Management and Conservation of Straddling Fish Stocks and Highly Migratory Fish Stocks
Info: 41221 words (165 pages) Dissertation
Published: 11th Dec 2019
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MANAGEMENT AND CONSERVATION OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS UNDER THE UNITED NATION FISH STOCKS AGREEMENT
REGULATION AND PRACTICE
ABSTRACT
Straddling fish stocks and highly migratory fish stocks are historical concerns of the international community since we realized that the marine resources are limited. With the adoption of the United Nation Fish Stocks Agreement, the conservation and management of such stocks turned into a new page with more attempt and achievements. However, after more than a decade of implementation, the legal framework and the practice of this issue still remain a lot of obstacles and challenges which need to be dealt as soon as possible for the purpose of long-term conservation and sustainable use of these stocks.
Therefore, this dissertation focused on assessing the current situation of the conservation and management of straddling fish stocks and highly migratory fish stocks, finding out the reasons for the lack of effectiveness regarding this issue and then proposing some potential solutions.
By analyzing provisions of the UN Fish Stocks Agreement, as well as assessing its implementation of regional fisheries management organizations and states, the author provided a comprehensive view and knowledge regarding the management and conservation of these stocks. Then, the challenges of the current practice were also pointed out.
From that base of understanding, the researcher proposed some solutions for the better work of governing and preserving the stocks. Many recommendations were suggested relating to legislation, administration and public education, but above all, the core element is tightening the intense cooperation among states and organizations.
CONTENTS
1.5 Structure of the Dissertation
CHAPTER TWO: GENERAL CONCEPT OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS
2.2.1 The current State of Straddling Fish Stocks and Highly Migratory Fish Stocks
2.2.2 The Reasons of the Overexploitation of Straddling Fish Stocks and Highly Migratory Fish Stocks
2.2.3 The Disadvantages of the Current Conservation and Management Regime……………..
3.1.1 Historical Development of Fisheries International Regulation
3.1.2 The 1982 United Nations Convention on the Law of the Sea
3.1.3 The 1995 United Nation Fish Stocks Agreement
3.2.2 The Precautionary Approach
3.2.3 Compatibility of Conservation and Management Measures
3.2.4 Mechanisms for Cooperation among States
3.2.5 Non-Members and Non-Participants
3.2.7 Compliance and Enforcement
3.2.8 Special Requirement of Developing State
3.2.9 Peaceful Dispute Settlement
CHAPTER FOUR: THE IMPLEMENTATION OF THE UNITED NATION FISH STOCKS AGREEMENT 1995
4.1.1 The Western & Central Pacific Fisheries Commission
4.1.2 The Commission for the Conservation of Antarctic Marine Living Resources
4.2 The Implementation of the UN Fish Stocks Agreement of States
4.3.2 Regional Fisheries Management Organizations
5.1 Addressing the Legislation Issue
5.2 Deterring, Preventing, Eliminating IUU Fishing
5.3 Improving Database and Information
5.4 Enhancing Capacity of States
5.5 Assisting Developing Countries
5.6 Strengthening the cooperation among RFMOs and RFMOs’ members…………
5.7 Dealing with Problems of Flag States’ Control
5.8 Improving the Port State Measures
5.9 Encouraging active participation
5.10 Promoting public education and awareness
CHAPTER ONE: INTRODUCTION
1.1 Rationale
It was, after all, believed that 90 percents of the harvests from marine capture fisheries would be accounted for by resources encompassed by exclusive economic zones (EEZs) throughout the world.[1] After the settlement of the United Nations Convention on the Law of the Sea, many coastal States claimed of the 200 nautical-mile EEZs. Besides, the principle of freedom of the seas has been maintaining for a long time which gives a non-exhaustive list of freedoms, for both coastal and land locked States, including navigation, overflight, laying of submarine cables, building artificial islands, fishing, and scientific research. As a result, distant water fishing nations (hereinafter “DWFN”) have to fish in the areas of the high seas adjacent to the EEZs which incredibly enhanced the pressure of catching straddling fish stocks and highly migratory fish stocks. This situation jeopardizes for the conservation and management of these fish stocks conducted by Coastal States and relevant organizations.
Back to the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”), the provisions related to conservation and management of straddling fish stocks and highly migratory fish stocks, for example Article 63 and 64, seem to be not detailed and clear enough for contracting parties to operate the sufficient cooperation and conservation which led to some serious problems in high seas fisheries such as overexploitation, vessel reflagging to escape controls, excessive fleet size, unreliable databases.[2]
In order to deal with these issues, the United Nations Fish Stocks Agreement was adopted in 1995 and came into force in 2002 which set the more specific and sufficient regimes for cooperating among States, conserving and managing of Straddling Fish Stocks and Highly Migratory Fish Stocks.
It is undoubted that the 1995 UN Fish Stocks Agreement has been playing a very important role in conservation and management of marine resources in general and of straddling fish stocks and highly migratory fish stocks on the high sea areas in specific. The Agreement not only provides a detailed regime for the operation of conserving and managing activities among States which were mentioned in UNCLOS but also sets out a significant development to strengthen the implementation of those provisions. Therefore, researching about the 1995 UN Fish Stocks Agreement will bring a comprehensive view about the international legal regime of conserving and managing straddling fish stocks and highly migratory fish stocks, understand the important role of it in the sustainable development of marine resources in the high sea areas which is the long lasting purposes of human society.
1.2 Aim and Scope
This dissertation is aimed to discuss and analyze the provisions of the 1995 United Nations Fish Stocks Agreement (hereinafter “the UNFSA”) as one of the basic international legal regimes for conserving and managing straddling fish stocks and highly migratory fish stocks in high sea areas. Moreover, this paper also emphasizes the important role of the UNFSA on the cooperation among States for the common purpose of sustainable exploitation of the high sea. Besides, the effectiveness of the implementation of the UNFSA and propose some solutions for the improvement of the implementation of it is also assessed.
The scope of this dissertation is the research and analysis of the legal and practical issues of the conservation and management of straddling fish stocks and highly migratory fish stocks, especially its regimes and its implementation. This paper may discuss the South China Sea problem but only within the scope of the law of the sea.
1.3 Study Objectives
General objective: To provide the comprehensive view of the straddling fish stocks and highly migratory fish stocks and to assess the conservation and management of such stocks through legal instruments.
Specific objectives:
– To identify the concept of straddling fish stocks and highly migratory fish stocks in conformity with the UNCLOS and the UN Fish Stocks Agreement;
– To analyze the legal regimes provided by the UNCLOS and the UN Fish Stocks Agreement;
– To assess the implementation of the UN Fish Stocks Agreement in conservation and management of straddling fish stocks and highly migratory fish stocks;
– To evaluate the effect of conserving and managing measures in accordance with the provisions of the UN Fish Stocks Agreement 1995;
– To make recommendations to improve the effectiveness of, and to maximize the successful percentage of conservation and management measures of straddling fish stocks and highly migratory fish stocks.
1.4 Methodology
The dissertation used some of researching methods which were the combination of qualitative and quantitative analysis. Based on the collected archival documents, the researcher explained, interpreted, analyzed and compared in order to give the subjective assessments to the issue. The used documents were international treaties, researches conducted by international organizations, articles of scholars, reports, and memorial of some related conferences. Besides, the researcher also analyzed other international instruments, case law, and legal literature.
1.5 Structure of the Dissertation
After the general introduction part, Chapter Two of the dissertation discussed the general concept of straddling fish stocks and highly migratory fish stocks. The researcher provided the common definitions of such stocks which are recognized by a large number of experts. Besides, the current state of straddling/highly migratory fish stocks, its reasons and disadvantages were also assessed in order to raise the necessity of having an effective legal regime for protecting such stocks.
Chapter Three is one of the main parts of this paper. By analyzing the provisions of the 1995 UN Fish Stocks Agreement, the researcher would like to deepen the legal knowledge about the legal instrument for conserving and managing straddling/highly migratory fish stocks. First of all, the historical development of fisheries international regulation is discussed to provide the general information of how the conservation and management of straddling fish stocks and highly migratory fish stocks became the must-be-solved issue. Following is the assessment of provisions of the UNCLOS and its effectiveness which led to the result of convening the UN Fish Stocks Agreement. Then the researcher analyzed the regulations of the UN Fish Stocks Agreement which included General principles, Precautionary approach, Compatibility of conservation and management measures, New entrants, allocation of fishing opportunities and deterring dishing by non-members, Mechanisms for cooperation; Flag state duties; High sea enforcement; Special requirement of developing state; and Dispute settlement.
Chapter Four aim to find out how the international organizations and states implement the UN Fish Stocks Agreement and assessed the effectiveness of this implementation by researching some regional fisheries management organizations, its regulations, activities, and results. In addition, the researcher also pointed out some existing obstacles which undermined the effectiveness of the implementation of the Agreement by analyzing some cases. Hence, Chapter Five is about proposing some solutions to strengthen the conservation and management of straddling/highly migratory fish stocks.
Finally, all the assessment, analysis, identification and comparison is sum up in the Conclusion part in order to give the readers the comprehensive knowledge about the conservation and management of straddling fish stocks and highly migratory fish stocks, the future for the cooperation of the international community and the confirmation of the statement “It is never too early for human to conserve and preserve natural resources”.
CHAPTER TWO: GENERAL CONCEPT OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS
2.1 Definition
When discussing the draft of UNCLOS, the contracting parties were completely aware that the mobility of fishery resources would result in many fishery resources occurring both inside the EEZs and on the High Seas. As a result, the highly migratory fish stocks were defined in Article 64 of the UNCLOS by means of listing them in Annex 1 to the Convention. Moreover, the straddling fish stocks were also indirectly defined in Article 63(2) of the UNCLOS as “species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone”.[3] However, both kinds of fish stocks do not have the clear definitions appearing in the UNCLOS and also later in the 1995 Agreement.
Even though not provided in the Convention or the 1995 Agreement, the definitions of highly migratory fish stocks and straddling fish stocks as follows are recognized by a significant number of legal experts.
Highly Migratory Stocks: These are fish species so designated by the U.N. as highly migratory (U.N., 1982, Annex 1) such as tuna, tuna-like species, oceanic sharks, pomfrets, sauries, and dolphinfish. Being highly migratory, the species naturally move to and from the EEZ and the adjacent high seas.[4]
Straddling Stocks: This is a catchall term for all fishery resources, other than anadromous species and highly migratory stocks, which are to be found in both within the EEZ and the adjacent high seas.[5] Some stocks may occur primarily in one EEZ or primarily on the High Seas, while others may be evenly or extensive distributed between one or more EEZs and the High Seas.[6]
For the purpose of this paper, these definitions will be taken as the working definitions of the concept of straddling fish stocks and highly migratory fish stocks.
The distinction between straddling fish stocks and highly migratory fish stocks is not very obvious. They are all kinds of the transboundary species which live in different parts of the ocean in different periods of time. However, it should be noticed that the concept of straddling fish stocks can cover most of the fishes being both inside and outside EEZs. No minimum portion inside or outside has been defined, as long as there is some directed fishing effort at catching the stock on either side of the EEZ line, it is considered to be straddling. For example, the so-called northern cod (NAFO Divisions 2J3KL) was considered a straddling stock even though 95 percent of the biomass was typically within the coastal State’s EEZ.[7]
2.2 Overview of the Conserving and Managing Operation of Straddling Fish Stocks and Highly Migratory Fish Stocks
2.2.1 The current State of Straddling Fish Stocks and Highly Migratory Fish Stocks
In the scope of this paper, overexploited stocks include stocks that are being exploited above the optimal yield/effort level which is believed to be sustainable in the long term, stocks that are depleted or are recovering from a depletion or collapse. Fully exploited stocks mean stocks exploited at or close to an optimal yield/effort level, with no expected room for further expansion. Non-fully exploited species include stocks exploited by undeveloped or new fishery, with a significant potential for expansion in total production, or stocks exploited with a low fishing effort, with some limited potential for expansion.[8]
It is said that the number of fish stocks in the high seas have been sharply reduced over the last fifty years. It is appropriately 75 percent of fish stocks in the high seas are overexploited and/or depleted.[9] According to the Resumed Review Conference on the Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of the United Nations in May 2010, 80 percent of the world’s fish stocks for which assessment information is available are reported as fully exploited or overexploited and, thus, requiring effective and precautionary management. Overall, it is obvious that the marine resources of the world’s oceans have been fishing at an unsustainable level.
In particular, based on the collected information, there is 64 percent of the straddling fish stocks classified as overexploited, depleted or recovering, 23 percent are fully exploited, 12 percent are moderately exploited and 2 percent are underexploited. With respect to the shark species which are also the highly migratory fish stocks, more than 60 percent are considered potentially overexploited or depleted.[10] In 2013, tuna and tuna-like species classified as highly migratory in Annex 1 of UNCLOS accounted for about 6 million tons, nearly 80% of the total reported catches of all tunas and tuna-like species, 36 percent of the stocks are overexploited, 51 percent are fully exploited and 13 percent are not-fully exploited.[11] In general, accordance with the available information, straddling fish stocks and highly migratory fish stocks are vulnerable to overexploitation and depletion which require effective and precautionary management as soon as possible.
2.2.2 The Reasons of the Overexploitation of Straddling Fish Stocks and Highly Migratory Fish Stocks
There are several reasons for the decline of fish stocks in general, and of straddling fish stocks and highly migratory fish stocks in particular.
One of the main reasons which lead to the overexploitation of fish in the high sea areas is what we call a “the tragedy of the common” written by William Forster Lloyd in 1833. The concept of the theory is a situation of an open access resource where individual users acting independently according to their own self-interest despite the fact that the resources are depleted. [12]
For example, there is a pasture belonged to no one so anybody can come to feed their animals. Therefore, the land is called the open access field. It is assumed that all the herdsmen feeding their animals on it do not communicate or work together. The open access field has the carrying capacity which means the certain number of the animal it can feed based on the quantity and quality of the grass. If animals are added beyond this, the grass can not re-grow quickly enough to feed them all. If there are too many animals eating, the field may decline in productivity lowering the carrying capacity. Hence it is necessary to keep the number of animals on the field at or below the carrying capacity. However, every herdsman that puts animals on the field will get the direct benefit from it while they would only share a portion of the costs of the degraded field. So they just put more and more their own animals on the field. As a result, the pasture becomes overused and unusable because some people make the short term benefit. Contrast this to a situation where one person owns the field in which they will not cross the line of the carrying capacity because it will hurt himself.[13]
The same situation happens to the exploitation of straddling fish stocks and highly migratory fish stocks on the high sea area. We all agree that high sea is a “common” or an open access resource. Common resources are non-excludable but rival. For instance, no one can be excluded from fishing in the high sea, but they are rival — for every fish caught, there is one less for everyone else. In case if a fisherman wants to conserve the fish so he fishes less today, it does not leave more fish for him tomorrow, it just leaves more fish for others today. Hence everyone just tries his best to catch as many fishes as possible. The number of the fish in the high sea areas gradually decreases. The fish stocks become overused and under maintained because nobody owns them.
The economics of the non-cooperative management of straddling fish stocks and the highly migratory fish stock is incredible. One of the most serious cases which stand as an evidence of the non-cooperation among states and the consequence of this non-cooperative management is the case of Alaska pollock in the Donut Hole in the Bering Sea. The pollock stocks in the Donut Hole are undoubtedly straddling stocks (FAO,1994) which were exploited by America, Russia, and some DWFSs. In the late 1980s, Alaska pollock were the largest single species harvested in the North Pacific (FAO,1994) which reached levels of 6.7 million tons.[14] There was not any cooperative management of the straddling stocks which put the Donut Hole pollock fishery in the situation of “common access”. The consequence was that the pollock resources therein were more than overexploited; they were plundered.[15]
The expansion in quality and quantity of fishing fleets in the high seas also is one of the reasons which led to the current state of straddling fish stocks and highly migratory fish stocks in the high sea areas. As recorded, the global total capture fishery production in 2014 was 93.4 million tons, of which 81.5 million tons from marine waters.[16] We can see that human consume a very large amount of fishes which bring the significant jeopardies to the existence of them. Driven by the vast market demand and thanks to the developments of technology in catching, processing, storing and transporting fish, there are more and more modern vessels which are expanded not only in size but also in capacity. The Secretariat of the Indian Ocean Tuna Commission (IOTC) has identified 19,587 vessels authorized by the five main Regional Fisheries Management Organisations managing fisheries for tunas and other highly migratory stocks in 2011.[17] However, this is just the approximately number of authorized fleets.
Besides, there are also other reasons such as there is a lack of knowledge about the exact scale of illegal, unreported and unregulated fishing worldwide which also accounts for a large number of fish being caught; The ocean is extremely large so it is more complicated to implement and enforce regulations; The straddling fish stocks and highly migratory fish stocks migrate over long distances so it is difficult to locate and take measures to conserve them; Fish stocks can be hard to measure and assess accurately which leads to catch quotas being set too high, compared to precautionary means, or too low, compared to what is acceptable for the fishermen.[18]
2.2.3 The Disadvantages of the Current Conservation and Management Regime
First of all, there is a lack of adequate management and regulations on the conservation of straddling fish stocks and highly migratory fish stocks. Unlike tuna and tuna-like species of which the fisheries are all under some form of management, oceanic sharks and other highly migratory species listed in Annex 1 of the Convention are managed incompletely. Though we have the International Plan of Action for the Conservation and Management of Sharks which is a non-binding instrument that should guide management of oceanic sharks, it does not implement conservation measures. Moreover, the Regional Fisheries Organizations that have jurisdiction over fisheries that interact with oceanic sharks and other highly migratory species (particularly longline fisheries) are aware of bycatch issues, but for the most part, it is unregulated.[19]
Secondly, there is a lack of a worldwide data set which is fully updated the catch and the state of straddling fish stocks and highly migratory fish stocks in the high sea areas. It can be seen from the current reports, researchers of Food and Agricultural Organization related to the straddling fish stocks and highly migratory fish stocks that many data are estimated or just based on the available information. As a result, the comprehensive evaluation of the state, protection, and management of these stocks is inadequate or lack that can cause to the shortage of effective solutions, measures, and suitable regulations.
Fisheries play an essential role in the livelihoods of millions of people around the world and contribute to food security and poverty alleviation.[20] Therefore, overexploitation of straddling fish stocks and highly migratory fish stocks in the high sea areas is an international issue that needs seriously to be discussed. There have been no major changes in the overall state of stocks and fisheries over the last decade. The majority of the species for which information is available are considered either fully exploited or overexploited. This situation reinforces the strong need for countries fishing on the high seas to cooperate either directly or through international organizations to employ effective measures to sustainably manage fisheries and to conserve stocks already overfished.
Since the 1995 UN Fish Stocks Agreement was in force, it has established the important regime for many nations to cooperate and operate the conservation and management of straddling fish stocks and highly migratory fish stocks. The Agreement not only deals with issues which were undefined and unclear in the UNCLOS but also strengthen the function and role of countries and international organizations through many provisions. That is the reason why we need to study deeply about this agreement, its regulations and implementation which is going to be presented in next chapter.
