We commenced this paper with the proposition, which served as the rationale for the Norway-FAO Expert Consultation on the Management of Shared Fish Stocks, that the effective management of shared fish stocks stands as one of the great challenges towards achieving long-term sustainable fisheries. There is no doubt about the importance of these resources. Highly migratory fish stocks and straddling fish stocks (actual and potential) alone account for around one fifth of world capture fishery harvests. The proportion could be as high as one third, if the other classes of shared fish stocks were included.
Our first conclusion is that, with few exceptions, stable cooperative management of shared fish stocks is required, if these resources are to be exploited on a sustainable basis. It is dangerous, if not foolhardy, to assume that non-cooperative management of shared fishery resources will suffice. The Norway-FAO Expert Consultation provided examples of resources shared by States, with exemplary domestic fisheries management records, which were overexploited, due to inadequacies in the cooperative resource management arrangements.
The legal foundation for such cooperative management is provided by the 1982 UN Convention, Parts V and VII in particular. The Convention proved to have some weaknesses, with respect to the management of straddling and highly migratory stocks. As a consequence, the 1982 UN Convention has now been supplemented by the 1995 UN Fish Stocks Agreement, which came into force in December 2001. The purpose of the Agreement is in no sense to substitute for any part of the Convention. Rather the purpose of the Agreement is to buttress the Convention, and ensure the Convention’s effective implementation.
Cooperative resource management at what we have chosen to call the secondary level, involving full joint management, is admittedly difficult and costly. The Norway-FAO Expert Consultation did, however, provide encouraging examples of effective cooperative management at this secondary level, which should provide examples to others.
Having said this, however, there is one category of shared fish stocks, which should be a source of ongoing concern. This category consists of discrete high seas stocks, which we have (deliberately) referred to as “orphan” fish stocks.
Stability in cooperative resource management arrangements requires that certain requirements be met. Several of these requirements are obvious. First, for a given arrangement to be stable, it must not be possible to find an alternative arrangement, which is capable of making all “players” better off. Secondly, the so called “Individual Rationality” constraint must be satisfied. Even if only one “player”, or subcoalition of “players”, party to the arrangement, concludes that it can do better, by refusing to cooperate, the full cooperative arrangement will not hold.
Thirdly, where the number of participants in a cooperative management regime is large, it is imperative that the surrounding legal framework be found to have strength. Cooperative management arrangements, which purport to be binding, but which in fact are nonbinding, are unlikely to survive the stress created by large numbers. The need for a strong legal framework was seen to be particularly important in the case of straddling and highly migratory stocks, where the issue of unregulated fishing, “free riding” by non-participants, must be dealt with effectively. Implementation of the FAO IPO-IUU is to be viewed as a fundamental prerequisite for the stability of the RFO regime, over the long run. Fourthly, also with respect to straddling and highly migratory stocks, means must be found of accommodating New Members, in accordance with the 1995 UN Fish Stocks Agreement, which do not, at the same time, undermine the long term viability of RFOs.
A less obvious, but highly important, requirement, relevant to all categories of shared fish stocks, is that the cooperative management arrangement be “resilient”. The cooperative resource management arrangement must have the flexibility and robustness to withstand, through time, the shocks of unexpected and unpredictable changes.
Ensuring that the individual rationality constraint is satisfied, and maximizing the robustness of the arrangement, requires, in turn, that the scope for bargaining be as great as possible. One means of so doing, stressed in this paper, is by making full use of “negotiation facilitators” (side payments), broadly defined.
