Managing living marine resources multilaterally: some threshold questions

D.A. Balton^[375]
Deputy Assistant Secretary for Oceans and Fisheries
The Oceans and Fisheries Directorate
U.S. Department of State
2201 C Street NW, Washington, D.C. 20520, USA
<[email protected]>

1. INTRODUCTION

Ocean life ignores the jurisdictional lines that humans draw in the water. Over the past half-century, human efforts to manage the exploitation of ocean life that cross our jurisdictional lines or occur solely in the global commons have met with decidedly mixed results. As this Conference considers options to improve the management of deep-sea fisheries, it is reasonable to ask what approaches to multilateral management of ocean life have worked so far and which have not worked.

This paper draws on the experience of the United States in negotiating multilateral agreements for the management of ocean life, both binding and non-binding, and in participating in multilateral organizations responsible for implementing these agreements. Reflecting on this experience, this paper considers two threshold questions: (a) whether any new approach for managing deep-sea fisheries should take the form of binding or non-binding measures (or some mix of the two)? And (b), whether such measures should apply in all marine areas or solely on the high seas?

This paper concludes with some brief thoughts on a number of elements that maximize the possibility for effective multilateral management of ocean life, which in an ideal world would be part of any new measures to improve the management of deep-sea fisheries.

2. COMPETITION OR COLLABORATION?

We live in a world of nations that jealously guard their sovereignty. The first instinct of almost every government in the international arena is to protect and promote its own national interests. In approaching the management of shared living marine resources in past decades this instinct has generally led governments to seek to maximize the rights of their own nationals and vessels to exploit the resources in question and to minimize their own obligations to regulate or supervise such exploitation. In other cases, this instinct has led governments not to participate at all in multilateral management efforts or to ignore obligations they may have undertaken.

We need not look hard or far to assess the results. A significant number of the world’s most valuable fish stocks have become depleted through overfishing, habitat degradation, pollution and other causes. Overall, FAO reports that more than 70 percent of ocean fisheries for which data are available are either overfished or are fished at their maximum capacity. In the coming years production from many key fisheries will likely decline. Demand for fisheries products, however, will continue to increase. The prospect of this growing shortfall poses our greatest challenge today.

3. RECENT MULTILATERAL EFFORTS

In the early 1990s, the international community was forced to recognize that the capacity of harvesting operations in many key fisheries had outpaced both the reproductive capacities of those resources as well as the tools used by governments and international organizations to regulate those fisheries. Unresolved jurisdictional disputes between states over certain valuable fish stocks were producing heightened conflict and inhibiting effective conservation.

The 1992 Cancun Conference on Responsible Fishing and the 1992 United Nations Conference on Environment and Development (UNCED) set in motion a series of steps designed to address these problems. At the global level, these included the negotiation of two new treaties to regulate ocean fisheries, the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement (UNFSA). The FAO also adopted a comprehensive non-binding instrument, the 1995 Code of Conduct for Responsible Fisheries. The United Nations General Assembly established a moratorium on the use of large-scale driftnets on the high seas, which became effective in 1993. Other global instruments have included, among others, four International Plans of Action (IPOAs) negotiated and adopted under FAO auspices dealing with fishing capacity, conservation and management of sharks, seabird bycatch and illegal, unreported and unregulated (IUU) fishing.

Several new multilateral regimes - regional fisheries management organizations, or RFMOs, governing ocean fisheries in specific regions have also arisen to join the ranks of those that existed. RFMOs, old and new, have begun to take stronger steps to control fisheries in their respective regions more effectively. Quotas, gear restrictions, closed areas and other controls on fishing are being applied to more and more stocks and are growing increasingly strict. For example, many critical stocks under the purview of the Northwest Atlantic Fisheries Organization remain under moratoria. The International Commission for the Conservation of Atlantic Tunas (ICCAT) has imposed farsighted rebuilding programs for North Atlantic swordfish and Western Atlantic bluefin tuna. Fishing for pollock in the high-seas portion of the Bering Sea has been prohibited under a multilateral agreement for roughly a decade following the collapse of that stock from overfishing in the early 1990s.

