Some suggestions towards better implementation of the United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks of 1995

International Journal of Marine and Coastal Law

Volumn 20, Issue 3-4, 2005, Pages 345-379

  Lodge, Michael W ^a   Nandan, Satya N ^b  

^a OECD   (France)

^b UNFSA ^*

Author keywords

[No Author keywords available]

Indexed keywords

CATCH STATISTICS; CONSERVATION; ENVIRONMENTAL IMPACT; FISHERY MANAGEMENT; IMPLEMENTATION PROCESS; STOCK ASSESSMENT; SUSTAINABILITY; UNITED NATIONS;

EID: 33746712370     PISSN: 09273522     EISSN: None     Source Type: Journal    
DOI: 10.1163/157180805775098540     Document Type: Review

References (129)

1. The co-authors were closely involved in the negotiation of UNFSA; one as chairman of the international conference that was convened by the United Nations 1993-1995 to address the problems of high seas fishing and that culminated in the adoption of UNFSA, and the other as a delegate at the conference and a "friend of the chairman" in the process of drafting the Agreement. Both authors were also closely involved in the negotiation of one of the first regional fisheries agreements to have been adopted since 1995 - the Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Honolulu, 5 September 2000. Entry into force 19 June 2004).
2. 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, 4 December 1995 (entered into force 11 December 2001) (hereinafter UNFSA), (1995) 34 ILM 1542
3. available at http://www.un.org/Depts/los. Also reproduced in International Seabed Authority, The Law of the Sea: Compendium of Basic Documents (International Seabed Authority, The Caribbean Law Publishing Co., 2001), p. 271 (hereinafter Compendium).
4. Art. 36(2).
5. GA Res. 59/25 (2004).
6. See, e.g. D.A. Balton, "Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks", (1996) 27 Ocean Dev. & Int'l L. 125 (Balton).
7. United Nations Convention on the Law of the Sea, 10 December 1982 (entered into force 16 November 1994 (hereinafter 1982 Convention), 1833 UNTS 397
8. available at http://www.un.org/Depts/los)
9. see also (1982) 21 ILM 1261.
10. Also reproduced in Compendium, note 2 above, p. 1.
11. The emphasis on regional agreements as the basic pattern for management of international fisheries was apparent as long ago as 1955, at the Rome Technical Conference on the Conservation of the Living Resources of the Sea. That Conference agreed for the first time that conservation and management of high seas fisheries resources could only be carried out through international co-operation in research and regulation and that the best way of achieving this was through the establishment of regional conventions, based on the geographical and biological distribution of the marine populations concerned. The Rome Conference also proposed a number of guiding principles for such fisheries conventions which remain highly relevant today: (a) regional agreements should cover one or more stocks of marine animals capable of separate identification and regulation; (b) all states fishing the resource and the adjacent coastal States should have the opportunity of joining the convention and participating in the adoption of regulatory measures; (c) conservation measures should be based on scientific advice; (d) conventions should have clear rules regarding the rights and duties of member nations and clear operating procedures; and (e) conventions should provide for effective enforcement. See Foreign Relations of the United States, (Dept of State, Washington DC, 1955-1957), vol. XI, p. 528.
12. Meeting of the Group of Technical Experts on High Seas Fisheries (United Nations, July 1991)
13. the International Conference on Responsible Fishing (Cancun, May 1992)
14. FAO Technical Consultation on High Seas Fishing (Rome, September 1992).
15. Art. 116. See also Art. 92(1).
16. Coastal states were led by delegations from Argentina, Canada, Chile, Iceland and New Zealand.
17. One of the chief ways in which this manifested itself was in claims by a number of coastal states, but particularly Canada, to a "special interest" (l'intérêt particulier) in straddling stocks beyond the EEZ. An interesting historical review of the consistent treaty practice of Canada since the 1970s in requiring the concordance of high seas conservation measures with measures taken by Canada within its national jurisdiction may be found in Davis and Redgwell, "The International Legal Regulation of Straddling Fish Stock", (1996) 67 British Yearbook of International Law 199 at 221.
