlying the establishment of the exclusive economic zone were not valid, and problems of overfishing, overcapitalization, single species management, insufficient scientific data and excessive bycatch persist within the exclusive economic zone. In addition, article 61 makes no mention of coastal state obligations to address other causes of the decline of fisheries , such as destruction or degradation of habitat.

ADDRESSING EXCLUSIVE ECONOMIC ZONE FISHERIES MANAGEMENT ISSUES FOR THE FUTURE The imprecise principles of article 61 of the LOS Convention have not prevented continued depletion of exclusive economic zone fisheries resources. The principles to guide conservation and management of the exclusive economic zone, at best, are vague and ambiguous and, at worst, are based on precepts that are unworkable to maintain the sustainability of the living

year, an average of about 27 million Mt. tons per year. The 1996 reduced estimate was considered to be a result of: "a) decline in levels of fishing , b) time! area closures, c) new or more selective harvest and utilization technologies, d) greater utilization for human consumption and feed for aquaculture and livestock, e) enforcement of prohibition on discarding by some countries, and t) a more progressive attitude of fishery managers , user groups and society to the need to resolve problems resulting from discarding."

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resources of the exclusive economic zone in the current environment. Unlike articles 63 and 64 concerning straddling stocks and highly migratory species, however, the terms of article 61 were not anticipated by the drafters to be elaborated and implemented primarily through separate international agreements." But article 61 does provide that, as appropriate, states should cooperate to develop scientific information and conservation measures that will ensure that exclusive economic zone resources are "not endangered by overexploitation,?" and that measures to restore and maintain fisheries resources take into account "generally recommended international minimum standards.?" While not creating any enforceable coastal state obligations, these sections can provide a strong rationale for turning to more recent agreements, guidelines and customary law to interpret and refine the vague principles of article 61. Patricia Birnie also argues that "in light of subsequent advances in knowledge ... the aims specified by the LOS Convention for fisheries conservation [including the goals of the Preamble] can be interpreted as implying that [new concepts] should be applied (without prejudice to whether or not this is a legal requiremenn.t'" She contends that the terms of the LOS Convention, such as conservation and MSY, are "flexible" enough to be interpreted to introduce new principles." To read article 61 as freezing the interpretation of management principles in 1970s terms ignores another precept of the same article - to take account of the best scientific information - and frustrates the basic "object and purpose" of the LOS Convention concerning conservation of the living resources of the sea. The principle that a treaty should be interpreted in "light of its object and purpose" is codified in article 31 of the 1969 Vienna Con-

In fact, the LOS Convention was quite clear that coastal state jurisdiction over exclusive economic zone living resources was "exclusive" and subject to its virtually complete discretion. 34 Art. 61(2), LOS Convention. 35 Art. 61(3), LOS Convention. 36 Patricia Birnie, "Are Twentieth-Century Marine Conservation Conventions Adaptable to Twenty-First Century Goals and Principles? : Part I," (1997) 12 The International Journal of Marine and Coastal Law, pp. 307-340, pp. 307314. 37 Birnie, id., p. 338. 33

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vention on the Law of Treaties." Article 31(3) also states that treaty interpretation shall take into account: (a) any subsequent agreement between the parties regarding interpretation of the treaty or the application of its provisions; (b) any subsequentpracticein the applicationof the treaty which establishes the agreement of the parties regarding its interpretation; and (c) any relevantrules of international law applicablein the relationsbetween the parties. Thus, the Vienna Convention recognizes that treaty interpretation can hinge on subsequent agreements, state practice and development of international law ." This precept is reflected in customary international law in the principle of contemporaneity. The nature of areas such as environmental law and human rights law, where knowledge and awareness are rapidly evolving and damage may be irreversible, requires that treaties should be interpreted in terms of the standards and norms that are in force at the time of application of a treaty, not at the time of the conclusion of a treaty." The International Court of Justice (IC]) addressed this issue recently in the Case Concerning the Gabcikovo-Nagymaros Project. The IC] found that the development of new norms of environmental law did not preclude the performance of a long-term treaty that incorporated environmental protection. Rather, the Court held that the evolution of environmental knowledge and standards could be anticipated and that such a treaty had to be interpreted to recognize the evolving nature of environmental norms. The Court stated: Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks to mankind - for present

38 Vienna Convention on the Law of Treaties, art. 31, UN NCONF.39/27, (1969),

done at Vienna on May 23, 1969; entered into force on January 27, 1980; reprinted in (1969) 8 lIM 679. 39 For a detailed discussion of the interpretationof treaties in the context of emerging marine conservation principles, see Birnie, supra note 36, pp. 322-339. 40 Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment of September25, 1997,SeparateOpinionof Vice-PresidentWeeramantry) [hereinafter the Gabcikovo-Nagymaros case].

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and future generations- of pursuit of such interventionsat an unconsidered and unabated pace, new norms and new standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development." In his separate opinion in the case, Vice-President Weeramantry referred to this as the "inter-temporal aspect" of treaties dealing with activities that affect the environment. This inter-temporal aspect goes not only to the continuing validity of a treaty, but also to its application. He asserted that "[t]he ethical and human rights related aspects of environmental law bring it within the category of law so essential to human welfare that we cannot apply to today's problems in this field the standards of yesterday." In this respect, Vice-President Weeramantry explained that such treaties must be "living" instruments, responsive to continuing and current environmental concerns regardless of when the activity was originally undertaken or the treaty concluded. In the short time since the LOS Convention was concluded, international environmental law has been developing rapidly. The marine environment and marine fisheries have been a central focus of many of the developments. Among the relevant developments that affect management of exclusive economic zone fisheries are the Rio Declaration," Chapter 17 of Agenda 21,43 the Code of Conduct for Responsible Fishing (Code of Conduct)" and

41

The Gabcikovo-Nagymaros case, id., at para. 140. (Emphasis added).

42 Rio Declaration on Environment and Development, adopted by the UN Conference on Environment and Development (UNCED) at Rio de Janeiro, 13 June 1992, UN Doc. AlCONF.151126, vol. I, (1992), reprinted in (1992) 31 lIM 874. 43 Agenda 21, adopted by UNCED at Rio de Janeiro, 13 June 1992, UN Doc. A ICONF.151126, vols. I-III (1992); Chapter 17 reprinted in (1992) 7 The Inter44

national Journal of Marine and Coastal Law, pp. 296-329. FAD, Code ofConduct for Responsible Fisheries (FAD, Rome 1995). Specifically on the Code of Conduct see Moore, supra Chapter 5.

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the Jakarta Mandate on Marine and Coastal Biological Diversity." In 1998, the FAa Committee on Fisheries will organize a Technical Consultation on Management of Fishing Capacities to consider development of guidelines to control fishing effort and capacity, including the use of direct and indirect subsidies to fisheries; other consultations are being organized to consider issues related to bycatch reduction and sustainability indicators for fisheries." In addition, the 1995 United Nations Agreement on Straddling Stocks and Highly Migratory Fish Stocks" (Straddling and Highly Migratory Fish Stocks Agreement or the Agreement) has implications for management of all fish stocks within the exclusive economic zone. All of these documents, with the exception of the Rio Declaration, make reference to the LOS Convention. Considered together, these actions are strong evidence that the international community perceives change in international environmental norms and the need to supplement and further develop at the international level existing international and national fisheries regulation through the incorporation of these new or rapidly emerging principles of international environmental law." The incorporation of these principles into the LOS

See Maas M. Goote, "Convention on Biological Diversity - The Jakarta Mandate on Marine and Coastal Biodiversity," (1997) 12 The International Journal of Marine and Coastal Law, pp. 377- 395. 46 Report of the Secretary-General, Oceans and the Law of the Sea : Law of the Sea, paras. 192-194, UN Doc. A/52/1997, 20 October 1997. 47 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 Stocks and Highly Migratory Stocks, Aug. 4, 1995, UN Doc. A1CONF.I64/37 (1995), Sept. 8, 1995, opened for signature Dec. 4, 1995, reprinted in (1995) 341LM 1542. Specifically on the Straddling and Highly Migratory Fish Stocks Agreement see Hayashi, supra Chapter 4. 48 See Ellen Hey, "Global Fisheries Regulations in the First Half of the 1990s," (1996) 11 The International Journal ofMarine and Coastal Law, pp. 459-490, pp. 459-462 . Hey points out that the issue that will eventually need to be resolved is the extent to which minimum international standards should be set for activities, like exclusive economic zone fisheries management, which have traditionally been viewed as solely within the jurisdiction of the coastal state. Hey asserts that international law currently accords third parties and common interests , such as marine biodiversity, little recognition and, therefore, creates little basis for such international standards . 45

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Convention management regime can fundamentally change the current approach to coastal state fisheries management.

The Rio Declaration The Rio Declaration, although not specifically a marine conservation document, must be mentioned as a starting point. Adopted at the United Nations Conference on Environment and Development (UNCED) in 1992, the Rio Declaration provided the official introduction into international environmental law of two dominant resource management themes for the 1990s - the goal of sustainable development and the application of the precautionary principle or precautionary approach. The theme of sustainable development extends throughout the Rio Declaration, but is summarized in Principle 3: ''The right of development must be fulfilled so as to equitably meet development and environmental needs of present and future generations." The precautionary approach, as embodied in Principle 15, provides that "[w]here there are threats of serious irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.?"

Agenda 21 Agenda 21 is the action plan adopted by the UNCED Plenary (and later endorsed by the General Assembly) for implementing the principles of the Rio Declaration. Specifically, Chapter 17, entitled "Protection of the Oceans, all Kinds of Seas, including Enclosed and Semi-Enclosed Seas and Coastal Areas, and the Protection, Rational Use and Development of their Living Resources," sets out a strategy for protection and sustainable development of the marine and coastal environment and its resources which requires "new approaches ... that are integrated in content and are precautionary and an-

49

Specifically on the precautionary principle see Freestone , supra Chapter 11.

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ticipatory in ambit''" Chapter 17 identifies seven program areas" and provides objectives, activities and means of implementation for each area. In addressing the issues of marine areas within national jurisdiction, Agenda 21 charges nations to ensure conservation and management of exclusive economic zone living resources in accord with the LOS Convention.52 The management-related activities called for in the document relate to many of the problems addressed in the previous section of this chapter, including more and better monitoring and assessment, development of more effective predictive tools, strengthening oflegal, regulatory and enforcement authorities and taking measures to reduce bycatch and wastage." Although coastal states are directed to "implement strategies for sustainable use of marine living resources," the objective for management continues to be maintenance or restoration of stocks "at levels that can produce the maximum sustainable yield as qualified by relevant environmental and economic factors, taking into consideration relationships among species.?" A major contribution of Agenda 21 is the incorporation of protection of habitat as an issue in marine fisheries management." In order to attain sustainable use and conservation of exclusive economic zone resources, Chapter 17 sets out an objective of preservation of rare or fragile ecosystems by identifying ecosystems with high productivity and biodiversity, such as

50 Para. 17.1, Agenda 21. 51 Chapter 17 program areas are: (a) Integrated management and sustainable

52

53 54 55

development of coastal areas, including exclusive economic zones ; (b) Marine environmental protection; (c) Sustainable use and conservation of marine living resources of the high seas; (d) Sustainable use and conservation of marine living resources under national jurisdiction; (e) Addressing critical uncertainties for the management of the marine environment and climate change; (t) Strengthening international , including regional, cooperation and coordination; and (g) Sustainable development of small islands . Para. 17.78, Agenda 21. Para . 17.79, Agenda 21. Para . 17.75(c), Agenda 21. Part XII of the LOS Convention creates a general obligation to protect and preserve the marine environment, including taking necessary measures "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." (art. 194(5), LOS Convention) . This obligation is created, however, in the context of pollution control.

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coral reefs, estuaries, wetlands, and seagrass beds, and providing special protections, for example, designation of protected areas." But Chapter 17 also goes further in recognizing linkages in ecosystems by encouraging integrated management of coastal and marine areas and resources. 57

The Straddling and Highly Migratory Fish Stocks Agreement One of the most important recommendations of Agenda 21 was to convene a United Nations conference to effectively implement the LOS Convention's provisions on straddling and highly migratory fish stocks." The United Nations General Assembly subsequently adopted a resolution for such a conference, which, after three years of negotiations, resulted in the adoption of the 1995 Straddling and Highly Migratory Fish Stocks Agreement." The Agreement does not specifically address fish stocks found only in the exclusive economic zone, but management of straddling and migratory fish stocks, according to the principles of the agreement, is required even while the stocks are present within the exclusive economic zone." However, because the Agreement eschews single-species management, coastal state management of most exclusive economic zone stocks will certainly be affected by straddling stock management measures when the treaty goes into effect. With regard to management of straddling stocks within national jurisdiction, the Agreement heightens the degree of obligation on the coastal state imposed by article 61 ofthe LOS Convention. Terms used in article 61, such as "take into account" and "consider," are generally replaced in the Agreement with "shall" adopt, ensure and protect." Effective coastal state man-

Paras. 17.74(f) and 17.86, Agenda 21. Paras . 17.1 and 17.5, Agenda 21. Para. 17.50, Agenda 21. The Straddling and Highly Migratory Fish Stocks Agreement was opened for signature on 4 December 1995 and has been ratified by fifteen states as of August 1997; thirty ratifications are required for the treaty to go into effect. 60 Art. 3, Straddling and Highly Migratory Fish Stocks Agreement. 61 See art. 5, Straddling and Highly Migratory Fish Stocks Agreement. For example, art. 61, LOS Convention, requires the coastal state only to take into account the best scientific evidence; the Straddling and Highly Migratory Fish Stocks Agreement provides that states shall ensure that measures are based on

56 57 58 59

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agement is further encouraged by article 7 of the Straddling and Highly Migratory Fish Stocks Agreement which requires compatible mcaagement of fisheries within and beyond national jurisdiction, taking into account "the conservation and management measures adopted and applied ... by the coastal States within areas under national jurisdiction and ensure that measures established in respect of such stocks for the high seas do not undermine the effectiveness of such measures .t'f These provisions require the coastal states to provide leadership in fisheries management by actually applying article 61 principles within the exclusive economic zone before obligations for compatible exploitation can be imposed on high seas fisheries. The Straddling and Highly Migratory Fish Stocks Agreement also expands upon conservation and management concepts of the LOS Convention by specifically including more contemporary concepts recommended by UNCED and the FAO. Several of the general principles of the Agreement reflect UNCED's recommendations on sustainability, ecosystem management, and integrated management, including requirements to: 1) adopt measures to assure longterm sustainability of straddling and migratory fish stocks/" 2) adopt measures to protect species within the same ecosystem," 3) take measures to prevent or eliminate overfishing and excess capacity to ensure fishing effort that will allow sustainable use of fishery resources.f 4) minimize pollution, waste, discards, and impact on associated or dependent species." 5) protect biodiversity of the marine environment" and 6) assess the impact of fishing, other human activities and environmental factors on target stocks, associated and dependent species, and other species in the ecosystem." Clearly , successful implementation of these ecosystem-based obligations within the exclusive economic zone for straddling and highly migratory

62

63 64 65 66 67 68

the best scientific evidence and further obligates states to "promote and conduct scientific research." Art. 7(2)(a), Straddling and Highly Migratory Fish Stocks Agreement (Emphasis added). Art. 5(a), Straddling and Highly Migratory Fish Stocks Agreement. Art. 5(e), Straddling and Highly Migratory Fish Stocks Agreement. Art. 5(h) , Straddling and Highly Migratory Fish Stocks Agreement. Art. 5(t), Straddling and Highly Migratory Fish Stocks Agreement. Art. 5(g), Straddling and Highly Migratory Fish Stocks Agreement. Art. 5(d) , Straddling and Highly Migratory Fish Stocks Agreement.

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stocks requires broad considerations that will have positive implications for other stocks within the management area. The Straddling and Highly Migratory Fish Stocks Agreement continues to require that measures "maintain or restore stocks at levels capable of producing maximum sustainable yield.?" However, the Agreement also requires application of the precautionary approach." When these provisions are considered together with the requirement to ensure long-term sustainability of stocks, MSY assumes a different role. Annex II of the Agreement, which provides guidelines for application of precautionary reference points, distinguishes target reference points and limit reference points . MSY should be applied as a limit reference point to create boundaries to restrain harvest, rather than a target reference point to meet management objectives." Again, this modification of the use of MSY is unlikely to be applied only to straddling stocks or highly migratory species and should affect the use of MSY for other fisheries within the exclusive economic zone.

Code of Conduct for Responsible Fisheries The FAD Committee on Fisheries in 1991, the 1992 Declaration of Cancun" which emerged from the Cancun Conference on Responsible Fisheries and UNCED'S Agenda 21 all called for elaboration of new policies and practices for the conservation and management of all fisheries. The extension of coastal state fishery jurisdiction was recognized as "a necessary but insufficient step toward the efficient management and sustainable development of fisheries.t'P While the Straddling and Highly Migratory Fish Stocks

Art. 5(b), Straddling and Highly Migratory Fish Stocks Agreement. Arts. 5(c) and 6, Straddling and Highly Migratory Fish Stocks Agreement. 71 Para. 2, Annex II, Straddling and Highly Migratory Fish Stocks Agreement. See also Andre Tahindro, "Conservation and Management of Transboundary 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," (1997) 28 Ocean Development and International Law, pp. 1-58, pp.5-6. 72 Reproduced in (1992) 8 International Organisations and the Law of the Sea, Documentary Yearbook, pp. 557-560. 73 Preamble, Code of Conduct. 69

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Agreement was being negotiated, the FAO carried out concurrent negotiations from 1992 through 1995 to develop a Code of Conduct for Responsible Fisheries which would be global in scope and application." The Code of Conduct was adopted by consensus by the Twenty-eighth Conference of the FAO on 31 October 1995. The Code of Conduct is a voluntary agreement, but because it incorporates principles already reflected in the LOS Convention and other treaties, some of the provisions already have, or may in the future, have binding effect through those instruments ." It is comprehensive in covering all aspects of fishery conservation, management and development, including fishing activities and operations, aquaculture, trade, research, legal and administrative institutions, and integration of fisheries into coastal area management. The Code has been referred to as "the 'perfect' agenda for attaining sustainable fishing practices.'?" The Code is to be "interpreted and applied in conformity with relevant rules of international law, as reflected in the United Nations Convention on the Law of the Sea.'>77 However, because the provisions of the Code of Conduct provide a much more detailed elaboration of fishery management principles and practices, the more relevant issue is whether article 61 of the LOS Convention will be interpreted and applied in conformity with the Code. For example, the Code of Conduct recognizes sustainable use as "the overriding objective" of fisheries management," provides a detailed list of the "relevant environmental and economic factors" that should qualify MSy79 and adopts the precautionary approach for dealing with lack of information and uncertainties concerning the state of stocks or impacts of fisheries activities." While these provisions can clearly be interpreted as compatible"

74 75 76

77

78 79 80

Art. 1.2 and 1.3, Code of Conduct. Art. 1.1, Code of Conduct. Hey, supra note 46, p. 483. Art. 3.1, Code of Conduct. The Code is also to be interpreted consistently with the Straddling and Highly Migratory Fish Stocks Agreement, the Canciin Declaration, the Rio Declaration, and Agenda 21 (art. 3.2). Art. 7.2 .1, Code of Conduct (Emphasis added). Art. 7.2.2, Code of Conduct. Art. 7.5, Code of Conduct.

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with the LOS Convention, such interpretations are not compelled by article 61. Although the Code is voluntary, it makes provision for implementation and monitoring and calls upon everyone involved in fisheries management, utilization or trade to collaborate in fulfilling the objectives of the Code." One must assume that the monitoring of the implementation of the Code is not only for gauging its success or need for modification, but also to identify "bad actors" who may be subject to international pressure to conform.

The Jakarta Mandate on Marine and Coastal Biological Diversity The Convention on Biological Diversity" (Biodiversity Convention) was rapidly embraced by the international community, coming into force a mere eighteen months after it was signed. The basic objectives of the convention are "conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits ... of genetic resources.?" The Biodiversity Convention is primarily a framework convention to be implemented through its organs - the Conference of Parties, the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA), and the Secretariat - and through subsequent agreements. The first meeting of the Conference of Parties in 1994 led to an agenda that gave conservation and sustainable use of marine and coastal biodiversity a priority status. Subsequently, the SBSTTA began a series of meetings that resulted

The precautionary approach is not mentioned in the LOS Convention; commentators disagree as to whether the approach is implicitly incorporated into the provisions. Even if the precautionary approach was not contemplated in the drafting of art. 61, the qualification of MSY by relevant environmental factors seems to provide a sufficient basis for incorporation of the precautionary approach. See generally Grant Hewison, "The Precautionary Approach to Fisheries Management: An Environmental Perspective," (1996) II The International Journal of Marine and Coastal Law, pp. 301-332, pp. 316-317 . 82 Art. 4, Code of Conduct. 83 Convention on Biological Diversity, concluded at Rio de Janeiro, June 5, 1992 (entered into force December 29, 1993), reprinted in (1992) 31 ILM 818. 84 Art. 1, Convention on Biological Diversity. 81

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in development of the Jakarta Mandate on Marine and Coastal Biological Diversity." The Jakarta Mandate is based upon the recommendations of the SBSITA as adopted by the Conference of Parties in five thematic areas, including the sustainable use of coastal and marine living resources.P The recommendations reiterate the necessity for application of the precautionary approach and integrated coastal and marine management as fundamental principles for management. The recommendations also tie protection of biodiversity to conformity with the LOS Convention, Agenda 21 and the Code of Conduct. Some provisions of the Mandate concerning subsidies and overcapitalization continue to be controversial and much work is still required to set priorities and to find mechanisms to implement the Mandate." However, the Jakarta Mandate clearly continues the development of international law that affects coastal state management of living marine resources within the exclusive economic zone.

CONCLUSION It can be concluded at this point that extension of coastal state jurisdiction over marine living resources to 200 nautical miles offshore has not prevented the overexploitation of marine fisheries. Scientific information and management methodologies continue to be inadequate, entry into domestic fisheries has largely not been controlled; enforcement and reporting remain questionable and the exclusive economic zone as a management area has not been an adequate zone for ecosystem management, either from the perspective of straddling stocks and highly migratory species or from the perspective of integrating coastal and marine management. Simply changing jurisdictional zones did not substantially benefit the resources . The LOS Convention's standards for coastal state conservation and utilization of exclusive economic zone fisheries are largely ambiguous, incredibly flexible, and virtually unenforceable. States have been particularly

85 86 87

Goote, supra note 45, pp. 377-378. The other areas are integrated marine and coastal area management, marine and coastal protected areas, mariculture and alien species. Goote, supra note 45, pp. 378-388; Hey, supra note 48, pp. 485-87.

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unsuccessful at meeting the clearest mandate of article 61: the requirement to prevent overexploitation. The ambiguity and flexibility of concepts such as MSY "as qualified by relevant environmental and economic factors" and consideration of associated species, however, provide ample bases for incorporating in the context of article 61 new principles of international environmental law, including application of the precautionary approach and integrated coastal and marine ecosystem management. Moreover, in the Gabcikovo-Nagymaros case, the rcr has indicated that new environmental norms must be taken into account and given proper weight in applying a treaty that governs activities, like fishing, that affect the environment. Although the LOS Convention does not appear to be an impediment to coastal state adoption of more recent approaches to fisheries management, it is also not particularly useful for requiring implementation of new standards. The degree of coastal state autonomy authorized by the LOS Convention and coastal state self-interest continue to support a "tragedy of the commons" situation. Agenda 21, the Code of Conduct and the Jakarta Mandate may result in changes in patterns of exclusive economic zone fisheries management in the future as further depletion of fisheries shifts the self-interest of coastal states to more conservation-oriented management. But these developments cannot currently be viewed as creating binding international minimum standards for exclusive economic zone management." For the present, the Straddling and Highly Migratory Fish Stocks Agree ment seems to hold the incentives necessary for the most immediate changes in exclusive economic zone management. Coastal states that want to affect high seas fisheries management will have to adopt and apply within the exclusive economic zone management strategies for straddling stocks and migratory species that incorporate the precautionary approach, protection of biodiversity, principles of sustainability and ecosystem management. Not only is it unlikely that coastal states would adopt different management regimes for other fish stocks within the exclusive economic zone, it is virtually impossible to conceive how such an integrated management approach could not incorporate and positively affect management of other fisheries within the exclusive economic zone .

88

Hey, supra note 48.

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PART III THE WIDER CONTEXT OF INTERNATIONAL FISHERIES LAW

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15 FISHERIES CONSERVATION AND MANAGEMENT AND THE CONSERVATION OF MARINE BIOLOGICAL DIVERSITY

Cyrille de Klemm

INTRODUCTION

The conservation of marine biological diversity lags considerably behind that of terrestrial species and ecosystems. With the exception of a small number of popular species, such as marine mammals and sea turtles, often referred to as "charismatic megafauna," the conservation of marine species of no commercial importance attracts little attention or funding. Marine habitats, except perhaps for globally-renowned coral reefs, are similarly disadvantaged. This chapter purports to review international law with regard to marine and coastal biodiversity, to identify and analyze major deficiencies in the existing legal framework and to assess new trends in this field. It does not address in any detail the legal instruments regulating the fishing of target species in international fisheries, or marine and land-based pollution, which are governed by a large number of specialized instruments. Similarly, whilst recognizing that the oceans play an important role in regulating climate and that sea-level rise may have significant impacts on the coastal environment, the paper does not deal specifically with the United Nations Framework Convention on Climate Change.'

(1992) 31 lIM 849.

E. Hey, (ed.), Developments in International Fisheries Law, p. 423-500. © 1999 Kluwer Law International. Printed in The Netherlands.

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BIODIVERSITY IN THE SEA

What is marine biodiversity? The Convention on Biological Diversity' defines biodiversity as "the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are a part; this includes diversity within species, between species and of ecosystems ." Oceans are the most extensive of ecosystems , covering 71 % of the surface of the Earth. However, much more is known about land than about the sea. Of the approximately 1.7 million species named and described to date, terrestrial species outnumber marine species by, perhaps, seven to one. Estimates of the number of marine species that have so far been described are few. They range from 160,000 to about 250,000 species.' It is clear that a huge number of species still remain to be identified, with scientific estimates varying, for both land and sea, from a conservative ten million to much higher totals (30-50 million). Among these, the proportion of still unknown marine species is likely to be high. Marine species include very large numbers of unicellular organisms, algae and invertebrates, such as molluscs, sponges, hydras, jellyfish, coral, sea urchins, sea stars, holothuria, worms, crustaceans and many more. Among vertebrates , there are 14,000 species of marine fish, a few sea turtles and snakes; seabirds, for instance albatrosses, petrels, puffins, shearwaters, penguins, auks, frigate birds and gannets; and some marine mammals: cetaceans, seals, sirenians, sea otters and polar bears. At the phylum level, marine diversity is close to twice that of the land. Of the 33 recognized phyla, 32 exist in the sea and 15 are exclusively marine. Species of commer-

2

3

Art. 2, Convention on Biological Diversity, (1992) 31 ILM 818. V.D. Heywood (ed.), Global Biodiversity Assessment, published for the United Nations Environment Programme, Cambridge University Press, 1995, p.141 gives a figure of 250,000 described marine species. J.D. Gage, "High benthic species diversity in deep-sea sediments: The importance of hydrodynamics" in R.F.G. Ormond, J.D. Gage and M.V . Angel (eds.), Marine Biodiversity, Cambridge University Press, 1997, p. 149, provides an estimate of only 160,000 species.

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cial importance represent only a very small fraction of the total number of marine species. The distribution of marine biodiversity is uneven. As a general rule, it increases as latitude decreases, with the greatest diversity being found in the tropics. Certain tropical marine ecosystems, in particular coral reefs, may have species diversity equivalent to the richest terrestrial systems such as tropical rain forests.' There are also areas of concentration of endemic species.' such as the Red Sea. Some endemics may have a very narrow distribution: for instance the Coelacanth, famous as a living fossil, around the Comoros, and the Totoaba in the Gulf of California. There are also endemics which live only in the waters of certain oceanic islands, for instance St.Helena. 6 It used to be generally accepted that diversity decreases with increasing depth and that deep oceanic waters and the deep sea-bed were a biological desert. Recent studies, however, show the deep ocean sediments are characterized by high diversity of localized species. Extrapolations on the basis of recent species counts indicate that there may be still millions of unknown benthic species awaiting discovery. Many would be nematode worms, but it is possible that new, unknown groups could be found.' Another recent advance concerns the discovery of hydrothermal vents on the deep ocean floor in 1977. Although these vents do not house many species, they are of major scientific interest as the species which occur there are supported by chemosynthetic rather than photosynthetic sources of organic carbon,"

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6 7 8

Two recently-identified "hot spots" for coral reef fishes are the coral triangle around Borneo, the Philippines and New Guinea, and the greater Caribbean; see: P. Almada-Villela and D. McAlister, et al., "Coral Fish Specialist Group," (1996) Species (IUCN Species Survival CommissionNewsletter),n026-27, JuneDecember 1996, pp. 62-63. Endemic species are species which are found only in a particular area of the world and nowhere else. Several St.Helena endemics are listed in the 1996 IUCN Red Data List. Heywood, (ed.), supra note 3, pp. 121and 142.Gage, supra note 3, pp.148-177. H.W. Jannasch, "Microbial Processes at Deap Sea Hydrothermal Vents," in P.A. Rana, K. Bostrom, L. Laubier and K.L. Smith, Jr. (eds.), Hydrothermal Processes at Seafloor Spreading Centers, NATO Conference Series IV, Marine Sciences Vol. 12, Plenum Press, 1983, pp. 677-709.

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The level of knowledge and the degree of species identification is particularly poor for marine invertebrates" and micro-organisms, especially fungi and bacteria. Moreover, very little research has been conducted into the genetic diversity within species of marine organims, even of those which are commercially exploited. Knowledge of most marine species - and the threats which face them is still very fragmentary. Even for known species, the level of available information varies widely," the best documented being of course the "charismatic megafauna" such as cetaceans, seals and sea turtles. It is only recently that marine species have begun to feature more prominently in the Red Data List of Endangered Species published by the World Conservation Union (rucx)." The List currently enumerates only 95 species of marine fishes (including sharks, rays and sawfishes), of which 37 are seahorses and related species, and a very small number of marine invertebrates, in particular giant clams and horseshoe crabs . The conservation status of most marine species is still unknown. Whereas a classification system, largely based on phytosociology, has been developed for terrestrial habitats, there is no comprehensive equivalent for marine habitats. The richest and best known include the following cat-

Ongoing research on benthic invertebrates in Iceland (1992-2000) provides one example of how much remains to be discovered. The study has already identified 12 new species in an area of 800.000 km2 and this total may rise to 200 or 300 new species . Only 2000 species had been identified in the study area before the research began. This figure has now increased to around 7000. 10 This is true even of certain large species of cetaceans: for example, a new species of beaked whale Mesoplodon hahamondi has been described from the bones of a single skull. Of the 13 other known species of Mesoplodon described so far, nine have been described from a single specimen and one from a drawing, see (1997) 31 Oryx, (Journal of Fauna and Flora Intemational), London, p. 177. 11 1996 Red List of Threatened Animals, men, Gland, Switzerland, 1996.

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egories: coral reefs," seagrass beds," kelp beds and forests," coastal wetland complexes 15 and benthic sea-floor habitat types."

12 These are tropical shallow-water ecosystems, mostly located between 30° North

and 30° South. They cover a total surface area in the world of around 600,000 km-, mainly in the Caribbean, Indian Ocean , Red Sea and the central and western Pacific. These unusually diverse ecosystems constitute the habitat of very large numbers of species and are of great economic importance for fishing by coastal communities and for tourism. Additional important functions include protection of the coastline from erosion. 13 These are made of marine flowering plants such as Zostera marina and Posidonia oceanica. They are climax ecosystems which are highly productive. They house large numbers of associated animal species and function as spawning areas or nurseries for many fish. 14 These formations occur primarily in the cold currents . They have a high productivity and harbour many species of algae, invertebrates and fish. See B. Groombridge and M.D. Jenkins (eds.), The Diversityofthe Seas: A Regional Approach, the World Conservation Monitoring Centre, WCMC Biodiversity Series N°4 , World Conservation Press , 1996, p. 13. 15 Coastal wetlands include lagoons, estuaries, inshore rocky reefs and sandy slopes which are extensively used as feeding and spawning gounds or nurseries by fishes with open-water adult stages. Such wetlands support essential ecological processes for fish stocks, even if they do not always harbor large adult populations themselves (See Resolution vr.z of the Sixth Meeting of the Con ference of the Parties to the Ramsar Convention, Brisbane, 1996). Other coastal habitats include mud flats, which are exposed at low tide and terrestrial habitats which are directly influenced by the sea. These include salt marshes, beaches, cliffs and sand dunes. One particularly valuable type of coastal ecosystem is the mangrove forest. Mangroves occur throughout the tropics and are estimated to cover about 160,000 km-. They are an essential source of nutrients for adjacent marine areas and serve as breeding, nursery or growing areas for numerous marine species, many of which are of commercial importance. They also have important functions related to flood control and protection of the coastline against erosion. 16 Recent discoveries have shown, as mentioned above, that deep-sea sediments may harbor millions of unknown species. Ocean trenches may be relatively poor in numbers of organisms but they are rich in endemics. Hydrothermal vents have an enormous scientific interest because of the adaptation of their fauna to extreme conditions. Marine columns made by leaking gases in shallow waters make up spectacular submarine complex structures consisting of rocks, pavements and pillars up to four metres high. These formations, created by the aggregation of sandstone and interspersed with gas vents, constitute a highly

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Threats to marine and coastal biodiversity Processes that change the physical conditions of ecosystems and that make such ecosystems unsuitable as habitats for particular species may be of natural origin. Almost all adverse impacts on marine biodiversity result from human activities. These man-made causes may be grouped loosely into the following categories: over-exploitation through direct harvesting," indirect taking (bycatch) of non-targeted species," depletion of food resources of

diversified ecosystem. They occur, in particular, in the North Sea and the Kattegat. See Groombridge and Jenkins (eds.), supra note 14, pp. 7-9; C. Romeo, Interpretation Manual of European Union Habitats, version BUR IS, European Commission, DG XI, Brussels, 1996, p. 9. 17 Species may be over-exploited not only because they are a source of human food but also because of their value in the aquarium trade (coral reef fishes), shell collection (corals and sea shells) or industrial process (giant clams in the production of tiles. For further information see Almada-Villela, McAlister, et al. , supra note 4, p. 63; A.M. Salamanca and M.G. Pajaro, ''The Utilization of Seashells in the Philippines," (1996) 16 TRAFFIC Bulletin, pp. 61-72. 18 The annual world discard in commercial fisheries is estimated at 27 Mt., with shrimp trawlers accounting for about 16 Mt. Until relatively recently bycatch was considered to be an unavoidable consequence of fisheries and was largely ignored (See Hagler, M., "Deforestation of the Deep," (1995) 25 The Ecologist, p. 74-79). Bycatch, and thus the impact on ecosystems, varies depending on the fishing techniques used. Long driftnets, used in tuna fisheries and other fisheries for large pelagic species , are wholly unselective and cause severe mortality among non-targeted species such as marine mammals, turtles and sharks. In the swordfish fishery in the Mediterranean Sea off Italy, the target species make up only 18% of the catch, with the bycatch consisting of 85 different species (See Earll, B.(ed.), Marine Environmental Management : Review ofEvents in 1996 and Future Trends (Supplement 2), Proceedings of a Meeting held from January 22-23, 1997, p.56). Turtles die of asphyxiation in shrimp trawling nets (See B. Pandav, B.c. Choudhuri and C.S. Kar, "Mortality of Olive Ridley Turtles Lepidochelys Olivacea due to incidental capture in fishing nets along the Orissa coast, India," (1997) 31 Oryx, pp. 32-36). Sodium cyanide, used in some coral reef fisheries to stun target species, results in the death of many non-targeted species (See Almada-Villela and McAlister et al., supra note 4, p. 62).

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non-targeted species," effects on genetic diversity within species," habitat destruction or alteration," introduced alien invasive species" and pol-

Krill in the Southern Ocean, for example provides food for numerous organisms, from whales, seals and birds to squid and fish. Over-fishing of such an essential food resource can seriously disrupt whole marine ecosystems and lead to the extinction of many species. Research has shown that the over-fishing of sandeels in the North Sea adversely affects the sea bird populations in that area and that the crash of the Norwegian puffin population, Fratercula arctica, in the 1990' s was caused by the over-exploitation of its primary source of food, the Norwegian spring-spawning herring (See T.M. Tucker, and M.F. Heath, Birds in Europe: Their Conservation Status , BirdLife International (BirdLife Conservation Series n 03), Cambridge, 1994, p. 308). 20 Commercial fishing, and in particular over-fishing, may significantly reduce the virgin stocks and thus result in the loss of genetic resources, as was shown to be the case for the orange roughy in New Zealand. (See J. Beardmore, "Fish Genetic Resources Conservation, Approaches and Issues," in R.S.V . Pullin and C.M.V. Casal (eds.), Consultation on Fish Genetic Resources, Summary Proceedings of a workshop convened by the International Centre for Living Aquatic Resources Management as part of the CGIAR System-wide Genetic Resources Programme (Rome, December 11-13, 1995), 1996, pp. 29-31) . 21 Human activities and human-generated processes are the major cause of marine and coastal habitat loss or degradation . Mangrove forests, for instance, are directly threatened by reclamation or conversion into fish farms, particularly for the culture of shrimps . A global survey of coral reefs in 1997 showed that 95% of the world's reefs have been damaged by over-fishing, dynamiting and poison used to catch coral reef fauna, pollution and ship's anchors. Erosion, which results from, for example, deforestation, also presents an important threat to coral reefs as a result of the fact that it reduces, among other things, light levels in the water and smothers the polyps (See S. Wells (ed .), Coral Reefs of the World, UNEP!lUCN, 1988, vol. I, pp. xx-xxi, (1998) 32 Oryx, p. 17). Benthic habitats are destroyed by trawler nets that scrape the seabed, as well as by dredging activities, the extraction of sand and gravel and the dumping of rubble. Urbanization, the development of tourist facilities and other forms of economic development also threaten the coastal environment. 22 The introduction of alien species may affect native species and biodiversity by competing for the same resource, preying on indigenous organisms, carrying and transferring pathogens or altering natural habitats. Once introduced, alien species can constitute a self-regenerating form of biological pollution. Alien species may enter the marine environment in a number of ways, including through the release of "foreign" ballast water by ships and releases from aquaculture facilities - in the latter case both the species cultured and accom19

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lution." Other factors which may seriously affect marine biodiversity, but are beyond the scope of this chapter, include the depletion of the ozone layer and climate change.

Jurisdiction over marine biodiversity The principle of the freedom of the high seas, including the freedom to fish, became an established rule of international law by the middle of the eighteenth century. As a consequence, it was universally accepted that coastal states had no rights over the biological resources of the sea, except in the narrow three-mile-wide territorial waters which were deemed to form part of their national territory. Thus, the vast majority of marine biological resources were outside the jurisdiction of coastal states and free to be exploited by anyone. This principle prevailed until the conclusion, in 1982, of the United Nations Convention on the Law of the Sea (LOS Convention)." The international regime of the seas established by LOS Convention brought radical changes to the jurisdictional rules of the past. Coastal states now have sovereign rights for the purpose of exploring, exploiting, conserving and managing all natural resources, whether living or non-living, within not only their internal waters and their territorial sea, now extended to a distance of twelve miles from the coast or base-line, but also within their ZOO-nautical mile exclusive economic zone." In addition , they have juris-

panying pathogens, parasites and commensals as well as lost bait may cause problems. (See, e.g. CH.F. Boudouresque, "Les especes introduites dans les eaux cotieres de 1' Europe et de la Mediterranee: Etat de la question et consequences," in CH.P. Boudoureque, F. Briand, and C. Nolan (eds.), Introduced Species in European Coastal Waters, Ecosystem Research Report n08, European Commission, n.o.xn, EUR 15309, Luxembourg, 1994, pp. 8-27; R.P. Pech, "Managing Alien Species: the Australian Experience," in a.T. Sandlund, P.J. Schei and A.. Viken (eds .), Proceedings of Norway/UN Conference on Alien Species, (Trondheim, July 1-5, 1996), Directorate for Nature Management and Norwegian Institute for Nature Research, Trondheim, 1996, pp.198-203). 23 For a comprehensive description of all forms of marine pollution and their effects on living organisms see : R.B.Clark, Mar ine Pollution, Clarendon Press, 1997. 24 (1982) 21 lIM 1261. 25 Art. 56(1)(a), LOS Convention.

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diction in their exclusive economic zone for the purpose of scientific research and the protection and preservation of the marine environment. 26 A coastal state also exercises sovereign rights over the whole continental shelf off its coast, even where it extends beyond the 200-nautical mile limit of the exclusive economic zone, for the purpose of exploiting its natural resources." Sovereignty over marine species on the continental shelf beyond the 200-nautical mile limit, however, is limited to sedentary organisms." Beyond the outer limit of the exclusive economic zone, on the high seas, the age-old principle of freedom of fishing remains applicable, subject to a state's treaty obligations, certain rights and duties of coastal states and certain conservation and management rules laid down by the LOS Convention. Special rules apply to anadrornous" and catadromous'" species, and to highly migratory species listed in Annex I to the Convention." The jurisdictional provisions of the LOS Convention, which enshrine political rather than ecological boundaries, have brought under the jurisdiction of coastal states more than half of the world's oceans and seas and a very high proportion of marine species, including most fish of commercial

Art. 56(1)(b), LOS Convention. Art. 77(1), LOS Convention. 28 Art. 77(4), LOS Convention. Sedentary organisms are organisms which, at the 26 27

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harvestable stage, either are immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil. This unscientific definition is ambiguous and could be the source of conflicts similar to the past "lobster wars." Art. 66, LOS Convention. Anadromous species breed in fresh water, often far inland, descend to the sea to mature and then, after some time, return to the rivers where they were born to spawn and give birth to a new generation. Examples are of anadromous species are sturgeon, shad and salmon. Also see Birnie, supra Chapter 13. Art. 67, LOS Convention.Catadromousspeciesbreed at sea and then spend their adult life in fresh waters. European eels, for example, spawn in the Sargasso Sea, in the Atlantic. Their larvae reach the coast after several years, by then in the form of little fish called elvers, and grow to maturity in fresh water. Also see Birnie, supra Chapter 13. Art. 64, LOS Convention.

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importance. The latter is the effect of the fact that biodiversity is richest in shallower coastal waters." From a legal point of view, there are three categories of marine species: those occurring only on the high seas, those that occur exclusively in areas under national jurisdiction and those that migrate between areas under national jurisdiction and the high seas or between adjacent areas under national jurisdiction. On the high seas, treaties provide the only legal mechanism for establishing cooperation between states with the object of avoiding over-exploitation and the depletion of resources. There probably are no species of commercial importance which live exclusively in the high seas, except where no exclusive economic zones have been established. The protection ofhabitats beyond the limits of national jurisdiction also requires the conclusion of treaties. None have been adopted so far. Certain provisions of the LOS Convention relating to the exploitation of deep sea-bed minerals, however, should ensure that the need to preserve marine biodiversity, and in particular the deep-sea benthic fauna, is duly taken into consideration." Species that throughout their Iife-eycle remain in areas subject to the jurisdiction of a single state depend entirely on national legislation for their protection. Conservation treaties, applicable to areas within national jurisdiction may play an important role in determining what types of conservation measures a state should adopt, of course, provided that the state in question is a party to the relevant convention. The conservation and management of species that migrate between different jurisdictional zones requires coordinated and concerted action on the part of all the Range States of a given species, which is best achieved by the conclusion of treaties. However, as there are no Range States on the high seas, a mechanism is required that opens such treaties to those states that exploit the species concerned in a given zone. In the Convention on the Conservation of Migratory Species of Wild Animals" (Bonn Convention) this problem was resolved by including in the definition of a Range State of a migratory species any state whose flag vessels are engaged outside

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This statement disregards the as yet poorly understood deep-sea communities which are not at present seriously threatened by human activities. Art. 145. LOS Convention.

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(1980) 19 lIM 15.

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national jurisdictional limits in the taking of the species concerned." Treaties also provide a mechanism for attaining the conservation and management of stocks that migrate between two or more adjacent areas under national jurisdiction or between the high seas and an adjacent exclusive economic zone.

INTERNATIONAL INSTRUMENTS APPLICABLE TO MARINE BIOLOGICAL DIVERSITY

Fishery treaties

The need to regulate fishing arose as localized subsistence harvesting gradually gave way to industrial fisheries and the first signs of over-fishing appeared . As most fisheries occurred on the high seas, treaties were the only means to avoid conflicts, prevent over-exploitation and achieve sustainable use where several states were harvesting the same resource. One of the most important obligations of the LOS Convention with regard to living resources is article 61(2). It provides that the coastal state must ensure, through proper conservation and management measures, that the maintenance of these resources in the exclusive economic zone is not endangered by over-exploitation. There is no corresponding obligation in respect of internal waters, the territorial sea and the continental shelf where the sovereignty or jurisdiction of the coastal state is unrestricted. On the high seas, under article 117 of the LOS Convention, all states have the duty to take, or to cooperate with other states in taking, such measures for their respective nationals as may be necessary for the conservation of living resources . There is no explicit reference in this article to the need to prevent over-exploitation. Another obligation of major importance is imposed on states who share straddling stocks, or fish for identical living resources in the same area of the high seas, or fish for highly migratory species, whether in the high seas or in their exclusive economic zone. They have the duty to cooperate in the conservation and management of these resources." The LOS Convention

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Art. I(1)(h), Bonn Convention. Arts. 63, 64 and 118, LOS Convention.

