In the discussion to follow, we shall explore the extent to which the management of highly migratory stocks, and that of straddling fish stocks, do, and do not, differ from the management of transboundary stocks. There is one difference, which we wish to emphasize at the outset. While it is a difference of degree, the difference is so great as to constitute a difference in kind. With respect to the cooperative management of transboundary stocks, we stated the cooperative resource arrangement could be undermined by “free riding” non-participants. We gave only limited emphasis to the problem, because there is little evidence of such “free riding” arising from nonparticipating coastal States, and because vessels of DWFSs, undertaking unauthorized exploitation of the transboundary stocks in the coastal State EEZs, are deemed to be engaging in illegal fishing. The coastal States can, under international law, undertake vigorous measures to repel the intruders.
Highly migratory/straddling stocks are, by definition, to be found in the high seas adjacent to the EEZ, as well within the EEZ. Consider a highly migratory or straddling stock subject to cooperative management. Vessels of a State, which is not party to the cooperative resource management arrangement, engaged in exploiting the high seas portion of the stock in a manner contrary to the provisions of the cooperative management arrangement, are deemed to be engaged in unregulated, not illegal, fishing (FAO, IPOA-IUU, 2001, para 3.3.1). In the past, it was very unclear what measures could be taken, under international law, to control unregulated fishing. We shall discuss how the UN Fish Stocks Agreement, plus the FAO IPOA-IUU, are attempting to address the problem.
In any event, the fact that, in the pre-UNFSA era, unregulated fishing was not effectively controlled, meant that pre-UNFSA attempts to manage highly migratory/straddling stocks were plagued by non-participant “free riding”. The consequences of “free riding”, in terms of the economics of the management of any category of shared fish stocks, is straightforward, and is similar to the consequences of non-compliance. If prospective members of a cooperative fisheries management arrangement anticipate that their cooperative management efforts will attract “free riding” non-participants, the prospective members could well calculate that their expected payoffs from cooperation would fall below their respective Threat Point payoffs. Should this be the case, the individual rationality condition for cooperation would not be met, and the cooperative arrangement would be still-born (see: Kaitala and Munro, 1997).
It may be, of course, that those establishing the cooperative resource management arrangement do not anticipate the “free riding”, but are subsequently unpleasantly surprised. In this instance, the cooperative arrangement could well be established, and might well appear initially to be successful. When the members of the cooperative arrangement are unpleasantly surprised by “free riders”, the members of the cooperative management arrangement could then be expected to re-assess their expected payoffs from cooperation, leading to the distinct possibility that the cooperative arrangement would unravel.
The baleful impact of “free riding”, in the pre-UNFSA era, is illustrated by the cases of the Northwest Atlantic Fisheries Organization (NAFO) and the Southern Bluefin Tuna Commission. By 1995, NAFO was beset by many difficulties and was found to be in a state of near paralysis (Bjørndal and Munro, 2003). An important contributing factor to NAFO’s near paralysis was uncontrollable harvesting of the high seas groundfish resources, subject to NAFO management, by vessels flying the flags of non-NAFO participants, i.e. “free riders” (Bjørndal and Munro, ibid.).
In 1994, two coastal States, Australia and New Zealand, and one DWFS, Japan, established the Commission for the Conservation of Southern Bluefin. The three states had become deeply concerned about the overexploitation of the resource.
The cooperative resource management endeavour initially met with success. The success was short lived, however, as the Commission became threatened by breakdown. Two studies on the history of the Commission appeared at the end of the 1990s. While citing many factors, which led to the breakdown, the studies gave particular emphasis to the fact that the three members of the Commission were unpleasantly surprised by extensive “free riding” by numerous non-participating Pacific DWFSs (Cox, Stubbs and Davies, 1999; Kennedy, 1999).
With these preliminary comments and observations in hand, we shall proceed as we did in our review of the management of transboundary fish stocks. We commence with an examination of the underlying legal regime, and then go on to discuss the basic economics of the management of these resources.
In examining the legal regime for highly migratory and straddling stocks, we note that there are two international instruments, which are of prime relevance. They are: the 1982 UN Convention, and the 1995 UN Fish Stocks Agreement[18].
The relevant provisions of the 1982 UN Convention, for the two categories of stocks under discussion, are to be found in Part V, the Exclusive Economic Zone, and Part VII, the High Seas. The drafters of the Convention, in confronting the issue of highly migratory and straddling stocks, were faced with a particularly difficult problem, namely that of reconciling the rights of nations to fish on the high seas, with the rights of coastal States, granted under Article 56 of the Convention, to manage fishery resources within their EEZs. The problem emerged with particular clarity in the case of straddling stocks.
The UN Office of Legal Affairs prepared a document, in anticipation of the UN Fish Stocks Conference, entitled: The Law of the Sea, The Regime for High-Seas Fisheries: Stocks and Prospects (UN, 1992a). The document sets forth the problem succinctly. A coastal State, with a straddling stock, could see its intra-EEZ management measures for the resource rendered useless by unrestrained harvesting of the high seas portion of the resource. With respect to DWFSs, on the other hand, “...having seen coastal States gain control over the resources within 200 miles of the coast, they see these coastal States wishing to extend their jurisdiction beyond 200 miles to the resources that are harvested on the high seas”[19] (UN, 1992a, para. 52).
It should be noted in passing that, at the UN Third Conference on the Law of the Sea in 1982, the management of fisheries on the high seas, and thus the aforementioned reconciliation problem, were not seen as major issues. At the time, it was believed that only 10 percent of the world’s fishable capture fishery resources were to be found on the high seas. Thus, high seas fishery resources were of minor importance, or so it seemed. The ensuing decade was to demonstrate that this lack of concern was misplaced. Straddling and highly migratory stocks did in fact, become the source of serious resource management problems (Bjørndal and Munro, 2003).
In any event, let us first consider straddling stocks. The relevant article in Part V of the Convention, the Exclusive Economic Zone, is Article 63(2), which reads as follows (UN, 1982):
Where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.
The obligation on States exploiting such stocks in the high seas adjacent to the EEZ, DWFSs in particular, is set forth in Part VII, the High Seas. Article 87, the Freedom of the Seas article, states that all States have the freedom to fish in the high Seas “...subject to the conditions laid down in section 2 [of Part VII]” (UN, 1982, Article 87(1)(e)). Within section 2 of Part VII of the Convention lies the key article, Article 116, Right to Fish on the High Seas, which reads as follows (UN, 1982):
All States have the right for their nationals to engage in fishing on the high seas subject to:
(a) their treaty obligations;
(b) the rights and duties as well as the interests of coastal States provided for, inter alia, in Article 63, paragraph 2, and Articles 64 to 67; and
(c) the provisions of this section.
Thus, DWFSs exploiting the high seas segments of straddling stocks are required by the Convention to recognize the rights, duties and interests of the relevant coastal States, with explicit reference being given to Article 63(2). Hence, the “reconciliation” is such that, while DWFSs continue to have the right to fish on the high seas, this right is circumscribed to no small degree.
Next let us note the following with regards to Article 63(2). First, cooperation is called for, with respect to conservation of the resources, in the adjacent high seas alone. No reference is made regarding cooperation for conservation purposes within the EEZ. Secondly, Article 63(2), in terms of generality, bears a similarity to Article 63(1), in that the article offers little, or no, guidance on how the problems involved in regulating straddling stocks are to be addressed.