18. See also B. Applebaum, "The Straddling Stock Problem: The Northwest Atlantic Solution, International Law and Options for Coastal State Action" in A. H. A. Soons (ed.), Implementation of the Law of the Sea Convention through International Institutions (Honolulu, The Law of the Sea Institute, 1990), p. 282.
19. Agenda 21, Ch. 17, para. 17.49(e), UN Doc. A/CONF.151/26 (vol. II). In accordance with GA Res. 49/121, the mandate of the conference was to "(a) identify and assess existing problems related to the conservation and management of [straddling and highly migratory] fish stocks; (b) consider means of improving fisheries cooperation among States; and (c) formulate appropriate recommendations".
20. Chief amongst these are the FAO Code of Conduct for Responsible Fisheries, adopted by the FAO Conference on 31 October 1995, available at http://www.fao.org/DOCREP/005/v9878e/v9878e00.htm
21. the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, approved by the 27th Session of the FAO Conference, 24 November 1993, and the FAO International Plan of Action to Prevent, Deter and Eliminate IUU Fishing (IPOA-IUU Fishing). The other major post-UNCED global treaty relevant to high seas governance is the Convention on Biological Diversity, 22 May 1992 (entered into force December 1993, text published in (1992) 31 ILM 822.
22. For the background and proceedings of the Conference, see generally, Balton, note 5 above
23. D.J. Doulman, "Structure and Process of the 1993-1995 United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks", FAO Fisheries Circular, Doc. FID/C898 (Rome, FAO, 1995)
24. Paul Fauteux, "L'initiative juridique canadienne sur la pêche en haute mer", (1993) 31 Can. Y. of Int'l L. 33
25. M. Hayashi, "The Role of the United Nations in Managing the World's Fisheries" in Blake et al. (eds.), The Peaceful Management Of Transboundary Resources (The Hague, Kluwer, 1995) p. 373.
26. On UNFSA, see generally, D. H. Anderson, "The Straddling Stocks Agreement of 1995 - An Initial Assessment", (1996) 45 Int'l & Comp. L. Quart. 463
27. M. Hayashi, "The 1995 Agreement on the Conservation and Management of Straddling and Highly Migratory Fish Stocks: Significance for the Law of the Sea Convention, (1995) 29 Ocean & Coastal Management 51
28. L. Juda, "The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique", (1997) 28 Ocean Dev. & Int'l L. 147
29. P. Örebach, K. Sigurjonsson and T. McDorman, "The 1995 United Nations Straddling and Highly Migratory Fish Stocks Agreement: Management, Enforcement and Dispute Settlement", (1998) 13 IJMCL 119.
30. The mandate of the Conference from UNCED and the General Assembly made it clear that the work and results of the Conference should be "fully consistent with" the provisions of the 1982 Convention.
31. 1982 Convention, note 6 above, Art. 116. See also Art. 92(1).
32. Ibid., Arts. 63(2) and 116(b) of the 1982 Convention.
33. See e.g. 1982 Convention, note 6 above, Arts. 61(2), 62(1), 117-119, 192 and 194(5).
34. S.N. Nandan and S. Rosenne (eds.), United Nations Convention on the Law of the Sea: A Commentary (Dordrecht, Nijhoff, 1993), vol. II, at 61.12(b).
35. 1982 Convention, note 6 above, Arts. 2(1), 49(1), 56(1)(a), 56(3) and 77.
36. For example, the 1982 Convention already referred to the need to take into account the reproductive needs of species associated with or dependent upon the target species even if it did not provide much guidance on how this should be done or what impact such considerations should have upon management strategies. In this sense, the precautionary approach as articulated in UNFSA is not a new approach, but does reflect a growing consensus on the approaches to be taken. See S. Garcia, "The Precautionary Principle: Its Implications in Capture Fisheries Management", (1994) 22 Ocean & Coastal Management 99. Boyle, citing the decisions of the ITLOS in the Southern Bluefin Tuna cases as an example, suggests that the impact of the precautionary principle has been to bring about "subtle, evolutionary changes" to the fisheries conservation articles of the 1982 Convention, rather than to introduce an entirely new concept. He accepts, nevertheless, the view that UNFSA, Art. 6, introduces a more specific version of the precautionary principle.