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did not lay down any specific rules relating to the measures to be taken to conserve these species. As the status of the species concerned continued to deteriorate, a treaty dealing specifically with highly migratory species and straddling stocks became necessary to flesh out this obligation. The result was the conclusion, on December 4, 1995, of the 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" (Straddling and Highly Migratory Fish Stocks Agreement). This Agreement, which is not yet in force, is discussed further below." Cooperation in the regulation of international fisheries largely predates the LOS Convention and many treaties were concluded before its adoption. Some had to be renegotiated afterwards to bring them in line with the new regime of the sea. Others were signed after the conclusion of the LOS Convention. Certain fisheries treaties only apply to certain species while others cover all fishing activities in particular areas. Species treaties at present in force apply to certain highly migratory species. They include the International Convention for the Regulation of Whaling" (lCRW) (Washington, December 2, 1946), a number of agreements for the regulation of tuna fishing in different parts of the world: Convention for the Establishment of an Inter-American Tropical Tuna Commission" (lATIC) (Washington, May 31, 1949), International Convention for the Conservation of Atlantic Tunas" (ICCAT) (Rio de Janeiro, May 14, 1966), Agreement for the Establishment of the Indian Ocean Tuna Commission" (Rome, 1993) and Convention for the Conservation of Southern

37

(1995) 34 lIM 1542 and in W.E. Burhenne (ed.), International Environmental Law; Multilateral Treaties; KluwerLaw International, p. 995:90. Specifically on the Straddling and Highly Migratory Stocks Agreement see Hayashi, supra

Chapter 4. See text at and following supra note 123. 39 161 UNTS 72. Burhenne, supra note 37, p. 946:89. This convention started as a fishery treatybut has evolved gradually intoa conservation treatyafterfailing to ensure the sustainable use of the resource concerned. Also see Birnie, supra Chapter 13. 40 80 UNTS 3. Burhenne, id., p. 949:41. 41 673 UNTS 63. Burhenne, id., p. 966:38. 42 Burhenne, id., p. 993:85. 38

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Bluefin Tuna" (Canberra, May 10, 1993) and treaties relating to certain anadromous species such as the Convention for the Conservation of Salmon in the North Atlantic Ocean" (Reykjavik, March 2, 1982) and the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean (Moscow, February 11, 1992).45 Treaties governing a particular geographical area played a prominent role during the pre-Los Convention period. They playa lesser role now that coastal state jurisdiction has been extended to 200 nautical miles. They will continue to be needed for the conservation and management of straddling stocks or where no exclusive economic zones have been established. Examples of area conventions pertaining to straddling stocks are the Convention on Future Multilateral Cooperation in the North West Atlantic Fisheries" (NAFO), signed at Ottawa on October 24, 1978 and the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea47 (Washington, June 16, 1994). In both cases fishing regulations or restrictions may only be imposed in the area occupied by the stocks concerned outside national jurisdictional limits. Treaties in areas where no exclusive economic zones have been proclaimed include the Agreement for the Establishment of a General Fisheries Council for the Mediterranean" (Rome, September 24, 1949) and the Convention on the Conservation of Antarctic Marine Living Resources" (CCAMLR) (Canberra, May 20, 1980). CCAMLR applies not only to areas that are not under national jurisdiction but also to the exclusive economic zones established around the sub-Antarctic islands." In the Baltic, fisheries are regulated by the Convention on Fishing and the Conservation of Living Resources in the Baltic Sea and

43 44

45 46 47

48 49

50

Id. p. 993:36. Id. p. 982:17. Also see Birnie, supra Chapter 13. Id. p. 992: 13. Also see Birnie, supra Chapter 13. Id. p. 978:79. Text in 5 Yearbook of International Environmental Law (1995) p. 821. 490 UNTS 444 . Burhenne, supra note 37, p. 949:72. 19 ILM 841. Burhenne, id., p. 980:39. Territorial claims over the Antarctic continent were "frozen" under the Antarctic Treaty of 1959 (402 UNTS 71). As a result, any claim to an exclusive economic zone off the coast of that continent has been likewise "frozen".

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the Belts," (Gdansk, September 13,1973), which is applicable to all waters except internal waters.

Conservation instruments The principles of conservation Conservation treaties are instruments whereby parties undertake to adopt and implement measures for the conservation of species or ecosystems in areas under their jurisdiction." Early instruments were limited to the establishment of prohibitions to kill or capture endangered species and to trade in such species and to the protection of areas of conservation value . They usually contained lists of fully protected species and of species whose taking had to be regulated by the parties . The United Nations Conference on the Human Environment (Stockholm, 1972) and the adoption of the World Charter for Nature by the United Nations General Assembly in 198253 mark, respectively, the beginning and end of the first decade of world awareness of threats to the natural environment and the importance of remedial action. The Stockholm Declaratiorr" and the World Charter for Nature can be considered as soft law instruments of major importance for the development of international environmental law. Three of the general principles contained in the Charter are of particular relevance to conservation in the sea. These are: The genetic viability of the earth shall not be compromised; the population levels of all life forms, wild and domesticated, must be at least sufficient for their survival , and to this end necessary habitats shall be safeguarded." All areas of the earth, both land and sea, shall be subject to these principles of conservation; special protection shall be given to unique areas , to repre-

51

Burhenne, supra note 37, p. 973:68.

52 In respect of protected species, these obligations generally also apply in the

high seas to the vessels of contracting parties. UNGA Resolution 37/7, (1983) 22 lIM 455. 54 (1972) 11 lIM 1416. 55 Principle 2,World Charter for Nature. 53

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sentative samples of all the different types of ecosystems and to the habitats of rare or endangered species." Ecosystems and organisms, as well as the land, marine and atmospheric resources that are utilized by man, shall be managed to achieve and maintain optimum sustainable productivity, but not in such a way as to endanger the integrity of those other ecosystems or species with which they co-

exist."

These general principles have provided both a basis and a framework for the development of conservation treaties. Four global sectoral conservation conventions covering, respectively wetlands of international importance, sites of universal value, trade in endangered species and the conservation of migratory species were concluded during this period. They were followed by a number of regional instruments." The sectoral and regional approach was not sufficient to cope with the depletion of biological diversity everywhere in the world. There were many gaps. The need for a global convention covering all aspects of conservation and sustainable use of biological diversity became increasingly clear to conservationists in the early 1980s. The General Assembly of rucx in 1982 adopted a resolution calling for the conclusion of such a treaty. This was the first step in a lengthy process. Eleven years later the Convention on Biological Diversity was signed at the Earth Summit at Rio de Janeiro, on June 5, 1992.

The Convention on Biological Diversity Because biodiversity embraces all life forms and ecosystems, it cannot be conserved and sustainably used without reference to all forms of economic and social activity that affect the living world. The Convention on Biological Diversity is the most ambitious attempt of the international community to address these issues. Its most relevant provisions are briefly outlined below.

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Principle 3, World Charter for Nature.

57 Principle 4, World Charter for Nature. 58 See text starting at infra note 71.

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As mentioned above," the definition of biological diversity given by the Convention is very broad. It includes not only the diversity of wild species, but also genetic diversity within species and the diversity of ecosystems where species live. It also covers domesticated or cultivated varieties of animals and plants. The Preamble of the Convention on Biological Diversity, while reaffirming the principle that states have sovereign rights over their own biological resources, affirms that the conservation of biological diversity is a "common concern of humankind." The Convention on Biological Diversity lays down a series of general obligations to achieve three objectives defined in article 1: the conservation of biological diversity; the sustainable use of its components; and the fair andequitable sharing of the benefits arising out of the utilization of genetic resources. Article 6 is fundamental to the objective of integrated ecosystem management at all levels. Each party is required, in accordance with its particular conditions and capabilities, to develop national strategies, plans or programs for the conservation and sustainable use of biological diversity and to integrate the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programs and policies. More specifically, parties are required, "as far as possible and as appropriate," inter alia, to: establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity." regulate or manage biological resources important for the conservation of biological diversity, with a view to ensuring their conservation and sustainable use," promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings." rehabilitate and restore degraded ecosystems and promote the recovery of threatened species" and prevent the introduction of, control or eradicate those alien

59 60 61 62 63

See infra text at note 2. Art. 8(a), Convention on Biological Diversity. Art. 8(c), Convention on Biological Diversity. Art. 8(d), Convention on Biological Diversity. Art. 8(t), Convention on Biological Diversity.

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species which threaten ecosystems, habitats or species." They must also identify processes and categories of activities that are likely to have significant adverse impacts on the conservation and sustainable use of biodiversity,65 monitor their effects'" and regulate or manage any processes or categories of activities determined to have such impacts." This innovative obligation applies to any kind of activity whether on land or in the sea. Article 10 requires parties to take certain measures, again "as far as possible and as appropriate," to ensure the sustainable use'" of components of biological diversity. These include regulating the use of such resources to avoid or minimize adverse impacts on biological diversity. This important provision provides a legal basis for taking measures to address harmful impacts of mainstream economic activities, such as the over-exploitation of target species and the incidental taking of non-target species. Parties should also protect and encourage customary use of such resources in accordance with traditional cultural practices if compatible with sustainable use requirements and encourage cooperation between the governmental and private sectors in developing methods for sustainable use of biological resources. The Convention on Biological Diversity incorporates Principle 21 of the 1972 Stockholm Declaration into its operational provisions. Article 3 provides that States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmentalpolicies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

64 65 66 67

68

Art. 8(h), Convention on Biological Diversity. Art. 7(a), Convention on Biological Diversity. Art. 7(b), Convention on Biological Diversity. Art. 8(1), Convention on Biological Diversity. This is defined in Article 2, Convention on Biological Diversity, as "the use of components of biological diversity in a way and at a rate that does not lead to the long-termdeclineof biological diversity, therebymaintaining its potential to meet the needs and aspirations of present and future generations."

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This far-reaching but very broad obligation extends to the activities of a state's nationals on the high seas. In addition, parties are required to cooperate for the conservation and sustainable use of biodiversity in respect of areas beyond national jurisdiction." This provision thus establishes a legal basis for the development of shared work programs with other bodies concerned with activities that affect biodiversity, including fishery organizations. The Convention on Biological Diversity establishes institutions, in the form of a Conference of the Parties (cop), a Secretariat and a Subsidiary Body on Scientific, Technical and Technological Advice (SBSTfA), to review and facilitate its implementation. Article 21 also provides for the establishment of a financial mechanism to provide resources to developing country parties on a grant or concessional basis . The mechanism must be accountable to the COP, be run by an institutional structure chosen by the cOP and operate within a democratic and transparent system of governance. After much debate among the negotiators of the Convention, the Global Environment Facility (GEFfo was selected as the structure to operate the financial mechanism. The Convention also provides for the possibility to conclude protocols to further develop certain of its provisions, thereby using a method which has been successful in other conservation treaties, in particular the regional seas conventions. The Convention on Biological Diversity entered into force on December 29, 1993, just 18 months afterits conclusion. By January 1, 1998, there were 171 parties, representing a striking level of international consensus in support of its objectives and obligations. Its potential contribution to the conservation and sustainable use of the marine environment is discussed further on in this chapter. The Convention does not replace conservation treaties that were concluded before its adoption . Each one of these agreements can be considered in fact, if not in law, as an instrument that can contribute to the implementa-

69 Art. 5, Convention on Biological Diversity.

70 The GEF was created in November 1990 to function with three implementing

agencies: United Nations Development Programme, UNEP and the World Bank to provide financial resources to support conservation projects.

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tion of the Convention in a particular area or field. A short description of these treaties follows.

Overview of conservation treaties applicable to the marine environment The four global sectoral conventions The Convention on Wetlands of International Importance, Especially as Waterfowl Habitae' (Ramsar Convention) was adopted on February 2, 1971. The Convention requires parties to designate at least one wetland for inclusion in a list of wetlands of international importance and to formulate and implement their planning so as to promote the conservation of listed wetlands and, as far as possible, the wise use of all wetlands in their territory. The definition of wetlands provided in article 1 includes areas of marine water the depth of which at low tide does not exceed six meters. All areas of shallow coastal waters therefore are covered by the Convention, as well as all coastal fresh or brackish water and wetlands. The Convention for the Protection of the World Cultural and Natural Heritage" (World Heritage Convention) was signed in Paris on November 23, 1972. It requires parties, inter alia, to identify, conserve and transmit to future generations natural sites or areas of outstanding universal value from the point of view of science, conservation or natural beauty. The sites so identified are placed by the World Heritage Committee on a World Heritage List on the basis of criteria established by the Committee. Any area under the jurisdiction of a contracting party, including coastal and marine areas, may be included in the List provided that it meets the relevant criteria. The Convention on International Trade in Endangered Species of Wild Fauna and Flora 73 (CITES) was signed at Washington on March 3, 1973. CITES prohibits commercial trade in listed endangered species (Appendix I) and strictly regulates trade in certain other species (Appendix II) in order to avoid utilization incompatible with their survival. Any species, including any marine species, may be listed in these Appendices at the decision of

(1972) 11 ILM 969 . Burhenne, supra note 37, p. 971 :09. 11 ILM 1358. Burhenne, id., p. 972 :86. 73 993 VNTS 243. Burhenne, id., p. 973 :18. 71

72

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the Conference of the Parties. Special rules apply to specimens "introduced from the sea" into the territory of a party. Since the adoption of Convention the regulation of international trade in species protected by other international instruments has been entirely left to CITES, by tacit agreement. However, not all species protected by other treaties , particularly regional treaties, are listed in the CITES Appendices, as listing is undertaken at the discretion of the CITES Conference of the Parties. The Convention on the Conservation of Migratory Species of Wild Animals" (Bonn Convention) was signed at Bonn on June 23, 1979. It requires parties to protect endangered migratory species listed in Appendix 1. In addition, the Convention acknowledges that the conservation of migratory species may require cooperation between the Range States of such species . It, therefore, requires parties which are Range States of migratory species listed in Appendix II to endeavor to enter into agreements for the conservation and management of these species . Some of the agreements concluded pursuant to this obligation concern marine species .

Regional instruments The Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere" (Western Hemisphere Convention), concluded at Washington on October 12, 1940 the African Convention on the Conservation of Nature and Natural Resources" (African Convention), concluded at Algiers on September 15, 1968 and the Agreement on the Conservation of Nature and Natural Resources," concluded at Kuala Lumpur on July 9, 1985, between the member states of the Association of South-East Asian Nations (ASEAN Agreement) all contain provisions for the protection of particular species, whether terrestrial or marine, and for the establishment of protected areas. Marine species and the creation of coastal and marine protected areas are specifically mentioned in the ASEAN Agreement. In Europe, the Convention on the Conservation of European Wildlife and Natural Habitats" (Berne Convention), concluded at Berne on Septem-

74 75

76 77

78

19 ILM 15. Burhenne, id., p. 979:55. 161 UNTS 193. Burhenne, id., p. 940:76. 1001 UNTS 3. Burhenne, id., p. 968:68. Burhenne, id., p. 985:51. The ASEAN Agreement was not yet in force by the end of 1997. European Treaty Series, n0104. Burhenne, id., p. 979:70.

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ber 19, 1979 under the auspices of the Council of Europe , lists protected species, including some marine species, and requires its parties to prevent the disappearance of endangered natural habitats. The member states of the European Community have adopted two directives essentially to implement the Berne Convention in the European Union. The Birds Directive" requires the establishment of "special protection areas" to protect the habitats of listed species and of migratory birds in general. Many of these species are marine or coastal. The Habitats Directive" lays down specific conservation measures for listed protected species and species whose exploitation must be regulated. Several marine species are included in these lists. It also requires the designation by member states of "special areas of conservation" (SACS) for the conservation of the habitats of listed species and of listed habitat types. The Habitats Directive provides for the establishment of a network of SACS, called Natura 2000, and establishes a decision-making framework which aims to ensure that the ecological coherence of this network is protected." Several instruments of great importance to marine conservation have been adopted under the Regional Seas Programme established by the United Nations Environment Programme in 1974. This involved the preparation of Action Plans for thirteen regions.f with more than 140 coastal states and territories participating. Each Action Plan provides a basis for drawing up a framework convention setting out principles and general obligations for marine and coastal conservation, together with procedural requirements and institutional mechanisms. In tum, each convention (currently nine)

Council Directive 79/409/EEC of 2 April 1979 on the Conservation of Wild Birds , OIEC, NO L 103,25 April 1979, p. 1. 80 Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora, OJEC, NO L 206 , 22 July 1992, p. 7. 81 Art. 6(4), Habitats Directive. 82 These regions are the Mediterranean, Persian IArab Gulf (Kuwait region) , West and Central Africa, Caribbean, East Asia, South-East Pacific, Red Sea and Gulf of Aden , South Pacific, Eastern Africa, South Asian Seas , North-West Pacific and Black Sea. An Action Plan for the South-West Atlantic is currently being prepared.

79

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provides for the adoption of protocols setting out more detailed measures to address particular sets of issues." Whilst all regions have given priority to controlling pollution from marine and land-based sources, four of them have adopted protocols for the creation of marine and coastal protected areas and/or the protection of threatened or vulnerable species. These instruments are as follows. The Protocol concerning Mediterranean Specially Protected Areas" (Geneva, April 3, 1982) adopted under the 1976 Convention for the Protection of the Mediterranean Sea Against Pollution" (Barcelona Convention) only addressed the establishment of marine and coastal protected areas. A new protocol has now been adopted to replace it. This is the Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean86 (Barcelona Protocol) (June 10, 1995). The new Protocol provides for the protection of marine species as well as of areas. In addition, the Barcelona Convention itself has also been amended and its name changed to the Convention for the Protection of the Mediterranean Environment and Coastal Region of the Mediterranean." The Protocol on Protected Areas and on Wild Fauna and Flora in the East Africa Region" (Nairobi, June 21, 1985), adopted under the Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region" (Nairobi, June 21, 1985), contains both species- and area-based provisions . The Protocol on Specially Protected Areas and Wildlife in the Wider Caribbean Region?" (Kingston, Jamaica, January 18, 1990) was adopted under the Convention for the Protection and Development of the Marine

83 Parties to these Conventions are required to adopt at least one Protocol when

they adopt such a Convention. 84 Burhenne, supra note 37, p. 982:26. 85 (1976) 15 lIM 290. 86 Text in 6 Yearbook ofInternational Environmental Law (1995) at p. 887. Also

in Burhenne, supra note 37, p. 976:13/F. See T. Scovazzi, ''The Recent Development of the "Barcelona System" for the Protection of the Mediterranean against Pollution ," (1996) 11 The International Journal of Marine and Coastal Law, pp. 95-100 . 88 Burhenne, id., p. 985:46. 89 Id., p. 985.48. 90 Id., p. 990:34. 87

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Environment of the Wider Caribbean Region" (Cartagena de Indias, March 24, 1983). It contains provisions on protected species, protected areas and the development of cooperative management programs between its parties. The Protocol for the Conservation and Management of Protected Marine and Coastal Areas of the South-East Pacific'? (Paipa, Colombia, September 21, 1989), adopted under the Convention for the Protection of the Marine Environment and Coastal Areas of the South-East Pacific" (Lima, November 21, 1981), contains provisions on marine protected areas, but not on species. The Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region" (Abidjan, March 23,1981), in its article 11, contains an obligation for its parties to endeavor to establish protected areas and to prohibit and control any activity likely to have adverse effects on the species, ecosystems or biological processes in such areas. A similar provision appears in article 14 of the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region" (Noumea, November 24, 1986, Noumea Convention). No protocols relating to this matter have been concluded under either of these conventions, so far. The Convention on the Protection of the Black Sea against Pollution" (Bucharest, April 21, 1992, Bucharest Convention) contains a general provision on the conservation of marine life. Other treaties concerning regional seas also have been concluded outside the UNEP Regional Seas Programme. These include the Convention on the Protection of the Marine Environment of the Baltic Sea Area 97 (Helsinki, April 9, 1992, Helsinki Convention)

p. 983 :23. p. 989:71. p. 981 :84. u, p. 981:23 . u, p. 986:87 . p. 992 :30. ld., p. 992 :28. The 1992 Helsinki Convention is not yet in force . When it enters into force it will replace an earlier agreement, bearing the same name , signed on 22 March 1974, also at Helsinki. The latter contains no provisions on the conservation of marine areas or species . The Commission established under that instrument, called the Helsinki Commission, has nonetheless begun to develop a network of protected areas.

91 /d., 92

93 94

95 96 97

u,

u,

u,

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and the Convention for the Protection of the Marine Environment of the North-East Atlantic" (Paris, September 22, 1992). Like the UNEP regional seas conventions, these instruments deal mostly with pollution. Instruments that deal with particular species Several treaties have been concluded for the conservation of particular marine species. These include:

the Convention for the Conservation of Antarctic Seals" (London, June 1, 1972); the Agreement on the Conservation of Polar Bears'?' (Oslo, November 15, 1973); and the Inter-American Convention for the Protection and Conservation of Sea Turtles'?' (Caracas, December 1, 1996). as well as the following treaties adopted as Agreements under the Bonn Convention: the Agreement on the Conservation of Seals in the Wadden Sea 102 (Bonn, October 16, 1990); the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas 103 (New York, March 17, 1992) (ASCOBANS); the AgLeement on the Conservationof African-EurasianMigratory Waterbirds'?' (The Hague, August 15, 1996) (AEWA) , which applies to a number of seabirds; and

Id., p. 992:71. 99 11 lIM 251. Burhenne, id., p. 972:41. Also see Birnie, supra Chapter 13. 100 13 lIM 13. Burhenne, id., p. 973:85. 101 Id., p. 996:90. By the end of 1997 the Convention had been signed by Brazil , Costa Rica, Nicaragua, Peru, the United States and Venezuela. There were no ratifications yet. 102 p. 990:77. 103 Id., p.992:21. Also see Birnie, supra Chapter 13. 104 Text in 6 Yearbook oflntemational Environmental Law (1995) p.907; Burhenne, id., p. 995:45. 98

u,

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the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area l 05 (Monaco, November 24, 1996) (ACCOBAMS).

LEGAL AND INSTITUTIONAL OBSTACLES TO THE CONSERVATION OF MARINE BIODIVERSITY

The separation between land and the sea The high water mark forms a formidable legal barrier. On the seaward side stands the public maritime domain. Jurisdiction over species and ecosystems, and thus the power to protect them and to enforce the law, is generally vested with the department in charge of fisheries. Jurisdiction over species on the landward side generally belongs to the ministry in charge of nature conservation or of hunting. Other "terrestrial" departments may have jurisdiction over certain coastal habitats. Mangroves, for instance, often come under the jurisdiction of the forestry department and it is therefore not surprising that their role as key habitats for many marine species is sometimes ignored. This jurisdictional split has resulted in a corresponding separation between fishery and conservation legislation. Fishery legislation is mostly considered as an instrument designed to regulate an extractive industry exploiting renewable resources rather than a component of environmental law. 106 It is generally limited to the control of the catch or collection of, and domestic trade in, marine organisms and rarely deals with other aspects of the conservation of marine species, particularly habitat preservation. The regulation of fisheries is long-established and culturally autonomous, whereas the protection of habitats is a relatively new concept. In psychological terms, it is not always easy to make the con-

Text in 7 Yearbook of International Environmental Law p.697; Burhenne, id., p. 979:55/C. Also see Birnie, supra Chapter 13. 106 An example is provided by the North American Agreementon Environmental Cooperation of 13 September 1993, a side agreement of the North American Free Trade Agreement (NAfTA). The definition of environmental law given in Article 45(2) of that agreement expressly excludes statutes or regulations that have as their primary purpose the management of the commercial, subsistence or aboriginal harvesting or exploitation of natural resources. 105

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nection between reduction in catches or depletion of stocks and habitat destruction or activities generating damaging processes. Nature conservation legislation, for its part, often does not apply to marine species . This is generally because conservation departments have no jurisdiction over these species. However, even when they are fully empowered to do so by law, conservation departments often are reluctant to protect marine species except certain species of "charismatic megafauna" such as cetaceans, sirenians and sea turtles whose protection is recognised as important by public opinion and is accepted as a fully legitimate conservation objective. Furthermore, when both the department responsible for fisheries and the department responsible for nature conservation chose to assert jurisdiction over certain marine species, it may happen that the same species is protected under two different sets of rules. More frequently, even when a species is protected under an international convention, it remains unprotected in national legislation because the conservation department has no jurisdiction to protect it and the department in charge of fisheries has not developed the necessary legislation because it is not interested or does not consider that the convention is applicable to its activities. Thus, in certain countries, for instance Malaysia, national legislation adopted for the implementation of CITES simply omits many marine species listed under CITES, in particular sea turtles, fish and invertebrates. But even where the conservation department has undisputed jurisdiction to protect marine species, it seldom results in a relatively comprehensive listing of protected endangered species."? There are even cases where, although a marine species is protected by conservation legislation, the department of fisheries considers that it retains primary jurisdiction over the species and authorizes its exploitation. Costa Rica provides an interesting example of this kind of inconsistency. The green turtle Chelonia mydas is fully protected under the Wildlife Conservation Act of 1992 and no permits for the taking of the species may be granted except for scientific or conservation purposes. Yet, the Department of Fisheries is currently issuing permits for the commercial exploitation of this species, moreover in a national park!'?"

107 Slovenia and Sri Lanka are among the few countries who have listed a relatively 108

large number of marine species under their conservation legislation. P. Opay , "Hunting of green turtles at Tortuguero, Costa Rica," (1998) 32 Oryx, pp .l0-12.

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Finland is one of the few countries that provides clear jurisdictional rules relating to marine species. The Nature Conservation Act of December 20, 1996 excludes commercial fish from the scope of the Act except CITEs-listed species and the species protected under the European Community's Habitats Directive. The Nature Conservation Decree of February 7, 1997, which implements the Act, gives the list of fish species that are covered by the Act. Most of the species on the list are fresh-water species but there are a few coastal marine or brackish-water fish as well. The marine/terrestrial jurisdictional split also has important implications with regard to the conservation of natural habitats. In many countries it makes it impossible to organize the integrated management of the land-sea interface. As a result, it is not legally possible to establish protected areas covering both terrestrial and marine parts of the coastline. Protected areas (whether terrestrial or marine) must then stop at the relevant side of the high water mark. The marine/terrestrial jurisdictional divide is rarely enshrined in a country's constitution: it is more a matter oftradition, deeply embedded in policy and administrative practice. Very few countries, such as Greece and Turkey, have introduced laws allowing for the establishment of coastal protected areas covering both land and sea. Even in these cases many problems have been encountered in practice, as it is difficult to establish and operate joint management bodies, whilst enforcement personnel will often be different on each side of the high water mark. Federal or regionalized states may present even more complex problems . Their internal waters and territorial sea often come under the jurisdiction of the federated entities, whereas the exclusive economic zone is likely to be administered by the federal or central government. The consequences of this division can be illustrated by a few examples: in South Africa , seabirds come under national legislation whilst at sea or in the public maritime domain. Once further inland, they are subject to provincial legislation. in Spain, the Constitution confers ownership of the public maritime domain on the state, but vests the power to establish protected areas on the regions (Autonomous Communities). The 1989 Nature Conservation Act provided for the establishment of national parks in the public maritime domain. However, this provision was annulled by the Constitutional

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Tribunal which ruled that although the central government was constitutionally the owner of the public maritime domain, it had no jurisdiction to establish protected areas there .109

The separation between fisheries and conservation instruments As a result of the jurisdictional separation between land and sea, international conservation and fishery instruments usually also operate in entirely separate realms. The international law of fisheries is not generally concerned with the conservation of biodiversity. Conservation treaties, on the other hand, generally deal marginally , if at all, with the protection of marine species and ecosystems.

Fishery treaties generally do not address biodiversity Fishery treaties are primarily aimed at ensuring the sustainable use of a particular biological resource when exploited by more than one state, not at the conservation of biological diversity as such. The LOS Convention itself addresses essentially the exploitation of living resources, and of associated or dependent species, in the exclusive economic zone and on the high seas. The term "living resources" is not defined by the LOS Convention. It would seem, however, that it should be understood, from articles 61, 62, and 119, to denote only harvestable species. There are hardly any references in the LOS Convention to other marine species except species associated with harvested species or dependent on such species. On two occasions however the LOS Convention uses the expression "marine life"110 to indicate explicitly that a provision is applicable to all marine species and not only to harvestable ones . Exploited resources, important as they may be as a source of food and for their economic value, however, constitute only a small fragment of marine biodiversity. Moreover, the pro-

109

Judgment of June 28, 1995.

110 Pollution of the marine environment is defined in article 1, LOS Convention,

as "the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life...", and in article 194(5), LOS Convention, which provides for the taking of measures to protect the habitat of endangered species and other forms of marine life.

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hibition of over-exploitation laid down by the LOS Convention only applies in the exclusive economic zone and the high seas, not in the territorial seas and for certain sedentary species, on the continental shelf.'!' Although the LOS Convention was intended to deal comprehensively with all matters relating to the use of the seas, it does not establish specific rules for the conservation of marine biodiversity, except for two provisions : article 194(5) on the protection of rare or fragile ecosystems and article 196(1) on the introduction of alien species into the marine environment. These rules need to be further developed through more specific instruments.!" The obligation of article 192 to protect and preserve the marine environment.!" which is applicable in all jurisdictional zones, is likewise very general and although the LOS Convention sets out in detail the rules pertaining to pollution, it is almost completely silent on the other processes or activities that may be destructive of the natural environment. Moreover, pollution is treated more as a general threat to the health of the oceans, fisheries and human interest than as a specific process threatening marine biological diversity. Other fishery treaties, with the notable exception of CCAMLR, tend to deal only with the regulation of the catch of the target species and make little or no provision for ecological management of fish stocks or the implementation of a comprehensive ecosystem approach. Moreover, they never regulate international trade in the species that they cover. In particular, treaties focus on population dynamics of target species when determining their total allowable catch (TAC) although habitat destruction may in the long term affect recruitment more than a fall in the numbers of mature breeding individuals caused by over-fishing . No fishery treaty contains habitat conservation measures, even though many commercial fish-

111

112

113

In other words, within the exclusive economic zone the over-exploitation prohibition does not apply to organisms that at the harvestable stage are permanently attached to the bottom or are unable to move except in constant physical contact with the sea-bed. Protocols on marine protected areas concluded under certain of the regional seas conventions signed under the auspices of UNEP were developed in pursuance of article 194(5), LOS Convention, a topic that will be discussed below. This term is not defined by the LOS Convention. Article 145, which applies to the Area, is the only article that refers specifically to "the flora and fauna of the marine environment."

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eries depend for their future viability on the maintenance of spawning areas and nurseries in the coastal zone.

Conservation instruments deal only marginally with marine biodiversity Many conservation instruments deal only in a limited way with marine biodiversity. Although all four global conventions and regional instruments notionally apply to marine areas and species as well as to land, their coverage of marine areas in practice is very limited . At the global level, two treaties contain area-based protection measures applicable to the marine environment. Although under the Ramsar Convention some coastal wetlands are included in the List of Wetlands of International Importance, few marine areas have so far been listed. The Strategic Plan of the Convention for the years 1997 to 2002, which was adopted by the sixth meeting of the Conference of the Parties in 1996, recognizes that coral reefs, mangroves and seagrass beds are currently under-represented on the Ramsar LiSt.114 Similarly, few marine areas have been designated as World Heritage Sites under the World Heritage Convention, the most famous one being the Australian Great Barrier Reef. As mentioned earlier, coverage of marine species is extremely uneven . Priority is universally given to the "charismatic megafauna" namely cetaceans, sirenians and sea turtles and, in the Mediterranean, the monk seal. The inclusion of other marine species under conservation treaties sometimes has proven to be highly controversial. For example, an attempt was made during the final negotiation session of the Bonn Convention to exclude most marine species from the scope of that treaty, certain delegations claiming that such species should come exclusively under the LOS Convention. This attempt, however, was unsuccessful and it was eventually accepted that any marine species could be included in the appendices to the Bonn Convention. Nonetheless, in practice few marine species have been so listed. Certain cetaceans, the Mediterranean Monk Seal and sea turtles are included in Appendix I; more cetaceans, a few seals, the dugong, some sea birds and, again, the sea turtles are in Appendix II. No fish are listed.

114

Strategic Plan, Action 6.2.3, in Proceedings ofthe 6th Meeting ofthe Conference of the Contracting Paries, Brisbane, Australia, March 19-27, 1996, Rarnsar Convention Bureau, Gland, Switzerland, 1996.

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The CITES Appendices also include cetaceans, sirenians and sea turtles and a few species of seal. Appendix I lists a very small number of marine fish, including the Coelacanth Latimeria chalumnae and the Totoaba Cynoscion macdonaldi. Appendix II includes all reef-forming corals and black corals, the Queen Conch Strom bus gigas and the giant clams of the family Tridacnidae. liS There thus are very few commercially exploited marine species listed in CITES Appendix II. Attempts to list the bluefm tuna, which is heavily overexploited, were rejected by the CITES Conference of the Parties as a result of strong opposition from fisheries interests. Acceptance of the listing would have meant that international trade in this species would have been limited to specimens that were legally obtained and for which export permits had been issued. Despite the huge trade in coral reef ornamental fish, none are listed in the CITES Appendices and international trade in these species remains completely unregulated. The effectiveness of CITES with regard to marine species is further undermined by the difficulty of controlling the introduction of specimens of listed species into the national territory of a party when these have been caught at sea. Specimens taken in the exclusive economic zone are considered to originate from the national territory of the party concerned and do not therefore fall under CITES. The introduction of specimens taken on the high seas is controlled by CITES but, as there is no exporting country to issue an export permit, all that is required is the presentation of a certificate from the management authority of the state of introduction. The dual control mechanism applicable to inter-state trade, at both the import and export stage , which is the very basis of CITES, cannot work for introductions from the sea. Interestingly, this is an aspect of CITES on which practically no information is available: the Conference of the Parties and commentators do not appear to have discussed the topic. The Convention on Biological Diversity applies to the variability among marine species and ecosystems.!" including in areas beyond the limits

115

116

Two species of anadromous sturgeon are listed in Appendix I. All other sturgeons, most of which are anadromous, were included in Appendix II in 1997. All international trade in caviar is therefore now subjectto CITES controls and requires export permits. Art. 2, Convention on Biological Diversity.

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of national jurisdiction, such as the high seas and the deep sea-bed. However, its substantive provisions do not specifically refer to marine biodiversity and no guidance is provided on how to protect biodiversity in situ on the high seas. The Convention on Biological Diversity also remains silent on intellectual property rights in genetic resources obtained from the high seas. It follows that the principle and practice of free access to genetic resources in the high seas remains unchanged. This could be particularly relevant in the case of genetic resources obtained from species living in hydrothermal vents, which may have considerable interest for the purpose of genetic engineering. 117 The Convention is also silent on how to resolve conflicts if the source of a particular genetic resource is shared between waters under national jurisdiction and the high seas. At the regional level, coverage of marine species and areas in conservation instruments is generally very limited. Only three of the protocols adopted under UNEP regional seas conventions provide for the protection of marine species and often only partially . The Nairobi and Kingston Protocols only list a small number of uncontroversial marine species , mostly restricted, as usual, to cetaceans, sirenians and sea turtles, and focus mainly on terrestrial species. More specifically: the Nairobi Protocol lists as fully protected species eleven plants (none marine) a small number of terrestrial mammals (bats, lemurs, one monkey) and a large number of birds, mostly savanna or forest species . The only listed marine species are the dugong, the blue and humpback whales , one sea bird, three sea turtles, whip coral and black coral , and a few molluscs: giant clams, commercial trochus and pearl oysters, all of which are seriously at risk because of over-exploitation, but not a single species offish! The list of harvestable species whose exploitation must be controlled comprises only three marine species: two sea turtles and the spiny lobster, and again no fish! the Kingston Protocol reveals the same pattern. The list of fully protected species includes all cetaceans, sirenians and sea turtles, some sea birds, two fresh water fish occurring near the coast and no less than 56 ter-

117

T. Scovazzi, "Biodiversity in the Deep Seabed," (1996) 7 Yearbook of International Environmental Law, pp. 481-487 .

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restrial plants. It does not include any marine fish, invertebrates or plants! The list of species whose exploitation must be regulated includes all corals, the Queen conch and the lobster but no fish. This contrasts with the proposed list established by scientists. That list contained a large number of marine species, including many fishes, but it was not accepted by the negotiators. The recent Barcelona Protocol is the only regional seas instrument with a reasonable coverage of marine species.!" Turning to the conservation of marine areas under Regional Seas Protocols, it is perhaps symptomatic that the network of marine and coastal areas designated under the 1982 Geneva Specially Protected Areas Protocol for more than two-thirds concern terrestrial areasl!" In regional instruments other than those applicable to particular seas, the coverage of marine species is again very limited. To take the European example, the Berne Convention, apart from cetaceans, the Mediterranean monk seal, seabirds and sea turtles, initially listed no marine species. Certain Mediterranean species were added to the Convention's Appendices in 1997 for reasons of consistency with the list of the Barcelona Protocol. The European Union Habitats Directive establishes conservation measures for a few marine species and the habitats of certain listed species. Annex II, which lists species whose conservation requires the designation of special areas of conservation, contains a limited number of true marine species, namely: two cetaceans (Tursiops truncatus and Phocaena phocaena), three seals and the sea turtle Caretta caretta; it also lists some coastal terrestrial, freshwater or brackish water species. Annex IV of the Directive lists species in need of strict protection, which include all cetaceans, the monk seal, sea turtles and a very small number of invertebrates but no other marine species. Annex V, which lists species whose taking in the wild and exploitation may be subject to management measures, lists only two marine invertebrates. These

118 119

See the text at infra note 86, for a discussion of the 1995 BarcelonaProtocol. An analysisofthe the areasdesignated by the Partiesto the Protocolas Specially Protected Areas pursuant to their obligations under that instrument shows that two-thirds of the areas so designated are coastal land areas with no marine component. See C. de Klemm, Protected Areas in the Mediterranean, IUeN, Environmental Law Centre, Bonn, 1991.

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annexes will need to be amended to bring them in line with the Barcelona Protocol and the Berne Convention. To summarize, whilst the "charismatic" marine megafauna are legally protected by conservation treaties.P' although there are many remaining important gaps in geographical coverage, the conservation of other endangered marine species is still in its infancy.

Institutional problems

Processes affecting marine and coastal biodiversity are generated by many different activities, whether ship-based or land-based, which come under the jurisdiction of different departments at the national level. Research programs also tend to be split the same way. Many different departments are involved in managing the marine environment and the coastal zone. These will include fishery and forestry departments (for mangroves or the reforestation of dunes), often located within agriculture ministries, as well as ministries with responsibilities for planning, regional development, transport, tourism and industry. Efforts to develop integrated and comprehensive policies for the conservation of coastal and marine biodiversity may be seen as encroaching on the territory of different administrations and of the local authorities concerned. At the international level, within the United Nations family, the secretariat of the LOS Convention is provided by the United Nations; pollution of the sea by ships, discarded nets and other debris from ships, and the intro-

120

A summary of the instruments conferring legal protection on these species may be of interest: Cetaceans: ICRW,CITES, the Bonn and Berne Conventions, the Kingston, Nairobi and Barcelona Protocols, ASCOBANS, ACCOBAMS and the EC Habitats Directive. Some of these instruments apply to all cetaceans, others only to certain species. Sirenians: CITES, the Algiers and Bonn Conventions and the Nairobi and Kingston Protocols. Mediterranean Monk Seal: CITES, the Algiers, Bonn and Berne Conventions, the Barcelona Protocol and the EC Habitats Directive. Sea turtles: CITES, the Algiers, Bonn and Berne Conventions, the Kingston, Nairobi and Barcelona Protocols, the EC Habitats Directive and the new Caracas Convention for the Protection and Conservation of Sea Turtles of 1996.

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duction of alien species through ballast waters are the responsibility of the International Maritime Organization (IMO). The Inter-governmental Oceanographic Commission (roc) and the World Heritage Convention are under UNESCO. Fisheries come under the Food and Agriculture Organization (FAO) and the many fishery commissions, which are small international organizations in their own right. The regional seas conventions are covered by UNEP'S Regional Seas Programme. The Convention on Biological Diversity is administered by UNEP; its links with the regional seas conventions as regards marine biodiversity have still to be defined . The Bonn Convention is administered by a Secretariat provided by UNEP, as is CITES. At the regional level, there is a marked distinction between fisheries and conservation mechanisms and programs. Fisheries are generally governed by their own treaties and commissions, which tend to ignore conservation agreements that apply to the same area. The ACCOBAMS Agreement inter alia prohibits the use of driftnets longer than 2.5 kID in the Agreement Area to avoid bycatches of cetaceans. The Final Act of the diplomatic conference, which adopted the Agreement, however reveals that no representatives of General Fisheries Council of the Mediterranean or FAO attended the negotiations as observers; therefore a decision of major importance affecting fishing in the Mediterranean was taken in their absence. UNEP's Regional Seas Programme and conventions never apply to fisheries, which are entirely left to be regulated by the regional fisheries commissions concerned, if any. A rare regional exception is the 1980 CCAMLR. It is the only treaty that purports to cover both fisheries and the protection of the natural environment. However, CCAMLR is limited in its application to the sea: on the Antarctic continent and pack ice, the Antarctic Treaty applies, although there are linkages between the two instruments. Moreover, CCAMLR does not apply to whales and to seals because the conservation of these marine mammals is governed by the ICRW and the Convention for the Conservation of Antarctic Seals, respectively. Finally, in the European Union, fisheries are completely separated from the environment and administered by another Commissioner and Directorate. As a consequence, decisions such as accepting to add marine fish species to the appendices of the Berne Convention (to which the Community is a party in its own right) cannot be taken by the Environment Directorate until the Fisheries Directorate has concurred. This may result in considerable delays .

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TOWARDS A MORE ECOLOGICAL MANAGEMENT OF MARINE BIOLOGICAL DIVERSITY CCAMLR was, and still is, the first and only fishery treaty to adopt a comprehensive ecological approach to the management of a particular marine ecosystem, taking into consideration all or most of the factors which may affect the sustainable use of living resources and the conservation of biodiversity. Subsequently, the LOS Convention and, more significantly, the Straddling and Highly Migratory Fish Stocks Agreement have laid down a basis for that approach to be followed in other fishery treaties. The Convention on Biological Diversity, for its part, provides both a framework and a forum for further development of marine species and ecosystem conservation in future legal instruments. In parallel, an increasing number of fishery and conservation treaties now include provisions regulating activities other than the direct taking of target species. Such provisions relate to the establishment of protected areas or the elimination or minimization of the effects of certain processes or activities on species or ecosystems.

Instruments aiming at a more comprehensive coverage offactors affecting living resources or biodiversity in the sea Fishery treaties CCAMLR pioneered an ecosystem approach as the Third United Nations Conference on the Law of the Sea (UNCLOS III) was nearing the end of its negotiations. CCAMLR applies to the Antarctic marine ecosystem as a whole and is intended to regulate fishing for all marine species except whales and seals. Article II provides that any harvesting and associated activities must be conducted in accordance with the following principles of conservation: prevention of a decrease in the size of any harvested population to levels below those which ensure its stable recruitment; maintenance of the ecological relationships between harvested, dependent and related populations of Antarctic marine living resources; prevention of changes or minimization of the risk of changes in the marine ecosystem which are not potentially reversible over two or three decades .