CHAPTER THREE: THE REGULATIONS OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS UNDER THE UNITED NATIONS FISH STOCKS AGREEMENT 1995
3.1 International Fisheries and Related Instruments Pertaining to Straddling and Highly Migratory Fish Stocks
3.1.1 Historical Development of Fisheries International Regulation
From the beginning stage of the law of the sea, freedom of the high sea has existed as one of the fundamental principles.[21] According to this principle, states have rights of free navigation, overflight, laying submarine cables and pipelines, fishing, etc. High sea areas are understood as parts of the ocean which do not belong to any state, not included in the EEZ, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State.[22] Because of not being under the jurisdiction of any states, high seas are open for all states to fish at will. The only instrument to regulate and manage fisheries in the high seas is a treaty.
However, the international agreements need to meet the requirement of balancing the interests of the DWFNs with those of the coastal states. DWFNs are usually landlocked states so that they have to mainly depend on high seas fisheries. Therefore DWFNs want to keep freedom in the high seas as much as possible to protect their rights to exploit fish stocks. Meanwhile, coastal states also desire to maintain their interests as long as possible by controlling the exploitation of DWFNs. The reason is the DWFNs can do fishing in the high seas where the coastal states mostly exploit. As a result, they concern much about the long term sustainability of these fish stocks. It is important to keep the marine resources, especially the straddling and highly migratory fish stocks, in their water plentiful and stable. Besides, they want to prevent the situation of “free rider” in which the DWFNs exploit above the effort level of fish stocks in a part of the high sea and then move to another part. Hence, any international fishing regulation has to balance these two interests carefully.[23]
In order to deal with the issue of protecting, conserving, and managing straddling and highly migratory fish stocks, States negotiated to create a lot of laws including treaties, declarations, consensuses, and plans. For example, there are the Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973), Convention on the Conservation of Migratory Species of Wild Animals signed in 1979, the Law of the Sea Convention (1982), Convention on Biological Diversity (1992), the UN Fish Stocks Agreement (1995), The Rio Declaration on Environment and Development (1992), the Rome Consensus on World Fisheries (1995), etc. Among these documents, the 1982 United Nations Convention on the Law of the Sea and the 1995 United Nation Fish Stocks Agreement are the most important and comprehensive regulating about conservation and management straddling fish stocks and highly migratory fish stocks.
3.1.2 The 1982 United Nations Convention on the Law of the Sea
The straddling fish stock and highly migratory fish stock management crisis happened when the 200 nautical mile line was accepted as the possible limitation of EEZ of a State.[24] As a result of the establishment by many coastal states of the 200 nautical mile EEZ, a lot of fishing areas were transformed from the international common property to be under coastal states jurisdiction.[25] The distant-water fishing nations have to fish in the high sea areas adjacent to the EEZs which push a strong pressure into the straddling fish stocks and highly migratory fish stocks that occur both within EEZs and the high sea areas.
To deal with this issue, UNCLOS regulated the responsibilities of both coastal State and the States fishing straddling fish stocks and highly migratory fish stocks to cooperate in Article 63 and Article 64. While Article 63 mentions about straddling fish stock defining as “the same stock or stocks of associated species occur within the EEZs of two or more coastal States and those occur both within the EEZ and in an area beyond and adjacent to the zone”, Article 64 deals with the highly migratory fish stocks. According to these articles, coastal States, and high sea fishing States have the duties to cooperate, either directly or through appropriate subregional or regional 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”.[26]
Besides, it is mentioned in Article 118 and Article 119 UNCLOS that all States concerned should cooperate by contributing and exchanging “available scientific information, catch and fishing effort statistics, and other data relevant to the conservation through competent international organizations, whether subregional, regional or global”.[27] It is believed that through negotiation the States concerned can get a consensus of implementing and taking the measures for the conservation and management of straddling fish stocks and highly migratory fish stocks by establishing international organizations. In regions for which no appropriate international organization exists, the coastal State and other concerned States are responsible for cooperating to establish such an organization and participate in its work.[28]
In order to determine the allowable catch and establish other conservation measures for the living resources in the high seas in general and for the straddling fish stocks and highly migratory fish stocks in particular, States need to base on the best scientific evidence available. These measures are designed to “maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield as qualified by relevant environmental and economic factors”.[29] However, it is also necessary to consider the effects on species associated with or dependent upon harvested species to keep their reproduction in a sustainable status.[30]
It is understood from Article 56 and Article 73 UNCLOS that the enforcement of conservation and management measures in the EEZ including boarding, inspection, arrest and judicial proceedings is belonged to the coastal State, under its sovereignty.[31] This exclusive jurisdiction also applies to ships sail under the flag of that State on the high seas excluding the exceptional listed in Article 110 UNCLOS. All States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.[32]
However, it seems that the regulations pertaining to the management of high seas fisheries in UNCLOS are not adequated enough to deal with the traditional hindrance of the international fishery regulations which is balancing the interests of the coastal states with those of DWFNs. There were two main contrary opinions which led to the non-cooperation of states. The coastal States thought that uncontrolled harvesting of straddling fish stocks and highly migratory fish stocks on the high seas of the DWFN could make the coastal state management regimes of these stocks in the EEZ areas meaningless. Therefore, the rights and jurisdiction of coastal State were undermined.[33] Meanwhile, the DWFNs argued that the coastal States already had got many benefits thanks to the EEZ regime. Despite that enormous gain, coastal states were now still seeking to extend their jurisdiction yet further to encompass the high seas portions of straddling and highly migratory fish stocks.[34] This issue remained very much unresolved until the early 1990s and gradually became incredibly concerned.
In conclusion, the 1982 UN Convention on the Law of the Sea is considered as the main stone of the regime of conserving and managing straddling fish stocks and highly migratory fish stocks. UNCLOS provides the principles of conservation and management of high seas fishing resources in general, and of straddling fish stocks and highly migratory fish stocks in particular. However, the Convention does not provide sufficient solutions or specified guidelines for States to cooperate which lead to the ineffective implementation of it and require a document correcting this glaring weakness of the Convention.
3.1.3 The 1995 United Nation Fish Stocks Agreement
The inadequacies of UNCLOS raised the issue of producing a document which would be a detailed regime for the conservation and management of straddling fish stocks and highly migratory fish stocks on the high seas. In the light of this problem, UN held a conference on environment and development (UNCED) in 1992. The result of this meeting was Agenda 21: Programme of Action for Sustainable Development called for the convening of an intergovernmental conference to promote effective implementation of UNCLOS provisions pertaining to straddling/highly migratory fish stocks.
In late 1992, the General Assembly decided to convene the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks in 1993.[35] The Conference targeted on:
(a) identifying and assessing existing problems related to the Conservation and management of such fish stocks;
(b) considering means of improving fisheries cooperation among States;
(c) formulating appropriate recommendations.[36]
After two years, the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (“the UNFSA”) was adopted on 4 August 1995, opened for signature on 4 December 1995 and entered into force on 11 December 2001.
To sum up, the UNFSA is a supplement for the inadequacies of UNCLOS which not only elaborates on the fundamental principles established in the Convention but also strengthens and develops the measures and instruments for conservation and management straddling fish stocks and highly migratory fish stocks.
3.2 The Regulations of Straddling Fish Stocks and Highly Migratory Fish Stocks under the United Nations Fish Stocks Agreement 1995
3.2.1 General Principles
The general principles were listed in Article 5 of the UNFSA consisting of the duties and responsibilities of States pertaining to the conservation and management of straddling fish stocks and highly migratory fish stocks. In accordance with Article 3, these principles are applied in the areas which are not only beyond but also under national jurisdiction.[37] It can be noticed that these principles play a very important role in creating the comprehensive framework for further detailed regulations in relation to the conservation and management of straddling/highly migratory fish stocks. Every action of member states has to conform with the general principles in Article 5 with no exception.
The list of general principles regulated in Article 5 is supposed to be the inheritance and development of the principles in UNCLOS. Some of them are based on the principles in Article 61, Article 62 and Article 119 UNCLOS. These principles all require both coastal States and States fishing on the high seas shall, in order to conserve and manage the straddling fish stocks and highly migratory fish stocks, “promote the objective of their optimum utilization” which regulated in Article 5(a) of the UNFSA and Article 62 UNCLOS.[38] Besides, States have to ensure that conservation measures are “base on the best scientific evidence available and are designed to maintain or restore stocks at levels capable of producing maximum sustainable yield, […] and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global” according to Article 5(b) of the UNFSA, Article 61 and Article 119 of the UNCLOS.[39] This succession again confirms the key role of the UNCLOS to the UNFSA which is believed as an essential supplement of the Convention.
Overall, these principles regarding straddling and highly migratory fish stocks are quite comprehensive which not only focus on the conservation and management of them but also concern about the associated or dependent species, ecosystem, the biodiversity in the marine environment and the human factors. They emphasize the important role of scientific data and research as a basis to establish measures to protect fish stocks (Article 5, paragraph (b), (j), (k)). Besides, the principle of applying the precautionary approach marks a developing point of the UN Fish Stock Agreement which is singled out in Article.
It is necessary to notice that the principle of ecosystem approaches to fisheries management is indirectly referred to in paragraphs (d), (e), (f), and (g). According to the Technical Guidelines for an Ecosystem Approach to Fisheries in FAO (2003c), an ecosystem approach to fisheries is defined as: “An ecosystem approach to fisheries strives to balance diverse societal objectives, by taking into account the knowledge and uncertainties about biotic, abiotic and human components of ecosystems and their interactions and applying an integrated approach to fisheries within ecologically meaningful boundaries”.[40]
The UN Fish Stock Agreement puts the activities of conserving and managing straddling and highly migratory fish stocks within “a wider context of the need to avoid adverse impacts on the marine environment, of the preservation of marine biodiversity, and of the integrity of the marine”.[41] It is believed that if the Agreement were negotiated today, the application of ecosystem approaches might be emphasized and regulated in a specific article, in parallel with the precautionary approach. It is undoubted that ecosystem approaches to fisheries management have recently attracted a lot of attentions and acceptances from the international community. They were emphasized at the UN at the Review Conference in 2006, the seventh meeting of the Informal Consultative Process and in the two resolutions adopted by the General Assembly.[42] They also have been considered in a variety of contexts of FAO, including at the Committee on Fisheries (COFI), at expert consultations and at two FAO sponsored international conferences.[43] Even though the ecosystem approaches fisheries management take account of diverse objectives from a broader group of stakeholders, it does not mean that all stakeholder’s interests and values are adequately considered and all relevant scientific information is taken into account. The reason is the ecosystem approach is the compromises between the protection of marine environment and human benefits.
Undoubtedly, the principles in Article 5 of the UN Fish Stock Agreement are the most general requirements which play as a framework for further regulations. However, in order to guarantee the effectiveness and success of the Agreement in conserving and managing straddling and highly migratory fish stocks, it demands the consistency and conformity of further articles in the Agreement.
3.2.2 The Precautionary Approach
The importance of the precautionary approach is undeniable. It was emphasized in many documents relevant to conservation and management of fish stocks such as the United Nations Conference on Environment and Development (UNCED) in 1992, the FAO Code of Conduct for Responsible Fisheries[44], and the UN Fish Stocks Agreement.
Precautionary Approach is regulated in Article 6 and Annex II of the UNFSA. Right from the first paragraph of Article 6, it is pointed out that precautionary approach will be applied “widely to conservation, management, and exploitation of straddling fish stocks and highly migratory fish stocks for the purpose of protecting the living marine resources and preserve the marine environment”.[45] States can apply the precautionary approach on the high seas as well as within the EEZ. In order to guarantee the application of the precautionary approach, it is prohibited for states to postpone or not take conservation and management measures due to the absence of adequate scientific information. In case that information is uncertain, unreliable or inadequate, States need to be more cautions but still can not escape from the duty of applying the precautionary approach.[46] This general approach highlighted the important role of the precautionary measure to the conservation and management of straddling/highly migratory fish stocks.
The specific details involved in the implementation of a precautionary approach were regulated in Article 6(3), (4), (5), (6), (7) and Annex II of the UNFSA. According to these regulations, the up-to-date scientific information and improved techniques are highly appreciated and necessary. They are the basis for improving decision-making procedure, determining the stock-specific reference points, assessing the impact of fishing on non-target and associated or dependent species and their environment, and adopting conservation and management measures on an emergency basis.[47] States are responsible for obtaining and sharing the best scientific information available, developing data collection and research programs.
One of the most remarkable points of the application of the precautionary approach in the UN Fish Stocks Agreement is stock-specific reference points. A precautionary reference point is defined in Annex 1 as follow:
“an estimated value derived through an agreed scientific procedure, which corresponds to the state of the resource and of the fishery, and which can be used as a guide for fisheries management”.
There are two types of precautionary reference approach points including limit or conservation, reference point, and management or target reference points. The former set boundaries which are intended to constrain harvesting within safe biological limits within which the stocks can produce maximum sustainable yield whereas the latter are intended to meet management objectives.[48] Moreover, precautionary reference points should be stock-specific to account the ability of recovery of each stock and the characteristics of fisheries exploiting the stocks as well as other sources of mortality and major sources of uncertainty.[49] It means that due to the differences in the life cycle, reproductive capacity, characteristic, and quantity among the stocks, states need to set up the different precautionary reference points. Besides, the fishing mortality rate which generates maximum sustainable yield will be regarded as a minimum standard for a limit reference point.[50]
The precautionary reference points are guaranteed to not be exceeded by management measures determined by states. Regarding the limit reference points, fishery management strategies ensure that the risk of exceeding it is very low. If a stock falls below a limit reference point or is at risk of falling below that, conservation and management action will be done to facilitate stock recovery.[51]
In addition, Article 6 of the UN Fish Stocks Agreement also mentions the situation of having new or exploratory fisheries. It requires States to adopt as soon as possible cautious conservation and management measures until there are sufficient data.[52] The conservation and management measures on an emergency basis will be temporarily adopted when a natural phenomenon has significant adverse impact on the status of straddling fish stocks or highly fish stocks, or where fishing activity seriously threatens to the sustainability of such stocks.[53]
In summary, the UN Fish Stocks Agreement’s provisions regarding the application of precautionary approach are very detailed so as that states and international organizations can set up the suitable management strategies and measures to protect the straddling and highly migratory fish stocks. The precautionary approach is a new point of the UN Fish Stocks Agreement which provides a adequate guideline for states to take efficient measures to conserve and manage the concerned fish stocks. However, the application of the precautionary approach and the establishment of precautionary reference points also leave a great burden to related states and regional fisheries organizations in collecting the best scientific information and improving techniques.
3.2.3 Compatibility of Conservation and Management Measures
As mentioned before, the UNCLOS provisions are inadequate for reconciling the interests of coastal states and those of DWFNs in fishing straddling fish stocks and highly migratory fish stocks. Both sides want to protect their benefit as much as possible by applying necessary measures. As a result, the conflict between measures taken within an EEZ by coastal states, and those which apply in the adjacent high seas area to DWFNs is unavoidable.[54] In order to deal with this problem, the UNFSA regulated about the compatibility of conservation and management measures in Article 7.
Paragraph 1 of Article 7 is considered as an introductory part which specifies the application of Article 4 of the Agreement in the light of the relationship between the Agreement and the UNCLOS. This provision reaffirms the rights of states as formulated in Article 56(1)(a) and Article 116 of the UNCLOS. Moreover, Article 7 of the Agreement also restates the distinction between straddling fish stocks and highly migratory fish stocks that are found in Article 63(2) and Article 64 of UNCLOS by particularly regulating in two different sub-paragraphs.[55] Regarding straddling fish stocks, Article 7(1)(a) calls for the relevant coastal states and the states whose nationals fish for such stocks in the adjacent high seas seeking the measures necessary for the conservation of these stocks in the adjacent high seas area.[56] Meanwhile, the relevant coastal states and the states whose nationals fish for highly migratory fish stocks in the region have a duty to cooperate to ensure conservation and promote the objective of optimum utilization of highly migratory fish stocks throughout the region, both within and beyond the areas under national jurisdiction.[57] It should be noticed that the scope of applying the necessary measures for conservation of straddling fish stocks is more narrow than those of highly migratory fish stocks.[58]
Article 7(2) of the UNFSA requires States to guarantee the compatibility of conservation and management measures for straddling fish stocks and highly migratory fish stocks established for the high seas and those adopted for areas under national jurisdiction in order to ensure conservation and management of such stocks in their entirety.[59] Instead of defining the term “compatible”, Article 7(2) provides guidance for determining the content of compatible measures by setting up the objectives to be met by the establishment of compatible measures, and indicating factors to be taken into account in determining such measures.[60]
In order to achieve compatible measures in respect of such stocks, coastal States and States fishing on the high seas have a duty to cooperate with each other. This is the reiteration of Article 63(2) and 64 of UNCLOS which provides states to be obligated to cooperate, either directly or through the appropriate subregional or regional fisheries management organizations or arrangements, for the purpose of conservation and management of straddling fish stocks and highly migratory fish stocks, taking into account the specific characteristics of each subregion or region.
In determining compatible conservation and management measures, States must take into account a range of factors which are listed in six sub-paragraphs of Article 7(2) of the Agreement. This is a closed list that excludes the possibility of including further factors without the agreement of all the states concerned. The term “take into account” implies that states need to consider the existing measures. However, depending on the specific circumstances, they can be given only limited weight or no weight at all in establishing compatible measures.[61] In addition, states are required to ensure that the conservation and management measures of coastal states established will not be undermined by such measures applied for the high seas.[62]
In the light of the requirement of taking into account some factors in determining compatible conservation and management measures, lit.(d) and (e) Article 7(2) mention about the factual circumstances. They are the biological unity and other biological characteristics of the stocks (stock’s diffusion, ontogenetic and seasonal migration)[63], and the relationships between the distribution of the stocks, the fisheries and the geographical particularities of the region concerned[64], and the respective dependence of the coastal states and fishing states fishing on the high seas on the stocks concerned[65]. In addition, the impact on living marine resources also must be protected by ensuring that conservation and management measures do not result in a harmful impact on them as a whole.[66] It means that states need to guarantee that the measures do not have the adverse impact on not only the specific species but also the ecosystems of which they form a part.
For the purpose of giving effect to states’ duty to cooperate, they will make every effort to agree on compatible conservation and management measures withing a reasonable time otherwise any of the states concerned may invoke the procedures for the settlement of disputes provided for in part VIII.[67] In order to mitigate the negative of the absence of an agreement on compatible conservation and cooperation measures, provisional arrangements or measures of a practical nature are provided which shall not prevent or hamper the reaching of final agreement on compatible conservation and management measures and shall be without prejudice to the final outcome of any dispute settlement procedure.[68]
The rest paragraphs of Article 7 regulate the duty of regularly informing of the adopted measures for straddling and highly migratory fish stocks within areas under their national jurisdiction in respect of coastal states, and of the measures they have adopted for regulating the activities of vessels flying their flag which fish for such stocks on the high seas in respect of states fishing on the high seas, either directly or through appropriate subregional or regional fisheries management organizations or arrangements, or through other appropriate means.[69]
To sum up, Article 7 of the UN Fish Stocks Agreement tries to balance the interests between coastal states and DWFNs by enhancing the mechanisms for achieving a consistent management regime for the stocks concerned. To this extent, this article is considered to be successful. The article provides not only the general duty for states to cooperate but also the detailed objective and requirements in order to achieve the compatibility of conservation and management measures. It also points out the issue of equity and balance in taking into account and ensure all the factors listed in paragraph 2. The factual circumstances, the existing measures and the ecosystems of marine resources play very important roles in determining the contents of compatible conservation and management measures. It is unquestionable that Article 7 has contributed much to the attainment of sustainable conservation and management of straddling fish stocks and highly migratory fish stocks in their entirety.[70]
3.2.4 Mechanisms for Cooperation among States
It is undeniable that the UN Fish Stocks Agreement puts on the duty for States to cooperate for the purpose of conservation and management of straddling fish stocks and highly migratory fish stocks.[71] Not only generally regulating about this obligation of states, but the UN Fish Stocks Agreement also provides the detailed guidances for them in order to achieve the most optimum results from this cooperation. This is an important factor that makes the UN Fish Stocks Agreement differ from UNCLOS.