37. Alan Boyle, "Further Development of the 1982 Law of the Sea Convention: Mechanisms for Change", BIICL Seminar (March 2005) (manuscript on file with the authors).
38. Statement made by the Chairman of the Conference at the closing of the fifth session, on 12 April 1995, UN Doc. A/CONF.164/28.
39. As to how compatible measures may be achieved, see A.G. Oude Elferink, "The Impact of Article 7(2) of the Fish Stocks Agreement on the Formulation of Conservation and Management Measures for Straddling and Highly Migratory Fish Stocks", (1999) 4 FAO Legal Papers (Rome, FAO), available at http://www.fao.org/Legal/prs-ol/years/1999/list99.htm.
40. Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, 10 December 1982 (entered into force 28 July 1996); A/RES/48/263 (hereinafter 1994 Implementation Agreement)
41. Also reproduced in Compendium, note 2 above, p. 206.
42. Art. 4 of the 1994 Implementation Agreement provides that no state or entity may establish its consent to be bound by the Agreement unless it has previously established or establishes at the same time its consent to be bound by the Convention. Conversely, the 1994 Implementation Agreement provides that any instrument of ratification or formal confirmation of or accession to the Convention following the adoption of the Agreement shall also represent consent to be bound by the Agreement. As well as, in effect, compelling states to become parties in this way, another important feature of the 1994 Implementation Agreement was a clause providing for its provisional application by states until such time as the necessary formalities could be completed prior to ratification of or accession to the Convention in order to help to facilitate universal acceptance of the Convention and to promote universal participation in the International Seabed Authority by allowing for provisional membership.
43. Highlighting this as one of the inherent limitations of implementing agreements, Boyle suggests that the particular nature and specific provisions of the 1994 Implementation Agreement means that it is far more likely to be regarded as "a subsequent agreement between the parties regarding the interpretation of [the 1982 Convention] or the application of its provisions" within the ambit of Art. 31(3)(a) of the Vienna Convention. A. Boyle, "Further Development of the 1982 Law of the Sea Convention: Mechanisms for Change", BIICL Seminar (March 2005) (manuscript on file with the authors).
44. A/RES/58/14, Op. 4§
45. A/RES/58/240, Op. 1§.
46. "In Larger Freedom: Towards Development, Security and Human Rights For All", Report of the Secretary-General, A/59/2005, para. 136, available at http://www.un.org/largerfreedom/report-largerfreedom.pdf.
47. See HSTF/09, available at http://www.high-seas.org. The High Seas Task Force analysis identifies the following "key states": Belize, Bolivia, Cambodia, Equatorial Guinea, Georgia, Honduras, Japan, Korea, Mexico, Nicaragua, Panama, Philippines, Poland, Saint Vincent and the Grenadines, Sierra Leone, Vanuatu and Venezuela. As part of the analysis it was noted, significantly, that, of the 14 open-registry countries that had registered the largest number of fishing vessels between 1999 and 2003, 10 were not parties to UNFSA.
48. These problems, together with the issue of inadequate flag state control over fishing vessels, are reflected in the discussions that have taken place recently in various international fora, including, for example, the debate on oceans and the law of the sea held during the 59th Session of the General Assembly. See, in particular, A/RES/59/25 (17 November 2004).
49. See The emphasis on regional agreements as the basic pattern for management of international fisheries was apparent as long ago as 1955, at the Rome Technical Conference on the Conservation of the Living Resources of the Sea. That Conference agreed for the first time that conservation and management of high seas fisheries resources could only be carried out through international co-operation in research and regulation and that the best way of achieving this was through the establishment of regional conventions, based on the geographical and biological distribution of the marine populations concerned. The Rome Conference also proposed a number of guiding principles for such fisheries conventions which remain highly relevant today: (a) regional agreements should cover one or more stocks of marine animals capable of separate identification and regulation; (b) all states fishing the resource and the adjacent coastal States should have the opportunity of joining the convention and participating in the adoption of regulatory measures; (c) conservation measures should be based on scientific advice; (d) conventions should have clear rules regarding the rights and duties of member nations and clear operating procedures; and (e) conventions should provide for effective enforcement. See (Dept of State, Washington DC)