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The Convention thus lays down a formal requirement for the unitary management of the Antarctic marine ecosystem as a whole. However, this legal advance probably was politically acceptable only because there are no coastal states, as such, in this part of the world as, it will be recalled, under the 1959 Antarctic Treaty, sovereignty claims to Antarctica are "frozen". The Convention also contains provisions that have enabled the Commission, established pursuant to its terms, to take measures related to associated species, birds, krill, the prevention of the release of debris into the marine environment and the establishment of protected areas. There is no limitation on the mandate of the Commission; it has the power to address any problem which may arise and to adopt - by consensus - binding conservation measures on any issue. Binding conservation measures adopted to date relate to the regulation of krill catch to maintain food supply of other species, minimizing the incidental taking of sea birds and controlling the dumping of plastic and other waste. Other, more standard conservation measures relate to direct fisheries, covering catch limits, mesh sizes, regulation of exploratory fisheries, closing of certain areas to fishing and the provision of statistical information. The CCAMLR Commission seems at times to be feeling its way. At the time when the Convention was concluded, the main concern was the importance of krill in the Southern Ocean ecosystem. Since then, in addition to traditional measures to control direct fishing, the Commission has had to concentrate, as a matter of urgency, on trying to reduce incidental mortality of birds and seals. Notwithstanding, the CCAMLR Scientific Committee has at the same time been working on a conceptual model of ecosystem monitoring and management. It has focused on improving the understanding of processes and linkages between harvested species, dependent species, the marine environment and fisheries . The ultimate aim of this work is to develop an effective mechanism for the management of the marine ecosystem, which is the objective underpinning CCAMLR. The Commission has established the CCAMLR Ecosystem Monitoring Programme (CEMP) under which selected sites are effectively treated as protected areas. Two terrestrial CEMP sites so far have been designated (Seal Islands and Cape Shireff) where long-term research work is in progress. Parties must comply with management plans adopted for each area. Such plans list prohibited activities . Entry into a CEMP site is prohibited except

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for the purposes authorized by the management plan and is subject to permit. The LOS Convention Apart from the obligations relating to the direct exploitation of harvested species, the LOS Convention is relatively silent on the measures which should be taken to ensure that fishing activities do not have significant adverse effects on non-target species. It requires states, when taking measures for the conservation and management of living resources, to take into consideration their effects on the species associated with or dependent on harvested species, with a view to maintaining or restoring populations of these species above levels at which their reproduction may be seriously threatened . This obligation applies in the exclusive economic zone'?' and on the high seas.122 The terms "associated" and "dependent" species are not defined . Associated species certainly include dolphins that swim with tunas and are caught in the same nets. But whether the term also includes species of no commercial value caught by trawlers and discarded into the sea is another matter. Dependent species should probably be understood as the predators of harvested species. Strangely, species on which harvested species depend for their food supply, in other words their prey, do not seem to be covered by these provisions . The LOS Convention lays down no further rules relating to the precautions or measures to be taken to implement these provisions. The Straddling and Highly Migratory Fish Stocks Agreement The Straddling and Highly Migratory Fish Stocks Agreement establishes the general rule that coastal states and states fishing on the high seas shall protect biodiversity in the marine environment.F' Article 7, on the conservation and management of straddling and highly migratory fish stocks, requires parties to minimize pollution, waste, discards, catch by lost or abandoned gear, catch of non-target species (whether fish or non-fish) and impacts on associated or dependent species (particularly endangered species) through measures including, to the extent practicable, the development and us~ of selective, environmentally safe and cost-effective fishing gear and techniques. Where necessary, parties must adopt conservation and

Article 61(4), LOS Convention. Article 119(1)(b), LOS Convention . 123 Art. 5, Straddling and Highly Migratory Fish Stocks Agreement. 121

122

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management measures for species belonging to the same ecosystem or associated with or dependent upon the target stocks, with a view to maintaining or restoring populations of such species above levels at which their reproduction may become seriously threatened. Furthermore, article 6 expressly requires parties to apply the precautionary principle not only in relation to measures concerning target stocks, but also by taking account of uncertainties relating to the impact of fishing activities on non-target and associated or dependent species.124 The Agreement remains silent on the conservation and management of endangered habitat types or the critical habitats of target species in areas under the sovereignty or jurisdiction of parties. The Straddling and Highly Migratory Fish Stocks Agreement is essentially, again, a framework treaty, to be developed and implemented by regional and sub-regional organizations. The functions of these organizations are listed in article 10. Curiously, they do not include the taking of any measures relating to the conservation of non-target species, associated or dependent species or biodiversity in the marine environment. Article 36 of the Agreement establishes a Review Conference, which is not to meet at regular intervals but, on the basis of the text of article 36, only once. Its powers are limited to the assessment of the effectiveness of the Straddling and Highly Migratory Fish Stocks Agreement in securing the conservation and management of straddling fish stocks and highly migratory fish stocks. There is no reference here again to other species, marine biodiversity or the conservation of the habitats of target species. CCAMLR is for the time being the only treaty which foreshadows what could be future regional fisheries conventions concluded in pursuance of the Straddling and Highly Migratory Fish Stocks Agreement.

The role of the Convention on Biological Diversity The Convention on Biological Diversity, it will be recalled, applies on land and at sea and in all jurisdictional zones. At its Second Meeting in Jakarta, in 1995 (cop II), the Conference of the Parties adopted the so-called "Jakarta Mandate," based on proposals approved by its Subsidiary Body on Science, Technology and Technical

124

Specifically on the Precautionary Principle see Freestone, supra Chapter 11.

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Advice (SBSTIA) at its fIrst meeting in Paris, in 1995. 125 The Jakarta Mandate is not concerned with the development of new legal instruments but rather with the development of a program of action for the implementation of the Convention in respect of marine and coastal biodiversity. Its five thematic areas are: integrated marine and coastal area management, marine and coastal protected areas, sustainable use of coastal and marine living resources, the implementation of environmentally sustainable mariculture practices and the prevention, control or eradication of alien species which threaten ecosystems, habitats or species. The program lays down operational objectives, requires the review of existing instruments relevant to integrated marine and coastal area management and provides for the development of guidance and criteria for marine and coastal protected areas, the identification of gaps in legal instruments and the drafting of guidelines relating to the introduction of alien species and genotypes. To begin developing the program a first Meeting of Experts on Marine and Coastal Biological Diversity was convened in Jakarta in March 1997. Subsequently, the SBSTIA met in Montreal from 1-5 September 1997 and adopted the program. It also identified priorities for the implementation of the Jakarta Mandate and emphasized the role to be played by existing conventions in the implementation of the Convention on Biological Diversity in the field of marine and coastal biodiversity conservation. The regional seas conventions

Regional seas conventions mainly deal with pollution, never with fisheries . Some provide for the protection of rare or fragile ecosystems and endangered species, none for a comprehensive approach to biodiversity conservation. The only exception is the Mediterranean where amendments to the Barcelona Convention of 1976 were adopted in 1995 to broaden the scope of that instrument from the protection of the Mediterranean against pollution to the protection of the marine environment of that sea, as reflected in the amendment of its title.!" The geographic coverage of the Convention may be extended to coastal areas in individual protocols. General obligations

125

126

A.C. De Fontaubert, D.R. Downes and T.S. Agardy, Biodiversity in the Seas: Implementing the Convention on Biological Diversity in Marine and Coastal Habitats, IUeN Gland and Cambridge, 1996, p. 70. See text at supra note 87.

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now require parties, in accordance with their capabilities, to apply the precautionary principle'I' and the polluter-pays principle, to undertake environmental impact assessments, and to promote the integrated management of the coastal zones, taking into account the protection of areas of ecological or landscape interest and the rational use of natural resources . This enlarged field of application should make it possible to manage the Mediterranean ecosystem as a unit. Fisheries, however, remain excluded from the scope of the Convention. The new Barcelona Protocol, adopted on the same date as the amendments to the Convention, will replace the 1982 Geneva Specially Protected Areas Protocol when it enters into force. The latter, which was the very first of these instruments , was considered obsolete in comparison with the more recent Nairobi and Kingston protocols and in need of amendment. The new version constitutes a significant improvement over the earlier instrument and lays down the basis for an integrated policy on the conservation of marine and coastal areas of importance for biological diversity . The Bucharest Convention is silent on the conservation of species, biological diversity or protected areas in the Black Sea. Article XIII of that instrument reads: The Contracting Parties, when taking measures in accordance with this Convention for the prevention, reduction and control of the pollution of the marine environment of the Black Sea, shall pay particular attention to avoiding harm to marine life and living resources, in particular by changing their habitats and creating hindrance to fishing and other legitimate uses of the Black Sea, and in this respect shall give due regard to the recommendations of competent international organizations.

This rather cryptic provision seems to mean that habitat protection measures taken under the Convention are limited to the prevention or control of pollution and cannot apply to other activities causing damage to the marine

127

The precautionary principle, or approach, as applied to biological diversity appears in paragraph 9 of the Preamble to the Biodiversity Convention. This paragraph reads: "Noting also that where there is a threat of significant reduction or loss of biological diversity, lack offull scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat. " Also see Freestone, supra Chapter 11.

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environment. Nevertheless, it has now decided to deyelop a Protocol on Biological Diversity and Landscape Protection in the Black Sea.128 Article 15 of the Helsinki Convention of 1992 provides that: the Contracting Parties shall individually, and jo intly take all appropriate measures with respect to the Baltic Sea Area and its coastal ecosystems influenced by the Baltic Sea to conserve natural habitats and biological diversity and to protect ecological processes.

The Global Programme ofActionfor the Protection ofthe Marine Environment from Land-Based Activities This non-binding instrument, which was adopted at Washington on December 5, 1995 by an intergovernmental conference convened by UNEP, aims to prevent "the degradation of the marine environment from land-based activities by facilitating the realisation of the duty of States to preserve and protect the marine environment." It contains chapters on national action, regional and international cooperation and recommended approaches according to different sources of pollution and environmental damage. It promotes collaboration and partnerships between governments and relevant regional, national and global organizations and recognizes the important role of nongovernmental bodies, both environmental and industry-based. The conference also adopted a Declaration on Protection of the Marine Environment from Land-Based Activities. The enactment of comprehensive national legislation Very few national fishery regulations also address the conservation of biological diversity. An interesting example is that of the Fisheries Act of 1994, as amended in 1997, enacted by the Australian state of New South Wales. The aims of the Act include the conservation of fish stocks and key fish habitats, the conservation of threatened species, populations and ecological communities of marine animals and vegetation, the promotion of ecologically sustainable development, including the conservation of biological diversity, and, consistently with these objects, the promotion of viable commercial fishing and of quality recreational fishing opportunities. The Act provides,

128

Para. 60, Strategic Action Plan for the Rehabilitation and Protection of the Black Sea, Istanbul, October 31, 1996.

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inter alia, for the listing of threatened species and of key threatening processes, protection of critical habitats of endangered species, conservation of certain habitat types, establishment of aquatic reserves, control of the introduction of non-native species, preparation of threat abatement plans and regulation of particular activities, such as mining and dredging, which may threaten marine biodiversity.

The development of species protection Increased coverage of marine species in conservation instruments The coverage of marine species in conservation treaties has increased, although it is still limited. The 1995 Barcelona Protocol, whose objective is the conservation of biodiversity in the Mediterranean, is the first regional seas protocol to list predominantly marine species as fully protected species. In addition to cetaceans, the monk seal, sea birds and sea turtles, the list includes all Mediterranean marine flowering plants, eleven species of alga and some invertebrates, such as species of sponges, echinoderms, molluscs, crustaceans, cnidaria and bryozoa. It, however, includes only very few marine fish: the only fish species listed are two anadromous sturgeons Acipenser nacarii and A. sturio, one anadromous salmonid Hucho hucho and several endangered species of coastal brackish or fresh-water fIsh.129 Only four true marine fIsh species are listed: two sea horses and two large sharks. The Protocol also lists species whose exploitation must be regulated by the parties. These include four sponges, red and black coral, one urchin, six crustaceans (including lobsters) and sixteen fishes, including certain anadromous species (shads, lampreys) and the catadromous eel (which is not exploited in the sea). Significantly, however, this list also includes the bluefin tuna and the swordfish which are the subject of commercially important fisheries, In the interests of consistency, it was proposed to amend the corresponding appendices of the Berne Convention to include the marine

129

For instance Valencia hispanica, a species endemic to the north-east of Spain which is theatened by the destruction of the coastal marshes which constitute its habitat (Instituto nacional para la conservaci6n de la naturaleza, Lista roja de los vertebrados de Espana, Madrid, 1986, p.128).

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species protected under the Barcelona Protocol. This was approved by the Standing Committee of the Berne Convention in December 1997, but only for the Mediterranean because of the objections of certain Nordic countries. In addition, the Standing Committee failed to reach a decision in respect of the commercially important bluefin tuna and swordfish. A study has begun on the possible inclusion of sharks in Appendix II of CITES. 130 The matter is on the agenda of the CITES Animals Committee, which is meeting in May 1998. The question of the possible listing of vulnerable and endangered commercial marine species will be considered under the work-plan on marine and coastal biodiversity developed under the Convention on Biological Diversity.!" In the European Union, trade controls for certain marine species, which are stricter than those required by CITES, have been instituted by Council Regulation n0338/97 of December 9, 1996 on the implementation of CITES, as amended by Commission Regulation 938/97 of May 26, 1997. All cetaceans are listed in Annex A of the Regulation which means that their import into the Community is prohibited except under a permit, which can only be granted if strict conditions have been met. Certain marine species not listed by CITES are included in Annex D of the Regulation which lists species requiring monitoring of their trade by reason of the volume of imports into the Community. These include all species of sea snakes of the family Hydrophiidae (31 species) and all sea horses of the genus Hippocampus (38 species). The import of specimens of these species requires the prior presentation of an import notification.

Controls on the incidental taking of non-target species The regulation offishing gear. There is clearly a need to develop fishing gear and fishing methods which minimize incidental catch of non-target species. Several instruments now provide for the taking of such measures. They, however, mostly are limited to the protection of charismatic megafauna. Thus , ASCOBANS requires its parties to assess and manage human-cetacean

130 131

M. CamhiandS. Fowler,"Shark Specialist Group,"(1995) Species n025, pp.6970. Reportof theSecretary General to the General Assembly of the UnitedNations: Oceans and the Law of the Sea, Doc. N52/487, 1997, p.79.

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interactions.P' Moreover, article 1 of its legally-binding Conservation and Management Plan commits the parties to work towards the development of modifications of fishing gear and fishing practices in order to reduce bycatches of cetaceans . Similarly, article l(a) of the Conservation Plan of ACCOBAMS provides that parties must develop and implement measures to minimize adverse effects of fisheries on the conservation status of cetaceans. More specific rules relating to the use of fishing equipment, which may kill certain non-target species, such as marine mammals, sea turtles or seabirds, have been developed to cover particular cases or gear. As far as purse seines are concerned, the IATIC, in 1992, established a non-binding program to reduce bycatches of dolphins by purse seiners fishing for yellowfin tuna in the East Tropical Pacific Ocean, which seems to have been very successful.J" In the European Union, Council Regulation N° 894/97 of April 29, 1997 laying down certain measures for the conservation of fisheries resources prohibits the encirclement of schools or groups of marine mammals with purse seines when aiming to catch tuna or other species of fish.!" The Regulation applies to all vessels flying the flag of, or registered in, a member state in all waters under the sovereignty or jurisdiction of the member states as well as outside these waters. With regard to driftnets, the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific'" (Wellington Convention) (November 23, 1989) commits its Parties to prohibit their nationals and vessels from engaging in driftnet fishing activities in the Convention Area and to prohibit the use of driftnets and the trans-shipment of driftnet catches within areas under their fishery jurisdiction.J" Furthermore. UN General Assembly Resolution 44/225 of December 22, 1989 calls upon all members of the international community to impose moratoria on the use of all large-

Art . II(3)(b), ASCOBANS . See M. Hayes, "Fisheries/Marine Mammals," (1993) 4 Yearbook ofInternational Environmental Law, p. 263 . 134 Art. 10(17), Council Regulation No. 894/97 . 135 (1990) 29 ILM 1454. 136 GJ. Hewison, "The Convention for the Prohibition of Fishing With Long Driftnets in the South Pacific," (1993) 25 Case Western Reserve Journal of International Law, pp.449-530. 132

133

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scale pelagic driftnet fishing on the high seas by June 30, 1992. 137 This resolution, although not binding has had considerable moral weight and has prompted legislative action . The use of driftnets longer than 2.5 Ian has now been prohibited by the national legislation of many countries, including the United States, Australia and New Zealand and the European Community. The latter's Council Regulation N° 894/97 specifically refers to the General Assembly Resolution and pursuant to its article 11, prohibits the keeping on board and use of driftnets whose individual or total length is more than 2.5 Ian in all waters under the sovereignty or jurisdiction of the member states (except the Baltic) and outside those waters by all fishing vessels flying the flag of a member state or registered in a member state . Turning to conservation treaties, the binding Conservation Plan annexed to ACCOBAMS provides that no vessel shall be allowed to keep on board, or use for fishing, one or more driftnets whose individual or total length is more than 2.5 kilometres. With regard to trawls, the Caracas Convention requires the reduction, to the greatest extent practicable, of the incidental capture, retention, harm or mortality of sea turtles in the course of fishing activities through the appropriate regulation of such activities. It also requires the development, improvement and use of Turtle Excluder Devices (TEDS). These devices were developed in the United States to prevent bycatches of sea turtles by trawlers fishing for shrimp in the Gulf of Mexico. Their use is compulsory under us federal legislation. 138 The use of long lines is also covered under certain instruments. Binding conservation measures have been adopted by the Parties to CCAMLR to minimize the incidental mortality of seabirds in the course of longline fishing

137 M. Savini, "La reglementation de la peche en haute mer par I' Assernblee Generale des Nations Unies," in (1990) XXXVI Annuaire Francais de Droit Inter-

138

national, pp. 777-817; J.K. Jenkins, "International Regulation of Drifnet Fishing; the Role of Environmental Activism and Leverage Diplomacy," (1993) 4 Indiana International & Comparative Law Review, pp. 197-218. For us regulations on the use of TEDs by trawlers, see (1996) 50 Code of Federal Regulations, Parts 227.71 and 227.72 . The Regulations provide an extensive description of TEDs.

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or longline fishing research in the Convention Area. 139 These measures are essentially designed to prevent birds from being attracted to fishing vessels. Baited hooks must sink as soon as possible after they have been put in the water; only thawed bait can be used. Longlines may only be set at night and only the minimum lights necessary for safety can be used. The dumping of offal must, as far as possible, be avoided while longlines are being set or hauled : if the discharge of offal is unavoidable, it must take place on the opposite side of the vessel to where longlines are being set or hauled. Every effort should be made to ensure that birds captured alive during longlining are released alive and that wherever possible hooks are removed without jeopardising the life of the bird concerned. Vessels must tow a streamer line designed to discourage birds from settling on baits during the deployment of longlines. Specifications for these streamer lines are annexed to the decision. These measures are of course limited to the CCAMLR area. But while albatrosses and white-chinned petrels interact with fisheries mainly within the Convention Area during their breeding season, at other times of the year interaction occurs mostly outside that area."? Measures similar to the ones required under CCAMLR have been made mandatory under national legislation in two areas adjacent to the Convention Area, namely the FalklandlMalvinas Islands and the Australian Fishing Zone south of 30 0S .141 The CCAMLR Scientific Committee, however, has expressed hope that other conventions regulating longline fishing also would begin to tackle the problem of seabird-longline fishery interactions.'? The Commission for the Conservation of Southern Bluefm Tuna (CCSBT) has set up a Working Group on Ecologically Related Species. The Group's Report shows that significant declines have been observed for a number

139

140 141 142

Decision 29/xv, CCAMLR. The Conservation Measures wereadopted in response to a report on Statistics on the incidental catch ofseabirds by longlines, compiled by the Working Group on Fish Stock Assessment, which found that logbook data and observer reports indicated poor compliance with existing measures. The number of seabirds being caught, especially black-browed albatrosses, was a matterof seriousconcern. Under-water setting of long lines has been tried experimentally and could constitute a solution to the problem. CCAMLR, Report ofthe X\lh Meeting ofthe Scientific Committee (Hobart, 21-25 October 1996), p. 15.

u,

u;

p. 17. p. 417.

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of albatross and other seabird populations, that significant levels of seabird bycatch are associated with longline fisheries, that the magnitude of the bycatch is sufficient to be the primary cause of the observed declines and that the population biology and demography of many albatross species suggests that current bycatch levels are not sustainable . These findings support the case for tuna fisheries commissions to take steps to reduce seabird incidental mortality. However, as these commissions do not, under their respective treaties, have the competence that CCAMLR has to adopt binding decisions to protect non-target species, they will presumably only be able to make non-binding recommendations. The incidental taking of certain non-target species thus, to some extent, can be controlled by limiting the use of certain gear or adapting the gear to prevent bycatch . The FAO Committee of Fisheries has commissioned groups of experts to develop guidelines for reducing the incidental catch of seabirds and sharks,'? In some cases alternative fishing methods may have to be found but this may not be always easy. To give an example, the incidental catches of the endangered Coelacanth by artisanal fishers in the Comoros cannot be prevented because this would involve prohibiting longline fishing, the livelihood of coastal village people. The solution would seem to be to provide alternative and more advantageous fishing methods such as fish aggregation devices for pelagic species, thus making the use of longlines unnecessary and sparing the Coelacanth. !" Very little has been done about the majority of bycatches, particularly those resulting from ecologically destructive trawling of the sea bottom. The number of species concerned is poorly known, but it is certain that the quantities thrown back into the sea are very high. Controls on the dumping ofmarine debris. The discarding of nets, plastics and other debris can lead to the incidental mortality of seals, cetaceans or other species due to entanglement and subsequent choking or drowning. The Protocol relating to the Convention for the Prevention of Pollution from Ships'? (MARPOL) (London, February 17, 1978) and its Annexes

Report of the Secretary General of the United Nations, supra note, 131, p. 35. R. Plante, ''The Coelacanth, a Reprieve for a Fossil ," (1997) Oceanorama, n027, pp. 16-18. 145 (1978) 17 lIM 546. 143

144

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prohibit the jettisoning of all plastics at sea. Despite this provision, substantial entanglement of fur seals is still continuing. The Parties to CCAMLR therefore have adopted Conservation Measure 63/xv, which sets out detailed requirements going much beyond a mere prohibition to discard plastics, namely: the prohibition to use on fishing vessels plastic packaging bands to secure bait boxes; the prohibition to use such bands for other purposes on vessels which do not use on-board incinerators; any packagingbands, once removed from packages,must be cut so that they do not form a continuous loop and must be burned in the on-board incinerator at the earliest opportunity; any plastic residue must be stored on board the vessel until it reaches port; in no case may it be discarded at sea. Treaties can also lay down measures to prevent fishing gear from getting adrift or being discarded at sea. The ACCOBAMS Conservation Plan, in article 2(b), requires parties to make regulations with a view to preventing fishing gear from being discarded or left adrift at sea, and to require the immediate release of cetaceans caught incidentally in fishing gear in conditions that assure their survival.

Comprehensive conservation measures for particular species Certain recent instruments dealing with the conservation of certain species of charismatic megafauna have endeavoured to cover all aspects of the conservation of the species they aim to preserve and to control all activities which contribute to their unfavorable conservation status. In addition to provisions on incidental catches, article 1 of the ASCOBANS Conservation and Management Plan requires parties to work towards: the prevention of the release of substances which are a potential threat to the health of small cetaceans; the effective regulation [...] of activities whichseriously affect the food resources of the cetaceans covered by the Agreement; and the preventionof other significantdisturbance, especiallyof an acoustic nature.

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The binding ACCOBAMS Conservation Plan also goes beyond provisions to prevent bycatches and the discarding of fishing gear. Parties must require the preparation of impact assessments to provide a basis for authorizing or prohibiting the continuation or future development of activities that may affect cetaceans or their habitat, and for establishing the conditions under which such activities may be conducted. These activities include fisheries , offshore exploration and exploitation, nautical sports, tourism and cetacean watching . Parties must also regulate the discharge at sea of pollutants believed to have adverse effects on cetaceans. In order to reduce the mortality of dolphins caught by purse seiners fishing for yellowfin tuna in the East Tropical Pacific, the United States not only imposed strict rules on their own tuna fishers but also unilaterally instituted an embargo on the imports of yellowfin caught by countries which did not have programs similar to its own. This measure was strongly opposed by affected exporting countries, in particular Mexico, on the grounds, inter alia, that it was inconsistent with GATT rules. The Mexican position was confirmed by GATT panels.l" The solution appeared to be the conclusion of a binding legal instrument to which all countries fishing for tuna in the East Pacific would be parties and which would impose fishing practices avoiding the drowning of dolphins . In 1992, ten countries fishing in the region concluded an informal agreement providing for a Dolphin Conservation Programme and setting decreasing yearly limits on the numbers of these animals that could be killed by purse-seiners between 1993 and 1999.147 In 1995 the countries concerned adopted the Panama Declaration'" whereby they undertook to negotiate a binding international agree-

United States - Restrictions on Imports of Tuna, Report of the GAIT Panel, August 16, 1991, (1991) 30 lIM 1594 and United States - Restrictions on Import of Tuna, Report of the GAIT Panel, May 20, (1994) 33 lIM 842. See also McDorman, infra Chapter 16. 147 (1994) 33 lIM 936. For a history of the matter, see J. Joseph , "The Tuna-Dolphin Controversy in the Eastern Pacific Ocean : Biological, Economic, and Political Impacts , "(1994) 25 Ocean Development and International Law, pp. 1-30. 148 Adopted on 5 October 1995 by Belize, Colombia, Costa Rica, Ecuador, France, Honduras , Mexico, Panama , Spain, the United States, Vanuatu and Venezuela. Text in (1995) 6 Yearbook of International Environmental Law, doc. 10 on diskette accompanying the Yearbook . 146

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ment, under the auspices of IATIC, that would protect dolphin species and stocks in the IATIC area and impose dolphin mortality restrictions on tuna fishers ."? The agreement was eventually adopted on February 7, 1998 at La Jolla, California, and is open for signature as from May 15, 1998.150 The Agreement has as a goal to eliminate dolphin mortality in the purseseine tuna fishery in the eastern Pacific Ocean. It provides for an on-board observer programme, an overall dolphin mortality limit and mortality limits per vessel engaged in the fishery. It also lays down operational requirements for fishing vessels covering dolphin safety gear and equipment, to allow the animals to escape from the nets, and procedures to be followed during fishing operations for the protection and release of dolphins. An International Review Panel is to oversee the implementation of the Agreement. Interestingly, it is to be composed not only of representatives of the parties but also of conservation NGOS and of the tuna industry. The Secretariat will be provided by IATIC. A similar controversy occurred later in respect of sea turtles drowning in shrimp trawls. The United States imposed unilaterally trade sanctions on countries which did not use TEDS. The case was again brought before the WTo/GATI, where it was again decided the measures adopted by the United States were not compatible with WTo/GA TI rules. 151 The conclusion in 1996 of the Caracas Convention for the Protection and Conservation of Sea Turtles was clearly a move to solve the problem for the Western Hemisphere. This Convention requires parties, to the extent practicable, to restrict human activities that could seriously affect sea turtles, including incidental catches . Parties must take measures for the development, improvement and use of TEDS. They also have the obligation to protect, conserve and, if necessary, restore sea turtle habitats and nesting areas and designate protected areas for those purposes. Each party must establish a monitoring program for sea turtles. Annex II lays down measures related to the protection and conser-

149 150 151

A. Petsonk, "Dispute Avoidance and Settlement," (1995) 6 Yearbook ofInternational Environmental Law, pp. 198-202, pp. 200-201. Agreement on the International Dolphin Conservation Program, Burhenne, supra note 37, p. 998: 11. United States - Import Prohibition of Certain Shrimp and Shrimp Products, Report of WTO Panel , May IS, 1998, (1998) 37 lIM 832 and United States Import Prohibition of Certain Shrimp and Shrimp Products, Report of WTO Appellate Body , October 12, 1998, from hUp://www .wto.org.

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vation of sea turtle habitats. These include environmental impact assessment requirements, management and regulation of the use of beaches and coastal dunes with respect to the location and design of buildings, regulation of the use of artificial lights and the transit of vehicles in nesting areas , closing of certain areas, modification of fishing gear and restrictions on vessel movements . A solution for other areas where sea turtle mortality in shrimp trawls continues to be high remains to be found. Examples of such areas are the Indian Ocean and South East Asian waters.

The development of habitat conservation The establishment of protected areas Jurisdiction at sea and the right to establish protected areas . The LOS Convention contains few provisions on protected areas. The most important one is contained in article 194(5). It requires states "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." As this obligation is included in Part XII of the Convention, it is applicable to all jurisdictional zones. The LOS Convention does not impose restrictions on the powers of a coastal state to adopt conservation measure in its internal waters. The same applies in the territorial sea subject to the right of innocent passage by foreign ships. In the exclusive economic zone, coastal states have jurisdiction over the protection and preservation of the marine environment. They therefore can create protected areas. This right, however, must be exercised with due regard to the rights and duties of other states, such as the right of free navigation. Coastal states , however, may restrict navigation in their exclusive economic zones for environmental purposes in two special cases . First , article 234 of the LOS Convention gives the right to coastal states to take measures in their exclusive economic zone for the prevention, reduction and control of marine pollution from vessels in ice-covered areas where the presence of ice during a part of the year creates hazards to navigation and the pollution resulting from any accident could cause considerable harm to marine ecosystems. This implies the possibility of closing certain areas to navigation. Secondly, article 211(6) of the LOS Convention authorizes coastal states to

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adopt in certain parts of their exclusive economic zone mandatory rules for the prevention of pollution from vessels, which may be more stringent than those generally applicable in that zone under the LOS Convention. This may be done where oceanographic and ecological conditions, the protection of resources and the special character of ship traffic justify it. The IMO has developed guidelines for the designation of Special Areas under this provision and for the identification of Particularly Sensitive Sea Areas. On the continental shelf, beyond the 200-nautical miles line and up to a maximum of 350 nautical miles, coastal states have sovereign rights over the sea-bed but not over the water column, and over certain sedentary living organisms but not over those that swim. This jurisdictional split could make the establishment of protected areas somewhat difficult. On the high seas, the principles of freedom of fishing and freedom of navigation hamper the establishment of universally binding restrictions. The only way to establish protected areas is through the conclusion of treaties whereby parties commit themselves to abstain from activities liable to cause harm to the ecosystems concerned. Such treaties would be binding only on their parties. No true protected areas have so far been established on the high seas or the deep sea-bed. Certain fishery treaties, however, provide for the designation of areas closed to fishing by their parties. Examples are the Indian Ocean and Southern Ocean Sanctuaries established by the International Whaling Commission, where all whaling is prohibited. The Barcelona Protocol opens the way to the creation of protected areas in the high seas in the Mediterranean. Article 9 of that instrument provides that Specially Protected Areas of Mediterranean Importance may be established, upon the proposal of two or more neighboring parties to the Protocol, in zones partly or wholly on the high seas. The decision to create any such area, and the management measures applicable therein, must be adopted by consensus. Thereafter, all parties are legally bound under the Protocol to comply with the protection rules thus laid down, even where such specially protected areas are located wholly on the high seas. The need to develop legal means to establish protected areas on the high seas and the deep sea-bed is now recognized. The Meeting of Experts on Marine and Coastal Biological Diversity held in March 1997 under the Biodiversity Convention highlighted the unique significance of certain high seas

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and deep sea-bed areas such as identified spawning areas,152 deep ocean trenches and certain hydrothermal vents. It "called for consideration to be given to the development of means and modalities for the establishment of marine protected areas in such locations." The Meeting suggested that the Convention Secretariat "include this issue in its collaborative relations with the United Nations Department of Ocean Affairs and the Law of the Sea.,,153

Protected areas under Regional Seas Conventions. Implementing article 194(5) of the LOS Convention , the Geneva, Nairobi, Kingston, Paipa and Barcelona Protocols to the corresponding Regional Seas Conventions expressly provide for the establishment of marine and coastal protected areas. These instruments are applicable to all jurisdictional zones; the Barcelona Protocol is the only instrument that refers explicitly to the high seas. These instruments also cover the terrestrial coastal zone and, in the case of the Kingston Protocol, the whole watershed of streams flowing into the Convention Area. Each of these Protocols requires that measures taken to protect marine areas must be in conformity with international law, whereby the principle of the freedom of the high seas and issues of flag state jurisdiction come into play. Protocols providing for the establishment of protected areas have not been concluded under the other Regional Seas Conventions. The 1995 Barcelona Protocol is the most recent and comprehensive of this series of protocols. Article 6 of this instrument sets out a list of measures that its parties are required to take in the Specially Protected Areas that they have designated . These measures include: strengthening the application of the other protocols to the Barcelona Convention and other relevant treaties to which they are parties; this concerns essentially measures to control land-based pollution and the dumping of waste;

152 For instance, the Sargasso Sea in the tropical North Atlantic which is the

spawning area for eels of European and North American origin. 153 Convention on Biological Diversity; Subsidiary Body on Scientific, Technical

and Technological Advice; Conservation and Sustainable Use of Marine and Coastal Biological Diversity, Report by the Executive Secretary; Doc. UNEP/CBDI SBSTIAl3/4, May 12, 1997, p.lO.

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prohibiting the discharge of wastes and other substances likely to impair directly or indirectly the integrity of the area; regulating the passage of ships and any stopping or anchoring; regulating the introduction of species not indigenous to the area or of genetically modified organisms; regulating or prohibiting any activity involving the exploration or modificationof the soil or the exploitationof the subsoil of the land part, the sea-bed or its subsoil; regulating scientific research; regulatingor prohibitingfishing, hunting, takingof animalsand harvesting of plants or their destruction; regulating and if necessary prohibiting anyother activityor act likely to harm or disturb the species or to impair the natural or cultural characteristics of the area; and any other measure aimed at safeguarding ecological or biological processes and the landscape. The Nairobi and Kingston Protocols contain fairly similar provisions. Article V of the Paipa Protocol contains an important obligation to prohibit activities relating to prospecting and mining of the soil and subsoil of protected areas, to regulate all scientific, archaeological or touristic activity in these areas and generally to prohibit any activity liable to have adverse effects on the species, ecosystems or biological processes they contain, or on their status as national scientific, ecological, economic, historical, cultural, archaeological or touristic assets. Both the Kingston and Barcelona Protocols provide for the drawing up of a list of marine and coastal protected areas and for the development of guidelines and criteria for the identification, selection, establishment, management and protection of these areas. The inclusion of an area on the list, which requires a decision of the Meeting of Contracting Parties, may only take place if the relevant criteria have been met. The Barcelona Protocol further provides that the removal of an area from the list must take place via the same procedure. The list of the Barcelona Protocol, called the List of Specially Protected Areas of Mediterranean Importance (SPAMI), will include sites which are of importance for conserving the components of biological diversity in the Mediterranean, contain ecosystems specific to the Mediterranean area or the habitats of endangered species or are of special interest at the scientific,

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aesthetic, cultural or educational levels. The parties agree not to authorize nor undertake any activities that might be contrary to the objectives for which the SPAMIS were established. Criteria for the listing of SPAMIS are contained in Annex I to the Protocol. They comprise uniqueness, natural and cultural representativeness, diversity, naturalness and the presence of habitats that are critical to endangered, threatened or endemic species. To be included in the SPAMI List an area must have a legal status guaranteeing its effective long-term protection; have a management body endowed with sufficient powers, means and human resources to prevent or control activities likely to be contrary to its aims and also a management plan and a monitoring program. The Abidjan and Noumea conventions contain general provisions relating to the establishment of protected areas but no protocols have yet been concluded for their implementation. 154 Amongst the non-UNEP regional seas treaties , neither the Helsinki Convention for the Baltic Sea nor the Paris Convention for the North-East Atlantic contain any specific provisions on the establishment of protected marine areas. The Commission established under the Helsinki Convention of 1974, which will be replaced by the new Helsinki Convention of 1992 as soon as it comes into force, is creating a network of Baltic Sea Protected Areas . The protection of transboundary marine ecosystems. Effective cooperation for the conservation and management of transboundary protected areas gen-

154

Article 11 of the Abidjan Convention provides that "The Contracting Parties shall, individually or jointly, as the case may be, take all appropriate measures to protect and preserve rare or fragile ecosystems as well as the habitats of depleted, threatened or endangered species and other marine life. To this end, the Contracting Parties shall endeavour to establish protected areas, such as parks and reserves , and to prohibit or control any activity likely to have adverse effects on the ecosystems, species or biological processes in such areas." Article 14 of the Noumea Convention reads as follows: "The Parties shall, individually or jointly, take all appropriate measures to protect and preserve rare or fragile ecosystems and depleted, threatened or endangered flora and fauna as well as their habitats in the Convention Area. To this end, the Parties shall, as appropriate, establish protected areas, such as parks and reserves , and prohibit or regulate any activity likely to have adverse effects on the species, ecosystems and biological processes that such areas are designed to protect. .. ."

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erally requires an agreement between the states concerned and an appropriate institutional arrangement.' There are very few terrestrial examples of such transboundary cooperation in the world, let alone in marine areas. All Regional Seas Protocols except the Paipa Protocol contain a provision on the establishment of protected areas along the border between two parties or along the limits of national jurisdiction between two parties .!" None expressly requires cooperation in the management of shared areas. Article 5(2) of the Barcelona Protocol provides that if a party intends to establish, in an area subject to its sovereignty or national jurisdiction, a specially protected area contiguous to the frontier and to the limits of a zone subject to the sovereignty or national jurisdiction of another party, the competent authorities of the two parties shall endeavor to cooperate with a view to reaching agreement on the measures to be taken 'and shall, inter alia, examine the possibility of the other party establishing a corresponding specially protected area or adopting any other appropriate measure. So far no agreements seem to have been concluded between parties to any of the protected area protocols at present in force on the establishment of transboundary protected areas. There are a few examples of agreements relating to shared ecosystems outside the regional seas system. Mention may briefly be made of the two following cases: Denmark, Germany and the Netherlands, the three riparian countries of the Wadden Sea (a very large complex of shallow waters , sand-banks and mudflats which is an important Ramsar site), have signed an agreement establishing the Common Wadden Sea Secretariat. This was the culmination of a decade of informal cooperation in respect of the Wadden Sea, which was hampered by the number of overlapping institutions with competence over different functions or parts of the area concerned. Under the agreement, there is now a single institution to guide and coordinate trilateral strategy and action for the conservation and management of the Wadden Sea. The Secretariat, based in Germany, also provides services for the 1988 Agreement on the Conservation of Seals in

155

Geneva Protocol (Art.6), Nairobi Protocol (Art.13) and Kingston Protocol (Art, 9).

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the Wadden Sea which was the first Agreement concluded under the Bonn Convention. 156 A treaty between Australia and Papua New Guinea concerning sovereignty and maritime boundaries in the area between the two countries was signed at Sydney on December 18, 1978. This Treaty is of great interest because it is also a conservation treaty that establishes a Protected Zone. One objective of the Treaty is to acknowledge and protect the traditional way of life, livelihood, fishing and movement of the traditional inhabitants and to protect and preserve the marine environment and indigenous fauna in and in the vicinity of the Protected Zone. Each Party must, in, and in the vicinity, of the Protected Zone, use its best endeavors to identify and protect species of indigenous fauna and flora that are or may become threatened with extinction and to prevent the introduction of species of fauna and flora that may be harmful to indigenous species. Parties must also take measures for the prevention and control of pollution or other damage to the marine environment from all sources and activities under their jurisdiction or control. The treaty establishes the Torres Strait Joint Advisory Council to advise the Parties. 157

Mixed terrestrialand marineareas in nationallegislation. The jurisdictional split between land and the sea generally does not make it possible to establish protected areas covering both terrestrial and marine ecosystems. Awareness of the need for an integrated management of coastal protected areas, however, is steadily increasing. Some recent laws promoting the development of mixed land-sea protected areas show that legal obstacles can be overcome through enactment of appropriate legislation. Two examples of such initiatives may be of interest:

156

157

For further information see, K. van der Zwiep and Ch. Backes, "The Missing Link," in K. van der Zwiep and Ch. Backes, Integrated System for Conservation ofMarine Environments, Nomos Verlagsgeselschaft, 1994, pp. 19-70, pp. 46-50 . (1979) 18 lIM 291.

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in Iceland, the Law of March 8, 1995 was enacted specifically to create the Breioafjaroar (Breidafjordur) Conservation Area. The Area includes a marine area, its coastline and a very large number of small islands!". in Finland, the "Gulf of Finland East System" comprises a cluster of strictly protected natural areas and managed nature reserves. These areas, established pursuant to legislation for the implementation of the Helsinki Convention in Finland, will form part of the network of protected areas created under the Convention .159 In 1994, a Workshop in Canberra produced a report entitled Marine Protected Areas and Biosphere Reserves: Towards a new Paradigmr'" This report sets out a number of key principles for effective management of coastal marine protected areas but, as is often the case, does not explore the legal problems associated with the establishment of such areas. The UNESCO Man and Biosphere Programme has focused strongly on the integrated management of coastal marine protected areas in recent years. One example of a marine biosphere reserve is the Boloma-Bijag6s Archipelago in Guinea-Bissau, which was designated in 1996. It comprises 88 islands and islets and the surrounding marine area within the country's territorial sea. The reserve covers a total of 11.000 km2 of which 1.200 km2 is land and 1.600 km2 consists of intertidal areas. 161 Finally, the draft Model Law on Coastal Conservation which is currently being prepared by the Council of Europe will make provision for mixed maritime-terrestrial areas.

The protection of particular habitat types

Report by Iceland to the 13th Meeting of the Standing Committee of the Berne Convention (Council of Europe document T-PVS (93)47). 159 Y. Fokin, ''The Strictly Protected Natural Area 'Gulf of Finland East System," (1996) Baltic Floating University Research Bulletin, n02, co-sponsored by UNESCO, Inter-governmental Oceanographic Commission and the Commission of the Helsinki Convention, p. 87. 160 OJ. Brunckhorst (ed.), Proceedings of the First International Workshop on Marine and Coastal Protected Areas, Australian Nature Conservation Agency, 1994. 161 Biosphere Reserves, Bulletin ofthe International Network, n04, UNESCO, December 1996 p. 8.

158

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The LOS Convention and fishery treaties do not refer to the need to protect the habitat types that are used as spawning grounds or nurseries by species of commercial importance. Neither do conservation treaties normally contain provisions for the protection of marine or coastal habitat types which are important for the conservation of biological diversity. Agenda 21 does place particular emphasis on the need for coastal states to identify marine ecosystems exhibiting high levels of biodiversity and productivity and to provide the necessary limitations on use in these areas. It further provides that priority should be accorded to coral reefs, estuaries, mangroves, coastal wetlands , seagrass beds and other spawning and nursery areas.l'" Agenda 21, however, is not legally binding. Although the Ramsar Convention was concluded with specific reference to wetlands of importance to waterfowl, its institutions have paid increasing attention to other wetland functions, including the importance of coastal wetlands for fish, particularly as spawning areas and nurseries. The need to protect key coastal habitats for fish was formally recognized by the Conference of the Parties, which adopted criteria for the inclusion of such sites on the Ramsar List at its Sixth Meeting in Brisbane, in 1996.163 The need to include on the Ramsar List wetlands belonging to types which are at present under-represented on that list, particularly certain marine or coastal habitats such as coral reefs, mangroves and seagrass beds, was emphasized by the Conference of the Parties, which requested the Convention's Scientific, Technical and Review Panel to develop listing criteria for these types of wetlands. 164

Para. 17.86, Agenda 21 (United Nations, Report of the United Nations Conference on Environment and Development, Rio de Jaineiro, June 3-10, 1992, Res. I, Annex II). 163 Resolution VI.2adopted at the Brisbane meeting provides that "a wetland should be considered internationally important if: (a) it supports a significant proportion of indigenous fish subspecies, species or families, life history stages, species interaction andlor populations that are representative of wetland benefits and/or values and thereby contributes to global biological diversity ; or (b) it is an important source of food for fishes, spawning ground, nursery andlor migration path on which fish stocks, either within the wetland or elsewhere, depend." 164 Resolution VI.3 . 162

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The Berne Convention contains a general obligation to conserve endangered natural habitats; but does not provide any list of these types of environments. It is likely that the Convention's Standing Committee will adopt such a list in the future in the form of a recommendation to the parties. It will be recalled that the European Union Habitats Directive of 1992 provides for the development of a coherent ecological network known as Natura 2000 to include listed endangered habitat types through the establishment of Special Areas of Conservation. A rather large proportion of the habitat types listed in the Directive are marine or coastal. Marine habitats include sandbanks, posidonia beds, estuaries, mudflats and sandflats, lagoons, large shallow inlets and bays, reefs and marine columns in shallow water made by leaking gases. Terrestrial coastal habitats comprise vegetated sea cliffs, shingle and stony beaches, annualvegetation of drift lines, perennial vegetation of stony banks, salt marshes and salt meadows, and dunes with natural vegetation. An Interpretation Manual was adopted by the European Union Habitats Committee in 1996. National legislation has only recently begun to take account of the need to protect coastal habitats, whether marine or terrestrial. Three examples of such provisions may be of interest: The Canadian Fisheries Act of 1985 prohibits, except under a permit, any work or undertaking resulting in the harmful alteration, disruption or destruction of spawning grounds and nursery, rearing and food supply areas on which marine animals depend directly or indirectly to carry out their life processes. The impact of projects potentially affecting fish habitats must be considered before an activity may begin. In France, the 1986 Coastal Areas Act (Loi relative a I'amenagement, la protection et la mise en valeur du littoral) regulates physical planning in the coastal area. Land or sea use plans and development permits must ensure the preservation of natural areas which are remarkable or characteristic of the natural heritage, and the habitats necessary for the maintenance of the ecological balance, including sand dunes , coastal heaths, beaches, coastal woodlands, uninhabited islets, marshes , mudflats , wetlands, coral reefs and mangroves.165

165 Coral reefs and mangroves exist in all four French overseas departements.

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In the Australian State of New South Wales, the Fisheries Management Act of 1994 prohibits the destruction, damaging or removal of mangrove or seagrass vegetation except under a permit. Clearly, the protection of habitat types may and will often be achieved by the establishment of protected areas. This is the method followed by the European Union Habitats Directive, for instance, through the creation of Special Areas of Conservation. But the obligation to preserve these habitats can be achieved by other means, in particular through the broader means of controlling and managing processes and activities which may affect biodiversity, such as fishing .

The control of destructive processes Article 192 of the LOS Convention lays down a very general obligation for states to protect and preserve the marine environment. The Convention on Biological Diversity requires parties to identify, regulate and manage processes and categories of activities destructive to biodiversity.l'" Some of these processes or activities are directly linked to fishing and, in principle, can be controlled under fishery legislation. The introduction of alien species , a particularly damaging process for marine biodiversity, requires specific legislation. Other processes, besides pollution, include activities that affect the sea floor, such as dredging, the extraction of sand and gravel and the dumping of solid substances, as well as the destruction of coastal habitats by reclamation, the construction of harbors, marinas and other structures, the drainage of coastal wetlands, man-made changes in the salinity of coastal lagoons and many others resulting in the destruction or degradation of valuable and fragile ecosystems.