Finally, as to the duty of coastal States and DWFSs to cooperate, it can be observed that the duty to cooperate under international law has a substantive content, which may be expressed in terms of a general obligation to cooperate, i.e. duties to notify, to consult and to negotiate[20]. It is also generally accepted under international law that the duty to cooperate does not involve the duty to reach an agreement, provided that the cooperation has been undertaken in good faith.
Highly migratory species (stocks) in Part V of the 1982 UN Convention are covered by Article 64, which reads as follows (UN, 1982):
1. The coastal State and other States whose nationals fish in the region for the highly migratory species listed in Annex 1 shall cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. In regions for which no appropriate international organization exists, the coastal State and other States whose nationals harvest these species in the region shall cooperate to establish such an organization and participate in its work.
2. The provisions of paragraph 1 apply in addition to the other provisions of this Part [V].
Article 116, of Part VII, requires that States harvesting highly migratory stocks on the high seas adjacent to the EEZ take into account the rights, duties and interests of relevant coastal States, as in the case of straddling stocks. In so doing, the Article makes specific reference to Article 64 (UN, 1982 Article 116(b); UN, 1992a, para. 70).
Having said all of this, the most striking aspect of Article 64 is that paragraph 1 of the article is much stronger than is Article 63(2). Article 64(1) calls upon coastal States and DWFSs to cooperate for the purpose of ensuring the conservation and optimal utilization of the resource within, as well as without, the EEZ.
William Burke (1994) argues that Article 64(1) imposes a constraint upon the coastal State, in its intra-EEZ management of highly migratory fish stocks, which it does not face in its intra-EEZ management of other fish stocks. While the coastal State retains the final decision making authority in exercising its sovereign rights over highly migratory fish stocks within its zone, “it cannot lawfully exercise that authority ... until it has discharged its duty to cooperate with other coastal States and with distant water fishing nations to ‘ensure conservation and promote optimum utilization’” (Burke, ibid., p. 218).
The development of a cooperative resource management regime is necessarily a process of negotiation and bargaining. The clear implication of Article 64(1) (given that Burke’s interpretation is valid) is that DWFSs may (although not necessarily will) have an influence upon the intra-EEZ management regime for highly migratory stocks.
The language of Article 64(1), and the constraint imposed upon coastal States, reflected the insistence of some States that the coastal States did not have the right to claim exclusive jurisdiction over highly migratory stocks within the EEZ (UN, 1992a, para 53). Burke maintains that highly migratory stocks should be seen as a sub-set of straddling stocks, which were placed in a separate category in the Convention, for political, rather than for biological, reasons (Burke, ibid.) [21].
The leading exponent of the view that coastal States have no exclusive jurisdictional claim over highly migratory species within the EEZ was the United States. The position of the United States changed, however, after the close of the UN Third Conference on the Law of the Sea. In the early 1990s, the United States revised its Magnuson Fishery Conservation and Management Act, with one of the revisions concerning highly migratory stocks. The nature and substance of the revision was that the United States claimed jurisdiction over highly migratory stocks within its 200 mile zones, effective January 1, 1992 (Burke, ibid.; UN, 1992a). With this revision of the Magnuson Act, the rationale, for placing highly migratory stocks into a special category, on political grounds, would seem to have been undermined.
Hence, it is not at all obvious that, following this revision of the Magnuson Act, highly migratory stocks should have been regarded as other than straddling stocks, like other straddling stocks, or that the Article 64(1) constraint on coastal States should have continued to be taken seriously. Be that as it may, the language of Article 64(1) was to carry over to the UN Fish Stocks Agreement.
The 1982 UN Convention, as we have seen, admonishes coastal States and DWFSs to cooperate in the conservation and management of straddling/highly migratory stocks. Moreover, DWFSs are called upon to respect the rights, duties and interests of coastal States with respect to these resources. The relevant articles - Articles 63(2), 64, 87, 116-120 - were, in addition, buttressed by the dispute settlement mechanisms provided by the Convention. Nonetheless, the 1982 UN Convention contained within it a serious weakness, as it pertained to the effective cooperative management of these two categories of shared fish stocks.
Under the aforementioned set of articles, the rights, duties and obligations of coastal States to the high seas portions of straddling/highly migratory stocks, as opposed to those of DWFSs, were opaque (Bjørndal and Munro, 2003). The 1992a UN document, The Law of the Sea, The Regime High-Seas Fisheries: Status and Prospects, stresses the fact that problems of management of the two categories of fish stocks requires “an enhanced understanding of the nature of the ‘right’ that States have for their nationals to fish on the high seas, and the relationship of this right to the rights, duties and interests of the coastal State referred to in Article 116” (UN, 1992a, para. 70). This lack of clarity did, in turn, make it very difficult to establish effective cooperative regimes for these resources, with one reason being the near inability of cooperating States to restrain “free riding” by other States. The consequences of non-cooperative management have proven to be no less damaging for straddling/highly migratory fish stocks, than they have for transboundary fish stocks.
The 1992a UN document provides a long list of straddling stock type of fishery resources, in which effective cooperative management was, at the time, obviously lacking. Included in the list are the groundfish resources on the Grand Bank of Newfoundland, subject to Northwest Atlantic Fisheries Organization (NAFO), the pollock resources in the Bering Sea “Doughnut Hole”, jack mackerel resources off of Chile and Peru, and orange roughy resources off the South Island of New Zealand (UN, 1992a). This list of mismanaged high seas resources is far from being exhaustive.
The demonstrably inadequate nature of the management of many straddling/highly migratory stocks, throughout the world came to the attention of 1992 UN Conference on Environment and Development. The Conference responded through its document, Agenda 21, which called upon the UN to mount a conference on the straddling/highly migratory stocks conservation and management issue (UN, 1992b, para. 17.49). The UN General Assembly responded, in turn, by convening the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. The Conference held its first session in 1993, and concluded its deliberations in 1995, when it brought forth the UN Fish Stocks Agreement, which, as noted, came into force in December, 2001.
The purpose of the 1995 UN Fish Stocks Agreement is in no sense to replace any part of the 1982 UN Convention. Rather, the overarching objective is “to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of the Convention”[22]. One might say that the 1993 UN Fish Stocks Agreement was, and is, designed to buttress the 1982 UN Convention.
The Agreement creates a detailed framework for the management and conservation of these stocks. It also goes further and places the conservation and management within a wider context of the need to avoid adverse impacts on the marine environment, of the preservation of marine diversity, and of the integrity of the marine ecosystem[23].
The Agreement applies to the conservation and management of straddling and highly migratory fish stocks beyond the areas of national jurisdiction, unless otherwise provided[24]. This qualification is, in fact, of considerable importance and consequence.
The main elements of the 1995 UN Fish Stocks Agreement are:
1. The Agreement requires coastal States and DWFSs to ensure that the conservation and management measures, which are created within the EEZ, and on the high seas, are compatible.
2. It sets out general principles for the conservation and management of straddling fish stocks and highly migratory fish stocks, including the precautionary approach, which Parties to the Agreement are to apply on the high seas as well as within the EEZ.
3. The Agreement includes detailed rules on the establishment and operation of sub-regional or regional fisheries management organizations or arrangements (RFOs, hereafter)[25], which are to establish conservation and management measures on the high seas. Parties to the Agreement are obliged to join RFOs, or agree to comply with the measures they create. If they do not do so, they will not be allowed to fish in the areas where these management measures apply. It can be argued that the RFO regime constitutes the heart of the Agreement[26].
