The practice of fishing entities in regional fisheries management organizations: The case of the commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean

Ocean Development and International Law

Volumn 37, Issue 2, 2006, Pages 185-207

  Lodge, Michael W ^a  

^a OECD   (France)

Author keywords

Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean; Fishing entities; UN Fish Stocks Agreement

Indexed keywords

CONSERVATION; FISHERY MANAGEMENT; FISHING COMMUNITY; INTERNATIONAL LAW; UNITED NATIONS;

ASIA; EURASIA; FAR EAST; PACIFIC OCEAN; PACIFIC OCEAN (CENTRAL); PACIFIC OCEAN (WEST); TAIWAN;

EID: 33744926709     PISSN: 00908320     EISSN: 15210642     Source Type: Journal    
DOI: 10.1080/00908320600632116     Document Type: Article

References (39)

1. Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, done at Honolulu, 5 September 2000. Entry into force 19 June 2004. Reproduced at www.wcpfc.org.
2. "The Western and Central Pacific Tuna Fishery 2003: Overview and Status of Tuna Stocks," at www.spc.org.nc/OceanFish/Docs/Research/wcptf03.htm.
3. Convention for the Establishment of an Inter-American Tropical Tuna Commission, done at Washington D.C., 31 May 1949. In force 3 March 1950. See www.iattc.org.
4. International Convention for the Conservation and Management of Atlantic Tunas, done at Rio de Janeiro 14 May 1966. In force 21 March 1969. See www.iattc.es.
5. Convention for the Conservation of Southern Bluefin Tuna, done at Canberra, 10 May 1993. In force 20 May 1994. See www.csbt.org.
6. Agreement for the Establishment of the Indian Ocean Tuna Commission, done at Rome, 20 November 1993. In force 27 March 1996. See www.iotc.org.
7. 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, 4 December 1995. In force 11 December 2001, (1995) 34 International Legal Materials 1542 and at www.un.org/ Depts/los.
8. French Polynesia, New Caledonia, and Wallis et Futuna.
9. Guam, Commonwealth of the Northern Marianas, and American Samoa.
10. Pitcairn, Henderson, Ducie and Oeno Islands.
11. The People's Republic of China asserts sovereignty over the island of Taiwan. Most U.N. member states recognize the government in Beijing as the sole legitimate government of China. The democratically elected government of the Republic of China in Taipei is not recognized by the majority of the international community, even though it exercises de facto control over the island of Taiwan and its surrounding islets as well as two island groups adjacent to Fu-Jian Province of Mainland China. The position of the People's Republic of China has been based on United Nations General Assembly Resolution 2758 (XXVI), 25 October 1971, which recognizes inter alia that "the representative of the Government of the People's Republic of China to the United Nations is the only lawful representative of China to the United Nations and that the People's Republic of China is one of the five permanent members of the Security Council." The precise linkage between representation in the United Nations and recognition remains unclear. Whatever the legal situation, there is general agreement that the position in the United Nations is without prejudice to the position in the internal law of a State. In resolution 396 (V), 14 December 1950, the General Assembly recommended that whenever more than one authority claims to be the government entitled to represent a member state in the United Nations and the subject becomes a matter of controversy, it should be considered in the light of the purposes and principles of the United Nations. However, the same resolution went on to declare that the attitude adopted by the General Assembly should not itself affect the direct relations of individual member States with the State concerned. This presumably includes the right to enter into treaties. Accordingly, in its Note to Correspondents of 10 February 1972, the United Nations Secretariat explained that A/Res./2758 (XXVI) constituted recognition of the People's Republic of China for General Assembly purposes and left bilateral relations untouched.
12. United Nations Juridical Yearbook, (1972), (New York, 1974), 154.
13. South Pacific Commission, Fisheries Yearbook 2003.
14. The South Pacific Forum Fisheries Agency (FFA) is an intergovernmental organization, based in Honiara, Solomon Islands, established for the purpose of providing policy coordination and technical advice to its 17 member countries on fisheries matters. FFA members are the member countries of the South Pacific Forum.
15. Although, in fact, at the opening and throughout the entire course of MHLC 2, the host government arranged the seating so that Chinese Taipei sat under the letter "C" and the People's Republic of China sat under the letter "P." This was not well received by the People's Republic of China, which insisted on the U.N. practice of using the designation "China". Curiously enough, the Republic of Korea did not object to being seated under "K" as "Korea."
16. As arrangements for issuing lists of participants were usually in the hands of host governments who did not necessarily understand the subtleties involved, this led on several occasions to the author being woken up late at night or early in the morning by sharp-eyed members of the PRC delegation who had spotted an inadvertent reference to "Taiwan" or an official position carried by a member of the Chinese Taipei delegation.