The mechanisms for international cooperation concerning straddling fish stocks and highly migratory fish stocks are provided in Part III of the UN Fish Stocks Agreement.
First of all, Article 8(1) confirms again the duty of states to pursue cooperation regarding straddling fish stocks and highly migratory fish stocks while taking into account the specific characteristics of the subregion or region, in order to ensure effective conservation and management of such stocks.[72] This is no more than an introduction of the different levels of cooperation that States can choose which include directly cooperation and through subregional or regional fisheries management organizations (hereinafter “RFMOs”) or arrangements. Where there is evidence that the straddling/highly migratory fish stocks concerned may be under threat of over-exploitation or where a new fishery is being developed for such stocks, states have responsibilities to enter into consultations “in good faith and without delay”. Any interested State can request to establish appropriate arrangements.[73]
Hence, the question now is whether the duty of cooperation is the duty of participating in an existing RMFO/arrangement or establishing one. The answer is no. According to Article 8(3), the duty to cooperate does not automatically translate into a duty to participate in an existing RMFOs or to establish one. 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”.[74] This means that States can implement their duty of cooperations by agreeing to apply the conservation and management measures established by a RMFO or arrangement instead of joining such organization or arrangement.
In addition, it should be noticed that States having a real interest in the fisheries concerned may become members of such organization or participants in such arrangement. The controversial issue risen here is how to determine the “real interest”. The Agreement does not provide any condition or criteria for defining what the real interest is. According to Erik Molenaar (Molenaar, 2000), it could be the case that (i) coastal States and DWFNs currently engaged in active exploitation of the fisheries; (ii) DWFNs, 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) DWFNs, which had never exploited the fisheries, but which would now like to do so.[75] However, the high seas are open to all states. It is belonged to no one and also belonged to everyone. Therefore, it is difficult to compromise the issue of keeping the principle of the high seas and the issue of conserving and managing straddling and highly migratory fish stocks. In addition, it is easy to get into the situation that charter member states of a RFMO abuse the power and set the high standards for determining the real interest of a state that wants to become member of such organization because once the RFMO has a new member, it will have privileged rights to access to the fishery resources. This situation is not guaranteed to not happen regarding the current provisions of the UN Fish Stocks Agreement.
The States members of such an organization/arrangement, or states which agree to apply the conservation and management measures established by such organization/arrangement, shall have privileged rights to access to the fishery resources to which those measures apply.[76] It means that a state which is not a member of RFMO or participant of an arrangement still can enjoy that privileged rights. Some people argues that this provision conflicts with the principle of Pacta Tertiis nec nocent nec prosunt which means a treaty binds the parties and only the parties, it does not create obligations for a third state. Therefore, the UN Fish Stocks Agreement can not bind non-parties and non-participants. However, with the consent of a non-party state, a treaty still can create either obligations or rights for it.[77] The one and only criteria which are indispensable here in order to apply the provisions of the UN Fish Stocks Agreement to a non-party is the consent to be bound by the Agreement of a state. With this article, international law still ensures the principle of free consent and respects the jurisdiction of states.
From Article 9 through Article 13 are all concerned with RFMOs. Article 9 lists out some conditions which need to be agreed among states in establishing or entering into subregional or regional fisheries management arrangements for straddling and highly migratory fish stocks such as the stocks to which conservation and management measures apply; the area of application; the mechanisms by which the organization or arrangement will obtain scientific advice and review the status of the stocks.[78] Article 10 regards the functions of subregional and regional fisheries management organizations and arrangements. In general, these functions are comprehensive and reflects the true purpose of the organizations/arrangements.[79]
The later provisions of Part III of the Agreement regulate about the transparency in activities of subregional and regional fisheries management organizations and arrangement (Article 12); Strengthening of existing organizations and arrangements (Article 13); Collection and provision of information and cooperation in scientific research (Article 14); Enclosed and semi-enclosed seas (Article 15) and Areas of high seas surrounded entirely by an area under the national jurisdiction of a single state (Article 16).
Overall, part III of the UN Fish Stocks Agreement provides a quite detailed guidance for states to cooperate through subregional or regional fisheries management organizations or arrangements. However, these provisions need to be implemented and specified upon the characteristics of the organizations or arrangement, the conditions of the straddling/highly migratory fish stocks in the areas concerned, and the level of cooperation of states.
Furthermore, in the light of the accommodation of new members/participants, it is very clear that members or participants of an existing RMFO or arrangement must be prepared to accommodate new entrants due to Article 8, 10 and 11 of the UN Fish Stocks Agreement.[80] Moreover, the new members/participants “must be offered just and reasonable shares of the Total Allowable Catch (hereinafter TAC) available under a RMFO management plan”.[81] The question here is how to determine the “just and reasonable” shares of the TAC. It is absolutely unfair for the existing members of a RMFO if the new member/participant, due to entering into a RMFO, can receive the equal shares of the TAC, without any investment before or further cost. The reason is charter members are those who negotiated, invested, undertook the cost and sacrificed of rebuilding the straddling/highly migratory fish stocks and they would get their payoffs from that cooperation after a certain period of time. The charter member must invest time, money and human resources to preserve, protect and rebuild the threaten fish stocks in order to be able to harvest later. Meanwhile, the prospective new member/participant just need to have the desire to access to the RFMO and agree to abide by the fisheries conservation and management measure applied by that organization. It comes out in the harvesting year and demands a pro-rata share of the harvest.[82] If this demand was accepted, the new member/participant would probably be called “free rider”. This issue really needs to be carefully implemented by RFMOs/arrangements.
3.2.5 Non-Members and Non-Participants
In the light of Article 17(1) of the UN Fish Stocks Agreement, a state is not discharged from the obligation to cooperate, though it is not a member/participant of a RFMO/arrangement, and also does not agree to apply the conservation and management measures established by such organization/arrangement.[83] The question risen from this article is whether it violates the principle of Pacta Tertiis nec nocent nec prosunt. A treaty binds the parties and only the parties, it does not create any rights or obligations for a third state without its consent. This principle is sourced from the characteristics of the sovereignty of states in determining and deciding themselves to enter into a treaty. A non-member state is only bound by a treaty when it expresses its consent to be bound by that treaty. Particularly, an obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.[84] There are two conditions that need to be met in order to create an obligation for a third state which are: (1) the parties to the treaty intend the provision to be the means of establishing the obligation; and (2) the third State expressly accepts that obligation in writing. In this case, the UN Fish Stocks Agreement puts on the duty to cooperate in order to conserve and manage the straddling/highly migratory fish stocks even though that country is neither a member/participant of a RMFO/arrangement nor agrees to bind by the conservation and management measures established. This article meets the first condition of the intention of the parties to establish the obligation of a third party. However, the second condition is not written here which raises the arguments in applying this article. A third state does not have obligations established by a treaty if it does not expressly accept that obligation in writing.
In addition, it is assumed that the Agreement can put an obligation to cooperate on non-member/non-participant of a RMFO/arrangement, state shall give effect to their duty to cooperate by becoming member/participant of such organization/arrangement, or by agreeing to apply the conservation and management measures established by such organization/ arrangement.[85] It seems like a loop here when the duty, which is set out because a state is not a member/participant of a RFMO/arrangement, and also does not agree to apply the conservation and management measures established by such organization/arrangement, is to become member/participant of such organization/arrangement, or by agreeing to apply the conservation and management measures established by such organization/ arrangement. The UN Fish Stocks Agreement forces a non-member/non-participant state to obey the rules and apply the conservation and management measures established by an organization/arrangement. This interpretation can lead to the objection of the Agreement in the issue of violating the principle of free consent and the sovereignty of states.
As a result of not being a member/participant of a RMFO/arrangement, such state shall not authorize vessels flying its flag to engage in fishing operations for the straddling and highly migratory fish stocks. These states also are requested to cooperate fully with such organization/arrangement by applying de facto as extensively as possible the conservation and management measures it has established to fishing activities in the relevant area. In this case, these states still can enjoy benefits from participation in the fishery commensurate with their commitment to comply with conservation and management measures in respect of the stocks.[86]
Despite the attempt to call for participating in RFMOs/arrangments, there still remains a considerable number of fishing by vessels under the flags of non-member/non-participant. The problem is often associated with the so-called “flags-of-convenience” problem, although the problem is not confined to such flags. A substantial number of fishing vessels registered under flags of convenience are owned by companies in which the beneficial ownership resides in a Community Member State.[87] In this case, these vessels just carry the “shield” of the member states of a RFMO to enjoy the benefit of them in fishing straddling/highly migratory fish stocks. Moreover, the Illegal, Unreported and Unregulated (IUU) catches are also much concerned. These activities may destroy the attempts of the member states of RMFOs in conservation and management of straddling/highly migratory fish stocks. This IUU fishing easily leads to the situation of free riding which can undermine the RMFOs. This problem could possibly be solved by calling non-members to join the RMFOs voluntarily. However, it is not that easy because becoming free rider is too attractive. Different from the member states who need to invest time, money, effort in order to both harvest and protect straddling/highly migratory fish stocks, the free riders or IUU fishing entities just sail around the high seas, and enjoy the benefits and interests without any investment or payment. It is very clear that if the IUU issue could not be controlled, the collapse of the cooperation among states through RFMOs will just be the matter of time.
To sum up, the idea and principle of the UN Fish Stocks Agreement in respect of non-member and non-participant issue are calling for their cooperation in conservation and management of straddling fish stocks and highly migratory fish stocks by persuading those countries to join the RMFOs/arrangements. However, as analyzed above, the regulation in the Agreement is too general and controversial. It does not give the effective framework for states to deal with this problem. Besides, despite not directly related to the UN Fish Stocks Agreement, the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU)) still plays an important role as an useful indication given to States in order to achieve the common goal of conservation and management of straddling/highly migratory fish stocks.
In order to deal with this problem, there is an example of the measures being recommended by the FAO IPOA-IUU which calls product certification.[88] Regarding this measure, RMFO members would all agree to ban imports of fish, and fish products which are not certified to have been harvested legally. For instance, Japan has reporting requirements for all imports or transportation of tunas into Japan by boat.[89] These requirements could be used to bar tuna harvested on an unregulated basis in the high seas of the Western and Central Pacific.[90]
3.2.6 Flag State Duties
The duties of the flag state are regulated in Article 18 in part V of the UN Fish Stocks Agreement. The first paragraph of this article sets out the general duty for flag state whose vessels fish on the high sea to take such measures as may be necessary to ensure that vessels flying its flag comply with conservation and management measures of RMFOs, and that such vessels do not engage in any activity which undermines the effectiveness of such measures. This is the core duty of flag state. It is clear that the obligation to cooperate in conservation and management of straddling/highly migratory fish stocks by applying measures of RMFOs puts on every state either it is a member of that organization or not. Therefore, flag state is not an exception. This requirement for flag states is a reconfirmation of that duty. Moreover, it implies that flag states should establish a regime or administrative structure to implement and enforcement that obligation. Besides, according to the Agreement, a vessel is only authorized by its flag state for fishing on the high seas where it is able to exercise effectively its responsibilities in respect of such vessels under the UNCLOS and the UNFSA.[91]
Not only provides general obligation of flag state over vessels fishing on the high seas, but Article 18 also lists out a number of detailed duties which flag state must implement. These specific obligations range from basic administrative aspects such as fishing licenses, authorizations or permits; to vessel marking requirements; reporting of vessel position, catch statistics, fishing effort and verification; monitoring, control, and surveillance; and the regulation of transshipment and fishing activities.[92]
The first measure that Article 18 specifies is controlling by means of fishing licenses, authorizations or permits. This obligation of flag state is much related to administrative regime.[93] It can be seen from this article that the UNFSA regulates very detailed about the measures to be taken by flag state in order to conserve and manage straddling/highly migratory fish stocks. Undoubtedly, flag states play very important roles in the success and effectiveness of the conserving and managing measures by ensuring its key duty which is to exercise its responsibilities over vessels flying its flag fishing on the high seas, in particular licenses, authorizations, and permits issue. These days, there are many states which already brought this duty into practice by requiring an authorization, license or permit for fishing vessels before fishing in the high seas such as Australia, New Zealand, Canada, the European Community, Japan, the United States.[94]
Moreover, the Agreement also puts on some requirements related to the data issue. Flag states are required to establish a national record of fishing vessels authorized to fish on the high seas[95]; record and timely reporting of vessel position, catch of target and non-target species, fishing effort and other relevant[96]; verify the catch of target and non-target species[97]. This information is indispensable for the conservation and management of natural resources in general, for straddling and highly migratory fish stocks in particular. By performing these duties, flag states could access the up-to-date information of fishing on the high seas and have a comprehensive view of the implementation of their regulations, from then improve, develop or establish the most effective regime in respect of conservation and management of straddling/highly migratory fish stocks under the UNCLOS and the UN Fish Stocks Agreement.
In parallel with the requirement of information, flag states have a duty to mark of fishing vessels and fishing gear for identification in accordance with uniform and internationally recognizable vessel and gear marking system. There is an international standard which is suggested in the Agreement is the Food and Agriculture Organization of the United Nations Standard Specifications for the Marking and Identification of Fishing Vessels. It leaves much easier work for the flag states to transfer this regulation into national legislation and implement it. Moreover, the existing of an international standard would help states cooperate in identifying of IUU fishing.[98]
Furthermore, monitoring, control, and surveillance are also one of the measures which flag states should take to perform its duties in relevant with vessels flying its flag under the UNCLOS and the Agreement. There is a tight connection between flag states and the subregional and regional organizations in performing the obligation of monitoring, control, and surveillance of vessels that flying its flag, their fishing operations and related activities. Flag states need to implement both national and subregional/regional schemes and programs. However, the problem is the schemes and programs of RMFOs do not cover all fishing activities, and the UNFSA also does not provide any further guidance on how or when those requirements are applied. Therefore, flag states need to develop their own national policies and provisions. These days, there are a number of countries have developed their domestic regulation regarding monitoring, control, and surveillance such as Canada, Mexico, New Zealand, the European Community. Particularly, Uruguay emphasizes that it is compulsory for vessels to be checked and inspected before sailing and unloading their catches. [99]
3.2.7 Compliance and Enforcement
The UN Fish Stocks Agreement sets out the duty for flag state, parties of the sub-regional and regional organization, international community, and port state to ensure compliance with and enforcement of subregional and regional conservation and management measures for straddling fish stocks and highly migratory fish stocks.
According to Article 19 of the Agreement, in order to exercise this responsibility, there are a lot of requirement for flag states such as (a) enforce subregional and regional conservation and management measures whenever violations occur; (b) investigate immediately and fully any alleged violation of such measures and report promptly to the State that has alleged the violation and to the relevant subregional and regional organization or arrangement; (c) require vessels to give information to the investigating authority; etc.[100] Besides, flag states, in respect of compliance and enforcement, have to expeditiously carry out investigations and judicial proceedings. Sanctions applicable to that violations shall be adequate in severity to be effective in securing compliance and to discourage violations in the future.[101] Overall, we can see that the UNFSA has expanded the range of flag state’s responsibilities from administrative, technical and social matters related to vessels to the control of fishing activities on the high seas. Those provisions would definitely strengthen the enforcement of Article 94 of UNCLOS relating to the duties of States on the high seas over vessels flying their flag.
In pertain to the duty of members of subregional and regional organization, a state member of such RMFO or arrangement has the right to inspect and board fishing vessels flying the flag of another state party to the UNFSA, for the purpose of ensuring compliance with conservation and management measures for straddling fish stocks and highly migratory fish stocks.[102] These provisions are considered as the most innovative in the entire agreement. The general principle is regulated in Article 21 which is basically introduce the right of RMFOs’ parties in boarding and inspection, under some strict conditions, vessels flying the flags of other states party in any high seas area covered by a sub-regional or regional fisheries a management organization or arrangement. There are five main conditions which need to be met in the case of boarding and inspection vessels pertain to Article 21 of the Agreement.
Firstly, only a State Party which is a member of a subregional or RFMO or a participant in a subregional or regional fisheries management arrangement can conduct the acts of boarding and inspecting, and only for the purpose of ensuring compliance with conservation and management measures of that organization/arrangement.
Secondly, the objective of the enforcement measures must be a fishing vessel flying the flag of a State Party of the same RMFO/arrangement to the inspecting State.
Thirdly, the enforcement measures only can be applied in the high sea areas that covered by the subregional or regional organization or arrangement and only when there are clear grounds for believing that an activity contrary to the conservation and management measures of that RMFO/arrangement has been conducted.
Fourthly, the suspected vessel has subsequently, during the same fishing trip, entered into an area under the national jurisdiction of the inspecting state.
Fifthly, the RMFO/arrangement do not establish their own mechanisms or procedures which effectively discharges the obligation under the UN Fish Stocks Agreement.
In addition, Article 22 also introduces the basic procedures for boarding and inspection pursuant to Article 21. These provisions are very detailed and developed which provide the effective schemes for state parties to implement and enforce the conservation and management measures. However, these provisions apply only to State Parties of the RMFO/arrangement. Under Chapter VII on measures for non-parties, the consent of the non-contracting party vessel is required for boarding and inspection. If consent is not forthcoming, the vessel is presumed to be engaged in IUU fishing.[103]
Last but not least is the role of the port state in compliance and enforcement. The UN Fish Stocks Agreement provides a port State “the right and the duty to take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures”.[104] Since ports are situated on land and in internal waters, it has the right to inspect documents, fishing gear and catch on board fishing vessels, when such vessels are voluntarily in its ports or at its offshore terminals or even deny entry of vessels due to its sovereignty and exclusive jurisdiction.[105] Therefore, ensuring compliance and enforcement via port State provides an alternative control which is applicable to all flag states, including non-member of the RFMOs/arrangements when they are present in the port State. This scheme has been taken up in some RFMOs and promise the development of global level.
3.2.8 Special Requirement of Developing State
It is noticeable that the UNFSA spent a separate part, including from Articles 24 to 26, to establish the requirements of developing States. In general, party members shall give full recognition to the special requirements of developing States in relation to conservation and management of straddling fish stocks and highly migratory fish stocks and development of fisheries for such stocks by providing assistance to them, either directly or through relevant programs or organizations and bodies. These provisions can be considered as an elaboration of many provisions of the UNCLOS which give special consideration to the developing States such as Article 62 and Article 119.[106]
Among those requirements, the issues of allocation of fishing opportunities and assistance to developing States are highly concerned. According to Article 25(1), States shall cooperate to assist developing States to enable them to participate in high seas fisheries for straddling/highly migratory fish stocks, including facilitating access to such fisheries subject to article 5 and 11, and to facilitate the participation of developing states in subregional and regional fisheries management organizations and arrangements.[107] In fact, there are few RFMOs have addressed the special requirements of developing States in their constitutive instruments, and hardly accommodate developing States as new entrants since member States cannot easily agree on such accommodations.[108] Particularly, there is a small number of RFMOs that explicitly recognize the special position of developing states such as the Commission for the Conservation of Southern Bluefin Tuna, and the Inter-American Tropical Tuna Commission.[109] The reason for this limitation is there are small areas of the high seas that are under the control of a RFMO. The entering of a new entrant, especially a developing state, would reduce much the interests of existing members because they need to provide and assist the developing state according to special requirements.
