This chapter commences with a basic premise that world marine capture fisheries are in crisis from the point of view of sustainable utilization. The premise is supported by both the findings of FAO technical reports and by widespread general consensus in the writings of prominent publicists, including scientists, economists, international lawyers, and political scientists.

Some recent FAO observations may be noted below.

Both paragraph 7 of the 1995 Rome Consensus on World Fisheries and the 1994 FAO Fisheries Technical paper, "Review of the state of world marine fishery resources" have noted that some 70 percent of the world’s marine capture fisheries were fully exploited, over-exploited or in a state of recovery. Moreover, the 1996 FAO State of World Fisheries and Aquaculture demonstrates that the problems of overfishing, fishing capacity, and marine environmental degradation are continuing to worsen, rather than improve. In addition, the 1996 FAO Fisheries Technical Paper "Chronicles of Marine Fishery Landings (1950-1994)" emphasizes the "urgent need for effective measures to control and reduce fishing capacity and effort."

Concern over the state of world marine fisheries stems from the following considerations:

• the problem of overfishing - including the use of insufficiently selective fishing gear which leads to waste in the form of by-catch and discards;
• poor monitoring, control and surveillance (MCS) of vessels in both zones of national jurisdiction and on the high seas - including the problem of reflagging and the need for better flag and port state controls; and
• environmental degradation of fish habitats.

To these issues could also be added the problem of the inadequate regime for the conservation and management of straddling fish stocks and highly migratory fish stocks under the 1982 Convention. This subject has, of course, been subsequently addressed by the UN Fish Stocks Agreement, but that Agreement is still to come into effect.

The issues as well as the extent to which RFBs are actually addressing the issues are reviewed below.

The problem of overfishing is not new. The 1882 North Seas Fisheries Conference considered the subject of overfishing and the need to address conservation and protection of fisheries. This arose as a result of North Sea trawler fishers themselves complaining of impoverished stocks as early as 1878. In Britain, when the government failed to respond to fisher demands for action that would prevent overfishing, the large trawling companies came to an arrangement amongst themselves and voluntarily abstained from fishing those areas of the North Sea with great stock depletion. In 1890 the British National Sea Fisheries Protection Association held a conference to discuss overfishing and the need for fisheries conservation. The participants included governmental representatives from Belgium, France, Denmark, Germany, the Netherlands and Spain. The Parties agreed that the greatest handicap to resolving the problem of overfishing and implementing policies for the conservation of stocks, was the lack of a universally accepted legal regime on the Law of the Sea.

The contemporary period not only has a legal regime on the Law of the Sea, but a host of other international instruments to reinforce the conservation and management of marine capture fisheries, yet overfishing continues to be a problem. This is made clear by the 1996 FAO State of World Fisheries and Aquaculture which notes that overfishing:

"has become prevalent in most fishing areas and affects capture fisheries in developing and developed countries, often becoming particularly severe in densely populated coastal areas and in very productive offshore areas. Unless effective action is taken, overfishing will get worse."

In a paper which analyzes the global fishing fleet based on data from the Lloyds Maritime Information Services, Smith has examined the number of vessels in Flag States and concluded:

"The total fleet in the database shows a gradual rise from 1985 to a peak in 1991 and then for the first time a drop in 1993 and a further fall up to 1997. There also appears to be a tendency for the fleet in Europe, North America and Japan to decrease, in some cases dramatically like that of France. On the other hand, the fishing fleets of Latin American countries and the developing countries of Africa are still increasing."

Clearly, developing States are progressively becoming significant contributors to the international fishing fleet over-capacity problem. Garcia and Newton have estimated that developing State fishing capacity has increased from 28 percent to 58 percent of the world fleet component, prompted by high demand in local markets as well as in developed State markets. The result is that more than half of the top 20 producers in the world are developing States. In contrast, some developed States, including countries in Europe, as well as Australia and New Zealand, have started programmes to control and reduce fishing fleets.

A more recent fleet analysis is offered by Fitzpatrick and Newton in their paper "Assessment of the World’s Fishing Fleet 1991-1997". The authors observed that the size and capacity of the world’s fishing fleets continued to increase over the period 1991-1996, followed by a slow down in new additions in 1995 and 1996. In 1997, the orders for new vessels show a return to construction of vessels with large tonnage. Further, throughout this period, additions to the world’s fleet continue to exceed deletions. The authors conclude that there is evidence that the fishing fleets are not being restructured, that capacity is not being reduced, and that states with open registers are increasing their capacity.

It should be noted that there is difficulty in providing a cursory discussion on vessel numbers. The nature of the subject requires precise boundaries, and consequently data varies depending on the source (Lloyds Maritime Database, national ministries, and independent conservation organizations), or with basic materials such as whether to examine all fishing vessels, or vessels in excess of 24 metres, or vessels in excess of 100 Gross Tonnes (GT). Despite widespread general consensus that there is an overcapacity of fishing vessels, there is clearly a need for both a full and authoritative source of information, plus a standardized classification and measurement system. Fitzpatrick and Newton elaborate this point:

"There is no complete and authoritative record of fishing vessels in the world. Information has to be sought from a number of sources and it is time consuming to put the data into comparable form for estimating the size of the fleet. There is no standard measure for fishing vessels: Lloyds use GT as its classification for vessels 100 GT and over. The European Community uses length as its measure, 24m and over. Under the International Maritime Organization, the International Convention for the Safety of Fishing Vessels, Torremolinos, 1977 and its Protocol of 1993, a signatory would have to declare the numbers of fishing vessels of 24m in length or over that are authorized to fly its flag. Although these give a definition for the length of a fishing vessel, neither have entered into force. Many of the Asian fleets have fishing vessels which, by their configuration, are 24m or over, but are less than 100 GT."

Regarding the world fishing fleet capacity, performance is perhaps best measured in terms of landing rates. FAO Fisheries Technical Paper "Chronicles of Marine Fishery Landings" conducts a comprehensive analysis of world fisheries over the period 1950-1994 with particular attention to landings. The report shows a rapid increase in species diversity in reported national landings which demonstrates both the technological and geographical expansion of fisheries, as well as the increased value of some previously unspecified species on the market.

Aggregate landings of pelagic and demersal marine fish are found to be useful indicators of overall trends in world fisheries, once a few top species, (with a disproportionately higher share of the total variation) are excluded. As indicators, they show a continuous increase in the underlying trend in pelagic landings in contrast to demersal fish which have remained level since the early 1970s. Landings from distant waters increased exponentially in the 1960s, but fell abruptly in 1973 with a drop in Alaska pollock catches. Further development was curtailed by an increase in the number of States which claimed extended zones of national jurisdiction. Distant water fishery landings declined dramatically in the 1990s with the collapse of State-owned fleets from Eastern Europe. Landings of straddling stocks have declined since the later 1980s, but landings of valuable highly migratory species continue to increase.

An analysis of such landing statistics, (in which the relative rate of increase in landings during the developing and mature phases is used to estimate when the rate falls to zero, and the corresponding potential landings) has been recorded by both the FAO "Chronicles of Marine Fishery Landings", and by Garcia and Newton. The data shows that the annual relative rate of increase of world reported landings had significantly decreased since 1950, which indicates that the maximum production from the world’s conventional marine resources under current exploitation regimes was being approached, and that the mean catches of recent years were probably close to that potential.

The overall picture which emerges from both the FAO Chronicles of Marine Fishery Landings, and the Garcia and Newton analysis, is that the world fishery is operating close to maximum production and that there is an urgent need for effective measures to control and reduce fishing capacity and effort.

The problem of overfishing is further compounded by poor fishing practices which result in by-catch and discards. By-catch is taken to mean all species captured other than the target species. Discards may include a small to significant fraction of the captured target species which is normally undersized, together with non-target species. The problem is succinctly explained by the 1996 FAO State of World Fisheries and Aquaculture:

"Most [fishers] at most times catch more types of fish, and sometimes fish of smaller size, than they aim to. The unintended catch is usually referred to as the "by-catch". Some of the by-catch is useful and is kept; the rest is discarded which usually means returned [dead] to the sea."

If by-catch consists of a small proportion of mature specimens from healthy stocks, there is relatively little damage. The problem is that too frequently, by-catch consists of juveniles of commercial species, so that if large numbers are caught, it is likely to reduce the numbers of mature fish.