50. UNFSA, note 2 above, Art. 7(1)(a).
51. UNFSA defines an "Arrangement" as a "cooperative mechanism established in accordance with the Convention and this Agreement between two or more States for the purpose, inter alia, of establishing conservation and management measures in a subregion or region for one or more straddling fish stocks or highly migratory fish stocks". UNFSA, note 2 above, Art. 1. The flexibility inherent in this definition was necessary to take into account the sort of arrangements that existed at the time in the Western Pacific and the Bering Sea "Donut Hole" Agreement.
52. Ibid., Art. 7(1).
53. Ibid., Art. 8(5).
54. Ibid., Art. 8(3), which provides that "States having a real interest in the fisheries concerned may become members of such organizations or participants in such arrangements", but then goes on to provide that the "terms of participation in such organization or arrangement shall not preclude such States from membership or participation".
55. For example, the bilateral arrangements between Norway and Russia for management of Norwegian Arctic cod could not, under UNFSA, Art. 8(3), be closed to others, such as the European Union, which also fishes for cod in the Svalbard zone.
56. To a number of states, particularly the South Pacific Island States and Canada (following its experiences in NAFO), the prospect of completely open membership of RFMOs raised the spectre of the history of the International Whaling Commission.
57. UNFSA, Art. 17(3).
58. Important recent developments include the adoption of the WCPF Convention for the Central and Western Pacific Ocean, the adoption of the Convention on the Conservation and Management of Fishery Resources of the South East Atlantic Ocean (SEAFO), 20 April 2001 (entered into force 13 April 2003), (2002) 41 ILM 257, and the adoption in 2003 of the Convention for the Strengthening of the Inter-American Tropical Tuna Commission ("Antigua Convention") for the Eastern Pacific Ocean.
59. Maps showing the geographical area of competence of RFMOs are often misleading because they do not take into account the limited competence of some RFMOs. The United Nations suggests that there are potential gaps in RFMO coverage in the South-East Pacific Ocean, South-West Atlantic, South-West Indian Ocean (discrete high seas stocks), Western Pacific (discrete high seas stocks), Caribbean and the high seas adjacent to the CCAMLR zone (UN Doc. A/58/215).
60. The adoption of objective criteria upon which to evaluate the performance of RFMOs forms a key plank in the recommendations of the High Seas Task Force, see note 29 above, but has also been recognised by the FAO, which has concluded that, in order to promote effective implementation of international fishery instruments at subregional and regional levels, it was necessary to strengthen regional fishery bodies to ensure that they (a) meet the standards established by the relevant international fishery instruments; (b) possess the necessary mandates to enable them to address factors of unsustainability in fisheries; and (c) are equipped to carry out the functions ascribed to them, including by having an adequate resource base and by providing mechanisms for effective participation in their work.
61. See Grb́oval (ed.), Report and Documentation of the International Workshop on Factors of Unsustainability and Overexploitation in Fisheries (Rome, FAO, 2002), p. 40.
62. UNFSA, note 2 above, Arts. 9 and 10. These provisions are echoed in the FAO Code of Conduct for Responsible Fisheries.
63. UN Doc. A/58/215.
64. This proposal is consistent with a proposal made by IUCN - The World Conservation Union to the Informal Meeting of States Parties to UNFSA, 2004 (manuscript on file with the authors).
65. Following a lengthy review of its constituent instrument (adopted in 1949), IATTC adopted in 2003 the Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention between the United States of America and the Republic of Costa Rica ("Antigua Convention"), IATTC Resolution C-03-02. The new Convention has yet to enter into force. Rather than go through the process of renegotiating their constituent instruments, some RFMOs have sought to broaden their mandates through resolutions or decisions which purport to interpret or elaborate upon their existing mandates. Examples include NAFO, which adopted a Framework for the Precautionary Approach in 2004, and CCAMLR, which has recently extended its Catch Documentation Scheme for Dissostichus spp. beyond its Convention Area (CM 10-05).