Regarding assistance, the special requirements include financial assistance; human resource development; technical assistance; technology transfer; collection, reporting, verification, exchange and analysis of fisheries data and related information; monitoring, control, surveillance, compliance, and enforcement including capacity building and specialist training; and the knowledge and expertise of stocks.[110] Beside technical assistance, the Agreement also recognizes the financial assistance to the developing States in the implementation of it by establishing special funds. In 2003, the UN General Assembly established the Assistance Fund under Part VII of the Agreement and only parties to the agreement can use the fund. Financial support may be sought for many purposed such as supporting ongoing and future negotiations to establish new RFMOs, to renegotiate founding agreements and to strengthen existing RFMOs; building capacity for effective exercise of flag State duties, MCS, data collection and scientific research; assisting with human resources development, technical training and technical assistance in relation to conservation and management of the relevant stocks and development of fisheries for such stocks, consistent with the duty to ensure the proper conservation and management of such stocks; etc. [111] The establishment and operation of the fund are very potential and promising to strongly assist developing States in the implementation of the UN Fish Stocks Agreement. However, until now there has not been any significant contributions and significant achievement in this field. [112]
3.2.9 Peaceful Dispute Settlement
Part VIII of the Agreement provides the mechanism for state parties to settle their disputes. First of all, States have the duty to cooperate so as to prevent disputes by agreeing on efficient and expeditious decision-making procedures within RFMOs and strengthening existing decision-making procedures as necessary. In case there is any dispute between State Parties, they must use peaceful means including negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice to solve the disputes to the Agreement concerning the interpretation or application of the Agreement, subregional, regional or global fisheries agreement relating to straddling fish stocks and highly migratory fish stocks.[113] For this purpose, States shall apply mutatis mutandis the provisions relating to the settlement of disputes set out in Part XV of the UNCLOS, whether or not they are also Parties to the Convention.[114] Regarding State Parties to the Agreement which is not a Party to the UNCLOS, they also free to choose one or more of the means provided in Article 287(1) of the UNCLOS if they made a written declaration when signing, ratifying or acceding to the Agreement.[115]
Pertaining to the law applied when settling disputes between States, it is regulated that the relevant provisions of the UNCLOS, the UN Fish Stock Agreement, and of any related subregional, regional or global fisheries agreement shall be applied by any court or tribunal to which a dispute has been submitted. Besides, for the purpose of ensuring the conservation of the straddling/highly migratory fish stocks, standards for the conservation and management of living marine resources and other rules of international law not incompatible with the UNCLOS also shall be generally accepted when settling disputes.[116] In case of pending the settlement of a dispute, the parties to the dispute have obligation to make every effort to enter into provisional arrangements of a practical nature.[117]
Overall, we can see that the provisions of the UN Fish Stocks Agreement regarding peaceful settlement of disputes between state parties reinforce significantly the dispute settlement provisions of UNCLOS. Not only having a tight connection with the UNCLOS in respect of the settlement of disputes showing by referring many relevant provisions of the UNCLOS, the UN Fish Stocks Agreement also strengthens the dispute settlement mechanism.
In conclusion, chapter 3 went through the main provisions of the 1995 UN Fish Stocks Agreement. By analyzing, assessing and summarizing the provisions, we can definitely state that the Agreement is not a replacement of any part of the UNCLOS. Moreover, it is the emphasis of the UNCLOS “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”.[118]
The general purpose of the Agreement is the implementation of the provisions of UNCLOS relating to the conservation and management of straddling fish stocks and highly migratory fish stocks.To this end, the Agreement provides a detailed and effective mechanism and regime for the conservation and management of straddling fish stocks and highly migratory fish stocks. Especially, there are some highlights of the Agreement such as:
Firstly, the Agreement establishes the general principles for the conservation and management of straddling fish stocks and highly migratory fish stocks which not only focus on the conservation and management of them, but also concern other factors such as the associated or dependent species, ecosystem, the biodiversity in the marine environment and the human factors.
Secondly, the Agreement regulates about the precautionary approach which could be applied both on the high seas and within the EEZ. This is a new point of the Agreement which provides the adequate guideline for states to take efficient measures to conserve and manage the straddling fish stocks and highly migratory fish stocks.
Thirdly, the Agreement puts duties on coastal states and DWFSs to ensure the compatibility between the conservation and management measures established within the EEZ and on the high seas. This is considered as one of the most successful provisions in the Agreement which has contributed much to the attainment of sustainable conservation and management of straddling fish stocks and highly migratory fish stocks.
Fourthly, the Agreement provides detailed rules, guideline, and framework for the establishment and operation of subregional or regional fisheries management organizations or arrangement which is considered as one of the most effective ways to enforce the conservation and management measures on the high seas. However, in the light of this issue, there still exists the difficulties and obstacles in accommodating new entrants to the RFMOs which need to be improved.
Fifthly, the Agreement sets out innovative provisions on enforcement for non-flag states to comply with the conservation and management measures established by RFMOs.[119] However, the regulations are still too general and controversial that need to be clarified and adjusted when applied and implemented by RFMOs.
Sixthly, the Agreement specifies the obligations of the flag States regarding their vessels fishing on the high seas as well as sets out the jurisdiction of port States with respect to vessels in its port or at its offshore terminals. Having the tight connection with RFMOs, these subjects play an important role in the implementation and enforcement the regulations and measures related to conservation and management of straddling/ highly migratory fish stocks.
Lastly, the Agreement provides the special assistance for developing states which not only including technical assistance, human resources, but also financial assistance.[120] These provisions can be considered as an elaboration of many provisions of the UNCLOS which give special consideration to the developing States. Despite the fact that there has not been any significant achievement from this regime, these special requirements still enhance and complete the implementation of conservation and management of straddling/ highly migratory fish stocks.
With those contributions, the Agreement has played a very important role in the implementation of the provisions of UNCLOS in respect of the conservation and management of straddling fish stocks and highly migratory fish stocks. Not only providing the framework and facilitating the implementation of the provisions of UNCLOS in relevant with conservation and management of straddling/highly migratory fish stocks, but the Agreement also strengthening other provisions of UNCLOS by giving specific action-oriented measures. Especially, the Agreement incorporated and created new principles, norms, and rules which help complete the relevant provisions of UNCLOS. [121]
Beside the comprehensive regulations, the cooperation and implementation of States Parties are the indispensable factors that decide the success of an international treaty. Therefore, next chapter, Chapter 4, will discuss the implementation of the UN Fish Stocks Agreement, analyze the cooperation among State Parties and assess the effectiveness of it.
CHAPTER FOUR: THE IMPLEMENTATION OF THE UNITED NATION FISH STOCKS AGREEMENT 1995
One of the most important parts of the UN Fish Stocks Agreement is the establishment, operation, and implementation of the Agreement of subregional or regional fisheries management organizations or arrangements. The Agreement regulates in detail the duty of cooperation for conservation and management through RFMOs and the functions of them. Besides, the Agreement also lists out the actions which need to be taken by States in order to fulfill their obligation to cooperate through RFMOs. [122] It is apparent that the role of States in implementing the Agreement is undeniable. Therefore, the following will briefly review the recent conservation and management measures taken by some RFMOs and States in relevant with the implementation the UN Fish Stocks Agreement. From then, the researcher will assess the work and result of the implementation including the achievements and the challenges.
4.1 The Implementation of the UN Fish Stocks Agreement of some Regional Fisheries Management Organizations
4.1.1 The Western & Central Pacific Fisheries Commission
The Western and Central Pacific Fisheries Commission was established by the Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (hereinafter “WCPF Convention”) which entered into force in 2004 and has been described as a third generation treaty based on the UNCLOS and the UN Fish Stocks Agreement.[123] The objective of the WCPF Convention is to ensure the long-term conservation and sustainable use, in particular for human food consumption, of highly migratory fish stocks in the Western and Central Pacific Ocean for present and future.[124] The Convention area covers almost 20 percents of the Earth’s surface including all stocks of highly migratory fish within that area except sauries.[125]
In general, the WCPF Convention draws on many of the provisions of the UN Fish Stocks Agreement. For instance, the Convention sets out the objective, general principles, and measures, the application of the precautionary approach for conservation and management of highly migratory fish stocks in the Convention Area. In the case of implementation of the general principles and measures in areas under national jurisdiction, they shall be applied by coastal States in the Convention Area in the exercise of their sovereign rights for the purpose of exploring and exploiting, conserving and managing highly migratory fish stocks.[126] However, the conservation and management measures adopted for areas under national jurisdiction must be compatible and not undermine those established for the high seas. It is easy to find these requirements in the beginning provisions of the UNFSA (Article 2, 3, 5, 6 and 7).
The WCPF Convention establishes a governing body called the Commission which includes representatives from members, cooperating non-members and participating territories (collectively, CCMs). According to this Convention, the Commission also has the functions of a RFMO pointed out in Article 10 of the UNFSA. Especially, in performing those functions, the Commission is authorized to adopt measures relating to some issues such as the quantity of any species or stocks which may be caught, the level of fishing effort, limitations of fishing capacity, the areas and periods open for fishing, etc.[127] Moreover, the WCPF Convention also regulates about the issues of scientific data and research, new members, flag state duties, compliance and enforcement, special requirements for developing states, non-parties, and peaceful dispute settlement. Basically, these provisions consistent with the UN Fish Stocks Agreement.
Besides compliance with the UNFSA, the WCPF Convention also reflects the special political, socio-economic, geographical and environmental characteristics of the Western and central Pacific Ocean (WCPO) region.[128]
First of all, in order to support the work of the Commission, the Convention, according to Article 11, established four subsidiary bodies including the Scientific Committee, the Technical and Compliance Committee, the Northern Committee, and the Finance and Administration Committee.[129] The Scientific Committee’s mission is to ensure that the Commission has the best available scientific information on which to consider appropriate conservation and management measures. The Technical and Compliance Committee is considered as the “enforcement” committee of the Commission which has the functions to provide the Commission with information, technical advice and recommendation, monitor and review compliance with conservation and management measures, and review the implementation of cooperative measures for monitoring, control, surveillance and enforcement adopted by the Commission. The Northern Committee is established based on Article 11(7) of the Convention which is to make recommendations to the Commission on the implementation of conservation and management measures and on species that occur mostly in the Convention Area north of 20 degrees parallel of north latitude. The Finance and Administration Committee deliberates over the Commission’s budget. These committees are specific and different based on the geographical characteristics and needs of the RFMO.
Secondly, pertaining to the cooperating non-parties issue, the WCPF Convention regulates that they “shall enjoy benefits from participation in the fishery commensurate with their commitment to comply with, and their record of compliance with, conservation and management measures in respect of the relevant stocks”.[130] However, there is not any provision giving the Commission or its members power to decide on such benefits for non-parties, and the requirement for potential benefits only appears in conjunction with members’ duties.[131] Therefore, this gap may lead to the problem of allocation of the total allowable catch or the total level of fishing effort within the Convention Area.
It is no doubt that the WCPF Convention regulates quite detail about the elements that need to be considered in developing criteria for allocation of the total allowable catch or the total level of fishing effort. Especially, instead of requiring members to allocate the total allowable catch or the total level of fishing effort, the WCPF Convention puts duties on the Commission to take into account certain considerations for “participants” such as the needs, the geographical situation, and the fishing interests and aspirations of small island developing states, interests, fishing patterns and practices in the fishery, contribution to conservation and management, provision of data, compliance. Therefore, it would be difficult to argue that a cooperating non-member with no allocations, fishing patterns, provision of data, etc., is a participant.[132]
Besides, we also can see that the WCPF Convention has a special concern about the small island developing states. In developing criteria for allocation of the total allowable catch or the total level of fishing effort, the roles and needs of small island developing states are specially mentioned. The reason might be the Pacific Islands Forum Fisheries Agency, which includes many small islands developing states, initiates the process of the negotiation and establishment of the WCPF Convention.[133] This element creates the unique socio-economic and geographical characteristics of the Convention.
Furthermore, since the members are not expressly required to cooperate through the Commission in exchanging information on the activities of fishing vessels flying the flags of non-parties (Article 32(2)), this will lead to the possibility of members interact with each other but not with the Commission. Moreover, the option of doing so “individually or collectively” within the Commission is not offered as in Article 32(4).[134] This is definitely a gap of the WCPF Convention especially in the area where the Commission could be legally tasked with playing a valuable coordinating role. Despite the fact that this gap is partly addressed by the IUU Vessel Lists and Authorized Vessel Lists, the members still want to clarify more about the role of the Commission.[135]
Thirdly, the provisions of special requirement for developing states are also a development of the WCPF Convention. According to Article 30 of the Convention, the Commission must give the full recognition to the special requirements of developing states parties to the Convention, in particular small island developing states, and of territories and possessions, and establish a fund to facilitate the effective participation of these states, in the work of the Commission, including its meetings and those of its subsidiary bodies. Besides financial assistance, the Commission also provides assistance relating to human resources development, technical assistance, transfer of technology, advisory and consultative services. The WCPF Convention is one of few treaties that recognizes and implements in detail the special requirements of developing states. However, from the provisions to practice is still a long way. The special requirement fund seems to be inactive and ineffective. According to the financial report of the Commission of 2009, the balance of the Special Requirements Fund at December 31, 2009, was $183,642, respectively. Excepting the balance brought forward from the prior year, there were two contributors which were Chinese Taipei and USA with the amount of money is $45,000. There was only PNA project funded in 2009.[136] Despite the fact that the fund is not very active, it is unquestionable that the WCPF Convention’s provisions in pertain to the needs and interests of small island developing states are important points for the region which helps strengthen and encourage the recognition of special requirements of developing states of RMFOs.
Finally, in order to deal with the illegal, unreported and unregulated (“IUU”) fishing issues, the Commission adopted CMM 2010-06 (Conservation and Management Measure to Establish a List of Vessels Presumed to Have Carried Out Illegal, Unreported and Unregulated Fishing Activities in the WCPO).[137] This measure requires establishing a list of vessels suspected to have carried out IUU activities in the Convention Area in ways that have been found to undermine the Convention and the conservation management measures. The CCMs can put a vessel on the Provisional IUU Vessel List by reporting, attached by sufficient evidence and details to the Technical and Compliance Committee at least 70 days before its annual meeting. However, the Technical and Compliance Committee will not include a vessel on the IUU Vessel List if the vessel’s flag state proves that: (a) the vessel in question fished in a manner conform with the Convention and the CMMs, or with the laws of a coastal state if it was only fishing in waters under its national jurisdiction, or the vessel only fished exclusively for species not covered by the Convention; (b) effective action was taken to respond to the IUU activities; or (c) the case concerning the IUU fishing vessel has been resolved to the satisfaction of the CCM that originally reported the vessel and the vessel’s flag state.[138] It is apparent that the Convention shows a deep concern about the IUU fishing incidents and attempt to solve this problem. As decided at the Commission’s annual meeting in 2010, there are currently five vessels on the IUU Vessel List.[139] This IUU Vessel List absolutely should be shared and harmonized with other RFMO.
To sum up, it is said that the WCPF Convention is one of the earliest international fisheries agreements following the calling of the UNFSA for the purpose of conservation and management of straddling and highly migratory fish stocks. Particularly, the WCPF Convention plays an important role in conserving and managing highly migratory fish stocks in the Western and Central Pacific Ocean which is especially known as the largest tuna fishing ground in the world. The Western and Central Pacific Ocean provides food and livelihood for not only coastal states but also many DWFNs. As the matter of growing number of fishing activities, it demands the broader and tighter cooperation among states. Therefore, the establishment of the WCPF Convention was a major development in conformity with principles outlined in the UNFSA in order to protect and manage the fishing in the Western and Central Pacific Ocean. Despite the fact that there are still some points in the WCPF Convention that need to be clarified and causes difficulties in interpretation such as the issue of non-parties, allocation of total allowable catch, and the area of application. The WCPF Convention is still basically consistent with the UNFSA and contributes much on the global attempt of implementing the UNFSA and UNCLOS in order to conserve and manage marine resources in general, and straddling/highly migratory fish stocks in particular.
4.1.2 The Commission for the Conservation of Antarctic Marine Living Resources
The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) was established by the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) in 1982 for the purpose of conserving of Antarctic marine living resources.[140] The CCAMLR is an international commission which aims to conserve the Antarctic marine living resources of the area south of 60° South latitude and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystem (Figure 2).[141] Known as one of the most effective fisheries management organizations, the CCAMLR has adopted and contributed much to the implementation of the UNFSA. The following will analyze the noticeable contributions of the CCAMLR and the CAMLR Convention.
- The precautionary approach
CCAMLR is widely regarded to have incorporated the precautionary approach more than any other RFMO.[142] Despite the fact that the application of the precautionary approach is not directly mentioned in the CAMLR Convention, the principles of conservation for harvesting activity in the Convention Area which is set out in Article II still support the application of it in the management of Antarctic fisheries. The Commission is required to base decisions on the best scientific evidence available in managing fisheries by receiving the advice from the Scientific Committee on harvesting levels and other management measures, especially the establishment of reference points.[143] Moreover, not only manage fisheries in the single species, the Commission also sets the requirements for dependent species, and the uncertainty in ecological relationships within the Antarctic ecosystem.[144]
- The Ecosystem Approach
Despite being directly mentioned in Article 5 of the UNFSA, the ecosystem approach still plays an important role in conservation and management of straddling/highly migratory fish stocks. It is considered that the CCAMLR has developed widest ecosystem approaches among RFMOs. The Commission has adopted several conservation measures related to ecosystem approaches for the purpose of balancing the interests of States and the duty of protection of marine resources and environment. For example, the CCAMLR designs the measures of: Longline weighting for seabird conservation in order to limit bycatch of this species[145]; Minimisation of the incidental mortality of seabirds and marine mammals in the course of trawl fishing in the Convention Area[146]; Limitation of by-catch in new and exploratory fisheries in the 2016/17 season[147]; and Restrictions on the use of bottom trawling gear in high-seas areas of the Convention Area[148]. These conservation measures of the CCAMLR reflects widely and deeply the provisions of Article 5 of the UNFSA in the field of the ecosystem approach.
- Allocation
Different from other RFMOs, the CCAMLR does not set out any general criteria for allocation of fishing opportunities. According to Article IX of the CAMLR Convention, the CCAMLR takes over the function of designing of the quantity of any species which may be harvested in the area to which this Convention applies; the quantity which may be harvested from the populations of regions and sub-regions; the size, age and, as appropriate, sex of species which may be harvested; open and closed seasons for harvesting; etc. If a member wants to fish a specific species in a certain area in the coming season, he must notify the CCAMLR. When the total allowable catch for that species is almost reached, the fishery will be closed for that area.[149] This measure is much based on the diversity of species and the vastness of the CAMLR Convention Area.
- Port State Schemes
As analyzed before, the UNFSA only has one article regulating about the measures taken by a port States that does not give any detailed guidance.[150] Therefore, the UNFSA leaves the implementing duty to RFMOs.