Multilateral measures to monitor and control fishing operations at sea have grown much more sophisticated. To list just a few examples, an expanding number of fishing vessels must report catch and effort data, must accept independent observers on board and must use satellite-based vessel monitoring systems (VMS). Some RFMOs now require their members to prohibit fish from being landed or transshipped in their ports in situations where the fish may have been harvested illegally. Mandatory catch certification and trade documentation schemes are proliferating. The use of multilateral trade restrictions, adopted and imposed through RFMOs, is another tool in increasing use. Other trends include calls for the reduction and elimination of subsidies to the fisheries sector and the growth of eco-labeling schemes.

The international community now also accepts, at least in principle, that ocean fisheries must be managed as part of the ecosystems in which they take place. Measures to reduce bycatch of juvenile fish and non-target species are now common features of many multilateral management efforts. RFMOs, more generally, are grappling with the need to take account of the effects of fishing on associated and dependent species. New concerns are arising, particularly at conferences such as this, on the effects of certain fishing methods on benthic ecosystems, including seamounts, oceanic ridges, deepsea corals and other sensitive features of the ocean floor.

4. TO TREATY OR NOT TO TREATY

In considering the possibility of new multilateral measures to regulate deep-sea fisheries, a threshold question arises - should such measures be crafted to be legally binding or should they be adopted in a non-binding format? The answer is far from obvious. As noted above, some of the multilateral measures adopted in recent years have taken the form of treaties or, in the case of certain measures adopted by RFMOs, have otherwise created legally binding obligations, at least for the members of the respective RFMOs. Other instruments, sometimes referred to as contributing to a body of "soft law," have been voluntary in nature, including the Code of Conduct for Responsible Fisheries, the UNGA resolution establishing the high-seas driftnet moratorium and the FAO IPOAs.

Which is best? The UNFSA provides a useful example of the trade-offs inherent in the choice. The UN Conference that developed the UNFSA engaged in considerable debate over whether it should produce a treaty or some non-binding instrument. The majority of delegations, whose views ultimately prevailed, argued that only a binding instrument would command the respect and induce the changes in fishing practices needed to address the problems at hand. A minority of delegations (principally those representing the major high-seas fishing states) favored a non-binding instrument.

Today, the UNFSA is generally recognized to be making a valuable contribution to the management of ocean fisheries in part because its legally binding status gives it a heightened stature in the pantheon of international instruments. Few would deny that governments tend to pay greater attention to commitments contained in instruments that have been approved at the highest levels in their respective systems, i.e. legally binding instruments. The prospect of compulsory and binding dispute settlement, a feature available only in binding instruments, may also enhance compliance with the UNFSA over time.

On the other hand, the decision to craft the UNFSA as a treaty has had the following consequences.

• The negotiation of the UNFSA almost certainly took longer, perhaps considerably longer, than it would have if it were a non-binding instrument. As anyone who has ever participated in multilateral negotiations will acknowledge, the level of debating and word-smithing associated with binding instruments is significantly more intense and usually takes more time to complete.

• The language of the UNFSA almost certainly contains more, perhaps considerably more, caveats and watered-down provisions than it would have if it were a non-binding instrument. Governments are typically less willing to accept strictly worded obligations in binding agreements.

• It took six full years following the adoption of the UNFSA in December 1995 for the treaty to enter force. Had it been crafted as a non-binding instrument, its provisions would have been operative immediately.

• As of this writing, only 32 states are party to the UNFSA. Few of the major high-seas fishing states other than the United States have yet bound themselves to the treaty, although the European Union is reportedly close to becoming a party. Many other states, however, have made no commitment to comply with the UNFSA.

By contrast, the UN General Assembly resolution that established a moratorium on large-scale high-seas driftnet fishing, a non-binding instrument, has been as effective as any treaty in changing fishing behavior. Following adoption of the resolution, governments dismantled the large driftnet fleets that previously operated in the Pacific Ocean. On the other hand, this resolution may be the proverbial exception that proves the rule. The international community adopts numerous non-binding instruments on fisheries every year that seem to have little effect in improving the management of fisheries.

