The core provisions of the fisheries regime in the 1982 Convention are contained in the Part V provisions dealing with the Exclusive Economic Zone (i.e. Articles 55-75). The Grotian concept of freedom of fishing on the high seas is maintained by Article 87, Paragraph 1(e). This is so despite the fact that frequent suggestions were made during the course of the Conference to delete freedom of fishing from the list of high seas freedoms. Eventually it was included, but made subject to conditions concerning conservation and management of the living resources of the high seas. There are a further five articles (Article 116-120) which describe the status of high seas fisheries. Of particular importance to this Report, Articles 61 and 119 of the Convention provide for cooperation in fisheries conservation and management through competent sub-regional, regional or global organizations. Finally, it should be noted that in Article 73, the Convention makes provision for the enforcement of these fishing laws by prosecution and imposition of penalties. This Report proposes to discuss some of the more controversial fishery provisions within the 1982 Convention.
Article 61 of the 1982 Convention is titled "Conservation of the Living Resources". The effect of its five sub-paragraphs is to give responsibility to the coastal State for determining "the allowable catch of the living resources in its exclusive economic zone". This is to be done by "proper conservation and management measures" determined by cooperating with competent subregional, regional or global international organizations. The irony of this provision is that despite the clear importance of conservation and management in the new legal regime for fisheries, the 1982 Convention makes no attempt to define what the term means.
The lack of definition given to both "conservation" and "management" is a significant omission when it is remembered that some developed States initially opposed the concept of a two hundred mile exclusive economic zone and were eventually persuaded to support the concept if, inter alia, the conservation and management of fishery resources were made an essential ingredient of the 1982 Convention.
Article 62 of the 1982 Convention deals with utilization of living resources based on capacity to harvest and allocation of the surplus of the allowable catch. Like MSY, the term "optimum utilization" used in paragraph (1) was already viewed as an anachronism by many environmentalists in 1982. The preferred expression, later given international recognition in the forthcoming Report of the World Commission on Environment and Development, Our Common Future (the Brundtland Report) was for "sustainable development".
Article 63 (2) deals with stocks or stocks of associated species which occur both within the EEZ and in area beyond and adjacent to the zone. In respect of such stocks, the coastal State and States fishing for such stocks in the adjacent area 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. It should be noted that the objective here is merely to cooperate in the "conservation"of these stocks, whereas in the case of stocks that occur within the EEZ's of two or more coastal States, the obligation under Art 63 (1) is to agree on measures necessary for the "conservation and development" of these stocks.
Article 64 of the 1982 Convention deals with Highly Migratory Species which are defined as those species listed in Annex I of the Convention. Again, the political sensitivities of drafting the Convention prohibited elaboration on an ambiguous issue that was to remain controversial for many years. This was the question of the extent to which the coastal State had sovereign rights over these species within the EEZ, and the extent to which the obligation to cooperate with a view to ensuring conservation and promoting the objective of optimum utilisation of such species throughout the region, both within and beyond the EEZ, limited the sovereign rights of the coasatal State.
Other legal and management issues left unresolved by Article 64 where it set out a duty to cooperate concerned the lack of regulatory bodies with a capacity to make binding decisions, and what to do about non-complying States, whether members or otherwise, of any such bodies.
Articles 116-120 of the 1982 Convention deal with the conservation and management of living resources of the high seas. Many of the legal ambiguity criticisms which have been made against other provisions of the Convention can also be extended to the high seas fishery regime. Thus, what is meant by "cooperation of States" in Article 118; how is "conservation and management of living resources" (also in Article 118) to be achieved; the incompleteness of Article 119(1) provisions on determination of the allowable catch; what is meant by procedures that "do not discriminate" against fishers of a State in Article 119(3).
The provisions are a qualification to the freedom of high seas fishing provided for in Article 87(1)(e) of the 1982 Convention. Their effect is that they impose a dual duty on States engaged in distant water fishing. That is, they must conserve stocks, and cooperate with adjacent coastal States in the harvest of such stocks. However, both the 1982 Convention, and the earlier 1958 High Seas Fishery Convention fail to address the subject of how best to allocate the living resources amongst the potential and actual competing users. Further, the problem of how best to monitor and survey the high seas catches of distant water fishing nations is similarly unaddressed.