The 1991 FAO paper "Fish for Food and Development" reported that almost 20 percent of the world fish production was lost as a result of spoilage and poor handling or discarded as waste or trash fish. Since this time, more extensive investigations and analysis have shown that the problem of by-catch and discards is more serious than described in 1991. There is a world total level of by-catch and discards ranging from 19.9 to 39.5 million tonnes, with an estimated mean of 27 million tonnes. Using this mean figure, the 1994 percentage of by-catch and discards would have been 32 percent of reported total production in marine capture fisheries.

The result of this practice is that fishery managers are increasingly applying closed seasons in certain zones where juveniles may be numerous. Another strategy to address the problem is the increase in activity to develop more selective gears and techniques. There is also substantial international support for prohibiting the discarding of fish at sea as a means of facilitating more selective fishing and reducing waste. Doulman notes that Iceland, New Zealand and Norway already have policies in place to prohibit or limit discarding part of the catch at sea, (for example by making it mandatory to bring all fish ashore) and it is expected that there will be pressure for other countries to follow suite.

The international legal regime for fisheries can only operate successfully if there is effective MCS of vessels at the national, and desirably, regional, level. In April 1981, FAO’s Fisheries Department convened an Expert Consultation on Monitoring, Control and Surveillance Systems for Fisheries Management which adopted the following definitions.

• Monitoring - the continuous requirement for the measurement of fishing effort characteristics and resource yields;
• Control - the regulatory conditions under which the exploitation of the resource may be conducted; and
• Surveillance - the degree and types of observations required to maintain compliance with the regulatory controls imposed on fishing activities.

The purpose of MCS, according to Doulman is for countries to:

• enforce sovereign rights over fisheries resources under their national jurisdiction (i.e. to prevent unauthorized exploitation by citizens and/or foreigners), and
• to ensure that information necessary for the development of fisheries management programmes is collected and that such programmes are implemented and observed.

To regulate a fishery, States may consider a variety of possibilities, including, inter alia: limited entry by licensing, restricting fishing vessels or gear, area closures, time (seasonal) closures, area zoning, global non-allocated catch quotas, allocated catch quotas, taxes or fees based on fishing catch or effort, and minimum size restrictions. Such programmes require some measure of MCS.

The FAO Fisheries Management and Law Advisory Programme Regional Workshop on Fisheries Monitoring, Control and Surveillance held in Mauritius, 16-20 December 1996 presented a number of papers which demonstrated the importance of surveillance efficiency. In particular, the Report of Working Group 2, dealing with Financial and Economic Considerations noted:

"Surveillance provides benefits both in terms of increasing the fisher’s perception of the probability of being caught operating illegally, and also can bring in additional revenue in the form of paid fines. The Working Group agreed that the key to surveillance efficiency was the optimal combined use of a variety of facilities, including VMS [vessel monitoring systems], aircraft, FPVs [fishery patrol vessels], coastal radar and other methods. For example, relatively inexpensive VMS and coast watch systems have proved to be extremely useful in focusing and directing more expensive forms of surveillance, such as aircraft and FPVs for the collection of evidence. Licensed fisher’s can be an important source of information on illegal fishing activity. Information can also be provided formally or informally through various non-fishery sources, such as domestic airline flights."

Inappropriate and ineffective MCS programmes have led to poor implementation of fisheries conservation and management arrangements. Recent attempts to improve MCS have led to a number of States and RFBs adopting widespread or compulsory use of VMS. This is in keeping with both the spirit of the Code of Conduct and the UN Fish Stocks Agreement.

The application of VMS to remote fishing operations on the high seas, particularly where targeted stocks are widely dispersed, is logical. Furthermore, satellite systems have proven to be a cheaper and better option than the currently available synthetic aperture radar (SAR) and infrared systems. In a paper presented at the 1996 Workshop on MCS in Mauritius, Lodge writes:

"VMS provides simultaneous near-real-time position monitoring of all vessels fitted with transponders. This information is usually sufficient, at least to enable the fishery manager to target conventional air and surface surveillance assets more effectively. More sophisticated options include the ability to use VMS for catch reporting and communications purposes. Capital costs are much lower than the cost of a surface patrol vessel or aircraft, and most of the recurrent costs involved in VMS can be passed onto the fishing vessel operators through increased license fees."

A significant part of effective MCS is that aspect of fisheries management that looks to flag State control over fishing vessels. For a State to have effective flag State control, it must ensure, through its domestic legislation and policy that its vessels which are authorized to fish on the high seas comply with all fishery conservation and management programmes to which the State has nationally, regionally or globally adhered to. Thus where a vessel contravenes such conservation and management programmes, it is the responsibility of the flag State to take action that will deter and prevent any further violations. The importance of improved flag State responsibility is demonstrated by the attention given to the subject in the Code of Conduct, the UN Fish Stocks Agreement, and the Compliance Agreement.

Similarly, unauthorized fishing by vessels in zones of national jurisdiction undermines coastal State conservation and management measures and must ultimately be the responsibility of the vessel’s flag State. This is recognized in United Nations General Assembly Resolutions 49/116 of 1994 and subsequent resolutions.

One of the most significant contemporary problems in the international legal regime for marine capture fisheries concerns the practice of vessels reflagging. National and international fishery management regimes are often based on the registered nationality of fishing vessels. Consequently, the registry is sometimes manipulated by vessels seeking registration in a more "convenient" flag state, (hence the expression "flag of convenience"). Recognition of this problem by FAO led to the initial work to develop the Compliance Agreement. It was for this reason that the Agreement was more commonly known, while it was being negotiated as the "Flagging Agreement".

Writing in 1994, William Burke noted that NAFO had experienced reflagging problems when flag states had accepted restrictions pursuant to decisions of NAFO, and vessels responded by reflagging in order to avoid such restrictions. Today, some RFBs, most particularly CCAMLR face their greatest challenge yet in attempting to monitor and survey the activities of reflagged fishing vessels within the vast region that comprises the Convention Area. For bodies such as CCAMLR, the reflagging of vessels constitutes a two fold problem. This is that whilst it is almost impossible to exercise monitoring, control and surveillance of such vessels operating within the Convention Area, the fact that such vessels exist, and require MCS, makes it almost impossible to exercise effective MCS on authorized vessels, such as monitoring of catches and compliance with regional treaties.

As mentioned above, the issue of reflagging of vessels was specifically addressed by the Compliance Agreement, and that Agreement is yet to come into effect. A consequence of this gap in the law is the increasing popularity of reflagging. Smith has observed:

"A new trend in 1997 is the current increase in reflagging. During 1994-1997 over 2,000 vessels reflagged (nearly 10% of the fleet.)"

The Compliance Agreement addresses the problem of reflagging by, inter alia, providing in Article VI for FAO to maintain an international record of vessels authorized by flag States to operate on the high seas. This information would be circulated on request to any global, regional or subregional fishery organization in order to note which vessels operate in their areas of jurisdiction. Fitzpatrick and Newton note that a further remedy would be for States whose vessels are flagging out, to legislate so that registered national fishing vessels cannot leave their jurisdiction, and any requests for deletion from the flag State registry will be denied. This would prevent the transfer of used vessels to flag of convenience States, but also the "legitimate" sale of used vessels to developing States which may have different standards on profitability. It also does not solve the problem of new vessels where flag of convenience States will flag on delivery.

Along with the need for increased flag State control, there is a reciprocal need for improved port State controls and the subject is addressed by Article V of the Compliance Agreement, Article 8 of the Code of Conduct, and Article 23 of the UN Fish Stocks Agreement. Effective Port State control of fishing vessels assists in the enforcement of fisheries conservation and management, and is particularly important when flag State control is weak, or when fishing vessels are widely dispersed geographically, or when vessels do not return to their flag State for several years at a time, if at all.

The 1996 FAO "State of World Fisheries and Aquaculture" lists environmental degradation of catchment and coastal areas as one of the critical management issues connected with sustainable fisheries.

In both developed and developing States, much of the waste that is run-off from industrial, urban and agricultural activity, ends up, via waterways and sewers, in the coastal zone, a region with some of the highest rates of biological productivity and the richest fishing grounds in the world.

