Protection of the marine environment
SECTION VIII. MARINE FISHERIES
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- B. UNCLOS PROVISIONS
- C. NATIONAL FISHERIES MANAGEMENT SYSTEMS
- PROBLEM 7-9 FISHERY MISMANAGEMENT IN THE EXCLUSIVE ECONOMIC ZONE
- D. HIGH SEAS FISHERIES UNCLOS provision and Supplemental Fisheries Agreements
- The Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (2009, not in force) (Port State Measures Agreement).
- NOTE ON INTERNATIONAL AGREEMENTS GOVERNING DRIFTNET FISHING ON THE HIGH SEAS
SECTION VIII. MARINE FISHERIES A. FISHERY RESOURCES Exploitation of the world's marine fisheries has increased dramatically, from 16.8 million tons in 1950, to a peak of 86.5 million tons in 1996, then leveling off to a current rate of about 80 million tons per year at the present time. Virtually all of the world's stocks of the top ten species of fish, which account for about 30 percent of marine capture fish production, are fully exploited; some 29.9 percent of fishery stocks are overexploited, producing lower yields than their biological and ecological potential and therefore require strict management to restore their full potential . World trade in fish products has also grown exponentially, setting a record at U S $ 111.8 billion in 2010, and increasing at a rate of some 15 % per year. The total number of fishing vessels in the world is estimated at about 4.36 million, and fisheries and aquaculture provide employment for an estimated 54.8 million people engaged in the primary sector of fishing.36 Marine fisheries constitute a classic common resource. Fishery resources may be exploited by everyone so that individuals reap the benefit of the resource without regard to the cost of depletion of the resource until the resource is degraded for all. This is what is known as the "tragedy of the commons". See Garrett Hardin, The Tragedy of the Commons, 162 Science 143-48 (1968). In addition, fishing is commonly subsidized by many nations. Fisheries subsidies are estimated by the World Trade Organization to amount to between USD 14 to 20.5 per year, about 20 to 25 % of global fishing revenues.37 Subsidies obviously encourage overexploitation of fish stocks. The Doha Development Agenda, an international trade negotiation initiated in 2001 by the WTO seeks to reduce or eliminate fishing subsidies, but no agreement on this issue h a s been reached. Global marine fishery production has reached or exceeded its maximum potential, and careful management of fish stocks is essential just to maintain the present rate of exploitation. It is essential to establish sustainable management of all fisheries and to eliminate the causes of unsustainable fisheries, such as illegal fishing, inadequate or ineffectively implemented conservation and management measures, disregard for the interdependency of marine living resources, and environmental degradation. Customary and treaty law have developed sophisticated legal regimes governing fisheries, which we cover in this sect ion. The international law of fisheries management adopts a sectoral approach that specifies different management regimes for areas of national jurisdiction, the exclusive economic zones and archipelagic waters, on the one hand, and the high seas, on the other. In addition, regional fisheries management organizations (RFMOs) are now at the heart of the fight to achieve sustainable fisheries under international law. B. UNCLOS PROVISIONS The provisions of UNCLOS provide the framework for fisheries management under international law. UNCLOS contains provisions addressing fishing in national EEZs and on the High Seas; UNCLOS also addresses particular fishing stocks that range over both of these zones. Note especially the following provisions. 1) EEZ provisions:
2) Certain articles of U NCLOS address particular stocks of fish without regard to what maritime zone they are found:
3) Certain UNCLOS provisions concern fishing on the High Seas:
conservation and management of marine mammals on the High Seas. 4) One provision of UNCLOS applies specifically to so-called "straddling stocks” of fisheries—fisheries stocks that range over one or more EEZs or over EEZs and the High Seas. C. NATIONAL FISHERIES MANAGEMENT SYSTEMS Under UNCLOS the territorial sea and archipelagic waters are part of the territory of a coastal state. Foreign vessels exercising the right of innocent passage are not allowed to engage in fishing activities. Nevertheless, even in these national zones coastal states must take into account Article 193 of UNCLOS, which recognizes the sovereign right to exploit natural resources, but imposes a duty "to protect and preserve the marine environment." The main international regime for exploitation, management and conservation of marine living resources under UNCLOS is the exclusive economic zone (EEZ). Within this 200 nautical mile zone the coastal state is recognized to have sovereign rights over all living resources without exception. International law standards under UNCLOS