A comparison of the FAO Compliance Agreement and the Code of Conduct for Responsible Fisheries reveals similar trade-offs. The Compliance Agreement, a treaty, was supposed to deal head-on with the phenomenon of the reflagging of fishing vessels to avoid management measures. Prior to its negotiation, governments had already agreed in non-binding instruments (the Cancun Declaration and Agenda 21) to end this practice. However, when confronted with the reality of accepting a binding obligation to prohibit such reflagging, some governments (and the European Union) refused. The negotiators of the Compliance Agreement had no choice but to change course, and ultimately produced a treaty that establishes specific "flag State responsibilities" for vessels fishing on the high seas. Even these obligations, as valuable as they are, remained in legal limbo for almost ten years, as it took that long for 25 states to bind themselves to the Compliance Agreement. Flag states that are not party to this treaty^[376] - and there are more than 190 potential flag states in the world - are not bound by its provisions.

The Code of Conduct for Responsible Fisheries, a non-binding instrument, does not carry the legal force of a treaty such as the Compliance Agreement. Those states that do not abide by it are guilty "only" of a failure to fulfill a moral or political commitment. The Code has nevertheless provided a widely accepted set of standards for the management of all fisheries. All FAO member states (which include the vast majority of states generally) are equally committed to observe the Code. Moreover, there was no "lag time" between its adoption in 1995 and its effectiveness.

In looking ahead to possible new measures to manage deep-sea fisheries, the choice between a binding or non-binding format may not necessarily be an "either/or" proposition. The international community could consider the development of one or more non-binding instruments at the global level to be supplemented or followed by binding measures adopted regionally. This thinking informed the creation of the four FAO IPOAs, non-binding instruments that envision further action at the national and regional levels, some of which should be legally binding.

It must be noted that some existing RFMOs have the competence to adopt binding measures for deep-sea fisheries within their region, including the Northeast Atlantic Fisheries Commission, the Southeast Atlantic Fisheries Organization and the Commission for the Conservation of Antarctic Marine Living Resources. Binding measures adopted by such organizations could take effect relatively quickly, as there is no need in such situations for the prolonged ratification procedures that typically attend the entry into force of treaties.

Another approach might entail the development of non-binding instruments at either the global or regional level as possible preludes to binding instruments at the same level. This worked well in a different arena, that of international human rights, where the UN adopted non-binding declarations that set fundamental standards and later crafted binding instruments on the same subjects.

5. AREAS OF APPLICATION

The deep seas include areas under national jurisdiction as well as the high seas. A second important question is whether any new multilateral measures should cover both areas or should apply only to fisheries on the high seas. Again, the answer is not obvious.

Under international law, coastal states have the power to regulate deep-sea fisheries in waters under their national jurisdiction^[377]. As a legal matter, there is no ‘governance gap’. The high seas, by contrast, are part of the global commons. While all states have the right for their nationals to fish on the high seas and the obligation to regulate them as they conduct such fishing, fully effective measures for deep-sea fisheries on the high seas can be achieved only through multilateral cooperation. To date, such cooperation has left ‘governance gaps’ in a number of critical high-seas regions relative to deep-sea fisheries.

In light of these gaps, one approach would be to focus on the development of measures for the high seas only. This approach might hope or assume that coastal states would act responsibly in adopting comparable measures for the regulation of deep-sea fisheries within areas under their respective national jurisdiction. Indeed, to the extent that the deep-sea fisheries are for straddling stocks, the UNFSA calls for the development and implementation of such compatible measures.

The flag states whose vessels conduct deep-sea fisheries on the high seas may have a different perspective, however. They would likely point out that, if unregulated deep-sea fisheries pose a threat to the fisheries they target and to the broader ecosystems in which they take place, those threats are just as real when unregulated deep-sea fisheries occur in waters under national jurisdiction. They would note, for example, that seamounts located under EEZs are just as vulnerable to overfishing and habitat degradation as seamounts under the high seas. While coastal states have the authority to adopt measures for these fisheries in their own waters, few have actually done so and fewer still are enforcing those measures effectively.

