Regional Fisheries Management Organizations

Some of these are the following:

1. 
   Investment. To achieve optimum utilization of a -fishery resource, positive investment may be necessary. The most obvious form of investment in a renewable resource is to ensure that the harvest rate is below the net natural growth rate. Such investment will build (or rebuild) the resource. Many of the world's fisheries now are overexploited a n d require such investment in order to produce optimum returns in the future.
   
2. 
   Some Conditions for Effective Cooperation.
   

• 
  The game theory of cooperative games assumes that all players are coldly rational and that altruism has no role. Under these conditions, game theory holds that the difficulty of achieving a stable cooperative management regime will increase with the number of participants (p layers). Not only is cooperation more difficult to achieve with more players, within the players, coalitions will almost inevitably form. Stability and cooperation may be disrupted if an individual or sub-coalition has an incentive to compete against the rest. An essential aspect of avoiding disruptive com petition whether by an individual member or a membership coalition is to assure now and in the future that each individual participant's and each sub-coalition's economic return from cooperation is at least as great as it would receive by acting competitively. In addition, it is important that allocation issues be resolved satisfactorily and equitably.
  
• 
  In order to foster effective cooperation non-compliance---the willful violation of cooperative management arrangements---must be aggressively combated. If noncompliance is widespread, the cooperative ethic necessary to the regime will break apart.
  
• 
  Effective cooperation will require addressing "free rider11 problems. The burdens of the regime must be shared equally among all members and non-members must not be allowed to share the benefits. An obvious aspect of the " free rider” problem is the "new member” problem. Should a new member be admitted after much investment effort by charter members has created a valuable resource? When a new member joins an RFMO the temptation is to increase the existing allowable catch in order to accommodate the new member without decreasing the shares of existing members. This solves nothing and only masks the cost to existing members of admitting a new member. The best way of solving the "new member” problem is to require new members to pay a price of admission, for example, by purchasing quotas of existing members. See Recommended Best Practices for Regional Fisheries Management Organizations (Chatham House, 2007)/ p. 1 6-17.
  

• 
  Effective cooperation requires that the RFMO be resilient over time so that it may survive the political, economic or environmental shocks that inevitably may arise. To the extent that the possibility of such change can be foreseen, it may be possible to build into an agreement automatic mechanisms of adjustment to changing conditions.
  
• 
  Cooperative resource management requires productive bargaining among the participants. Bargaining can be facilitated by keeping the scope for bargaining as broad as possible. For example, in the fisheries context, negotiations over allocations among cooperating states should not be confined to shares of allowable catch; cooperation can be facilitated by supplementing such allocations with, inter alia, access arrangements and quota trading.
  

3. 
   The Consequences of Ineffective Cooperation. Game theory tells us much about the consequences of non-cooperation with respect to a resource. When applied to fisheries, non-cooperation carries the risk of what is known as the "prisoners’ dilemma” outcome. This term comes from a story developed to illustrate the point that, under conditions of non-cooperation, the participants (players) will be driven to adopt strategies that they know will produce inferior results. For example, consider a transboundary stock of fish shared by two coastal states. If they do not engage in cooperative management each will inevitably deplete the resource, since neither party will have an incentive to "invest” in the resource, because the benefits of such investment would accrue to the other "free rider” state.
   

For a good overview of RFMOs, see http://www.fao.org/fishery/ri b/search.

1. 
   Why was this dispute not handled under the compulsory procedures established by Part XV of the UNCLOS? (Canada ratified U NC LOS in 2003).
   
2. 
   If the ICJ or an international tribunal had had jurisdiction, how would the Case of the Estai have been decided on the merits? Consider UNCLOS Articles 63 para. 2, 64, 87, 89, 90,116,117,118,119.
   

3. 
   Suppose it were proved that the Estai, just before the seizure, was fishing illegally just inside Canada's EEZ; would Canada have a right to seize the vessel? See U NCLOS Article 111.
   

4. 
   Suppose the Fish Stocks Agreement had been in force when the turbot war and the Estai incident arose; how would the matter likely have been handled under the Fish Stocks Agreement?
   