An estimated 80-90 percent of the global commercial fish catch is caught within 320 kilometres of shore, predominantly in the coastal benthic and coastal pelagic regions, including coral reefs, continental shelves, and those fertile regions where upwelling cold waters meet surface waters. These ecosystems are highly susceptible to environmental degradation from human land-based activities. In recent years, habitat destruction has been particularly problematic as a result of increased human land activity including channelization, drainage, filling and water diversion, eutrophication (where excessive levels of nutrients build up and essentially suffocate the marine environment) and toxic pollution. These problems limit species diversity and reduce ecosystem stability. Platt McGinn provides an example of agricultural run-off in the Mississippi River Basin leading to a biological dead zone in the Gulf of Mexico which is about twice the size of Puerto Rico. Further, on the question of mitigation, or whether the impact of human activities on marine ecosystems can be reduced by efforts to restore them, the scientific verdict is still uncertain. As Thorne-Miller and Catena have noted:

"Once damage has been done, simply stopping the offending activities may not be enough to bring the system back to its original state."

The health of such areas is likely to worsen when it is recalled that 40 percent of the world’s population live within 100 kilometres of a coastline, and that within the next 30 years, coastal populations are predicted to increase from 2.5 billion people to 6.3 billion people. It should also be recognized that living marine resources make a substantial contribution to global food security and, as the world’s population increases, it will be necessary to increase, not damage, food production from all sources.

Other problems of environmental degradation concern the fishing practices of fishers themselves. Apart from the wastefulness of by-catch and discards (discussed above), environmental degradation occurs as a result of large-scale dredging, continued use of large scale pelagic drift nets, and cyanide poisoning which all damage habitats, reduce smaller fish cover from predators, deplete fish food supplies and lower local biological diversity.

Apart from degradation of the oceanic environment, human induced abuse of the planet is leading to increasingly evident climate change. The Earth Summit plus Five special session of the United Nations General Assembly to Review and Appraise the Implementation of Agenda 21 noted that global emissions of carbon dioxide and other greenhouse gases continue to rise. Furthermore, a 1995 report by a UN panel of scientists stated that the balance of evidence suggests a "discernible human influence on the global climate. The impact of climate change on world marine capture fisheries is still uncertain. However, it is clear that fish are particularly vulnerable due to their inability to regulate their internal temperature. In 1988, the World Meteorological Organization and the United Nations Environment Programme, at the direction of the United Nations General Assembly, established an Intergovernmental Panel on Climate Change (IPCC). Referring to the IPCC 1995 Report of Working Group II (on impacts of climate change), Platt McGinn notes:

"If current predictions by the Intergovernmental Panel on Climate Change (IPCC) prove correct, in the next 50-100 years climate change could have a greater impact on the health of world fisheries than overfishing itself. Climate change will likely exacerbate the effects of pollution, habitat degradation, and ultraviolet radiation. Expected rises in sea level may effectively drown estuaries, thus destroying habitats for fish and their prey. Some fish species may migrate toward the cooler polar areas in response to rising sea temperatures at lower latitudes, while others will grow faster in warmer water, and outcompete other species."

The problem of climate change requires action by the international community, and in a legal sense, this has been achieved by the International Convention on Climate Change. It now remains for States to have the political will to enact its provisions.

Many of the above mentioned environmental issues were recognized by FAO in the 1993 publication, "Implementation of the Strategy adopted by the FAO World Conference on Fisheries Management and Development". Paragraph 14 notes:

"Considerable and increasing attention is now being given by governments and the world community as a whole to environmental concerns and to the need for sustainable development. In the fisheries sector, sustainable development implies not only the better management and utilization of aquatic resources but also harmonization with the aquatic environment and ecosystems. Industrial, urban and agricultural development of land, waters and shallow coastal areas poses increasing risks to the maintenance of environmental quality and biological diversity. At the same time, unsound practices in capture fisheries and in aquaculture endanger the environment and the sustainable use of aquatic resources. Concerns are also being expressed regarding the as-yet unclear implications of global climatic changes for fisheries. More careful balancing of short-term social, political and economic considerations with longer-term needs and objectives is essential to ensure the sustainability of the productive capacity of the aquatic environment."

To the extent that the law, as opposed to education, science, economics or politics, can provide solutions to the problems facing world marine capture fisheries, significant progress has been made to address the broad problems of overfishing, inadequate MCS, and environmental degradation described above.

An international legal regime for fisheries has been described in Articles 55-75, 87, and 116-120 of the 1982 Convention. These provisions have been elaborated, extended and modernized by subsequent international legal instruments, many of which still await State acceptance or ratification in order to come into effect. The achievements of these contemporary international fishery instruments are worth noting.

From the Earth Summit at Rio de Janeiro in 1992, the key documents of Agenda 21 and the Rio Declaration on Environment and Development provide respectively for a comprehensive plan for global action in all areas of sustainable development, and a series of principles defining the rights and responsibilities of States. Specifically, the provisions of Chapter 17 of Agenda 21 recognize the need to protect the oceans, seas, coastal areas, and the rational use and development of marine living resources. It notes the 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." On the subject of marine environmental degradation, the Earth Summit noted that about 80 percent of marine pollution is caused by land based activities. As a consequence of this, an international agreement to combat land-based sources of marine pollution was adopted in 1995, and negotiations have begun for a treaty to control persistent organic pollutants such as polychlorinated biphenyls (PCBs) and dioxin. States are further urged to pursue the protection and sustainable development of marine resources with new "integrated, precautionary and anticipatory approaches."

Such references to the precautionary approach in fisheries development, and the inclusion of the precautionary approach as Principle 15 of the Rio Declaration, were a response to the 1990 UN Secretary General’s Report on the Law of the Sea which expressly recognized the "considerable significance of the precautionary approach for future approaches to marine environmental protection and resource conservation." Since this time, the precautionary approach has been included in nearly every new environmental treaty.

As mentioned above, the scope of the precautionary approach is controversial, undoubtedly because, as Freestone notes:

"At its strongest it can be used to reverse the traditional burden of proof, so that in cases of scientific uncertainty as to possible effects of particular activities, the burden of proof is passed to the potential polluter, who needs to prove that his, or her, activities will not damage the environment. In this sense it finds its manifestation as a legal burden of proof rule."

A further consequence of the Rio Earth Summit was the establishment of the UN Commission on Sustainable Development (CSD) which monitors and guides the implementation of Agenda 21 and other Rio commitments.

Finally, it might be noted that two international legal agreements were opened for signature in Rio de Janeiro, and have subsequently entered into force:

• United Nations Convention on Biodiversity, and
• United Nations Convention on Climate Change,

The former Convention on Biological Diversity has been ratified by 161 States, and obligates Governments to protect plant and animal species through habitat preservation and other means. However, national action on habitat preservation is still too insufficient to counter the continuing environmental degradation from unregulated development and pollution. This problem was addressed by the 1997 Earth Summit +5 Special Session of the General Assembly to Review and Appraise the Implementation of Agenda 21. Here, Governments agreed to continue efforts to implement the biodiversity treaty and to complete a protocol on biosafety.

The United Nations Convention on Climate Change, signed in Rio de Janeiro, has been ratified by 166 States, and obligates States to reduce emissions of greenhouse gases to 1990 levels by 2000. The 1997 Kyoto Conference on Climate Change endorsed a 15 percent reduction in emissions below 1990 levels by 2010, while the Alliance of Small Island States, whose very existence is threatened by global warming, called for a 20 percent reduction below 1990 levels by 2005.

The Earth Summit’s call for an intergovernmental conference under United Nations auspices to deal with the inadequate legal regime for straddling fish stocks and highly migratory fish stocks led to the negotiation of the UN Fish Stocks Agreement. The Agreement makes provision to address, inter alia, the problems of overfishing; inadequate MCS; and environmental degradation. These are reviewed below.

First, the subject of overfishing is identified as a particular problem in the Preamble to the UN Fish Stocks Agreement, and is further mentioned in Article 5(h) which requires both coastal States and States fishing on the high seas to take measures to prevent or eliminate overfishing and excess fishing capacity.

Further, by Article 5(f), States are required to minimize pollution, waste, discards, catch by lost or abandoned gear, and catch of non-target species.

On the subject of environmental degradation, States are required to protect biodiversity in the marine environment, and apply the precautionary approach to the conservation, management and exploitation of straddling and highly migratory fish stocks. In fact, Article 6 is solely concerned with describing a comprehensive regime on how this can best be done.