4. The Agreement specifies the duties of the flag States with respect to their vessels fishing on the high seas.
5. The Agreement introduces innovative provisions on enforcement for non-flag states, as well as providing for port-state jurisdiction in respect of fishing vessels.
6. The Agreement contains detailed provisions on peaceful dispute settlement.
There are several aspects of the 1995 UN Fish Stocks Agreement that are of particular interest, which we wish to highlight. They are:
I. The duty to cooperate
The duty to cooperate is an essential ingredient of the 1995 UN Agreement. A range of obligations to cooperate apply to straddling fish stocks and highly migratory fish stocks. Cooperation in an initial phase is likely to start with a series of negotiations. Thus, the considerations referred to in the context of transboundary fish stocks are also relevant in the present context[27]. The 1995 UN Agreement offers elements for specifying the duty to cooperate in Article 7(3), where it provides that: “In giving effect to their duty to cooperate, States shall make every effort to agree on compatible conservation and management measures within a reasonable period of time” (UN, 1995, Article 7(3)). Furthermore Article 8(2) focuses on the need for States to engage in consultations “in good faith and without delay”, where a threat of over-exploitation exists or where a new fishery is being developed. While the 1995 UN Agreement allows for cooperation to take place directly (Article 8(1)), it is clear that the Agreement displays a strong preference, as Part III of the Agreement makes evident, for cooperation being effected through RFOs (UN, 1995). Indeed, the Agreement could be seen as a set of globally agreed upon principles, under which RFOs should be established and operate (Orrego Vicuña, 1999)[28].
II. The issue of compatibility of conservation and management measures
Article 7 attempts to provide a balance between the interests of coastal States and DWFSs, and to reduce or eliminate conflicts, which may arise between measures taken within an EEZ, and those which apply in the adjacent high seas area, through a strategy based on cooperation. Article 7(1) targets straddling fish stocks, in particular, and calls on relevant coastal States and states whose nationals fish for such stocks in the adjacent high seas, to seek, “either directly or through the appropriate mechanisms for cooperation provided for in Part III, to agree upon the measures necessary for the conservation of these stocks in the adjacent high seas area”. (UN, 1995, Article 7(1)(a)). While targeting straddling stocks in particular, Articles 7(1) does reflect the language of Articles 63(2) and (64) of the 1982 UN Convention, and restates the distinction between straddling and highly migratory stocks, to be found in the Convention (see: UN, 1995, Articles 7(1)(a) and 7(1)(b)).
Article 7(2) puts forward the basic obligation to achieve compatibility between the conservation and management measures established for the high seas and those adopted for areas under national jurisdiction “in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety” (UN, 1995, Article 2). To this end, coastal States and States fishing on the high seas have a duty to cooperate for the purpose of achieving compatible measures in respect of such stocks, and to take into account a variety of factors detailed in Articles 7(2)(a)-(e) and ensure that such measures do not result in any harmful impact on the living marine resources as a whole (UN, 1995, Article 7(2)(f)). The factors, which States are to take into account, include the extent to which stocks are found and fished for in areas under national jurisdiction, the biological unity and characteristics of fish stocks, and “the respective dependence of the coastal States and the States fishing on the high seas on the stocks are concerned” (UN, 1995, Article 7(2)(e)).
According to Article 7(3), “States shall make every effort to agree on compatible conservation and management measures within a reasonable period of time”. If no agreement can be reached within a reasonable period of time, Article 7(4) allows any of the States concerned to invoke the procedures for the settlement of disputes provided for in Part VIII.
Pending agreement on compatible conservation and management measures, the States concerned have the duty “to make every effort to enter into provisional arrangements of a practical nature” (UN, 1995 Article 7(5)). In the event that they are unable to agree on such arrangements, any of the States concerned may, for the purpose of obtaining provisional measures, invoke additional procedures for the settlement of disputes provided for in the Agreement.
III. Mechanisms for cooperation, RFOs - the issue of participation
Part III of the 1995 UN Agreement commences with the central Article 8 on Cooperation for Conservation and Management. As already observed, while Article 8 allows States to choose the level at which to cooperate, the Article does, nonetheless, appear to express a marked preference for RFOs. Moreover, Articles 9 through 13 are all concerned with RFOs.
Linked to the geographical scope of a RFO, is the question of participation: which States, or other actors, have rights or duties to participate in a RFO? At a first glance the type of stocks and geographical range may appear to have some bearings on these rights and duties. However, in the case of straddling stocks, because of the (qualified) freedom of fishing on the high seas, which all States are entitled to exercise, the issue becomes more complex[29]. Furthermore, as Article 8(3) of the 1995 UN Agreement reads, the duty to cooperate does not automatically translate into a duty to participate in an already existing RFO, or to establish one (Molenaar, 2000). Rather, “States fishing for the stocks on the high seas and relevant coastal States shall give effect to their duty to cooperate by becoming members of such organization or participants in such arrangement, or by agreeing to apply the conservation and management measures established by such organization or arrangement” (UN, 1995, Article 8(3)). As an alternative to becoming member (i.e. to participate) States (coastal states and those fishing for such stocks) can also apply the RFO’s conservation and management measures.
A major critical issue concerning Article 8 is the notion of “real interest” as it is used in paragraph 3, which reads as follows:
“States having real interest in the fisheries concerned may become members of such organization or participants in such arrangement. The terms of participation in such organization or arrangement shall not preclude such States from membership or participation, nor shall they be applied in a manner which discriminates against any State or group of States having a real interest in the fisheries concerned”. (UN, 1995, ibid.)
The term is in all probability too vague to provide a ready answer to the question of which States will meet this test. In borderline situations, it can be expected to give rise to controversy, as has already happened in the course of the negotiations leading up to the Western and Central Pacific Fisheries Convention (WCPFC, 2000).
Indeed, the privileged position given to those states in Article 8, paragraph 4, namely that: “Only those States which are members of such an organization or participants in such an arrangement, or which agree to apply the conservation and management measures established by such organization or arrangement, shall have access to the fishery resources to which those measures apply” (UN, 1995, Article 8(4)), will very probably lead to arguments, based on the principle of Pacta Tertiis, that this provision can only apply to those States which have become Parties to the 1995 UN Agreement. It is one of the most basic rules of international law that a treaty binds only states which are party to it. The same question arises with regard to the application of Part IV on Non-members and Non-participants[30]. For States arguing that the 1995 UN Agreement does bind non-parties, it will be necessary that these provisions have achieved such widespread acceptance so as to have become part of customary international law[31].
A closely related issue is that of New Members or Participants, that is to say States, which did not participate in the establishment of the RFO, but which are seen to meet the test of “real interest”, and which now wish to participate in the RFO. Articles 8, 10 and 11 make it very clear that members/participants of an existing RFO must be prepared to accommodate new entrants (Örbech, Sigurjonsson, and McDorman, 1998). The question then becomes the conditions under which New Members/Participants are to be brought into the RFO. Article 11 lists various considerations, which existing RFO members/participants are to take into account upon receiving applications from prospective new members/participants. These include inter alia:
the status of the relevant stocks and the existing level of fishing effort in the fisheries;
the needs of coastal fishing communities dependent mainly on fishing for the stocks, and
the needs of coastal States whose economies are overwhelmingly dependent on the exploitation of living marine resources (UN, 1995, Articles 11(a), (b), (c), (d), (f)).
