The precautionary approach to fisheries management: An environmental perspective

International Journal of Marine and Coastal Law

Volumn 11, Issue 3, 1996, Pages 301-332

  Hewison, Grant J ^a,b  

^a Centre for Strategic Studies   (New Zealand)

^b UNIVERSITY OF THE SOUTH PACIFIC   (Vanuatu)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL PERSPECTIVE; FISHERY MANAGEMENT; INTERNATIONAL POLICY; MANAGEMENT APPROACH; PRECAUTIONARY PRINCIPLE;

EID: 0030479097     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180896X00168     Document Type: Review

References (71)

1. See Agreement for the Implementation of the UN 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, done at New York, 24 July to 4 August 1995, A/CONF.164/37.
2. BIO 2 (hereinafter "Myers"); Ellen Hey, "The Precautionary Concept in Environmental Policy and Law: Institutionalizing Caution" (1992) 4 Geo. Int'l. Envtl. L. Rev. 303 (hereinafter "Hey")
3. R. C. Earll, "Commonsense and the Precautionary Principle: An Environmentalist's Perspective" (1992) 24 Marine Pollution Bulletin (1992) 182 (hereinafter "Earll");
4. James Cameron and Juli Abouchar, "The Precautionary Principle: A Fundamental Principle of Law and Policy for the Protection of the Global Environment" (1991) 14 BC Int'l & Comp L. Rev 1
5. (hereinafter "Cameron and Abouchar");
6. David Freestone, "The Precautionary Principle", in (1991) International Law and Global Climate Change 21 (R. R. Churchill and David Freestone (eds.) (hereinafter "Freestone");
7. Andre Nollkaemper, "The Precautionary Principle in International Environmental Law: What's New Under the Sun?" (1991) 22 Marine Pollution Bulletin 107 (hereinafter "Nollkaemper");
8. Daniel Bodansky (1991) 33 Environment 4 (April 1991) (hereinafter "Bodansky");
9. Paul Johnston and Mark Simmonds, "Green Light for Precautionary Science", Talking Point, New Scientist, 3 August 1991 (hereinafter "Johnston & Simmonds");
10. Lothar Gundling, "The Status in International Law of the Principle of Precautionary Action", (1990) 5 IJECL 23 (hereinafter "Gundling");
11. Gunther Handl, "Environmental Security and Global Change: The Challenge to International Law" (1990) 1 YB Int'l. Envtl. L. 3 (hereinafter "Handl").
12. For consideration of the precautionary approach to fisheries management, see Greenpeace International, "A Precautionary Approach to Fisheries", March 1994 (hereinafter "Greenpeace 1994");
13. Justin Cooke (IUCN), "The Precautionary Approach to Fisheries and Reference Points for Fishery Management", March 1994, IUCN (hereinafter "Cooke");
14. J. Cooke and M. Earle, "Towards and Precautionary Approach to Fisheries Management" (1993) 2 Review of European Community and International Environmental Law 252-259 (hereinafter "Cooke and Earle");
15. FAO, "The Precautionary Approach to Fisheries with reference to Straddling Fish Stocks and Highly Migratory Fish Stocks", UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, A/CONF.164/INF/8, 26 January 1994 (hereinafter "FAO 1994");
16. Margaret Spring, "International Fisheries Management and the Precautionary Principle" (1992) (unpublished dissertation on file with the present author) (hereinafter "Spring");
17. S. Garcia, "The Precautionary Principle: Its Implications in Capture Fisheries Management", 22 Ocean and Coastal Management 99, 106 (hereinafter "Garcia");
18. Michael Earle, "A Precautionary Approach to the Management of Fisheries in the North Atlantic" (Greenpeace: July 1994)
19. (hereinafter "Greenpeace North Atlantic 1994"). See also Appendix.
20. Principle 15, The Rio Declaration on Environment and Development, 13 June 1992, A/ CONF.151/5/REV.1
21. (hereinafter "Rio Declaration").
22. Garcia, n. 2 above at 100. See also William T. Burke, The New International Law of Fisheries- UNCLOS 1982 and Beyond (Oxford, Clarendon Press, 1994), pp. 265-266.
23. Nollkaemper, n. 2 above at 107; Freestone, n. 2 above. See also K. von Moltke, "The Vorsorgenprinzip in West German Policy", Appendix 3, Royal Commission on the Environment, 12th Report, 1988.
24. See generally, the Second International Conference on the Protection of the North Sea, 1987
25. (Second International Conference on the Protection of the North Sea, 1987, Ministerial Declaration, cited in Cameron and Abouchar, n. 2 above 4-5)