Processes generated by the exploitation of living resources The need to understand the effects of fisheries on marine ecosystems has now been formally recognized, inter alia, by the European Commission. Its Report to the Council of Ministers on the evaluation of the biological

166

Art. 8, Convention on Biological Diversity.

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impact of fisheries!" recommends that research be undertaken on the effects of fisheries on cetaceans, seals, marine reptiles and birds, on the direct and indirect effects of industrial fisheries on birds and predator fish and the direct and indirect effects of fisheries on benthic communities. The use of fishing methods harmful to the marine environment, other than those relating to bycatches, is hardly yet ever regulated under international fisheries instruments, although the taking of such conservation measures is generally within the powers of the commissions set up for their implementation. This is due to the fact that international fisheries bodies are almost exclusively concerned with the regulation of the exploitation of their target species. Moreover, apart from the use of driftnets, purse seines and longlines, most destructive practices generated by fishing occur in areas under national jurisdiction and must therefore be regulated by conservation instruments and national legislation. The Common Fisheries Policy of the European Union requires the Council of Ministers to adopt, in the light of available scientific opinion, the conservation measures needed to guarantee the rational and responsible exploitation of living marine aquatic resources on a sustainable basis and empowers it, to this end, to establish technical measures regarding fishing gear and methods of using it. 168 Pursuant to this provision, binding regulations have been adopted in recent years to control certain damaging activities associated with fishing. These include the use for fishing purposes and the keeping on board of toxic, soporific or corrosive substances, of electric shock generators and of explosives.l" The Council Regulation applicable to Mediterranean fisheries'?" specifically recognizes that the special needs of fragile or endangered species and habitats must be taken into account

167 168

169 170

COM(95)40. Council Regulation (EEC) No.3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture, (Articles 2 and 4); OJEC, N° L 389, 31 Dec. 1992, p.I , Council Regulation W 894/97 of April 29, 1997laying down certain measures for the conservation of fisheries resources, GJEC N° L 132, May 23, 1997, p.l. Council Regulation (EC) N° 1626/94 of June 27, 1994 laying down certain technical measures for the conservation of fishery resources in the Mediterranean, OJEC N° L 171, p.l.

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when regulating fisheries.'?' It prohibits, inter alia, the use of St. Andrews crosses and similar towed gear for the harvest of coral, and the use of pneumatic hammers or other percussive instruments for the collection of lithophagous molluscs. To protect both fragile benthic coastal habitats and the interests of coastal artisanal fishers, it also prohibits the use of trawls within three nautical miles of the coast or within the 50-meter isobath where that depth is reached at a shorter distance from the coast.

The introduction of alien species into the marine environment Provisions on the introduction of alien species into the marine environment are included in both the LOS Convention and the Convention on Biological Diversity. Article 196(1) of the LOS Convention provides that "States shall take all measures necessary to prevent, reduce and control [...] the intentional or accidental introduction of species, alien or new!", to a particular part of the marine environment, which may cause significant and harmful changes thereto;" The Convention on BiologicalDiversity, in article 8(h) requires contracting parties, "as far as possible and as appropriate," [to] "prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species." Provisions along the same lines appear in CCAMLR, the Bonn and Berne Conventions, the African-Eurasian Migratory Waterbirds Agreement, the ASEAN Agreement, the relevant European Union Directives, and the Nairobi, Kingston and Barcelona Protocols.!" Under the 1995 Barcelona Protocol, for instance, parties have the obligation to regulate the intentional or accidental introduction into the wild of non-indigenous species and to prohibit those

Paragraph 11 of the Preamble reads: "[...] whereas it is furthermore appropriate that when regulating fisheries in the Mediterranean, both Community and national legislation should take into account the special needs of particular species and environments recognized to be fragile or endangered." 172 The term "new" is intended to cover genetically modified organisms. As these are not, in fact, new species, but existing species with some artificially modified characters, the term may give rise to confusion. 173 But not in the Paipa or 1982 Geneva Protocols where the prohibition on introductions applies only to protected areas! 171

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introductions which may have harmful impacts on ecosystems, habitats and species. They must also endeavor to eradicate species which cause or are likely to cause damage to ecosystems, habitats or species.!" As that Protocol was negotiated and adopted after the Convention on Biological Diversity, it may be considered as an instrument implementing both the LOS Convention and the Convention on Biological Diversity for that particular purpose. In practice , however, relatively little has yet been done under these various treaties to facilitate the execution of these obligations through the adoption of guidelines or recommendations to parties. The one exception is the Standing Committee to the Berne Convention, it has established a Group of Experts on the Legal Aspects of Introductions. On the basis of the Group's work, the Committee adopted a detailed recommendation on introductions at its 17th session, in 1997. I7S This text does not ask parties to control voluntary imports of non-indigenous organisms, on the grounds that such controls would be contrary to free trade, nor does it apply to aquaculture, from which escapes are almost inevitable. Guidelines also have been adopted recently by certain international organizations to assist states in taking measures to prevent both intentional and unintentional releases of alien marine organisms through particular pathways, such as the discharge of ballast waters or escapes from fish farms. Chapter 17 of Agenda 21, which deals with the Protection of Oceans, asks states to assess, within the IMO and other relevant international organizations, the need to adopt appropriate rules on ballast water discharge to prevent the spread of non-indigenous organisms. Pursuant to this provision, the IMO adopted a resolution on November 4, 1993176 which lays down Guidelines for Preventing the Introduction of Unwanted Organisms and Pathogens from Ships ' Ballast Waters and Sediment Discharges. These Guidelines should constitute a first step towards the preparation of a new legally binding instrument to deal with this particular matter.

Art. 13(1), Barcelona Protocol. Recommendation n057 of the Standing Committee on the Introduction of Organisms Belonging to Non-Native Species into the Env ironment (adopted on 5 Dec .1997), Appendix 8 to the Report of the 17th Meeting of the Standing Committee, document T-PVS (97) 63. 176 1Mo, RES. A.774(18).

174 175

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With regard to aquaculture, the International Council for the Exploration of the Sea (ICES)177 has created a Working Group on Introductions and Transfers of Marine Organisms. The Group follows up reported introductions, whether intentional or accidental. A status report on introduced species has been published for each decade since 1970. A Code of Practice was developed laying down guidelines aimed at minimizing risks, together with a procedure for member states to consult with ICES before carrying out an introduction. The latest version of the Code of Practice was adopted by the Council in 1994. It is not binding.!" In 1995, the FAO adopted the Code of Conduct for Responsible Fisher179 ies. The provisions of the Code relating to aquaculture make reference to alien species. They provide that efforts should be undertaken to minimize the harmful effects of introducing non-native species or genetically altered stocks used for aquaculture into the aquatic environment, especially where there is a significant potential for the spread of such organisms. It is clear that due to the harm that may be caused by an invasive introduced species, legal and technical measures must be based on the precautionary approach: action must therefore be taken before an invasion gets out of control and damage becomes irreversible. It would probably , for instance, have been possible to eradicate Caulerpa taxifolia when the first patch of this exotic seaweed was discovered in Monaco, but action was restricted

is an intergovernmental organizat ion which was established pursuant to a treaty signed in 1902, subsequently replaced by the Convention for the International Council for the Exploration of the Sea (Copenhagen, 12 September 1964). Its task is to promote research, particularly in respect of marine living resources , draw up research programs and disseminate research results . Its geographic competence covers the whole of the North Atlantic and its adjacent seas with the exception of the Mediterranean. The Council has been designated as the scientific advisory body to the Commissions established under the various fisheries agreements end environmental protection instruments applicable in that area. It also advises the European Union . 178 J. Mork, "Control Measures Regarding Marine Invasives," Proceedings ofConference on Alien Species, Trondheim, 1996, pp.191-197. 179 FAD, Rome, 1996. Specifically on the Code of Conduc t see Moore, supra Chapter 5. 177 ICES

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to research and monitoring until it was too late and eradication had become impossible. 180 Few countries have adequate legislation on introductions and even fewer have established a legal obligation to attempt eradication. This problem is often compounded by administrative inertia, probably due to the absence of a designated body with responsibility for combating introductions and the lack of funds earmarked for such a purpose. The matter of state liability for harmful introductions originating from their territory, as well as that of civil liability , in national law, for the authors of reckless introductions resulting in significant damage, need to be further investigated. The question of the introduction of potentially invasive species into the marine environment is the only element of the workplan developed to implement the Jakarta Mandate on integrated marine and coastal area management that has a legal component and recommends the examination of the need for additional effective legal instruments related to the introduction of alien species.

Processes generated by land-based activities Processes generated by land-based activities, except for pollution, are not specifically addressed by most international instruments and seldom by national legislation. Article 206 of the LOS Convention provides, in a very general manner, that environmental assessments must be carried out, "when States have reasonable grounds to believe that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment." The UNEP Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities provides a list of processes and activities that need to be controlled if integrated coastal zone management is to be achieved. These include sewage, persistent organic pollutants, nutrients, litter,excavations,mining, coastal developmentsand coastal defences.

180

Prevention of the spreadof the alga was in any eventdifficultas it would have entailed anchoring prohibitions for pleasure boats in contaminated areas, the only means to prevent the dispersal of the spores of the plant. This would certainly have met with considerable opposition. Early eradication would, it would seem, have been much preferable.

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Two of the Regional Seas Conventions provide for the control of activities causing coastal erosion, a process which, in addition to the harm it may cause to human settlements, may be very damaging to biological diversity and the environment in general. Article 10 of the Abidjan Convention provides that contracting parties shall take all appropriate measures to prevent, reduce, combat and control coastal erosion in the Convention Area resulting from man's activities, such as land reclamation and coastal engineering . Article 13 of the Noumea Convention, drafted in broader terms, requires parties to take all appropriate measures to prevent, reduce and control environmental damage in the Convention Area, in particular coastal erosion caused by coastal engineering, mining activities, sand removal, land reclamation and dredging . Neither of these provisions have been followed so far by the adoption of a corresponding protocol.

Processes generated by deep-sea mining The LOS Convention lays down rules to preserve natural habitats from the harmful effects of deep-sea mining. Article 165(2) requires the Legal and Technical Commission of the International Sea-Bed Authority to prepare assessments of the environmental implications of activities in the Area. That body is empowered to make recommendations to the Council on the protection of the marine environment, to issue emergency orders to prevent serious harm to the marine environment and to disapprove areas for exploitation by contractors or the Enterprise in cases where substantial evidence indicates the risk of serious harm to the marine environment.

CONCLUSIONS

In the main, a negative appraisal An appraisal of the existing regime of marine biodiversity has to be mainly negative. The conservation of marine species and ecosystems lags considerably behind that of terrestrial biodiversity. Fishery treaties cannot function as comprehensive mechanisms for the conservation of marine biodiversity as their remit is necessarily limited to fishing activities. They generally only apply to the harvesting of commercially important species in the high seas and, to a variable extent, exclusive economic zones. They cannot therefore adequately cover the full spectrum

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of marine species and ecosystems, especially those that are in - or near shore . They do not regulate international trade in the species to which they apply. Neither do they contain measures for habitat protection, not even with regard to the coastal critical habitats of target species such as spawning areas and nurseries. They cannot control land-based processes and activities or even any processes harmful to biological diversity other than those generated by fishing itself. Measures for the control of bycatches, albeit developing still remain scarce. The only regional treaty which adopts an ecosystem approach, and should therefore be considered both as a fishery and a conservation treaty , is CCAMLR . It establishes a clear legal basis for the adoption of any necessary conservation measures in the marine ecosystem constituted by the Southern Ocean. But control of land-based activities affecting marine biodiversity, which are of very minor importance in that region, fall within the purview of the Antarctic Treaty, not of CCAMLR. Important progress has nevertheless been made recently. The global Straddling and Highly Migratory Fish Stocks Agreement constitutes a major advance, particularly since it incorporates and fleshes out the precautionary principle as a basis for action. However, it will take time for the Agree ment's general provisions to be translated into effective measures in regional and sub-regional agreements administered by the competent fishery organizations. Legal cross-linkages between fishery and conservation instruments need to be developed in order for the two types of instruments to become mutually supportive of each other. A rare exception is EC Regulation N° 1626/94 of June 27,1994, which lays down technical measures for the conservation of fishery resources in the Mediterranean. Member states of the European Union are required to pay attention to the conservation of fragile or endangered species or habitats. The species concerned, as listed in an appendix to the Regulation, are all species of marine mammals, birds, turtles and fish present in the Mediterranean and listed in Appendices I and II to the Bonn Convention or Appendix II to the Berne Convention. The habitats concerned are coastal wetlands and beds of marine flowering plants . Turning to conservation treaties, it is clear that they are the only mechanism whereby states can accept binding restrictions on the exercise of their sovereign rights in waters and land under their jurisdiction for the purpose of preserving marine biodiversity through the establishment of controls on both ship-based and land-based activities . Unfortunately, most

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conservation treaties are as sectoral as fishery treaties and address the conservation of marine biodiversity only in a fragmentary way. The treaty framework excludes several important elements. In particular the introduction of alien species, although in principle subject to controls, is not regulated in detail by any treaty. Regional treaty coverage is very uneven throughout the world. In some cases, existing treaties are old and should be updated (the African Convention, the Western Hemisphere Convention). In others, regional treaties signed relatively long ago still have not entered into force because they have not been ratified by a sufficient number of signatories. This is the case, for instance, of the ASEAN Agreement and the Kingston Protocol. The UNEP Regional Seas Conventions are environmental protection treaties which do not deal with fisheries . Their primary purpose is the control of pollution from different sources and only four of the existing conventions have protocols on the establishment of protected areas and, but only for three of them, the conservation of certain marine species, particularly endangered ones. The Conventions generally do not take account of potentially damaging processes, other than pollution, such as trawling, dredging, the extraction of minerals, marine traffic, tourism and recreation. They also contain no provisions for the general protection of marine habitats or of particular habitat types outside protected areas. An additional difficulty is that Regional Seas Conventions are rarely the only instruments applicable in a particular sea. This can create a serious problem of coordination, illustrated in extreme form by the case ofthe Mediterranean. Within this sea: biodiversity and protected areas come under the Barcelona Protocol; cetaceans are protected by ACCOBAMS, concluded under the Bonn Convention; coastal wetlands of international importance are dealt with by the Ramsar Convention; international trade in endangered species is regulated by CITES; the conservation of water birds is governed by the African-Eurasian Migratory Waterbirds Agreement; fisheries are administered by the General Fisheries Council for the Mediterranean (GFCM), which comes under FAO; pollution, including pollution from land-based sources , is regulated by various protocols adopted pursuant to the Barcelona Convention;

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different parts of the Mediterranean are covered by different regional conservation instruments, including the Berne Convention (which covers the European shores of that sea, but Tunisia is also a party), the EC Birds and Habitats Directives (European Union) and the Algiers Convention (for the North African shores); and a research body has been established for the sea: the International Commission for the Scientific Exploration of the Mediterranean Sea (CIESM, from its French acronym). It, however, does not have institutional links with the many conservation instruments in force in the Mediterranean Sea. It remains to be seen whether concrete forms of coordination can be developed between at least the three key instruments and mechanisms applicable to the whole of the Mediterranean, namely the Barcelona Convention and its protocols, particularly the new Barcelona Protocol, ACCOBAMS, and the GFCM.

As neither fishery treaties nor conservation conventions can generally cover all the factors that threaten endangered species and ecosystems, some innovative instruments have been developed recently for the purpose of addressing in the same agreement all the processes which contribute to the depletion of certain groups of species, including habitat protection measures and the limitation of bycatches in the course of fishing for other species. These treaties are ASCOBANS and ACCOBAMS for cetaceans and the Caracas Convention for sea turtles. They apply to all jurisdictional zones and, in the case of the sea turtles, to the coastal land areas where the animals come to nest. This trend, however, raises a controversial question: to what extent may species-specific treaties purport to legislate on general fishing practices by laying down binding gear and other restrictions which must be systematically observed by all fishers in the waters concerned. Resistance by the fishery sector is, unsurprisingly, greater where restrictions are imposed not to ensure the sustainable exploitation of target resources, but to preserve non-target species or biodiversity in general.!" Specialized treaties of this kind, however, probably constitute the only solution to the problem of bycatches where

181

In the United States, for instance, there was strong opposition from shrimp fishers to the compulsory use of turtle excluder devices under federal legislation .

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there is no fishery convention applicable to a whole area including exclusive economic zones, the territorial sea and internal waters .

Prospects for the future The creation of a world organization for the sea would probably meet with unsurmountable difficulties and even if it succeeded it would probably only add to institutional overloading and contribute little to marine biodiversity conservation. Instead, as supported by the Commission on Sustainable Development, there needs to be greatly extended and improved institutional coordination for the conservation and sustainable use of marine biodiversity. This is the way which has been chosen by the institutions established under the Convention on Biological Diversity . The first Meeting of Experts on Marine and Coastal Biological Diversity emphasized the important role to be played by various convention mechanisms in the effective implementation of the provisions of the Convention on Biological Diversity. On the high seas, the control of bycatches, the conservation of associated or dependent species and the regulation of the discarding of nets and marine debris may probably be best achieved through the development of regional treaties, along the lines of CCAMLR, as tools to implement the Straddling and Highly Migratory Fish Stocks Agreement. Provision should be made for the conservation of critical habitats. This will require extensive research, inter alia into stock inter-relationships, which will be cxpensive'P and enforcement measures involving observers, inspection and monitoring. These mechanisms have been adapted and developed in the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas l83 (Rome, November 23, 1993) and the Straddling and Highly Migratory Fish Stocks Agreement. However, these expensive measures still depend for their effectiveness on the support of all states engaged in fishing on the high seas. In the CCAMLR Area, there has been plundering of certain fish stocks, mostly by reflagged vessels for-

Report of the 20th Session of the Committee on Fisheries (1993), Keynote address by Dr. Gunnar Saetersdal, FAD Fisheries Report N° 488 . p. 70. 183 (1994) 33 lIM 968 ; Burhenne, supra note 37, p. 993:89.

182 FAD

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merly flying the flag of contracting parties, and it has been impossible to control bycatches, particularly of seabirds, by non-party vessels .!" In the Mediterranean, there is clearly a need, because no exclusive economic zones have been established for political reasons, to develop a mechanism to ensure that non-riparian states observe on the high seas the same rules that the Mediterranean coastal states have imposed upon themselves. This could be achieved by a declaration of an area covering the whole of the present high seas as a conservation zone that would be common to all coastal states. Fishing vessels of non-Mediterranean countries would not be allowed to fish in that sea except under a permit and under the conditions determined collectively by the riparian states, just as in an exclusive economic zone no fishing by foreign vessels would be authorized unless the consent of the coastal state has been obtained first. Thus , the Mediterranean could become the Mare Nostrum of the peoples living on its shores. Elsewhere, it may be that the only solution would consist of subjecting the freedom of the high seas to compliance with certain conditions, perhaps by requiring any state fishing on the high seas to accede to the relevant fishery convention and adhere to the rules established by that body . The Straddling and Highly Migratory Fish Stocks Agreement moves in this direction but probably not far enough. The principle of the freedom of the high seas, however, remains so solidly entrenched that there does not seem to be much hope that such universally binding rules can be accepted in the foreseeable future . Notwithstanding recent advances , however, fishery treaties cannot function as comprehensive mechanisms for marine biodiversity conservation as long as their remit is limited to the regulation of only fishing activities . Global framework treaties may have to be negotiated on matters such as introductions of alien species and the establishment of protected areas on the high seas. With regard to biodiversity conservation in waters under national jurisdiction, Agenda 21 emphasizes the importance of achieving the sustainable use and conservation of marine living resources under national jurisdiction. Regional Seas Conventions are probably the most convenient instruments to perform this task as they can be made applicable to all jurisdictional zones

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G.L. Lutgen, "The Rise and Fall of the Patagonian Toothfish- Food for Thought," (1997) 27 Environmental Policy and Law, pp. 401-407.

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and to all activities, whether ship-based or land-based, which may harm biodiversity. They must be equipped with adequate institutional and financial resources. In order for them to fulfil this role it is essential that greater coordination be established among all other instruments applicable to the sea concerned, and most particularly those relating to fisheries . Indeed, fisheries, if at all possible, in all cases, should be brought under the ambit of Regional Seas Programs and Conventions. Sectoral and regional conservation treaties and programs have one common characteristic: they can function as tools to implement the Convention on Biological Diversity for a particular sector or area. Thus the new 1995 Barcelona Protocol could be the leading instrument for the conservation of biological diversity in the Mediterranean. Coordination between these instruments at the various levels is of the utmost importance to maximize the effective use of human and financial resources and to build public awareness and support. Each convention for which UNEP provides a Secretariat has complete autonomy and there are no formal coordination mechanisms. UNEP, however, has placed considerable emphasis on the need to build on areas of complementarity in the implementation of conservation treaties . In this quest for synergy, certain conventions have identified clear responsibilities for the implementation of relevant provisions of the Convention on Biological Diversity, often supported by financial assistance from the GEF. Inter-treaty cooperation of this kind is just beginning but looks promising. Memoranda of Understanding (MOUS) have so far been developed between the Convention on Biological Diversity and the Ramsar, Berne and Bonn Conventions respectively.!" Complementarity between conventions is also illustrated by the new Convention on the Law of the Non-Navigational Uses of International Watercourses'" (New York, May 21, 1997). In a far-reaching provision, article 23 requires parties on whose territory part of an international watercourse is situated to take all measures with respect to an international watercourse that are necessary to preserve the marine environment, including estuaries.

185 186

Lyle Glowka,"Conventionon BiologicalDiversity,"7 Yearbook ofInternational Environmental Law 1996, pp. 215-224, p. 222. (1997) 36 lIM 700.

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provides an outstanding example of an insufficiently used potential for complementarity. It is of course in a unique position as it may be used as a complement to all conservation and fishery treaties dealing with the protection or regulation of the exploitation of particular species. Because fishery treaties regulate the catch of, but never the trade in fish,"? a way should be found to ensure that only those fish that have been caught in accordance with the conservation measures applicable under the relevant fishery treaty can be the subject of international trade . This would be a major step towards reconciling conservation and long-term fishery interests. The only existing mechanism for this purpose is CITES. There is also a need for institutional and research linkages between fisheries and conservation. Fully integrated management must be based on scientific research, the key element. An international organization should, in each major ecological marine area, or regional sea, coordinate research in all fields, including economics and social sciences, that are relevant to the conservation of marine biodiversity and the sustainable use of the living resources of the sea. It should also identify and monitor processes destructive of biological diversity, as required by the Convention on Biological Diversity, and make proposals for their prevention, regulation or management. The best example of such an organization is probably ICES, for the North Atlantic and adjacent seas, excluding the Mediterranean. It has strong institutionallinks with the various fishery organizations and bodies dealing with the protection of the marine environment, including the European Union, in its area of competence. The North Pacific Marine Scientific Organization (PICES) has now been established for the North Pacific under the Convention for a North Pacific Marine Science Organization (Ottawa, December 12, 1990). In the Mediterranean, the competent research organization is CIESM. CITES

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Like fishery treaties, the 1946 ICRW does not regulate trade in whale products. CITES is therefore an essential mechanismto prevent trade in illegallyobtained whale meat, oil or other products derived from animals taken in breach of the regulations of the International Whaling Commission (IWC). Cooperation between CITES and the IWC seems to be good. At the 10th meeting of the CITES Conferenceof the Parties (Harare, 1997), attempts were made to transfercertain whale populations from Appendix I to II . However, the Conference wisely decided that for as long as these populations werefully protectedby the IWC, there was no reason to allow commercial trade to resume.

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Other areas need to benefit from the services of research organizations along the lines of ICES. At the national level, integrated institutions for fisheries and the conservation of marine species and habitats should be developed, with jurisdiction straddling the land-sea administrative barrier. Implementation mechanisms will need to be created at the national and, where appropriate, decentralised level. These should include physical planning instruments applicable to the sea as well as to the land. The nature park concept'" could be developed to facilitate the creation of mixed land-sea areas, all of which should be endowed with proper management institutions. Integrated coastal management at the national level requires close collaboration between administrators and scientists at all stages of the formulation of management policies and programs as well as participation of the communities affected. GESAMP, in 1996, published an important report on the contributions of science to integrated coastal management.!" which provides a conceptual framework for effective operation and evolution of integrated coastal management. This objective of "integrated coastal zone management," as mentioned earlier, has been formally adopted by the Conference of the Parties to the Convention on Biological Diversity under its Jakarta Mandate of 1995. It may take many forms, as legal and political systems, socio-economic factors and funding arrangements vary widely between countries: there can be no blueprint but only research and regional cooperation in the identification of useful indicators or guidelines for this purpose. It should be noted in this context that Technical Guidelines on the integration of fisheries into coastal area management have now been drawn up to assist in the implementation of the Code of Conduct. Most countries are very far from achieving integrated coastal zone management; indeed, many are still seeking to define the implications of the

Nature Parks combine human activities and conservation by providing for the zoning of protected areas and the flexible regulation of activities in accordance with the specific conservation objectives and requirements of each zone. 189 GESAMP is the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection. It is composed of experts nominated by IMO. UNESCOIOC. WMO . IAEA, the United Nations and UNEP . See The Contribution ofScience to Integrated Coastal Management, GESAMP Reports and Studies, n061, FAD, Rome, 1996. 188

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concept for their own administrative regimes. In Europe, two documents to support this process were approved by the European Conference of Environment Ministers, which was held in Aarhus (Denmark) in June 1998. The first is a European Coastal Code, drafted by an NGO, the European Union for Coastal Conservation, to provide practical guidance to local authorities and coastal users with regard to ecologically sustainable development in the coastal zone. The second is, as mentioned earlier, a proposal for a model law on coastal conservation drafted by Michel Prieur of France for the Council of Europe. The proposed model law defmes the coastal zone as including all or part of the territorial sea, the public maritime domain and the land territory of the coastal municipalities.

Final Remarks The Convention on Biological Diversity clearly provides a basis for comprehensive action on marine biodiversity, but does not itself lay down detailed requirements for this purpose. It thus is typical of a new generation of environmental treaties which, although legally binding, contain few hard detailed obligations't" but which can be supplemented by binding protocols laying down much more specific rules. This technique was successfully used in all Regional Seas Conventions, in the Vienna Convention for the Protection of the Ozone Layer'?' and in the United Nations Framework Convention on Climate Change . An obvious subject for a protocol would be the regulation of introductions of alien species into the environment, whether marine or terrestrial. For the time being, the encouraging interest expressed in marine biodiversity by the Conference of the Parties to the Convention on Biological Diversity has focused mainly on the development or improvement of national legislation and planning instruments. Nothing, however, prevents the conclusion of a protocol to the Convention on the specific matter of marine

On hard law instruments with a soft law content, see P.M. Dupuy, "A propos des mesaventures de la responsabilite intemationale des Etats dans ses rapports avec la protection intemationale de I'environnement," Les Hommes et l'environnement: Etudes en hommage aAlexandre Kiss, Frison-Roche, Paris, 1998. 191 (1987) 26 lIM 1529. 190

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biodiversity which would take into consideration all processes and activities liable to cause harm to marine and coastal species and ecosystems. Such a protocol could catalyse the negotiation of future biodiversity protocols in regional seas and provide guidance for their content. In conclusion, the way forward will involve patient bridge-building between all sectors and actors whose activities may affect marine biological diversity. Loopholes in the present legal regime must be filled by updating older instruments to incorporate modem concepts ranging from the conservation of critical habitats to the regulation of destructive activities and processes. In addition, synergies and linkages between instruments and institutions must be identified and used as a basis for further-reaching and more cost-effective programs and actions. To ensure coherence and international legitimacy, implementation of all existing sectoral and regional instruments should be brought into conformity with the principles and obligations of the unifying Convention on Biological Diversity.

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16 FISHERIES CONSERVATION AND MANAGEMENT AND INTERNATIONAL TRADE LAW

Ted L Mclrorman'

INTRODUCTION

The international trade of fish and fish products is big business. It is estimated that in 1993 the value of world fishery exports was $41.2 billion (us) and the value of fishery imports was $44.6 billion (US).2 Six jurisdictions had exports in excess of $2 billion (us) - Canada, Denmark, Norway, Taiwan, Thailand the United States. Five countries imported in excess of $2 billion (us) worth of fish and fish products - France, Italy, Japan, Spain and the United States. Nearly three-quarters of all fish imports go to the European Union, Japan and the United States. Moreover, unlike most industrial goods, the flow of international fisheries trade is from developing countries to industrial countries.' For some smaller developing states, for example in the South Pacific, fish exports are a significant percentage of both their international trade and their domestic economy ."

2

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The author wishes to thank Don McRae, Gordon Munro and AJ. Sarna for their helpful comments. FAa, Yearbook: Fishery Statistics 1993, Vol. 77, FAa, 1995, table A-5, p. 19. Agnes Filhol, Impact of the Uruguay Round on International Fish Trade, Globefish Research Report, Vol. 38, FAa, 1995, p. 3. See: UN, Economic and Social Commission for Asia and the Pacific (ESCAP), Promoting Exports ofFish and Fishery Products in Selected Island Developing Countries of the ESCAP Region, United Nations, 1996, pp. 21-35 and p. 67.

E. Hey, (ed.), Developments in International Fisheries Law, p. 501-531. © 1999 Kluwer Law International. Printed in The Netherlands.

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Fish traders demand that there be a minimum of interference with global commerce in order to ensure the maximum economic return to the harvester, the country and for each harvested fish. It is the goal of the World Trade Organization (WTO) ,5 the international trade law system, to keep government interference with the free flow of goods (goods seeking markets) to a minimum. Fisheries conservation and management laws, policies and practices, both at the national and international level, are designed to prevent over-exploitation of marine living resources and to ensure that a sustainable quantity of marine resources enters the market place. Conservation and management necessitates government interference regarding, amongst other things, numbers of fishers and amounts of harvest. Primafacie there should be a minimum of tension between international trade law and fisheries management and conservation laws and policies because there should exist little intersection between harvesting issues (conservation and management) and global marketing (international trade law). However, there are intersections and following two highly publicized trade disputes, Tuna/Dolphin r and Tuna/Dolphin II,7 the tension is perceived to be significant. In these two cases, international trade dispute settlement panels determined that embargoes imposed by the United States against tuna, which was harvested outside us waters in a non-dolphin-friendly manner, were inconsistent with international trade law ," While this contribution will touch upon the macro-debate between trade and environment, its primary focus is upon the micro-issue of the intersection between international trade law and international fisheries conservation and management law in two contexts. First, to what extent does international trade law interfere with the ability of a coastal state to adopt conservation and management measures to deal with marine living resources within its 200-nautical mile zone. From a resource conservation point of view, this is the most important area of potential conflict since ninety per cent of the

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Agreement Establishing the World Trade Organization, (1994) 33 ILM 1144. See infra, this chapter, sub-paragraph on the World Trade Organization. United States - Restrictions on Imports of Tuna , Report of the GAIT Panel, August 16, 1991, (1991) 30 ILM 1594, hereinafter TunaIDolphin I. United States - Restrictions on Imports ofTuna, Report of the GAIT Panel, May 20, 1994, (1994) 33 ILM 839 (1994), hereinafter Tuna/Dolphin II. See text after infra note 85.

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ocean's commercial marine living resources are under national control within a state's 200-nautical mile zone," Second, to what extent does international trade law interfere with the ability of one country to use trade measures to encourage or force other states to adopt particular standards regarding the conservation and management of marine living resources on the high seas or in the waters of that other state. This is the scenario of the Tuna/Dolphin cases or where the United States threatens to employ trade embargoes against countries which undertake whaling." Before turning to the above two issues, it is first useful to provide a brief overview of the regime of international trade law and the major issues that confront those who seek to market fIsh and fish products at the global level,

INTERNATIONAL TRADE LAW AND FISHERIES TRADE

The World Trade Organization The WTO is the administering body of the rules and principles that constitute the international trade law system. The WTO is a new international agency that supersedes the General Agreement on Tariffs and Trade (GATT) which had been the framework for international trade law amongst its adherents since its inception in 1947. 11 There is a continuity between GATT 1947

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With respect to the differences in national fishing activities that have resulted from the adoption of 200-nautical mile zones, see generally: Lawrence Juda, "World Marine Fish Catch in the Age of Exclusive Economic Zones and Exclusive Fishery Zones," (1991) 22 Ocean Development and International Law Journal, pp. 1-32 and Peter Weber, Net Loss: Fish, Jobs, and the Marine Environment, Worldwatch Institute No. 120, 1994. Regarding United States-threatened trade measures and whaling, see: Ted L. McDorman, "Iceland, Whaling and the us Pelly Amendment:The International Trade Law Context," (1998) Nordic Journal of International Law (in press) and text at infra note 67. The 1947General Agreementon Tariffs and Trade, 55 UNTS 194.The definitive text on the development of GATT 1947 is John Jackson, World Trade and the Law of GAIT, Bobbs-MerrillCompany, 1969.Regarding the evolution of GATT, see: Robert E. Hudec, The GAIT Legal System and World Trade Diplomacy, Butterworth,2nd ed. 1990and Robert E. Hudec, Enforcing International Trade Law: The Evolution of the Modern GAIT Legal System, Butterworth, 1993.

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and the WTO, as the basic set of rules to be applied by the WTO is still the 1947 GATT Agreement, renamed GATT 1994.12 To GATT 1994 must be added the numerous agreements and understandings that emerged as part of the Uruguay Round." Together, the GATT 1994 and the Uruguay Round agreements and understandings administered by the WTO constitute the international trade law regime. As with any international treaty, the rules and principles of the WTO are only 'applicable between those countries that are contracting parties to the WTO. Unlike other international treaties, however, the WTO does not provide for automatic "membership" through simple ratification. The WTO, like GATT 1947 before it, is an organization where "membership" is determined by the existing contracting parties of the WTO. 14 Those countries that were contracting parties to GATT 1947 at the time of entry into force of the WTO can join the WTO by designating their acceptance. IS Other countries may accede to the WTO "on terms to be agreed between it and the WTO" with the accession agreement requiring a two-thirds majority vote of the members of the WTO. 16 As of mid-1997 there were 131 members of the WTO . The most notorious non-member is the People's Republic of China (PRC). One of the difficulties of PRC accession to the WTO is reconciling government involvement in the PRC economy with the goals of the WTO concerning noninterference by governments ."

12 Art. II(4) of the wro Agreement, supra note 5. Regarding the trans ition from the 1947 GAlT to the wro, see: Edmond McGovern, International Trade

Regulation, Globefield Press, 1995 (loose-leaf), chapter one. 13 See: GAlT Secretariat, The Results ofthe Uruguay Round ofMultilateral Trade

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Negotiations: The Legal Texts, 1994. Many , but not all, of the Uruguay Round Agreements are reprinted at (1994) 33 lIM 1125. The relationship between the wro and the Uruguay Round Agreements is dealt with in article II of the wro Agreement, supra note 5. See also: McGovern, supra note 12, section 1.121. Regarding GAlT 1947, see: John Jackson, The World Trading System, MIT Press, 1989, pp. 45-47. Arts . XI and XIV of the wro Agreement, supra note 5. Art. XII of the wro Agreement, supra note 5. See generally: McGovern, supra note 12, section 1.312. See generally: Guiguo Wang, "China's Return to GAlT - Legal and Economic Implications," (1994) 28 Journal of World Trade , pp. 51-65 and A. Neil Tait and Kui-Wai Li, ''Trade Regimes and China's Accession to the World Trade Organization," (1997) 31 Journal of World Trade, pp. 93-111.

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WTO

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dispute settlement

The WTO has a well-defined dispute settlement process to assist countries to resolve differences arising from the interpretation or application of the GATT 1994 and the Uruguay Round Agreements ." A state which feels that a right owed to it under the GATT 1994 is being nullified or impaired by another WTO member may, after a period of consultations, request a panel of experts to decide on the legality of the alleged offending measure. The request for a panel goes to the WTO Dispute Settlement Body (OSB), which is composed of the WTO membership. The DSB is to establish a panel to examine a complaint unless "the OSB decides by consensus not to establish a panel" .19 Where a panel is established and it issues its conclusions, panel findings only become binding on the conflictual parties when it is adopted by the OSB. Panel reports are to be adopted unless "the DSB decides by consensus not to adopt the report"." The international trade dispute settlement process that existed prior to the WTO allowed panels to be created and panel reports to become binding (adopted) only where there was a consensus in favor." The pre-wro system created the situation where a state challenged by a complainant state could veto the creation of a panel and effectively block formal dispute resolution or, if a panel reached a conclusion, a state unhappy with the result could prevent the panel report from becoming binding by vetoing its adoption. Despite this potential for blocking the dispute settlement process , the preWTO dispute settlement system was more noted for its successes than its failures." The WTO dispute settlement process removes (or at least reduces) the ability of an offending state to prevent its operation. While pre-wro it could

18 Understanding on Rules and Procedures Governing the Settlement of Disputes,

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Annex 2 of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, (1994) 33 lIM 1226. See generally: McGovern, supra note 12, chapter two. Art. 6(1) of the Dispute Settlement Understanding, id. Art. 16(4) of the Dispute Settlement Understanding, id. For a detailed discussion of the pre- WTO dispute settlement process, see: Hudec , Enforcing International Trade Law, supra note 11 and Jackson, supra note 14, pp. 88-100. See: Hudec, id., pp. 360-362 .

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be claimed that no state could be forced to utilize adjudicative dispute settlement or have a decision enforced upon it, such cannot be claimed with the WTO dispute settlement process - states can be compelled to submit to adjudication and results can become binding." Two additional comments are useful regarding the WTO dispute settlement process. First, unless disputing parties agree to the contrary, the jurisdiction of the WTO dispute settlement process is to interpret and apply the WTOadministered treaties and not to consider other aspects of international law or consider other factors such as environmental politics." The WTO dispute settlement process is not a general court of international law. Second, the WTO dispute settlement process is not required to listen to or provide access to non-state actors." The WTO state parties could, of course, change the latter situation.

WTO:

application to fisheries trade

Tariffs A major impediment to "free" global trade is the imposition of tariffs on imported foreign products. Tariffs are imposed either to raise revenue or, more frequently, to ensure a price differential between locally produced goods and foreign produced goods and thus encourage consumption of the lower-cost locally produced goods. In both situations tariffs increase the

In less than three years, the WTO has witnessed over one hundred uses of the formal dispute settlement process. In most of these cases, resolution has come early in the process before the convening of panels. "Disputes reach century mark," (August 1997) No. 21 Focus-WfO Newsletter, pp. 1-5. 24 The issue is one of jurisdiction of a WTO panel. Art. 7(1) of the Dispute Settlement Understanding, supra note 18, has created a standard jurisdiction clause which confines a panel to dealing with issues arising from treaties and agreement within the WTO framework. See generally: McGovern, supra note 12, sections 2.2321 and 2.2323. 25 The state-centric nature of the WTO dispute settlement procedures has been criticized by environmental non-governmental organizations. See, for example: Daniel C. Esty , Greening the GAIT: Trade, Environment, and the Future, Institute of International Economics, 1994, pp. 210-215. 23

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cost of foreign products on the local market and, in the latter situation, tariffs provide a protection for local producers from foreign competition." Despite the clear impediment to international trade caused by tariffs, there is no prohibition on tariffs within international trade law . GAIT 1994 permits the use of tariffs . The goal of the international trade law system has been to progressively lower tariffs through negotiation of reciprocitybased concessions. GAIT 1994 requires, however, that tariffs imposed must be equal for all like-products coming from WTO members. In other words, a WTO state cannot have different tariffs applying to like-products from different WTO countries. This is referred to as the most favored nation prin-

ciple." With regard to fish and fisheries products, there was a major push during the Uruguay Round for all countries to reduce tariffs. Canada proposed the elimination of all fish and fish product tariffs." One assessment of the tariff negotiations summarized that, while enthusiastic objectives were not met, "the outcome ... is certainly positive as 90% of world fisheries exports will benefit from trade [tariff] concessions negotiated during the Uruguay

Round"." Border and non-border measures Article xI(1) of GAIT 1994 prohibits WTO members from imposing quantitative restrictions (quotas), quantitative prohibitions (embargoes) or other border measures (except tariffs) designed to block or impede imports to or exports from other WTO members." Related to article XI(l) is article III

Regarding tariffs and international trade, see: Jackson, supra note 14, pp. 8-21 and 115-118. Regarding tariffs on fish and fish products, note : UN ESCAP, supra note 4, pp. 37-47. 27 For an excellent discussion of the most favored nation principle, see: Jackson, supra note 14, pp. 133-138. 28 Filhol, supra note 3, p. 8 and see: Fernand Renault, Fisheries Tariff Liberalization in the GAIT Uruguay Round ofMultilateral Trade Negotiations, Department of Fisheries and Oceans , Canada, 1994, p. 1. 29 Filhol , supra note 3, p. 8 and see pp. 8-15. See also: Renault, id. 30 Art. XI(l) states: "No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contacting party on the importation of any product of the territory of any other contracting party 26

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that requires states to ensure that its laws and policies that apply to products within its borders do not operate so as to discriminate against foreign products. Article III is referred to as the national treatment principle." Together, articles xn l) and III are designed to prevent a state from crafting measures that impede the import of foreign goods in order to benefit domestically produced goods." States can, however, impose a wide array of measures related to health, safety, labeling, and product standards for imported goods, provided the measures apply equally to both domestic and foreign produced goods and the measures are not disguised trade barriers." Universally accepted international product standards, including health and safety requirements for seafood, are the obvious manner to prevent countries from using product standards as protectionist measures. To this end, there are two WTO agreements of relevance: the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement)" and the Agreement on Technical Barriers to Trade (TBT Agreement) ." These agreements recognize the importance of the creation and the adherence to international product standards, particularly standards regarding health and safety. The issue of eco-labell ing is captured by the TBT Agreement." The SPS Agreement, in particular, will be impor-

31 32 33

34 35 36

or on the exportation or sale for export of any product destined for the territory of any other contracting party." See generally: McGovern, supra note 12, section 5.2. The national treatment principle is well described by Jackson, supra note 14, pp. 189-193. McGovern, supra note 12, section 8.211. McGovern, id., section 7.2 and J.G. Castel et al., The Canadian Law and Practice ofInternational Trade, Emond Montgomery Publications, 2nd ed. 1997, pp.47-48. Agreement on the Application of Sanitary and Phytosanitary Measures, The Results of the Uruguay Round, supra note 13, p. 69. Agreement on Technical Barriers to Trade, The Results ofthe Uruguay Round, id., p.138. See generally: Seung Wha Chang , "GAffing a Green Trade Barrier: Eco-Labelling and the WTO Agreement on Technical Barriers to Trade," (1997) 31 Journal ofWorld Trade, pp. 137-159 and also: Naomi Roht-Arriaza, "Private Voluntary Standard-Setting, the International Organization for Standardization, and International Environmental Law Making," (1995) 6 Yearbook of International Environmental Law, pp. 107-163.