Currently, CCAMLR has adopted a number of port state measures including Catch Documentation Scheme for controlling of IUU fishing trade in toothfish and IUU Vessel Lists. Regarding Catch Documentation Scheme, it requires CCAMLR Members and non-Contracting Party cooperating with CCAMLR to identify the origin of Dissostichus spp. landed in, imported into, or exported or re-exported from its territories and determine whether Dissostichus spp. harvested in the Convention Area that is landed in, imported into, or exported or re-exported from its territories was caught in a manner consistent with CCAMLR conservation measures.[151] Besides, this Scheme also created the concept of cooperating non-Party, whereby a non-party may get benefits in the fishery if it shows a willingness to cooperate with the conservation and management measures established by the RFMO.[152] Up to date, the CCAMLR has two cooperating non-contracting Parties which are Ecuador and Singapore.[153] It is no doubt that this policy has contributed much to not only fill the gaps in preventing using fraudulent Dissostichus Catch Documents issued by non-participating States, but also enhance the cooperation between CCAMLR and non-contracting Parties. For example, as a result of these efforts, Namibia and Vanuatu joining the Convention. Moreover, Mauritius committed to close its ports to toothfish landings without valid catch documentation as from 2002, Mozambique denied landing to a Uruguayan-flagged vessel, and Belize cooperated with CCAMLR in ordering one of its vessels to remain in port in Durban pending an inspection by South African authorities.[154]
Besides Catch Documentation Scheme, IUU Vessel Lists for Contracting and non-Contracting Parties of the CCAMLR is also considered as an efficient measure of the CCAMLR. Vessels included in the lists are not to be allowed to land or tranship in CCAMLR Members’ ports[155], except in emergencies or when subject to enforcement action. When being in port, vessels will be inspected. In case the illegal catch is found, it will be confiscated.[156] The Commission also encourages port States that are not Parties to CCAMLR to cooperate with the CCAMLR Scheme of IUU Vessel Lists by denying access to the port to listed vessels, and by notifying CCAMLR Secretariat of port access requests by these vessels.
Overall, the CCAMLR has obviously been a front runner in the development and adoption of the principles, measures, and provisions of the UNFSA. Though the CCAML was established a long time before the birth of the UNFSA, it always amends, improves and updates itself in order to conform with the Agreement. Up to date, the CCAMLR is considered as one of the most successful RFMOs with the comprehensive conservation measures, mechanism, and regulations.
4.2 The Implementation of the UN Fish Stocks Agreement of States
4.2.1 New Zealand
Having one of the largest exclusive economic zones (EEZ) in the world, New Zealand is an important member of the UNFSA. The State signed the Agreement on December 4, 1995. However, there was no instrument of ratification deposited until 2001, six years later. In order to implement the Agreement, New Zealand has made a lot of emendation, improvement, and changes in its national legislation and policies. Until now, New Zealand has more than fifteen years history of implementation the Agreement and is considered as one of the most active and leading countries to the extent of effective implementation of the UNFSA. The following will assess some highlights of New Zealand domestic law as well as its active cooperation with the RFMO in the region in respect of the implementation of the UNFSA.
- Conservation and Management of Stocks
Overall, New Zealand has adopted and fully implement conservation and management measures set out in the UNFSA. Regarding the application of precautionary and ecosystem approaches, the State has incorporated these approaches into domestic law and legislation over the last 25 years. The Hazardous Substances and New Organisms Act 1996 is known as one of the first and only domestic statutes which expressly adopts the precautionary principle by name. However, the most recent and arguably most notable example of the incorporation of the precautionary principle in New Zealand law is in the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.[157] Furthermore, New Zealand has enacted several national plans of action using precautionary approach and ecosystem approach in order to protect species such as seabirds and sharks. For instance, in 2013, the State launched the National Plan of Action for Seabirds setting out objectives for five years to reduce the incidental catch of seabirds, and the National Plan of Action for the Conservation and Management of Sharks. Through these regulations and documents, New Zealand establishes the harvest control rules, applicable rules when reference points were reached and stock rebuilding strategies which show the incorporation of precautionary and ecosystem approaches of New Zealand.[158]
In accordance with the requirement of compatibility of conservation and management measures, New Zealand has taken a lot of efforts to ensure the compatibility of measures on the high seas and in areas under its national jurisdiction, especially through the RFMOs of which it is member such as the Commission for the Conservation of Southern Bluefin Tuna (CCSBT); the Western and Central Pacific Fisheries Commission (WCPFC) and the South Pacific Regional Fisheries Management Organisation (SPRFMO).[159] Besides, New Zealand also develops the area-based management tools. According to the report Area-based restrictions in the New Zealand marine environment prepared by Victoria A. Froude, the area-based restrictions include: marine reserves; marine mammal sanctuaries; areas administered under the Wildlife Act 1953, Reserves Act 1977 and Conservation Act 1987; restrictions under the Fisheries Act 1996 and its associated regulations; and submarine cable and pipeline protection and restriction areas. Depending on the specific areas, no person is allowed to fish or take any plant from those areas. Particularly, in cases there is one key damaging fishing method that is prohibited, making a big difference for certain valued and/or at risk biota, New Zealand will apply the benthic protection areas prohibition. For example, the prohibition on the use of trawl nets by any (commercial) fisher around 19 seamounts, protects the unique benthic biota on those seamounts from the damaging effects of bulk bottom fishing methods.[160]
In order to reduce the fishing capacity, New Zealand establishes a quota management system based on output control giving economic incentives. The Quota Management System helps ensure sustainable utilization of fisheries resources through the direct control of harvest levels for each species in a nominated geographical area. A fish species can consist of numerous geographically isolated and biologically distinct populations. Each fish species in the Quota Management System is subdivided into separate fish stocks defined by Quota Management Areas.[161] In addition, the determination of reference points and rebuilding and recovery strategies is also one of the aspects New Zealand pays much attention. The State sets out the Harvest Strategy Standard which will be implemented primarily through the development of Fisheries Plans and also the operational guidelines for this standard providing guidance on calculations of biological reference points, the basis for the default limits specified in the Harvest Strategy Standard, sections on the transition period for implementing the Harvest Strategy Standard, the roles and responsibilities of science working groups and management working groups in estimating biological reference points and setting management targets, and the implications of implementing the Harvest Strategy Standard.[162] Relating to by-catch management, New Zealand enacted the Driftnet Prohibition Act in 1991 for the purpose of prohibiting of driftnet fishing. Through to this Act, New Zealand sets out the tailored quota systems, by-catch strategies, and strict reporting requirements. Moreover, the State also takes actions to deal with lost or abandoned gear and related marine debris, to promote the recovery of lost or abandoned gear and reporting requirements for fisher including government observers aboard vessels.[163]
- Mechanisms for international cooperation and non-members.
In general, New Zealand has strengthened the mandates of the RFMOs to which it belonged by adopting the compliance and monitoring measures, and incorporating the modern approaches into newly concluded or amended constitutive instruments of the RMFOs and into provisional measures. Moreover, New Zealand also prepared a draft updated strategic plan and associated action plan to incorporate relevant elements from the recommendations of the Commission for the Conservation of Southern Bluefin Tuna review. Not only strengthening RMFOs and its domestic law, New Zealand also promotes participation in RFMOs and arrangements by providing regular funding to the RMFOs. For the period 2012/13 to 2014/15, New Zealand’s indicative allocations for development assistance through bilateral programs in the Pacific was $NZD638.1 million with a further $NZD154 million for Pacific Regional programs, making a total contribution to the bilateral and regional assistance of NZD792.1 million. The Pacific also benefits from New Zealand funding for multilateral agencies, humanitarian support, partnerships and funds, scholarships and other generic programs. In addition, New Zealand’s Regional Pacific Agencies Programme Strategic and Results Framework affirms its commitment to coherence across all New Zealand Government agencies working in the Pacific and alignment of New Zealand’s priorities for development assistance.[164] Furthermore, New Zealand also plays an active role in establishing new RFMOs and arrangements such as SPRFMO in 2012, and NPFC in 2015. [165]
- Monitoring, control and surveillance, and compliance and enforcement
New Zealand highlighted the use of new forms of technology to modernize and increase the effectiveness of the monitoring, control and surveillance tools, and the adoption of the Voluntary Guidelines for Flag State Performance which were endorsed by the FAO Committee on Fisheries in 2014. Moreover, New Zealand has contributed much to strengthen compliance, cooperation and enforcement schemes in RFMOs by ratifying the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region on 16 August 2005. This treaty is an important initiative against IUU fishing in the Pacific region. It aims to foster regional cooperation in fisheries legislation, surveillance and law enforcement by allowing coordinated monitoring, control and surveillance activities.[166] Regarding the actions to prevent, deter, and eliminate the IUU fishing, New Zealand actively opposes IUU. New Zealand ratified the FAO’s Agreement on Port State Measure in 2014. This agreement entered into force on 5th June 2016 and aims to prevent illegally caught fish from entering international markets through ports. It allows countries to conduct regular inspections of foreign vessels, and to deny vessels involved in IUU fishing from using ports or having access to specific services. When combined with catch documentation schemes, these measures makes it difficult for ports to process and market fish that’s caught illegally.[167]
- Developing States and non-parties to the UNFSA
New Zealand has taken a lot of actions to assist developing States and non-parties to the UNFSA such as active participating in the FAO process to establish voluntary international guidelines for catch documentation schemes, joining the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, and cooperation on the development of a global record of fishing vessels, contributing to the Assistance Fund under Part VII of the UNFSA which has purpose of facilitating the participation in and effective implementation of the Agreement by developing States. Moreover, regarding avoiding adverse impacts on, and ensuring access to fisheries in developing States, the State not only provided support to improve coastal fisheries governance in developing Pacific island States, but also integrated gender requirements into fisheries support such as encouraging protection for women working on fishing vessels and in processing factories.[168]
Through these analyses and assessments, it is no doubt to say that New Zealand is one of the leading states which effectively implement the UNFSA. The State has adopted many conservation and management measures into domestic legislation, and policies by not only amending, renewing and enacting its laws, but also actively participating in RFMOs, contributing to the progress of assistance developing States and encouraging non-parties joining the Agreement.
4.2.2 European Union
According to provisions of the UNCLOS, the European Union (EU) has exclusive competence pertaining to conservation and management of fisheries in its internal water, territorial sea, and the EEZ. The European Committee (EC) is also one of the largest fish producers in the world which ratified the UNFSA in 2003. Until now, the EC has implemented the UNFSA for 14 years. Therefore, the application of the conservation and management measures into its legislations and policies, and its performance in the RMFOs in the region play very important roles deciding the effectiveness of the implementation of the UNFSA and the successful achievement of the long-term sustainable use of straddling/highly migratory fish stocks.
- Conservation and management of stocks
One of the highlights of the EU in this field is the establishment and development of area-based management tools which was addressed in the 2030 Agenda for Sustainable Development and General Assembly resolutions on sustainable fisheries. Area-based management tools prohibit the fishing in a specific area at any rate (marine protected areas) or possibly (marine spatial planning). The EC has used this management tools in order to protect vulnerable marine ecosystems in its domestic laws. Moreover, it also contributes to the application of the high seas area-based management tools into the regulations of the RMFOs. For example, Article 17 of the Northwest Atlantic Fisheries Organization, Conservation and Enforcement Measures 2016 regulates detail about the Areas Restrictions for Bottom Fishing Activities in the Convention Area; the General Fisheries Commission for the Mediterranean adopted a resolution on area-based management of fisheries,[169] and also has closed the Sanctuary to fishing with towed dredges and bottom trawlnets (REC-GFCM/30/2006/3).[170] According to the resolution 69/292 adopted by the General Assembly on 19 June 2015, the EU supported the view that it is necessary to establish the comprehensive global regime to better address the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.[171]
Regarding reduction of fishing capacity, the EU has taken many steps to reduce the fishing capacity, especially the possibility of application of permanent cessation schemes.[172] According to Article 34.1 of the European Maritime and Fisheries Fund Regulation, support to permanent cessation is foreseen as a tool of the action plan referred to in Article 22.4 of Regulation 1380/2013 on the Common Fisheries Policy for fleet segments that are not effectively balanced with the fishing opportunities available to each of them. However, support for permanent cessation may be granted only until 31 December 2017.[173]
Moreover, the EU has strengthened the conservation and management of sharks not only through RFMOs, but only at the national level by adopting the Action Plan for the Conservation and Management of Sharks in 2009. The Action Plan outlines the measures already in place, and describes the additional measures needed to manage sharks in a comprehensive and coherent way. The implementation of the Action Plan will entail the modification of a number of existing regulations and, likely, the adoption of new ones.[174]
In order to manage the by-catch and reduce discards, the European Commission (EC) has introduced a “no-discard” policy. Since October 2014, the EC has adopted several discard plans (through so-called delegated acts) in preparation for the implementation of the landing obligation such as the Commission Delegated Regulation (EU) No 1392/2014 of 20 October 2014 establishing a discard plan for certain small pelagic fisheries in the Mediterranean Sea; the Commission Delegated Regulation (EU) 2015/2438 of 12 October 2015 establishing a discard plan for certain demersal fisheries in north-western waters; the Commission Delegated Regulation (EU) 2016/2250 of 4 October 2016 establishing a discard plan for certain demersal fisheries in the North Sea and in Union waters of ICES Division IIa; the Commission Delegated Regulation EU) 2017/87 of 20 October 2016 establishing a discard plan for turbot fisheries in the Black Sea.[175] Moreover, in 2006, the EC introduced regulations requiring the marking of passive gears (static longlines, gillnets and trammel nets) and beam trawls with the vessels’ port license number as a clear identifier. This applies to all vessels fishing this gear in Community waters outside of member state territorial waters.[176]
- Mechanisms for international cooperation and non-members
Pertaining to this aspect, the EC has undertaken many measures both at the national level and international cooperation through the RFMOs such as improving the science base of RFMOs and the efficiency of compliance assessment processes; reviewing regularly the implementation of the UNFSA of the Union; encouraging cooperation and/or participation of non-members; and improving decision-making rules and procedures.[177]
Particularly, the EU plays an active role in strengthening and enhancing the cooperation among RFMOs in which it is a member. Its development policy had supported the establishment of the African Platform for Regional Institutions for Fisheries, Aquaculture and Aquatic Systems in order to reinforce cooperation. The EU also noted the important role of members of multiple RFMOs and arrangements in sharing experiences between organizations. In addition, the EU also contributed to the Kobe process – the joint tuna regional fisheries management organization process which aims to harmonize the activities of the five tuna regional fisheries management organizations.[178]
Responding to the calling of the United Nations to ensure the implementation of interim measures adopted by the participants in negotiations to develop new organizations and arrangements in 2010, the EU has shown interest in attending in the establishment of a management framework for the Arctic high seas. In 2015, a declaration concerning the prevention of unregulated high seas fishing in the central Arctic Ocean was signed by all five coastal States including Canada, the Kingdom of Denmark, the Kingdom of Norway, the Russian Federation and the United States of America. By implementing certain interim measures, these States desire to deter unregulated fishing in the future in the high seas portion of the central Arctic Ocean.[179] Moreover, during the negotiations for the establishment of SPRFMO, the EU is one of the participants had developed and voluntarily implemented interim measures.[180]
- Monitoring, control and surveillance, and compliance and enforcement
Effectively control vessels fishing on the high seas is one of the biggest difficulties in the implementation of the UNFSA. On this field, the flag states play important roles in order to ensure the effective control of vessels flying their flag by both enacting national regulations such as licensing schemes, catch documentation schemes, and through adopting and requiring to comply with conservation and management measures of the RFMOs. To this concern, the EU ensures that its member States has taken many measures such as deducting quotas in case of overutilization of fishing opportunities or for non-respect of applicable rules, and withholding financial assistance when an offense poses a serious threat to conservation or the effective operation of the fisheries control system.[181] It is also one of few states developing the regional monitoring, control and surveillance schemes.[182]
According to the Council Regulation (EC) No. 1005/2008 relating to the prevention and elimination of illegal, unreported and unregulated fishing, all flag States are required to discharge their duties under international law as flag states otherwise they may be listed by the UN as non-cooperating third countries and no longer being able to trade fish with the Union. In addition, the EU also strengthens fisheries access agreements by starting its bilateral fisheries agreements with third countries in order to promote long-term resource conservation, good governance and the sustainable development of its partners’ fisheries sectors.[183]
Overall, the EU have undertaken and achieved many big steps in the progress of implementation of the UNFSA. Being one of the largest fish producers in the world, it can be said that the EU has been acting good performances and standing in the leading position that not only effectively implemented the conservation and management measures relating to straddling and highly migratory fish stocks as a member of the Agreement, but also contributed to the international constitutive instrument systems of protecting these stocks by actively participating in the RFMOs in strengthening the cooperation among members of the organizations, promoting wider participation in the Agreement, providing assistance and enhancing the participation of developing States in high seas fisheries, etc.
4.3 The Challenges of the Implementation of the UN Fish Stocks Agreement in Conserving and Managing Straddling Fish Stocks and Highly Migratory Fish stocks
4.3.1 Legislation
As analyzed in Chapter 3, the UNFSA is known as the second generation of the UNCLOS which provides the detailed regime for the conservation and management of straddling fish stocks and highly migratory fish stocks on the high seas. Moreover, the Agreement also strengthens and develops the measures and instruments for conservation and management of these stocks. Overall, it can be said that the Agreement is quite successful in supplying the necessary materials and legal framework for the cooperation of States and the establishment of regional fisheries management organizations.[184] However, until now, the implementation of the Agreement is still not so effective as of the result of the shortage of clarity, existing some gaps or controversies about the provisions of it. The following is going to outline some problems in the provisions of the UNFSA.
First of all, according to Article 17 of the Agreement, a State which is neither a member nor a participant of a subregional or RFMOs, and also which does not agree to apply the conservation and management measures established by such organization or arrangement, is not discharged from the obligation to cooperate, in accordance with the UNCLOS and the UNFSA, in the conservation and management of the relevant straddling/highly migratory fish stocks. As considered as the international customary law, the provisions of the UNCLOS may even be applied to the non-member of the Convention. So in this case, what does the obligation of cooperation mean? Does it mean that such State shall not authorize vessels flying its flag to engage in fishing operations for the straddling and highly migratory fish stocks which are subject to the conservation and management measures established by such organization or arrangement?[185] In this case, if the concerned stocks immigrate to the area which is out of control of such organization or arrangement, the non-member or non-participant State should be allowed to fish. This explanation could undermine the effort of conservation and management the concerned stocks of those RFMOs/arrangements. In another way, the duty of cooperation could mean that such State should become a member of such organization or participant in such arrangement, or agree to apply the conservation and management measures established by such organization or arrangement in order to enjoy the benefits of fishing those stocks?[186] In this case, the non-member State can, without having any contribution to the conservation and management of the stocks in the region before, just jump in and simply enjoy the benefit. This explanation also can cause the issue of “free rider” which will be discussed below. It is no doubt that the UNFSA should clarify this issue in order to have a better and more effective implementation.
Regarding the problem of allocation, accommodation of new member and prevent “free rider”, the UNFSA fails to develop allocation criteria which can accommodate all interests. The Agreement regulates that the States having a real interest in the fisheries concerned may become members of such RFMOs/arrangements. However, there is not any explanation about the definition of “real interest”. According to Erik Molenaar, it could be the case that (i) coastal States and DWFNs currently engaged in active exploitation of the fisheries; (ii) DWFNs, 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) DWFNs, which had never exploited the fisheries, but which would now like to do so.[187] From my point of view, the real interest should be defined as coastal States and DWFNs currently engaged in active exploitation of the fisheries because this way of explanation could avoid the situation of “free rider”. If we understand the term as case (ii) and (iii), it could definitely the case of a DWFN which sails its vessels around and jumps in every area which is available for fishing. Taking the benefits and exploiting the straddling/highly migratory fish stocks are the reasons of that DWFN for leaving or coming to that area. Therefore, the modification or clarification of this provision is very necessary in order to prevent the case of free rider.