1. 
   The EU filed a complaint against Chile at the World Trade Organization charging that Chile's action was a violation of Articles V and XI of the Genera l Agreement on Tariffs and Trade (GATT). We defer this matter to Chapter 10 of this book since it concerns environment and trade.
   
2. 
   Chile brought a n action against the EU in the International Tribunal for the Law of the Sea (ITLOS), charging the EU with violations of UNCLOS Articles 64 (requiring cooperation to assure the conservation of highly migratory fish species), 116-119 (conservation of living resources of the High Seas), and 300 (calling for good faith and no abuse of right). The EU countered with charging Chile with violating UNCLOS Articles 87 (freedom of the High Seas) and 89 (prohibiting any state from subjecting any part of the High Seas to its sovereignty).
   

In 2001, the EU and Chile reached a preliminary agreement to settle their dispute, and the ITLOS suspended the proceedings in the dispute. In 2010, Chile and the EU concluded a final agreement ending the dispute. See Understanding Concerning the Conservation of Swordfish Stocks in the South Eastern Pacific Ocean, Official Journal of the European Union, L 155/3 (22 June 2010). This Understanding opens Chilean ports to fishing vessels from the EU, but obligates both parties to enforce strict conservation and management measures relating to swordfish. The Understanding establishes an EU/Chile Bilateral Scientific and Technical Committee, requires full exchanges of information, and requires the parties to manage catch levels of swordfish at or near maximum sustainable yield levels with the objective of maintaining the sustainability of the resources and safeguarding the marine ecosystem . The parties committed to applying a precautionary approach to fishing and to take steps to develop a multilateral conservation forum for the South Pacific. On 16 December 2009, at the request of the parties, the ITLOS removed the case from the ITLOS list of cases. See Order 2009/1, International Tribunal for the law of the Sea, Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v. European Union), 16 December 2009.

1. 
   What are the obligations of the fishing nations with respect to the doughnut hole under international law? Consider UNCLOS Article 116 (b): do high seas fishing nations have obligations toward coastal states? How would you define the scope of the obligations under this article?
   
2. 
   How can UNCLOS Article 116 (b) be made effective? Consider UNCLOS Articles 117 to 119.
   
3. 
   Consider UNCLOS Article 119 para. 2, which suggests the creation of a competent international organization.
   
4. 
   In 1994, the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea was concluded [reprinted in the Documentary Supplement and in 34 ILM 67 (199S)].The parties to this Convention are: Canada, China, Japan, Korea, Poland, Russia, and the United States. Read carefully the provisions of the Convention, which seeks to maintain catches of pollock at optimum levels that do not exceed the maximum sustainable yield, requires exchanges of data and information, and provides a forum for the establishment of necessary conservation and management measures. Does this Convention solve the problem of the dough nut hole? As of this writing, the fishing resources of the doughnut hole have not fully recovered. See Kevin M. Bailey, An Empty Donut Hole: The Col lapse of a Great North American Fishery (2011), available at http://www.ecologyandsociety.org, accessed 3 December 2012.
   
5. 
   
   

1. 
   Note that the Fish Stocks Agreement is designed to implement, not to replace, the provisions of UNCLOS, most importantly Article 63(2) of UNCLOS, which only requires parties to "seek to agree" on measures to conserve straddling stocks. The Fish Stocks Agreement also implements UNCLOS Article 64 on highly migratory fish stocks.
   
2. 
   What is the objective of the Fish Stocks Agreement? See Article 2.
   
3. 
   Note the management principles in Articles 5 and 6.
   
4. 
   Note how the management of straddling stocks and highly migratory stocks is stated differently in the compatibility Article 7.
   
5. 
   Articles 8 to 16 are designed to reform and strengthen the role of RFMOs.
   
6. 
   How is the problem of fishing by non-parties to RFMOs handled? See Article 8(4). See also Article 17 and 33. How can the Fish Stocks Agreement create obligations for non-party states?
   
7. 
   Articles 18 and 19 place obligations on flag states in order to strengthen flag state enforcement.
   
8. 
   Article 20 calls for cooperation in enforcement between flag states, coastal states and regional and subregional organizations.
   
9. 
   Articles 21 and 22 create a new kind of enforcement by "inspecting states". What is the authority of an "inspecting state"? What is the limit of this authority?
   