IV. Mechanism for cooperation, RFOs - the issue of geographic competence
Article 3 of the 1995 UN Agreement states, as we have noted, that the Agreement is to apply to the two categories of stocks beyond the areas of national jurisdiction, unless otherwise provided. Article 7(1)(b), with reference to highly migratory stocks, states clearly that cooperation is to be effected for conservation and management purposes, both within and without the areas of national jurisdiction. We are left, then, with the question of straddling stocks.
It has been seen that Article 7 calls for ensuring the compatibility of the management regimes for straddling stocks, within and without, the zone of national jurisdiction. Örbech et al. (1998) argue that, while there is nothing in the Agreement, which explicitly allows a RFO to encroach upon the coastal State’s sovereign rights to manage a straddling stock within its EEZ, there is, at the same time, nothing in the Agreement, which prevents the geographical competency of a RFO, concerned with the management of a straddling stock, from extending to the EEZ (Örbech, ibid.).
Örbech et al. (1998) talk in terms of two approaches to achieving compatible conservation and management measures, which they refer to as bottom up and top down approaches. With a bottom up approach, the coastal State alone determines the conservation and management measures for the straddling stock within the EEZ. Since the comparable measures for the resource in the adjacent high seas must be compatible with those established within the EEZ, the implication is that the coastal State establishes the conservation and management measures for the entire resource. Under a top down approach, the RFO members as a group have the responsibility for determining the conservation and management measures for the entire resource(s) (Örbech et al., ibid.). The implication is that DWFS members of the RFO would, or at least might, influence the intra-EEZ conservation and management regime of the resource.
Örbech et al. argue that Article 7(1) appears to favour the bottom up approach, while Article 7(2), on the other hand, appears to favour the top down approach. The authors conclude that the Agreement permits each individual RFO to choose a bottom up, or top down, approach, at its discretion (Örbech et al., ibid.).
V. Duties of the flag State
Part V, starting with Article 18, lays down the duties of the flag states that are parties to the Agreement. It establishes the basic concept of flag state responsibility over vessels fishing on the high seas and outlines detailed provisions on the specific obligations to which a flag state must agree and implement before its nationals are permitted to fish on the high seas and in areas managed by RFOs. This provision is worded generally: it is not limited to straddling fish stocks or highly migratory stocks. Some argue that it reflects customary international law.
VI. Compliance and enforcement
Provisions concerning compliance and enforcement raise many “new” points. Of particular interest is Article 21 on “Sub-regional and regional cooperation in enforcement”, which applies only to the State Party. A very much debated issue relates to the boarding and inspection powers of States parties with respect to vessels flying the flags of other States parties in any high seas area covered by a subregional or regional fisheries management organization or arrangement. Although the concept is not new[32], many DWFSs are critical of these provisions, and are critical in particular of the implementation of the enforcement procedures, spelled out in Articles 20-21, with regards to non-members of RFOs (UN, 1995, Articles 20 and 21).
We commence by noting that we are blest with an important simplification. There is no meaningful distinction between the economics of the management of straddling fish stocks and that of highly migratory fish stocks. Recall Burke’s (1994) argument that the distinction between the two categories to be found in the 1982 UN Convention rested upon political, not biological, considerations. In terms of the economics of resource management, it is appropriate to regard highly migratory stocks as being but a sub-set of straddling stocks.
In the introduction to the economics of the management of transboundary stocks, the point was made that the economics of transboundary stocks management, which draws heavily upon the theory of strategic behaviour, provides the foundation for the economics of straddling/highly migratory stocks management. The need to draw upon the theory of strategic behaviour (games) is now, if anything, stronger. With straddling/highly migratory stocks, one has to contend, not only with strategic interaction between and among coastal States, but also with strategic interaction between and among coastal States and DWFSs.
In analysing the economics of straddling/highly migratory stocks management, economists commence with the economics of transboundary stock management, and then ask what modifications, if any, must be made to accommodate the particular characteristics of straddling/highly migratory fish stocks. In the case of a limited number of such stocks, no modifications whatsoever are required (Bjørndal and Munro, 2003).
One part of this question can be answered quickly. The economic analysis of the non-cooperative management of straddling/highly migratory fish stocks differs not at all from the economic analysis of the non-cooperative management of transboundary fish stocks. Except in unusual circumstances, non-cooperative management of straddling/highly migratory fish stocks will lead to the resources being mismanaged from society’s point of view, and will do so for exactly the same reasons that noncooperative management leads to the mismanagement of transboundary fish stocks - the “Prisoner’s Dilemma” once again.
It has been argued that the 1982 UN Convention (Part VII, Section 2 in particular) led to the result that, prior to the 1995 UN Fish Stocks Agreement, the rights, duties and obligations of coastal States to the high seas portions of straddling/highly migratory stocks, as opposed to those of DWFSs, were opaque. This opaqueness virtually ensured that the resources would be managed in a non-cooperative manner. It is not to be wondered at that the 1992 UN document, The Law of the Sea, the Regime for High-Seas Fisheries (UN, 1992a) did, as we have seen, list case after case of such resources, which were clearly overexploited.
One of the cases cited in the UN document illustrates our point with particular clarity. The case is that of Alaska pollock, historically the largest single species harvested in the North Pacific, large concentrations of which are to be found in the Bering Sea (FAO, 1994). In the Bering Sea, there exists a high seas enclave between the Russian and American zones, the “Doughnut Hole”. The pollock resources in the Doughnut Hole are, without question, straddling stocks (FAO, ibid.), which were exploited by the two coastal States, and a number of DWFSs. Cooperative management of the straddling stocks was non-existent. Non-cooperative management led to the Doughnut Hole pollock fishery becoming a “classic” open access one. The consequence was that the pollock resources therein were more than overexploited; they were plundered (Balton, 2001; FAO, ibid.) [33].
One can, without fear of contradiction, state the following. The overexploitation of straddling/highly migratory fish stocks worldwide, which provided the rationale for the UN Fish Stocks Conference, bears powerful testimony to the predictive power of the economic analysis of the non-cooperative management of such resources (Munro, 2000).
It is in cooperative resource management that distinctions between transboundary and straddling/highly migratory fish stocks emerge. There are three features distinguishing the cooperative management of straddling/highly migratory fish stocks, from that of transboundary fish stocks, which are particularly striking. They are:
1. Absolute number of participants: the number of participants in the typical cooperative transboundary fishery management regimes is small. One can, in analysing the economics of the management of these resources, usually make do with two player models. In the case of straddling/highly migratory fish stocks, involving cooperation among coastal States and DWFSs, one must allow for the possibility that the typical RFO will have a substantial number of participants. Restricting the economic analysis to two player models is simply not acceptable. Having said this, however, let it be conceded that this distinguishing feature is one of degree[34].
2. Exploitation of the resource(s) by States not party to the cooperative agreement: in the introduction to this section, we emphasized the problem of “free riding” by non-participants to the cooperative arrangement, the importance of which arises from the fact that the relevant resources are to be found, in part, in the high seas. The 1995 UN Fish Stocks Agreement attempts to address this problem primarily through Article 8, which states, as we have seen, that only States which are members of a RFO, or which agree to abide by the conservation and management measures of the RFO, shall have access to the highly migratory/straddling stocks in question (see, as well, Articles 20 and 21). If all relevant States were to honour these provisions of the Agreement, the “free rider” problem would be gone. There remains, however, an important reason for concern. States, which ignore the provision of Article 8, and engage in exploiting the high seas segments of stocks under RFO management, in a manner incompatible with the RFO management regime, are, as we pointed out earlier, deemed to be engaging in unregulated, as opposed to illegal, fishing. The action, which members of the RFO could take to deal with the unregulated fishing, is less clear than the action, which they could take if confronted with illegal fishing[35]. The IPOA-IUU attempts to address this problem. It will be argued that, how this problem comes to be addressed in the future, could have a profound impact on the sustainability of the RFO regime, through time.