The 1982 Convention dealt with subjects that had not been comprehensively raised before in international law. Such subjects include, inter alia, the EEZ, the rights and jurisdiction of coastal States, conservation and management of living resources, and harvesting by maximum sustainable yield and optimum utilization. As these concepts were new, there was ambiguity and uncertainty over both their literal and legal definitions.
Despite the 1982 Convention’s central principle of conservation, it could not succeed in addressing the fact that by 1994, when the Convention came into effect, some seventy per cent of the world’s marine capture fisheries were fully exploited, over-exploited or in a State of recovery. The problem of overfishing was particularly problematic with regard to high seas fish stocks, straddling fish stocks and highly migratory fish stocks, where the 1982 Convention provided an inadequate legal and management regime.
The basic problem which confronted the international community at the completion of the 1982 Convention, and today, is the same problem that confronts all aspects of environmental development (such as mining and forestry). That is, how, after centuries of freely exploiting the environment, are we to equitably balance competing demands for access to resources with an appropriate level of environmental protection?
This is a difficult problem to overcome, and possible solutions are beyond the realm of mere fisheries law. In the aftermath of the 1982 Convention, it was necessary for the international community of States to address the following issues:
The subsequent international instruments which aimed to address these issues are the subject of the remainder of this chapter.
In 1989 the United Nations General Assembly called for a global meeting to devise integrated strategies that would halt and reverse the negative impact of human behaviour on the physical environment, and promote environmentally long-term sustainable economic development in all countries. Ultimately, the 1992 Earth Summit produced the Rio Declaration, a Statement of principles on forests, two international conventions: one on Biodiversity and one on Climate Change, and a blueprint for action to be taken globally from the early 1990s into the 21st Century, known as Agenda 21. Both the Rio Declaration and Agenda 21 were negotiated by a preparatory commission which met on four occasions between 1990 and 1992. Neither the Rio Declaration, nor Agenda 21 is legally binding, but as the UNCED was attended by more than 178 heads of government, deputy heads of government, or ranking government ministers, the Agreements carry a strong moral obligation that States will comply with the principles and implement the provisions.
Chapter 17 of Agenda 21 specifically deals with protection of the oceans, the seas, coastal areas, and the rational use and development of marine living resources. Paragraph 17.1 describes the 1982 Convention as law which provides the international basis upon which to pursue the protection and sustainable development of marine resources. The paragraph goes on to note that this requires new approaches to marine and coastal area management and development at national, subregional, regional and global levels. Further, such "new approaches" should be integrated, precautionary and anticipatory.
In Program Area C of Chapter 17, recognition is given to the contemporary problems of high seas fishing. The provisions note that the 1982 Convention’s management of high seas fisheries, including the adoption, monitoring, and enforcement of effective conservation measures is inadequate. Thus, there are problems of unregulated fishing, overcapitalization, excessive fleet size, vessels reflagging to escape controls, insufficiently selective gear, unreliable data bases and lack of sufficient cooperation between States.
As part of the Agenda 21 blueprint for change, each subject heading provides a proposed framework on how to effect improvement. Thus, the Agreement provides Objectives, suggested Activities, and a program for Means of Implementation. Of particular relevance to regional fishery bodies, Program Area C makes numerous references to subjects requiring cooperation at subregional, regional and global levels. These subjects include, inter alia, the convening of an intergovernmental conference under United Nations auspices on straddling stocks and highly migratory stocks; promoting enhanced data-collection and exchange of data; assessing high seas resource potentials and developing profiles of all target and non-target stocks; encouraging cooperation with other subregional, regional or global fishery bodies, and where none exist, States should cooperate to establish one; enhance human resource development training in high seas fishing techniques, resource assessment, and as observers and inspectors on fishing vessels; and upgrade systems for monitoring, control and surveillance of marine resources.
In 1994, an Administrative Committee on Coordination/Sub-Committee on Oceans and Coastal Areas (ACC/SC) was established to monitor and review the implementation of Chapter 17. With regard to fisheries, FAO and the United Nations were assigned joint responsibility for overseeing the implementation of Program Area C (marine living resources of the high seas), while only FAO is responsible for the implementation of Program Area D (marine living resources in national jurisdictions).
The Code of Conduct for Responsible Fisheries was principally the outcome of the International Conference on Responsible Fishing held in Cancun, Mexico, from 6 to 8 May, 1992.