governing the coastal state's management of fishery resources in its EEZ are set out in Articles 6 1 and 62. Read these provisions carefully. Is the coastal state obliged to maximize the production of its coastal fisheries? Is there a contradiction between Article 61, which requires maximum sustainable yield, and Article 62, which requires optimum utilization? What limits are there on the coastal state's freedom to determine harvesting capacity? Is the coastal state required to provide access to its EEZ fisheries to fishing vessels from other states? To what extent does the coastal state have a duty to cooperate with other states in setting the harvesting capacity in its EEZ? What limits are there on the coastal state's ability to specify conservation measures and other restrictions on fishing? What are the duties of a flag state whose vessels operate in the exclusive economic zone of other states? See Article 58. Do coastal states have a duty to cooperate with other states with regard to fishing in their EEZs? See Article 63 (1) and Article 64. The substance of each state's regulation of fisheries in its EEZ is up to national law. Fishery regulation in the United States is a cooperative effort under federal and state law. The states have jurisdiction over fisheries to the 3 nautical-mile limit (9 nautical miles offshore Texas and offshore Florida in the Gulf of Mexico). Federal regulation of fisheries in the remainder of the US EEZ is authorized under the Magnuson Fishery Conservation and Management Act, 16 USC sees. 1801 et seq. The Magnuson Act delegates fishery management to eight regional fishery councils: the North Pacific Council; the Pacific Council; the Western Pacific Council; the New England Council; the Mid-Atlantic Council; the South Atlantic Council; the Caribbean Council; and the Gulf of Mexico Council. Fisheries regulation in the United States concentrates on regulations concerning particular species or groups of species of fish and setting seasonal limits, gear restrictions, size limits, catch limits, and designating marine protected areas closed to certain fishing. Federal fisheries laws are enforced by the United States Coast Guard. The regional fisheries councils are coordinated by the National Marine Fisheries Service (NMFS) of the National Oceanic and Atmospheric Administration of the US Department of Commerce. Each year the NMFS reports to Congress on the state of US fisheries. I n its 2011 report, Status of Stocks 2011: Annual Report to Congress on the Status of US Fisheries, the NMFS concluded that 174 fishing stocks (79%) are not overfished, while 45 fishing stocks (21%) are overfished.
Zealand's extensive EEZ is divided into 10 different regional zones. In each of these zones, New Zealand Law, the Fisheries Act of 1996, establishes a quota management system, which covers some 95% of commercially valuable species of fish (96 different species and 628 different stocks). The first step in this system is that biological studies of a particular fish stock establish the stock's maximum sustainable yield (MSY) for the year in question. Second, using MSY data, the Primary Industries Ministry establishes an annual total allowable catch (TAC) for each fish stock. Third, a portion of this TAC is allocated to recreational fishers and to native Maori groups under the Maori Fisheries Act 2004. The remainder of the quota after this allocation becomes the total allowable commercial catch (TACC). This TACC is then allocated to fishing individuals and companies as Individual Transferable Quotas (ITQs), which provide an annual catch entitlement (ACE) for each individual for each stock in question. This ACE, which is allocated on the basis of historical fishing factors, is freely transferable; transfers are recorded in a public registry. An ITQ holder can sell all or part of his ACE or purchase additional ACEs. Commercial and recreational fishers must obtain a fishing license to participate in this scheme. Fishing vessels must also be registered. The system is enforced through a "catch balancing regime" that requires fishers who catch more than their allocated ITQ to pay a civil penalty. Criminal penalties are provided for fishing without a license or for using an unregistered vessel. The New Zealand fisheries authorities state that they use the same methods as developed in the United States to measure overfishing, and according to these methods, 15% of New Zealand stocks are overfished, a slightly better record than in the United States. Do you think the New Zealand fisheries regulation scheme is superior to that of the United States? What method do you think is best? Consider the following problem. PROBLEM 7-9 FISHERY MISMANAGEMENT IN THE EXCLUSIVE ECONOMIC ZONE States A and B are both parties to UNCLOS and are geographically adjacent coastal states, sharing a large and productive coastal fishery that is continuous in each of their respective exclusive economic zones. In State B fishery management administration is dominated by