Undoubtedly the most significant achievement of the UN Fish Stocks Agreement in addressing the contemporary problems of marine capture fisheries, is in the legal regime provided for MCS. The provisions include a specific requirement for States to implement and enforce conservation and management measures through effective monitoring, control and surveillance. The regime to achieve improved MCS is described in other provisions which include better collection and provision of information and cooperation in scientific research, more wide-ranging duties and powers of the flag and port States, and specific attention being given to enforcement of global, regional and sub-regional law and policy. It should be recalled that the UN Fish Stocks Agreement will come into effect as binding on the parties thereto, when a further 12 States have deposited instruments of ratification or accession.

The Compliance Agreement is particularly concerned to address the overfishing and MCS problems presented by reflagged fishing vessels operating under flags of convenience as a means of avoiding compliance with applicable conservation and management rules. As with the UN Fish Stocks Agreement, the Compliance Agreement is still waiting to come into effect, requiring another 14 States to deposit instruments of acceptance with FAO.

The Code of Conduct for Responsible Fisheries proposes voluntary actions for fundamental changes to marine capture fisheries and aquaculture. To specifically address the problems of overfishing, inadequate MCS, and environmental degradation, the Code outlines General Principles for responsible conservation of fisheries resources and fisheries management and development. These include:

• preventing overfishing and excess fishing capacity and rehabilitating fish population;
• applying a precautionary approach to the conservation, management and exploitation of living aquatic resources;
• developing and applying selectively and environmentally safe fishing gear and practices;
• protecting and rehabilitating critical fishery habitats in marine and freshwater ecosystems;
• monitoring and controlling the activities of fishing vessels and fishing support vessels; and
• more effective flag and port state controls.

The Code, the Compliance Agreement and the UN Fish Stocks Agreement all seek to strengthen the role of RFBs in the governance of marine capture fisheries.

The problem of excess fishing capacity and the need to control fishing effort, inadequate MCS and environmental degradation have been further addressed at the international level by the 1995 Rome Consensus on World Fisheries, the 1995 Kyoto Declaration and Plan of Action on the Sustainable Contribution of Fisheries to Food Security, the United Nations General Assembly Resolutions 49/118 of 1994, and 50/25 of 1995, the 1996 Resolution on fishery matters adopted by the 95th Inter-Parliamentary Conference (Istanbul), and the 1996 Draft Report of the ad hoc Intersessional Working Group on Sectoral Issues of the Commission on Sustainable Development. It should also be noted that once again, these international initiatives have reiterated the need to strengthen regional and subregional fishery bodies and arrangements.

At the national level, some States, (particularly Argentina, Australia, Canada, Chile, the European Community, Iceland, Japan, Malaysia, Namibia, New Zealand, Norway and the United States) are taking action to reduce fleet capacity and to improve fisheries management. Their efforts have been directed towards effort quotas, individual transferable quotas (ITQs) and limiting entry into fisheries. The FAO 1996 "State of World Fisheries and Aquaculture" notes that this has the effect of converting a publicly owned and used resource into a publicly owned but privately used resource. Platt McGinn has observed that a consequence of the initial New Zealand ITQ program was that within one year of its establishment, the three largest fishing companies held title to 43 percent of the ITQs. Thus many small vessel owners and fishers subcontracted to larger companies, or went out of business. This was not an intended effect of the new policy. A better publicly owned but privately used system, can be seen in the Alaskan example of Community Development Quotas (CDQs) for community based, small scale fishers. In Alaska, New Zealand and other States, policy makers have now set limits to prevent monopolies from forming.

Another significant development has occurred in those States which have implemented buy-back schemes for vessels, which when combined with a moratorium on the entry of new vessels into a fishery, significantly reduce the build-up of fishing capacity. Clearly such programs present difficulties for developing States, particularly those with numerous subsistent and small-scale commercial fisheries. FAO reports have noted:

"Among the problems to resolve in some of these fisheries are the relocation and redeployment of fisher[s] who would be displaced as a consequence of limited entry policies. It must be recognized, however, that the failure to limit entry in overexploited artisanal and small-scale fisheries will only destruct these fisheries further and contribute to the long-term impoverishment of communities dependent on them for their livelihoods."

To meet the threats facing environmental degradation of coastal and marine areas, several international initiatives have been taken. The Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) was established to advise solely on marine pollution issues, but its terms of reference have been broadened to enable it to respond more fully on all aspects of marine environmental protection and management. Other support programs are offered by the Asian Development Bank, the World Bank and the World Conservation Union. There have been numerous national government initiatives to institute some form of coastal management, however relatively few countries have a nation-wide and effective strategy for dealing with coastal and marine environmental degradation and resource competition.

Regarding environmental damage from fishers themselves, most States are aware of the problems, and have made attempts to solve them. The fact is that where harmful fishing practices persist, they often reflect difficulties in enforcement and fisher reluctance to change.

The precautionary approach to fisheries management is being progressively implemented in some countries (e.g. Australia and the United States of America). Other developed States have research and monitoring programmes related to the marine environment, including research oriented towards climatic variations, whilst other States are carrying out research on the effects of ultraviolet radiation (including vulnerability assessments) on the marine environment. The 1996 FAO State of World Fisheries and Aquaculture notes that much of the above research is relatively costly, and consequently developing States are not as active as their developed counterparts. Nevertheless,

"many developing countries have established national science policies oriented towards the marine environment and are actively involved in coastal zone research, observations and assessments. Many developing countries strongly support the development of the Global Ocean Observing System (GOOS), although their participation is limited."

The extent to which RFBs are currently addressing the issues raised above, is the subject of the final part of this chapter.

The 1996 "State of World Fisheries and Aquaculture" notes:

"Many existing subregional and regional bodies are not as effective as intended. The difficulties they encounter in implementing conservation and management measures is often reflected in the poor state of the resources they are set to manage."

If the state of marine capture fishery resources is to improve, and if conservation and management measures are to succeed, it is necessary to address the problems of overfishing; inadequate monitoring, control and surveillance; and environmental degradation at both State and RFB levels. There are a succession of international agreements and other instruments post-dating the 1982 Convention to address these issues. This section examines the degree to which RFBs are attempting or achieving compliance with such instruments.

Use of the precautionary approach:

As a response to the adoption of the precautionary approach in numerous international agreements, the Council has considered the possible use of the approach in the work of NASCO.

The 1995-97 Report on the Activities of the North Atlantic Salmon Conservation Organization notes:

"The anadromous life-cycle of the Atlantic salmon means that it is exposed to a wide range of pressures both in the marine and freshwater environments and the genetic structure and small size of many salmon populations mean that the resource is particularly vulnerable. Many of the pressures on it are poorly understood, but their effects may be irreversible. In these circumstances, adoption of a precautionary approach would seem to be appropriate."

Bearing this in mind, the Council has established a Working Group to advise, inter alia, on the application of the precautionary approach to the management of North Atlantic salmon fisheries, the formulation of management advice and associated scientific research; and the introductions, transfers and impacts of transgenic fish. The Working Group reported back to the Council at its Fifteenth Annual Meeting in 1998, when a Special Session on the Precautionary Approach was held. NASCO and its Contracting Parties have agreed to adopt and apply a precautionary approach to the conservation, management and exploitation of Atlantic salmon in order to protect the resource and preserve the environments in which it lives. A Draft Action Plan is being developed on the application of the precautionary approach to the Organization’s work. This is anticipated to represent a major change in the way Atlantic Salmon is managed. It has been further agreed that the next step for NASCO and its Contracting Parties to address is the application of the precautionary approach to freshwater habitat issues and the by-catch of salmon in other fisheries.

Code of Conduct for Responsible Fisheries and the Compliance Agreement:

In 1989-90 NASCO became aware that a number of vessels had re-flagged to Non-Contracting Parties so as to avoid the provisions of the Convention, and were fishing for salmon in international waters north of the Faeroe Islands. Diplomatic Action was taken and a Protocol Open for Signature by States not Parties to the Convention for the Conservation of Salmon in the North Atlantic Ocean was adopted. There have been no sightings since February, 1994. NASCO are looking at ways to improve methods of surveillance in the area. With regard to illegal fishing, NASCO is looking at methods to reduce the level of unreported catches. The Organization is unaware of any unauthorized fishing for salmon in zones of national jurisdiction.

NASCO has not given any specific consideration, endorsement or promotion to the Code of Conduct for Responsible Fisheries, however, aspects of the Code are complimentary to measures developed by NASCO in relation to aquaculture development, re-flagging and the precautionary approach.