66. UN Doc. A/58/215.
67. The five RFMOs with jurisdiction over highly migratory tunas are CCSBT, IATTC, ICCAT, IOTC and WCPFC. Coverage by tuna RFMOs is almost global and there are significant opportunities for global interactions in a number of key areas, including vessel registers, trade and market-related measures and the management of fishing capacity. Over the past five years, the secretariats of the tuna RFMOs have developed a regular pattern of annual meetings, which has allowed for considerable progress to be made on harmonisation of initiatives at the technical level.
68. In this regard, it might be noted that Art. 154 of the 1982 Convention (as read with the provisions of the 1994 Implementation Agreement) establishes a procedure for a "general and systematic review of the manner in which the international regime of the Area has operated in practice" to take place at five-year intervals. In the light of the review, the Assembly of the Authority may "take, or recommend that other organs take, measures in accordance with the provisions and procedures of Part XI, related annexes, and the 1994 Agreement, which will lead to the improvement of the operation of the regime". Part of the rationale behind the proposals that led to Art. 155 was the need to review and evaluate the functioning of the system so that it could be improved and adapted to changing circumstances. An important point to bear in mind is that there is no link between the review process under Art. 154 and the review conference in Art. 155, and therefore, no suggestion that the review process should lead to amendment of the Convention. See Nandan, note 19 above, vol. VI, at 154.1.
69. In this regard, FAO has already been mandated, in conjunction with the Secretary-General of the United Nations, to provide a comprehensive report on the matters covered by Art. 36 to the Review Conference.
70. UN Doc. A/58/215, para. 71.
71. Principle 15 of the Rio Declaration reads: "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. 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."
72. See Anderson, note 14 above.
73. See J.F. Caddy and R. Mahon, "Reference Points for Fisheries Management", FAO Fisheries Technical Paper 347 (Rome, FAO, 1995). The use of limit reference points represents a progressive development from the identification of "target" reference points based on maximum sustainable yield (MSY) towards a "traffic-light" system in order to identify the point when a resource system leaves a safe (green) condition and before it reaches the "red" condition associated with overfishing, recruitment collapse and ecosystem change.
74. Annex II was formulated by an expert scientific committee chaired by Dr Andrew Rosenberg of Woods Hole Laboratory, USA.
75. J.F. Caddy and Juan-Carlos Seijo, "This is More Difficult Than We Thought: The Responsibility for Mitigation in Fishery Sustainability, (2005) 360 Phil. Trans. R. Soc. Lond. B 59.
76. T. Murray, "Ecological Effects of Tuna Fisheries", (unpubl. Paper, 2005) (manuscript on file with the authors) (Murray).
77. Murray, ibid., notes that, amongst the tuna RFMOs, only the IATTC has explicitly addressed the ecological impacts of tuna fishing. In other RFMOs (e.g. IOTC and CCSBT) working groups have been established to address by catch issues but there is as yet no agreement for exchange of data amongst RFMO members nor are there agreed approaches to the evaluation of ecological impacts.
78. This concern is reflected in the Declaration of Cancun and in Agenda 21 itself (Ch. 17, para. 53).
79. D. Anderson, "Developments in Respect of High Seas Navigation", BIICL Symposium on the Law of the Sea (March 2005) (manuscript on file with the authors).
80. These concerns were in light of the Torrey Canyon disaster of 1967.
81. FAO Council, 102nd session (1992).
82. FAO Agreement To Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1993).
83. Even though it was adopted before UNFSA, the FAO Compliance Agreement has received less support. As of February 2005 it had only 28 parties. One reason for this is that some Pacific states that have become party to UNFSA withheld their support from the Compliance Agreement because of an exclusion clause (mainly for the benefit of fishers in the Mediterranean) for fishing vessels under 24 m. in length. At the time the Agreement was adopted, a large number of small (under 24 m.) longline fishing vessels from China had moved into the Pacific region. Since the Agreement was adopted, even the regional organisation for the Mediterranean, the GFCM, has realized that the 24 m. limit is too high and has reduced the limit.
84. M. Hayashi, "Enforcement by Non-Flag States on the High Seas Under the 1995 Agreement on Straddling and Highly Migratory Fish Stocks", (1997) 9 Georgetown Int'l Environmental Law Review 1.