commercial and sport fishing interests and these interests, have successfully resisted all efforts to manage fishing within the EEZ of State B that would have assured the survival of a commercially valuable stock of flounder, a groundfish that does not migrate long distances. Furthermore, since ratifying UNCLOS, State B has maintained that it has the capacity to exploit all of the fishing stocks in its EEZ, and State B grants fishing permits and licenses only to nationals of State B. State A and State B have agreed on the delimitation of their lateral maritime boundary line. State B aggressively enforces this boundary line, and on two occasions, coast guard boats authorized by the government of State B have fired on fishing vessels from State A that have inadvertently crossed over the maritime boundary line by a few meters. On the second occasion three fishermen from State A suffered serious injuries. On a third occasion, a fishing boat from State A was confiscated by authorities from State B, and the master of the vessel was convicted of violations of State B's criminal laws and sentenced to a term in prison. State A manages the fishing stocks within its EEZ on the basis of maximum sustainable yield . State A strictly enforces Fisheries regulations, which include the licensing of fishing boats and fishing personnel, catch and seasonal limits, and the regulation of fishing methods and equipment. None of State A's fishing stocks are considered overexploited, and the flounder fishery in State A is still productive. However, State A has received information from experts that the flounder stock in State B is on the verge of collapse and that the collapse of this fishery in State B will have a negative impact on the founder fishery in State A, particularly in the maritime boundary region. State A is also concerned by the use of force by State B to defend its maritime boundary line. State A also believes that, if State B properly managed its flounder fishing stocks, it would have excess capacity, so that access by non-State B national s, including fishermen from State A, to exploit State B's flounder fishery would be feasible. State A is contemplating bringing a n action for dispute settlement against State B. Both State A and State B have selected the arbitration proceedings of UNCLOS Article 287, para. 1(c), as the applicable forum for compulsory dispute settlement under UNCLOS.
D. HIGH SEAS FISHERIES
Beyond the exclusive economic zones lie the High Seas, which, even with the expansive EEZs of coastal states, cover about 70 percent of the world's ocean areas. In this section we take up the problem of fishing on the high seas. Article 87 of UNCLOS provides that all states are free to fish on the High Seas, but Article 116 states that this freedom is not absolute, but is subject to important conditions and limitations:
These three categories of obligations require comment. (i) Treaty obligations. In the last twenty-five years important treaties have been concluded with regard to fishing on the High Seas. These treaty obligations are intended to supplement and to reinforce the general provisions of UNCLOS.
The Compliance Agreement was adopted under the auspices of the Food and Agriculture Organization (FAO) as part of the FAO's work on a Code of Conduct for Responsible Fisheries. Unlike the Code, which is voluntary, the Compliance Agreement is a legally binding treaty. The Compliance Agreement, which is reprinted in the Documentary Supplement, defines with particularity the responsibility of flag states with respect to fishing vessels on the High Seas that fly their flag. Article III, the heart of the Agreement, obligates flag states to take "such measures as may be necessary'' to ensure that their fishing vessels do not undermine international fishery conservation and management measures. Article III (3) deals somewhat obliquely with the issue of reflagging, the practice of changing the national registration of a fishing vessel as a means of avoiding compliance with international conservation and management measures. This article provides that "No Party shall authorize any fishing vessel entitled to fly its flag to be used to fishing on the high seas unless the Party is satisfied that it i s able, taking into account the links that exist between it and the fishing vessel concerned, to exercise effectively its responsibilities under this Agreement in respect of that fishing vessel." This provision is intended to discourage states from accepting vessel reflagging. The Compliance Agreement also sets out obligations requiring monitoring and exchange of information; international cooperation; and dispute settlement. The Compliance Agreement is the first global agreement on flag state responsibility. Article IX on Settlement of Disputes does not entail mandatory dispute settlement, and this article seems to detract from the UNCLOS provisions on dispute settlement and contributes to the fragmentation of the legal regime governing fishing activities.