The primary aim of the Conference was to attain consensus on the need for an International Code on Responsible Fishing. The consensus was reached and formalized in the Declaration of Cancun which sets out a list of subjects requiring attention to preserve the marine environment. Thus, Paragraph 10 of the Declaration of Cancún provides for responsible fishing within zones of national jurisdiction, and paragraph 11 provides that:
"States should cooperate on bilateral, regional and multilateral levels to establish, reinforce and implement effective means and mechanisms to ensure responsible fishing on the high seas, in accordance with relevant provisions of UNCLOS ..."
To address the matters raised in the Declaration of Cancún, it was intended that the Code would cover fishing activity both within and beyond zones of national jurisdiction, and embrace a wide range of subjects leading to better conservation and management of fisheries including, inter alia, the gross overcapacity of the global fishing fleet, the inadequate control of vessels by flag States, the inadequate provision of fishery data to both flag States and coastal States, and trade restrictions intended to achieve environmental protection,
In content, the Code is comprised of twelve articles and two annexes. Articles 1 - 5 cover the nature and scope of the Code; its objectives; its relationship with other international instruments; implementation, monitoring and updating procedures; and the special requirements of Developing Countries. The substantive provisions are in Articles 6 - 12. Article 6 describes the general principles of the Code, making reference to the subsequent more detailed Code provisions. Article 7 deals with Fisheries Management, Article 8 with Fishing Operations, Article 9 with Aquaculture Development, Article 10 with Integration of Fisheries Into Coastal Area Management, Article 11 with Post-Harvest Practices and Trade, and Article 12 with Fisheries Research.
These subjects allow the Code to cover a considerable number of controversial and problematic issues in contemporary fisheries conservation and management. For example, the Precautionary approach is adopted and specifically related to those fishing practices which are particularly damaging to the environment such as uncertainty relating to the size and productivity of stocks, and the impact of fishing activities (including discards) on non-target and associated or dependent species, as well as environmental and socio-economic conditions. On the issue of insufficiently selective fishing gear, and environmentally damaging fish practices, the Code provides management objectives which include measures providing that:
"pollution, waste, discards, catch by lost or abandoned gear, catch of non-target species, both fish and non-fish species, and impacts on associated or dependent species are minimized, through measures including, to the extent practicable, the development and use of selective, environmentally safe and cost-effective fishing gear and techniques."
Of particular relevance to this report, the Code makes numerous references to the role of RFBs in establishing a responsible international fisheries regime. Article 1.2 notes that the Code is global in scope, and directed towards fishing entities that include RFBs. From Article 4.1, such entities are charged with collaborating in the fulfilment and implementation of the Code. In Article 6.5 RFBs should apply a precautionary approach to the conservation, management and exploitation of living aquatic resources. The Article 7 provisions on Fisheries Management make numerous references to the role of RFBs in attaining Management objectives; providing a Management framework and procedures; data gathering and management advice; application of the Precautionary approach; describing management measures; and implementation of the Code.
Article 1.1 of the Code states that it is a voluntary instrument. Thus, it does not have to be formally accepted by Governments in the manner of the below mentioned UN Fish Stocks Agreement and the Compliance Agreement.
A parallel legal initiative that took place at the same time as the Code of Conduct were the negotiations to construct an international agreement that would deal with the problem of reflagged fishing vessels on the high seas. Thus, the Declaration of Cancún specifically provides in paragraph 13 that States should take effective action, consistent with international law, to deter the practice of reflagging of vessels as a means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas.
The matter of reflagging of fishing vessels was further addressed by Agenda 21 of UNCED where paragraphs 17.51 - 17.53 deal with duties of a flag State, and 17.53 specifically provides that:
"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."
In September, 1992 the issue of reflagged fishing vessels was taken up by the FAO Technical Consultation on High Seas Fishing, and at the one hundred and second session of the FAO Council, the Council agreed:
"that the issue of reflagging of fishing vessels into flags of convenience to avoid compliance with agreed conservation and management measures, ...should be addressed immediately by FAO, with a view to finding a solution which could be implemented in the near future."
The Compliance Agreement was negotiated under Article XIV of the FAO Constitution, and adopted by the FAO Conference on 24 November 1993.
The Compliance Agreement requires that each State party shall take measures to ensure that fishing vessels entitled to fly its flag do not engage in any activity which undermines the effectiveness of international conservation and management measures. Further, no party should allow any of its vessels to be used for high seas fishing unless the vessel has been authorized to do so by an appropriate authority of the party. Authorization will not be granted unless the said party is able to exercise effectively its responsibilities with respect to that fishing vessel. Paragraph (5) of Article III seeks to limit the freedom of vessels with a bad compliance record in high seas fisheries from "shopping around" for a new flag.