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tant for international seafood marketing since it specifically references the work of the Codex Alimentarius Commission, which has done extensive work on seafood standards," as being the benchmark for food standards." Under the SPS Agreement, countries that impose standards that deviate from international standards must be able to demonstrate that the measure is necessary for the protection the environment or for consumer health and safety." The international markets for fish and fish products have few direct embargoes or quotas that restrict trade. However, almost all countries have seafood health and safety standards and related product standards which both local and imported product must meet. In some cases, however, these standards may operate as non-tariff barriers." A recent fisheries example of a manipulated product description occurred in 1993 when France passed a requirement that only scallops of a particular genus could be described as "coquilles Saint-Jacques". Canada, Chile and Peru complained that the scallops they exported to France, although of a different genus, were exactly the same as regards color, size, texture, appearance and use and that not being able to market their scallops as "coquilles Saint-Jacques" was reducing their competitive position. The three exporters took the view that the French measure was, amongst other things, a breach of the national treatment obligation (article III of GATT 1994). Ultimately, following use of the WTO

See: Steve Hathaway, "Harmonization of International Requirements Under HACcp-Based Food Control Systems," in The Use ofHazard Analysis Critical Control Point (HACCP) Principles in Food Control, FAD Food and Nutrition Paper No. 58, 1995, item 8 in annex . 38 Art. 3(4) of the SPS Agreement, supra note 34. 39 Similar provisions exist within the TBT Agreement. See: Hathaway, supra note 37; Filhol, supra note 3, pp. 15-16 and pp. 21-23 ; and UN ESCAP, supra note 4, pp. 47-48. See also: David A.Wirth, "The Role of Science in the Uruguay Round and NAFfA Trade Disciplines," (1994) 27 Cornell International Law Journal, pp. 817-859, pp. 823-829. 40 See: Gordon Munro, "Non-tariff barriers to fisheries trade - survey," (May/June 1995) No.3 Infofish International, pp. 14-18 and F. Renault, and AJ. Sarna, Foreign Non-Tariff Barriers to Canadian Fisheries Trade , Department of Fisheries and Oceans, Canada, 1994. 37

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dispute settlement process, France relented and reached an agreement with the three complaining states." Canada and Australia are currently engaged in a dispute which involves a question about the peculiar health standards applied by Australia to imported salmon which has the effect of denying entry of Canadian salmon into Australia. A WTO dispute settlement panel was established to look into the legality of the Australian measures in April 1997.42 Subsidies Almost all countries with a fishing industry appear to utilize government subsidies in some manner to encourage fleet construction and modernization, resource development, processing or product marketing." Use of direct and indirect subsidies can create significant distortions in international trade patterns . However, there has always been a tolerance in international trade law of governments utilizing funds and programs to promote specific industries, products and activities. International trade law, while ambivalent about the acceptability of subsidization, under the GATT 1947 provided that the affected state can impose countervailing duties on an imported subsidized product where a domestic

World Trade Organization, Annual Report 1996, Vol. 1, p. 133. "Canada asks for panel on Australia's salmon ban," (March 1997) No. 17 Focus: wro Newsletter, p. 4. 43 See the detailed study by Matteo Milazzo, "Re-examining Subsidies in World Fisheries," in Symposium on the Interrelationship between Fisheries Management Practices and International Trade: Report of Proceedings, Wellington, New Zealand, 24-26 November 1996, PECC Task Force on Fisheries Development and Cooperation. Note also: Sevaly Sen, "The Environmental Effects of Trade in the Fisheries Sector," in The Environmental Effects of Trade, DECO , 1994, pp. 103-121, pp. 116-117; DECO, Fisheries Issues: Trade and Access to Resources, DECO, 1989, pp.43-47; Ted L. McDorman, "The Canada-United States Free Trade Agreement and the Canadian Fishing Industry, " in David vanderZwaag (ed.), Canadian Ocean Law and Policy , Butterworths, 1992, pp. 433-459, pp. 442-446 and Christopher D. Stone, "Too Many Fish Boats, Too Few Fish: Can Trade Laws Trim Subsidies and Restore the Balance in Global Fisheries?," (1997) 24 Ecology Law Quarterly, pp. 505-544. 41

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industry suffers material injury because of the import of that product." The United States has been the champion employer of countervailing duties against subsidized foreign products." There has long been complaint that the internal us processes for determining the existence of foreign subsidies and whether material injury to a us producer exists is motivated primarily by protectionist concerns ." However, a 1992 GATT panel determined that the process for and implementation of a countervailing duty by the United States, at least in the specifics of the case of Norwegian fresh and chilled Atlantic salmon, was consistent with the then-existing GATT rules regarding subsidies and countervailing duties." The Uruguay Round Agreement on Subsidies and Countervailing Duties" is a new attempt to achieve a discipline on state use of subsidies and a new attempt to ensure that countervailing duties not be utilized as protectionist measures. To fulfill these goals, the Uruguay Round Subsidies Code provides that certain types of government subsidies are prohibited. Other types of subsidies, while not explicitly prohibited, would allow states to utilize countervailing duties. These are referred to as actionable subsidies. Finally, there is a third category of subsidy which is not prohibited and is

Arts. VI and XVI of GAlT 1947, supra note 11 contained the rules regarding subsidies and countervailing duties. The pre-wro approach to subsidies is discussed in Jackson, supra note 14, pp. 249-273 and is succinctly set out in Michael J. Trebilcock and Robert Howse, The Regulation ofIntemationat Trade, Routledge, 1995, pp. 126-131. 45 Trebilcock and Howse, id., p. 125. 46 Canada, for one, has long complained of the political and protectionist nature of the us approach to and process regarding the imposition of countervailing duties. Canada's complaints in the context of us countervailing duties against Canadian fish products is noted in McDorman, supra note 43, p. 444. 47 "Disputes under MTN Agreements," GAIT Activities 1993, GAlT, 1994, pp. 39-40. There was a companion dispute between Norway and the United States regarding the imposition of anti-dumping duties where a panel determined that the us imposition of anti-dumping duties was not consistent with the relevant international trade law provisions. See: GAIT Activities 1993, pp. 38-39. 48 Agreement on Subsidies and Countervailing Measures, The Results of the Urugua y Round, supra note 13, p. 264. 44

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non-actionable; in other words, a countervailing duty cannot be imposed because a country utilizes this category of subsidy." It has been concluded that: As far as fisheries are concerned, the most important feature of the ... [Uruguay Round Subsidies Code] ... is that specific subsidies such as research and development funding ..., subsidies to disadvantaged regions within a country and subsidies to adapt existing facilities to new environmental requirements are defined as non-trade distorting and consequentially will not be exposed to countervailing or remedial actions."

TRADE LAW AND MARINE LIVING RESOURCE CONSERVATION WITHIN NATIONAL WATERS

Trade law and domestic environmental measures There is not a significant intersection between international trade law and the measures that a state can adopt and implement to protect and conserve its domestic environment. The panel in TunaIDolphin I stated: (T)he provisions of the General Agreement impose few constraints on a contracting party's implementation of domestic environmental policies... (A) contracting party is free to tax or regulate imported products and like domestic products as long as it taxes or regulations do not discriminate against imported products or afford protection to domestic producers, and a contracting party is also free to tax or regulate domestic production for environmental purposes." The key for domestic environmental measures is non-discrimination and non-protectionism. This was ultimately the problem in the dispute between

A succinct review of the prohibited, actionable and non-actionable subsidies categories is provided by Trebilcock and Howse, supra note 44, pp. 131-134. The detailed WTO world of subsidies and countervailing duties is examined in McGovern, supra note 12, chapters II and 12. In the fisheries context reference should be made to Milazzo, supra note 43 and Stone, supra note 43. 50 Filhol, supra note 3, p. 17 and note pp. 18 and 24. 51 Tuna/Dolphin I, supra note 6, p. 1622. 49

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BrazillVenezuela and the United States." where the us Clean Air Act treated us-produced gasoline more favorably than imported gasoline. The United States argued that the distinction was for environmental reasons. The dispute settlement panel determined that, as there was no justification for treating the foreign and domestic gasoline differently, therefore, the United States, citing unsubstantiated environmental concerns, could not impose discriminatory measures. The Panel concluded by noting that "wro members were free to set their own environmental objectives" but in fulfilling those objectives they could not discriminate, without necessary reason, between foreign and domestic products ."

Trade law and fish harvesting measures There are three essentials of national resource conservation and management of marine living resources within national waters that relate to harvesting: control over who can harvest the resource; control over how the resource can be harvested; and control over assisting the harvester. As international trade law does not intersect directly with domestic environmental measures, similarly, international trade law does not concern itself with, nor impede, the essential measures that a state can utilize to conserve and manage marine living resources within its 200-nautical mile national waters. Moreover, regarding the specifics of exhaustible natural resources , GATT 1994 contains an exception, article xx(g), that permits a state, in certain situations, to utilize measures that would otherwise breach international trade law. Article xx(g) states: Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restric-

United States - Standards for Reformulated and Conventional Gasoline, Report of the WTO Panel, January 26, 1996, (1996) 35 lIM 274. This Panel Report was the first one to make use of the WTO appeal process . See: United States Standards for Reformulated and Conventional Gasoline, Report of the WTO Appellate Body, April 29, 1996, (1996) 35 lIM 603. 53 US Standards for Gasoline, id., p. 300. See also the comments of the Appellate Body, id., p. 634. 52

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tion on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.

Who can harvest. While it has been suggested that keeping foreign fishers out of national waters is inconsistent with ''free trade", there is nothing in international trade law that requires a state to make marine living resources within its national waters available to foreign fishers .54 Thus , a state can designate who can harvest the marine living resources within its national waters. However, there may be issues under bilateral and multilateral investment law regarding prohibitions on foreign interests buying into the domestic fishing industry ." How the harvesting can take place. While fishery quotas, gear restrictions and other resource management measures may have the effect of impeding the quantity of fish available for trade, in light of article xx(g) it is not seriously argued that such measures, clearly designed for resource management purposes, are inconsistent with international trade law. Assisting the harvester. As noted above in the section on subsidies," international trade law does not prohibit states from subsidizing the harvesting of marine living resources. However, this does not preclude a state that receives traded "subsidized" fish from utilizing a countervailing duty .

This issue is debated in "Problems of Trade in Certain Natural Resource Products : Fish and Fisheries Products ," Report of the Working Party, in Basic Instruments and Selected Documents, 32nd Suppl., GAIT, 1986, pp. 132-135. See also: McDorman, supra note 43, pp. 452-453 . 55 This issue is noted briefly in "Problems of Trade," id., p. 133 where it is stated that: "The view was ... expressed that access to resources was not a trade issue but one which should be more appropriately understood as an investment issue." Regarding investment and fisheries in the context of the Canada-us Free Trade Agreement, see: McDorman, supra note 43, pp. 456-457 . Generally on international investment law, see: Trebilcock and Howse, supra note 44, pp. 274-300. 56 See in this chapter sub-paragraph on subsidies, text after supra note 42. 54

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Trade law and fisheries non-harvesting measures

The possibility of an intersection between international trade law and national marine living resource conservation and management policies and measures becomes more of a problem the further away from harvesting the policies and measures have application. For example, in 1988 a GAIT Panel determined that a Canadian measure that prohibited the export of unprocessed salmon and herring was inconsistent with article XI( 1), the GAIT rule against export restrictions." The Panel found that article XX(g) was inapplicable since the export prohibition was not primarily concerned with resource conservation. The Canadian measure was clearly designed to capture the value-added and jobs related to the fishery resource. While distantly related to conservation and management (harvesting), the export prohibition was seen as a direct interference by the Canadian government in international trade and, hence, inconsistent with international trade law." More murky is the follow-up case, where the United States objected to a Canadian requirement that all salmon and herring harvested in Canadian waters had to be landed in Canada. Canada argued that the landing requirement was necessary for statistical purposes and to ensure that quotas could be set properly; in other words, that the landing requirement was primarily concerned with the conservation of marine living resources and, thus, was justified by article xx(g). A dispute settlement panel established under the Canada-United States Free Trade Agreement" examined whether the 100% landing requirement was necessary for resource management or whether the 100% requirement was imposed for trade reasons . The Panel decided that the Canadian requirement that all fish be landed in Canada did

57 Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, Report of the GAlT Panel adopted on March 22, 1988, Basic Instruments and Selected Documents, 35th Suppl., GAlT, 1989, p. 98. 58 For an analysis of the 1988 GAlT Panel decision, see: Ted L. McDorman, "Inte-

rnational Trade Law Meets International Fisheries Law: The Canada-us Salmon and Herring Dispute," (1990) 7 Journal ofInternational Arbitration, pp. 107121, pp. 111-115 . 59 Canada - United States Free Trade Agreement, (1988) 27 lIM 281.

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not fit within the article xx(g) exception ." The Panel held that the 100% requirement was unnecessary for resource management and was being imposed for trade reasons. While concluding that the 100% requirement was not consistent with international trade law, the Panel did say that a lessthan-all landing requirement, perhaps 80-90%,61 was a reasonable requirement for resource management and would be consistent with international trade law. A[mal dispute that indicates the boundaries of trade and resource conservation is the Canada-us Lobster decision, which again arose under the Canada-us Free Trade Agreement.f The United States imposed a size limitation on lobster that could enter the United States. Canada argued that the size limitation was a trade embargo that violated international trade law. Part of the us argument was that the size limitation, which existed on both us and Canadian lobster, was necessary for the effective enforcement of the us lobster management regime. A Canada-us Free Trade dispute settlement panel determined that the size limitation on the lobster imports did not run afoul of international trade law. The Panel's reasoning was unrelated to environmental concerns and not very convincing; nevertheless, the result was correct." The size limitation was clearly connected to the resource

Canada's Landing Requirement/or Pacific Coast Salmon and Herring, Report of the Panel, October 16, 1989, Canada Trade and Sales Tax Cases, Vol. 1, p. 4395. The FfA panel was required to consider the relevant provisions of the GA'IT 1947; therefore, despite being a decision under a regional agreement, the Panel's reasoning is of wider importance in understanding international trade law. 61 Canada's Landing Requirement, id., para. 7.40 and see paras. 7.32-7.34, 7.39 and 8.01. For an analysis of the decision, see: McDorman, supra note 58, pp. 115-118. 62 Lobsterfrom Canada, Report of the Panel, May 25,1990. Again, the FfA Panel was required to consider the relevant provisions of the GA'IT 1947 and, therefore, the Panel's decision is of wider importance in understanding international trade law. 63 For a review of the Canada-us Lobster decision, see: Ted L. McDorman, "Dissecting the Free Trade Agreement Lobster Panel Decision," (1991) 18 Canadian Business Law Journal, pp. 445-458 . The criticism of the Lobster Panel in this article is ill-considered. It is now the writer's view that the decision was correct but for the wrong reasons . See also: Trebilcock and Howse, supra note 44, pp. 340-341. 60

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management of lobster within the United States and was a valid exercise of national authority to conserve natural resources. Here is a case where, in spite of faulty reasoning, a trade panel reached a pro-environment result.

Conclusion A state has wide latitude to undertake policies and measures related to marine living resource conservation within its national waters without the fear of intersection with international trade law. Virtually all measures that relate to harvesting are unaffected by international trade law obligations . Government measures regarding fisheries after harvesting, however, may run into conflict with international trade law.

TRADE LAW AND MARINE LIVING RESOURCE CONSERVATION OUTSIDE NATIONAL WATERS

Does international trade law permit a state to impose trade measures against another state for the action or inaction by that foreign state regarding marine living resource conservation and management on either the high seas or in the waters of the foreign state? The answer depends upon the specifics of the trade measure, the countries involved, the existence of ocean resource management treaties and the nature of the conservation and management measure being impugned . Because marine living resource management is by its very nature multilateral, it is easy to succumb to the vision that a reconceptualization of global resource problems to eliminate state sovereignty is the way to a solution. However urgent the resource or environmental crisis, political reality demands that jealously guarded national sovereignty not be conveniently cast aside in the stampede to an uncertain environmental nirvana. Therefore, the approach in this section will be what is, rather than what should be, the intersection between international trade law and a state's utilization of trade measures regarding conservation issues outside their national waters.

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Trade law and breaches of ocean conservation treaties Marine living resource conservation and management inevitably requires international cooperation. There are a large number of international agreements that have as their principal purpose the enhancement of marine living resource conservation and management. One such example is the International Convention for the Regulation of Whaling (ICRW).64 A failure by one party to the ICRW to fulfill its obligations under the treaty could result in another party imposing a trade sanction (e.g., an embargo) against the party in default. Trade measures as a reprisal, while rare, are countenanced in international law." There does not exist an explicit exception within GAIT 1994 recognizing reprisal embargoes as legal. However, what limited state practice exists regarding trade reprisals" tends to favor an unwritten exception to GAIT 1994. This result is supported by the logic that a state in breach of one treaty should not be able to rely on a second treaty to avoid the consequences of its illicit action. The critical criteria for possible acceptability of trade action as a reprisal is that both countries be parties to the "breached" marine resource conservation treaty and that the breach be notorious. Regarding the ICRW, in the 1990s the United States has threatened imposition of trade measures against Canada, Japan and Norway for allegedly whaling inconsistent with the commercial whaling moratorium adopted

64 65

66

161

VNTS

72 .

This statement is not free of controversy. A boycott of goods and an embargo are listedas potentially permissible reprisals in J.G.Starke, Introduction to International Law, Butterworths, 10th ed., 1989, p. 520. Reprisals in the context of trade measures to protect the environmentare discussed in Thomas Schoenbaum, "InternationalTrade and Protectionof the Environment: The Continuing Search For Reconciliation," (1997) 91 American Journal ofInternational Law, pp. 268-313, pp. 299-300. OscarSchachter, International Trade Law in Theory and Practice, Martinus Nijhoff, 1991, pp. 190-193, notes that it is not clear whether a breach of a treaty only entitles an affected state to suspend its fulfillment of the breached treaty vis-a-vis the breaching state. The issue of economic coercion as a sanction is canvassed without a definitive conclusion in Orner Yousif Elagab, The Legality of Non-Forcible Counter-Measures in International Law, Clarendon Press, 1988, pp. 190-213 . Starke, id., p. 520.

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by the International Whaling Commission (IwC).67 However, Canada cannot be in breach of the whaling moratorium since it is no longer a party to the 68 ICRW. Japan and Norway are whaling consistent with exceptions within the ICRW.69 While the us threat of trade action is not itself inconsistent with international trade law," employment of a trade embargo against Canada, Japan or Norway because of whaling activities could not be justified as a reprisal for breach of a treaty."

67 Regarding the threatened us trade measures against Iceland, Japan and Norway

68

69

70

71

see: McDorman, supra note 10. The moratorium on the commercial taking of whales was adopted by the International Whaling Commission (rwc) in 1982 with effect from 1986. "Chairman's Report of the 34th Meeting of the International Whaling Commission," in 33rd Report of the International Whaling Commission, !WC, 1983, p. 21. There are a legion of books and articles regarding the work of the IWC and which discuss the moratorium. Some recent ones are: Peter J. Stoett, The International Politics of Whaling, University of British Columbia Press, 1997; Herluf Sigvaldsson, ''The International Whaling Commission: The Transition from a 'Whaling Club' to a 'Preservation Club' ," (1996) 31 Cooperation and Conflict, pp. 311-352; and Anthony D'Amato and Chopra Sudhir, "Whales: Their Emerging Right to Life," (1991) 85 American Journal of International Law, pp. 21-62 . Canada withdrew from the rwc in 1982. See: Ted L. McDorman, "Canada and Whaling: An Analysis of Art. 65 of the Law of the Sea Convention," (1998) Ocean Development and International Law (in press) . Japan is relying upon the scientific purposes provision, art. VIII of the ICRW; Norway has reserved its legal position through the objection procedure, art. V(3) of the ICRW, supra note 64. For a succinct review of the issues regarding Japan, Norway and the IWC, see: Stoett, supra note 67, pp. 74-80. Tuna/Dolphin I, supra note 6, p. 1619, determined that a threat of an embargo did not violate the principles of the GAIT. The principle is that legislation containing a discretion or option regarding the use of trade embargoes is not inconsistent with the GAIT, although the imposition of an embargo under the legislation may be inconsistent with GAIT principles. See: McGovern, supra note 12, sec. 1.134. It could be argued that the whaling moratorium is part of customary international law. However, the actions of Canada, Japan and Norway clearly undermine such an assertion.

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Trade law and treaties which allow or require trade measures: The case of conflicting treaties The ICRW does not explicitly allow or require the imposition oftrade embargoes. Increasingly international environmental treaties are requiring or allowing states to impose trade measures. The classic example of a treaty which requires the employment of embargoes is the Convention on the International Trade in Endangered Species (CITES).72 CITES compels states to impose embargoes on the trade of endangered species . However, CITES is silent regarding obligations to protect endangered species and, therefore, does not allow states to utilize trade embargoes against states which do not protect endangered species." A treaty that explicitly allows its members to impose trade measures is the Wellington Driftnet Convention." Pursuant to the Wellington Driftnet Convention parties may prohibit the importation of any fish or fish product caught using a driftnet." This discretion is not qualified by the requirement that the embargoed fish must have been caught by a driftnet in the geographic area to which the Wellington Convention primarily applies. The discretion allows the imposition of an embargo against fish caught with a driftnet anywhere on the globe. The discretion is qualified, however, by the requirement that such trade action must be consistent with international law. The obligation to impose embargoes in CITES is directly contrary to the non-embargo obligation in GAIT 1994. There has been considerable discussion whether CITES and similar treaties are consistent with the rules of GAIT 1994 and whether the CITES obligations, if inconsistent with GAIT 1994,

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 993 VNTS 242. 73 CITES is discussed in Simon Lyster, International Wildlife Law, Grotius Publications, 1985, pp. 239-277 and Alexandre Kiss and Dinah Shelton, International Environmental Law, Transnational Publishers, 1991, pp . 257-263. 74 Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific, (1990) 29 lIM 1449. For an excellent analysis of this Convention, see: Grant J. Hewison, "The Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific," (1993) ~5 Case Western Reserve Journal of International Law, pp. 449-530. 75 Art. 3(2) of the Wellington Driftnet Convention, id. 72

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override the rules of international trade law." There exist strong legal arguments, and even stronger political arguments, that CITES obligations are either consistent with international trade law rules, are an exception to the rules or override the rules both in the situation where disputing states are each members of WTO and CITES and where the disputing states are each members of WTO, but only the embargoing state is a party to CITES. 77 This result is supported by the North American Free Trade Agreement (NAFTA) that specifically provides that CITES and similar agreements, which require the imposition of product embargoes, override the trade obligations within NAFTA.

78

A trade embargo imposed pursuant to the Wellington Driftnet Convention is more problematic. The Convention contains its own limitation by only permitting a trade action against fish caught with a driftnet that is consistent with international law." A trade embargo imposed by one party to the Convention against another party would be no problem since it is a Convention obligation not to fish with driftnets. Thus, an embargo could be a treatysupported enforcement measure.

A small sampling of the recent literature includes: Chris Wold, "Multilateral Environment Agreements and the GAIT: Conflict and Resolution?" (1996) 26 Environmental Law, pp. 841-921; Christine Crawford, "Conflicts between the Convention on International Trade in Endangered Species and the GAIT in Light of Actions to Halt Rhinoceros and Tiger Trade," (1995) 7 Georgetown International Environmental Law Review, pp. 555-585; Wen-chen Shih, "Multilateralism and the Case of Taiwan in the Trade and Environment Nexus," (1996) 30 No.3 Journal of World Trade, pp. 109-139; and Kelly Jude Hunt, "International Environmental Agreements in Conflict with GAIT: Greening GAIT after the Uruguay Round Agreement," (1996) 30 International Lawyer, pp. 163-191 . 77 See: Wold, id., pp. 870-877; Ted L. McDorman, "The 1991 us-Mexico GAIT Panel Report on Tuna and Dolphin: Implications for Trade and Environment Conflicts," (1992) 17 North Carolina Journal ofInternational Law and Commerce , pp. 461-488, pp . 484-485; and McDorman, supra note 10. 78 Art. 104, North American Free Trade Agreement (NAFrA), (1993) 32 ILM 605. See: Pierre Marc Johnson, and Andre Beaulieu, The Environment and NAFTA: Understanding and Implementing the New Continental Law, Island Press, 1996, pp. 107-110. This book is a valuable examination of the trade and environment issues that have arisen regarding NAFrA. 79 Art. 3(2) of the Wellington Driftnet Convention, supra note 74. Note: Hewison, supra note 74, pp. 476-477 and pp. 512-517 . 76

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The uncertainty is whether an embargo on fish caught using driftnets imposed on non-members of the Wellington Convention would be consistent with international trade law. An embargo on all fish caught using driftnets can be argued to be similar to the embargoes required by CITES. Tilting the balance in favor of the congruency with CITES is the existence of a widely supported United Nations General Assembly resolution which prohibits driftnet fishing." It can be argued that, like preventing trade in endangered species (CITES), a prohibition on driftnet fishing is globally accepted and that trade measures related to enforcement of the prohibition are also globally accepted and, like CITES, override the principles of the WTO. Also supporting this approach is that, like CITES, the embargo is provided for directly in the Wellington Convention. The contrary position is that through a treaty a small group of states should not be able to deprive other states of their rights under the WTO. Moreover, unless it can be demonstrated that the ban on high seas driftnet fishing is part of customary international law, then driftnetting states should not be targeted with trade action for undertaking an internationally legal activity. There might be less problem with an embargo under the Wellington Convention if the embargo were restricted to fish caught using driftnets from the geographic area under the management of the Wellington Convention. In such a case, there would be direct link between the embargo and the management of an exhaustible resource such that the embargo might fit the wording of article XX(g).81 While on its face this seems like a reasonable

80

Large-Scale Pelagic Driftnet Fishing and its Impact on the Living Marine Resources ofthe World 's Oceans and Seas, UN GAOR 2nd., 44th sess., UN Doc. AlREs/44/225 (1989), (1990) 29 lIM 1556 and GA Res. 46/215, (1992) 31 lIM

241. Note the complaints about the driftnet fishing prohibition by William T. Burke, The New International Law ofFisheries, ClarendonPress, 1994,p. 103. 8I If this were the case then regionalfisheries managementorganizations that deal with straddling or migratory stocks could allow its members to utilize import measures against fish caught by non-organization members where that fish comes from the area being managed by the regional fisheries organization. Inherent in this is the abilityof states to require certificatesof origin for traded fish. It might seem anomalous that a regional organization cannot prevent a non-member from fishing on the high seas but that non-member could be prevented from trading the fish.

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use of article xx(g), it is not free from doubt.82 The WTO is sensitive to the issue of conflicting treaty obligations involving trade measures for environmental purposes. The WTO perception is that use of the dispute settlement process to deal with conflicting treaty obligations is unlikely to occur and, moreover, in the context of resource conservation treaty measures, article xx(g) may operate to resolve an issue on the side of the environmental treaty." Moreover, the panel in Tunal Dolphin I suggested that the existence of environmental agreements could make a difference in the operation of the rules of international trade law."

Trade law and measures imposed because of differing national standards The possibility of embargoes by the United States against states whaling legally and the possibility of trade embargoes under the Wellington Driftnet Convention against fish legally caught with driftnets begs the question of whether one state can impose a trade embargo against another state, which, acting consistently with its international obligations, utilizes different conservation and management standards for its activities in waters outside those of the embargo-imposing state. International trade law, by not interfering with national environmental and marine living resource policies, allows the existence of differing national laws, policies and standards . By allowing difference, is it reasonable to expect that international trade law will sanction states to utilize trade

82 For example , would the distinguishing offish from the Wellington Convention

area and beyond the area constitute an unjustifiable discrimination within the chapeau of article XX such that article xx(g) would not be applicable? 83 WTO, "Report of the Committee on Trade and Environment," 1996, para. 174. The conclusions and recommendations of the crs Report are reproduced in (1997) 27 Environmental Policy and Law, pp. 68-72. For a brief commentary on the era Report, see: "Committee on Trade and Environment," (1997) 27 Environmental Policy and Law, pp. 33-36 and Schoenbaum, supra note 65, pp. 268-271. 84 Tuna/Dolphin I, supra note 6, p. 1623 and see: Markus Schlagenhof, "Trade Measures Based on Environmental Processes and Production Methods," (1995) 29 Journal of World Trade, pp. 123-155, p. 139.

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measures to punish the existence of those differences? Prima facie the answer is no. lt is also worth noting that the 1996 WTO Report of the Committee on Trade and Environment, referencing a 1995 OECD report, stated: (T)here has been no evidence of a systematic relationship between existing environmental policies and competitiveness impacts, nor of countries deliberately resorting to low environmental standards to gain competitive

advantages."

Another review of the TunaIDolphin cases On two separate occasions, TunaIDolphin /86 and Tuna/Dolphin II,87 dispute settlement panels of the GAIT looked at the legality under international trade law of an embargo imposed by the United States against tuna caught outside us waters but which had been harvested in a manner which did not meet us standards regarding dolphin mortality. It is worth noting that the harvesting activity complained about took place outside us waters and jurisdiction, that unlike in the Canada-us Lobster case" there was no relationship between the imported tuna and the needs of us management practices, that no international treaties were involved regarding dolphin protection and that the product being embargoed, tuna, was itself environmentally friendly . The two major issues were: would the rules of international trade law allow the United States to look behind the tuna and impose an embargo because of the manner in which the tuna was harvested; and was an embargo that was based on differing national environmental standards consistent with international trade law. Both Tuna/Dolphin Panels concluded that international trade law did not permit the United States to look behind the environmentally-friendly product (tuna) being traded and impose an embargo because other countries had adopted differing tuna-dolphin harvesting standards . It is again worth noting that there did not exist an international agreement regarding harvesting standards for tuna and dolphin and that the foreign practices did not under-

85

era Report,

supra note 83, para. 169.

86 TunaIDolphin I, supra note 6. 87 TunaIDolphin II, supra note 7. 88 Lobster From Canada, supra note 62.

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mine us management practices applicable to us fishers or within the United States. Both Tuna/Dolphin Panels approached the issues in the same way. However, while reaching the same result, the Panels did not arrive at those results using the same reasoning. There was little debate that the measure imposed by the United States was a violation of article XI(l) of the GAIT. The principal argument was whether the us embargo could be justified under article xx(g), the resource conservation exception, or article xxtb), the protection of human and animal health exception." The Tuna/Dolphin II Panel determined that neither of these provisions directed that the natural resource to be conserved nor the animal health to be protected had to be within the jurisdiction of the United States. However, the TunaIDolphin II Panel concluded that the us goal of reducing the mortality of dolphin outside the United States could only be effective if other countries changed their laws and that a trade measure "taken so as to force other countries to change their policies" could not be justified under either article xx(g) or (b).90 Removing the emotive dolphin issues from the equation, Tuna/Dolphin was a unilateral attempt by the United States to use a trade embargo to impose its standards on activities taking place outside its territory where those activities were unrelated to activities within the United States or subject to international agreement. It is, therefore, not surprising that before the GAIT panels no other country sided with the United States as interveners in either panel. While the trade law logic of the TunaIDolphin cases is necessary in order to prevent unilateral, extraterritorial factors from inhibiting trade, it has been argued that global commons issues require a different approach. It can be argued that one country's activities regarding the global commons may affect another country's use or enjoyment of the global commons. Based on this

89

90

Art. xx(g) is set out at supra, p. 9. Art. xx(b) creates an exception for trade measures "necessary to protect human, animal or plant life or health." These provisions havebeensubjected to detailed scrutiny in lightof the Tuna/Dolphin decisions. See: McGovern, supra note 12, sec. 13.1-13.1333 and also, Jan Klabbers, "Jurisprudence in International Trade Law - Article XX of GAIT," (1992) 26 Journal of World Trade, pp. 63-94. TunaIDolphin II, supra note 7, p. 894 and p. 898.

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characterization, it is argued that a trade measure to protect the resources of the global commons is protecting the natural resources or health of resources in the embargoing state and thus article xx(g) and (b) should be applicable. This argument works if there is a direct effect between the global resource and the resource within national waters or a direct connection between an embargo and an international resource management regime. However, absent these connections, it must be accepted that, by definition, the global commons is multilateral and requires a community approach to commons protection. The way to deal with the global commons is through international agreement and not one country unilaterally imposing its standards, however environmentally meritorious, on all global commons users and thus enforcing its ethical values with trade embargoes. As one commentator succinctly noted : ''The GAIT cannot be made responsible for the lack of international environmental rules"." A fact-pattern similar to that of Tuna/Dolphin is currently before the WTO. Thailand and several other countries are complaining that an embargo on shrimp imposed by the us against countries that do not have laws regarding preservation of sea turtles compatible with those of the United States is inconsistent with GAIT 1994.92 Given the similarity of the Shrimp/Turtle dispute to the Tuna/Dolphin cases it is difficult to envision a different result arising from the WTO dispute settlement process. However, the applicable rules are slightly different in that the TBT Agreement has created the possibility of looking behind a product and considering the process and production methods (PPMS) involved in producing that product. Process and production methods (PPMs) Article 2(2) of the TBT Agreement provides that a country can utilize product standards in furtherance of environmental objectives and that product standards can include process and production methods (PPMS).93 The major restriction is that the process and production method "must relate to the final

91

92 93

Schlagenhof, supra note 84, p. 141.An attempted reconciliation of GAIT principles, unilateral trademeasures andglobal environmental protection is provided by Esty, supra note 25, pp. 135-154. "DSB establishes five panels," (February 1997) Focus: WTO Newsletter, p. 6. Technical Barriers to Trade Agreement, supra note 35 as interpreted by Schlagenhof, supra note 84, pp. 131-132.

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characteristics of the product covered (product-related PPMS)".94 It has also been noted that the environmental objectives to be met may be limited to domestic environmental matters rather than environmental objectives outside the domestic jurisdiction of the standard-setting state." There is clearly no intent to permit states to utilize product standards as a way to force states to have the same environmental laws unless the differing laws affect the characteristics of a traded good. It has been suggested that, as the impetus for the inclusion in the TBT Agreement of product standards respecting environmental matters that can include production methods was the TunalDolphin decisions, therefore, the provisions could be interpreted in such a way as to support US measures driven by concerns over environmentally unfriendly production methods." However, the application of article 2(2) of the TBT Agreement hinges on whether the production method affects the characteristics of a product (product-related PPMS).97 Thus, the question that will be answered by the WTO Shrimpffurtle dispute panel will be: is it a characteristic of shrimp (the product) that it has been harvested in a manner that does not meet a certain turtle mortality rate (the production method)? The answer will be that the imported shrimp is unaffected by the production method required by the United States, that the TBT Agreement only allows the United States to protect its own environment and that trade measures designed to require compatibility of environmental protection, absent international agreement, are inconsistent with GAIT 1994. Countervailing duties and the environment As already discussed, a state can impose countervailing duties against a subsidized product from another country where that product causes material injury to a domestic producer." It is an easy leap to the argument that lower environmental standards in one country amount to a subsidy on products entering a state with higher environmental standards and, therefore,

Schlagenhof, id., p. 132. Schlagenhof, id. 96 Filhol, supra note 3, pp. 16 and 23. 97 Schlagenhof, supra note 84, p. 133. 98 · See supra, p. text after note 42. 94 95

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a countervailing duty may be appropriate." The WTO does not sanction this possible use of countervailing duties 100 and under the Uruguay Round Subsidies Code differing environmental standards are not seen as either prohibited or "actionable subsidies".'?' The principal concern is that countervailing duties could be used to demand sameness and remove the independence of states to establish their own environmental measures and standards. Moreover, experience with the manner in which the United States utilizes countervailing duties suggests that any loophole would be seized to justify essentially protectionist duties even if couched in environmental rhetoric. 102

The "polluter pays principle " One of the widely held tenets of environmentalism is that there should be full cost accounting for environmental degradation, which would include resource use, and that the polluter or resource user should shoulder that cost: the polluter pays principle.l'" Put another way, the cost of a good should reflect the "true" costs to the environment of the process and production methods utilized to create or harvest the product. As regards marine living resources this would mean that, for example, tuna caught in an environmentally unfriendly manner should have a higher end-cost than tuna caught in an environmentally friendly manner.'?'

99 100 101

102 103

104

See, for example, Thomas K. Plofchan, "Recognizing and Countervailing Environmental Subsidies," (1992) 26 International Lawyer, pp. 763-780. crs Report , supra note 83, para. 169. Differing environmental standards would not meet the definition of a subsidy in article 1.1 of the Uruguay Round Subsidies Code, supra note 48, which requires the government to take a positive action to provide a benefit. However, one part of the definition does indicate that a subsidy may exist where revenue is not collected or is foregone. Twisting the wording to cover differential standards has been described as "tortured." Esty, supra note 25, p.I64. Esty, id., pp. 164-166. See generally: Philippe Sands, Principles ofInternational Environmental Law, Manchester University Press, 1995, pp. 213-217 and Esty, supra note 25, pp. 65-71 and pp. 176-178. Alistair McIlgorm, "Fisheries Trade and the Marine Environment," in PECC Task Force 1996 Symposium, supra note 43, p. 10, references a yet unpublished paper by H.P. Campbell, A. McIlgorm and M.B. Tsamenyi, "Fishery Management, Environmental Protection and Trade Liberalization," in International Journal of Social Economics which discusses this issue in detail.

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The polluter pays principle and its requirement for full cost accounting is an answer to the apparent contradiction between the ideologies of trade and the environment. 105 However, there are several problems on the way to harmony. First, and of most importance, there is not yet a reconciliation between the principle of polluter pays and the independence of a state to establish its own environmental standards. Second, there are obvious difficulties in determining the "true" costs of a product or resource. 106 The answer is an international consensus on base standards for full cost accounting where a failure to meet or apply the standards would result in an importing state assessing a duty against the non-true-costed product. 107 Without such a consensus, however, reliance on the polluter pays principle to impose a tariff or duty on an imported product to ensure that the foreign product is assessed at its "true" cost is a unilateral measure design to force one country's standards on another country .108 Such a trade measure would be inconsistent with international trade law.

Conclusion

Absent an international agreement or international law being breached, a treaty requiring imposition of trade measures or an undermining of domestic environmental policies, international trade law prohibits a state from utilizing an embargo, countervailing duty or other trade measure because another state has a different standard of environmental protection. That such is the case is the necessary consequence of each state having the right to establish its own environmental standards . For marine living resource conservation and management this means that, absent international agreements, trade measures imposed by one country to force other countries to have compatible harvesting standards, as in the TunaIDolphin decisions or the Shrimp/Turtle dispute , are inconsistent with GA1T 1994. It is sometimes suggested, usually with great indignation, that this restriction amounts to an infringement on the autonomy of the embar-

lOS The congruency is discussed in Esty, supra note 25, pp. 65-71. 106 Discussed in Esty, id. pp. 176-177. 107 Note: Esty, id., pp. 177-178. 108 See: McIlgorm, supra note 104, p. 10.

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going state to pursue its own international environmental policies. This, of course, is true. However, the embargoing state yielded the right to set its own rules regarding with whom and upon what conditions it trades when it became a member of the WTO.

FINAL REMARKS

International trade law is little concerned and creates virtually no interference with conservation and management policies adopted by states regarding marine living resources within their national waters. However, in the postharvest phase or utilization phase involving destination of fish, fish processing and marketing, the rules of international trade law may operate to restrict measures that are seen as protectionist or trade restrictive. As a necessary corollary of freedom of action within national waters, international trade law does interfere with a state using trade measures to impose its resource conservation and management standards on the harvesting activities of other states in foreign waters. International trade law does not tolerate coerced sameness regarding marine living resource conservation and management standards. Where international resource conservation and management agreements and principles are applicable, however, it is reasonable to expect that the WTO will yield to the specialized treaty and rule requirements. The major issue in international trade law and marine living resource management and conservation is the impediment on states imposing trade measures to protect resources of the global commons. However, the political and legal realities of international marine living resource conservation and management, such as, for example , that states are not compelled to become a treaty member as in the case of the ICRW, cannot be blamed on or fixed by international trade law. The hard reality of international marine living resource conservation and management that no harvesting standards may exist, for example, regarding dolphin or turtles, cannot be blamed on or fixed by international trade law. The reality is that the rules of international trade law have been accepted by most of the world community and the WTO dispute settlement process ensures a high degree of compliance when compared to the rules, standards and compliance processes that exist for international marine living resource conservation and management. The weaknesses of international marine living resource conservation and management

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law cannot be blamed on or fixed by international trade law. As Daniel Esty aptly put it, the problem is one of GArrmg the Greens, and not just Greening the GATI. 109

109 See: Daniel C. Esty , "GAffing the Greens, Not Just Greening the GAlT," (1993) 72 Foreign Affa irs, pp. 32-36 and Esty, supra note 25, pp. 73-98 and pp. 205241.

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17 THE EUROPEAN COMMUNITY AND ITS ROLE IN SOME ISSUES OF INTERNATIONAL FISHERIES LAW

Robin R. Churchill

INTRODUCTION

By any standard the fifteen Member States of the European Community (EC)\ collectively constitute a major fishing power. In the period 1992-94 (the most recent years for which figures were available at the time of writing) the combined average annual marine fish catch of all Member States was 7.266 million Mt., about 8.35 per cent of the world total of 86.287 million Mt. 2 The EC was the fourth leading fish-catching power, behind China, Peru and Japan. However, the level of fishing varies widely between Member States. At one extreme Denmark and Spain caught over 1.2 million Mt. each, while at the other land-locked Austria and Luxembourg have no marine fishing industry. In between two Member States, the United Kingdom and France, had catches between a half and one million Mt., while the catches of all the remainder except Belgium (whose catch was 35,000 Mt.) lay between 100,000 and just over 500,000 Mt. The overwhelming prop or-

2

Throughout this chapter reference is made to the European Community (EC) rather than to the European Union (EU). The latter comprises the three "pillars" of a common foreign and security policy, co-operation in justice and home affairs, and the three pre-existing communities (the Coal and Steel Community, EC and Atomic Energy Community). Fisheries fall solely within the ambit of the EC. These figures have been calculated from those given in FAD, Yearbook of Fishery Statistics, Catches and Landings, vol. 78, FAD, 1994, pp. 101-103.

E. Hey, (ed.), Developments in International Fisheries Law, p. 533-573. © 1999 Kluwer

Law International. Printed in The Netherlands.

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tion of the EC catch was taken in the waters of its Member States, only about a quarter being caught in the waters of third states or on the high seas.' The main Member States involved in the latter fisheries are Spain (identified by FAO as the world's second leading distant-water fishing state"), France (ninth on FAO'S list), Italy and Portugal. The different interests of Member States in fisheries in general, and in distant-water fisheries in particular, obviously are an important factor in the formulation of EC policy towards international fisheries issues.' Since the late 1970s the EC has had the exclusive or near exclusive competence to regulate the marine fishing activities of its Member States on both the internal and external plane. The latter concerns the EC'S relations with third states and international organizations. Regulation on the internal plane refers to the system for the conservation and management by EC institutions of the fishery resources found within the zones of national jurisdiction of the Member States. These zones range from the six- and twelve-mile territorial seas of Greece and Italy in the Mediterranean to the 200-mile exclusive economic zones or fishing zones of other Member States in the North-East Atlantic, North Sea and Baltic Sea. The basic elements of this management system include: the setting each year of Total Allowable Catches (TACS) for most stocks of commercial interest, which are then divided into quotas and allocated to individual Member States largely on the basis of historical fishing performance, other conservation measures such as mesh regulations, minimum fish sizes, closed seasons and closed areas, measures to try to ensure that Member States properly enforce conservation measures (since the EC itself has very little law enforcement capability) and measures to try to adapt fleet capacity to the available catch potential. It is widely considered that this system, which has been in operation since 1983, has not operated so very successfully and has failed to prevent the over-exploitation of many stocks and the growth of excess capacity."

3

4

5

6

Document COM (96) 488, p. 7. supra note 2, p. xviii. For a more detailed analysis of differences in the fisheries interests of Member States, see RR Churchill, EEC Fisheries Law, Martinus Nijhoff, 1987, pp. 7-10. See, e.g., R.R Churchill, "Fisheries in the European Community - Sustainable Development or Sustained Mismanagement?," in A. Couper and E. Gold (eds.), The Marine Environment and Sustainable Development: Law, Policy and Science , Law of the Sea Institute, 1993, pp. 140-177 and M. Holden, The EC

FAD,

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This chapter, however, is not concerned with internal aspects of the EC' s Common Fisheries Policy but only with its external dimension. The international fisheries issues in which the EC is or has been involved, to a greater or lesser extent, include the management of straddling stocks, highly migratory species, anadromous species and marine mammals, participation in international fisheries organizations, general issues of the high seas fisheries regime, the management of shared (or joint) stocks and the access of EC vessels to third states' waters and the converse. Within the inevitable space constraints of a single chapter it would be impossible to discuss the EC'S involvement in all of these issues without being superficial in the extreme. For this reason only three issues and the EC' s role therein will be discussed: the management of straddling stocks, general issues of the high seas fisheries regime and the access of sc vessels to third states' waters. These three issues have been selected because they are all ones in which the EC has been significantly involved in recent years and they give a reasonably representative picture of the EC as an international fisheries actor. All three issues involve the creation of treaty relationships, so this chapter will therefore begin with an examination of the EC'S competence to enter into treaties. This will be followed by a fairly briefdiscussion of the question of EC participation in the United Nations Convention on the Law of the Sea' (LOS Convention) since the provisions of the LOS Convention form the underlying legal base of the three fisheries issues selected for discussion, each of which will then be examined in tum. The chapter will end with some brief conclusions.

7

Common Fisheries Policy, Fishing News Books , 1994. (1982) 21 lIM 1261. Specifically on the fisheries provisions of the LOS Convention see Hey, supra Chapter 2.

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THE EC'S TREATY-MAKING POWERS IN RELATION TO FISHERIES8

As an international organization with legal personality," the EC clearly has the capacity in principle to make treaties . The extent and nature of that capacity are governed primarily by Community Law rather than international law. Under Community law the EC'S treaty-making powers are of two kinds: those powers expressly conferred on it by the EC Treaty and those that may be implied from its provisions. The only express treaty-making power that is relevant to fisheries is article 113 of the EC Treaty (on the common commercial policy), which authorizes the EC to enter into treaties with third states relating to trade in fishery products; this matter obviously falls outside the scope of this chapter. The EC' s implied treaty-making powers are essentially the creation of the European Court of Justice, beginning with its judgment in 1971 in the ERTA case .'? According to the Court's case law, the EC has implied treaty -making powers in relation to any matter where it has a power under the EC Treaty to legislate on the internal (i.e., Community) plane and where such a power has actually been exercised, II and also when such a power has not been exercised, provided that participation of the EC in the treaty in question is necessary to attain a specific objective of the EC Treaty which cannot be attained simply by means of EC internal measures.P In many, but not all, of the areas in which it has treaty-making capacity, the

8

For excellent recent general accounts of the EC's treaty -making powers, see J. MacLeod, J.D. Hendry and S. Hyett, The External Relations ofthe European Communities, Clarendon Press, 1996, especially chapters 3 and 6, and D. McGoldrick, International Relations Law 0/ the European Union, Longman, 1997, pp. 40-88 . For fuller accounts of the EC'S treaty-making powers in relation to fisheries, see Churchill, supra note 5, pp. 169-176 andE. Hey , "The European Community, the Law of the Sea and Accountability: an Ever Changing Relationship," in M.D. Evans (ed.),Aspects ofStatehood and Institutionalism in Contemporary Europe, Dartmouth, 1997, pp. 277-300, especially at pp. 285-290. 9 As to which see MacLeod et al., supra note 8, pp . 29-34. 10 Case 22/70, Commission v. Council, [1971] ECR 263. 11

Id.