The Port State Measures Agreement was formulated and adopted under the auspices of the FAO in order to bolster port state enforcement of illegal, unreported, and unregulated (IUU) fishing. This treaty retains enforcement authority in flag states but authorizes port inspection and port states may deny the use of their ports to offending vessels. (ii) UNCLOS Article 63, para. 2 and Articles 64 to 67. Note that coastal states are recognized as having special rights and duties with respect to straddling stocks (Art. 63, para. 2); highly migratory species (Art. 64); marine mammals (Art. 65); anadromous stocks (Art. 66); and catadromous stocks (Art. 67). To what extent does the Fish Stocks Agreement supplement these provisions? (iii) UNCLOS Articles 117 to 120. These provisions require states to cooperate with respect to adopting conservation and management measures applicable to fishing on the High Seas, to cooperate with regional fisheries management organizations, to use best scientific information in formulating conservation and management measures, and to apply those measures to their nationals. NOTE ON INTERNATIONAL AGREEMENTS GOVERNING DRIFTNET FISHING ON THE HIGH SEAS Driftnets are a form of net that traps fish by their gills, a technology that goes back thousands of years. Until the 1950s the size of driftnets was limited by the weight of the natural fibres (hemp or cotton) from which they were made. Driftnets became much larger, however, with the advent of synthetic fibres and efficient winches. By the 1960s driftnets that were 10 to 60 kilometers in length were deployed in many areas of the world, permitting fishers to gather a large catch of fish, particularly in pelagic areas. Environmental concern over driftnets has centered on the size and scope of their take and on the fact that their catch is indiscriminate, including many non-target species, marine mammals, and seabirds, which are gathered up and simply discarded. Driftnets lost or abandoned at sea last indefinitely, causing environmental disruption. At its peak in the 1980s, over 1000 vessels from many countries were operating, each night setting some 30,500 kilometers of driftnets in the world's oceans. In the late 1980s and early 1990s, the United Nations General Assembly passed a series of resolutions calling for the end of pelagic driftnets longer than 2.5 kilometers. In 1989, the UN General Assembly adopted Resolution 44/225, which called for a moratorium on the use of large-scale driftnets beyond the exclusive economic zone of any nation by June 30, 1992; and in 1992, the UN General Assembly adopted Resolution 46/215 (31 ILM 241), which is reprinted in the Documentary Supplement, calling for a global moratorium on all large-scale driftnet fishing on the High Seas of the world's oceans and seas by 31 December 1992. These UN resolutions were non-binding, but in 1989, fifteen South Pacific nations adopted the Convention for the Prohibition of Fishing with Long Drift Nets in the South Pacific (Wellington Convention, 1989), which commits the parties to undertake measures to combat driftnet fishing, including prohibiting the landing or processing of driftnet catches within their territory, prohibiting the importation of driftnet caught fish products, and restricting port access to driftnet vessels. Protocol 1 of the Wellington Convention commits parties that fish in the South Pacific region to prevent their nationals and vessels from using driftnets in the Convention area; Protocol II obligates parties to prohibit the use of driftnets in all areas under their fishery jurisdiction. The United States, which joined the Wellington Convention in 1992, enacted in 1990 amendments to the 1987 Driftnet Impact Monitoring, Assessment, and Control Act of 1987, that authorizes the US Secretary of State to seek to conclude international agreements that enforce a global ban on large-scale driftnet fishing. A key provision of such agreements is the right of the US Coast Guard to board and inspect vessels flying foreign flags on the High Seas that may be in violation of the global ban. See 16 USC sec. 1826. The global ban on large-scale driftnets is a major environmental success story. Virtually all states accepted the 1992 ban, and, as of 2012, large-scale driftnet fishing on the High Seas has been eliminated except for sporadic illegal activities. See 2011 Report of the Secretary of Commerce to the Congress of the United States Concerning U .S. Actions Taken on Foreign Large-Scale High Seas Driftnet Fishing (US Department of Commerce, 2011). Questions:
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