3. Nature and number of participants through time: in a cooperative transboundary fishery management regime, the nature and number of participants can be expected to remain constant through time. We have, it is true, cited the case of the Baltic Sea, where the nature and number of participants have undergone significant change over time. The case is, however, highly exceptional. In a cooperative straddling/highly migratory fishery regime, on the other hand, some of the participants in the RFO (or equivalent thereof) will be DWFSs, the fleets of which are nothing, if not mobile. Thus, conceivably, a DWFS, originally a participant in a RFO, could withdraw. Of much greater importance, a DWFS, not a founding, or “charter”, member of the RFO, may join at a later stage. It will be recalled that, under the 1995 UN Agreement, “charter” members must be prepared to accommodate new entrants (see: UN, 1995, Articles 8,10 and 11). Moreover, the nature and number may be influenced by the interpretation of ‘real interest’, discussed in the preceding section. It is the inconstancy and uncertainty surrounding the number and nature of participants in the cooperative resource management arrangement, which probably most sharply distinguishes the cooperative management of straddling/highly migratory fish stocks from that of transboundary fish stocks (Munro, 2000).
Before dealing with these three distinguishing features, let us deal with a preliminary issue, namely what we might term the locus of resource management power within the RFO. In the previous section, under the heading of the issue of the geographical competence, we referred to the Örbech et al. (1998) two approaches - bottom up vs. top down - to achieving compatibility between the conservation and management regime within the EEZ, and that in the adjacent high seas. In the bottom up approach, all of the resource management powers are concentrated in the hands of the coastal State(s), while in the top down approach, the resource management powers are shared between the coastal States and the DWFSs. Figures 1 and 2 provide us with some insight into what is implied by the two approaches. It should surprise no one that it is essentially a matter of relative bargaining power.
Suppose, in order to simplify our example, that the RFO has but two members, a coastal State (Player I in Figures 1 and 2), and a DWFS (Player II). The bottom up approach is the equivalent of an outcome, in which b (the bargaining parameter) is equal to 1, i.e. the bargaining power lies exclusively with the coastal State. The top down approach is the equivalent of an outcome in which: 0 £ b < 1, i.e. some of the bargaining power rests with the DWFS.
Observe, however, that the top down approach outcome covers a very wide range. The outcome can vary from one in which the coastal State has the dominant influence over the management regime (b is only slightly less than 1), to one in which the coastal State’s sovereign rights, granted under the 1982 UN Convention Article 56, are no more than a legal fiction.
With these preliminary matters out of the way, let us turn and consider the questions of number of participants, unregulated fishing, new members and the nature of “real interest”.
Number of participants or members
Some straddling/highly migratory stock cooperative resource management arrangements can be expected to have a very large number of participants indeed. In certain cases, the extent of the migration of the resource(s) may be so great that effective management may call for cooperation, not only within RFOs, but between, or among, RFOs as well. An example is provided by a case study, presented to the Norway-FAO Expert Consultation on a North Atlantic redfish resource. The migration of the resource is so extensive that management of the resource requires cooperation between the North-East Atlantic Fisheries Commission (NEAFC) and the Northwest Atlantic Fisheries Organization (NAFO) (Thompson, 2003).
As a general proposition, the greater the number of players the more difficult it is to achieve effective compliance. With a large number of players, it becomes easier for individual players to defect, without serious risk of detection (Hannesson, 1997; Lindroos, 2002). The obvious requirement is that the RFO be established within a legal regime that has sufficient strength, and powers of dissuasion, to deter any member tempted to defect. The theory of games demonstrates very clearly that, if a strong legal regime does not exist, if one has to rely solely upon the good will and honesty of the players, then the number of players, which a cooperative management promising stability can support, is depressingly small, in some cases no more than two (see, for example: Pintassilgo, 2003; Lindroos, 2002).
Numerous other complexities arise. As well as being concerned with the possibility of complete non-cooperation, of players competing with one another on an individual basis, one has also to be aware of the possibility of partial cooperation, of players forming sub-coalitions, and of those sub-coalitions then competing with one another. The full benefits of cooperation are, of course, achieved, when the players form a single coalition, referred to as the Grand Coalition. In order for the Grand Coalition to be stable, it is not enough that each individual player receives a payoff at least as great as it would under competition. There must, in addition, be assurance that no sub-coalition would be better off by standing on its own, and then refusing to cooperate with the rest.
Unregulated fishing and “free riding”
Uncontrolled unregulated fishing brings with it the threat of rampant, “free riding”, by non-RFO participants (or adherents). As we have noted, it is easy to demonstrate, with the aid of game theory, that “free riding” can readily undermine a RFO. It is also easy to demonstrate that, if such “free riding” can be limited only by persuading non-participants to join the RFO voluntarily, the number of players, which a Grand Coalition is likely to be able to support is decidedly modest (often no more than two). With a large number of players, “free riding” becomes too easy, and too attractive (Pintassilgo, 2003; Lindroos, 2002).
In the case of straddling/highly migratory stocks, “large numbers”, we have repeatedly emphasized, can be expected to be the rule, not the exception. The implications are obvious. If the RFO regime is to be sustainable through time, effective implementation of the FAO IPOA-IUU is not simply desirable. It is mandatory.
An example of the measures being advocated by the IPOA-IUU, which RFO members could use to curb unregulated fishing, consists of product certification[36].
Under this measure, RFO members would agree to ban imports of fish, and fish products, not certified to have been harvested by acceptable means. Fishing in an unregulated manner would be deemed to be highly unacceptable.
Japan, to take a country example, has reporting requirements (including area of capture) for all imports or transportation of tunas into Japan by boat (Wessells et al., 2001). These requirements could be used to bar tuna harvested on an unregulated basis in the high seas of the Western and Central Pacific (Wessells et al., 2001). Japan is a signatory to the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific (WCPFC, 2000), which is providing the framework for an emerging Western and Central Pacific RFO.
The new member and “real interest” problems Considerable time and attention was devoted to the New Member and “real interest” problems, at the Norway-FAO Expert Consultation. Participants in the Consultation were in agreement that, of the issues, upon which they were called to discuss and analyse, none were more difficult than these two. (FAO, 2002a).
The 1995 UN Agreement requires that “charter” members of a RFO must be prepared to accommodate New Members/Participants, unless, of course, the prospective new entrants refuse to abide by the terms of the RFO management regime. Furthermore, according to Örebech et al. (1998), the New Members/Participants, “must be offered just and reasonable shares of the TAC available under a [RFO] management plan” (Örebech et al., 1998, p. 123).
The question of the terms and conditions, under which New Members/Participants are to be admitted, including, inter alia, what constitutes just and reasonable shares of the TAC, is of direct relevance to the economics of the management of straddling/highly migratory stocks. The reason is simple. The terms and conditions can affect the stability of the cooperative management regime.