The argument that conservation concerns are just as real on one side of the 200-mile line as the other flows into a second argument based on fairness. Those fishing on the high seas will regard it as inequitable to impose new restrictions on high-seas fishing if coastal states are not prepared to adopt those same restrictions for fishing within their zones. Coastal states already control waters in which more than 90 percent of the total catch of marine fish occurs. To those conducting the relatively small fraction of ocean fishing on the high seas, proposals for further restrictions on their activities may look like just another attempt at the extension of coastal state control.

On the other hand, the pursuit of new measures to regulate deep-sea fishing on both sides of the 200 mile line may significantly delay or even prevent their adoption. Some coastal states regard their sovereign rights and jurisdiction over fisheries in waters under their national jurisdiction as sacrosanct. They are often unwilling to even consider the possibility of accepting new international obligations affecting the management of these fisheries. In the negotiations leading to the UNFSA, many coastal states refused until the end to concede the applicability of that treaty to any waters other than the high seas. Even today, some coastal states have remained non-parties to this treaty because they do not wish to accept the obligations set forth in Articles 5-7 of the UNFSA relating to fisheries in their waters.

Those advocating an approach to improved management of deep-sea fisheries limited to high-seas areas can also point to several important precedents. Article 66 of the 1982 UN Convention on the Law of the Sea, along with regional treaties relating to salmon fisheries in the North Atlantic and North Pacific Oceans, basically prohibit salmon fishing on the high seas. The UNGA driftnet moratorium applies only on the high seas. So, too, does the FAO Compliance Agreement.

6. CONCLUSION: ELEMENTS OF A SUCCESSFUL APPROACH

There may be no ‘right answer’ to either of the important questions posed above. The success of any approach to improve management of deep-sea fisheries will depend primarily on the political will of governments, the vast majority of which have not yet expressed any detailed view on this subject. Until more governments respond in earnest to the concerns that are being raised, primarily by scientific and academic institutions, by environmental organizations and by some fishing interests, these questions will remain largely hypothetical.

In hopes that these concerns will trigger responses by responsible governments, and in hopes that these responses will lead to the adoption of measures to improve the management of deep-sea fisheries, the following might be considered as elements to maximize the chances of success.

i. Sound and independent scientific advice. To succeed, multilateral regimes for managing ocean life must have access to sound scientific advice that is developed and presented as freely as possible from political pressure.

ii. Management measures that respect that advice. A high correlation exists between the stocks that are depleted and those for which scientific advice on fishing limits is ignored. Moreover, instead of erring on the side of caution when scientific information is poor, the common tendency is live for the day and hope for the best.

iii. Equity in the allocation of both rights and obligations. Regimes that balance the competing interests of all participants are likely to be perceived as the most legitimate, which should in turn promote higher levels of compliance with agreed fishing rules. Among the many balances to be found are, (a) those that have historically participated vs. new entrants, (b) coastal states vs. distant water fishing states and (c), developed states vs. developing states. The ICCAT allocation criteria adopted in 2001 demonstrate just how many different interests may need to taken into account.

iv. Strong monitoring, control and enforcement mechanisms. Many tools exist to promote compliance with multilateral measures, as described in the FAO IPOA on IUU Fishing and the related FAO Guidelines on implementation of this IPOA. Finding and applying the right combination of tools in any given fishery is the challenge we face.

v. Controls on capacity. Overall, there are simply too many vessels chasing to few fish, particularly in tuna fisheries. For deep-sea fisheries, we need an assessment of actual fishing capacity and the sense of whether this capacity must be capped or reduced.

vi. Ways to deal with "bad actors". Those vessels that fail to observe multilateral rules, particularly those "free-rider" vessels that fly the flags of states and entities that are not bound by the rules, can completely frustrate well-intended management and conservation efforts. The irresponsible vessel owners and masters in question are facing increasingly determined action by those who play by the rules, but more must be done.