26. the Paris Commission established under the 1974 Convention for the Prevention of Pollution from Land Based Sources (Recommendation 89:1 of June 1989) (cited in Nollkaemper, n. 2 above at 107), the Parties to the 1976 Convention of the Protection of the Mediterranean Environment (Recommendation of October 1989) (cited in Nollkaemper, n. 2 above at 107), the Conference on "Action for a Common Future", in Bergen, 1990
27. (Conference on "Action for a Common Future", Bergen, Norway, 8-16 May 1990, Bergen Ministerial Declaration on Sustainable Development in the ECE Region, at para. 1, 1 (16 May 1990), cited in Cameron and Abouchar, n. 2 above, 4)
28. and the Third International Conference on the Protection of the North Sea, 1990 (Third International Conference on the Protection of the North Sea, 1990, Final Declaration of the Third International Conference on the Protection of the North Sea, cited in Cameron and Abouchar, n. 1 above, 16-17). See also Freestone, n. 1 above, 23-30;
29. UNEP Governing Council Decision 15/27, Precautionary Approach to Marine Pollution, Including Waste-Dumping at Sea, (1990), reprinted in Cameron and Abouchar, n. 2 above, 14: Recognising that waiting for scientific proof regarding the impact of pollutants discharged into the marine environment may result in irreversible damage to the marine environment and in human suffering ... [the Governing Council] recommends that all the governments adopt the 'principle of precautionary action' as the basis of their policy with regard to prevention and elimination of marine pollution ...".
30. Bamako Convention on the Ban of the Import Into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa, 29 January 1991, 30 ILM 773. Article 4.3(f) of this Convention states that: Each Party shall strive to adopt and implement the preventative, precautionary approach to pollution problems which entails, inter-alia, preventing the release into the environment of substances which may cause harm to humans or the environment without waiting for scientific proof regarding such harm. The Parties shall co-operate with each other in taking the appropriate measures to implement the precautionary principle to pollution prevention through the application of clean production methods rather than the pursuit of a permissible emissions approach based on assimilative capacity assumptions.
31. Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, (1987) 26 ILM 1550. Preambular para. 6 endorses the precautionary principle: "[The Parties are] determined to protect the ozone layer by taking precautionary measures to control equitably total global emissions of substances that deplete it ...".
32. UN General Assembly Resolution "Large-Scale Pelagic Driftnet Fishing and Its Impacts on the Living Resources of the World's Oceans and Seas", reprinted in (1990) 29 ILM 1556. UNGA Resolution 44/225 recommended a global moratorium on high seas driftnets be implemented unless nations take "effective conservation and management measures ... based on statistically sound analysis ... to prevent [the] unacceptable impacts" of the practice.
33. In the resolution the Assembly noted that many countries were disturbed by the increase in the use of large-scale pelagic driftnets (which could reach or exceed 30 miles (48 kilometres) in length) to catch living marine resources on the high seas. The Assembly expressed concern that, in addition to targeted species of fish, non-targeted fish, marine mammals, seabirds and other living resources could become entangled in driftnets, either those in active use or in those that were lost or discarded. It also noted the serious concern, particularly among coastal states and states with fishing interests, that the over-exploitation of living resources of the high seas adjacent to the exclusive economic zone of coastal states was likely to have an adverse impact on the same resources within such zones, and also noted, in that regard, the responsibility for co-operation in accordance with the relevant articles of the UN Convention on the Law of the Sea. See "Large-scale pelagic driftnet fishing and its impact on the living marine resources of the world's oceans and seas", Report of the Secretary-General, UN GAOR, 45th Sess., UN Doc A/ 45/663 (1990), 3
34. (hereinafter "Secretary General 1990").
35. See, for example, W. T. Burke, "Unregulated High Seas Fishing and Ocean Governance", Freedom for the Seas in the 21st Century-Ocean Governance and Environmental Harmony
36. James Carr and Matthew Gianni, "High Seas Fisheries, Large-Scale Driftnets, and the Law of the Sea", Freedom for the Seas in the 21st Century-Ocean Governance and Environmental Harmony