Several years ago, Kaitala and Munro (1997) demonstrated the following. If just and reasonable implies that New Members/Participants, upon joining a RFO, should receive, at no further cost as it were, shares of the Total Allowable Catch, or the equivalent, on a pro-rata basis, then, when planning is undertaken for the establishment of a RFO, prospective “charter” members could well calculate that their expected payoffs from cooperation would fall below their respective Threat Point payoffs. Hence the RFO would be stillborn.
The aforementioned interpretation of just and reasonable poses the threat described, because it may give rise to a type of “free rider” problem, different from, and more subtle than, any we have yet encountered. This new type of “free rider” problem has nothing whatsoever to do with unregulated fishing, with refusing to participate in the RFO.
The Kaitala-Munro argument can be explained in terms of the following example. Suppose that a hitherto overexploited straddling or highly migratory stock comes under the management of a RFO consisting of coastal State V, and three DWFSs, W, X and Y. The four “charter” members undertake the cost and sacrifice of rebuilding the resource over, let us say, a seven year period. In the eighth year, the four are in a position to enjoy a return on their resource investment, through harvesting. At the beginning of the eighth year, a prospective new member, DWFS Z, appears. It demands access to the RFO, agrees to abide by the resource management rules, but demands, “free of charge”, a pro-rata share of the harvest, and by implication, a pro-rata share of the net economic returns from the fishery. If DWFS Z’s demands were acceded to, Z would effectively be a “free rider”. Having incurred none of the costs and sacrifices of investment in the resource, it will enjoy, at no cost, a pro-rata share of the return on the investment. A straightforward application of game theory demonstrates that the impact of this new form of “free riding” is no different from the impact of the “free riding” associated with unregulated fishing. Anticipation by “charter”, or prospective “charter”, members of a RFO of extensive “free riding”, of either form, could lead the “charter” members to conclude that they would be better off by refusing to cooperate (Kaitala and Munro, ibid.).
The Norway-FAO Expert Consultation was presented with two examples of attempts by RFO (or RFO like) bodies to address the New Member issue. The attempts are remarkably similar.
The first of these bodies is NAFO. At its 21st Annual Meeting (1999), NAFO adopted the following resolution to guide the expectation of future members regarding fishing opportunities within the NAFO regulatory area (cited in FAO, 2002a, para. 61):
1. NAFO is an open organization. Non-members may join the Organization by depositing an instrument of accession in accordance with Article XXII of the Convention. In accordance with Article IV of the Convention, all Contracting Parties are members of the General Council.
2. Should any new member of NAFO obtain membership in the Fisheries Commission, in accordance with Article XIII (1) of the Convention, such a new member should be aware that presently, and for the foreseeable future, stocks managed by NAFO are fully allocated, and fishing opportunities for new members are likely to be limited, for instance, to new fisheries (stocks not currently allocated by TAC/quota or effort control), and the “Others” category under the NAFO Quota Allocation Table.
The second body is NEAFC. NEAFC had prepared a discussion paper entitled, “Indications to Guide the Expectations of Interested Non-Contracting Parties of NEAFC”, which contains both a “general”, and an “individual”, policy. Included in the “general” policy is the following (cited in FAO, 2002a, para. 62):
1. New members will participate, on the same basis as existing Contracting Parties (CPs), in future allocations of stocks which are unregulated at the time when the application is made.
2. New members who were previously “Co-operating NCPs” will “carry with them” part of the relevant Co-operative quota.
3. New members will be able to fish stocks, which are regulated when the application is made. However, such fishery can only be conducted on Others-quotas established for this purpose.
A prospective new member can request to be treated as a special case, i.e. on an “individual” basis. If the “CPs” are agreeable to such special consideration, negotiations would then commence (FAO, 2002a).
In any event, it is quite evident that NAFO and NEAFC are both taking, with great seriousness, Article 11(a) of the 1995 UN Agreement, which admonishes existing members of a RFO, when preparing to accommodate new entrants, to take into account the status of the relevant stocks and existing fishing effort. To be blunt, a just and reasonable share of the TACs for new entrants is interpreted largely as being what is left over.
There is, of course, an alternative. The alternative is to allow prospective new entrants to buy quota from existing RFO members, in much the same way that a prospective new entrant to a domestic ITQ fishery would offer to buy quota from existing ITQ holders. The alternative was discussed at the Norway-FAO Expert Consultation. The Report states: “If ... it were possible for prospective New Members to purchase quotas from existing members of RFMOs [RFOs], this would serve to ease the problem of quota allocation to New Members” (FAO, 2002a, para 63)[37].
With respect to the problem of ‘real interest’, one aspect of this problem can have implications for the stability of RFOs, similar to that of the New Member/Participant problem. The aspect relates to whether a State professing a “real interest” in the fishery is to look forward to entering the RFO as a “charter member”, or at a later stage as a New Member. There are obvious advantages to being a “charter member”.
It will be recalled that Article 8(3) states that “... States having a real interest in the fisheries concerned may become members of such organizations ‘i.e. RFOs’” (UN, 1995). The Dutch legal expert, Erik Molenaar (Molenaar, 2000), argues that States/entities having a “real interest” in the relevant fisheries can be taken to include the following categories:
(i) coastal States and DWFSs currently engaged in active exploitation of the fisheries;
(ii) DWFSs, which are not currently engaged in exploiting the fisheries, but which had done so in the past, and which would now like to re-enter the fisheries;
(iii) DWFSs, which had never exploited the fisheries, but which would now like to do so.
Article 8(5) of the Agreement, discusses the establishment of new RFOs. The paragraph calls upon States falling within Category (i), alone, to commence the establishment. Article 9(2) states that “States cooperating in the formation of a ... regional fisheries management organization [Category (i) States] ... shall inform other States which they are aware have a real interest in the work of the proposed organization [Category (ii) and (iii) States] ... of such cooperation” (UN, 1995). Molenaar maintains that one can infer from all of this that, upon so informing such Category (ii) and (iii) States, the Category (i) states would then invite their (ii) and (iii) colleagues to enter the RFO negotiations (i.e. become “charter” members) (Molenaar, 2000, n. 80). The Molenaar position is not universally accepted[38].
If the Agreement is interpreted, over time, to mean that Category (ii) and (iii) States must be invited to become “charter” members, then it is easy to see that the same type of “free rider” problem, threatened by the New Member issue, can readily arise. Return to our New Member problem example, discussed earlier. Suppose, as before, that States V, W, X, and Y come together to establish a RFO to oversee the management of a straddling or highly migratory stock, which had, in the past, been overexploited. Suppose now that all four had been actively involved in the fishery, and that hence they can be classified as Category (i) States. The four plan to re-build the resource over a seven year period. Let us suppose that DWFS Z is a Category (iii) State. Rather than wait to come in later as a New Member, Z demands full and undiluted “charter” membership. The four feel compelled to accede to Z’s demand. Z incurs no real sacrifice in the re-building of the resource, because it had not hitherto been engaged in harvesting the resource. Z will simply bide its time over the seven year period, and then, when the eighth year arrives, will come to enjoy a share of the return on the resource investment, as the “free rider” that it most certainly is. Once again, the possibility of such “free riding” could undermine the viability of the RFO[39].
The New Member and “real interest” problems leads to yet another issue, or problem, which, heretofore, had been largely ignored. This problem concerns those developing States, which are emerging as DWFSs[40]. Since these States are emerging, rather than established, DWFSs, they lack a catch history in fisheries coming under RFO management. Hence, they cannot qualify, under a narrow interpretation of “real interest”, to become “charter” RFO members. As New Members, they face the prospect of receiving a very modest amount of quota free of charge, or the prospect of having to purchase quota, which may be beyond their financial capabilities. At the time of writing, there is no obvious solution to this problem.