Moreover, once a State becomes a new member of RFMO, the issue of determining the nature and extent of participatory rights for new member of the RFMOs/arrangement is also controversial. Article 11 of the Agreement lists out six factors that States have to take into account including: (a) the status of the straddling fish stocks and highly migratory fish stocks and the existing level of fishing effort in the fishery; (b) the respective interests, fishing patterns and fishing practices of new and existing members or participants; (c) the respective contributions of new and existing members or participants to conservation and management of the stocks, to the collection and provision of accurate data and to the conduct of scientific research on the stocks; (d) the needs of coastal fishing communities which are dependent mainly on fishing for the stocks; (e) the needs of coastal States whose economies are overwhelmingly dependent on the exploitation of living marine resources; and (f) the interests of developing States from the subregion or region in whose areas of national jurisdiction the stocks also occur.[188] However, in fact, the act of meeting all these requirements usually leads to the situation of not accommodating or accepting new members of the RFMOs. The reason is the area which is under the management of a RFMO and a number of nature resources within it are limited. Moreover, it takes quite long time and much expense for the existing member states to recover the fish stocks. Therefore, it is not easy for them to share the limited resources and the invested result with new members. The more members a RFMO has, the smaller amount of allowable catch of each member of it could have. In contrast, if becoming a member of a RFMO does not bring any benefit, a State is definitely not willing to join. The UNFSA fails to suggest any solution in order to balance the interests of both sides. As a result, the accommodation and determination of participatory rights for new members subject to disagreements.
Besides, the implementation of the UNFSA still remains some challenges such as the general principles (and ecosystem approaches) are only partially implemented; the high seas enforcement and dispute settlement procedures have not been utilised; the progress has been very slow in most areas; the ineffective decision making and the excess capacity of fishing fleet which is unbalanced with the resource base; etc.[189] In order to deal with these problems, it will need the effort and cooperation of all States, RFMOs, and arrangements at a global level.
4.3.2 Regional Fisheries Management Organizations
After sixteen years, the implementation of the UNFSA by regional fisheries management organizations and arrangements has steadily progressed. Most fisheries for straddling fish stocks are covered or becoming covered by regional fisheries management organizations and arrangements.[190] Despite efforts by the 18 RFMOs, it is shown that there has been no significant reduction in the amount of overexploited stocks while the amount of fully exploited stocks has increased, including straddling and highly migratory stocks for which many RFMOs bear responsibility.[191] For example, about 60 percent of shark species for which information is available to continue to be potentially overexploited or depleted. Since 2010, the percentage of non-fully exploited tuna and tuna-like species stocks has decreased from 17 to 14 percent, the percentage of fully exploited stocks has decreased from 53 to 49 percent, and the percentage of overexploited stocks has increased from 30 to 37 percent.[192] This leaves a big question to the effectiveness of the operation of the current RFMOs.
There are currently eighteen RFMOs working for the purpose of ensuring the long-term conservation and sustainable use of straddling and highly migratory fish stocks. However, the cooperation among members of RFMOs and RFMOs themselves, especially in the area of compliance and enforcement, is still weak. It is no doubt that the cooperation is critical not only for the conservation and sustainable use of straddling and highly migratory fish stocks, but also for the elimination of the IUU fishing. The progress of standardizing and sharing or improving vessel registers system, scientific data, and total catch data still remains much limitation and inefficiency. Until now, there is only the IMO ship identification number scheme which is unique, permanent, and globally verifiable identification numbers. The scheme was introduced in 1987 by the International Maritime Organization (IMO). According to this scheme, each ship will have a unique permanent number for the purpose of identification. Once assigned, the Number remains unchanged for a company and/or registered owner. In 2013, IMO adopted resolution A.1078(28) in order to allow the voluntary application of the IMO Ship Identification Number Scheme to fish vessels of 100 gross tons and above.[193] Therefore, the cooperation among RFMOs members and also among RFMOs themselves is a critical challenge that the international community has to deal with, especially when it plays an important role in effectively implementing the UNFSA and deterring the IUU fishing.
In addition, the lack of information and data about some species or some straddling and highly migratory fish stocks is also one of the biggest challenges for the conservation and management of those stocks. Data describing fisheries is necessary to scientific assess the state of fish stocks, to estimate sustainable yields, monitor the performance of fisheries, and the compliance with regulations on catch, effort, gear type, and time and area fished.[194] However, there is numerous shortage of fisheries data in some important types such as data on discards, data on social and economic aspects of fisheries, data on product flow. For instance, there is no information for a range of species, including Mediterranean Sea albacore and Indian Ocean billfish. Regarding shark species, no comprehensive assessment of their exploitation was possible because of the insufficiency of information. In particular, there are some shark species that there is no assessment could be provided on a global basis such as wing head, scalloped bonnethead, whitefin hammerhead, scoophead, great hammerhead, smooth hammerhead.[195] In addition, the problem of misreporting is also serious, especially for deepwater fisheries which include many straddling stocks. The Advisory Committee on Fisheries Management (ACFM) of the International Council for Exploration of the Sea (ICES) concluded that “it is currently not possible to provide advice for specific fisheries for deep-sea species”.[196] It is unquestionable that the current database or information is not sufficient enough for the conservation and management of the straddling and highly migratory fish stocks. Aditional and more specialized scientific research support is extremely required. This information failure leads to the inaccessibility of information on fish removals from stocks, thus compromising the ability to predict future stock size and capacity to provide yields,[197] and may also enable an IUU fisher to deny the catch was taken illegally.
Besides, the negligence in reviewing constituent instrument of RFMOs is also one of the factors undermining the effectiveness of the conservation and management of straddling and highly migratory fish stocks. Although the UNFSA sets out, in general terms, the minimum requirements for RFMOs, many of them were established prior to 1995[198] and do not possess a mandate to carry out all the functions given to them.[199] Moreover, there are also others reasons which challenge the effective implementation of the UNFSA of RFMOs. For example, members of RFMOs have been reluctant to apply high seas boarding and inspection so far, and have to date restricted high seas boarding schemes to members of RFMOs only.[200] Until now, there is no RFMO has set shark fishing catch limits, no RFMO addresses all of the requirements of adopting measures based on the best scientific evidence available, applying the precautionary approach and preventing or eliminating overfishing and excess fishing capacity, and controlling fishing effort.[201] In addition, the lack of effective regime, large-scale marine reserves and marine protected areas[202], failure to adopt appropriate conservation and management measures, and inadequate compliance with adopted measures are also the reasons make the implementation of the UNFSA of these organization less effective.
It is apparent that RFMOs are the primary mechanism for achieving the objectives of ensuring long-term conservation and management of the straddling and highly migratory fish stocks. However, the implementation of the UNFSA of these organizations still remains a lot of obstacles which need much more efforts and cooperation to deal with.
4.3.3 States
- Flag State control
Under Article 18 of the UNFSA, a state whose vessels fish on the high seas shall take such measures as may be necessary to ensure that vessels flying its flags comply with subregional and regional conservation and management measures and that such vessels do not engage in any activity which undermines the effectiveness of such measures. A State shall authorize the use of vessels flying its flag for fishing on the high seas only where it is able to exercise effectively its responsibilities in respect of such vessels under the UNCLOS and the Agreement. We can see that flag states are a core factor in implementing the conservation and management measures of straddling and highly migratory fish stocks because rights and obligations under international law are mainly imposed onto vessels via the flag states.[203] They can establish the conditions and rules for the registration and operation of vessels flying its flags.
However, since World War 2, though, the transfer of a ship’s nationality has become popular. Many shippers have transferred the nationality of their ships to that of emerging countries where the tough regulations of international agreements with respect to labor, safety, and ownership regulations can be avoided.[204] As a result, the ships contain virtually no link to the flag states in which they are registered. That system is known as “open registries”, so-called “flags of convenience” (FOC). Ship owners choose FOC for their vessels so as to evade or minimize regulatory requirements and associated costs. That is the reason why the number of FOC vessels has increased. However, those emerging countries generally lack the responsibility to fulfill the flag state’s obligation to honor international agreements. Therefore, the FOC has led to the occurrence of serious maritime problems.
Since allowing the ship owners register their vessels in another country, the FOC gives the opportunities for ship owners to hide their ownership structure. This can be used as a way to undertake commercial fraud, avoid strict regulations of it origin country or transfer benefits to abroad to evade the obligations of taxes. According to the 2003 OECD report, the cost of establishing a complex web of corporate entities in order to provide multiple-layered cover to the identities of beneficial owners is very low.[205] Moreover, FOC is also used as a way to take advantage of cheap labor and minimal regulation related to labor rights. The workers usually have to work in poor conditions, low wages, inadequate food or drinking water, and long periods of work without proper rest.[206] Regarding IUU fishing, FOCs are referred to as “flags of non-compliance” (FONC) where flag states do not fulfill their duty to enforce fishing regulations on the vessels flying its flags. With cheap costs and low requirements, FONC provides IUU vessels the chance to re-flag and change names easily to confuse management and surveillance authorities. Backed by shell companies, joint-ventures, and hidden owners, FOCN causes a lot of difficulties in locating and penalizing the real owners of IUU fishing vessels. Besides, FOC states normally do not have enough strong and sufficient administrative infrastructure and human resources to effectively control and monitor all the ships on their register. In case the beneficial ship owner is located outside the jurisdiction of the FOC states, the exercise of effective control seems like extremely difficult. [207]
The extent of flag State control by open registry States is influenced by a number of factors including the type of fishery, the presence of international pressure exerted through other States or RFMOs, and whether the State is a member of an RFMO.[208] In one side, this system helps to get more vessels under control of states. However, on another side, this is also jeopardy to the international law and brings a lot of problems since the control of flag states is not sufficient and lacks effective supervision of their operations. Therefore, enhancing flag State control continues to be one of the most important work, not only for the achievement of the sustainable development and for addressing IUU fishing, but also for ensuring compliance with the duties of the flag State under the UNCLOS.
- Port State Measures
The failure of the FOC has raised the need for the international community to establish a new system that can mitigate the weakness of flag state and increase marine safety. That is the system developed which authorizes the port states or coastal countries to control foreign ships.[209] According to Article 23 of the UNFSA:
1. A port State has the right and the duty to take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures. When taking such measures a port State shall not discriminate in form or in fact against the vessels of any State.
2. A port State may, inter alia, inspect documents, fishing gear and catch on board fishing vessels, when such vessels are voluntarily in its ports or at its offshore terminals.
After seven years, the FAO Port State Measures Agreement finally came into force on 5 June 2016 with the ratification of 25 states (and beyond). The Agreement is a major milestone in an attempt to combat IUU fishing. The treaty not only requires parties to designate and apply specific ports rule such as requesting permission to enter ports, providing local authorities with information, including on the fish they have on board, and allowing inspection of their log book, licenses, fishing gear and actual cargo, among other things, but also call on countries to deny entry or inspect vessels that have been involved in IUU fishing, and to take necessary action.[210] Moreover, the Port State Measures Agreement sets out the duty to share information regionally and globally related to any vessels discovered to be involved in IUU fishing.
Despite the useful regime that the Port State Measures Agreement contributes to the conservation and management of straddling and highly migratory fish stocks, especially in combat to IUU fishing, until now, the number of participants of this treaty is still very small, just thirty countries. In order to ensure the sustainability of fisheries and enhance the effectiveness of the implementation of the UNFSA, the cooperation of states through entering into international fisheries treaties and organizations is indispensable. IUU vessels can not be caught if we do not have an effective combination between the effort of flag state control and port state measures.[211]
- Capacity of developing States
Until now, the lack of capacity of developing States continues to be a challenge to the implementation of the UNFSA.[212] According to Part VII of the UNFSA, the special requirements of developing States is fully recognized and thus States shall to cooperate and provide assistance to developing countries in many aspects such as exchanging and analyzing fish stocks collection, reporting, fishing data and related information; monitoring, control, surveillance, compliance and enforcement, including training and capacity-building at the local level, development and funding of national and regional observer programs and access to technology and equipment.[213]
However, the developing states are now facing a big threat from IUU fishing. Ship owners usually register their vessels in the developing coastal state to avoid the strict conservation and management measure ordinarily applied to foreign fishing vessels. These vessels have complicated and multi-layered cover. Nevertheless, these developing coastal states do not have the capacity to manage and monitor these fleets. Besides, these states also normally lack capacity to fully investigate the authenticity of FOC vessels and their registration. This impacts on their investigations and can result in cases not being prosecuted.[214]
It is no doubt that the development of national capacity, especially of developing states in monitoring the operation of fisheries and enforcement associated laws and regulations is a core factor contributing to the effective management of fisheries resources in general, and of straddling and highly migratory fish stocks in particular. Therefore, it is very important to provide comprehensive and sufficient assistance to developing States in order to promote the effective implementation of all aspects of the UNFSA, consistent with Part VII of the Agreement.
In conclusion, this chapter has brought you through the implementation of the UN Fish Stocks Agreement by analyzing the work, practice, and operation of some regional fisheries management organizations and states. Overall, it can be said that the Agreement has been implemented effectively, a lot of regulations, and measures have been undertaken by both RFMOs and States. Moreover, RFMOs and States just not only simply comply and clarify the provisions of the Agreement, but also reflect their own special political, socio-economic, geographical and environmental characteristics in their regulations. These achievements contribute much to the conservation and management of the straddling and highly migratory fish stocks.
However, there still remain some challenges in not only legislation, but also in the operation and activities of RMFOs and States which undermine their effective implementation of the UNFSA. These obstacles, if not be solved in the near future, will jeopardize the attempt of the international community in conservation and management of marine resources in general, and of straddling and highly migratory fish stocks in particular. Therefore, the next chapter, Chapter 5, will propose some solutions to enhance and improve the effectiveness of the implementation of the UNFSA.
CHAPTER FIVE: PROPOSING SOME SOLUTIONS TO STRENGTHEN THE CONSERVATION AND MANAGEMENT OF STRADDLING FISH STOCKS AND HIGHLY MIGRATORY FISH STOCKS
5.1 Addressing the Legislation Issue
It is apparent that the most important thing needing to be done in order to improve the effectiveness of the implementation of the UNFSA is emendation and supplement of the provisions of the Agreement. Since the UNFSA is the core element which provides the framework for the establishment and operation of the RFMOs and states’ regulations, its provisions need to be clearer and more detailed. This can be achieved by both amending some articles of the Agreement and enacting protocols, amendments or memorandums.
Firstly, the Agreement should modify the regulations regarding accommodation of new member or participants. The term “real interest” mentioned in Article 8 of the Agreement should be clarified. It should be defined as coastal States and DWFNs currently engaged in active exploitation of the fisheries. It neither means DWFNs, 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 nor DWFNs, which had never exploited the fisheries, but which would now like to do so. The reason is the status of “currently engaged” showing the direct linking and up-to-date interests of the DWFNs or States. They are the entities that explore and depend on the fishing of straddling and highly migratory fish stocks at present. Therefore, they should be put on priority and allowed to get the benefits.
Secondly, the Agreement should clarify the provisions pertaining to allocation fishing opportunities. Currently, the UNFSA fails to develop allocation criteria which can accommodate all interests of the existing members, new members, and the necessary of conservation of the marine resources. These allocation criteria should balance the economic benefits to all parties from cooperation and compliance, including access arrangements, quota trading, and leasing.[215] Besides, the developing of a wide range of mechanisms or means in order to accommodate new members but not undermining the long-term sustainability of the fish stocks are also necessary. For example, we can allow new members to purchase or lease fishing opportunities from existing members of RFMO, or we can equitably divide the period of time of investing, conserving and fishing of the stocks in a specific area for different members and create a waiting list of new members.
Thirdly, there should be protocols, amendments or memorandums which play as the second generation agreements of the UNFSA in order to provide more details and clarify the provisions of the Agreement. The UNFSA currently puts too much work on the RFMOs and States in operating, identifying (measures, standards, methods, etc), assessing, and evaluating the result of the conservation and management of straddling and highly migratory fish stocks. Even though these factors should be different pertaining to different areas, there should be a more detailed framework for RFMOs and States in order to unify and guarantee the achievement of the Agreement objective. Besides, the constitutive instruments of the RFMOs or legislation of States should also be strengthened and updated in conformity with the UNFSA. Especially, these regulations should specify the formal management process, with identified roles and responsibilities, and limited time for completing and evaluating the operation and activities.[216]
5.2 Deterring, Preventing, Eliminating IUU Fishing
IUU exists as one of the most challenging problems for the long-term conservation and sustainable use of the straddling fish stocks and highly migratory fish stocks. In order to deal with this problem, there must have a combination of many entities, factors, and measures such as coastal States, flag States, port States, RFMOs, the implementation and operation of conservation and management schemes and measures, etc.
There are currently many different measures applied and implemented by coastal States, flag States, and port States. Each of them plays varying roles in the progress of deterring, preventing and eliminating IUU fishing. Coastal States are indispensable entities in establishment and operation of the RFMOs which is the main subject implementing the UNFSA. Moreover, these coastal states also set up rules, regulation and standard complying with the UNFSA’s requirements. In other words, coastal States, both directly by enacting domestic laws and indirectly through the participation in RFMOs, contribute much to the work of stopping IUU fishing. Furthermore, flag States, by running effective control on their vessels, and port States, by implementing the FAO port state model scheme, combining with a standardized approach to catch documentation schemes, play important roles in the fight against IUU fishing. However, these States still need to perform more effectively in order to achieve better results. They need to strengthen their active roles and show more political will in deterring IUU fishing. The detail recommendations will be discussed in specific parts below.
Regarding RFMOs, they need to review and modify their constitutive documents in conformity with the UNFSA, especially those related to IUU fishing. The establishment of new RFMOs in uncovering areas is definitely necessary for preventing IUU fishing. Moreover, RFMOs should also regularly research, report and assess the effectiveness of their works regarding stopping IUU fishing in order to update or apply the most sufficient and useful measures and schemes. It is unquestionable that deterring IUU fishing is not the fight of just only one single subject. It needs the cooperation of all parties, the entire global community including scientist, researcher, fishers, governments and international organizations. Therefore, in order to completely delete this problem, there must be improvements in the work of every single party.
5.3 Improving Database and Information
Lacking reliable database and information is one of the main factors affecting to the effectiveness of the conservation and management of straddling and highly migratory fish stocks. Not only being essential for the monitoring and management of fishery operations, this information is also necessary for tracking and assessing the status of the fish stocks, associated species, and ecosystems.
In order to improve database and information, there should be special provisions and mechanisms for the collection, reporting, and sharing of data of the straddling and highly migratory fish stocks. States and RFMOs should establish quality assurance and verification mechanism to ensure the sufficiency, accuracy, and reliance of the collected data. In addition, it is important to coordinate and share data collection among RFMOs, between RFMOs and States to create a full up-to-date database.[217] There is also a need to have a special fund and a scientific body for scientific research and data collection regarding the target and dependent species, the ecosystem, and the socio-economic impacts of fishing.[218] This will help to warrant the operation and progress of the collecting, analyzing and researching activities on the status of the fish stocks and related issues. Moreover, the economic and social information also need to be collected in order to support and provide the comprehensive database for making the decisions on national policies, fisheries legislation, fisheries management investments and programs.