37. Kazuo Sumi, "The International Legal Issues Concerning the Use of Drift Nets, with Special Emphasis on Japanese Practices and Responses", in Jon M. Van Dyke, Durwood Zaelke and G. Hewison (eds.), Freedom for the Seas in the 21st Century-Ocean Governance and Environmental Harmony (Washington DC, Island Press, 1993). See also Garcia, n. 2 above, at 102-103.
38. See, for example: Draft Report II, Technical Consultation of High Seas Fishing, Rome 7-15 September 1992 (FAO), at 13
39. (hereinafter "FAO Draft Report II");
40. "High Seas Fisheries Management: New Concepts and Techniques", Technical Consultation of High Seas Fishing, Rome 7-15 September 1992, FI/HSF/TC/92/5 (FAO, May 1992), at 6
41. (hereinafter "High Seas Fisheries Management: New Concepts and Techniques");
42. "Legal Issues Concerning High Seas Fishing", Technical Consultation of High Seas Fishing, Rome 7-15 September 1992, FI/HSF/ TC/92/8 (FAO, June 1992), at 8-9
43. (hereinafter "Legal Issues Concerning High Seas Fishing");
44. "New Concept and Techniques: Non-Paper, Technical Consultation of High Seas Fishing", September 1992, Japan. 5 (Fisheries Agency of Japan, September 1992), at 5
45. (hereinafter "Fisheries Agency of Japan");
46. "Greenpeace Submission to the FAO Technical Consultation on High Seas Fishing", 7-15 September 1992, Rome, Italy, Greenpeace International, (1992)
47. (on file with the present author) (hereinafter "Greenpeace Submission to the FAO Technical Consultation on High Seas Fishing");
48. "High Seas Fishing: Statement of Greenpeace International to the Twentieth Session of the FAO Committee on Fisheries", Rome 15-19 March, 1993 (Greenpeace International) (held on file with the present author)
49. (hereinafter "High Seas Fishing: Statement of Greenpeace International to the Twentieth Session of the FAO Committee on Fisheries");
50. "FAO: Technical Consultations on High Seas Fisheries, Rome 7-15 September 1992, New Zealand Delegation Report", WPPLGLI 1178, (Ministry of External Relations and Trade, Wellington, undated)
51. (on file with the present author (hereinafter "New Zealand Delegation Report").
52. See also Moritaka Hayashi, "United Nations Conference on Straddling Stocks and Highly Migratory Fish Stocks: An Analysis of the 1993 Sessions", Pacem in Maribus XXI (1993), 16-17 (hereinafter "Hayashi").
53. Greenpeace International Internal Memorandum, dated 14 December 1992, Greenpeace International (held on file with the present author)
54. (hereinafter "Greenpeace International Internal Memorandum").
55. Art. 5 and Annex II, Draft Convention on the Conservation and Management of Straddling Stocks and Highly Migratory Fish Stocks on the High Seas, UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, 28 July 1993. This paper was submitted by the delegations of Argentina, Canada, Iceland and New Zealand. See Hayashi, n. 22 above.
56. Cameron and Abouchar, n. 2 above, at 19. See also North Sea Continental Shelf cases (West Germany v Netherlands; West Germany v Denmark), 1969 ICJ 3, 43-44.
57. Louise de La Fayette, book review (1991) 38 Netherlands Int'lL Rev 73, 76;
58. UN Convention on the Law of the Sea, UN Doc. A/CONF.62/122, reprinted in 21 ILM 1261 (1982) (hereinafter "LOS Convention").
59. See Garcia, n. 2 above, 106; W. Burke, "UNCED and the Oceans", (1993) Marine Policy, 519, 531.
60. See also Greenpeace International, Intervention dated 15 July, UN Conference on Straddling Stocks and Highly Migratory Fish Stocks, July 1993 (on file with the present author); NGO Statement Concerning Fisheries, Straddling Stocks and Highly Migratory Fish Stocks, presented to the UN Conference on Straddling Stocks and Highly Migratory Fish Stocks, New York, 12-30 July 1993 (hereinafter "NGO Statement"). NGOs argued that "UNCLOS's framework for fisheries, though not yet formally in force, strongly supports the precautionary approach-mandating conservation of living resources in the high seas (Art. 117) as well as in zones of national jurisdiction (Art. 61(2)). Moreover, with UNCLOS (Art. 119(b) and 61(4)) requiring that the effects of fishing practices on associated and dependent species be taken into account, the precautionary approach greatly increases the likelihood that such species will be protected despite uncertainty regarding impacts", NGO Statement, above, 2 (paras. 6-7).
61. See Elizabeth Mann Borgese, Ocean Governance and the United Nations (Centre for Foreign Policy Studies: Dalhousie University, 1995), p.53.