NASCO has noted that the UN Fish Stocks Agreement does not apply to salmon although the Agreement contains provisions which can contribute to the international conservation and management of North Atlantic salmon. Under the Convention, fishing for salmon is prohibited in most areas beyond 12 nautical miles. NASCO is unaware of any recent reports of fishing for salmon in international waters by non-Contracting Parties.

The framework for determining yield recommendations established by the Commission adheres to the provisions of the precautionary approach. Specifically, IPHC have established a target harvest rate (used to compute the constant exploitation yield (CEY) that results in adequate long-term yields across a wide range of population dynamic models consistent with historical experience. In addition, the Commission has used the minimum observed historical biomass as a limit reference point, even though historical estimates show no evidence of a decrease in recruitment when that level was attained (twice) in the past. In other words, the minimum historical biomass is not equated with an overfishing threshold.

Furthermore, improvements to IPHC simulations are required and are underway. In particular, changes in growth associated with different productivity regimes are being incorporated into the yield estimations. Improved measures of reproductive output, and of the effect of fishing on each sex would be possible if IPHC would be able to estimate the sex ratio of the catch. Estimation of the sex ratio of historical catches from otolith characteristics is in progress and will be used in reconstructions of historical trends in spawning biomass. In addition to better characterizing the halibut dynamics in the simulations, IPHC need to characterize better the uncertainty in the estimates of biomass, which affects quotas directly. The Commission is currently developing simulation models for testing their stock assessment procedure, which will result in more realistic measures of uncertainty than can be computed at the present time.

IPHC have also initiated a Fisheries Oceanography programme that addresses, in part, the specifications of the precautionary approach that concern dynamics of associated resources. Knowledge of ecosystem-wide dynamics could be a key component of understanding and predicting halibut dynamics, and in producing realistic simulations to evaluate a target reference point.

The element of the precautionary approach that is not specifically implemented is the development of harvest rules for directing fishing mortality or stock biomass to the appropriate levels when departures occur. In the current IPHC harvesting strategy, this would amount to specifying in advance how the harvest rate should be adjusted when there is a high probability that the stock will drop below the minimum historical biomass. This process is currently implemented through periodic re-evaluation and adjustments of the target harvest rate, but there is no pre-defined procedure for incremental adjustments in response to estimates of current stock biomass or short-term forecasts of biomass trends. At present, IPHC have not yet determined whether halibut dynamics are sufficiently well understood to implement a clockwork-type of incremental change, or whether the present approach of periodic assessment and reappraisal is more sensitive to management needs.

IPHC has no reported problems with reflagged fishing vessels, and all relevant States to, and operating in, the area, are members of the Commission. Regarding the specific provisions of the Code, the Commission has not endorsed or promoted the provisions in any express manner. However, through its research on, and promotion of, fishing methodologies to minimize discard mortality of halibut and other species, and its procedures for yield determination, the Commission has effectively implemented provisions of the Code.

Provisions within the Agreement which place an onus for regional or subregional conservation and management upon RFBs, are in part adhered to by the two Contracting Parties in their annual reporting and research results.

Code of Conduct for Responsible Fisheries and the Compliance Agreement:

The GFCM Report of the Twenty-Second Session held in Rome from 13-16 October 1997, provides in paragraphs 34-39 the measures taken by the Commission to implement the Code of Conduct for Responsible Fisheries. It was agreed by the Commission that the members should report the steps taken, and results achieved, in implementing the Code at each Session.

For the NAFO Scientific Council Meeting of June 1997, a Report of the Ad hoc Working Group of the NAFO Scientific Council on the precautionary approach was prepared as NAFO SCS Doc. 97/12. The Report, titled "Precautionary Approach to Fisheries Management" recognized the importance of the precautionary approach in both the Code of Conduct for Responsible Fisheries and the UN Fish Stocks Agreement. After reviewing the development and application of the precautionary approach to fisheries management, the NAFO Scientific Council endorsed the approach. In addition, the Council intends to use the practical guidance given in FAO 1995 Guidelines on the Precautionary Approach to Capture Fisheries and Species Introductions. The Council recognized that implementation of the precautionary approach would be a challenging and ongoing process, and subsequently a framework and action plan were developed.

The NAFO General Council and Fisheries Commission has been discussing aspects of implementation of the Code and the Fish Stocks Agreement. In particular, there has been substantive discussion on the transparency of the NAFO decision making process and participation of inter-governmental and non-governmental organizations, and the implementation of the precautionary approach to NAFO managed stocks. Contracting Parties have met in several working groups, and there is an on-going process of negotiation in the NAFO community with good prospects for a successful resolution. NAFO notes:

"It should be emphasized that the precautionary approach is a very complex scientific and managerial problem, and therefore very careful and steady intelligent process would be required from all Parties to develop and implement such a sophisticated tool for stock management/exploitation around the world."

Regarding the problems of by-catch and discards, regulatory measures are engraved in the NAFO Conservation and Enforcement Measures. There are provisions which constitute a legal basis and guidelines for the NAFO inspectors and observers to enforce these provisions. Observers on board fishing vessels monitor all by-catch and discards, and provide their reports to the NAFO Secretariat.

Compliance Agreement:

There are no reports of unauthorized fishing in zones of national jurisdiction. For high seas fishing, the General Council of NAFO has been working on the problem of non-Contracting Party fishing activity in the NAFO Regulatory Area and deployed the following actions:

• Adopted the "Scheme to Promote Compliance by Non-Contracting Party vessels with the Conservation and Enforcement Measures Established by NAFO." The Scheme would be directed at Non-Contracting Party vessels engaged in fishing activities in the NAFO Regulatory Area. The scheme presumes that a Non-Contracting Party vessel which has been sighted engaging in fishing activity in the NAFO Regulatory Area is undermining the NAFO Conservation and Enforcement Measures.
• If such sighted vessels enter the ports of Contracting Parties, they must be inspected. No landings or transshipments will be permitted in Contracting Party ports unless such vessels can establish that certain species on board were not caught in the NAFO Regulatory Area, and for certain other species, that the vessel applied the NAFO Conservation and Enforcement Measures, and
• Contracting Parties must report the results of inspections to NAFO and all Contracting Parties.

Code of Conduct for Responsible Fisheries:

As an organization concerned with providing scientific advice, ICES is most concerned with those provisions of the Code that deal with the subjects of by-catch and discards. The Council has commenced large scale sampling programs, and data is currently becoming available for research and analysis. This data will eventually be included in future models.

ICES Document CM 1997/Assess:7 is a Report of the Study Group on the Precautionary Approach to Fisheries Management, the Study Group having met at ICES Headquarters from 5-11 February 1997. The Report recognized the need to utilize the precautionary approach, as it is recognized in numerous international agreements, as well as providing a description of the approach. The Report also gives attention to the distinction between precautionary approach and precautionary principle, as well as noting that the implications for ICES are at both the technical and advisory levels. ICES is currently working on implementing the precautionary approach into their advice.

As the provision of fisheries advice, and specific consideration of questions relating to marine science, have not yet developed within PICES, there is neither a direct application of the precautionary approach, nor implementation of the recent legal conventions and instruments. Through PICES programs, such as the 1998 CCCC Monitor Task Team Workshop on the effects of climate variations on the marine ecosystems of the Subarctic North Pacific, PICES investigates and addresses the problems of environmental degradation.

Although these bodies have not specifically acted to address the post 1982 Convention, the Member Countries of the three RFBs met in June, 1998 at the Regional Workshop on the Adaptation of the Code of Conduct for Responsible Fisheries in West Africa. The results are briefly described below:

Participants endorsed the importance of the Code, and noted that effective implementation of the Code was essential for sustainable resource use. The workshop also recognized the importance of regional and inter-regional collaboration through the work of RFBs and arrangements. The Working Group on Fishing Operations noted that the marine fisheries of the West Africa region are dominated by the artisanal sector, and that where appropriate, national fishery authorities should complete or develop the regulation of artisanal and small scale fisheries. When this adjustment occurs, effort should be made to conform with the principles and norms of the Code. Where regulations already exists, action should be taken to strengthen them in respect of the Code. Finally, it should be noted that the implementation of the Code will in certain cases induce expenses for private operators, and therefore, some time should be allowed before enforcement of the regulations. The Plan of Action proposed by the Working Group was to:

• Request individual States to organize national workshops and seminars to inform stakeholders of the Code of Conduct;
• Request FAO to assist in the compilation of the existing document regarding all the texts referred to in the Code of Conduct and when appropriate to complete existing technical guidelines in regard to specific aspects of artisanal fisheries; and
• Request FAO to organize short-term training sessions of trainers on the Code of Conduct.