With respect to the role of RFBs, the Preamble to the Compliance Agreement calls upon States which do not participate in global, regional or subregional fishery organizations or arrangements to do so, with a view to achieving compliance with international conservation and management measures. Article V(3) further 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, in order to promote the objectives of the Agreement. Article VI provides for exchange of information to RFBs in paragraphs (4), (10) and (11). Finally, Article VII requires the parties to cooperate on a global, regional, subregional or bilateral level, to provide assistance to developing country parties, in order to assist them to fulfil obligations under the Agreement.
In accordance with Article XI, the Compliance Agreement will enter into force when 25 instruments of acceptance have been deposited with FAO. At the time of writing this report there were 12 instruments of acceptance: Canada, Saint Kitts & Nevis, Georgia, Myanmar, Sweden, Madagascar, Norway, United States of America, Argentina, the European Community, Namibia and Benin.
Acting in response to UNCED calls for a UN sponsored intergovernmental conference on straddling fish stocks and highly migratory fish stocks, on 17 December, 1992 the Second Committee of the United Nations General Assembly adopted resolution A/C.2/47/L.62 convening such a conference for 1993. This resolution was endorsed by the plenary the week of 21 December 1992.
The convening resolution also provided the terms of reference for the intergovernmental conference. Thus, the primary tasks of the Conference were to:
The completed agreement (hereinafter referred to as the UN Fish Stocks Agreement) fulfilled its terms of reference by providing guidance on how best to implement the 1982 Convention provisions on straddling stocks and highly migratory stocks. Thus, many ambiguities and omissions in the 1982 Convention have been addressed, with varying degrees of effectiveness.
First, despite prioritizing conservation and management of highly migratory and straddling fish stocks, the UN Fish Stocks Agreement provides no comprehensive definition of the term. Article 1(b) defines "conservation and management measures" as meaning:
"measures to conserve and manage one or more species of living marine resources that are adopted and applied consistent with the relevant rules of international law as reflected in the Convention and this Agreement."
As the words "conservation and management" may be interpreted as conflicting, should one ever be given priority over the other? In Article 7 there is an attempt to address the ambiguity by the mandate for coastal states and DWFNs to cooperate to achieve compatibility of conservation and management, which includes a framework as to how this can best be achieved.
Other UN Fish Stock Agreement provisions attempt to facilitate and/or strengthen the legal framework of the 1982 Convention. Thus, Article 117 of the 1982 Convention refers to a "duty to cooperate" with respect to national measures for the conservation of the living resources of the high seas. However, the provision does not provide advice on how this is best to be achieved. Article 5 of the Agreement describes a number of specific ways that the duty can be effectuated. Article 6 endorses the precautionary approach and again provides examples on how it can be applied. Of particular relevance to this report Article 8 of the Agreement notes measures to be taken by coastal States and States which fish the high seas to facilitate cooperation including establishing and entering into regional fishery bodies or arrangements. Article 14 strengthens the Convention provisions relating to the sharing of information and cooperation in scientific research. Thus, whereas the Convention articulates the principle, the Agreement constructs a scheme as to how such cooperation is to be done. Finally, Part VIII of the Agreement incorporates the Part XV Convention provisions relating to the Peaceful Settlement of Disputes but makes them apply mutatis mutandis with respect to any dispute between States Parties to the Agreement, whether they are parties to the Convention or not.
Undoubtedly, the Agreement’s most significant contribution concerns those subject areas where new rules and principles are described.
Principle 15 of the 1982 UNCED Rio Declaration articulates the Precautionary approach. It provides:
"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."
Bearing this provision in mind, the UN Fish Stocks Agreement has adopted the precautionary approach and requires States to apply it both within areas of national jurisdiction and on the high seas. Article 6 of the Agreement provides guidelines for its application.
The inclusion of the precautionary approach within the UN Fish Stocks Agreement is a more appropriate concept for resource management than the principle of maximum sustainable yield described in the 1982 Convention. It is therefore desirable that any practical difficulties of its application be overcome by all State parties.