10. 
    Article 23 concerns the role of port states.
    
11. 
    Articles 24 to 26 is designed to strengthen the role of developing countries.
    
12. 
    Articles 27 to 32 deal with settlement of disputes.
    

1. 
   What rights, if any, does the Panamanian Estralla have to fish in the Doughnut Hole under UNCLOS? Consider UNCLOS Articles 116, 1 17, 118, and 119.
   
2. 
   Even though Panama is not a party to the Fish Stocks Agreement, is this Agreement relevant to resolving the p resent dispute? Consider Part IV of the Fish Stocks Agreement.
   
3. 
   Did the U S Coast Guard have the right to stop the vessel from fishing in the area, to confiscate its catch, and to force it to leave? Consider Article 21 of the Fish Stocks Agreement and Article XII of the Bering Sea Convention.
   
4. 
   Is the United States required to consider the Panamanian Estralla a Panamanian flag vessel? Consider UNCLOS Article 91. Consider also Article II of the Compliance Convention, which Panama has accepted as a State Party. Does South Korea have any duties under international law with respect to the reflagging of the Panamanian Estralla? See the Bering Sea Convention, Article XII, para. 4.
   
5. 
   How can non-parties be accommodated and allowed to fish under the Bering Sea Convention? Is there any mechanism in the Convention for non-party fishing? See Article XII.
   

ITLOS went on to order, by 18 votes to 4, that catches of tuna be maintained at 11,750 tonnes, and by 20 votes to 2, ordered that none of the parties engage in an experimental fishing program].

40. 
    Considering that. before prescribing provisional measures under article 290, paragraph 5. of the Convention the Tribunal must satisfy itself that prima facie the arbitral tribunal would have jurisdiction;
    
41. 
    Considering that Australia and New Zealand have invoked as the basis of jurisdiction of the arbitral tribunal article 288 , paragraph l , of the Convention which re ads as follows:
    

40. 
    Considering that Japan maintains that the disputes are scientific rather than legal;
    
41. 
    Considering that, in the view of the Tribunal, the differences between the parties also concern points of law;
    
42. 
    Considering that, in the view of the Tribunal, a dispute is a "disagreement on a point of law or fact, a conflict of legal views or of interests" (Mavrommatis Palestine Concessions. Judgment No. 2. 1924, P. C.J.J., Series A. No. 2. p. 11), and " [i]t must be shown that the claim of one party is positively opposed by the other" (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p.328);
    
43. 
    Considering that Australia and New Zealand allege that Japan, by unilaterally designing and undertaking an experimental fishing programme, has failed to comply with obligations under articles 64 and 116 to 119 of the Convention on the Law of the Sea, with provisions of the Convention for the Conservation of Southern Bluefin Tuna of 1993 (hereinafter " the Convention of 1993") and with rules of customary international law:
    
44. 
    Considering that Japan maintains that the dispute concerns the interpretation or implementation of the Convention of 1993 and does not concern the interpretation or application of the Convention on the Law of the Sea;
    
45. 
    Considering that Japan denies that it has failed to comply with any of the provisions of the Convention on the Law of the Sea referred to by Australia and New Zealand;
    
46. 
    Considering that, under article 64, read together with articles 116 to 119, of the Convention, States Parties to the Convention have the duty to cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of highly migratory species;
    
47. 
    Considering that the list of highly migratory species contained in Annex I to the Convention includes southern bluefin tuna: thunus maccoyii;
    
48. 
    Considering that the conduct of the parties within the Commission for the Conservation of Southern Bluefin Tuna established in accordance with the Convention of 199 3 , and in their relations with non-parties to that Convention is relevant to an evaluation of the extent to which the parties are in compliance with their obligations under the Convention on the Law of the Sea;
    
49. 
    Considering that the fact that the Convention of 1993 applies between the parties does not exclude their right to invoke the provisions of the Convention on the Law of the Sea in regard to the conservation and management of southern bluefin tuna;
    
50. 
    Considering that, in the view of the Tribunal, the provisions of the Convention on the Law of the Sea invoked by Australia and New Zealand appear to afford a basis on which the jurisdiction of the arbitral tribunal might be founded;
    
51. 
    Considering that Japan argues that recourse to the arbitral tribunal is excluded because the Convention of 1993 provides for a dispute settlement procedure;
    