Two special cases
We turn now to two real world cases, which in our view, merit particular attention in our examination of the management of straddling/highly migratory fish stocks. The first case does so, because it provides a particularly striking example of the difficulties that can be encountered in establishing a RFO, and the consequences of less than effective cooperative management. The second concerns an emerging RFO, which is of such magnitude that it is unlikely to be matched in importance by any other RFO, now, or in the future. The success, or lack thereof, of this RFO could have a profound impact upon the ultimate success of the 1995 UN Fish Stocks Agreement.
The South Tasman Rise orange roughy fishery
The South Tasman Rise orange roughy resource is a straddling stock, which is to be found in the Australian AFZ (Australian Fishing Zone), and the high seas adjacent to that zone. Historically, the resource has been exploited by Australia and New Zealand, but also by third parties. Case studies on the fishery were presented to the Norway-FAO Expert Consultation from both the Australian (Staples, 2003), and the New Zealand (Willing, 2003), perspective.
Orange roughy is a deep sea resource, requiring specialized technology and great skill to harvest (Willing, ibid.). Once the technological barriers have been surmounted, however, the resource proves to be very vulnerable to overexploitation. The resource is exploited during the spawning phase, when an intense aggregation of the resource occurs. The species is extraordinarily long lived (up to 150 years) and slow growing. The harvests are high valued (Willing, ibid.). Uncontrolled exploitation of the resource, during its spawning phases, can easily lead to the resource being effectively mined out. Although it is true that a heavily exploited resource may ultimately recover, the recovery is likely to take a generation, or more.
Exploitation of the South Tasman Rise orange roughy resource commenced in 1997, after the 1995 UN Fish Stocks Agreement was in place, but before it came into force. During that year, the Australian fishing industry found significant aggregations of the resource in the high seas adjacent to the AFZ. The Australian exploitation activity did, in turn, arouse the interest of the New Zealand fishing industry.
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FIGURE 3 South Tasman Rise Trawl Fishery
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The Australian resource managers, fearing overexploitation of the resource, approached their New Zealand counterparts to establish what amounted to a de facto RFO. The two “players” commenced with strong advantages. Australia and New Zealand are close neighbours, with similar cultural and historical backgrounds. Secondly, both have exemplary records in domestic fisheries management. If a resource, comparable to the South Tasman Rise orange roughy resource, were to be found wholly within the AFZ, or wholly within the New Zealand EEZ, the probability is high that the resource would prove to be effectively managed and conserved over time.
There were, however, two difficulties, which quickly became apparent. First, negotiations were initially bedevilled by the fact that there was uncertainty about the status of the resource, whether it was a true straddling stock, or whether it was a discrete high seas stock (Willing, ibid.). Secondly, the value of the resource, and its vulnerability, meant that the threat of the “Prisoner’s Dilemma” was acute. If the Australian/New Zealand vessel owners had any doubts about the stability of the management regime, the rational strategy for them, regardless of how fervently they might believe in the benefits of conservation, would be to attempt to exploit the resource quickly, and to do so with all the harvesting capacity at their command.
The Australian and New Zealand authorities entered into an agreement in December 1997. Under the agreement there would be a TAC of 2 100 tonnes for the 1998-1999 season, to be divided on an 80-20 percent basis between Australia and New Zealand. A MOU was drafted which, upon ratification, would come into effect on 1 March 1998. The agreement was only for one year, however, which created some element of uncertainty as to what would lie beyond 28 February 1999. Furthermore, there was no provision for the possible entrance into the fishery of third parties. Finally, there appears to have been some lack of clarity about what fishing activities were to be permitted in the interim, between December 1997 and 1 March 1998.
New Zealand, the de facto DWFS in this case, agreed to withdraw its fleet from the fishery, until the March 1998 start date. The Australian fleet did not withdraw. It is alleged that, during the December-February interim, the Australian fleet harvested in excess of 2 000 tonnes - recall that the agreed upon TAC for 1998/1999 was 2 100 tonnes (Staples, ibid.; Willing, ibid.).
New Zealand maintained that the spirit of the agreement had been violated. During the term of the MOU, Australia was to claim that New Zealand was exceeding its quota. The MOU expired on 28 February 1999, with bitterness and recriminations on both sides. The MOU was not renewed (Staples, ibid.; Willing, ibid.).
There was, however, at least an informal agreement between the two countries for the 1999/2000 season. The two agreed that they would work towards a TAC of 2 100 tonnes. Australia stated that it was prepared to continue with the previously agreed upon division of the TAC. It would restrict itself to 80 percent of the TAC, leaving 20 percent for New Zealand. The Australian authorities did, in fact, close the fishery to its fleet, after there was evidence that the fleet had exceeded the 80 percent limit.
Twenty percent of 2 100 tonnes is 420 tonnes. The New Zealand fleet harvested in excess of 1 600 tonnes, during the 1999-2000 season (Staples, ibid.), a not unexpected reaction by that fleet to its experience in the previous season[41].
Validated harvests for the two countries, for the 1999-2000 season approached 3 700 tonnes, almost 75 percent in excess of the informally agreed upon TAC (Staples, ibid.). While this was bad enough, the two countries were caught by surprise, during the 1999/2000 season, by third party unregulated fishing, i.e. non-participant “free riding”. Four vessels appeared, three flying the flag of South Africa, and one flying the flag of Belize.
Diplomatic pressure was brought to bear, and the vessels left the fishery[42]. No one, however, knows what these vessels succeeded in catching before they were encouraged to depart. Anecdotal evidence suggests that their harvests may have been as great as 6 200 tonnes (Staples, ibid.). If the anecdotal evidence is valid, then actual total harvest was in the order of 10 000 tonnes - four to five times as great as the recommended TAC.
In 2000, Australia and New Zealand signed a new MOU, which was to be long term in nature, and under which the two countries agreed to address the problem of unregulated fishing (Staples, ibid.; Willing, ibid.). The new MOU may, however, have come too late.
Anecdotal evidence is, of course, just that, and may not be much better than hearsay. Consequently, the validity of the claim of high catches through unregulated fishing during the 1999/2000 season cannot be verified. What is known, however, is that the total harvests during the 2001-2002 season were less than 190 tonnes (Staples, ibid.). Derek Staples states that “current indicators suggest a low remaining biomass and low future yields”, (Staples, ibid. p. 163). Jane Willing, in turn, remarks that equilibrium is maintained because yields are so low. Unregulated fishing is no threat, because it is not worth the while of non-participants to bother with the fishery (Willing, ibid., p. 205). One could also speculate that the Australian and New Zealand fishing industries probably do not see one another as a threat worth worrying about, as far as this fishery is concerned.
In our discussion of the underlying theory of games analysis we discussed a “solution” to competitive fisheries games, which, in some instances, might approach Bionomic Equilibrium. One could argue that the South Tasman Rise orange roughy fishery has, MOU or no MOU, all of the appearances of such a competitive fisheries game “solution”.
Western and Central Pacific Fisheries Convention
In the discussion of transboundary fishery resources, the case of the tuna resources of the Pacific Island States of the Western and Central Pacific was discussed in some detail. The point was made that these resources constitute the most important set of tropical tuna resources in the world. The point was also made that the intra-EEZ harvests of these resources are taken largely by DWFSs (Aqorau, 2003).