12 Opinion 1/76 (Re The Draft Agreement/or a Laying-Up Fund/or Inland Waterway Vessels), [1977] ECR 741 ; Opinion 2/91 (Re IW Convention 170), [1993] ECR 1-1061; Opinion 1/94 (Re wroAgreement), [1994] ECR 1-5267; and Opinion 2/92 (Re OEeD National Treatment Instrument) [1995] ECR 1-521. See MacLeod et al., supra note 8, pp. 47-53.

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are exclusive, i.e., the Member States no longer have the capacity, either individually or collectively, to enter into treaties relating to the area in question. According to MacLeod et al.,13 the EC'S powers are exclusive in the following situations: (1) where exclusivity flows from the Treaty provisions from which the treaty-making competence derives, (2) where exclusivity follows from the scope of the measures adopted by the EC: this will be so where the EC has legislated comprehensively or extensively for the field in question or where EC measures could be affected by a treaty concluded by a Member State, (3) where the EC'S treaty-making power derives from an express power in an EC act and (4) where conclusion of a treaty is necessary to attain an EC objective which cannot be achieved by the adoption only of EC measures. In situations where the EC has treatymaking competence but such competence is not exclusive, it is shared with the Member States. Competence will be shared, according to MacLeod et al.,14 where (1) that consequence flows from the EC Treaty article conferring power on the EC, (2) the EC has potential competence which could be exclusive when exercised but which has not yet been exercised, (3) the subject matter of the treaty falls partly within the field of the EC'S exclusive treaty-making powers and partly outside, (4) the EC' s treaty-making powers derive from internal EC rules which set minimum (rather than uniform) standards and (5) in certain limited areas, such as intellectual property, where EC and Member State competence can co-exist without either displacing the other. Treaties in respect of which competence is shared falling in category (3) are known as "mixed agreements," although some writers also use the term in the case of all agreements where treaty-making competence is shared between the EC and its Member States. How do these general treaty-making powers just outlined apply to fisheries? It follows from the fact that the EC has the power, given by article 43 of the EC Treaty , to legislate for fisheries on the internal plane and has actually done so, that the EC has treaty-making powers in relation to fisheries. In the Kramer case the European Court of Justice held that these powers included the power to enter into treaties relating to the conservation of EC'S powers

13 Supra 14

note 8, pp. 56-63.

Id., pp. 63-67.

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fishery resources, and that this power was exclusive. IS What is less easy to establish is how far the EC' s treaty-making powers extend beyond conservation and other matters in relation to which it has legislated extensively on the internal plane and the degree to which such powers are exclusive. The difficulty arises both from the generality of the basic internal lawmaking power, article 43, and from the breadth of the objectives of the Common Fisheries Policy set out in article 39. Both these provisions in fact deal with agriculture, but because agriculture includes fisheries (article 38), these provisions apply equally to fisheries. The objectives of the Common AgriculturallFisheries Policy set out in article 39 include increasing productivity, ensuring a fair standard of living for fishermen, stabilizing markets and assuring availability of supplies at reasonable prices, while article 43 states simply that the Community institutions shall work out and implement the Common AgriculturallFisheries policy. 16 Rather than attempting an exhaustive examination of the extent of the EC's treaty-making powers relating to fisheries, an examination will be made of a number of issues other than conservation where in recent years there has been some difficulty or controversy in knowing whether the EC has treaty-making powers , and if so, whether those powers are exclusive. The first of these issues is the requirement that a flag state must authorize its vessels if they are to fish on the high seas. This requirement is found both in the FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement)" and the Agreement for the Implementation of the Provisions of the LOS Convention relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (Straddling and Highly Migratory Fish Stocks Agreement). 18 The EC has a power

15 Joined Cases 3,4 and 6176, Officier van Justitie v, Kramer, [1976] ECR 1279,

paras. 30-33. This position has subsequently been confirmed in Case C-258/89, Commission v. Spain, [1991] ECR 1-3977, para. 9 and Case C-25194, Commission v. Council, [1996] ECR 1-1469, para. 42. 16 For an exploration of the scope of articles 39 and 43 as they apply to fisheries, see Churchill, supra note 5, pp. 20-22 and 85-86. 17 (1994) 33 lIM 968. Specifically on the Compliance Agreement see Balton, supra Chapter 3. 18 (1995) 34 lIM 1542. Specifically on the Straddling and Highly Migratory Fish Stocks Agreement see Hayashi, supra Chapter 4.

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to license or authorize vessels to fish given to it in its internal legislation" and has exercised this power in practice to some degree. 20 This would therefore suggest that on the external plane the EC has the power to enter into treaties containing a requirement for flag states to authorize their vessels to fish. There is implicit confirmation of this view in the Compliance Agreement case where the European Court of Justice, after agreeing that provisions on the criteria for the registration of vessels (which it was thought at one stage that the Agreement might contain) fell outside the Community's competence, stated that the authorization of vessels was not comparable to registration," thereby implying that this fell within Community competence, and held that on the high seas the EC has "the same regulatory powers, in areas falling within its authority, as are recognized under international law" to the flag state." Although the EC would clearly seem to have the competence to conclude treaties containing provisions on the authorization of vessels, it does not necessarily follow that this competence is exclusive. The fact that Member States still engage extensively in licensing vessels, to a much greater extent than the EC, might suggest that competence is shared. On the other hand, in the Compliance Agreement case, the European Court of Justice saw authorization as an aspect of conservation, in relation to which the EC undoubtedly has exclusive competence, thereby implying that competence in relation to authorization is also exclusive. EC practice in relation to this matter, however, is not entirely clear-cut. In proposing to the Council that the EC should accept the Compliance Agreement, the Commission argued that the subject matter of the Agreement fell entirely within the EC'S exclusive treaty-making competence.i" and, as explained below," the Council appears to have accepted this view. In the case of the Straddling and Highly Migratory Fish Stocks Agreement the Commission again argued, when proposing that the EC should sign the

See, for example, Reg. 3760/92, OJ 1992 L 389/1 and Reg. 3690/93, OJ 1993 L 341/93. 20 See, for example, Reg. 3531/85, OJ 1985 L 336/20, and Reg. 3760/92, supra note 19. 21 Case C-25/94, supra note 15, para. 46. 22 ld., para. 44. A similar statement was also make in Case C-405/92, Mondiet v. Islais, [1993] ECR 1-6133, para. 12. 23 COM (94) 331, p. 4. 24 See the text at infra note 103 and further. 19

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Agreement, that the Agreement fell entirely within the exclusive competence of the EC. 25 The Council, for reasons that will be explained later," disagreed and decided that the Agreement was one of shared competence. The declaration made by the EC on signature," which sets out the division of competence between the EC and the Member States, does not refer expressly to where competence relating to authorization lies, but appears to imply that it lies with the EC, as paragraph 6 states that the EC enjoys the regulatorycompetencegrantedunderinternational law to the flag State...to determine theconservation andmanagement measures...applicable to vessels flying the flag of member States and to ensure that member States adopt provisions allowing for the implementation of the said measures. The conclusion that seems to follow from the above discussion is that the question of authorization falls within the EC'S exclusive treaty-making competence. A second issue of uncertainty as to where treaty-making competence lies concerns enforcement. Some treaties, such as the Compliance Agreement and Straddling and Highly Migratory Fish Stocks Agreement, contain provisions requiring flag states effectively to enforce applicable conservation and management measures, permitting vessels to be boarded and inspected by states other than the flag state and giving port states various powers of control. On the internal plane there is no doubt that the EC has exclusive legislative competence in relation to fisheries conservation and management:" in the view of most writers the competence to enforce such measures (in the sense of arresting and prosecuting alleged offenders and imposing sanctions on those found guilty) lies with the Member States."

25 COM (95) 591, pp. 2 and 18-21. 26 See text at infra note 85.

(1996) 32 Law of the Sea Bulletin 26. Case 804179, Commission v. United Kingdom, [1981] ECR 1045. Further on this question, see Churchill, supra note 5, pp. 88-94. 29 MacLeod et al, supra note 8, p. 242; Churchill, supra note 5, p. 85; A. Berg, "Enforcementof the CommonFisheriesPolicy, with Special Reference to the Netherlands," in C. Harding and B. Swart (eds.), Enforcing European Community Rules, Dartmouth, 1996, pp. 62-82, p. 64. For the opposite view, see 27 28

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Nevertheless, the EC has adopted measures requiring Member States to exercise their enforcement responsibilities effectively and permitting EC inspectors to board vessels and inspect the work of national fisheries inspectors." The existence of such measures would suggest that on the external plane the EC has treaty-making powers, since the scope of the EC's internal rules is similar to those found in the Compliance and Straddling and Highly Migratory Fish Stocks Agreements." Moreover, applying the criteria of MacLeod et al. outlined earlier, the EC'S treaty-making powers would seem to be exclusive in view of the extent of its internal measures. However, the practice of the EC is less than clear-cut. While it has been recognized in the case of the 1978 Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries" (NAFO Convention) (which contains provisions on effective flag state enforcement and a scheme ofjoint international inspection) and the Compliance Agreement that the EC has exclusive treatymaking power, the position is different with the Straddling and Highly Migratory Fish Stocks Agreement. Although the Commission argued strongly that enforcement fell within the EC'S exclusive competence," the declaration made by the EC on signature of the Agreement states that measures relating to the exercise of jurisdiction by the flag state over its vessels on the high seas, in particular provisions such as those related to the taking and relinquishing of control of fishing vessels by states other

Hey, supra note 8, p. 286. It may also be noted that the European Court has accepted that the EC has the competence under the Common Agricultural Policy to impose administrative (as opposed to criminal) penalties, see Case C-240/90, Germany v. Commission, [1992] ECR 1-5383, paras. 24-30. 30 See, in particular, Reg. 2847/93 , OJ 1993 L 26117. The European Court has also held that there is a general obligation on Member States, flowing from article 5 of the EC Treaty, to enforce EC rules effectively: See Case 68/88 , Commission v. Greece, [1989] ECR 2965. See further Berg, supra, note 29, pp. 64-73. 31 See also the IW Convention case, supra note 12, where the European Court held that the EC may, "for external purposes, undertake commitments designed to ensure compliance with substantive provisions which fall within its competence and imply the attribution of certain supervisory powers to national authorities " (para.34) . 32 OJ 1978 L 378/16. The Convention is discussed in more detail below: see text at infra note 63 and following. 33 Supra note 25, pp. 19-20.

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than the flag state, international co-operation in respect of enforcement and the recovery of the control of their vessels, are within the competence of the Member States in compliance with Community law (para.7) .

On the other hand, port state measures are matters of shared competence (para.8). It will be argued below that the decision by the Council to regard the Straddling and Highly Migratory Fish Stocks Agreement as a treaty of shared competence rather than of exclusive EC competence was influenced primarily by political rather than legal considerations." Certainly the trend of EC practice has been to regard participation in treaties containing enforcement provisions as falling within EC exclusive competence: apart from the NAFO Convention and the Compliance Agreement, other examples of this practice include the 1980 Convention on Future Multilateral Cooperation in the North-East Atlantic" (NEAFC Convention), the 1982 Convention on the Conservation of Salmon in the North Atlantic Ocean" (NA SCO Convention), the 1973 Convention on Fishing and Conservation in the Baltic Sea and Belts" (Baltic Convention) and the Fisheries Agreement concluded between the EC and Canada in 1995.38 A final issue of uncertainty over the distribution of treaty-making competence concerns research. Many multilateral fisheries treaties, including the Straddling and Highly Migratory Fish Stocks Agreement, provide for cooperation with respect to fisheries research . On the internal plane the EC has adopted measures to coordinate research." It thus follows that the EC has treaty-making competence in this area. The trend of EC practice is to regard such competence as exclusive: the many examples include the NAFO Convention, the regional fisheries conventions mentioned at the end of the previous paragraph and several of the bilateral treaties discussed in the

See text at infra note 85. The Council's action seems to have influenced the Commission. In its subsequent proposal for sc confirmation (i.e., ratification) of the LOS Convention, the Commission has suggested that enforcement is a matter of Member State competence : see infra note 57. 35 OJ 1981 L 227/22. 36 OJ 1982 L 378/25. 37 OJ 1983 L 237/5 . 38 OJ 1995 L 327/20. 39 Reg. 101/76, art.7, OJ 1976 L 20/19, Reg. 3252/87, OJ 1987 L 314/17 and Dec. 87/534 , OJ 1987 L 314/20. 34

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penultimate section of this paper. On the other hand, the declaration made by the EC when signing the Straddling and Highly Migratory Fish Stocks Agreement states that scientific research is a matter of shared competence." This is again perhaps best regarded as a political exception to the general rule. As it is hoped the above discussion demonstrates, while there is certainty that the core issues of fisheries conservation and management fall within the EC' s exclusive competence, there is less certainty about some more peripheral issues. Decisions by the Council (the main decision-taker in this matter) about whether such issues and the treaties to which they relate do or do not fall within the EC'S exclusive competence are not always determined by strictly legal criteria : an example of a "political" decision is the Council's decision regarding the Straddling and Highly Migratory Fish Stocks Agreement, discussed in more detail below." The reasons why a matter may be decided primarily by reference to political considerations are largely because the law may not be clear and because some Member States may feel that to decide that a matter is within the EC' s exclusive competence on the external plane may be to pre-empt a decision about competence or substance on the internal plane. In practice the overwhelming majority of fisheries treaties, both bilateral and multilateral, to which the EC has become a party have been regarded as falling within its exclusive competence. This is perhaps just as well, because treaties where competence is shared (mixed agreements) raise consider-

40

41

In its proposal for signature the Commission had argued that as research was of an accessory nature to the main objective of the Straddling and Highly Migratory Fish Stocks Agreement (conservation and management) , which fell within the EC'S exclusive competence, it too therefore fell within such competence : supra note 25, pp. 19-20. Again the Council's decision has influenced the Commission's subsequent action. In its proposal for EC confirmation of the LOS Convention, the Commission suggests that competence in respect of fisheries research is shared. See infra note 57. See text at infra note 85. Such decisions are open to challenge by the Commission or a Member State before the European Court of Justice, and such challenges are sometimes mounted . For a very useful discussion of this whole issue in general terms, see McGoldrick , supra note 7, pp. 94-115.

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able problems.? particularly for non-sc parties. A major problem for such parties is in knowing who - the EC or its Member States - is responsible for fulfilling which obligations under the treaty. Even when, as is often but by no means always the case, the treaty concerned requires the EC to enumerate those areas for which it is competent and those for which the Member States are competent, as for example the Straddling and Highly Migratory Fish Stocks Agreement and the LOS Convention do, such an enumeration may not always be so very clear and in any case is subject to developments in European Community Law. Analogous problems arise in relation to customary international law obligations. An example of these kinds of problems can be seen in the Fisheries Jurisdiction case which Spain has brought against Canada in the International Court of Justice following the arrest by Canadian authorities in March 1995 of the Spanish vessel, the Estai, on the high seas for alleged violation of NAFO regulations. Canada has argued that the Court should not hear the case inter alia because there is no longer a dispute following the conclusion of the Fisheries Agreement between the EC and Canada in April 1995. Spain's view is that the dispute is about general high seas freedoms, not just fisheries issues." It remains to be seen whether the International Court will have to address this issue, or whether (as seems likely) Canada's reservation in its declaration under article 36(2) of the Court's Statute will prevent the Court from having jurisdiction in this case. The fact that under Community law the EC has treaty-making competence, whether exclusive or shared, does not, of course, guarantee that the EC will always be able to exercise such competence in practice. Such exercise is dependent on other states being prepared to negotiate with the EC and conclude treaties with it. In practice in the case of fisheries treaties the EC has had sufficient determination and bargaining strength to get itself accepted as a negotiating partner and treaty party, even though on occasions, as with the NAFO and NEAFC Conventions, it has taken a certain amount of time and effort to overcome the reluctance of some states, mainly the

42 For an excellent review of the problems of mixed agreements, see D. O'Keefe 43

and H.G. Schermers (eds.), Mixed Agreements, Kluwer, 1983. See further on this, I .A. de Yturriaga , The International Regime of Fisheries , Martinus Nijhoff, 1997, pp. 248-257 . See also Hey, supra note 8, pp. 287-290.

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former Communist states of Eastern Europe." More problematic has been the situation concerning existing multilateral fisheries treaties to which one or more EC states are parties. According to Community law the EC should become a party together with, or more usually instead of, its Member States." One problem is that usually such treaties do not provide for international organizations to become parties to them. In some cases no action has (yet) been taken in order to permit the EC to become a party." In other cases the treaty concerned has been amended to permit the EC to become a party, but this has often been subject to considerable delay: for example, although a formal proposal to amend the Baltic Convention was made in 1977, it was not until 1982 that the necessary protocol was signed," while a protocol to amend the International Convention for the Conservation of Atlantic Tunas which was adopted in 1984 has not yet come into force." Before leaving the question of the EC'S treaty-making competence, it is worthwhile saying a few words about the procedure by which the EC negotiates and concludes treaties." In cases where the EC has exclusive competence, the procedure, which is laid down in article 228 of the EC Treaty, begins with the Commission requesting a mandate from the Council to negotiate with the third state(s) or international organization concerned. Once it has received its mandate, the Commission begins negotiations, its room for maneuver generally being indicated in the negotiating directives containing its mandate. The Commission must also consult with any committee appointed by the Council for this purpose. If the negotiations are successful, the Commission will then forward the treaty to the Council. The latter, after consulting the European Parliament, then decides, by a qualified majority vote, whether or not to conclude the treaty on behalf of the EC. By 'conclude' is meant either approve (in the sense of ratify or accede to) or, in some cases, signature to be followed by later approval or signature not requiring further approval. The act concluding the treaty is in the form either

44

45 46

47 48 49

For details, see Churchill, supra note 5, pp.l87-188. Id., pp. 184-186. As to the legal position in such cases, see id., pp. 175-176. See also MacLeod et al., supra note 8, pp. 226-237 and McGoldrick, supra note 8, pp. 123-124. OJ 1983 L 237/9. The Protocol carne into force in 1984. OJ 1986 L 162/41. For a detailed account of the EC'S treaty-making procedure in general, see MacLeod et al., supra note 8, pp. 80-105.

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of a regulation or decision. In cases where the EC'S treaty-making competence is shared with the Member States, the procedure is basically the same except that the Member States also take part in the negotiations. During this process, according to the European Court of Justice," there must be close cooperation between the EC and its Member States.

EC PARTICIPATION IN THE THIRD LAW OF THE SEA CONFERENCE AND THE LOS CONVENTION Before turning to look at the EC'S role in the specific fisheries issues identified in the introduction to this chapter, something should be said briefly" about the EC'S participation in the LOS Convention, since the fisheries provisions of the Convention form the background to, and the basic legal framework of, those specific fisheries issues discussed below. During the years of preparation for the Third Law of the Sea Conference (1970-73) and the first phases of the Conference leading up to the adoption of the Revised Single Negotiating Text (1973-76), by which time negotiations over fisheries issues were largely complete, the EC'S Common Fisheries Policy was in an embryonic state ," as were those other parts of EC law relevant to the subject matter of the Conference. It must also be remembered that it was not until the ERTA case in 1971 that it was clear that the EC had implied treaty-making powers and not until the Kramer case in 1976 that these applied specifically to fisheries. It is thus not surprising that the EC

See Case C-25/94, supra note 15, para. 48 and previous case law cited there. For a fuller discussion, see, from amongst a considerable literature, K.R Simmonds, "The Community's Participation in the UN Law of the Sea Convention," in D. O'Keefe and H.G. Schermers (eds.), Essays in European Law and Integration, Kluwer, 1982, pp. 179-195; K.R Simmonds, "The Community's Declaration upon Signature of the UN Convention on the Law of the Sea," (1986) 23 Common Market Law Review, pp. 521-44; T. Treves, "The EEC, the UN and the Law of the Sea," and commentaries thereon by B. Vukas and M. Ederer, in E.D. Brown and RR Churchill (eds.), The UN Convention on the Law of the Sea: Impact and Implementation, Law of the Sea Institute, 1987, at respectively pp. 518-526, pp. 569-572 and pp. 573-577 ; and Hey, supra note 8, especially pp. 278-280. 52 The first two measures, dealing with structural policy and marketing, were adopted in 1970. No further measures were adopted until the later 1970s. 50 51

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as such did not participate as a negotiating party during the Conference. Nevertheless, the EC had observer status, and the Member States consulted together in an effort to reach a common position on issues before the Conference." Such coordination led to eight of the then nine Member States (the exception being the United Kingdom) putting forward jointly a set of draft articles on fisheries in 1974.54 This proposal attempted to balance the interests of coastal states and those of distant-water fishing states, with a strong emphasis on the role of regional organizations. This approach made little impact, and by 1975 or 1976 it was clear that a new international regime for fisheries would be based on the 200-mile exclusive economic zone. Although many EC Member States had initially been opposed to any extension of coastal state jurisdiction over fisheries because of their distant-water fishing interests and the inability of some Member States (such as Belgium, the Netherlands and Germany) to generate extensive maritime zones, they came round to accepting the approach based on the exclusive economic zone by about 1976 and thereafter concentrated on trying to amend some of the details of the regime of the exclusive economic zone. By the time of the conclusion of the Third Law of the Sea Conference, the scope of the EC'S treaty-making competence was much clearer than it had been at the beginning and the LOS Convention accordingly provides for EC participation in article 305 (1)(t) and Annex IX. Article 2 of the latter provides that the EC may sign the Convention when a majority of its Member States has done so. In accordance therewith the EC signed the LOS Convention on December 7, 1984, even though two of its largest Member States, Germany and the United Kingdom, declined to do so. In Community law terms the LOS Convention is a mixed agreement. Article 2 of Annex IX required the EC, when signing the Convention, to make a declaration specifying

53 See further A.W. Koers , "Participation of the European Economic Community

in a New Law of the Sea Convention," (1979) 73 American Journal of International Law, pp. 426-443, pp. 438-439; id., "The External Authority of the EEC in regard to Marine Fisheries," (1977) 14 Common Market Law Review, pp. 269-301, pp. 283-285; and T. Treves , "The EEC and the Law of the Sea: How Close to One Voice?," (1983) 12 Ocean Development and International Law, pp. 173-189, pp . 173-182. 54 UN Doc. NCONF.62/C.2/LAO, Third United Nations Conference on the Law of the Sea, Official Records, Vol. III, p. 217 . See also Yturriaga, supra note 43, pp. 50-51.

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which matters governed by the LOS Convention fell within its competence and the nature and extent of that competence. As far as fisheries are concerned, the declaration made by the EC55 states that its Member States have transferred competence to it with regard to the conservation and management of sea-fishing resources. Hence in the field of sea fishing it is for the Community to adopt the relevant rules and regulations (which are enforced by the Member States) and to enter into external undertakings with third states or competent international organizations.

Article 3 of Annex IX provides that the EC may confirm (i.e., ratify) the LOS Convention when a majority of its Member States have ratified. This condition was met when Sweden became the eighth of the 15 Member States to ratify the Convention on June 25, 1996. Although by September 1997 11 Member States had ratified the Convention, the exceptions being Belgium, Denmark, Luxembourg and Portugal, the EC Council had not yet taken a decision on confirmation, which had been proposed by the Commission in February 1997.56 If and when the EC does confirm it will be required to make a new declaration about its competence (Annex IX, article 5(1» .57 Until the EC becomes a party to the Convention, those Member States that currently are parties face a potential quandary. What would happen if a party to the Convention, not an EC Member State, alleged that one or more Member States were failing to observe fisheries obligations under the Convention, e.g., the duty to conserve high seas fishery resources? If both the EC and its Member States were parties to the Convention, the answer would be reasonably straightforward. Articles 4(3) and 6 of Annex IX make it clear that in such a situation the EC would be responsible for failure to perform

55 UN, Multilateral Treaties deposited with the Secretary-General. Status as at

31 December 1995 (1996), p. 806 . 56

COM (97) 37.

57

In its proposal the Commission suggests, as far as fisheries are concerned, adding to the declaration made on signature statements that competence is shared in respect of certain matters not directly related to conservation and management, such as development cooperation and research, arid that "in respect of measures relating to the exercise of jurisdiction over vessels, flagging and registration of vessels and the enforcement of penal and administrative sanctions, competence rests with Member States whilst respecting Community Law" : see COM (97) 37, p. 478 .

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an obligation relating to a matter for which it was competent, including therefore fisheries . Annex IX, however, deals only with the situation where both the Member States and the EC are parties and does not indicate what would happen if only the Member States were parties . In relation to the question posed above, there would seem to be two possible answers. The first would be for one or more Member States to accept that they were responsible for the failure. This, however, would bring them into conflict with Community law since it would be a denial of the EC'S (exclusive) external competence in fisheries matters. It would also mean that if such Member States were found to be in breach of Convention obligations, they would be unable on their own to rectify the breach because it would require action by the EC to do so. The alternative answer to the question would be for the Member States concerned to plead that because of Community law they were not responsible for the breach. This would not be an acceptable defense, however, as under international law a state cannot plead breach of one treaty as an excuse to justify breach of another treaty." It is therefore to be hoped that the EC will shortly ratify the LOS Convention in order to prevent problems of the kind just outlined occurring.

THE EC AND STRADDLING STOCKS

The EC's interest in straddling stocks is primarily as a high seas fishing entity . It has only a limited interest in straddling stocks from the perspective of a coastal state, as the 200-mile zones of its Member States contain very few straddling stocks of commercial interest. The main area where EC vessels fish for straddling stocks is the Northwest Atlantic. The management of these

58 It should be noted that virtually every BC Member State which has so far ratified

the Convention has when doing so made a statement in which it recalls that as a Member State it has transferred competence to the BC in respect of certain matters governed by the Convention, and that a detailed declaration on the nature and extent of the competence transferred will be made in due course in accordance with Annex IX. It is not clear whether such a statement is intended to be merely informative or whether it is also intended to suggest that even in the absence of the BC being a party to the Convention, the Member State concerned is not responsible for certain matters under the Convention (including fisheries).

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straddling stocks is the responsibility of the Northwest Atlantic Fisheries Organization (NAFO), of which the EC is a member. The first part of this section discusses the role of the EC in NAFO. The problems NAFO has experienced in trying to manage straddling stocks are, to a considerable degree, symptomatic of the weaknesses of the provisions of the LOS Convention dealing with straddling stocks /" It was to try to overcome these weaknesses that the United Nations General Assembly, prompted by the United Nations Conference on Environment and Development (UNCED) and Agenda 21,60 decided that a conference on straddling stocks should be held?' and why the Straddling and Highly Migratory Fish Stocks Agreement was concluded. The second part of this section examines the role played by the EC in the conference and the EC's participation in the Agreement.

The

EC

and

NAF062

NAFO was set up in 1978. 63 Its task is to manage the straddling and discrete high seas stocks of the Northwest Atlantic. In relation to straddling stocks,

59

60 61 62

63

These weaknesses have been widely discussed: see, for example, W. Burke and E. Miles, "Pressures on the United Nations Convention on the Law of the Sea arising from New Fisheries Conflicts: the Problem of Straddling Stocks," (1989) 20 Ocean Development and International Law, pp. 343-57; E. Hey, The Regime for the Exploitation of Transboundary Marine Fisheries Resources, Martinus Nijhoff, 1989, pp. 53-57, 73-74 , 82-83 and 94-99; and E. Meltzer, "Global Overview of Straddling and Highly Migratory Fish Stocks: the NonSustainable Nature of the High Seas Fisheries," (1994) 25 Ocean Development and International Law, pp. 255-344 . Agenda 21, Chapter 17, para. 17.50. Chapter 17 is reproduced in (1992) 7 International Journal of Estuarine and Coastal Law, pp. 296-329 . General Assembly Resolution 47/192 of December 22, 1992, reproduced in (1992) 23 Law of the Sea Bulletin, pp. 14-16. For a much fuller account, on which the following discussion draws, see R.R. Churchill, "The 1995 Agreement on Straddling Fish Stocks and Highly Migratory Species and its Implications for the Management of Straddling Stocks in the North Atlantic," paper given at a seminar on International Environmental Law, Tromso, April 1997 (awaiting publication). This paper also discusses the EC'S role in the management of straddling stocks in the North-East Atlantic. By the NAFO Convention, supra note 32.

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NAFO is to seek to ensure consistency of its management measures with those of Canada. From a political point of view one of NAFO' s main tasks in managing the straddling stocks of the North-West Atlantic has been to reconcile the interests of the sole coastal state in the region, Canada, with those of the major distant-water fishing powers - the EC, Japan and Russia." In managing straddling stocks NAFO has faced three major problems, all of which have undermined its management efforts. These problems are: use of the objection procedure, especially by the EC, the activities of fishing vessels from third states and poor enforcement of NAFO measures. The main management tool used by NAFO has been the setting each year of TACS, which are then divided into quotas allocated to individual NAFO members. Under the NAFO Convention, as with most international fisheries commissions, it is possible for a member, which dislikes a management measure, to object to it and so not be bound. Before 1986 little, if any, use was made by NAFO members of this possibility to object to TACs and quotas. From 1986 onwards, however, the EC objected to most of the quotas it was allocated by NAFO and set its own autonomous quotas." These were usually significantly in excess of the NAFO quotas: one of the more extreme examples was in 1986 and 1987, when the EC set an autonomous quota for each of those years of 26,400 Mt. for cod, compared with a NAFO quota of 12,345 Mt. and a NAFO TAC of 33,000 Mt. Although recorded EC catches were often lower than the EC'S autonomous quotas, they were frequently greater than the NAFO quota and on several occasions the amount of excess was of the same order of magnitude as the amount by which total NAFO catches exceeded TACs. The reason why the EC began objecting to NAFO quotas was because it objected to NAFO'S management strategy that set catch levels at FO.1 . The EC "preferred F max as a management approach to meet the socio-economic needs of its fleet.,,66 These socio-economic needs had changed dramatically at the beginning of 1986 when Portugal and Spain

64 Although NAFO has 17 members altogether, the fishing activities of the other members in the NAFO area are fairly limited. 65 For full details, see Table 1 in Churchill, supra note 62 or COM (93) 214, pp.

4-5. 66 R.G. Halliday and A.T. Pinhom, "North Atlantic Fishery Management Systems:

A Comparison of Management Methods and Resource Trends," (1996) 20 Journal of Northwest Atlantic Fishery Science, pp. 1-119, p. 88.

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became members of the EC. Both states, but especially Spain, had significant distant-water fleets. These fleets were not only coming under increasing pressure as more and more coastal states reduced the amount of fishing by other states within their 200-mile limits, but also were not given many fishing opportunities in the waters of other EC Member States, at least for the first 10 years of their EC membership." As one Canadian writer has perhaps rather bitterly observed, in attempting to make up for lack of fishing opportunities in EC waters by creating more possibilities for Portuguese and Spanish fishing and as a result of the use of the NAFO objection procedure, the EC exported the problem of Portuguese and Spanish overcapacity to the waters off Canada." In 1992 the EC abandoned its use of the objection procedure and agreed with NAFO'S measures for 1993. This was largely because the debate on management strategy had "moved from the merits of FO.1 and F max to the need to maximize protection of collapsing stocks.T" on which the EC was agreed; consequently it raised no objection to the moratoria introduced (and still in force) on directed fishing of straddling stocks of capelin in 1993 and cod, American plaice, yellowtail flounder and witch flounder in 1994. However, in 1995 the EC used the objection procedure again, this time in relation to Greenland halibut. NAFO only began to manage this stock in 1994, and set its first quotas in January 1995, allocating the EC a quota representing 12.59 per cent of the TAC. The EC'S share of the catch in recent years had been of the order of 70 per cent. The EC objected to its quota and set a unilateral quota representing 69 per cent of the TAC. Matters rapidly came to a head when in March 1995 Canada arrested a Spanish vessel, the Estai, which was fishing for Greenland halibut on the high seas. Relations between Canada and the EC became very tense for a time, as the EC maintained that the arrest was clearly contrary to intemationallaw. Fortunately, it was not long before the dispute was resolved with the conclusion of an agreement on April 16.70 Under the Agreement the parties agreed to propose to NAFO a formula for the allocation of quotas of Greenland halibut.

67

For details see Churchill, supra note 5, pp. 138-139.

68 D. Day, "Tending the Achilles' Heel of NAFO," (1995) 19 Marine Policy , pp . 69 70

257-270, p. 268 . Supra note 66. Supra note 38.

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This formula was accepted by NAFO at its annual meeting in September 1995 and has been followed since, without objection by the EC. The second major problem faced by NAFO in managing straddling stocks, in which the EC is again involved, is fishing for such stocks by vessels registered in states not members OfNAFO and so not bound by NAFO's management measures. By the late 1980s the level of such fishing by third states was such that their catches amounted to about a quarter of total NAFO TACS, thereby clearly undermining NAFO'S management efforts. Many of these third state vessels are flags of convenience, and a sizable proportion of them are owned, either directly or through joint ventures, by nationals of Portugal and Spain, who have re-registered their vessels in order to avoid NAFO regulations. Although the EC has paid lip service to NAFO'S call to its members to prevent re-flagging, there is little evidence that it has taken any effective action to this end . While the level of third state fishing has decreased in recent years as a result of diplomatic pressure from NAFO and some of its members, many of the vessels still fishing are Iberian-owned flags of convenience. The third major problem faced by NAFO has been the inadequate enforcement of its measures by its members. The EC, particularly Portugal and Spain, is thought to be a major culprit in this regard. Almost since its inception, NAFO has had a Scheme of Joint International Inspection to supplement enforcement by flag states. Like other distant-water fishing members of NAFO, the EC has been slow to contribute vessels and inspectors to the scheme: not until 1988 did it do so. Overall, NAFO must be regarded as so far having been unsuccessful in managing the straddling stocks of the Northwest Atlantic. It has failed to prevent over-fishing of the stocks, which is one (although not the only") reason for the decline and poor state of the stocks, which are at low, very low or record low levels." The blame for NAFO'S failure must largely be laid at the feet of its members, of whom the EC must bear the largest share .

71 Otherreasons are over-fishing within the Canadian 200-mile limit, environmental

72

factors and over-estimation of the size of some stocks by scientists during the 1980s. NAFO, Annual Report 1995 (1996), pp. 128-142.

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EC participation

in the Straddling and Highly Migratory Fish Stocks Conference and Agreement

As mentioned above, the Straddling Stocks Conference, which was held between 1993 and 1995, was called to address the problems experienced in the management of straddling stocks, of which those of NAFO were not untypical. The Rules of Procedure of the Conference provided for the EC to be represented as a full participant for matters within its competence; this was the first time that this had happened at a United Nations legal or fisheries conference." At the outset of the Conference it was not clear whether, under Community law, the EC had exclusive competence to negotiate in place of its Member States or whether competence was shared with them; and a resolution of this matter was deliberately put off in order to avoid the possibility of prolonged and acrimonious debate on the issue." In practice the Commission was the sole spokesperson at the Conference, although its position was adopted in close cooperation with the Member States both before and during the Conference, including daily coordination meetings during the Conference sessions." As pointed out earlier, the EC'S interest in straddling stocks is primarily as a high seas fishing entity. Nevertheless, some Member States , such as Ireland and the United Kingdom, were sympathetic to the approach of the less extreme coastal states at the Conference. The EC'S position therefore tended to lie somewhere between that of the high seas fishing group at the Conference and the more extreme coastal state position." While this might suggest that the EC would be well placed to help in brokering a compromise, it did not do so to any great degree; indeed, during the early stages of the Conference its role was fairly modest. One participant in the negotiations has suggested to the writer that this was partly because the EC found it difficult to arrive at a common position because of the differing views of its Member States and partly because the head of the Commission delegation

73

74 75 76

D.H. Anderson, "The Straddling Stocks Agreement of 1995 - an Initial Assessment," (1996) 45 International and Comparative Law Quarterly, pp. 463475, p.467. COM (95) 591, p. 10. McGoldrick, supra note 8, pp. 203-204. R. Barston, "United Nations Conference on Straddling and Highly Migratory Fish Stocks," (1995) 19 Marine Policy, pp. 159-166, p. 160.

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changed at each session and in the early sessions of the Conference came from the Fisheries Directorate-General and therefore was not very familiar with the way things operate at the United Nations. At the final session the head of the EC delegation came from the External Relations DirectorateGeneral and therefore was much more familiar with the United Nations system; consequently, the EC became much more effective. Also at about this time, partly as a result of the Estai incident, discussed above, which occurred on the eve of the penultimate session of the Conference, the EC moved much more into the high seas camp." Its main objective became to see included in the Agreement" a requirement that straddling stocks, whether on the high seas or in the exclusive economic zone, be managed as a single unit, a requirement that membership of regional fisheries organizations be open to all interested states, the priority of flag state jurisdiction, a prohibition on the use of force by states other than the flag state and the possibility for states other than the flag state to board and inspect a vessel being limited to schemes adopted by regional fisheries organizations." The EC was largely successful in seeing the first three of these objectives met, but less successful with the final two. At the conclusion of the Conference the question of whether the EC'S competence was exclusive or shared was still unresolved. The Straddling and Highly Migratory Fish Stocks Agreement, in its provisions on participation by international organizations , deals with both eventualities. Article 47(1), which deals with the position where competence is shared, provides that Annex IX of the LOS Convention (discussed earlier) is to apply mutatis mutandis, with the exception that prior participation by a majority of Mem-

The Commission's evaluation of the Agreement, following its conclusion, is very much from the perspective of a high seas fishing entity: see COM (95) 591. 78 The EC initially had been against concluding a treaty and in favor of producing non-binding guidelines only. See D.A. Balton, "Strengthening the Law of the Sea: the New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, " (1996) 27 Ocean Development and International Law, pp. 125-151, p. 133. See also the Letter ofJune 14, 1993 from the EC Commission to the Chairman of the Conference, NCONF.I64/L.8, reproduced in Jean-Peirre Levy and Gunnar G. Schram (eds.), United Nations Conference on Straddling and Highly Migratory Fish Stocks, Selected Documents, Martinus NijhoffPublishers, 1996, p. 133. 79 COM (95) 591 ; Yturriaga, supra note 43, pp.195-196, 212-214.

77

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ber States is not required. Article 47(2) deals with the situation where competence is exclusive and stipulates that an international organization signing or acceding to the Agreement shall make a declaration stating that it has exclusive competence, that its Member States shall not become parties to the Agreement and that it accepts the rights and obligations of states under the Agreement. In November 1995 the Commission proposed to the Council that the EC should sign the Agreement. 80 Even though the Commission was not completely satisfied with the text of the Agreement, it nevertheless thought that the EC should sign in order to play an active part in and so help to supervise implementation of the Agreement at the regional level and through its dispute settlement procedures, promote the EC's image as an advocate of responsible fisheries and avoid bilateral difficulties with the EC'S main partners, who were in favor of the Agreement." On the question of competence, the Commission took the view that the EC'S competence was exclusive and that the EC should therefore sign in accordance with article 47(2) of the Agreement." This view was also shared by the Council's Legal Service." However, this view was contested by certain Member States, who argued that competence was shared." This dispute became fairly protracted and prevented the EC from signing the Agreement when it was opened for signature in December 1995. The dispute was eventually resolved when the Council decided that competence was shared. As suggested earlier, this decision appears to be based more on political grounds than on a strict application of Community law." The main reason for the decision was probably a desire by some Member States to avoid any implication that the EC had law-enforcement competence either on the internal or external plane. Resolution of the question of competence allowed the EC to sign the Straddling and Highly Migratory Fish Stocks Agreement on the basis of article 47(1) on June 27, 1996. Ten Member States signed on the same day, and the remaining five have all signed

80 81 82 83 84 85

COM (95) 591. !d., pp. 11-12. Id., pp. 2-3, 10, 18-21. See also text at supra notes 17-40. u, p. 10. Yturriaga, supra note 43, pp. 200, 219-220. See text at supra note 41.

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subsequently. The EC and its Member States collectively make up just over a quarter of the Agreement's signatories. When signing the Straddling and Highly Migratory Fish Stocks Agreement, the EC made the declaration about competence required by article 47(1).86 The brevity of the declaration belies its complexity. Although the declaration lists the division of competence between the EC and its Member States under two headings, exclusive competence and shared competence, in reality there are no less than five different categories of competence. These are: EC exclusive competence (conservation and management of living marine resources, including the regulatory competence granted under international law to the flag state), competence shared between the EC and its Member States (requirements of developing states, scientific research, port state measures and measures adopted in respect of non-members of regional fisheries organizations and non-parties to the Agreement), "provisions of the Agreement [which] apply both to the Community and to its Member States" (the general provisions of articles 1,4 and 34-50 and Part VIII on dispute settlement), matters "within the competence of the Member States in compliance with Community law" (measures relating to "the exercise of jurisdiction by the flag state over its vessels on the high seas," in particular those concerning enforcement) and matters "within the competence of the Member States in accordance with their national legislation" (matters concerning the masters and crew of fishing vessels). How enlightening third states will find this declaration remains to be seen, but it would seem probable that in the case of a specific dispute it will be difficult to know whether the EC or its Member States or both are responsible; in many cases it is likely that there will be joint responsibility but it may not be clear how such responsibility is to be shared. The EC'S signature of the Straddling and Highly Migratory Fish Stocks Agreement was also accompanied by an interpretative declaration." This reflects its concerns referred to earlier and relates mainly to various aspects of the provisions of articles 21 and 22 concerning boarding and inspection and the possible use of force in relation thereto, by states other than the flag state.

86 87

(1996) 32 Law a/the Sea Bulletin, pp. 26-27 .

u.. pp. 27-28 .

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In October 1996 the Commission sent the Council a proposal" that the EC should ratify the Straddling and Highly Migratory Fish Stocks Agreement and make a declaration concerning competence identical to that made on signature, and that the Member States should ratify the Agreement simultaneously "in order to guarantee uniform application of the Agreement." As regards the choice offorom(s) under the dispute settlement procedures, the Commission deferred a proposal on this matter, which would be dealt with in its proposal for EC confirmation (ratification) of the LOS Convention. (The Commission's latter proposal, made in February 1997, in fact suggests that the choice of forum under the LOS Convention should be left for the time being). As of August 5, 1997 neither the EC nor any of its Member States had ratified the Agreement. It is to be hoped that they will do so shortly, not least because such ratifications, added to the 15 current ratifications, will make exactly the 30 ratifications required for the entry into force of the Agreement."

THE EC AND SOME GENERAL ISSUES OF THE HIGH SEAS FISHERIES REGIME Recent years have increasingly revealed the inadequacy of the provisions of the LOS Convention relating to high seas fisheries, particularly as the level of fishing on the high seas has grown significantly with many distant-water vessels being phased out of coastal states' exclusive economic zones. Various attempts have been made to address this inadequacy of the Convention. One such attempt is, of course, the Straddling and Highly Migratory Fish Stocks Agreement. Another is the series of soft-law instruments leading to the Compliance Agreement. One specific issue, which has attracted considerable attention, is the use of large-scale driftnets, although this problem is not, of course, confmed to the high seas. This section discusses first the EC's involvement in the general measures and then its involvement in the driftnetting issue.

88 COM (96) 472. 89 The EC's ratification will not count for this purpose: see Art. 8(a) of Annex IX of the LOS Convention, which applies mutatis mutandis .

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General measures to improve the high seas regime As mentioned, a number of soft law or political instruments was adopted before the Compliance Agreement. 90 The first of these was a set of guidelines produced by a group of technical experts convened by the United Nations Secretary-General in 1991.91 It is obvious from its nature that the EC did not participate in this exercise, nor were any EC nationals members of the group of experts. The next significant step was the Canciin Declaration" adopted at the International Conference on Responsible Fishing held in May 1992, in which 67 states and international organizations, including the EC, took part. This was followed a month later by the adoption of Agenda 2193 at the UNCED, Chapter 17 of which, in Programme Area C, deals with "Sustainable Use and Conservationof Marine Living Resources of the High Seas." The EC was an active participant at UNCED,94 but, as with the Canciin Declaration, it is not clear what influence it had on the shaping of the final texts, but it supported their content. 95 In response to Agenda 21 and the Cancan Declaration, the FAD held a Technical Consultation on High Seas Fishing in September 1992, in which the EC participated." This led on to the adoption in 1995 of the Code of Conduct for Responsible Fisheries," of which the Compliance Agreement forms part.