54. 
    Considering that Australia and New Zealand maintain that they are not precluded from having recourse to the arbitral tribunal since the Convention of 1993 does not provide for a compulsory dispute settlement procedure entailing a binding decision as required under article 282 of the Convention on the Law of the Sea;
    
55. 
    Considering that, in the view of the Tribunal , the fact that the Convention of 1993 applies between the parties does not preclude recourse to the procedures in Part XV, section 2, of the Convention on the Law of the Sea;
    
56. 
    Considering that Japan contends that Australia and New Zealand have not exhausted the procedures for amicable dispute settlement under Part XV, section 1 , of the Convention, in particular article 281 , through negotiations or other agreed peaceful means, before submitting the disputes to a procedure under Part XV, section 2, of the Convention;
    
57. 
    Considering that negotiations and consultations have taken place between the parties and that the records show that these negotiations were considered by Australia and New Zealand as being under the Convention of 1993 and also under the Convention on the Law of the Sea;
    
58. 
    Considering that Australia and New Zealand have invoked the provisions of the Convention in diplomatic notes addressed to Japan in respect of those negotiations;
    
59. 
    Considering that Australia and New Zealand have stated that the negotiations had terminated;
    
60. 
    Considering that, in the view of the Tribunal, a State Party is not obliged to pursue procedures under Part XV, section 1 , of the Convention when it concludes that the possibilities of settlement have been exhausted;
    
61. 
    Considering that, in the view of the Tribunal, the requirements for invoking the procedures under Part XV, section 2. of the Convention have been fulfilled;
    
62. 
    Considering that, for the above reasons, the Tribunal finds that the arbitral tribunal would prima facie have jurisdiction over the disputes;
    
63. 
    Considering that, according to article 290, paragraph 5, of the Convention, provisional measures may be prescribed pending the constitution of the arbitral tribunal if the Tribunal considers that the urgency of the situation so requires;
    
64. 
    Considering, therefore, that the Tribunal must decide whether provisional measures are required pending the constitution of the arbitral tribunal;
    
65. 
    Considering that, in accordance with article 290, paragraph 5, of the Convention, the arbitral tribunal. Once constituted, may modify, revoke or affirm any provisional measures prescribed by the Tribunal;
    
66. 
    Considering that Japan contends that there is no urgency for the prescription of provisional measures in the circumstances of this case;
    
67. 
    Considering that, in accordance with article 290 of the Convention, the Tribunal may prescribe provisional measures to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment;
    
68. 
    Considering that Australia and New Zealand contend that by unilaterally implementing an experimental fishing programme Japan has violated the rights of Australia and New Zealand under articles 64 and 116 to 119 of the Convention;
    
69. 
    Considering that Australia and New Zealand contend that further catches of southern bluefin tuna, pending the of the matter by an arbitral tribunal, would cause immediate harm to their rights;
    
70. 
    Considering that the conservation of the living resources of the sea is an element in the protection preservation of the marine environment;
    
71. 
    Considering that there is no disagreement between the parties that the stock of southern bluefin tuna is serve depleted and is at its historically lowest levels and that this is a cause for serious biological concern;
    
72. 
    Considering that Australia and New Zealand contend that, by unilaterally implementing an experimental programme, Japan has failed to comply with its obligations under articles 64 and 118 of the Convention; which the parties to cooperate in the conservation and management of the southern bluefin tuna stock, and that the act of Japan have resulted in a threat to the stock;
    
73. 
    Considering that Japan contends that the scientific evidence available shows that the implementation experimental fishing programme will cause no further threat to the southern bluefin tuna stock and that experimental fishing programme remains necessary to reach a more reliable assessment of the potential of the stock to recover;
    
74. 
    Considering that Australia and New Zealand maintain that the scientific evidence available shows that the southern bluefin tuna taken under the experimental fishing programme could endanger the existence of the stock
    
75. 
    Considering that the Tribunal has been informed by the parties that commercial fishing for southern bluefin is expected to continue throughout the remainder of 1999 and beyond;
    
76. 
    Considering that the catches of non-parties to the Convention of 1 993 have increased considerably since 1991
    
77. 
    Considering that, in the view of the Tribunal, the parties should in the circumstances act with prudence caution to ensure that effective conservation measures are taken to prevent serious harm to the stock the bluefin tuna;
    