A second area of significant development in the UN Fish Stocks Agreement concerns the role of regional fishery bodies in the conservation and management of straddling and highly migratory fish stocks. The Agreement provides that where a competent RFB exists, States should either become members of the body, or they should agree to apply the conservation and management measures established by such organizations. This provision is stringently reinforced by Article 8(4) which provides that only those States which are members of such a RFB, or which agree to apply the relevant RFBs conservation and management measures, shall have access to the fishery resources to which these measures apply. For those RFBs, such as the Northwest Atlantic Fisheries Organization (NAFO), which had effectively closed membership to new entrants, there were difficulties with the provisions for new membership. As a result, the final negotiating session of the Agreement chose to include the provision that membership of relevant RFBs was open to States having a "real interest" in the fisheries concerned. It is a significant oversight that the term "real interest" is nowhere defined, and that presumably the question of whether or not a State has a "real interest" is a matter to be determined by the existing membership of the RFB.
A third area of development in the UN Fish Stocks Agreement concerns increased responsibilities of the flag State. Here, the Agreement provides that States are not permitted to authorize the use of their flag to vessels fishing on the high seas unless they are able to effectively exercise responsibility over such vessels for the purpose of the 1982 Convention and the Agreement. Moreover, in accordance with Article 19(1), the flag State must ensure compliance by its vessels with regional conservation and management measures.
In fact, regional conservation and management measures are further reinforced by the provision which caused great controversy in the conference proceedings, that is, Article 21 of the Agreement. By this provision, a State which is party to the UN Fish Stocks Agreement, and a member of the relevant regional fishery body, has the right to board and inspect fishing vessels of another State party in order to ensure compliance with conservation and management measures, even where the flag State is not a member of the regional fishery body. Article 21 describes the framework for enforcement of this principle.
A final significant development of the UN Fish Stocks Agreement over the 1982 Convention is the Article 23 provision on port state jurisdiction. In effect, the Agreement extends the port state enforcement of marine pollution laws described in the 1982 Convention, to now also apply with respect of fishing vessels. Thus, when a fishing vessel is voluntarily in a port, the port state may inspect documents, fishing gear, and any catch on board the vessel in order to ensure compliance with subregional, regional, and global conservation and management measures.
The UN Fish Stocks Agreement was opened for signature in New York on 4 December 1995. Article 40 provides that the Agreement will enter into force 30 days after the date of deposit of the thirtieth instrument of ratification or accession. At the time of writing this report, (7 July 1998) there are 59 signatures and 18 ratifications.
On 14 and 15 March 1995, a Ministerial Meeting on Fisheries was held in Rome by the invitation of the Director-General of FAO for the purpose of reviewing the state of world fisheries. The ensuing discussion noted that the problems of overfishing in general, and the overcapacity of industrial fishing fleets in particular, were a continuing intergenerational threat to the sustainability of the world’s fisheries resources. To the extent that such problems could be remedied by continuing international cooperation, the meeting adopted the Rome Consensus on World Fisheries. This document urges governments and international organizations to take prompt action to:
These points of action can be said to be of significant persuasive value due to the ministerial level at which the recommendations were formulated.
The International Conference on the Sustainable Contribution of Fisheries to Food Security was held in Kyoto, Japan from 4 to 9 December 1995. It was attended by 522 participants from 95 States, 11 inter-governmental and nine non-governmental organizations. The Conference was organized by the Government of Japan, in collaboration with the FAO in order to address the increasing demand for, and stagnating supply of, fishery products. State representatives agreed on a set of immediate actions to be taken by States, either directly or in cooperation with other States, or through FAO in cooperation with other appropriate intergovernmental organization and/or regional fishery management organizations or arrangements. Those actions of particular relevance to RFBs include, inter alia:
The 1982 Convention marked the emergence of a new era in international fisheries law. Thereafter, throughout the 1990s the international community of states has made several attempts to enhance and develop the legal framework for fisheries conservation and management. Such negotiations have included the 1992 Agenda 21 adopted by the UNCED; the 1993 Compliance Agreement; the 1995 Code of Conduct; the 1995 Rome Consensus on World Fisheries; the 1995 Kyoto Declaration and Plan of Action on the Sustainable Contribution of Fisheries to Food Security; and the 1995 United Nations Fish Stocks Agreement.
Clearly each of these negotiations, and resulting instruments, have recognized the central problems in contemporary marine fishery practice. Such problems include:
They have accordingly attempted to deal with the shortcomings of the 1982 Convention by various means, which include, inter alia a pivotal role for RFBs. The ability of RFBs to fulfil these expectations and requirements, is the subject of the remaining discussion in this report.