The final Resolution produced at the workshop by 21 countries and four intergovernmental organizations noted that the implementation of the Code is the responsibility of the respective States, but nevertheless requested FAO to undertake all necessary steps to provide assistance to the States of the West Africa region in the implementation of the Code. This assistance would ensure that, after the adoption and adaptation of the Code by the countries of West Africa, the lack of information and expertise would not be a constraint to the willingness of the States to effect urgent and indispensable adjustments in the fisheries sector.

Paragraph 3 of the Resolution of the Regional Workshop on the Adaptation of the Code of Conduct for Responsible Fisheries in West Africa, Cotonou, Benin, 1-5 June 1998, provides:

"Conscious of the important role that the implementation of the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement will play in the management of high seas fish stocks, the participants urge governments in the region to consider accepting these instruments as soon as possible."

The Meeting of the Technical Committee of the Twenty-Fifth FAO Regional Conference for Latin America and the Caribbean, 16-18 June 1998, considered the implementation of the Code of Conduct in the region. The Committee highlighted the importance of applying the Code to achieve the conservation of resources and the sustainability of fisheries, food security and social and economic development. The Committee called upon the Governments to introduce the Code in their laws and/or make the necessary institutional and policy changes needed to put it into practice in accordance with national and subregional requirements. The Committee asked that FAO continue to provide technical cooperation and support in identifying funding for implementation of the Code at country level. The Committee recognized the importance of the Fishery Commission for the Western Central Atlantic (WECAFC) for regional cooperation in the management and conservation of fishery resources and as an instrument for application of the Code in the Region. The next meeting of the Committee, to be held in Venezuela, would examine implementation of the Code at regional level.

On the specific subject of fisheries by-catch and discards, States that have shrimp trawl fisheries (e.g. Brazil, Colombia, Guyana, Mexico, Suriname, Venezuela) are now landing more by-catch for human consumption than in the past. This is partly due to an increasing demand for fish, and also partly due to higher prices for fish. In an attempt to reduce the by-catch from trawl fishers, States have introduced turtle exclusion devices. Venezuela is also experimenting with the use of fish exclusion devices.

Finally, it should be noted that a number of States in the WECAFC Region are in the process of improving their monitoring, control and surveillance capacity which is not limited to fishing only.

Although the Agreement is not yet in force, two States in the WECAFC region have formally accepted the Agreement: United States of America and St. Kitts/Nevis. Other States in the region have adopted elements of the Agreement into their fisheries legislation.

The IWC applies the precautionary approach in their work on aboriginal subsistence whaling which is still permitted and regulated. Apart from this application, the Code of Conduct is not specifically applied to "fishery" management as commercial whaling is prohibited at the present time.

The IWC have concerns with regard to reflagged, unauthorized or illegal whaling, and they are currently using DNA tracking to attempt an investigation of the origins of whale meat on sale in certain markets.

The 1996 APFIC publication, "APFIC and the Sustainable Development of Southeast Asian Fisheries" discusses the international instruments and initiatives having implications on Southeast Asian Fisheries.

The publication notes that because of the mandates set forth in Chapter 17 of Agenda 21 regarding the protection, rational use and development of living resources in the oceans, seas, and coastal areas, the implementation of the Agenda 21 principles will have far reaching implications on the future policies and strategies of the Southeast Asian countries in their efforts to implement sustainable development of fishery resources. It continues that the process of application will be long-term and that:

"it is thus essential that the countries concerned set priorities among a large number of important actions that are called for in this implementation. Some prioritized actions can be implemented at the sub-regional and regional levels to reduce the implementation costs and avoid the duplication of efforts."

The publication also considers initiatives to deal with problems of environmental degradation. Noting that particular problems exist in Southeast Asia of habitat destruction and decline in water quality due to pollution, which has resulted in a loss of both biodiversity and the abundance of fishery resources in coastal and inshore waters, the report provides that a number of programmes by international and regional organizations have been commenced to address these issues. These include UNEPs Regional Sea Programme for East Asian Sea; World Conservation Union’s CITES, GEF/UNDP/IMO Regional Programme for the Prevention and Management of Marine Pollution in the East Asian Seas (MPP-EAS), and the FAO Code of Conduct for Responsible Fisheries (as discussed below) that are designed to assist the countries in the region to maintain environmental quality and prevention and control of pollution.

The APFIC publication, "APFIC and the Sustainable Development of Southeast Asian Fisheries" makes a recommendation that the governments in the region monitor developments in international initiatives aimed at the sustainable development of straddling stocks and highly migratory fish stocks, in particular, the implementation of the Code of Conduct for Responsible Fisheries, and the 1995 UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks. It continues:

"As there are several existing regional fishery bodies, which may result in possible duplication of effort, serious consideration should be made by the countries in the region as to whether a new regional mechanism should be developed or an existing body enhanced, in the long term, to help coordinate cooperative research programmes; to improve data and information required; to jointly manage the exploited transboundary stocks; to harmonize fisheries management policies including the monitoring, control and surveillance of these fisheries; and to make recommendations to fishery bodies at the national level. Because of the extent of the transboundary migration of a large number of fish stocks in the region, the South China Sea is considered to be an appropriate management unit for the purpose of coordination and making recommendations."

The publication concludes with a call for the strengthening of the Activities of APFIC and a note that the potential of the Commission depends upon the political will of its Members.

Both member parties have given endorsement to the FAO Code of Conduct. The Commission itself is aware of the Code, but has not yet taken a formal position on it. The precautionary approach is taken into account in the fisheries management work of the Commission.

The Commission has not taken a formal position on the Compliance Agreement and there are no problems with reflagged fishing vessels, or unauthorized, or illegal fishing within the Common Fishing Zone.

Since 1976, the Commission has worked on implementing many of the provisions eventually given recognition in this Agreement. This includes working to ensure the long term sustainability of straddling stocks and highly migratory stocks, allocating allowable catches, or levels of fishing effort, obtaining and evaluating scientific advice on the impact of fishing, and establishing cooperative mechanisms for monitoring, control, surveillance and enforcement.

As the only managerial measure that the Commission undertakes is prohibition of the direct fishing for salmon in the Convention Area, consolidated by the minimizing to the maximum extent of any incidental taking of this fish, further application of the precautionary approach is considered inapplicable.

NPAFC have no formal position on the Compliance Agreement despite the fact that they have problems with illegal fishing for salmon on the high seas of the North Pacific Ocean by vessels of non-member countries. During 1993-1998 there were several sightings of violations, which resulted in the seizure of the vessels and punishment by the vessels’ flag authorities. In view of the policy that no country is allowed to fish for salmon within the Convention Area, NPAFC policy is to enforce implementation of the prohibition of fishing.

There is an ongoing discussion about the application of the precautionary approach.

The Code is taken into account when considering new measures such as is being done by a current NEAFC working group on evaluating the structure and functions of the Commission. The stated objective of this working group is to:

"evaluate the structure and function of the Commission:

• measured against the provisions of the Convention, and
• in light of the 1982 Convention and the development of relevant international law, in particular the UN Fish Stocks Agreement and the Code of Conduct for Responsible Fisheries."

The UN Fish Stocks Agreement is taken into account when establishing catch limits. These are also determined by advice from ICES when establishing TACs on a sustainable basis. TACs are set for blue whiting, oceanic redfish and Norwegian spring spawning herring.

Regarding the RFB requirement for cooperative mechanisms for monitoring, control, surveillance and enforcement, NEAFC has put substantial effort into the task of developing a comprehensive control and enforcement scheme. This scheme, (Recommendation on Control and Enforcement Measures in Respect of Fishing Vessels Fishing in Areas Beyond the Limits of National Fisheries Jurisdiction in the Convention Area), was adopted at an extraordinary meeting in July and will come into force in 1999.

Compliance Agreement:

NEAFC has no formal policy in regard to the Compliance Agreement despite problems with reflagged, unauthorized or illegal fishing within the Convention Area. The problem is currently being addressed by the Contracting Parties which have agreed to exchange information about such incidents.