90 For a more detailed account of these instruments, see R.R . Churchill, and A.V.

91 92 93 94

95 96 97

Lowe , The Law of the Sea, third edition, 1999, chapter 14. UN, The Law of the Sea: The Regime of High Seas Fisheries-Status and Prospects, UN, 1992. Reproduced in (1992) 8 International Organisations and the Law of the Sea, Documentary Yearbook, pp. 557-560. Supra note 60. L.J. Brinkhorst, "The European Community at UNCED: Lessons to be drawn for the Future," in D. Curtin and T. Henkel (eds.), Institutional Dynamics of European Integration: Essays in HonourofH.G. Schermers, Martinus Nijhoff, 1994, Vol. II, pp. 609-617. CDM (94) 331, p. 4. FAD, Report ofthe Technical Consultation on High Seas Fishing, FAD Fisheries Report No. 484 (1992). FAD Doc. 95/20IRev.1 (1995). For a brief analysis of the Code, see W.R. Edeson , "The Food and Agriculture Organisation of the UN Code of Conduct for Responsible Fisheries: an Introduction," (1996) 11 The International Journal ofMarine and Coastal Law, pp. 233-238. Specifically on the Code of Conduct

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The Code, which deals with much more than high seas fisheries, specifically applies to the EC, Article 1(4) stating that "in this Code, the term States includes the European Community in matters within its competence." As yet, there is little sign that the Code has had any real influence on EC practice, although it must be pointed out that on several issues, such as overcapacity and discards, the EC has been attempting to formulate effective measures in line with the Code's guidance. Turning now from soft law to the Compliance Agreement, the position of the EC within the FAa must be briefly explained first. Originally only states could be members of the FAa. In 1991 the FAa's constitution was amended to allow as a member a regional economic integration organization to which its member states (a majority of whom must also be members of the FAa) have transferred competence over matters within the FAa's purview. The EC became a member in the same year and, as required by the FAa'S amended constitution, made a declaration specifying which matters were within its competence. As far as fisheries were concerned, this declaration stated that the EC had exclusive competence in all matters concerning fisheries aimed at protecting fishing grounds and conserving the biological resources of the sea." FAa Rules provide for a system of alternative exercise of membership rights as between an international organization and its member states, requiring them to state before any meeting which has competence and which is to exercise the right to vote in respect of any particular agenda item. This provision caused difficulties in the case of negotiations for the Compliance Agreement, because at the outset the emphasis of the negotiations was very much on conditions for the granting ofnationality to fishing vessels, a matter within the competence of Member States; but later this matter was dropped and the emphasis shifted towards the authorization of vessels and the responsibilities of flag states, matters which lie more within the competence of the EC. As regards the substance of the negotiations of the Compliance Agree ment, the common position agreed between the Commission and EC Member States was opposed to an approach based on defining the conditions for the grant of nationality to fishing vessels and preferred instead an approach

98

see Moore , supra Chapter 5. Further on EC membership of FAO, see MacLeod et al., supra note 8, pp. 176179 and literature cited there.

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which stressed the responsibility of the flag state and concentrated on arrangements for authorizing high seas fishing" - an approach which is reflected in the final text of the Agreement. As the negotiations neared their conclusion, the question of competence became more acute. The Commission, although it appears really to have considered that the Compliance Agreement lay within the EC'S exclusive competence, was prepared to be pragmatic and agreed with the Council that competence was shared .l'? Under a prior internal arrangement between the Commission and the Council relating to participation in the FAD, it was agreed that in the case of a matter where competence was shared, the EC would vote where the "thrust" of the matter lay within the EC'S exclusive competence and the Member States would vote where the "thrust" ofthe matter lay outside the EC'S exclusive competence. In the case of the Compliance Agreement, the Commission and Council disagreed over where the "thrust" of the Agreement lay. The Council took the view that it lay outside the EC'S exclusive competence, and so informed the FAD . Accordingly, when the Compliance Agreement came before the FAD Conference in November 1993 for approval, it was the Member States that voted, and all the then 12 Member States voted for the Agreement. In the meantime the Commission had challenged the Council's decision about the "thrust" of the Compliance Agreement before the European Court of Justice, which in March 1996 found for the Commission and held that the Council had been wrong to decide that the thrust of the Agreement lay outside the EC's exclusive competence.'?' It should be stressed that the Court did not, and was not required to, rule on whether the Agreement as such was within the EC'S exclusive competence or whether competence was shared - it simply noted that the Commission and Council had agreed that competence was shared. 102 In August 1994 the Commission sent the Council a proposal for the EC to accept (i.e. , became a party to) the Compliance Agreement.'?' In a departure from its earlier position, the Commission in its proposal argued that the Agreement in its entirety lay within the EC's exclusive competence. On

99 COM (94) 331, pp. 2-3.

100 See the Advocate General's Opinion in Case C-25/94, supra note 15, p. 1478. 101

Case C-25/94, supra note 15.

102 [d. para. 40. 103 COM (94) 331.

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June 25, 1996 the Council took a decision that the EC should accept the Agreement.'?' its instrument of acceptance was deposited with the FAD on August 6, 1996. It is not clear whether the Council agreed with the Commission about the question of competence, but there are several indications that it did. First, the text of the Council's decision is almost identical to the Commission's draft, both including a paragraph in their preamble to the effect that the EC has the authority to conclude agreements concerning fishery resource conservation and management. Second, no Member State has accepted the Agreement. 105 Third, article X (4) of the Agreement provides that when accepting the Agreement a regional economic integration organization shall, as appropriate, notify such modifications or clarifications to its original declaration of competence made when joining the FAD as may be necessary in the light of its acceptance of the Agreement. When accepting the Compliance Agreement the EC in fact gave no such notification. Thus, the matter is governed by the original declaration, referred to earlier, which again suggests exclusive competence. For parties to the Agreement, any doubts about competence can be clarified by an inquiry to the EC. Under article x( 4) of the Compliance Agreement, the EC must, in response to any such request, indicate which, as between itself and its Member States, is "responsible for the implementation of any particular matter covered by the Agreement." If the Compliance Agreement does fall within the EC'S exclusive competence, and given that the NAFD Convention and its scheme of joint international inspection fall within such competence, it becomes hard to understand why, from a strictly legal point of view, the Straddling and Highly Migratory Fish Stocks Agreement falls within shared competence. This therefore reinforces the view expressed earlier that the decision about competence in relation to that Agreement was primarily a political one.

104

Decision 96/428/EC, OJ 1996 L 177/24.

105 It is true that Sweden has accepted the Agreement, but it did so before becoming

a member of the EC.

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Driftnet fishing In the late 1980s widespread concern developed over the use of large-scale driftnets because of their indiscriminate nature: large numbers of fish other than the target species, marine mammals, turtles and birds all being caught in them and killed.'?" Although it has been questioned why driftsnets should be the object of particular concern when other types of fishing gear are also indiscriminate in what they catch,'?' the United Nations General Assembly in 1989 and 1991 adopted resolutions" the effect of which was to call for a moratorium on large-scale driftnet fishing by the end of 1992. As the resolutions were adopted without a vote and almost no debate either in committee or plenary, it is not possible to tell what the attitudes of EC Member States, some of whom (particularly France and Italy) have engaged in driftnet fishing, to the resolutions were, but it must be assumed that they were broadly in favor. In order to give effect to the United Nations General Assembly's call for a moratorium, the EC Council in January 1992 adopted a regulation'?' which prohibits the use of driftnets longer than 2.5kmllO by EC vessels in all waters, both national and high seas , except the Baltic (where driftnets are regulated by the International Baltic Sea Fisheries Commission). As a

For fuller discussion of the driftnetting issue see, e.g., B. Miller, "Combating Drift-Net Fishing in the Pacific," in J. Crawford and D.R. Rothwell (eds.), The Law a/the Sea in the Asian-Pacific Region , Martinus Nijhoff, 1995, pp. 155-170 and FAG, The Regulation 0/ Driftnet Fishing on the High Seas: Legal Issues, FAG Legislative Study No. 47, 1991. 107 See e.g, W.T. Burke, The New Internat ional Law a/Fisheries, ClarendonPress, 1994, pp. 86-87, 103-107 and 117-121. 108 Resolutions 44/225 and 46/215, reproduced in (1990) 15 Law a/the Sea Bulletin, pp. 15-17 and (1992) 20 Law a/the Sea Bulletin, pp. 14-16. Since 1991 the General Assemblyhas adopteda decisionor resolutionon driftnet fishing every year. 109 Reg. 345/92, OJ 1992 L 42/15. The validity of the regulation was the object of a vigorous but unsuccessful challenge by French fishing concerns in Case C-405/92, supra note 22. 110 The United Nations Resolutions do not contain any definition of "large-scale" driftnets. Resolution 44/225, however, takes note of the 1989 Wellington Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific «(1990) 29 lIM 1449), which bans driftnets in excess of 2.5km. 106

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temporary exception, in order to make the socio-economic impact of the regulation less abrupt, vessels which had fished for albacore tuna with driftnets in the North-East Atlantic for at least two years prior to the entry into force of the regulation, were allowed to continue to use nets up to Skm until the end of 1993 (i.e., one year after the date specified in the United Nations Resolutions). In practice this exception applied to 37 French vessels.'!' In 1994 the Commission proposed that driftnet fishing should, in general, be phased out completely by the end of 1997,112 but this proposal was not accepted by the Council.l" The operation of the 1992 Regulation has given rise to a number of problems. First, a number of EC vessels have reflagged in order to avoid being bound by the Regulation.!" Secondly, the Regulation has been poorly enforced, especially by the Italian authorities, and there have been widespread breaches of its provisions.!" Thus, while the EC has on paper conformed to the, admittedly, non-binding United Nations Resolutions,116 it does not yet appear to have completely succeeded in doing so in practice.

III

112

113

114

us 116

House of Lords Select Committee on the European Communities, Regulation of Drift Net Fishing, Session 1993-94 13th Report, HL Paper 77, p. 5. COM (94) 131. The European Parliament has also called for a complete ban on the use of driftnets: see, e.g., its resolutions of September 29, 1994 and July 12, 1995, OJ 1994 C 305/83 and 1995 C 249/81. The only action taken by the Council was to prohibit the use of all driftnets for catching tuna in Portuguese and Spanish waters: see Reg. 2251195, OJ 1995 L 230/11. This regulation and Reg. 345192, supra note 109, have now been repealed and replaced by consolidating Reg. 894/97 , OJ 1997 L 13111, arts. 11 and 12. UN Secretary-General, "Report on Large-Scale Pelagic Driftnet Fishing and its Impact on the Living Marine Resources of the World's Oceans and Seas," UN Doc. N48/451 , para. 17, reproduced in (1993) 9 International Organisations and the Law of the Sea, Documentary Yearbook, pp. 76-97 . EC Commission, The Use ofLarge Driftnets under the Common Fisheries Policy, COM (94) 50, pp. 12-13; House of Lords, supra note 111, pp. 8 and 12; and Yturriaga, supra note 43, pp. 178-179. Although the resolutions are formally not binding, it has been argued that the moratorium for which they call has become a rule of customary international law: see G.J. Hewison, "The Legally Binding Nature of the Moratorium on Large-Scale High Seas Driftnet Fishing," (1994) 25 Journal ofMaritime Law and Commerce, pp. 557-579 .

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THE ACCESS OF EC VESSELS TO THIRD STATES' WATERS

Unlike most of the other issues discussed so far in this chapter which have been bedeviled by disputes and uncertainties about competence, competence has not been a problem in relation to the access otsc vessels to third states' waters. Since the late 1970s it has been generally accepted that this matter is within the exclusive competence of the EC. Under the LOS Convention, and possibly also under customary international law, the access of foreign vessels to a coastal state's 200-mile exclusive economic zone is based on the concept of surplus, i.e., the coastal state must give foreign vessels access to that part of the allowable catch in its exclusive economic zone which is in excess of its own vessels ' harvesting capacity, although it has a broad discretion as to which vessels are permitted to fish and on what terms. 117 As far as the access of EC vessels to third states' waters and the converse are concerned, the concept of surplus has in practice played a relatively limited role. Since the extension of their fisheries jurisdiction to 200 miles by EC Member States and many other coastal states in the late 1970s, the third states with whom the EC has concluded agreements on access can be divided into two broad categories - reciprocal and non-reciprocal states. Reciprocal states are those states not only to whose waters the EC has access but also which have access to EC waters. Reciprocal states are the only states having such access , the reason being that there is no surplus in EC waters. The only slight exception are the waters of French Guyana where, under a succession of autonomous annual EC regulations, the vessels of a number of third states, such as Barbados and Venezuela, are given access to surplus stocks of shrimp, shark, snappers and tuna. The agreements with reciprocal states will be discussed first, followed by a review of agreements with nonreciprocal states. In both cases the discussion must of necessity be brief.

Access agreements with reciprocal states Those states which fall into the category of reciprocal states have varied over time, depending on which states have been members of the EC at any particular time and whether certain overseas territories of Member States

117

See further Hey, supra Chapter 3, text at note 39.

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(notably Greenland and St. Pierre et Miquelon) have or have not been within the ambit of the territorial application of the EC Treaty at the relevant time. At the present time the reciprocal states with whom the EC has an access agreement are Norway, 118 the Faroes .!" Estonia.P' Latvia.! " Lithuania l 22 and Dominica.l" Negotiations for access agreements are also taking place with Poland and Russia: currently access is governed by annual autonomous measures by each party. Dominica perhaps requires a word of explanation. The EC waters to which reciprocity relates here are those off the French overseas departements of Guadeloupe and Martinique. The reason why the EC has given access to its waters to the vessels of reciprocal states even though there is no surplus there, has been as a negotiating counter in order to maintain some access for its vessels to waters where they had traditionally fished, thereby reducing to some extent the dislocation suffered by its distant-water fleets as a result of the introduction of 200-mile limits . Each of the agreements that the EC has concluded with reciprocal states is broadly similar. The agreements are all framework ones, providing the structure and procedures for fisheries arrangements but leaving the details as to quotas, conservation measures, licenses, etc. to be established in subsequent negotiations between the parties . All the agreements provide that each party is to grant access to its 200-mile zone to vessels of the other party in such a way as to achieve a balance between the fishing effort of each party in the waters of the other and that each party may require the vessels of the other party fishing in its waters to carry a license; such vessels are subject to the fisheries jurisdiction (both prescriptive and enforcement) of the other party while fishing in its waters. The details of the access given by the agreements are laid down in annual EC regulations. The agreements with the three Baltic states provide in addition that the EC is to provide them with funding for training and that the parties are to promote the establish-

118 119 120 121 122

123

sse-Norway Agreement on Fisheries, 1980. OJ 1980 L 226/48. EEC - Faroes Agreement on Fisheries, 1977. OJ 1980 L 226/12. EEC - Estonia Agreement on Fisheries Relations, 1992. OJ 1993 L 56/1. EEC - Latvia Agreement on Fisheries Relations, 1992. OJ 1993 L 56/5. EEC - Lithuania Agreement on Fisheries Relations, 1992. OJ 1993 L 56/9. In 1996this and the two preceding Agreements werereplaced by the Agreements referred to in infra note 124. EEC - Dominica Agreement on Fisheries, OJ 1993 L 299/2.

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ment of joint-venture arrangements in the fisheries sector between enterprises of the parties. In 1996 these agreements were replaced by new agreements'" which put more emphasis on joint enterprises and take account of the accession of Finland and Sweden to the EC.

Access agreements with non-reciprocal states There are three geo-political areas where the EC has concluded access agreements with non-reciprocal states . In order of importance these are the Atlantic seaboard of Africa and the Indian Ocean, the North Atlantic and Latin America. The main purpose of these agreements is to provide fishing opportunities for the EC'S distant-water fleets, especially for those that had traditionally fished in waters off the states concerned when they were high seas, thereby lessening the pressure on fish stocks in the EC'S own waters and reducing somewhat the significant over-capacity of the fleets fishing those stocks. A second purpose is to provide supplies of species not found in EC waters, thereby reducing the need for imports. However, much of this distant-water fishing has effectively been subsidized, as will be explained below. The EC thereby contributes to the problem of subsidies, the existence of which has been identified by the FAG as the main reason that allows world fishing fleets to continue to operate at a significant loss. 125 Turning to the first area of distant-water fishing, Africa and the Indian Ocean, the EC has concluded access agreements with some eighteen states in this region.!" All of these agreements, which are broadly similar, permit

1996 L 332/2, 7 and 17. See, e.g., FAO "World Fisheries Ten Years after the Adoption of the 1982 UN Convention on the Law of the Sea," FAO Doc. cOF1I93/4, paras. 14-18. reproduced in supra note 114, pp. 606-620. EEC - Senegal Agreementon Fisheries off the Coast of Senegal, 1979, OJ 1980 L 226/18; EEC - Guinea Bissau Agreementon Fishing off the Coast of Guinea Bissau, 1980. OJ 1980 L 226/34; EEC - Guinea Agreement on Fishing off the Guinean Coast, 1983, OJ 1983 L 11112; EEC - Sao Tome and Principe Agreementon Fishing off Sao Tome and Principe. 1984, OJ 1984 L 5412; EEC - EquatorialGuinea Agreementon Fishing off the Coast of Equatorial Guinea. 1984, OJ 1984 L 188/2; EEC - SeychellesAgreement on Fishing off Seychelles. 1985, OJ 1985 L 149/2; EEC - MadagascarAgreementon Fishing off Madagas-

124 OJ

125

126

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a limited number of EC vessels to fish under license in the 200-mile zones of the states concerned. The agreements do not say whether the amount of fish which the EC may catch, which is often not precisely specified, comes from the surplus in these states' zones, but this is likely to be the case. The conditions on which EC vessels have access usually include an obligation to land part or all of their catches in the ports of, and to employ as crew fishermen from the third states concerned. In return for access the EC pays financial compensation and additional contributions for scientific and technical assistance, and the vessels pay license fees. Details of these arrangements are normally laid down in protocols that have a shorter duration, typically two or three years, than the agreements. Special mention may be made of the agreement with Morocco, both because of its scale and because it contains provisions of a kind not found in the other agreements. The latter include cooperation to develop Morocco's fisheries sector by modernizing its inshore fleet, developing its port infrastructure, undertaking research into new fishing methods , improving marketing and encouraging joint-ventures. In addition the agreement includes extensive provision for ensuring compliance with Moroccan legislation by EC vessels, including a scientific observer scheme, satellite monitoring of vessels and mutual observation of land-based inspection in port. The agreement's more traditional elements are on a substantial scale. Thus, the EC is to pay financial compensation of 355 million

car, 1986, OJ 1986 L 73/26; EEC - Mozambique Agreement on Fisheries Relations, 1987, OJ 1987 L 98/12; EEC - Gambia Agreement on Fishing off Gambia, 1987, OJ 1987 L 146/3; EEC - Mauritania Agreement on Fishing off the Coast of Mauritania, 1987, OJ 1987 L 302/24, replaced by the agreement referred to note 130; EEC - Angola Agreement on Fishing off Angola , 1989, OJ 1987 L 268/66 ; EEC - Mauritius Agreement on Fishing in Mauritian Waters, 1989, OJ 1989 L 159/2; EEC - Comoros Agreement on Fishing off Comoros, 1988, OJ 1988 L 137/24; EEC - Cape Verde Agreement on Fishing off the Coast of Cape Verde, 1990, OJ 1990 L 212/3; EEC - Sierra Leone Agreement on Fishing off Sierra Leone , 1990, OJ 1990 L 125/28; EEC- Tanzania Agreement on Fishing off Tanzania, 1990, OJ 1990 L 379/25; EEC- Ivory Coast Agreement on Fishing off the Coast of Ivory Coast, 1990, OJ 1990 L 379/3; and EC Morocco Agreement on Co-Operation in the Sea Fisheries Sector, 1996, OJ 1997 L 30/5, replacing earlier agreements dating back to 1988. References to supplementary agreements and protocols to the above agreements have not been included. Negotiations also have taken place with Namibia and South Africa, but they have not (yet) resulted in agreements .

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scu over four years in respect of access by up to 590 vessels (thus working out at about 170,000 ECD per vessel per year - vessels also pay a license fee in addition), 121 million ECD for development of Morocco's fisheries sector, 16 million for scientific research and 7.6 million for training. While much of this money can be seen as genuine development assistance and therefore laudable, the financial compensation is effectively a form of subsidy. If the vessels concerned (mainly from Portugal and Spain) did not have access to Moroccan waters, many of them would be likely to fish in EC waters, thereby adding to the already significant overcapacity of existing fleets fishing there and reducing their operating returns. Thus , the EC is effectively paying for its vessels to fish elsewhere as a means of lessening overcapacity - a means which is in fact recognized by sc legislation127 - thereby in this case safeguarding, according to the Commission's calculations.!" 8,000 jobs in the fishing industry with an employment multiplier of five. Beneficial as this is to the regions concerned (Southern Spain and Portugal), where alternative employment possibilities are limited, the payments nevertheless are a form of subsidy . The joint development and joint venture features of the agreement with Morocco are ones which the Commission believes should form a central aspect of the "second generation" of fisheries agreements which it is advocating should be negotiated with the African and Indian Ocean states to replace the first-generation agreements. 129 So far no such second-generation agreements have been concluded, although the new agreement with Mauritania,13O which is fairly similar to that with Morocco , goes in this direction. The first generation agreements have also been criticized because in practice they have often contributed little or nothing to fisheries development of the coastal state concerned, much of the money simply having been swallowed up in the general budget, and because EC fleets have disregarded conservation and other measures, leading to overfishing of some stocks.':" 4028/86, OJ 1986 L 37617, replaced by Regs. 2080/93 and 3699/93, OJ 1993 L 19311 and L 346/1. 128 COM (95) 608, p. 73. 129 SEC (91) 2288, pp. 40, 81-82 and COM (96) 488, pp. 11-12. 130 EC - Mauritania Agreement on Co-Operation in the Sea Fisheries Sector, 1996. OJ 1996 L 334/20. 131 The Courier, No. 156, March-April 1996, pp. 10-11 and The Guardian, July 23, 1997.

127 Reg.

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Turning now to the second area of interest to the EC for non-reciprocal access, the North Atlantic , the EC has access agreements with Greenland and Iceland.l " The agreement with Greenland.!" which was concluded following the latter's withdrawal from the EC in 1985, permits EC vessels to fish under license for specified tonnages of fish in return for the payment of financial compensation and the admission to the EC of fishery exports from Greenland free of customs duties. The aim of the agreement was to give the EC the access to Greenland waters it would have had if Greenland had remained in the EC. 134 In more recent years the formation of joint ventures has been encouraged by amendments made to the agreement. The agreement with Iceland was concluded as part of the arrangements setting up the European Economic Area, which inter alia liberalizes trade in fisheries products between the EC and EFfA states. It provides that Iceland is to give the EC access to a quota of 3,000 Mt. of redfish in its waters; in return the EC is to make available for Icelandic vessels a 30,000 ton capelin quota which it holds in Greenland's waters.135 The final area of interest for non-reciprocal access is Latin America, where the EC has sought to take account of the potential commercial possibilities in states with already developed fishing industries. The EC has entered into negotiations with Argentina , Chile, Colombia, Ecuador, Peru , Uruguay and Venezuela, but so far the only one of these states with whom the EC has succeeded in concluding an access agreement is Argentina. The agreement':" is the first of the second-generation kind referred to earlier. Thus, access of EC vessels to Argentinean waters, which is to both surplus and non-surplus resources, is entirely through joint ventures (i.e., contractual relationships between EC and Argentinean shipowners), joint enterprises (i.e., companies owned jointly by EC and Argentinean nationals) or an "establish-

132 133 134 135

136

Formerly the EC also had access to part ofthe surplus in the waters off Canada and the USA, but this access expired at the end of 1987 and 1993 respectively. EC - Greenland Agreement on Fisheries, 1985, OJ 1985 L 29/9. MacLeod et al., supra note 8, p. 250. Agreement concerning Fisheries , 1992, OJ 1993 L 346/20, subsequently put into more permanent form in the Agreement on Fisheries and the Marine Environment , 1993, OJ 1993 L 161/2. In form the latter agreement is similar to the reciprocal access agreements discussed earlier, but its substance is not. EC - Argentina Agreement on Relations in the Sea Fisheries Sector, 1994, OJ 1993 L 318/1.

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ment of undertakings" (i.e., a company established in Argentina and formed with EC capital). The EC is to provide funding for encouraging the formation of these joint arrangements, of which 39 have so far been set Up.137 The Agreement makes it clear that one of its aims is to take vessels out of the EC fleet, thereby reducing its overcapacity, and transfer them to the Argentinean fleet: such vessels may then fish under joint enterprises or establishments of undertakings for up to two-thirds of the 250,000 Mt. of high-value species available under the agreement each year, the remaining one-third being available for vessels flying an EC flag operating under joint ventures . In addition to funding the formation of the joint arrangements referred to, the EC is also to give Argentina 28 million ECU for funding scientific and technical cooperation, and is to grant tariff reductions on imports of fishery products from Argentina. To sum up very briefly on non-reciprocal access agreements: under these 21 agreements the EC has obtained considerable fishing opportunities for its fleets. In reality much of this access can be seen as the quite heavily subsidized export of part of the overcapacity of EC fishing fleets to the waters of third states. It is probably true that if the EC did not have this access, the catches its vessels take would either be taken by some other subsidized distant-water fleet or not caught at all. The agreements also contain what on paper looks like genuine development assistance. Whether it has been beneficial in practice seems less certain.

CONCLUSIONS In its proposals for EC ratification of the Compliance Agreement and the Straddling and Highly Migratory Fish Stocks Agreement, the Commission expresses the hope that the EC will be regarded as a responsible fishing entity . In relation to the three issues considered in this chapter, it must be said that the Commission's aspiration is still some way from being fulfilled. The EC'S action in setting unilateral quotas in the North-West Atlantic and its lack of effective action to ensure that its vessels comply with NAFO'S measures and to deter them from reflagging in order to avoid being bound

137 EC Commission, General Report on Activities ofthe European Union/or

1996

(1997), p. 217.

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by such measures, are a major part of the reason why NAFO has not (so far) been successful in managing the straddling stocks of the North-West Atlantic. The EC'S practice of subsidizing its fleets to fish in the waters of third states, thereby exporting some of the overcapacity of its fleets fishing in its own waters, which also has been the effect of its (past) practice of setting unilateral quotas in NAFO waters, does nothing to contribute to the solution of the world-wide problem of overcapacity of fishing fleets, many of which are only economically viable because of subsidies . In addition, EC vessels do not have a very good record of complying with conservation and management measures applicable in third states' waters . While the EC has given effect to the United Nations ' call for a moratorium on large-scale driftnet fishing, compliance with its legislation doing so still leaves quite a lot to be desired . On the positive side, the EC is one of the few fishing entities so far to have ratified the Compliance Agreement and one of the relatively few to have signed the Straddling and Highly Migratory Fish Stocks Agreement, although the Council's consideration of the Commission's proposal for ratification of the Agreement seems to have become unduly protracted. The EC'S quest to be regarded as a responsible fishing entity also has not been helped by the disputes in recent years over its competence on the external plane. Most of the bilateral and multilateral fisheries treaties to which the EC is a party were negotiated and concluded between the late 1970s and mid 1980s. During this period it was accepted without any apparent question that fisheries was a matter where the EC had exclusive competence. It is only in recent years, especially in relation to the Compliance Agreement and the Straddling and Highly Migratory Fish Stocks Agreement, that some Member States in the Council have questioned the EC's exclusive competence. As Council meetings take place in secret, it is not possible to discover from which quarter this challenge to the EC' s exclusive competence has come and for what reason. Whatever the reason, disputes over competence hardly improve the EC'S standing as a negotiating partner, nor do they make it easier for the EC to adopt an agreed position in negotiations on international fisheries agreements . Furthermore, the recent disputes may call into question the exclusive competence exercised by the EC in some of the earlier fisheries agreements. In addition, the declarations which the EC so far has had to give or it is proposed that it should give when participating in mixed agreements (the Straddling and Highly Migratory Fish Stocks Agreement and the LOS Convention) are hardly models of clarity and make it difficult for third states to know in any particular case whether

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it is the EC or a Member State which is responsible for the matter in question. Overall, therefore, while the EC may be a major fishing entity, especially in international issues , it is not yet a fully responsible one. In this it is, regrettably, not unique - most major fishing states have some way to go before they can claim to be engaging in responsible fishing.

Postscript

Since this chapter was completed (in October 1997) there have been a number of developments relating to the issues discussed therein, the more significant of which are briefly noted here. First, the EC became a party to the LOS Convention on April 1, 1998 and made the declaration of competence proposed by the Commission (see p. 548 above). As of April 1999 the only EC Member States not parties to the Convention were Denmark and Luxembourg . Secondly, the Council in June 1998 adopted a decision (Decision 98/414/EC, OJ 1998 L 189/14) endorsing the Commission's proposal that the EC and its Member States should ratify the Straddling and Highly Migratory Fish Stocks Agreement simultaneously (p. 558) . As of April 1999 the EC had not ratified the Agreement, but one Member State, Italy , had ignored the request for simultaneous ratification and had gone ahead and ratified the Agreement. Thirdly, there have been developments in relation to driftnet fishing. In 1997 the EC agreed a package of financial measures to aid the Italian fishing industry phase out large-scale driftnet fishing by 2000. In June 1998 the Council adopted a regulation which bans all driftnet fishing, whatever the size of net, from the beginning of 2002 (Regulation 1239/98, OJ 1998 L 171/1).

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CONCLUSIONS

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18 RECONCEPTUALIZATION OF THE ISSUES INVOLVED IN INTERNATIONAL FISHERIES CONSERVATION AND MANAGEMENT

Ellen Hey

INTRODUCTION

The chapters in this book illustrate that fundamental developments have taken place in international fisheries law during the 1990s. These developments are demonstrated both by the new multilateral instruments adopted during this decade and by the practice of states in international fisheries conservation and management organizations, referred to the chapters of this book . In terms oflaw these developments can be summarized as follows . First, multilateral minimum standards for fisheries conservation and management policies have been adopted. Second, the jurisdictional framework contained in the United Nations Convention on the Law of the Sea (LOS Convention)' has been elaborated as shown by the enhanced prescriptive and enforcement jurisdiction that states other than the flag state are entitled to exercise over fishing vessels. Third, the institutional framework for fisheries conservation and management has been amended as reflected most clearly in the enhanced role of international fisheries conservation and management organizations. Behind these developments in the law lies a reconceptualization of the issues involved in international fisheries conservation and management. This reconceptualization involves a shift in perception of both the interests to be protected and the nature of the actor to be regulated. The interests of the international community in proper conservation and management of fish(1982) 21

lIM 126.

E. Hey (ed.), Developments in International Fisheries Law, p. 577-588. © 1999KluwerLaw Interna tional . Printed in The Netherlands.

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eries resources and their environment now playa prominent role, as opposed to only those of one or more states in access to fisheries resources. Moreover, the transnational nature of the fishing activities has been recognized. These reconceptualizations in turn have affected the relationship between the duty to cooperate and the right of access to high seas fisheries resources. In this concluding chapter of the book the focus will be on these conceptual changes and their effects .

COMMUNITY INTERESTS: SUBSTANTIVE MINIMUM STANDARDS

With the emergence of environmental considerations as issues of common concern, rather than issues of national or transboundary relevance only, the interest of the international community in the sustainable use of natural resources also became an agenda item.' In the discourse this interest is variously expressed in terms of common interests, or those of present and future generations, of the international community of states or of the international community.' It entails, inter alia, the duty to protect and preserve the environment and to use its natural resources sustainably. This duty usually features jointly with the notion of state sovereignty over natural resources." In the context of fisheries, that notion is expressed either in terms of coastal state sovereignty or sovereign rights over fisheries resources in their waters or the right of states to access to high seas fisheries resources. In each case the relevant provisions of the LOS Convention also express the notion that the right to fish entails concomitant duties, albeit that these duties often are ill-defined.

2

3

4

See Patricia W. Birnie and Alan E. Boyle, International Law & the Environment, Clarendon Press , 1992, pp. 113-127; Alexandre Kiss and Dinah Shelton, International Environmental Law, Transnational Publishers, 1991, pp. 144-154. Edith Brown Weiss, In Fairness to Future Generations, United Nations UniversityfTransnational Publishers, 1989; Jutta Brunnee, " 'Common Interests' Echoes from an Empty Shell?," (1989) 49 Zeitschriftfiir Ausldndisches Offentliches Recht und Yolkerrecht, pp. 791-808. See, e.g., Principle 21, Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration), (1972) II/LM 1416; Principle 2, Declaration of the United Nations Conference on Environment and Development, (1992) 31/LM 874; and art. 193, LOS Convention.

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The combination of states' rights and duties has resulted in two themes now playing a prominent role in the high seas fisheries conservation and management discourse. The first theme continues to be the right of access to high seas fisheries resources. The second theme concerns states as protectors of interests that may extend beyond their own immediate short-term goals, interests that they are obliged to protect because they hold rights in a common good.' The discourse is far from uncontroversial due to the fact that it also encompasses the title that states hold to the benefits that can be obtained from high seas fisheries resources. The controversial point is that the protection of common interests in the case of an over-exploited resource, such as fish, usually entails a decrease in the availability of the overall benefits that can be obtained from the resource, at least in the short term. As a result, the question "who gets what?" arises even more poignantly than is the case when only the shared interests of states in obtaining access to fisheries resources are at stake. The fisheries provisions of the LOS Convention to some extent reflect concern for the interests of the international community in both the conservation and the utilization of stocks, as illustrated by articles 61, 62 and 117-119 of the LOS Convention. Coastal states are to ensure the conservation and optimal utilization of stocks in their exclusive economic zones and flag states are to protect the same goals for high seas stocks. In addition, the LOS Convention provides that coastal and flag states are to cooperate towards the attainment of these goals in the case of species that migrate through different zones or through different zones and the high seas." The LOS Convention, however, provides few, if any, means of ensuring that coastal states and flag states live up to their responsibilities. Besides the above-mentioned goals and the "maximum sustainable yield, total allowable catch and surplus formula" applicable in exclusive economic zones," very little guidance as to the content of fisheries conservation and management regimes is provided. The provisions of the LOS Convention do not go beyond indicating that the states with an immediate interest in the exploitation of the resource should

5 6 7

Rene-Jean Dupuy, "Humanity andtheEnvironment," (1991) 2 Colorado Journal of International Environmental Law and Policy, pp. 201-204. Arts. 63, 64, 66, 67 and 116(b), LOS Convention. See arts. 61 and 62, LOS Convention.

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also act as guardians of the community interests, which also are at stake. 8 The new multilateral fisheries instruments carry this indication to its logical next step by providing multilateral substantive minimum standards for fisheries conservation and management measures. The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas? (Compliance Agreement) provides the flesh on the bone of the obligations of a flag state vis-a-vis fishing vessels on its registry . 10 As Balton and Rayfuse point out, it sets the minimum conditions for establishing and maintaining a genuine link between a fishing vessel and its flag state. II These conditions, together with the requirement that flag states apply the measures adopted by fisheries conservation and management organizations to their vessel.P qualify the right of access to high seas fishing resources. The 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" (Straddling and Highly Migratory Fish Stocks Agreement) provides the flesh on the bone of the duty to conserve stocks, as mentioned by Schram and Tahindro." It does this by developing the principles of fisheries conservation and management" and in particular the precautionary principle." Even if the precautionary principle is being implemented cautiously, as Freestone suggests, the Straddling and Highly Migratory Fish Stocks Agreement has "redefined the role of community interests in high seas fish stocks, or at least expanded the interests which the LOS Convention had envisaged. Freedom of fishing is no longer the dominant community interest subject to certain other ill-defined environ-

8 9 10 11 12 13 14

15 16

Ellen Hey, The Regime for the Exploitation ofTrans boundary Marine Fisheries Resources, Martinus Nijhoff Publishers, 1989, pp. 119-127, esp. 124. (1994) 33 lLM 968. See Balton, supra Chapter 3. See, in particular, art. III, Compliance Agreement. Balton, supra Chapter 3, esp. text at note 30 and further; Rayfuse, supra Chapter 6, esp. text at notes 46 and further. See art. m(I(a» and art. VII, Compliance Agreement. (1995) 341LM 1542. See Hayashi, supra Chapter 4. Schram and Tahindro, supra Chapter 10, concluding section. In particular, Schram and Tahindro, supra Chapter 10. Freestone, supra Chapter 11.

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mental conditions; the conservation of marine ecosystems has now assumed independent status as a basic consideration in fishing operations.'?" As Christie points out, these developments are likely not only to affect the conservation and management of straddling and highly migratory stocks while these are in an exclusive economic zone, as required by the Straddling and Highly Migratory Fish Stocks Agreement, but also, because the "[A]greement eschews single-species management, coastal state management of most exclusive economic zone stocks . . .."18 The Code of Conduct for Responsible Fisheries" (Code of Conduct), characterized by Moore as "the most complete and up-to-date expression of principles of sustainable fisheries management and development.v" contains the most all-encompassing expression of minimum standards both in substantive and geographic terms, covering all waters. The Code of Conduct being a legally non-binding instrument, to the extent that it does not contain provisions that constitute binding law in their own right, provides the basis from which further international minimum standards for fisheries conservation and management can be developed. It sets the agenda for the fisheries conservation and management discourse in the years to come , also for areas subject to national jurisdiction. As illustrated by the numerous examples of states practice referred to by, in particular, Birnie" and de Klemm," the interests of the international community in the preservation of ecosystems and biodiversity are far from being fully integrated into fisheries conservation and management regimes. De Klemm's chapter shows that the divide between, on the one hand, forums concerned with the conservation of the marine environment and, on the other hand, forums concerned with fisheries management and conservation is the rule, rather than the exception. However, the agenda set out by the Code of Conduct and the substantive minimum standards provided by the Compliance Agreement and Straddling and Highly Migratory Fish Stocks Agreement

17 Freestone, supra Chapter 11, text at note 147.

Christie, supra Chapter 14, text after note 60. 19 Code of Conduct for Responsible Fisheries, FAG, Rome 1995. See Moore, supra Chapter 5. 20 Moore, supra Chapter 5, introductory section. 21 Birnie, supra Chapter 13. 22 De Klemm, supra Chapter 15. 18

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provides states and other relevant actors with the instruments to further bridge that divide.

FISHING ACTIVITIES: TRANSNATIONAL OPERATIONS

The provisions of, in particular, the Code of Conduct and the Compliance Agreement reflect a fundamental change in the conceptualization of fishing activities and the vessels, fishers and vessel owners involved in these activities. As stated by Balton, fishing vessels are no longer regarded as a "floating piece of territory of the nation whose flag they fly." Instead they are now regarded, again in Balton' s words, as "a construct of metal, wood, plastic and rope that is outfitted for fishing. ,,23 I would add that the fishing activity itself has been reconceptualized by the new instruments. These instruments treat it as a transnational industrial activity conducted by actors - vessel owners and fishers - and supported by financial arrangements that operate in a transnational context and that need to be addressed in that same context, rather than only as a food-gathering exercise in the wild. As McDorman asserts, "trade in fish and fish products is big business.t'" The Code of Conduct, being directed also at fishers and other actors concerned with fishing activities and the products resulting therefrom, provides the most salient evidence of this changed perspective." Especially noteworthy is the provision of the Code of Conduct that requires states to encourage banks and financial institutions not to require, as a condition of a loan or mortgage, fishing vessels or fishing support vessels to be flagged in a jurisdiction other than that of the State of beneficial ownership where such a requirement would have the effect of increasing the likelihood of non-compliance with international conservation and management measures."

23

24 25 26

Balton, supra Chapter 3, text at note 3 and following note 4. McDorman, supra Chapter 16, introductory section. Para. 1.2, Code of Conduct, also see Moore, supra Chapter 5. Para. 7.8.1, Code of Conduct.

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Thereby, albeit cautiously, if regarded in terms of law," it lifts the veil on fishing operations and deconstructs the notion that such operations involve only fishing boats and fishers gathering food. Instead it constructs a notion of fishing operations as part of a complex enterprise that involves significant financial interests, including those of institutions that provide the financial resources required to conduct fishing activities. Similarly, the Compliance Agreement addresses issues that are at the heart of the problems facing fisheries management in financial terms . It does this by providing that vessels that undermine the effectiveness of international conservation and management measures shall not be reregistered by other states" and that fines shall be imposed that take away the benefits obtained through illegal fishing." These rules aim to nullify the economic benefits obtained from conduct that, at the expense of community interests in proper fisheries conservation and management, results in economic gains for those engaged therein. These rules, while imposing obligations upon states, clearly constitute a means of addressing undesirable conduct by a transnational actor. This reconceptualization of fishing activities has also enabled a redefinition of the link between a state and a vessel flying its flag, at least in treaty law. While both the Compliance Agreement and the Straddling and Highly Migratory Fish Stocks Agreement maintain the link between a vessel and its flag state as the primary link." the argument now can be sustained that, if that link proves not to function, other states may prescribe.l'and in the case of Straddling and Highly Migratory Stocks Agreement, enforce." fisheries conservation measures upon vessels. In addition, all three instruments address the role of port states in ensuring proper implementation of fisheries

Cautiously in terms of law, because the banks and financial institutions are addressed indirectly, via states, and in a legally non-binding document. 28 Art. III (5), Compliance Agreement, see also Balton, supra Chapter 3, 29 Art. III (8), Compliance Agreement. 30 Art. III, Compliance Agreement; arts. 18and 19,Straddling andHighlyMigratory Fish Stocks Agreement. Also see art. 8.2, Code of Conduct. 31 Art. m(l)(a) and art. V, Compliance Agreement; art. 17,Straddlingand Highly Migratory Fish Stocks Agreement. 32 Art. 21, Straddling and Highly Migratory Fish Stocks Agreement. 27

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conservation and management policies." These rules provide at least a beginning for addressing fishing operations in their own transnational context.

THE

PRIMACY OF THE DUTY TO COOPERATE

High seas fishing activities have been governed by the notion that all states are entitled to access to the fisheries resources of the high seas and that each state prescribes and enforces fisheries conservation and management measures for its own vessels; if appropriate, the measures prescribed are to be coordinated through cooperation with other states. Within this notion the duty to cooperate had a voluntary element in the sense that it was subject to the right of access, which was itself conditioned by the duty to properly conserve and manage high seas fish stocks." While the LOS Convention clearly introduced the notion that proper conservation and management is best attained through cooperation among the states involved in the exploitation of the resource," it also left the right of access intact." The Compliance Agreement and the Straddling and Highly Migratory Fish Stocks Agreement mark a fundamental departure from this long-standing notion in international fisheries law. They determine that fisheries conservation and management measures adopted within regional or stock-specific fisheries organizations apply to all vessels fishing in a given region or for a specific stock, regardless of whether the relevant flag state has agreed to the measure in question." States cooperating within such an organization on the basis of these agreements thus would exercise jointly prescriptive jurisdiction over all vessels fishing in such a region or for such a stock. Moreover, on the basis of the Straddling and Highly Migratory Fish Stocks Agreement, such states, given certain conditions, also may exercise enforcement jurisdiction over vessels of parties to the Agreement that are fishing

33 34 35 36

37

Art. V(2), Compliance Agreement; art. 23, Straddling and Highly Migratory Fish Stocks Agreement; art. 8.3, Code of Conduct. Art. 119, LOS Convention. Arts. 117 and 118, LOS Convention. Art. 87(l)(e), LOS Convention. See supra note 31.

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in a region or for a stock.38 The agreements condition the right of access to high seas fisheries resources upon the duty to cooperate. The agreements thus reverse the relationship between the right of access to high seas fisheries resources and the duty to cooperate. While previously the latter was subject to the former, now the latter qualifies the former. This development also marks a fundamental change in the role of fisheries conservation and management organizations, as illustrated by Applebaum and Donohue ." On the basis of the agreements, such organizations are no longer forums in which states may choose to coordinate their fisheries conservation and management policies and laws. Instead, they are forums in which the fisheries conservation and management policies for all states fishing in an area or for a given stock are to be determined . The realization of this role, as Hayashi points out," will require a considerable strengthening of fisheries conservation and management organizations. The preceding discussion of course leads to the question whether the new instruments indeed leave intact the freedom of fishing on the high seas." The answer to that question, at present, is that it depends on the implementation of the agreements and the practice of states, and thus on whether the innovations introduced by the agreements enter the realm of customary international law. As long as the agreements are not widely ratified and acted on by states, the freedom of fishing will remain intact in customary international law. In that case, the limitations that the instruments impose on the freedom of fishing will operate only between parties to the two agreements and the long-standing problems posed by fishing activities by vessels of third states will continue to plague high seas fisheries conservation and management.

38

39 40

41

See supra note 32. Applebaum and Donohue, supra Chapter 9. Hayashi, supra Chapter 4, text at note 114. Also see Hewison, supra Chapter 7, and Hayashi, supra Chapter 4, section entitled, "The Agreement and the freedom of high seas fishing."

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FINAL REMARKS: THE CHALLENGES AHEAD

While the issues involved in high seas fisheries conservation and management have been reconceptualized as reflected in the new multilateral instruments, many challenges remain. As most, if not all, contributors to this book point out, the major challenge will be in implementing the agreed regimes. The regimes provide both substantive and jurisdictional solutions to the problems faced in international fisheries conservation and management. These aspects on the one hand are two sides of the same coin: if precautionary measures are agreed, means of applying such measures to vessels of third states will also be required to ensure their effectiveness. On the other hand, as Lodge illustrates, with reference to the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea,42 creative solutions that emphasize substantive over jurisdictional solutions may be the way forward, provided of course that all states fishing in the area or for the stock participate in the regime. Similar substantive solutions have been adopted in the North Atlantic Salmon Conservation Organisation (NASCO) with respect to the implementation of the precautionary principle and under the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS) and the Agreement on the Conservation of Cetaceans of the Baltic Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS), discussed by Birnie." Whether substantive or jurisdictional solutions are sought to address issues of fisheries conservation and management, as also pointed out by Hewison," much will depend on the willingness of states and the European Union" to cooperate. As Joyner illustrates, that will continue to depend on whether they perceive such cooperation to be in their own interest." To put it otherwise, it will depend on whether states and the European Union perceive enough of an interest, based on their right in a common good, to develop regional and stockspecific regimes that are in line with the provisions of the new fisheries instruments, instruments that also seek to further community interests.

42 43

44 45 46

Lodge, supra Chapter 8, text at note 19. Birnie, supra Chapter 13, text at notes 85-95 and 110. Hewison, supra Chapter 7, in particular concluding section. On the European Union see Churchill, supra Chapter 17. Joyner, supra Chapter 12.