78. 
    Considering that the parties should intensify their efforts to cooperate with other participants in the fishery southern bluefin tuna with a view to ensuring conservation and promoting the objective of optimum utilization of the stock;
    
79. 
    Considering that there is scientific uncertainty regarding measures to be taken to conserve the stock of southern bluefin tuna and that there is no agreement among the parties as to whether the conservation measures taken have led to the improvement in the stock of southern bluefin tuna;
    
80. 
    Considering that, although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to a further deterioration of the southern bluefin tuna stock;
    
81. 
    Considering that, in the view of the Tribunal, catches taken within the framework of any experimental fish programme should not result in total catches which exceed the levels last set by the parties for each of them, under agreed criteria;
    
82. 
    Considering that, following the pilot programme which took place in 199 8 , Japan's experimental fishing currently designed consists of three annual programmes in 1999, 2000 and 2001;
    
83. 
    Considering that the Tribunal has taken note that, by the statement of its Agent before the Tribunal on 20 August 1999, Japan made a " clear commitment that the 1999 experimental fishing programme will end by 31 August ";
    
84. 
    Considering, however, that Japan has made no commitment regarding any experimental fishing programme 1999
    
85. 
    Considering that, for above reasons in the view of the Tribunal, provisional measures are appropriate under the circumstances;
    
86. 
    Considering that, in accordance with article 89, paragraph 5, of the Rules, the Tribunal may prescribe measures different in whole or in part from those requested;
    
87. 
    Considering the binding force of the measures prescribed and the requirement under article 290, paragraph 6, of the Convention that compliance with such measures be prompt;
    
88. 
    Considering that, pursuant to article 95, paragraph 1 , of the Rules, each party is required to submit to the Tribunal a report and information on compliance with any provisional measures prescribed;
    
89. 
    Considering chat it may be necessary for the Tribunal to request further information from the parties on the implementation of provisional measures and that it is appropriate that the President be authorized to request such information in accordance with article 95, paragraph 2, of the Rules;
    

I. For these reasons,

THE TRIBUNAL.

1. 
   Prescribes, pending a decision of the arbitral tribunal. the following measures:
   

B y 20 votes to 2.

1. 
   Australia, Japan and New Zealand shall each ensure that no action is taken which might aggravate or extend the disputes submitted to the arbitral tribunal;
   

IN FAVOUR: President MENSAH: Vice-President WOLFRUM; Judges ZHAO. CAMINOS, MAROITA RANGEL. YANKOV, YAMAMOTO. KOLODKIN, PARK. BAMELA ENGO, NELSON, CHANDRA SEKHARA RAO, A KL. ANDERSON, WARIOBA, LAING, TREVES, MARSIT, NDIAYE; Judge ad hoc SHEARER;

RANGEL, YANKOV, KOLODKIN, PARK, BAMELA ENGO, NELSON

CHANDRASEKHARA RAO, AKL. ANDERSON, LAING,. TREVES, MARS,

EIRIKSSON, NDIA YE; Judge ad hoc SHEARER;

(d) Australia, Japan and New Zealand shall each refrain from conducting an experimental fishing programme involving the taking of a catch of southern bluefin tuna, except with the agreement of the other parties unless the experimental catch is counted against its annual national allocation as prescribed in subparagraph (c);

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO, CAMINOS, MAROTT, RANGEL, YANKOV, KOLODKIN, PARK, BAMELA ENGO, NELSON

CHANDRASEKHARA RAO, AKL, ANDERSON. WARIOBA, LAING, TREVE

MARSIT, EIRIKSSON, NDIAYE; Judge ad hoc S HEARER

AGAINST: Judges YAMAMOTO, VUKAS

IN FAVOUR: President MENSAH; Vice-President WOLFRUM; Judges ZHAO, CAMINOS, MAROTTA RANGEL, YANKOV, YAMAMOTO. KOLODKIN, PARK, BAMELA ENGO, NELSON, CHANDRASEKHARA RAO, AKL, ANDERSON, LAING, TREVES, MARSIT, EIRIKSSON, NDIAYE; Judge ad hoc SHEARER;