17. The Majuro Declaration is reproduced at www.oceanlaw.net/texts/ majuro.htm.
18. Chairman's opening statement, MHLC 3, Tokyo, June 1998. On file with the author.
19. Ibid.
20. See the account of the work of the Group of 21 (Nandan Group) at UNCLOS III in Tommy T.B. Koh, "The Negotiating Process of the Third United Nations Conference on the Law of the Sea," in Satya N. Nandan and Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea: A Commentary, Vol. 1 (Boston: Martinus Nijhoff, 1985), at pp. 109-110.
21. Agreement on the Implementation of Part XI of the 1982 Law of the Sea Convention, 28 July 1994, entered into force 28 July 1996. (1994), 33 International Legal Materials 1309.
22. See generally: R.R. Churchill and A.V. Lowe, The Law of the Sea (Manchester: Manchester University Press, 1999, 3rd Edition), at pp. 19-21.
23. MHLC/WP.2, 20 July 1999, reproduced in Appendix I to this article.
24. MHLC/WP.1/Rev. 4, 16 September 1999, reproduced in Appendix I to this article.
25. The PRC, which considers Taiwan's EEZ to be part of its own EEZ, was not willing to allow its own EEZ to be included in the Convention Area. Taiwan, on the other hand, supported the idea of including within the Convention Area the entire migratory range of the stocks, which implied that Taiwan's EEZ would need to be included to the west of the Convention Area. However, it could not support a proposal to define the northern extent of the Convention Area at 20°N, because that would intersect Taiwan's EEZ.
26. In addition to the problem of intersection with Taiwan's EEZ, the northern boundary was also complicated by potential overlaps between Japanese and Russian claims in the north.
27. Copy on file with the author.
28. Copy on file with the author.
29. Copy on file with the author.
30. Compare the approach taken by Ambassador Nandan with the approach taken by Ambassador Pulvenis of Venezuela in the negotiation of Taiwan's participation in the Antigua Convention from 1999 to 2003, described in the paper in this issue, Nien-Tsu Alfred Hu, "Fishing Entities: Its Emergence, Evolution and Practice from Taiwan's Perspective." Whereas Ambassador Pulvenis preferred direct cross-table negotiations between Taiwan and PRC, Ambassador Nandan's approach was to hold in-depth private consultations with each delegation separately in order to try to determine possible areas for compromise. For the most part, although the informal views of key participants such as Mr. Scully of the United States, Mr. Saito of Japan and Ambassador Djalal of Indonesia were sought on the draft texts that emerged, the China-Taiwan issue was not discussed in the open meetings of the MHLC.
31. MHLC/Draft Convention/Rev.1, 19 April 2000.
32. "Chairman's Information note on issues before the seventh session of the MHLC." Copy on file with the author.
33. Copy on file with the author.
34. Reproduced in Appendix I to this article.
35. The relationship between Appendix I and article 31 of the WCPF Convention is unclear. If Taiwan can be considered a "member of the Commission," does article 31 leave open the possibility that a dispute between Taiwan and a Contracting Party could, by agreement, be dealt with under one of the dispute settlement mechanisms available under Part VIII of UNFSA without recourse to Appendix I, paragraph 3?
36. The People's Republic did not object to this procedure. The MHLC did not adopt its own rules of procedure, but proceeded on the basis of the generally accepted procedures of multilateral conferences. There was no credentials committee, but on 4 September 2000, prior to the opening for signature of the Convention, the chairman presented a report on the credentials of representatives to the seventh session of the Multilateral High-level Conference on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean. That report noted in paragraph 4 that a formal notification had been received informing the Chairman of the names of the representatives of Chinese Taipei.
37. See also comments by the chairman of the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, Ambassador Nandan (Fiji) during the fourth session of the Conference, 27 March to 12 April 1995, in response to a statement by Poland, questioning the use of the word "entities." Ambassador Nandan pointed out that paragraph (3) of article 1 is a "particular reference to the status of China. Article 1 is written in this way to help secure compliance and observation of the standards set forth by this agreement." Earth Negotiations Bulletin, at www.iisd.ca/vol07/0741014e.html.
38. Resolution I of the Final Act of MHLC. Although the Convention entered into force in June 2004, the final session of the Preparatory Conference was held in December 2004, immediately before the first session of the Commission. Regarding the work of the Preparatory Committee, see the WCPFC website at www.wcpfc.org.
39. See the discussion of the WCPFC practice, see in this issue Peter S.C. Ho, "The Impacts of the U.N. Fish Stocks Agreement in Taiwan's Participation in International Fisheries Fora."