85. See A/RES/59/25 (17 November 2004), which also highlights the problem of inadequate flag state control.
86. The M/V Saiga case (Nos. 1 and 2) (Saint Vincent and the Grenadines v. Guinea), the Camouco case (Panama v. France), Case No. 5 the Monte Confurco case (Seychelles v. France), Case No. 6 the Grand Prince case (Belize v. France), Case No. 8 the Chaisiri Reefer 2 case (Panama v. Yemen), Case No. 9 and the Volga case (Russian Federation v. Australia), Case No. 11. These cases are available at http://W4.233.179.104/searPh?q=cache:mpGYcYM0rrwJ:www.worldlii.org/ int/cases/ITLOS/recent-cases.html+Camouco+Case+tribunal&hl= en&start=10 (last visited on 5 July 2005).
87. Mongolia, for example, a land-locked country, established an open registry in 2003, administered from an office in Singapore. The registry's website advertises competitive fees, no restrictions on crew nationality and no taxes, and claims to be able to issue certificates "within the hour", available at http://www.maritimechain.com/ship_registry/msr. However, the Round Table of International Shipping Associations, in the most recent update of its Shipping Industry Flag State Performance Table (December 2004), states "[a] recent arrival amongst flags offering services to shipping is Mongolia, which is listed by the Round Table for the first time and is already amongst those with the poorest performance", available at http://www.bimco.dk.
88. Although a number of RFMOs have adopted high seas boarding and inspection schemes based on Arts. 21 and 22 of UNFSA (including NAFO, CCAMLR, SEAFO and WCPFC), high seas boarding and inspection is both difficult to carry out and dangerous to both boarder and inspector. Very few states actually have the capacity to carry out such boardings.
89. The experience of the UN Convention on Conditions for Registration of Ships, negotiated in UNCTAD in 1986, provides a salutary lesson. This treaty was supposed to spell out minimum requirements for economic links between a ship and the flag state and to require flag states to ensure that the owners and operators of ships on its register are "adequately identifiable for the purpose of ensuring their full accountability". After 20 years, only 11 countries (none of them major maritime powers or major flag states) had ratified the Convention, which had failed to enter into force. The view of the IMO on the subject, in response to an invitation from the General Assembly in both 2003 and 2004 to "study, examine and clarify the role of the genuine link in relation to the duty of flag States to exercise effective control over ships flying their flag, including fishing vessels" (A/58/240, para. 28), was stated as follows: "[Q]uestions relating to the ownership of vessels should be considered as subject matters of an economic corporate nature that clearly fall beyond the purview of the law of the sea and the mandate of the international organizations as identified in the Convention on the Law of the Sea." (Memorandum submitted to UNICPOLOS, 2004). The IMO statement simply reflects the reality of the global shipping industry, in which open registers predominate as the most efficient economic vehicle through which shipowners can do business. Statistics for the period 1999-2003 indicate that the 35 most important (in terms of tonnage) maritime countries accounted for 94% of the world's fleet. In 2003, 76.4% of that was flagged out to the six major open-registry countries (UNCTAD data, cited in UN Doc. A/59/63).
90. D. Anderson, note 60 above.
91. Such port state measures include, for example, the Paris and Tokyo MOUs on port state controls.
92. International Code for the Safe Operation of Ships and for Pollution Prevention (mandatory since 1998 under the International Convention for the Safety of Life at Sea (SOLAS) for all vessels over 500 gt), also known as the International Safety Management (ISM) Code, IMO Assembly Res. A.741(18)(1993), available at http://www.admiraltylawguide.com/conven/ismcode1993.html (last visited on 5 July 2005).
93. The Consultative Group comprises UN/DOALOS, IMO, FAO, ILO, UNCTAD, UNEP and OECD. The group has recently issued a comprehensive elaboration of the duties and obligations of flag states, including the potential consequences of non-compliance prescribed in the relevant international instruments, which is recommended as an up-to-date summary of the measures taken by IMO and others aimed at strengthening flag state implementation (UN Doc. A/59/63).