To promote and encourage the implementation of the Code, the CCSBT is in the process of reviewing the provisions of the Convention in order to determine the action necessary to achieve compatibility with the Code. The precautionary approach to fisheries management is currently under discussion as the CCSBT parties attempt to reach agreement on the state of the Southern Bluefin Tuna (SBT) stock. The problems of by-catch and discards impacts heavily upon seabirds and measures have been implemented to mitigate sea-bird by-catch during longline fishing operation (e.g. by the use of Tori poles). Investigations by the ERSWG are researching how to further mitigate the by-catch problem.

In conformity with the provisions of the UN Fish Stocks Agreement, CCSBT receives advice of the management measures adopted by Members. Advice is also received from the Republic of Korea and Taiwan, which are not Members, but which take significant quantities of SBT. This advice is used in the assessment of the state of the SBT stock.

The Agreement provides that all relevant coastal States or States fishing for Highly Migratory Stocks and Straddling Stocks shall cooperate by becoming members of the relevant RFB, or agree to the measures of the relevant RFB. In the case of CCSBT, not all relevant coastal States, or States fishing for SBT on the high seas, are Members. States which take significant quantities of SBT but are not Members of the CCSBT are the Republic of Indonesia and the Republic of Korea. South Africa is also a relevant coastal State, but its national do not take SBT. Discussions, based on an Action Plan adopted by the CCSBT in January 1998, are in progress with potential new members, which include arrangements for accommodating their fishing interests.

In order to establish a cooperative mechanism for monitoring, control, surveillance and enforcement, CCSBT has established a subsidiary body, the Compliance Committee, to develop a cooperative monitoring and compliance system under the provisions of the Convention.

On the requirement for giving publicity to the conservation and management measures established by the RFB, members of the CCSBT publish significant decisions by media releases. Meeting reports are published on the World Wide Web and printed copies of reports are available on request.

Members of the CCSBT exchange information on fishing activities of vessels flying the flag of States which are not members. Measures to deter their activity are to be developed. No serious violations against the conservation and management measures established under the Convention, have been encountered.

Regarding the more recent international instruments, the formal position of OLDEPESCA is noted in the following summary on the Programme of Support for the Regional Implementation of International Fisheries Instruments which is currently being executed by OLDEPESCA in cooperation with the Inter-American Development Bank.

"In the face of inadequate provisions in the [1982 Convention] and other problems related to fisheries inside and outside zones under national jurisdiction, and as a result of joint initiatives by FAO and interested States, which were examined at technical meetings and at UNCED, it was agreed that efforts should be made to prepare new international rules and regulations.

• in accordance with its objectives as facilitator and coordinator of fisheries cooperation and development in the region;
• in follow up to the mandates issued by the Ministerial Meetings of the Member Countries; and
• pursuant to the cooperation responsibilities envisaged in the 1982 Convention and other international instruments for regional and subregional organizations, OLDEPESCA was very active in helping develop this process by means of consultation meetings and the publication of documents with specific proposals on the issues under examination.

On completion of negotiations for the formulation of new international fisheries instruments, the OLDEPESCA Inter-American Development Bank (IDB) Programme was set up to help national administrations examine the two following documents:

• UN Fish Stocks Agreement; and
• The Code of Conduct for Responsible Fisheries. Despite its voluntary status, this is the most complete instrument so far devised for fisheries.

The Technical Cooperation Programme signed by OLDEPESCA and IDB includes components to help the fisheries administrations of Latin American and Caribbean countries with criteria and actions that will facilitate analysis of the above international management instruments, the ultimate aim being to develop sustainable fishing activity.

The specific objectives of the Technical Cooperation are to:

• help evaluate the possible implications of national fishery legislation and the provisions laid down in international agreements;
• determine the priority actions needed with regard to mechanisms of consultation, monitoring and information exchange at regional level; and
• promote dissemination and understanding of the implications for regional fisheries of the international instruments.

This Programme has been under development since January 1998 in the framework of a pilot plan involving Costa Rica, Mexico, Peru, Uruguay and Venezuela.

The regulatory measures applied by IBSFC are in line with the objectives of the Code. Increased attention is being given to the provisions of Article 7 Fisheries Management such as management objectives and application of the precautionary approach. Pending ongoing analysis by ICES, IBSFC intends to adopt within short stocks specific target reference points and limit reference points, as provided for in Article 7.5.3 of the Code.

IBSFC at its Extraordinary Session on Agenda 21 for the Baltic Sea Region, Sector Fisheries, held in Warsaw from 16-29 February 1998 adopted an Action Programme for sustainable development including targets, time frames, actors and financing. These include an Action Programme for Baltic Cod, Salmon 1997-2010, and a Long Term Strategy for Pelagic Species.

The IBSFC area has no high seas and is therefore not formally subject to the application of the UN Fish Stocks Agreement. There are no reports of unauthorized fishing within the IBSFC area and reflagged fishing vessels do not constitute a problem for the Members.

Resolutions of ICCAT have affirmed a commitment to the concept of responsible fishing, as established within the framework of the Code of Conduct for Responsible Fisheries. ICCAT is working to apply the Code, and the precautionary approach to the Commission’s activities. They have also noted the need for compliance with the Resolutions of the United Nations on prevention of overfishing. Conservation and management measures have been supported by resolutions which call for contracting Parties to prohibit the import of Atlantic bluefin tuna in any form from Belize, Honduras and Panama, where fishing practices are not consistent with ICCAT measures.

Each year, the Executive Secretary of ICCAT contacts all non-contracting parties, entities or fishing entities known to be fishing in the Convention area for species under ICCAT competence to urge each of them to become a Contracting Party to ICCAT or to attain status as a Cooperating Party, Entity, or Fishing Entity.

Further resolutions have addressed the subjects of catch reduction, statistical document programs, vessel monitoring system pilot program, transhipments and vessel sightings, unreported catches,pelagic driftnet fishing, by-catch, longline fishing, revision of ICCAT Port Inspection Schemes.

I-ATTC Convention Resolution of 17 June 1998, notes that its establishing Convention was signed in 1949, and therefore does not take into account subsequent changes in international law as reflected in the 1982 United Nations Convention on the Law of the Sea, the 1992 Agenda 21 and Rio Declaration, the 1993 Compliance Agreement, the 1995 Code of Conduct for Responsible Fisheries, and the 1995 UN Fish Stocks Agreement. The Commission agrees to establish a working group of its Members, (and open to other governments of coastal States and other States and regional economic integration organizations, whose vessels are operating in the tuna fishery in the eastern Pacific Ocean,) and which have the intention of adhering to the Convention, to review the functions of the I-ATTC and its Convention and, if necessary, formulate possible amendments to the Convention.

On the requirement for all relevant coastal States and States fishing on the high seas to be members of the relevant RFB, I-ATTC note that Belize, Colombia, Cyprus, Honduras, Mexico, and Spain are non-Member States whose flag vessels are fishing in the I-ATTC area. Mexico and Colombia have indicated they will join the I-ATTC. In respect of Spain, the European Community has sole competence for international fishing matters, and has expressed an interest in joining. Currently, this is impossible because the convention for the IATTC does not provide for Regional Economic Integration Organizations to become a party. The I-ATTC is in the process of considering whether to agree to a change in the convention which would allow the EC to join. Colombia, Mexico and Spain are members of the International Dolphin Conservation Program (IDCP).

The I-ATTC works to ensure the long-term sustainability of straddling stocks and highly migratory stocks by resolutions recommending limits on the catch of yellowfin and bigeye tuna. Similarly, dolphin mortality limits by IDCP ensure the sustainability of dolphin stocks.