Provided necessary information pertaining to the current status of the stocks, States and RFMOs will be able to apply effective conservation and management measures, determine the accurate reference points, establish suitable regimes and schemes, issue the sufficient action plans and create conservation areas. It is no doubt that improving the database plays an important role in conservation and management of straddling and highly migratory fish stocks.
5.4 Enhancing Capacity of States
For the purpose of strengthening the capacity of states in dealing with problems of conservation and management of straddling fish stocks and highly migratory fish stocks, the regular and routine reports should be made to provide the latest information to those making the legislation, policies, plans, and programs of fisheries conservation and management. Moreover, States also need to tighten the cooperation and increase the exchange of information with other states as well as international organizations in order to get the best available scientific data. If those data and information are used widely and effectively, they will definitely help to make a more active and meaningful management process and improve the capacity of states.[219]
In addition, we also can enhance the capacity of states by improving transparency not only in decision-making process but also in collect and manage fisheries data, information and documents. States should maintain websites which are public and accessible to provide and update the status of the fish stocks, the applied conservation measures and its results, the activities of the States, the trading data, and the related documents. Furthermore, it is also necessary to increase cooperation programs or forums in which developed states will share experiences, effective measures, methods in administration, legislation, and implementation to support other states. These programs will be good opportunities for states to approach and adopt the most valuable information and experiences.
5.5 Assisting Developing Countries
The special requirements of developing countries were officially recognized in the UNFSA. However, until now, the obligation of providing assistance developing countries has been done not so well. Therefore, developing countries need helps not only in provement of capacity but also financial ability.
Developing countries are those suffer the disadvantages such as small fishing fleets, low fisheries techniques, old and obsolete equipments, and inexperienced fishers. Therefore, these countries need a greater and more decisive, coordinated support from developed countries through exchanging experiences programs, training courses, transference of fishing techniques, and cooperated researching bodies or organizations. Moreover, the enhancing of monitoring and management capacity is also essensial. The assistance should focus on increasing the effectiveness of controling of developing countries not only on their vessels but also on foreign vessels within areas under their jurisdiction. Developing countries should be encouraged and supported to participate in regional fisheries management arrangements/organizations, and access to high seas resources. Regarding the issue of accommodation developing countries in to RFMOs or arrangements, new operational solutions need to be found while the general principles are inadequate. For example, attrition, whereby a small percentage of all existing holdings reverts to a central pool each year for redistribution, should be considered.[220]
In addition, the support of financial ability is also crucial. Most of developing countries do not have enough financial strength in order to develop administrative regime, bear the cost of monitoring, inspection, and enforcement, operate recovery programs, etc. Therefore, RFMOs and developed States should put more will and responsibilities in assisting developing countries such as by contributing and funding programs.
5.6 Strengthening the cooperation among RFMOs and RFMOs’ members
The mobility of the fishing fleet makes it extremely essential for RFMOs to cooperate with each other. There are currently 18 RFMOs which mainly fall into two groups so-called the tuna RFMOs and the non-tuna RFMOs. Other RFMOs focus on ensuring that the fishery does not negatively affect the wider marine ecosystem and the species within it. [221] These RFMOs cover approximately 91 percent of the world’s oceans and some of which overlap. Therefore, enhancing the coordination of RFMOs’ actions is indispensable for the effective operation and achievement of the common goals. Particularly, RFMOs should extend and deepen the scope of the exchange of information related to the status of fish stocks, vessels registration, fleet movement, compliance, management, and trade. Regarding overlapped areas, it is strongly recommended to have a unified and concerted mechanism which is able to provide the sufficient measures and administration to conserve and manage the stocks.
In addition, RFMOs are the combination of coastal states, flag states and port states with different schemes, measures and administration regime. Without the cooperation among members, it is very diffcult, if not possible, for a RFMO to operate and achieve the goals of conservation and management of fish stocks. Thus, these countries should tighten the cooperation through active participation in RFMO since it is the common chanel which connects all concern states and guarantee the unification of the implementation.
It is no doubt that strengthening the cooperation among RFMOs and their members is crutial to prevent, deter and eliminate IUU fishing, especially when IUU fishing is conducted within the areas of two or more RFMOs. In this case, we should link measures adopted by one RFMO with those of the others in that region. For example, ICCAT, NAFO, NEAFC, GFCM and SEAFO could conceivably have an interlocking system for port State measures with respect to fisheries in the Atlantic region.[222] As a result, the IUU fishing would be quickly determined, stopped and fined, and the conserving measures would be effectively enforced.
5.7 Dealing with Problems of Flag States’ Control
As analyzed in Chapter 4, the control of flag states is a core factor guaranteeing the effective implementation of the UNFSA. They are the most powerful subjects having the jurisdiction to monitor, surveil, and manage their fishing vessels and fising issues. Besides, rights and obligations under international law are also mainly imposed onto vessels via the flag states. Despite the steadily progress in improving the effective control of flag states, we still have to deal with some obstacles in this field.
Since the system so-called “flags of convenience” (FOC) has become popular, it brings the jeopardy to the effort in fisheries management and conservation of international community by giving states opportunities to conceal ownership, undermine the labor rights, easily escape from being caught when conducting IUU fishing. Therefore, we need to restore the “genuine link” between the shipping vessel and the flag state as required by Article 91 of UNCLOS. In 1986, the United Nations Convention for Registration of Ships was adopted which requires that a flag state must be linked to its ships either by having an economic stake in the ownership or by providing seafarers to crew ships.[223] However, the Convention has never entered into force because of lack of ratification. Thus, we need to put more attempt to rebuild the regulatory framework of genuine link between the shipping vessel and the flag it flies by enacting new convention or agreement. These new treaties should focuc on creating a system which balances all interests of not only port, flag, and coastal states, but also ship owners, shipping companies, and manufacturers, we can minimize the disadvantages of FOC.
On the other hands, domestic legal systems also need to be improved in conformity with the international maritime law through amending domestic law and maintaining effective administration. It is suggested that “domestic enactment of international regulations include the creation of a private cause of action for violation of these regulations, with the judicial system acting as a way of rectifying unsatisfactory ship conditions when the maritime authority does not”.[224] Furthermore, for the purpose of ensuring the genuine link between the vessel and the flag State, flag states should keep updated and sufficient information regarding to the register of vessels such as details of vessel characteristics, history, owner, operator, marking and unique vessel identification, preferably an IMO number, as well as increase the transparency of the corporate structure and ownership of vessels through cooperation with port states. Besides, the flag states also can strengthen its capacity to control their vessels by establishing a fisheries monitoring center, maintaining Vessel Monitoring System, ensuring adequate capacity of inspection, detection, and enforcement.
Moreover, it is unquestionable that a unique, permanent, globally verifiable identification number is crutial to the improvement of flag state’s control. Without it, owners can undermine transparency, and illegal fisherman can escape liability by changing their vessels’ names and flags whenever needed to escape scrutiny.[225] Currently, the scheme so-called the IMO ship identification number scheme has been used which provides a unique permanent number for each register vessel. However, there are not many states or RFMOs applying this scheme to their fishing fleets. Thus, flag states and RFMOs should definitely mandate the use of IMO numbers for fishing vessels flying their flags.
5.8 Improving the Port State Measures
In order to achieve the effective control on fishing vessels and prevent IUU fishing, the flag states’ control alone is not adequate. Combining with the Port State Measures, these managing instruments will work like pliers which tighten the control of the fishing vessels. For the purpose of ensuring the compliance of these vessels with international and domestic marine law, the Port State Measures (PSM) should mainly focus on the inspections of port states on fisheries related issues such as the registration of the vessels, the information of cargo carried on board, the catch documents, and the employment of crewmembers. Port States can establish certain requirements for vessels regarding the security of crew, goods, and vessels. The register authorization and fishing documents of vessels need to be available at all the time. If a vessel does not meet these requirements, it could be prohibited for departure for a period of time which can cause costly monetary losses for the shipowners and cargo owners, or denied to access to any port of that state in the future. With these strong punishment, the vessels owner will be more prudential and cooperative in compliance with fishing regulations, standards, and requirements. The effectiveness of this measures has been proved through the implementation of Paris Memorandums of Understanding. There are more than 18.000 inspections of foreign ships annually conducted in the ports belonging to the twenty Paris MOU states in order to ensure that all ships docking in their ports meet international safety and environmental standards, and that crew members have adequate living and working conditions. Evidence suggests that recent efforts by port states to increase inspections of vessels flying FOCs are effective.[226]
Besides, port states also should conduct others works to ensure their effective management and control such as formulate subsidiary legislation or amend the existing fisheries law and legislation complying with international regulations; operate legal training to enhance expertise and abilities for scientists, experts and officers; develop national data collection schemes and national integrated database system; ensure the adequacy of human resources and port facilities for inspection and enforcement; and set up special procedure to warrant the safety and security of inspectors during their work.[227] Particularly, there should be a strong call for the wide application of Port the State Measures Agreement.
On the other hand, the port state control regime should be broadly operated on a regional basis such as the Paris and Tokyo Memorandums of Understanding. These are organizations including many maritime Administrations empowered to set and enforce environmental, safety and security standards on member states.[228] These organizations mainly focus on improving regional network by promoting the bilateral and multilateral cooperation, especially in establishing, collecting and sharing information on national port State measures regulations.
All things considered, port state control has become one of the most effective means to ensure the conservation and management of the international fisheries. However, these states still must strongly cooperate with each other to maintain the effective system and highly control. Without the combination of increasing controls of flag states and improving the management of port states, it is impossible for international community to conserve straddling and highly migratory fish stocks and deter IUU fishing.
5.9 Encouraging active participation
The first step needed to be taken would be calling for states to participate in fisheries related treaties and agreements, especially UNCLOS and UNFSA.[229] According to the UN report updated on 03rd February 2017, there are 168 countries participated in the UNCLOS and 85 countries ratified the UNFSA.[230] It is obviously that the number of member states of the UNFSA is still very small, especially in comparison with the UNCLOS’s members. The more widely the agreement is adopted, the better opportunities to achieve its goals. Because of its international characteristic, a treaty needs the participation and cooperation of states as much as possible. With the small number of member states, it would be difficult for the UNFSA to promote and achieve its objective of the sustainable use of straddling and highly migratory fish stocks. Moreover, we strongly need to recommend some major maritime states to ratify, accept or approve these fisheries treaties. For instance, up to date, the United States is not a party of UNCLOS, the China is not a party of the UNFSA. The lack of participation of some major maritime states may reduce the influences of the treaties, especially in conservation issues that need effort and unified actions of every state.
Furthermore, the active participation of member states in RFMOs or arrangement is also important. In order to improve it, we should expand and deepen the communication and assessment of member countries, as well as encourage them to actively take part in all activities and programs of the RFMOs/arrangement, from collecting to analyzing data, planning, negotiating and making decisions, etc. RFMOs and arrangement should increase the appraisal of the performance of member states in implementing the measures, regulations, and programs of the organization/arrangement. Some disadvantages should be applied to the ineffectively performed parties such as decrease the catch limits of that country.[231]
Participating RFMOs and arrangement is a big step bring countries closer to the international attempt to conserve and manage straddling and highly migratory fish stocks. However, once becoming a member, state party must actively perform its obligation in parallel with enjoying the benefits so as to achieve the most effective implementation of the UNFSA.
5.10 Promoting public education and awareness
Despite coming into force since 2001, until now, after sixteen years, the UNFSA is still not well understood and implemented. People now underestimate the important of straddling and highly migratory fish stocks and the urgency of the issue of conservation of such stocks. The public understanding and knowledge about the conservation of concerned fish stocks, especially about the UNFSA Agreement and its provisions are still inadequate.
It is no doubt that the public education and awareness plays important role in conservation of the natural resource in general, and the straddling and highly migratory fish stocks in particular. The conservation and management of the concern stocks are mostly conducted by people such as research, collect and analyze data; discuss, enact, and amend provisions, regulations, standards and policies; establish, adopt and assess conservation measures; inspect and enforce the international and domestic regulation; fish, trade and report the fishing; etc. Obviously, the protection and the infringement are both conducted by people. Therefore, the improving the education and awareness of people is indispensable for the better protection of such stocks.[232] It is not the direct measure that immediately affects the conservation and management of fish stocks, but it does, indirectly and gradually, help to reduce the violation of the fisheries regulations and improve the effectiveness of the conservation and management. Since the public is highly aware of the important role of conserving such stocks, the political willing, the international cooperation and the implementation of fisheries agreements would achieve higher levels.
Moreover, raising people awareness also influences to the IUU fishing. Since the fishes caught from IUU fishing always need black markets to distribute which provides low prices but unguaranteed qualities and unidentified origin. Therefore, when the awareness of people increases, then the demand for this kind of fishes will consequently decrease causing the reduction of supplement. As a result, the IUU fishing will be reduced.
Considering all things above, we definitely should promote and improve public education and awareness on the conservation and management of straddling fish stocks and highly migratory fish stocks through operating forums, workshops projects, and programs which provide both general and detailed information about the UNFSA. International organizations should have special funds to support member states to proceed those long-term activities for the objective of long-term conservation and sustainable use of straddling and highly migratory fish stocks.
All in all, Chapter 5 provides some recommendations to strengthen the conservation and management of straddling fish stocks and highly migratory fish stocks. In order to achieve the goals of long-term conservation and sustainable use of such stocks, we must not only improve the effectiveness of the UNFSA but also proceed supportive activities. Regarding the legislative issue, besides addressing some provisions in the Agreement, the adoption of new protocols, amendments or memorandums is indispensable. Moreover, it is strongly recommended to tighten the control of flag states combining with squeezing the control of port states for a better fisheries management process. Those activities should be supported by the adequate database, sufficient infrastructure, effective administration and high public awareness of conservation and management of straddling fish stocks and highly migratory fish stocks. In addition, the cooperation among States, RFMOs and between States and RFMOs is also extremely essential for an international issue like this. Therefore, for the purpose of improving the conservation and management of stocks concern, it is no doubt that there must be efforts of the entire international community including every country, every organization and every person.
CHAPTER SIX: CONCLUSION
Conservation and management of straddling fish stocks and highly migratory fish stocks are not a new issue. The adoption of the UN Fish Stocks Agreement in 1995 stands as a prove of the early international concern and attempt to deal with the problem. Since then, a lot of regional fisheries organizations and arrangements were established and work together with States for the aim of achieving sustainable use of such stocks. We can say that the contribution of the Agreement and its implementation to the conservation and management of straddling and highly migratory fish stocks is undeniable. It not only provides the supplement and clarification for the UNCLOS provisions regarding such stocks but also establishes new norms and rules to help increase the effectiveness of the desired objectives. As recorded, there is approximately 91 percent of the world’s oceans is under the management of RFMOs.[233] The status of fish stocks which are fully exploited and overexploited have gradually been reduced.[234] These days, the RFMOs, arrangements, and States keep strengthening the cooperation among them and putting more effort in the progress.
However, the currently work of international community regarding conservation and management of straddling and highly migratory fish stocks is still inadequate. The RFMOs and arrangement have not effectively implemented the Agreement. Members and participants of these entities also have not performed the strong will and attempt to cooperate and act in conformity with the constitutive treaties. Besides, the implementation of coastal States and port States still lack sufficiency. There are many reasons for the current situation such as the shortage of detail of legislation, insufficient cooperations, ineffective measures, and policies. However, the core reason is the lack of mechanisms or measures which can balance the interest of States and the desire of conservation straddling and highly migratory fish stocks.
As a result, the mission of improving the effectiveness of the implementation of the UNFSA is put on the whole international community. In order to achieve that goal, we need to take action in different areas with the strong will and determination. Beside the need of having protocols, amendments or memorandums providing more details and clarifying the provisions of the UNFSA, we also have to proceed other related activities such as improving database and information regarding status of fish stocks, fishing quantity, authorized vessels, catch documents, etc; enhancing the capacity of states in accordance with administration, compliance and enforcement; resolving the problems of flag state’s control, especially strengthening the “genuine link” between the shipping vessel and the flag state; increasing the effectiveness of port state measures and calling for the participation of Port the State Measures Agreement; encouraging states to actively participate in the work of RFMOs and arrangements; and promote the public’s awareness about the process of conservation and management of straddling and highly migratory fish stocks, the UNFSA, its objectives and implementation.
Finally, we all know that the ocean and its marine resources are indispensable for humankind. There was a long time that human believed that marine resources are unlimited and eternal. However, with the development of technology and the extremely increase of demand, the marine resources, especially straddling fish stocks and highly migratory fish stocks are incredibly dropped. Because of the international characteristics of straddling fish stocks and highly migratory fish stocks, there would be no significant achievement if there is no intense cooperation among states. Therefore, there is a strong call for every state to put more effort and take action as soon as possible for the long-term conservation and sustainable use of such stocks. Undoubtedly, it is never too early to start working on conservation.
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[1] The Management of High Seas Fisheries Resources and the Implementation of the U.N. Fish Stocks Agreement of 1995, Trond Bjorndal and Gordon Munro, 2/2002, p.7
[2] Tahindro, A. (2002). Fisheries issues and the United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migrator. DOALOS/UNITAR Briefing on Developments in Ocean Affairs and the Law of the Sea 20 years after the Conclusion of the United Nations Convention on the Law of the Sea. New York: United Nation, p.1
[3] UNCLOS 1982, Article 63(2)
[4] Trond Bjorndal and Gordon Munro. The Management of High Seas Fishieries Resources and the Implementation of the U.N. Fish Stocks Agreement of 1995. Bergen: Institute for Research in Economics and Business Administration, 2002, p.3
[5] Id.
[6] Evelyne Meltzer, Global Overview of Straddling and Highly Migratory Fish Stocks, St. John St. John’s Conference, Figure A
[7] Jean-Jacques Maguire, Michael Sissenwine, Jorge Csirke, Richard Grainger, Serge Garcia, The state of the world highly migratory, straddling and other high seas fish stocks, and associated species, FAO Fisheries Technical Paper. No. 495. Rome: FAO. 2006. 84p.
[8] Food and Agriculture Organization of the United Nations, FAO’s Input to the UN Secretary-General’s Comprehensive Report for the 2016 Resumed Review Conference on the UN Fish Stocks Agreement (2016), p.4.
[9] Global Ocean Commission, Improving Accountability and Performance in International Fisheries Management. Policy Options Paper #9. Oxford, UK, 2013, p.1
[10] The United Nations, Resumed Review Conference on the Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of the United Nations in May 2010, General facts regarding world fisheries, New York, 2010, p.2
[11] Supra note 7, p.8
[12] Hardin, G., The Tragedy of the Commons, The Social Contract, 2001.
[13] Tragedy of the Commons, The Problem with Open Access, (accessed January 14, 2017) available from www.youtube.com/watch?v=WYA1y405JW0
[14] Supra note 9, p.8
[15] Munro, G.; Van Houtte, A.; Willmann, R, The conservation and management of shared fish stocks: legal and economic aspects, FAO Fisheries Technical Paper. No. 465. Rome, FAO. 2004. 69p.
[16] FAO. 2016, The State of World Fisheries and Aquaculture 2016, Contributing to food security and nutrition for all, Rome, 200 pp.
[17] Supra note 8
[18] Kjellrun Hiis Hauge, Belinda Cleeland and Douglas Clyde Wilson, Fisheries Depletion and Collapse, Geneva, 2009
[19] Supra note 7, p.27.