94. The development of such criteria is one of the recommendations of the High Seas Task Force. See HSTF/07 at http://www.high-seas.org. It must be noted, however, that, whilst intensive audit of flag states is necessary, it will only achieve its full potential as a deterrent to reflagging if there is also more widespread participation in UNFSA and other relevant agreements.
95. FAO Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing, adopted 2005, available at http://www.intfish.net/docs/2004/fao_portstate.pdf, (last visited on 5 July 2005).
96. UNFSA, note 2 above, Art. 24(1).
97. Ibid., Art. 26(1).
98. A/RES/58/14 (24 November 2003). In accordance with the terms of reference adopted by states parties, the Fund is administered by the Food and Agriculture Organization of the United Nations (FAO), as the implementing office for the Fund, in collaboration with the United Nations.
99. A/RES/56/13 (28 November 2001).
100. IDDRA Ltd, UK, "Policy Research: Options for Strengthening National, Sub-regional and Regional Institutions and Policies to Better Address Developing Countries' Needs", Report commissioned by the UK Department for International Development (2003).
101. The IDDRA Report goes on to suggest that it is important therefore that RFMO management systems avoid giving developing states an incentive to develop their fishing capacity simply as a means of establishing enhanced track records in anticipation of the day when catch allocations are fixed.
102. For example, see UNFSA, Art. 202, on the provision of scientific and technical assistance for the protection and preservation of the marine environment
103. see also UNFSA, Art. 203, on preferential treatment in relation the allocation of funding for prevention of marine pollution; and Part XIV on the development and transfer of marine technology.
104. See especially, UNFSA, note 2 above, Arts. 24 and 25.
105. Available at http://www.biodiv.org/convention/articles.asp.
106. The GEF in fact serves as the financial mechanism for the CBD, as well as for the United Nations Framework Convention on Climate Change, the United Nations Convention to Combat Desertification, and the Stockholm Convention on Persistent Organic Pollutants.
107. For example, the WCPFC has established its own regional fund aimed at meeting the special needs of developing countries in the region. The GEF has also devoted substantial resources to law of the sea related activities through its international waters and large marine ecosystem programmes.
108. Following the World Summit on Sustainable Development (WSSD), the World Bank has established a global trust fund (PROFISH) aimed at supporting sustainability in fisheries. The Bank is also in partnership with GEF and FAO in action aimed at meeting the sustainable fisheries targets established by WSSD.
109. L.B. Sohn, "Managing the Law of the Sea: Ambassador Pardo's Forgotten Second Idea", (1997) 36 Colombia J. of Trans. Law 285.
110. "The Area" is defined in Art. 1 of the 1982 Convention as the "seabed and ocean floor and the subsoil thereof beyond the limit of national jurisdiction".
111. L.A. Kimball, "Deep Sea Fisheries of the High Seas: The Management Impasse", (2004) 19 IJMCL 259 (Kimball).
112. At the fifth session of the United Nations Open-ended Consultative Process on Oceans and the Law of the Sea (UNICPOLOS), a coalition of 10 international non-governmental organisations, including WWF International, International Collective in Support of Fishworkers, Greenpeace and Oceana, submitted a joint call to the United Nations General Assembly to declare an immediate moratorium on high seas bottom trawling. The idea of a global moratorium on this fishing method has also been supported by a statement of concern signed by over 1,100 deep-sea ecologists issued on 15 February 2004, http://www.mcbi.org/DSC_statement/s. IUCN, the World Conservation Union, which has observer status as an intergovernmental organisation at the United Nations, is similarly supporting an immediate interim prohibition on high seas bottom trawling pending adequate assessment of the sustainability of that method of fishing and the implementation and enforcement of effective legal regimes to protect biodiversity hotspots from high seas bottom trawling. Such calls are no doubt inspired by the global moratorium on all large-scale pelagic high seas drift-net fishing established by the General Assembly in its Res. 46/215 of 20 December 1991. As a practical matter, however, there do seem to be significant differences between drift-net fishing and high seas bottom trawling. Unlike drift-netting, high seas trawling is an activity that is neither species specific nor method specific. In many cases, the species caught by high seas trawling and the gear employed are the same as within EEZs, making enforcement of any ban practically impossible. Martin Exel, Coalition of Legal Toothfish Operators, pers. comm.,
113. cited in M. Lodge, "Improving International Governance in the Deep Sea", (2004) 19 IJMCL 299.