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A further query that is likely to arise if solutions are pursued with respect to vessels of third states fishing outside any measures adopted by fisheries conservation and management organizations, is the link between these measures and the trade regime administered by the World Trade Organization (WTO). As McDorman points out, trade measures adopted on the basis of an international fisheries agreement, such as the Wellington Driftnet Convention, which are enforced between parties to such an agreement, are unlikely to raise any problems under the WTO regime, whilst trade measures taken against third parties - i.e., states that are not parties to the Compliance Agreement nor to the Straddling and Highly Migratory Fish Stocks Agreement - may give rise to questions regarding their compatibility with the WTO regime ." In addition, the issue of subsidies to the fisheries sector is now on the agenda of the WTO for the new round of multilateral trade negotiations, to begin in 1999.48 Within the context of these negotiations, questions are likely to arise regarding the appropriateness of the practice of, among other actors, the European Union, which subsidizes fishing activities by the vessels of its Member States under non-reciprocal fishing agreements, as discussed by Churchill." As discussed elsewhere, 50 the precise meaning of international conservation and management measures under the two agreements and their relationship to other international agreements, such as the LOS Convention and the Convention on the Conservation of Biological Diversity, may raise legal

47 McDorman, supra Chapter 16, concluding section. 48 Frances Williams, "wro urged to make environmental checks," Financial Times,

March 17, 1999. For further information see: "Preparing for Negotiations on the Built-In Agenda : Non-Trade Concerns Loom Large for Agricultural Talks" and "Labour and Environment Make a Controversial Appearance as First Phase of WTO Ministerial Preparations Concludes," both in BRIDGES, respectively in vol. 2, no. 8, pp. 1-2 and 14 and vol. 3, no.I, pp. 1-2. Also see report on COA meeting, which in February 1999 adopted an International Plan of Action for the Management of Fishing Capacity, BRIDGES, vol. 3, no.1,p. 14. For a critical view of the subject of subsidies on the WTO agenda see Roman Grynberg and Martin Tsamenyi, "Fisheries Subsidies, the WTO and the Pacific Island Fisheries," (1998) 32 Journal of World Trade, pp. 127-145. 49 Churchill, supra Chapter 17, text at note 125. 50 Ellen Hey, "Global Fisheries Regulations in the First Half of the 1990's," (1996) 11 The International Journal of Marine and Coastal Law, pp. 459-490.

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queries that are not easily solved. However, as Rayfuse points out," interpretations in line with the ruling of the International Court of Justice in the Gabcikovo-Nagymaros case" would avoid such queries and facilitate the dynamic development of fisheries conservation and management law and policy in line with the principle of sustainable development.

51 52

Rayfuse, supra Chapter 6, in particular concluding section. Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) ; ICJ, 25 September 1997, para. 140, pp. 54-55.

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INDEX

Abstention principle, 305, 366 · burden of proof, 309 · scientific evidence, 306 Adjacent areas See also Compatibility conservation/management, 124, 180 regional fisheries organizations, 228 UNCLOSI,170 Agenda 21, 411, 487, 495, 559 · See also List of instruments, Rio Declaration Alien species, 429, 477 , 486-89 Biodivers ity convention, 486 Code of C, 488 ICES, 488 Jakarta Mandate, 489 LOSC, 451,486 precautionary approach , 488, 489 Anadromous stocks, 19, 25, 27, 218, 361, 385, 393 consultation, 372 definition, 431 enforcement, 372 LOSC, 25, 175,303,358, 371 non-party protocols , 392 North Pacific salmon, 385

precautionary approach, 392 regional organizations, 228, 372 state of origin, 25, 303, 371 sturgeon, 453, 465 TAC, 371, 372 treaties, 435 Andaman Sea, 197 Antarctica CCAMLR, 457, 458 ecosystem , 458, 459 EEZ,435 land-based activities, 491 living resources, 116, 435, 458 seals, 365 territorial claims , 435 Aquaculture, 86, 487, 488 Code of C, 89, 94, 99, 488 · cooperation, 100 · salmon, 388 Aral Sea, 195 Archipelagic waters fisheries, 19,20, 175,215 · innocent passage, 20 · sealanes , 20 Argentina, 78, 179,221,280,570 Artisanal fisheries, 100, 127, 255, 270,316,433 Associated/dependent stocks , 127, 130, 259, 404-5

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612

· LOSc,460 Australia, 468, 469, 480, 484 Canada-Australia, 510 Fisheries Management Act of NSW, 464, 484 Ballast water · discharge of, 429, 457, 487 · lMO Guidelines, 487 Baltic Sea, 196, 197,435,445-6, 563 biodiversity, 464 · driftnets, 563 · Fishery Commission, 389 Barents Sea, 200, 201, 282 Bay of Bengal, 196 Bering Sea, 132, 200, 202, 207 · precautionary approach, 309, 316, 324 Biological diversity, 113, 233, 255, 266,291,314,423,461 alien species, 462, 484, 486 ballast water, 429, 457, 487 coastal states , 5 conservation/management, 314, 462,482 control , 484 1992 Convention, 417, 424, 437-441 definition, 424, 438 destructive processes, 484 ecosystem management, 438 EC Regulation, 466 fishery treaties, 450 flag states, 5 genetic resources, 454 Global Environment Facility, 440,496 implementation, 494 intellectual property, 454

INDEX

Jakarta mandate, 7,418,461-2, 489,498 land-based activities, 464, 489 LOsc,460 nurseries, 100,427, 482 pollution, 451 precautionary approach, 463 protected areas, 462, 474 protected zones, 480 protection of marine environment,314 regional fisheries organizations, 249 spawning grounds, 100,427, 482 species protection, 465 Stockholm, Principle 21, 439 Straddling SA, 266, 414, 460 sustainable use, 438, 439, 462 UNEP,457 Biological unity, 133, 185, 208, 273, 339 Birds Directive (EC), 443 Black Sea, 196, 197,445,463 Boycott, 518 Burden of proof, 318 · abstention principle, 306, 309 · reversal of, 293, 297, 317 Bycatches, 266, 267, 385, 405, 428, 470,493 Agenda 21,412,428 cetaceans, 467 dolphins, 467, 472, 473 non-party vessels, 495 salmon , 388 Straddling SA, 126 UN, 267 Canada, 78, 111, 179, 181,365, 551, 552 · Canada-Australia, 510

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INDEX

Canada-EC, 552, 555 Canada-Spain, 544, 552 Canada-uSA, 221, 305, 363, 366, 377, 515-9 Fisheries Act, 483 Straddling SA, 57 trade in fish, 501 Caribbean Sea, 197, 200 Caspian Sea, 195 Catadromous stocks, 19,26, 27, 361 cooperation, 26 definition, 431 eels, 26, 361, 465 LOSC, 26, 175,358,374 regional organizations, 229 Catch allowable -, 398-400 fishery treaties, 451 LOSC, 175, 331, 399 total allowable -, 128, 371, 411, 451,534,551 Celebes Sea, 197 Cetaceans, 302, 307, 359,426,448, 452 ACCOBAMS, 381-2, 384,447, 457, 467, 493, 586 ASCOBANS, 381-2, 384, 393, 466, 471, 493, 586 bycatch, 467 Compliance A, 47 NAMMCO, 381-4, 393 regional fishery organizations, 228 treaties, 446-7, 456 'Charismatic megafauna', 423, 426, 448,452,471 Chile, 78, 280, 570 China, 309, 504 Sea of Okhotsk, 209, 210, 213 . WTo,504

613

CITES,441,448,453 embargoes, 520 . EU,466 . whales, 497 Closed seas, 195 Coastal area management Code of C, 100 disputes over, 100, 101 integrated -, 498 transboundary consultation, 101 Coastal conservation Council of Europe model law, 499 European Coastal Code, 499 Coastal erosion, 490 Coastal states anadromous stocks, 372, 373 and distant water fisheries, 78, 161, 170, 181,315 and high seas fisheries, 4, 77, 170-3, 180, 183,275,279,396, 414,579 biodiversity, 5 biological unity, 133 catadromous stocks, 374 conservation/management, 186, 225,412 continental shelf, 21 duties, 79, 331, 397,433,579 EEZ, 21, 111, 176,395,397, 430,433 dispute settlement, 75, 135, 283 enforcement, 181, 183 enclosed seas, 197 1958 Fisheries Convention, 169-172 jurisdiction over fisheries, 4, 5, 174, 175, 396, 430 msy, 402 over-exploiation, 401

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614

regional fisheries organizations, 224 sedentary species, 21 sovereign rights, 19, 21 sovereignty, 19,20, 175 special interests, 63, 77, 79, 133, 170, 179, 192, 364 Straddling SA, 77, 125, 126, 130, 179 treaties, 436 Costa Rica, 448 Code of Conduct (Code of C), 85, 415 See also List of instruments actors, 94 alien species, 488 application to all fisheries, 237 aquaculture, 86, 89, 94, 99, 488 authorization of fishing vessels, 98 banks, 99, 582 Compliance A, 90-93, 118 customary int. law, 117 Declaration of Cancun, 93 developing states, 87, 88, 102 disputes, 100 EC,560 FAO, 85,102 fisheries management, 96 fishing gear, 99 history, 86, 109 implementation, 102, 104, 217, 417 non-legally binding, 89,90, 117 LOSC, 93, 416 minimum standards, 581 monitoring, 95, 103,417 msy, 97, 416 NGO's, 110 not-binding, 89, 90 post-harvest practices, 101

INDEX

precautionary approach, 96, 416 reference points, 97 reflagging, 99, 191 regional fishery organizations, 103,237 research, 101 Rio Declaration, 93 sanctions, 98 scope, 94 Straddling SA, 91-93 sustained use, 416 Technical Guidelines, 89, 94, 96, 102 violations, 98 Codex Alimentarius Commission, 101,509 Coelacanth, 425, 470 Compatibility, 80, 126, 132, 134, 185, 207, 213, 234, 272·8, 339 definition, 61 disputes, 273 LOSC, 132 NAFO,276 presential sea, 279 regional fisheries organizations, 242 Straddling SA, 61, 78, 184 Compliance, 329 . - v. effectiveness, 330 Compliance Agreement (Compliance A), 31, 386 See also List of Instruments action by non-flag states, 33, 52 application only to high seas, 45 authorization of fishing vessels, 49, 51, 92, 98, 143, 144, 538, 560 cooperation, 51, 52, 191, 192, 239 developing states, 52, 240

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INDEX

EC, 539-41, 560, 572 enforcement, 51, 342 entry into force, 114 exception, 49, 66, 123, 238 FAO, role of, 238 flag state responsibility, 49, 190 genuine link, 49, 580 history, 109 information, 51, 127, 140, 191, 240 LOSC, 46, 118 nationality of fishing vessels, 122,560 non-compliance, 341 non-parties, 154, 354, 587 objective, 122 parties, 113 port state activity, 52, 72, 152, 191 reflagging, 122, 142 regional organizations, 238, 252 sanctions, 143 scope, 123 Conciliation, 225, 399 Conservation/management, 34, 96, 98,100,115,251,270,314,436 See also Compatibility, Precautionary approach, Scientific evidence ACCOBAMS, 472 Agenda 21, 412 ASCOBANS, 471 and fishing, 497 adjacent areas, 124, 180 associated/dependent stocks, 127, 130, 259, 404 Compliance A, 47 control/inspection, 64, 65, 144, 146-8, 151,277

615

cooperation, 518, 584 customary into law, 172 developing states, 125, 258 differing national standards, 581 EC competence, 539-43, 547, 548 EEZ, 111,276,406,412,433 enforcement , 149, 255 fishery treaties, 450 implementation, 586 integrated management, 449 intern. trade measures, 529, 530 LOSC, 124, 135, 178, 193, 225, 253,265,460,577,584 minimum standards, 581 Noos,350 non-member states, 139 port state measures, 152 regional fisheries organizations, 34,234,248 sea v. land management, 447 Straddling SA, 64, 79, 115, 123, 139, 149, 185, 218, 234, 254, 414,460-1, 580 trade measures, 517, 522, 529 treaties, 436, 452 violations, 64 within national waters, 123, 315,332,339,474,495,512 without national waters, 23, 28, 339, 517 Conservation v. exploitation, 28 Conservation v. preservat ion, 112 Conservation zones, 15, 495 Contemporaneity, 408 Continental shelf areas, 21, 431, 475 delimitation, 278 . sedentary species, 21

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616

Control/surveillance . Straddling SA, 64, 65, 146-8, 151, 272, 348 Cooperation See also Regional fisheries organizations anadromous stocks, 26 aquaculture, 100 catadromous stocks, 26 Code of C, 136 Compliance A, 45, 51, 52, 192, 239 coastal states v. distant water fishing states, 4, 77, 170-3, 180, 183,275,315 enforcement, 68, 189 LOse, 23, 24, 26, 135, 140, 178, 181,433,579,584 non-flag states, 146 non-members of regional fisheries organizations, 81, 1834,245 port state activity, See Port state reflagging, 136, 232 Straddling SA, 66, 68, 81, 111, 137, 189, 192, 232, 243, 275, 339, 346 Coral reefs, 47, 413, 423, 425, 429, 452 ,482,483 Costa Rica, 448 Countervailing duties, 510, 527 Customary into law, 17, 73, 115 Code of C, 117 conservation of living resources, 172 contemporaneity, 408 delimitation, 135 flag state jurisdiction, 148 freedom of fishing , 19,21,284, 585 hot pursuit, 151

INDEX

precautionary approach, 116 sedentary species, 21, 431 Straddling SA, 116, 130 UN resolutions, 73 Data/information, 64, 69, 73, 92 Compliance A, 51, 127, 140, 191, 240 enforcement, 189 LOse, 73,262 regional organizations, 223, 227, 249 requirements, 92 standard requirements, 73, 92 Straddling SA, 62, 73, 126, 127, 131, 137,234,261 Debris, marine, 470 · See also Discards Deep seabed mining , 490 area, 476 · environment, 490 · Lose, 119,432,490 Dependent stocks, 127, 130, 259, 404,460 Developing states, 22, 166 Code of C, 87, 88, 102 Compliance A, 52, 240 conservation/management, 125 distant water fishing , 173 ac fishery bilaterals, 570, 571 fish exports, 501 Lose, 125,399,403 regional fisheries organizations, 235, 249 Straddling SA, 130, 235, 253, 258,283 subsistence fisheries, 100, 127, 255, 270, 271, 316, 433 Discards, 266, 267, 406, 428 nets, plastics, 470 , 471 · Straddling SA, 126, 266

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INDEX

Dispute settlement, 225 compatibility, 273 conciliation, 225, 399 EEZ, 75, 135, 283 GAIT,505 LOSC, 225, 247, 248, 399 non-parties to agreements, 248 regional organizations, 225, 247 Straddling SA, 74, 135,247, 273, 283 tuna, 472, 502, 512, 524, 525 wro, 505, 506, 530 Distant water fishing states, 18, 180, 184, 328, 338, 397 and coastal states, 78, 161, 166, 170, 176, 181,315 Bering Sea, 203 1958 Convention, 364 cooperation, 181,315 EC,534,552,567 EEZ, 176 high seas, 177 precautionary approach, 58 Straddling SA, 63, 180, 315 v. developing states, 173 Dolphins , 359 bycatch of, 467 La Jolla Agreement, 473 NGOS, 473 Panama Declaration, 472 Driftnet fishing, 5, 7, 295, 310, 328, 366,386,428,457,622,563,587 1989 Convention, 467 EC, 468, 563-4, 573 embargoes, 520-2 precautionary approach , 310 UN, 36, 73, 256, 267, 274, 308, 310, 328, 467

617

East China Sea, 196, 197 Ecosystem management, 405, 412, 414,458 See also Marine environmentlhabitat Biodiversity Convention, 438 fishing and -, 259 LOSC, 451, 474 protection of habitat, 412, 423, 447,463 World Charter for Nature, 436, 437 Eels (catadromous), 26, 361,465 Effectiveness v. compliance, 330 Embargoes, 518, 502, 523 cITES,520 · Wellington Convention, 521, 522 Enclosed seas, 137, 193 cooperation , 137, 199, 206 · definition, 195, 196 · Straddling SA, 204 Enforcement, 342, 355 coastal states, 183 Compliance A, 51, 142, 342 cooperation, 189, 345 EC,540 flag state, 187, 343 information, 189 LOSC, 141, 183, 187, 272 international cooperation, 189 non-flag states, 33, 52, 68 port state, 152, 188, 240, 348 regimes, 187 regional agreements, 189 regional organizations, 116, 235, 346, 350 sanctions, 344, 352, 518-23

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618

Straddling SA, 64, 68, 69, 120, 142, 181, 187, 235, 255, 271, 342,540,583,585 Environment See also Marine environment Agenda 21, 411 fisheries, 314, 323 land-based activities , 489 NAFfA,447 process and production, 526 sustainable use, 411 Environmental measures See also Marine environment and intern. trade, 512, 523-9 interpretation of treaties, 409 national standards, 523 polluter pays, 463, 528 European Coastal Code, 499 European Community (European Union),533 access agreements, 566 access to fisheries, 565 authorization of fishing vessels, 538, 539 bilateral treaties, 565 biodiversity, 466 Birds Directive, 443, 493 CITES,466 Code of C, 560 common fisheries policy, 485, 538,546 competence, 5, 83, 153, 154, 554-8, 561, 572 Compliance A, 539-541, 560, 572 conservation/management, 485, 538-9 distant water fishing, 534, 547, 552,567 driftnet fishing, 563, 573 EEZ, 547

INDEX

enforcement, 534, 540 fisheries, 457, 484, 485, 533, 537 and the marine environment, 484 Habitats Directive, 443, 449, 455,483,484,486,493 implied powers , 536 inspection, 541 LOSC, 546-8 Mediterranean Sea, 485, 491 membership of FAD, 560 membership of regional organizations, 545 NAFO, 551-3 party to multilateral conventions, 545 purse seines, 467 reflagging, 553, 564 research, 542 Straddling SA, 539, 542, 549, 554-8,572 subsidies, 567-9, 572 surplus, 565 TAC'S, 534 trade in fish, 501 treaty-making, 545 treaty-making power, 536 UNCED,559 Exclusive Economic Zone (EEZ) Agenda 21, 412 Antarctica, 435 associated and dependent stocks, 404, 460 coastal states, 78, 174, 176, 395, 430, 579 conservation, 21, 46, 75, 111, 124, 176,215,224,276,331 , 406,433 cooperation, 24 delimitation, 135, 278

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INDEX

dispute settlement, 75, 135, 283 EC, 547 ecosystem, 414 extension of, 133, 395 fisheries jurisdiction, 4, 19, 24, 27,174,395,430 fishing rights, 176, 281 freedom of navigation, 150, 474 highly migratory stocks, 24, 182 ice-covered areas, 474 LOSC, 174, 176 msy,21 navigation, 474 optimum utilization, 263 payments, 22 pollution, 475 protected areas, 474 research, 431 sovereign rights, 19, 21, 45, 75, 123,430 Straddling SA, 414 surplus, 22, 75, 399, 565 sustainable use, 412 TAC, 124,331,398-9 visit, right of, 150 whaling, 369 FAD , 109 Technical Consultation 1992, 38, 87 Experts Group 1993, 39 Code of C, 85, 102 Compliance A, 87, 238, 240 Codex Alimentarius, 101, 509 EC membership, 560 fishery, 350 information on fishing vessels, 52, 337, 387 precautionary approach, 312

619

. reflagging, 38, 39 Faroe islands, 377 Finland, 449, 481, 567 Fisheries and conservation/management, 497 and marine environment, 8, 484 annual catches , 57, 86, 161, 288, 396, 428, 533 artisanal -, 100, 127,255,270, 316,433 bycatches, See Bycatches data, See Data/information discards, 126,266,267,406, 428,470-1 Ec,484,485,533,537 environmental significance, 314, 323 explosives, use of, 429, 485 1958 Geneva conventions, 290 in internal waters, 19, 20, 513-4 information, See Data/information management, See Conservation/management monitoring and control, 345, 380 permissible fishing, 337 related species, 131,404 responsible enforcement, 337 standard requirements, 73, 92 subsidies, 514, 587 subsistence -, 100, 127,255, 270,316,433 tariffs, 507 trade, SOl, 582 treaties, 17, 450 waste, 99, 126-7,266,267 Fishing, freedom of, 13, 27, 163, 168-70

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620

See also High seas fisheries associated/dependent stocks, 127, 130,259,404-5,460-1 compatibility principle, 80, 126, 133, 134, 185 customary into law, 19,21, 284, 585 high seas, 22, 23 history, 14, 163-7 LOSC, 27, 124, 140, 177 non-members of regional fisheries organizations, 81,245, 283-4 restrictions, 27, 63, 67, 124, 132, 140,495 right to fish, 76, 170, 177, 253, 290 Straddling SA, 76 UNCLOS I, 168, 169 Fishing gear, 266-8, 466-470 ACCOBAMS, 467 ASCOBANS, 466 Code of C, 99 discards, 126, 266, 267, 406, 428,470-1 driftnets, See Driftnet fishing inspection by port states, 71 longlines, 468 non-target species, 466-70 purse seines, 467, 472 trawls, 468, 486 waste, 99 Fishing rights, 177, 179 . traditional -, 20 Fishing vessels authorization, 41, 43, 49, 51, 64, 92, 98, 193, 337, 538-9, 560 Compliance A, 123 control by flag state, 32, 44, 63, 64, Ill, 141, 145

INDEX

data base, 64, 69, 73 definition, 47, 48, 582 exception to Compliance A, 49, 66, 123, 238 genuine link, 49, 50, 122, 142, 145, 580, 583 inspection, 68, 69, 147 inspection by non-flag states, 33,52,68,345 minimum length, 238 nationality, 122, 560 registry, 41, 335 stateless -, 148 territory, 32, 582 Fishing zones (1958), 16 Flag state authorization, 41, 64, 92, 98, 193,335,337,538,539,560 biodiversity, 5 Compliance A, 49 cooperation, 345 enforcement, 187, 272 fishing vessels, 32,44, 51, 141, 343 genuine link, See Genuine link jurisdiction and control, See Jurisdiction register of vessels, 63, 335 Flags of convenience, 35, 36,247 . See also Reflagging . Spain, Portugal, 553 Force, use of hot pursuit, 151 LOSC, 151 Straddling SA, 120, 148, 151, 152 Forum Fisheries Agency, 353 France, 483, 534, 563, 564 Coastal Areas Act, 483 reflagging, 564 WTO dispute, 509

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INDEX

GAIT, 503, 504 conflicting treaties, 520-1 dispute settlement, 505 embargoes, 520, 507, 518-9 subsidies, 510 Genuine link, 583 Compliance A, 49, 580 fishing vessels, 50, 122, 142, 145 LOse, 122, 145 Straddling SA, 583 Geographically disadvantaged states , 22, 215 · regional organizations, 229 Global commons, 291, 304, 525 Global Environment Facility, 440, 496 · See also Biological diversity Good faith, 118, 136, 146 · Straddling SA, 282 Greenpeace, 350 · precautionary approach, 311 Grotius , Hugo · mare liberum, 164, 165 Guinea-Bissau, 481 Gulf of Aden, 200 Habitat, marine, See Marine environmentlhabitat Halibut, 209, 241 · sc 1995, 552 Herring, 209 · Canada, 515 High seas freedom of -, 163, 475 mare clausum, 163-5, 184 mare liberum, 163, 164, 184 right of visit, See Visit, right of sovereignty, 163, 165 High seas enclaves, 195,202,215-6

621

· LOse,214 · Sea of Okhotsk, 208-13 High seas fisheries, 177 See also Fishing, freedom of and coastal states, 4, 77, 111, 170-73,264,280-1,396 associated and dependent species , 460 compatibility, 80 conservation, See Conservation/management driftnets, See Driftnet fishing flag state jurisdiction, See Jurisdiction freedom of, 23, 495 highly migratory species, 182 inspection, 68, 69 msy,23 regional organizations, 229 Straddling SA, 24, 76 Higly migratory species, 181, 182 conservation/management, 79, 181, 391 cooperation, 136-7, 181,275 definition, 181 LOse, 19,25,27,28, 124, 1367, 179, 181, 253, 275, 370 optimum utilization, 128,263 regional organizations, 66, 67, 79, 228 Rio Declaration 380 Straddling SA, 67, 68, 82, 1323, 136, 186, 253 treaties , 434 Hot pursuit, 141, 149, 150 · compensation, 152 · use of force, 151 Hydrothermal vents, 425, 454, 476

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622

Iceland, 201, 282, 381, 481, 519, 570 ICES, 190, 488 Information on fishing vessels, 52, 337 · AWACs, 387 · satellite, 387 Inspection, See Conservation/management, Control/surveillance, Visit, right of Intellectual property · genetic resources, 454 Internal waters, 20, 175 conservation, 315, 332, 495, 512 fishing, 19, 20, 513 International fisheries commissions , 17 See also Regional fisheries organizations LOse, 17 International trade, See Trade, international International watercourses, 496 Int. Whaling Commission, 72, 298, 306,364,379,497 inspections, 364, 365 · non-whaling states, 138 · Stockholm 1972, 367, 368 Inter-operability of treaties, 108-14, 121 · LOse, Code of C, Compliance A and Straddling SA, 108-14 Italy, 563, 573 · driftnets, 564, 573 Jakarta Mandate, 71, 418, 461-2, 498 · See also List of Instruments

INDEX

· alien species, 489 · sustainable use, 418 Japan, 305, 309, 375, 382, 519, 551 Jurisdiction archipelagic waters, 20 coastal state, 45, 174, 175,396 continental shelf, 431 EEZ, 4, 430 fishing vessels, 32, 51, 141, 343 flag state, 32, 33, 142 internal waters, 20 on the high seas, 5, 19, 23, 63, 68, 141, 190 port state, 52, 70-2, 152, 188, 240, 335, 348 regional fisheries organizations , 584 sea v. land administration, 447 Korea, 309 Krill, 307, 308,429, 459 Land-based activities, 464, 489 · LOse,489 · UNEP, 489 Land-locked states, 22, 215 · regional organizations, 229 Large marine ecosystem, 260 Living marine resources, 56, 112 Compliance A, 47 large marine ecosystem, 260 Lose, 28, 236, 252, 254, 273, 450 Straddling SA, 255 Lobster, 455 · Canada-usA,516 1982 LOS Convention (LOse), 13 See also List of instruments alien species, 451 allowable catch, 178,399,400

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INDEX

associated/dependent stocks, 460 anadromous stocks, 25, 175, 303, 358, 371 biodiversity, 460 catadromous stocks, 5, 175, 358,374 Code of C, 93 conservation, 124, 135, 178, 193,225,252,265,460,579, 584 cooperation, 135, 140, 178, 181, 433, 579, 584 data/information, 73 deep-seabed mining, 119,432, 451,490 developing states, 339,403 dispute settlement, 74, 225, 247, 248, 399 ecosystem management, 451, 474 EC and EEZ, 547 EC competence, 572 EC participation, 546-8, 573 EEZ, 176,215,291 enclosed seas, 195 enforcement, 141, 149, 187, 272 fisheries, 3, 19, 110, 174, 177, 369 flag state, 63, 148-9 freedom of fishing, 76, 140, 177 genuine link, 122, 145 high seas enclaves, 214-6 highly migratory species, See Highly migratory species history, 109 information, 73, 262

623

international fisheries commissions, 17 interpretation, 120 land-based activities, 489 living marine resources, 236, 253, 273, 354, 450 marine environment, 451, 480 marine life, 450 marine mammals, 25, 232, 302, 358, 370 minimum standards, 125, 407 msy, Ill, 112, 125, 128,257, 265, 291, 301, 315, 398, 402 non-parties, 119, 145, 154 objective, 121 optimum utilization, 111, 128, 233, 263, 370, 398 parties, 113 pollution, 71, 72, 153, 303, 304, 412,450-1,489 port state enforcement, 152 precautionary approach, 300, 319,417 protected areas, 474 reflagging, 28 regional fishery organizations, 28,66,137,224,232 regional organizations nonparties to LOSC, 224, 225 right of visit, 141, 151, 155 right to fish, 177, 179, 253 scientific evidence, 400 scope, 123, 236 semi-enclosed seas, 195 straddling stocks, 111, 175, 179, 180 Straddling SA, 118 territorial sea, 16 use of force, 120, 148, 151-2, whaling, 77

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624

Malaysia, 448 Management, See Conservation/management Mangroves, 100, 429, 447, 452, 456 ,482-4 Marine environmentlhabitat See also Biodiversity and fishing, 8, 484 Code ofC, 85 deep-sea mining, 490 EC Habitats Directive, 443, 455, 483 international watercourses, 496 land-based activities, 464 LOSC, 303, 304,451,484 port state enforcement, 152 precautionary approach, 8, 58, 59,95 protected areas, 474 protection, 8,21, 412, 423, 447, 462-3, 474, 484 whales and change of -, 382 Marine life . LOsc,450 Marine mammals, 25, 218, 370 Losc,25,232,302, 358, 370 NAMMCO, 382 precautionary approach, 392 regional organizations, 228, 230, 232, 233 research, 383 Rio, 378, 379 Marine Stewardship Council, 105 Maximum sustainable yield, 402 Code of C, 97, 416 EEZ,21 high seas, 23 LOSC, Ill, 112, 125, 128, 129, 257, 265, 291-2, 301, 315, 398, 402 minimum standards, 92, 131

INDEX

qualified -, 402 , 419 reference points, 257-8 related species, 141 Straddling SA, 60, 128, 129, 233, 257, 415 Mediterranean Sea, 194, 196, 197, 200, 207 alien species, 486 applicable treaties, 492 Barcelona Protocol, 465, 476-7, 486,496 biodiversity, 496 conservation zone, 495 EC,485,491 enclosed sea, 196 exception to Compliance A, 49, 66, 123, 238 General Fisheries Council (Commission), 83, 90, 103, 104 , 435 marine environment, 462 non-parties, 495 pollution, 441, 462-3, 465 , 485, 491 precautionary approach, 91 protected areas, 444, 475 research, 497 treaties, 492 Most-favoured nation principle, 507 NAPO, 550, 551, 571, 572 compatibility, 276 EC, 541-2 , 544, 550-3 enforcement, 247, 551, 553 fishing by non-parties, 247 national legislation land-sea divide, 447, 449, 498 objection procedures, 551 quotas, 551 reflagging, 553 Straddling SA, 550

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INDEX

· TACs, 551 · third states, 551 National treatment principle, 508 Nature parks, 498 New Zealand, 468 NGO'S, role of, 350 dolphins, 473 · Code of C, 110 · Straddling SA, 110,244 Non-flag state, 146 · Straddling SA, 146 Non-party protocols · anadromous stocks, 392 Norway, 201, 282,365,511 ,519, 566 · trade in fish, 501 Nurseries, 100,427,482 Okhotsk, Sea of, 80, 116, 196,200, 206, 208-16, 309 Optimum utilization, 111, 233 LOSC, 263, 301, 331, 370, 398 marine mammals, 370 regional fisheries organizations, 249 Straddling SA, 128, 136, 233, 263, 273, 278 TAC, 128, 371, 451 Otters, 360 Over-capitalization of fishing fleets, 127, 269, 396, 401 · Jakarta mandate, 418 Over-exploitation/over-fishing, 18, 56,86,98, 111, 161, 184,270, 289, 338, 401 Straddling SA, 136,241, 255, 268,321 Papua New Guinea, 480 Persian Gulf, 196, 197

625

Peru, 78, 280, 570 Pinnipeds, 359, 360, 383, 393 Poland, 309, 566 . Sea of Okhotsk, 209, 210, 213 Polar bears, 359,446 Pollock, 202-5, 209, 435 . treaties, 435 Pollution, marine, 71, 99, 261, 429, 430,450 biodiversity, 451 Code of C, 99 definition, 450 EEZ,474-5 land-based activities, 489 LOSC, 71,153,303,304,412, 450-1,489 polluter pays principle, 463, 528 port state enforcement, 153 precautionary approach, 59, 294 preventive principle, 297, 299 regional fisheries organizations, 249 ships, 470 regional seas conventions, 462 Straddling SA, 126-7, 266 Port state, 584 Compliance A, 52, 72 enforcement, 152-3, 188, 240, 348 fishing vessels, 71, 335 inspection, 348 jurisdiction, 70, 71, 152, 188, 240, 335, 348 Straddling SA, 70, 71 Portugal, 552, 553 Precautionary approach, 8, 58, 59, 75,91,92,95,96, 113, 114, 130, 131, 287, 296, 393

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626

See also Burden of proof, Scientific evidence 1998 Agreement, 387 alien species, 488, 489 anadromous stocks, 392 Biodiversity C, 463 Code of C, 96, 131,416 customary into law, 116, 132 definition, 96, 130, 294 FAO,312 Greenpeace, 311 LOSC, 300, 319, 417 marine mammals, 392 NASCO, 387 procedures, 320-1 reference points, 97, 131 regional fisheries organizations, 241 reversal of burden of proof, 293,297,317 1992 Rio Declaration, 130, 294, 378 Single European Act, 298 salmon, 387 Straddling SA, 123, 126, 130, 233, 234, 241, 254, 287, 291, 312,316,380,491,580 UNCED, 310, 378,411 vessels of third states, 586 Presential sea, 279 Preservation v. conservation, 112 Preventive principle, 297, 299 Prior informed consent, 90 Prior justification procedure, 295-7, 317 Protected areas, 442, 444, 475-8 criteria, 478 land-based activities, 480 protected zone, 280, 480 regional seas conventions, 476 transboundary -, 478

INDEX

Protected zones, 480 Provisional measures · Straddling SA, 62, 114, 135, 273, 278, 339 Purse seines, 472 · EC,467 Range states, 432, 442 Real interest · Straddling SA, 67, 138, 243, 282 Red Sea, 196, 197,200,425 Reflagging, 34, 87, 99 and banks, 99, 582 Code of C, 38, 99, 191 Compliance A, 34, 143 Declaration of Canciin, 37 EclNAFO, 553 FAO 1992, 38, 39 legitimate v. illegitimate, 40, 43 regional fishery organizations, 142, 143 salmon, 376 Straddling SA, 142-4 UNCED, 37 Regional fisheries organizations (arrangements), 17,48,74,83,

103,217 adjacent areas, 228 anadromous stocks, 228, 372 application to all vessels, 41, 584 arrangement, 219 catadromous stocks, 229 cetaceans, 228 coastal states, 224 Code of C, 103,237 compatibility, 242 Compliance A, 41, 46, 238, 240, 252

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INDEX

conservation/management, 248, 276 cooperation, 136, 232, 239 definition, 218-9 dispute settlement, 225, 247 EC membership, 545 enforcement measures, 116, 189, 235, 346, 350 flags of convenience, 36 high seas fisheries, 229 highly migratory species, 66, 67, 79, 228 information, 223, 227, 240, 242, 249 inspections, 235, 346 LOSC, 66, 137 non-parties to, 224-5 marine mammals, 228, 230, 233 membership real interest, 67, 138,243,282 minimum standards, 227 mutual inspections, 150, 155, 231,235,352,585 non-parties, 81, 116, 139, 224, 245-7, 283, 343, 587 not-parties to LOSC, 224, 225 precautionary approach, 241 real interest, 67, 138, 243, 282 reflagging, 35, 142, 143 research, 249 role of, 230, 248-9 Straddling SA, 67, 136-7, 227, 231 use optional, 232 violations of measures, 68-9 visit, right of, 351-2 Regional seas conventions, 440, 455,457,476,492,495 enforcement, 189 . fisheries, 462

627

. pollution, 462 . protected areas, 476 Regional seas programme, 443, 457, 492 Reprisals, 518-9 Research, 400, 497 Code of C, 101 EC, 542 regional fisheries organizations, 249, 497 Straddling SA, 126,261-2, 543 subsidies to -, 512 1992 Rio Declaration, 37, 57, 109, 112, 255, 294, 310, 358, 378 See also List of Instruments Agenda 21 anticipatory approach, 379 conservation/management, 7, 57, 379 control/surveillance, 272 EC, 559 integrated approach, 379 marine mammals, 379 precautionary approach, 59, 95, 294,310, 316, 378, 411 preventive principle, 297 Straddling SA, 62 sustainable development, 112, 262, 264, 378, 411 whales, 379 Russian Federation (Soviet Union) Barents Sea, 201, 282 Bering Sea, 202-4, 309 EC access agreement, 566 N.W.Pacific, 551 salmon fishing, 375 Sea of Okhotsk, 208-14 UNCLOS I, 168

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628

Salmon (anadromous), 25, 209, 361 Australian ban, 510 Baltic Sea, 389 bycatch, 388 Canada, 386, 515 Canada-USA, 222, 305, 363, 366, 373 Compliance A, 386 inspection, 375, 376 NASCa, 242, 377, 385, 387,393 non-parties, 376, 386 North Atlantic, 387 North Pacific, 385 precautionary approach, 387 reflagging, 376 treaties, 363, 375, 435 Sanctions, 343, 344 boycott, 518 Code of C, 98 Compliance A, 144 embargoes, 518-23 reprisals, 518 Straddling SA, 144, 344 Sargasso Sea, 476 Scientific evidence (best), 23, 130, 131, 292, 400 See also Research abstention principle, 306 burden of proof, 306, 319 LOSC, 125, 130,224,253,400 research, 400 Straddling SA, 127, 233, 255 Sea cows, 360 Sea of Japan, 196, 197 Sea turtles, 446, 448, 452, 454, 456, 465,468,493 · bycatch of shrimps, 473 · Caracas convention, 473, 493 Seals, 209, 360 Antarctic -, 365,446, 457 · fur -, 209, 362

INDEX

· monk -, 452, 455, 456, 465 · treaties, 362, 365,456 Seas, see High seas Sedentary species, 218, 230 continental shelf, 21, 431 · customary into law, 19, 21 · definition, 431 Selden, J. · mare clausum, 165 Semi-enclosed seas, 193 coastal states, 198 cooperation, 137, 199, 206 coordination, 197-9 definition, 196 rights and duties, 197 Straddling SA, 204 TAC,211 Sharks, 428, 465, 466 Shrimps, tropical, 268 · shrimp-sea turtle case, 526 Sirenians, 360, 452-4 · treaties, 456 South China Sea, 196, 197 Soviet Union, See Russian Federation SpIDn, Ill, 194,449,534,552 distant water fishing, 552 fishing protection zone, 194 reflagging , 553 v. Canada, 544, 552, 555 Spawning grounds, 100,427,482 Special conservation zones, 15 Special interests · coastal states, 63, 77, 133, 179, 192,364 Spitsbergen, 202 Stockholm Conference 1972, 366, 367, 391 · Principle 21, 439

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INDEX

Straddling Stocks Agreement (Straddling SA), 4, 8, 19, 23, 24, 27, 55, 180 See also Highly migratory species , List of instruments associated/dependent species, 259, 260 authorization of fishing vessels, 64,65,98 biodiversity, 460 coastal state, 77, 125-6, 130, 179 Code of C, 93 compatibility, 61, 80, 126, 133, 134, 185,207,213,234,242, 272·8, 339,414 conservation, 58, 59, 64, 79, 123, 133, 139, 185, 218, 254, 414,580 control/surveillance, 64, 65, 144, 272, 348 cooperation, 66, 81, Ill , 136-7, 192, 232, 243, 339, 346 customary into law, 116 data/information, 73, 126, 127, 261 definition, 19 discards , 266 dispute settlement, 74, 135, 247, 273, 283 distant water fishery, 315 EC, 539,549,554, 573 competence, 542, 554-8 , 572 enclosed seas, 195, 204 enforcement, 64, 68, 69, 120, 143,152,181,187,235,255, 271,342,540,583,585 entry into force, 114,413 flag states duties, 64

629

non-flag states, 68 freedom of high seas fishing, 76 general principles, 126, 130 Guidelines , 59, 60, 81, 258, 320,415 high seas enclaves, 195 history, 109 inspection , 155 internal waters, 315, 332 investigation of breaches, 144, 146, 147,346 large marine ecosystem, 260 LOSC, 111, 118 minimum standards, 92 monitoring/reporting, 272, 348 msy, 128, 129,233,257,415 NAFO,550 NGO's, 110,244 objective, 121 optimum utilization, 128, 136, 233, 263, 273, 278 over-exploitation, 136, 241, 255, 268, 321 parties, 113, 218 non-parties, 145, 154, 283, 587 port state enforcement, 152 precautionary approach, See Precautionary approach provisional measures, 62, 114, 135, 273, 278, 339 real interest, 138, 282 reference points, 129, 131,257, 320-3,415 reflagging, 142-4 regional organizations, 67, 137, 227,231, 234, 241 research, 126, 261-2, 543 Resolution I, 114

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630

Rio Declaration, 380 sanctions, 144, 344 scientific evidence, 127 scope, 123 semi-enclosed seas, 195, 204 surplus, 331 sustainable use, 314 transboundary problems, 111 use of force, 152 violations, 144 visit, right of, 155 Sturgeon, 453, 465 Subsidies EC, 567-9, 572 GAIT, 510 Uruguay Round, 511, 514, 528 WTo,587 Subsistence fisheries, 127, 255, 270, 271,316,433 Surplus EC, 565 fishing in EEZ, 22, 75, 263, 399, 565 payments, 22 Straddling SA, 331 Sustainable development, 112, 126, 264,265,292,378,391,409 · bycatchldiscards, 266, 267 · Rio Declaration, 265, 378, 411 Sustainable use, 87, 578 Biodiversity Convention, 438, 439 Rio Declaration, 265, 378,411 Straddling SA, 314 UNEP,457 Sweden, 567 Taiwan, 153 Territorial sea breadth, 176, 193 · extension, 16, 27, 110, 166, 281

INDEX

innocent passage, 150, 151 jurisdiction, 20 origin, 166 sovereignty, 166 UNCLOS I, 176, 366 UNCLOS II, 16, 173 UNCLOS III, 176 Tourism, 100,472,492 Trade, international, 9 CITES, 453 Codex Alimentarius, 101, 509 conflicting treaties, 520 conservation/management, 530 countervailing duties, 510, 527 developing states , 130, 235, 253, 258, 283 differing national standards, 523 embargoes, 502, 507, 509 environmental measures, 512, 523-9 exhaustible natural resources, 513,514 fish, 501, 582 fishing in internal waters, 1920,513-4 health standards, 508-9, 525 information, 126-7, 131, 137, 234,261 measures, 517-8 most-favoured-nation principle, 507 national treatment principle, 508 process and production, 526 quotas, 507, 509 reprisals, 518 safety standards, 508-9 sanctions, See Sanctions subsidies , 510-4, 528 tariffs, 506 Trade-related measures, 155, 246, 517

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631

INDEX

Trawls, 268, 468, 473, 486, 492 Treaties conflicting -, 115, 120, 520 contemporaniety, 408 good faith, 118, 136, 146, 282 inter-operability, 108-14, 121 interpretation, 118, 407-8 non-parties, 155, 376 inter-temporal aspect, 409 successive -, 117-8 1945 Truman proclamation, 15 Tuna Atlantic -, 194,245,306,351 bluefin, 141, 245, 434, 453, 465,469 CCP,277 disputes, 472, 502, 512 enforcement, 351 Indian Ocean Commission, 103 Inter-American, 352 LOSC, 25, 302 N.E. Atlantic, 564 Panama Declaration, 472 S.E. Atlantic, 223 treaties, 434 tuna-dolphin disputes, 472, 502, 512,524-5 Turbot war, 111 UN resolutions, 73 UNCED, See Agenda 21 and Rio Declaration 1958 UNCLOS I, 16, 167, 290 1960 UNCLOS II, 16, 173 1982 UNCLOS III, 174 EC, 546 fisheries, 3, 369 mandate, 18 territorial sea, 176

UNEP

fisheries, 367 land-based activities, 489 regional seas programme, 443, 457,492 sustainable use, 457 United States, 15, 182, 362, 363, 375,377,468,502,503,511 Bering Sea, 202-5, 309 Canada-USA, 221, 305, 363, 366,377,515-6 Compliance A, 39, 44, 53 countervailing duties, 511 highly migratory species, 182 LOSC, 119 200 mile zone, 174 NGo's,244 trade in fish, 501 Uruguay, 221, 570 Uruguay Round, 101,504 subsidies, 511, 514, 528 · tariffs, 507 Visit, right of, 147, 150, 151, 183, 189 EC, 555 LOSC, 141, 149 salmon treaties, 375-6 Straddling SA, 68, 120, 146, 155 within regional organizations, 146, 150, 155, 231, 235, 346, 350,352 Wadden Sea, 479 · seals, 446, 479 Walrus, 360 Waste Code of C, 99 · FAO,267

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632

· Straddling SA, 126, 127,266 West Greenland, 377 Wetlands, 413, 427, 441, 452, 482, 484 · 1971 Convention, 441, 482 · successive treaties, 117 Whales, 359, 363 Compliance A, 47 environmental change, 382 Rio Declaration, 379 treaties, 363, 457 Whaling, 77, 306, 307 Antarctica, 457 blue whale unit, 368 cITES,497 1946 Convention, 434, 518 EEZ, 369 inspections, 369, 382

INDEX

77 moratorium, 306-7, 518-9 precautionary approach, 316 sanctuaries, 381-2, 475 1972 Stockholm, 367, 368 US embargo, 518-520 World Charter for Nature, 436 WTO, WI, 503, 504 and third states, 587 dispute settlement, 50S, 506, 530 only between states, 506 environmental measures, 523 fish trade, 502, 506 fishery disputes, ISS, 472, 473 membership, 504 subsidies, 587 tariffs, 506 LOSC,

Ellen Hey - 978-90-04-47838-1 Heruntergeladen von Brill.com02/15/2022 11:17:54AM via Universitat Leipzig