1. INTRODUCTION

1.1 The meaning of the term “shared stocks”

The terms of reference for this report are in Annex I. The term “shared stocks” needs definition for the purposes of this report. In principle, a “shared stock” could be one that was shared between inter alia (a) two neighbouring coastal States, (b) two non-neighbouring coastal States on opposite sides of a gulf or ocean or (c) a coastal State and a flag State (the latter’s vessels fishing on the high seas). Some clarity is therefore needed.

The 1982 Convention on the Law of the Sea (“LOSC”) does not use the term “shared stocks”. Instead, Art 63 LOSC refers to:

(a) “the same stock or stocks of associated species occur[ring] within the exclusive economic zone of two or more coastal States” (Art 63(1)); and

(b) “the same stock or stocks of associated species occur[ring] within the exclusive economic zone and in an area beyond and adjacent to the zone” (Art 63(2)).

Nandan, Rosenne and Grandy^[1] consider that:

Article 63 addresses the problems posed by what are commonly called “transboundary stocks” and “straddling stocks”, that is, respectively, stocks which occur within the exclusive economic zone of two or more coastal states, and stocks which occur both within and beyond the exclusive economic zone of a single coastal State.^[2]

Thus in their view the term “transboundary stocks” refers to Art 63(1) stocks, while the term “straddling stocks” refers to Art 63(2) stocks. The FAO Code of Conduct for Responsible Fisheries seems to take a slightly different view. Thus paragraph 7.1.3 of the Code states that:

For transboundary fish stocks, straddling fish stocks, highly migratory fish stocks and high seas fish stocks, where these are exploited by two or more States, the States concerned, including the relevant coastal States in the case of straddling and highly migratory stocks, should cooperate to ensure effective conservation and management of the resources. This should be achieved, where appropriate, through the establishment of a bilateral, subregional or regional fisheries organization or arrangement.^[3]

For the Code of Conduct to be consistent with Nandan, Rosenne and Grandy, it should logically have included transboundary fish stocks in the reference to “relevant coastal States”.

The term “shared stocks” for the purpose of this report will be taken as meaning stocks occurring in the waters of two or more neighbouring coastal States (whether adjacent or opposite neighbours) but not ranging onto the high seas.

1.2 The legal regime for management of shared stocks

For a stock shared between two or more neighbouring coastal States and not ranging onto the high seas, the regime of Art 63(1) LOSC is appropriate. It states that:

Where the same stock or stocks of associated species occur within the exclusive economic zones of two or more coastal States, these States shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks without prejudice to the other provisions of this Part.

Regarding the term “development”, Nandan, Rosenne and Grandy^[4] state that:

The reference to “development”... relates to the development of those stocks as fishery resources. This includes increased exploitation of little-used stocks, as well as improvements in the management of heavily-fished stocks for more effective exploitation. Combined with the requirement in article 61 of not endangering a given stock by overexploitation, this envisages a long-term strategy of maintaining the stock as a viable resource.

Thus Art 63(1) imposes a duty to “seek... to agree” measures to inter alia ensure the conservation and development of such stocks. Burke states colourfully that “[t]he substantive obligation imposed by Article 63(1) cannot fairly be described as awesome, imposing, or, even, perhaps, very consequential”. Churchill and Lowe^[5] observe that “[n]othing... is said... about management objectives or allocation of the catch among interested States, which are the kinds of things that the States concerned need to agree on if there is to be effective management of shared stocks”.

The provisions of the LOSC on marine scientific research are potentially applicable to the management of shared stocks (see inter alia Arts 246(3), 246(5)(a) and 249 LOSC). The Code of Conduct, though not a binding instrument, is also relevant through both its provisions on fish stocks generally and those more specifically aimed at shared stocks (see paragraphs 7.1.3 [cited above], 7.3.2 and 12.17).

1.3 Management arrangements considered in this report

This report considers 39 arrangements. The arrangements have been chosen on the basis that: (a) they are arrangements for the management of shared stocks; or (b) the management structure they provide could easily be transferred to shared stocks.

The working definition of fisheries management used in this report is that used in the FAO Technical Guidelines for Responsible Fisheries No.4:^[6]

The integrated process of information gathering, analysis, planning, consultation, decision-making, allocation of resources and formulation and implementation, with enforcement as necessary, of regulations or rules which govern fisheries activities in order to ensure the continued productivity of the resources and accomplishment of other fisheries objectives.

Thus some of the arrangements have as their focus conservation and management and others monitoring, control and surveillance.

Annex II contains a summary of each of the 39 arrangements, each summary using standardised headings. The analysis in section 2 of this report is based on these summaries. The 39 arrangements have been selected from a larger pool, discovered by a literature search, an internet search and casual enquiries. (Annex II lists the arrangements in this larger pool, and Annex III contains the references cited in this report and in Annex II.)

The summaries in Annex II, and the analysis that follows, are based on the various arrangements as they are on paper. Commentaries from the literature (or feedback from individuals) have been used to add to some summaries, but this is the exception rather than the rule. Where the analysis that follows identifies strengths and weaknesses, these are based on the arrangement as it appears on paper, rather than as it actually works “on the ground”. A strength on paper could be a weakness in practice; a weakness on paper could be a strength in practice.