62. Greenpeace International Position Paper for the Third Substantive Session of the UN Conference on Straddling Stocks and Highly Migratory Fish Stocks, 15-26 August 1994, 1
63. (hereinafter "Greenpeace International Position Paper 1994").
64. This type of approach has been attempted in CCAMLR. Here a 1991 conservation measure requires no new fishery be started until it has been examined by CCAMLR. The country proposing to start the fishery has to provide as much information as possible about the fishery, giving CCAMLR the opportunity, before the fishery starts, to put in place conservation measures. However, the system is still far from perfect. There still has to be consensus to agree to any conservation measure and it is easy to foresee cases where a proposer of a new fishery blocks any moves to regulate it (CCAMLR merely has to have ben given the chance to regulate the fishery. CCAMLR permission is not required before fishing proceeds). Nonetheless, there is a commitment that commercial catches will not be allowed to expand faster than the Scientific Committee is able to consider the implications. Janet Dalziell, "CCAMLR and the Precautionary Approach", (Greenpeace International, 19 August 1993).
65. See also W. T. Burke, "Regulation of Driftnet Fishing on the High Seas and the New International Law of the Sea", (1990) 3 Georgetown International Environmental Law Review 265-310, at 279 (hereinafter "Burke"). Burke suggests that there can be departure from MSY, primarily because of the qualification of relevant environmental and economic factors although he does not especially consider the arguments put forward above. See also Garcia, n. 2 above, at 105.
66. years ago, the International Court of Justice pronounced that "the former laissez-faire treatment of the living resources of the sea ... has been replaced by a recognition of... the needs of conservation for the benefit of all. Consequently [there is an obligation] ... to keep under review the fishery resources ... examine ... in the light of scientific and other available information, the measures required for the conservation and development ... of those resources." Fisheries Jurisdiction Case, 1974 ICJ 3 at 31, para. 72.
67. See Burke, n. 76 above, at 275-278. See also G. Hewison, "Driftnet Fishing in the South Pacific and the Law of the Sea", (1993) 5 Georgetown International Environmental Law Review (1993), 239-514, at 356-368.
68. The Agreement does not clearly state that precautionary approaches should be applied at all times in a fishery. Agreement, n. 38 above. South Pacific nations were concerned that the draft text implied that States must always use a precautionary approach. See South Pacific Nations, "Notes on the Precautionary Approach", undated (on file with the present author). The question of when precautionary approaches should be applied to a fishery differs between commentators. The FAO seems to suggest that precautionary approaches only be taken in time of stress on the fishery: "The concept of precaution requires management authorities to take pre-emptive action where there is a risk of severe and irreversible damage to human beings and, by extension, to the resources and the environment, even in the absence of certainty about the impact or the causal relationships. When there is doubt about the effect of a technology or fishing practice on the marine environment and resources, preventive or remedial action would have to be taken, erring on the safe side, with due consideration to the social and economic consequences." The FAO perspective does not appear to conform with Principle 15 of the Rio Declaration, n. 3 above, which states that: "Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."
69. See US Discussion Draft, "Precautionary Approaches", 16 March 1994, submitted to the UN Conference on Straddling Stocks and Highly Migratory Fish Stocks (on file with the present author).
70. Cooke, n. 2 above, 4-5. This is a restatement of the burden of proof being shifted. "The precautionary principle demands that the environment must not be left to show harm before action is taken. The burden of proof is shifted from those seeking to protect the environment to those exploiting it." See B. Wynne and S. Mayer, "How Science Fails the Environment", New Scientist, June 1993, 33-35, at 34.
71. See also A. Milne, "The Perils of Green Pessimism", New Scientist, 12 June 1993, 34-37.