[20] Supra note 9, p.3.
[21] International Fisheries Management: How the U.N. Conference on Straddling and Highly Migratory Fish Stocks changes the Law of Fishing on the High Seas, published by CWSL Scholarly Commons, 1995
[22] UNCLOS 1982, Article 86
[23] Id, p.5
[24] Supra note 2.
[25] Munro G.R. (1994) Coastal States and Distant Water Fleets Under Extended Jurisdiction: The Search for Optimal Incentive Schemes, p.301. In: Başar T., Haurie A. (eds) Advances in Dynamic Games and Applications. Annals of the International Society of Dynamic Games, vol 1. Birkhäuser, Boston, MA
[26] UNCLOS 1982, Article 64
[27] UNCLOS 1982, Article 118 and 119
[28] UNCLOS 1982, Article 64
[29] UNCLOS 1982, Article 119(1)(a)
[30] UNCLOS 1982, Article 119( 1)(b)
[31] UNCLOS 1982, Article 56 and 73
[32] UNCLOS 1982, Aritcle 117
[33] Supra note 3, p.11
[34] Id, p.12.
[35] Supra note 3, p.13
[36] The UN Fish Stocks Agreement.
[37] The UN Fish Stocks Agreement, Article 3
[38] The UN Fish Stocks Agreement, Article 5(a)
[39] The UN Fish Stocks Agreement, Article 5(b)
[40] Garcia, S.M.; Zerbi, A.; Aliaume, C.; Do Chi, T.; Lasserre, G., The ecosystem approach to fisheries. Issues, terminology, principles, institutional foundations, implementation and outlook, FAO Fisheries Technical Paper. No. 443. Rome, FAO. 2003. 71 p.
[41] Supra note 14.
[42] C. Hedley, R.R. Churchill, L. De La Fayette, G. Hønneland and A. Serdy. Perspectives for the United Nation Fish Stocks Agreement. Brussels: European Parliament, 2007, p.29
[43] Id.
[44] The FAO Code of Conduct for Responsible Fisheries, Article 7.5.
[45] The UN Fish Stocks Agreement, Article 6(1)
[46] The UN Fish Stocks Agreement, Article 6(2) .
[47] The UN Fish Stocks Agreement, Article 6(3).
[48] The UN Fish Stocks Agreement, Annex II(2).
[49] The UN Fish Stocks Agreement, Annex II(3).
[50] The UN Fish Stocks Agreement, Annex II(7).
[51] The UN Fish Stocks Agreement, Annex II(5).
[52] The UN Fish Stocks Agreement, Article 6(6).
[53] The UN Fish Stocks Agreement, Article 6(7).
[54] C. Hedley, E.J. Molenaa, and A.G. Elferink. “The implications of the UN Fish Stocks Agreement (New York, 1995) for Regional Fisheries Organisations and International Fisheries Management. Luxembourg, 2003, p.35: Coastal States have attempted to extend their control over areas adjacent to their EEZ by referring to the provisions on high seas fishing of the LOS Convention. Coastal States have made reference to the fact that Article 116 of the Convention provides that the right to fish on the high seas is subject to the rights and duties as well as the interests of coastal States provided for, inter alia, in the Articles 63(2) and 64 of the Convention concerning straddling and highly migratory fish stocks. On the other hand, States fishing on the high seas have rejected the notion that under the LOS Convention coastal States have been accorded special rights in respect of these stocks beyond their EEZ, apart from the duty of States fishing on the high seas to cooperate with the coastal State.
[55] The UN Fish Stocks Agreement, Article 7(1).
[56] The UN Fish Stocks Agreement, Article 7(1)(a).
[57] The UN Fish Stocks Agreement, Article 7(1)(b).
[58] The necessary measures for conservation of straddling fish stocks is applied only in the adjacent high seas are whereas those for conservation of highly migratory fish stocks is applied both within and beyond the areas under national jurisdiction.
[59] The UN Fish Stocks Agreement, Article 7(2).
[60] A.G. Oude Elferink, “The Determination of Compatible Conservation and Management Measures for Straddling Fish Stocks and Highly Migratory Fish Stocks”, 5 Max Planck Yearbook of United Nations Law 551-607 (2001), p.557
[61] Supra note 48, p.560.
[62] The UN Fish Stock Agreement, Article 7, paragraph 2, sub-paragraph (a).
[63] FAO, Some High Seas Aspects relating to Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, July 1993, reproduced in: Lévy, note 11. 377, Annex V.
[64] The UN Fish Stocks Agreement, Article 7(2)(d).
[65] The UN Fish Stocks Agreement, Article 7(2)(e).
[66] The UN Fish Stock Agreement, Article 7(2)(f).
[67] The UN Fish Stock Agreement, Article 7(3), (4).
[68] The UN Fish Stock Agreement, Aritcle 7(5), (6).
[69] The UN Fish Stock Agreement, Aritcle 7(7), (8).
[70] Supra note 48, p.607.
[71] The UN Fish Stocks Agreement, Article 7(2).
[72] The UN Fish Stocks Agreement, Article 8(1).
[73] The UN Fish Stocks Agreement, Article 8(2).
[74] The UN Fish Stocks Agreement, Article 8(3).
[75] Supra note 14.
[76] The UN Fish Stocks Agreement, Article 8(4).
[77] Vienna Convention on the law of treaties 1969, Article 34: A treaty does not create either obligations or rights for a third State without its consent.
[78] The UN Fish Stocks Agreement, Article 9.
[79] The UN Fish Stocks Agreement, Article 10.
[80] Supra note 14.
[81] Id.
[82] R. Quentin Grafton, Ray Hilborn, Dale Squires, Maree Tait, and Meryl J. Williams, Handbook of Marine Fisheries Conservation and Management, Oxford University Press, 2010, p.654
[83] The UN Fish Stocks Agreement, Article 17(1)
[84] Vienna Convention on the law of treaties 1969, Article 35.
[85] The UN Fish Stocks Agreement, Article 8.
[86] The UN Fish Stocks Agreement, Article 17(3).
[87] Supra note 35, p.80.
[88] FAO, The International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Rome, 2001.
[89] Supra note 14, p.48.
[90] Id
[91] The UN Fish Stocks Agreement, Article 18(2).
[92] The UN Fish Stocks Agreement, Article 18(3).
[93] The UN Fish Stocks Agreement, Article 18.
[94] Supra note 35.
[95] The UN Fish Stocks Agreement, Article 18(3)(c).
[96] The UN Fish Stocks Agreement, Article 18(3)(e).
[97] The UN Fish Stocks Agreement,Article 18(3)(f)).
[98] The UN Fish Stocks Agreement, Article 18(3)(d).
[99] Supra note 35.
[100] The UN Fish Stocks Agreement, Article 19(1).
[101] The UN Fish Stocks Agreement, Article 19(2).
[102] The UN Fish Stocks Agreement, Article 21(1).
[103] Supra note 35, p.65.
[104] The UN Fish Stocks Agreement, Article 23(1).
[105] B. M. Tsamenyi & E. Jaap Molenaar, Satellite-based vessel monitoring systems International legal aspects & developments in state practice (2000).
[106] Supra note 35, p.71
[107] The UN Fish Stocks Agreement, Article 25(1).
[108] Supra note 35, p.71
[109] Id.
[110] The UN Fish Stocks Agreement, Article 25.
[111] The delegation of Norway, The UN Fish Stocks Agreement (UNFSA) and Tuna RFMO Members, 2nd Joint Tuna RFMOs Meeting, San Sebastian, 2009.
[112] Supra note 35, p.51.
[113] The UN Fish Stocks Agreement, Article 27 and 30.
[114] The UN Fish Stocks Agreement, Article 30.
[115] UNCLOS, Article 287(1): When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention:
(a) the International Tribunal for the Law of the Sea established in accordance with Annex VI;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with Annex VII;
(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.
[116] The UN Fish Stock Agreement, Article 30(5).
[117] The UN Fish Stocks Agreement, Article 31
[118] The UN Fish Stocks Agreement, Article 2.
[119] Supra note 14.
[120] The UN Fish Stocks Agreement, Article 25.
[121] Supra note 2.
[122] Supra note 35, p.30.
[123] Sandra Tarte, “Navigating Pacific Fisheries: Legal and Policy Trends in the Implementation of International Fisheries Instruments in the Western and Central Pacific Region,” in Navigating Pacific Fisheries: Legal and Policy Trends in the Implementation of International Fisheries Instruments in the Western and Central Pacific Region, Australian National Centre for Ocean Resources and Security, 2009.
[124] WCPF Convention, Preamble.
[125] WCPF Convention, Article 3(3).
[126] WCPF Convention, Article 7(1).
[127] WCPF Convention, Article 10
[128] About WCPFC, available from https://www.wcpfc.int/about-wcpfc, last visited 1st March 2017
[129] Frequently Asked Questions and Brochures, availabe from https://www.wcpfc.int/frequently-asked-questions-and-brochures, last visited 1st March 2017
[130] The WCPF Convention, Article 32(4).
[131] WCPFC, Review of the performance of the WCPFC, Commission Eighth Regular Session, Guam, 28th March 2012, p.74.
[132] Id, p.75.
[133] Sandra Tarte, The Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean: Implementation Challenges from a Historical Perspective, p.205
[134] The Review Team, “Review of the Performance of the WCPEC,” Western Central Pacific Fisheries Commission, Guam, USA, 2012, p.75
[135] Id.
[136] “Financial Statement and Independent Auditor’s Report, Year Ended December 31, 2009,” The Western and Central Pacific Fisheries Commission, USA, 2010.
[137] Supra note 106, p.213: the Convention has adopted many CMMs such as CMM 2006-09; CMM 2007-03; CMM 2009-09; CMM 2010-06 (Since 2007 and each year thereafter, the Technical and Compliance Committee has established a Provisional IUU Vessel List).
[138] Western and Central Pacific Fisheries Commission (WCPFC), available from http://www.internationalwatersgovernance.com/western-and-central-pacific-fisheries-commission-wcpfc.html, last visited 13th March 2017.
[139] Supra note 106, p.214.
[140] The CAMLR Convention, Article 2.
[141] The CAMLR Convention, Article 1.
[142] Supra note 35, p.36.
[143] Andrew Phillips, A review on Innovation and Impotence in Fisheries Instruments: The Convention on the Conservation of Marine Living Resources 1980 and Fish Stocks Agreement 1995, GCAS 2007
[144] G. Parkes, “CCAMLR’s Application of the Precautionary Approach,” Proceedings, 5th NMFS NSAW. 1999. NOAA Tech. Memo. NMFS-F/SPO-40.
[145] Conservation Measure 24-02 (2014).
[146] Conservation Measure 25-03 (2016).
[147] Conservation Measure 33-03 (2016).
[148] Conservation Measure 22-05 (2008).
[149] Supra note 35, p.60.
[150] The UN Fish Stocks Agreement, Article 23.
[151] Conservation Measure 10-05 (2016), §2.
[152] M. Lodge, “Recent Developments in International Fisheries Instruments and Trends Towards Sustainability,” in International Workshop on the Implementation of the International Fisheries Instruments and Factors of Unsustainability and Overexploitation in Fisheries, Siem Reap, Cambodia, 2004.
[153] Non-Contracting Parties, available from https://www.ccamlr.org/en/compliance/non-contracting-parties last visited 15th March 2017.
[154] Supra note 127.
[155] The Antarctic and Southern Ocean Coalition, The use of Port State Measures to Improve Fisheries Compliance at the International Level, Issues and Instruments – The CCAMLR case, 2006, p.12.
[156] Supra note 35, p.68.
[157] Dale Peter Scott, Application of the Precautionary Principle during Consenting Processes in New Zealand: Addressing Past Errors, Obtaining a Normative Fix and Developing a Structured and Operationalised Approach, University of Wellington, 2016.
[158] “Report submitted to the resumed Review Conference in accordance with paragraph 41 of General Assembly resolution 69/109 to assist it in discharging its mandate under article 36 (2) of the Agreement,” in Review Conference on the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 2016.
[159] International fisheries management, available from
https://www.mfat.govt.nz/en/environment/oceans/international-fisheries-management/ last visited 2nd March, 2017
[160] Victoria A. Froude and Roger Smith, Area-based restrictions in the New Zealand marine environment, December 2004, Department of Conservation MCU Report, 2004.
[161] New Zealand’s Quota Management System (QMS), available from
https://fs.fish.govt.nz/Page.aspx?pk=81 last visited 3rd March 2017
[162] Ministry of Fisheries, Operational Guidelines for New Zealand’s Harvest Strategy Standard, June 2011.
[163] Supra note 113.
[164] Pacific Islands Forum Secretariat. Suva, Fiji: Pacific Islands Forum Secretariat, New Zealand’s Development Cooperation in the Pacific: Report of the Forum Compact Peer Review 2015.
[165] Supra note 113.
[166] International fisheries management, available from
https://www.mfat.govt.nz/en/environment/oceans/international-fisheries-management/ last visited 3rd March, 2017
[167] Id.
[168] Supra note 113.
[169] Resolution GFCM/37/2013/1 on area based management of fisheries, including through the establishment of Fisheries Restricted Areas (FRAs) in the GFCM convention area and coordination with the UNEP-MAP initiatives on the establishment of SPAMIs
[170] Rochette, J., Wright, G. (2015). Developing area-based management tools in areas beyond national jurisdiction: possible options for the Western Indian Ocean, IDDRI, Working Papers N°06/15, 16 p, p.9
[171] Supra note 113.
[172] Id.
[173] European Commission, Non paper on permanent cessation schemes and scrapping premiums, April 2014
[174] EU Action Plan for Sharks, available from
http://ec.europa.eu/dgs/maritimeaffairs_fisheries/consultations/sharks/index_en.htm last visited 6 March 2017
[175] Discarding and the landing obligation, available from
https://ec.europa.eu/fisheries/cfp/fishing_rules/discards_en last visited 6th March 2017
[176] Graeme Macfadyen Tim Huntington and Rod Cappell, Abandoned, lost or otherwise discarded fishing gear, Rome, 2009.
[177] Supra note 113.
[178] Kobe Process, available from http://www.dfo-mpo.gc.ca/international/tuna-thon/Kobe-eng.htm last visited 6th March 2017
[179] Seamus Ryder, The Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean, July 31, 2015
[180] Supra note 113.
[181] Id.
[182] Australia, European Union, Norway.
[183] Supra note 113.
[184] Supra note 5.
[185] The UN Fish Stocks Agreement, Article 17(2).
[186] The UN Fish Stocks Agreement, Article 8(3)
[187] Supra note 14.
[188] The UN Fish Stocks Agreement, Article 11.
[189] Michael W. Lodge, David Anderson, Terje Løbach, Gordon Munro, Keith Sainsbury, Anna Willock, “Recommended Best Practices for Regional Fisheries Management Organizations, Report of an independent panel to develop a model for improved governance by Regional Fisheries Management Organizations,” The Royal Institute of International Affairs, 2007.
[190] Supra note 113.
[191] The Pew Charitable Trusts, Recommendations for the Sustainable Fisheries Resolution, 69th Session of the United Nations General Assembly, Oct 2014.
[192] Supra note 113.
[193] IMO identification number schemes, available from
http://www.imo.org/en/ourwork/msas/pages/imo-identification-number-scheme.aspx, last vistied on 18th March, 2017
[194] supra note 6.
[195] Supra note 113.
[196] Supra note 6.
[197] David W. Evans, “The Consequences of IIlegal, Unreported and Unregulated Fishing for Fishery Data and Management.,” Food and Agriculture Organization of the United Nations, Rome, Italy, 2000.
[198] The Commission for the Conservation of Antarctic Marine Living Resources (1982), Northwest Atlantic Fisheries Organization (1979), North Atlantic Salmon Conservation Organization (1983), North East Atlantic Fisheries Commission (1982), North Pacific Anadromous Fish Commission (1993), Pacific Salmon Commission (1985).
[199] Supra note 164.
[200] Supra note 35, p.73.
[201] The PEW Invironment Group, Finding Sustainability, Recommendations to the U.N. Fish Stocks Review Conference.
[202] Supra note 166: To date, only about 1 percent is fully protected. Large reserves, where ecological processes and functions can operate without human interference, are virtually nonexistent. Moreover, market demand has grown, while fish stocks are dwindling and ever more inaccessible, including those in polar regions. Even isolated and remote locations soon will face depletion unless there is transformative improvement in the management and governence of marine ecosystem.
[203] Patrizia Heidegger, Ingvild Jenssen, Delphine Reuter, Nicola Mulinaris and Francesca Carlsson, “What a difference a flag makes, Why ship owners’ responsibility to ensure sustainable ship recycling needs to go beyond flag state jurisdiction,” NGO Shipbreaking Platform, Brussels, April 2015.
[204] Port State Control, available from
http://eng.yeosu.mof.go.kr/yeosu/cnt/selectContentsPage.do?cntId=port_state_control last visited March 20, 2017
[205] supra note 178, p.10.
[206] Id
[207] Id
[208] Judith Swan, Fishing Vessels Operating under Open Registers and the Exercise of Flag State Responsibilities – Information and Options, Rome, 2002, FAO Fisheries Circular No. 980 FIPP/C980, ISSN 0429-9329
[209]Port State Control, available from
http://eng.yeosu.mof.go.kr/yeosu/cnt/selectContentsPage.do?cntId=port_state_control, last visited 20th March, 2017
[210] Port State Measures Agreement enters into force as international treaty, available from http://www.fao.org/blogs/blue-growth-blog/port-state-measures-agreement-enters-into-force-as-international-treaty/en/?platform=hootsuite, last visited 21st March 2017.
[211] Supra note 176.
[212] Supra note 113.
[213] The UN Fish Stocks Agreement, Article 25(3).
[214] FAO, Illegal, Unreported and Unregulated Fishing: Considerations for Developing Countries, Rome, 2001, FAO Fisheries Report No. 666, FIPL/R666(En).
[215] Supra note 164.
[216] Susan Singh-Renton, Ian McIvor, Review of current fisheries management performance and conservation measures in WECAFC area, FAO Fisheries and Aquaculture Technical Paper 587, Rome, 2015.
[217] Supra note 164.
[218] Id
[219] Supra note 191.
[220] Supra note 176.
[221] FAQ: What is a Regional Fishery Management Organization?, available from http://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2012/02/23/faq-what-is-a-regional-fishery-management-organization, last visited 30 March 2017.
[222] FAO, Implementation of the International Plan of Action to deter, prevent and eliminate, illegal, unreported and unregulated fishing, FAO Technical Guidelines for Responsible Fisheries 9, Rome, 2002.
[223] supra note 178.
[224] Tina Shaughnessy; Ellen Tobi, “Flags of Inconvenience: Freedom and Insecurity on the High Sea,” Journal of International Law & Policy, vol. V, 2006-2007, p.27
[225] Supra note 166.
[226] supra note 199, p.29.
[227] FAO, Report of the FAP/APFIC Workshop on Implementing the 2009 FAO Agreement on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing, Rome, 2012, p.19.
[228] supra note 199, p.29.
[229] Supra note 164.
[230] Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements, available from
http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm, last visited 30th March 2017
[231] Supra note 164.
[232] Supra note 191.
[233] “FAQ: What is a Regional Fishery Management Organization?,” 23 February 2012. [Online]. Available: http://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2012/02/23/faq-what-is-a-regional-fishery-management-organization. [Accessed 25th March 2017].
[234] Supra note 113.
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