While the resources are transboundary in nature among the Pacific Island States, we should note that they are transboundary with respect to neigbouring Southeast Asian countries, as well. Research undertaken by the then South Pacific Commission, in the early 1990s, revealed that the countries of the South Pacific share these resources moderately with the Philippines, and massively with Indonesia (Munro, 1995).
By definition, the tuna resources are highly migratory, as well as transboundary in nature. There are high seas enclaves between, and among, the EEZs of the Pacific Island States. Overtime, harvesting of the resources in the high seas enclaves became a matter of steadily increasing concern.
The 1995 UN Fish Stocks Agreement provided a framework within which this problem could be addressed. In 1996, a Multilateral High-Level Conference, involving coastal States and relevant DWFSs[43], was convened for the purpose of establishing a RFO for the management of western and central Pacific highly migratory species[44]. Twenty-five states participated. After four years, the Conference concluded and brought forth a convention: the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean[45]. The Convention entered into force on 19 June 2004[46].
The area covered by the Convention is immense, extending well beyond the South Pacific into the North Pacific. Indeed, the eastern boundary of the Convention Area, north of the 4° parallel of south latitude, the 150° meridian of west longitude, extends to the North Pole (see map on page 56).
The heart of the Convention is to be found in Part III, Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Fisheries Convention Preparatory Conference, http://www.ocean-affairs.com.
Central Pacific (WCPFC, 2000). The Commission, which will hold its inaugural session in early December 2004[47], will inter alia, have responsibility for establishing TACs, or effort equivalents, for the relevant resources in the Convention Area (WCPFC, 2000, Article 10(1)(a)), and for developing criteria for the allocation of TACs (and fishing effort equivalents) (WCPFC, 2000, Article 10(3)). One can hazard the guess that the approach to ensuring compatibility of the intra-EEZ and high seas management regime will, almost inevitably, be a top down one[48].
The Multilateral High-Level Conference called for a Preparatory Conference, in the interim between closing of the Multilateral High-Level Conference (2000) and the establishment of the Commission. The Preparatory Conference has had six sessions, up to the time of writing. A seventh, and final session, will be held in early December 2004.
Initially, Japan’s reservations about the proposed Convention served to prevent Japan from attending the first two sessions of the Preparatory Conference. Given Japan’s importance to the region and the fisheries therein, Japan’s non-participation could have had serious consequences for the future of the Convention. Japan’s reservations were overcome, however, with the consequence that Japan participated actively in the following sessions of the Preparatory Conference.
The emerging RFO has experienced the “real interest” problem, in having had to deal with the issue of countries and entities that were to be considered as potential “charter” members. It is by no means unlikely that the New Member problem will have to be confronted in the future. It is not without relevance that the Permanent Commission of the South Pacific, which has as member states the four Pacific coast countries of South America, requested and received observer status at the Preparatory Conference[49]. Finally, the issue of IUU fishing has been brought up for active discussion at recent Preparatory Conference sessions[50].
To conclude, we must repeat that the WCPFC represents an immensely ambitious undertaking. If it is successful, one can anticipate that it will serve as a model for emerging RFOs throughout the world.
| [18] For the full title of
the Agreement, see footnote 4 [19] A popular expression among DWFSs, at the time, was that of coastal State "creeping jurisdiction" (Munro, 2000). [20] P. Reuter, 1975, pp. 711-733. [21] Two biologists, with a history of research in tropical tuna, R. Hilborn, and J. Sibert, argued in an article in the late 1980s that major tropical tuna species, e.g. skipjack and yellowfin, are, in fact, less migratory than are many species not to be found in Annex 1 of the 1982 UN Convention. One example, of such a highly migratory non-Annex 1 resource, is herring in the Northeast Atlantic. The authors maintain that "... there appears to be little biological justification for inclusion or rejection of highly migratory species in the current Law of the Sea" (Hilborn and Sibert, 1988, p. 36). See, as well, FAO, 1994. [22] UN. 1995, Article 2. [23] Edeson, 2001. [24] UN, 1995, Article 3 [25] The 1995 UN Fish Stocks Agreement defines an arrangement as "a cooperative mechanism established in accordance with the Convention and this Agreement by two or more states for the purpose, inter alia, of establishing conservation and management measures in a subregion for one or more straddling fish stocks or highly migratory fish stocks" (UN, 1995, Article 1(1)(d)). [26] Örebech, Sigurjonsson and McDorman (1998) maintain that "... critical to the success of the 1995 Agreement are ... RFOs which will have a central role in implementing the principles of the 1995 Agreement" (Örebech, et al., 1998, p. 120). [27] See the North Sea Continental Shelf cases in the context of maritime delimitation - n. 7 and n. 8. [28] See n. 26. [29] Articles 87(1)(e) and 116 of the 1982 UN Convention. [30] In particular, see also Article 17(2) which reads: "Such State (non-member and not agreeing) shall not authorize vessels flying its flag to engage in fishing operations for the straddling fish stocks or highly migratory fish stocks which are subject to the conservation and management measures established by such organization or arrangement". [31] Edeson, 2001. [32] Several regional fisheries arrangements, such as the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) (1982), and the Convention on the Conservation and Management of Pollock Resources (1992) in the Central Bering Sea (1992), include a joint enforcement scheme allowing for boarding, inspection and subsequent investigation by inspectors of States other than the Flag State on the high seas. It is, however, also appropriate to note that Article 21(15) of the Agreement allows for an alternative mechanism, other than boarding and inspection. Furthermore, the legal proceedings, penalty levels and prosecution are still primarily the responsibility of the Flag State. [33] In 1992, the U.S.A., Russia and four DWFSs operating in the region, established the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (see n. 30). Under the Convention, the six states imposed a "temporary" harvest moratorium on the Doughnut Hole pollock resources. The moratorium remains in force at the time of writing, over a decade later. [34] There are, of course, a few cases of transboundary resource management where the number of "players" is large, e.g. the Western and Central Pacific (Aqorau, 2003). These cases are, however, the exception, not the rule. With straddling/highly migratory stocks, large numbers are the rule, not the exception. [35] It is particularly unclear, if the State, whose flag the vessels engaged in unregulated fishing are flying, is not a party to the 1995 UN Fish Stocks Agreement. [36] The relevant paragraphs from the FAO IPOA-IUU (FAO, 2001) are as follows:
[37] If new entrants are to "buy" their way in, then the obvious implication is that the "charter" members would have de facto collective "property" rights to the resources encompassed by the RFO. Economists have argued, for 50 years, that it is the absence of effective, or effectively implemented, "property" rights, which is the root cause of so many, if not most, of the problems of capture fishery management (see: Gordon, 1954). The opaqueness, under the 1982 UN Convention, of the rights duties and obligations of coastal States, as opposed to those of DWFSs, with respect to the high seas portions of straddling/highly migratory stocks, meant that the "property" rights to these high seas resources lacked definition. Kaitala and Munro, in 1997, had recommended the acknowledgement of "charter
member" de facto collective "property" rights to the resources as a possible
solution to the new entrant problem (Kaitala and Munro, 1997). Munro,
in 2000, commented on this proposal stating that "... all of this should
come as no surprise. It was, after all, the property rights to straddling/highly
migratory stocks, so ill defined by the 1982 UN Convention, that lay at
the heart of the straddling/highly migratory fish stock management crisis
in the first place" (Munro, 2000, p. 276) |
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