114. A/RES/59/24, Op. para. 70.
115. As an indication of how specific the problem is, Gianni reports that catches from high seas bottom trawling represent well under 1% of both the production and value of global marine capture fisheries. In 2001, only 11 countries took over 95% of the reported high seas bottom trawl catch. M. Gianni, "High Seas Bottom Fisheries and their Impacts on the Biodiversity of Vulnerable Deep Sea Ecosystems" (IUCN, WWF International, NRDC, Conservation International, 2004), available at http://www.iucn.org/themes/marine/pdf/Gianni HighSeas BottomTrawling_ExecSumm.pdf and http://www.iucn.org/themes/marine/pdf/ Gianni_HS-BottomTrawling_FullVersion.pdf (last visited on 5 July 2005).
116. The Soviet Black Sea fleet carried out mid-water trawling for Alfonsino above seamounts in the South-West Indian Ocean in the 1970s. Following the collapse of the Soviet Union, the fishery was dormant until it was "rediscovered" in the 1990s by New Zealand fishermen looking for new fishing opportunities following a decline in the Namibian Orange Roughy fishery. With superior technology for locating and catching fish in deeper water, these pioneers were able to reap lucrative benefits from the fishery. By 1999, the existence of the fishery had become known to South African, Australian and Ukrainian fishermen and within a year the number of vessels fishing on seamounts in the region had increased dramatically to around 37. The fishery declined in 2001 to some 10-12 vessels, but catches continued to decrease. By 2002 the fishery had been virtually exhausted. In contrast, negotiations between states to establish a regional management arrangement for the South-West Indian Ocean did not even begin until the fishery was well on its way to depletion. A South-West Indian Ocean Fisheries Commission covering the EEZs of coastal states in the region has now been established, and held its first session in Kenya in April 2005. Negotiations are also well advanced on a high seas arrangement covering the same area. However, these developments may well have come too late given that the most lucrative fishing grounds are now exhausted.
117. See note 95 above. On the SWIOFC negotiations,
118. see E. J. Molenaar, "Unregulated Deep Sea Fisheries: A Need For a Multi-Level Approach", (2004) 19 IJMCL 223.
119. Fur-sealing of the 19th century is a good example.
120. Lodge, "Improving International Governance in the Deep Sea", note 92 above.
121. In a similar vein, in a communication dated May 2005, IUCN also recommends the development of a technical annex to UNFSA on the management of deep-water fisheries. The form of such a document is perhaps of less importance than the substance (manuscript on file with the authors).
122. Draft articles adopted by the Commission at its Fifth Session under the Chairmanship of Special Rapporteur François, GAOR, Eighth Session, Suppl. No. 9 (A/2456).
123. See the comments by Professor B. Oxman in Proceedings of the 20th Anniversary Commemoration of the Opening for Signature of the UN Convention on the Law of the Sea (New York, United Nations, 2004) p. 195.
124. See also Kimball, note 91 above.
125. Of the RFMOs that have competence to deal with discrete high seas stocks, only the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), the Northwest Atlantic Fisheries Organization (NAFO) and the North-East Atlantic Fisheries Commission (NEAFC) seem to have actually exercised that competence so far.
126. UNFSA, note 2 above, Art. 10(b).
127. Estimates of global overcapacity in the published literature range from 30% at the low end to 250% at the high end. See D. Schorr, "Healthy Fisheries, Sustainable Trade (WWF, 2004), available at http://www.panda.org/downloads/policy/ healthyfisheriessustainabletradefinal.pdf (last visited 5 July 2005). In this paper, Schorr points out that, whatever the exact figure, there is no dissent from the view that overcapacity in the world's fishing fleets is an important and direct cause of widespread overfishing.
128. Adopted in 1999, by 2003, only nine members of FAO had published capacity management plans as required by the IPOA-IUU.
129. Excerpt from HSTF/09, available at http://www.high-seas.org.