The SPC exists to encourage and strengthen international cooperation in promoting the economic and social welfare and advancement of the peoples of the South Pacific Region. At the Eleventh Meeting of the Standing Committee on Tuna and Billfish Workshop, the following conclusions were reached:

• the development of an overall precautionary management framework for tuna fisheries of the western and central Pacific requires the collaboration of scientists, fisheries managers and industry;
• the delivery of scientific advice using limit reference points is only one component of a precautionary management framework. The implementation and monitoring of harvest or other fishery control measures are also essential components of the overall framework;
• the avoidance of recruitment overfishing (reduction of the adult biomass to the point where there is a significant risk of recruitment collapse) should be the major objective of fisheries management;
• at least two limit reference points are required to express this objective: a percentage of the maximum observed spawning biomass beyond which the stock must not be allowed to fall, and a level of fishing mortality which should not be exceeded in any year;
• stock assessments which should be based on the best possible science, should provide estimates of uncertainty regarding the stock status and the impact of fishing on the stock, and be presented in such a way that enables transparent management decision making;
• where formal stock assessments cannot be undertaken because of lack of data, a suite of fishery indicators, based on statistics such as catch-per-unit-effort, average size of fish caught and the spatial range of the fishery, may be used as provisional reference points. The utility and robustness of such indicators should first be assessed using simulation models;

• while there will likely be a requirement to provide scientific advice on non-target, associated and dependent species, there is presently insufficient data on which to base assessments in most cases. Additional data collection, fishery monitoring and research will be required; and
• the current levels of funding support for data collection, research and stock assessment of tuna fisheries of the western and central Pacific are insufficient (<1 percent of the value of the catch). Funding support will need to be increased substantially to allow management of this valuable fishery to be guided by good science.

The FFA provides regular updates on the status of international fisheries conventions. Its role is merely advisory and advice is given to enable the Parties to implement their obligations under the various international fisheries conventions. In this way, FFA assists in ensuring that regional and international obligations are incorporated into domestic legislation. Furthermore, FFA undertakes periodic reviews of domestic legislation to ensure that they are consistent with regional and international agreements.

The FFA are currently working on the implementation of the UN Fish Stocks Agreement. However, this same subject is being addressed through the Multilateral High Level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific.

The precautionary approach is mainly considered for intensive fisheries with high yields. CPPS has distributed invitations to meetings that will consider the implementation of the Code of Conduct.

CPPS has no formal position on the Compliance Agreement. There are problems with vessels fishing illegally in zones of national jurisdiction. CPPS notes that Members need to demonstrate their sovereignty towards such vessels.

Members have their own responsibility for ensuring the long term conservation of fishery resources, allocating allowable catches according to fishing effort at various levels, and coordinating cooperative mechanisms for the development and management of fisheries. Any impact on fishery resources is taken into consideration by each Member, and assessed constantly. This is done by Members acting autonomously.

With regard to high seas fisheries, a model of agreement is being prepared on transboundary fish stocks and highly migratory fish stocks in the South-east Pacific. This model takes into account technical, scientific, jurisdictional and economical aspects.

IOTC is currently involved in a proposed workshop involving FAO and other regional RFBs that will consider applying the precautionary approach to regional fisheries management in relation to objective reference points. The Code of Conduct for Responsible Fisheries has been discussed within Commission Sessions. As yet there is no formal position yet by IOTC on the provisions of the Code.

IOTC Members have problems with illegal fishing within EEZs and fleets operating under open registry flags are a major potential issue for the region. There is no formal position by IOTC on the Compliance Agreement.

The body of IOTC exists to achieve long term sustainability of stocks. Decisions regarding allocation of catches may be taken at a later date in view of known (or suspected) stock status. Scientific advice is currently provided through technical working parties. Data reporting on HMS and SS is not yet implemented. Regarding the requirement for all fishing States relevant to, or operating in, the IOTC area, to be members of the relevant RFB (in this case, IOTC), Taiwan, Province of China, the Maldives, Oman, the Islamic Republic of Iran and Yemen are the major Indian Ocean tuna fishing States or entities still missing from IOTC. Other coastal States with more minor catch levels have also not joined. Open registry States, as described above, may be relevant to participation in IOTC, but have also not joined.

CCAMLR is one of the organizations managing international fisheries which pioneered this approach. It is based on the principles of conservation which are set out in Article II of the CCAMLR Convention. They encompass both the precautionary approach, according to which prudent foresight should be exercised in order to avoid taking decisions which have a high risk of long-term adverse effects, and also an ecosystem approach, i.e. the adoption of precautionary catch limits aimed at ensuring that the effects of fishing on prey populations are limited to a level which will be unlikely to have a major impact on predators. In accordance with the precautionary approach, the greater the degree of uncertainty in the assessment of exploited resources and of their functional relationship with other elements of the Antarctic ecosystem, the greater the degree of fisheries management control imposed.

In addition to developments related to the implementation of the CCAMLR Ecosystem Monitoring Programme, the following element of the precautionary approach have been already implemented by CCAMLR for managing fisheries in the Convention Area:

1. measures to take into account uncertainty in resource assessments;
2. prior notification an management of new and exploratory fisheries;
3. protection of non-targeted fish species, including by-catch limits;
4. technical measures and season limitations to reduce incidental mortality of seabirds in longline and trawl fisheries;
5. a ban on the use of plastic packaging bands, in which marine mammals can become entangled, for bait boxes and other uses; and
6. prohibition of a large-scale pelagic drift-net-fishing in the CCAMLR Convention Area.

In their efforts to deal with the problem of illegal, unreported and unregulated fishing activities within the CCAMLR zone, the Commission has noted international initiatives, including the 1995 UN Fish Stocks Agreement, the FAO Code of Conduct for Responsible Fisheries, and the FAO Compliance Agreement.

Further, the report of the Sixteenth Meeting of CCAMLR held in Hobart, 27 October-7 November 1997 notes at paragraph 5.25 that several measures to deal with illegal, unreported and unregulated fishing activities could be drawn from the experience of other organizations, in particular NAFO and ICCAT. Other measures took into account recent developments in international law, in particular the UN Fish Stocks Agreement, and the Compliance Agreement. The Commission encouraged all members of CCAMLR to become parties to these Agreements as soon as possible.

In addition, CCAMLR has started developing an integrated set of political and legal measures to deal with illegal, unreported and unregulated fishing. The set of measures adopted by the Commission in 1997 includes new Conservation Measures 118/XVI (Scheme to Promote Compliance by non-Contracting Party Vessels with CCAMLR Conservation Measures), and 119/XVI (Requirement for Contracting parties to Licence their Flag Vessels in the Convention Area), as well as Resolution 12/XVI on VMS, and amendments to the text of the System of Inspection and mechanisms to address the actions of non-Contracting Parties. The November 1998 CCAMLR meeting will review the effectiveness of the adopted measures and, if necessary, develop additional measures. In particular, CCAMLR will further consider measures related to port State control, as well as trade-related measures.

This chapter commenced with a basic premise that world marine capture fisheries are in crisis from the point of view of sustainable utilization. This premise has been supported by discussion on the three critical issues effecting the state of world marine capture fisheries:

• the problem of overfishing - including the use of insufficiently selective fishing gear which leads to waste in the form of by-catch and discards;
• inadequate monitoring, control and surveillance of vessels in both zones of national jurisdiction and on the high seas - including the problem of reflagging and the need for better flag and port State controls; and
• environmental degradation of fish habitats.

The paper submits that to the extent that the law can provide solutions to these problems, significant progress has been made. Within this contemporary legal regime for fisheries, RFBs are given an increasingly important role for the conservation and management of world marine capture fisheries. Both the international community of States and RFBs should view these Agreements and instruments as providing a check-list that will enable RFBs to effectively fulfil this management role.

The implementation of many of the recent international fishery instruments requirements for RFBs may frequently require amendment of the RFB founding agreement, constitution or convention. In many cases, the original terms of reference or mandates were constructed in an era pre-dating the 1990s instruments. However, from information made available to FAO, the General Fishery Commission for the Mediterranean recently amended its agreement to accommodate the provisions of these recent instruments. Many FAO RFBs are acting to investigate just how their mandates would need to be amended in order to allow them to implement the above mentioned requirements.

Based on materials provided by RFBs and information from other published sources, the general conclusion from the review is that while most RFBs are investigating and reviewing, through appropriately constituted working groups, how best to address the above issues, very few RFBs have to date actually taken concrete steps towards implementing the desired regime. Bearing in mind the difficulty of the task, this conclusion is perhaps not surprising. The instruments described in this report present complex scientific, managerial and political constraints that cannot be resolved quickly.

However, in view of the major role that the international community is now assigning to RFBs as a means of facilitating sustainable utilization of world marine capture fisheries, the deficiencies apparent with the current state of regional fisheries management must be addressed in a more comprehensive and rational manner. Under existing international law and within the current paradigm for the management of shared fish stocks, RFBs provide the only realistic option for the conservation and management of these stocks.