Editor's introduction Moving from Words to Action

International Journal of Marine and Coastal Law

Volumn 20, Issue 3-4, 2005, Pages 323-344

  Gjerde, Kristina M ^a  

^a NONE

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EID: 33746739575     PISSN: 09273522     EISSN: None     Source Type: Journal    
DOI: 10.1163/157180805775098586     Document Type: Editorial

References (93)

1. Rt Hon Paul Martin, Prime Minister of Canada. Address to the Conference on the Governance of High Seas Fisheries and the United Nations Fish [Stocks] Agreement: "Moving from Words to Action", 1-5 May 2005, St John's, Newfoundland and Labrador, Canada (St John's Conference, delivered 1 May 2005. Available at http://www.pm.gc.ca/eng/news.asp?id=476.
2. The Ministerial Declaration urges all states to ratify international agreements, such as the United Nations Fish Stocks Agreement, and to modernise the regional organisations used to manage high seas sheries by fully implementing the international rules developed in the past decade; providing a mechanism to address disputes; improving decision-making; using the precautionary approach and factoring-in ecosystems considerations to ensure the conservation of fish stocks; and strengthening the monitoring and control mechanisms to improve detection and deterrence of non-compliance. Available at http://www.dfo-mpo.gc.ca/fgc-cgp/declaration_e.htm.
3. A series of workshops focused on implementing ecosystems considerations in fisheries management; compliance and enforcement; decision-making in regional fisheries management organisations; balancing fishing capacity with fishing aspirations; and addressing new areas and gaps in fisheries governance. The full Report of the Conference is reproduced herein as Appendix 1. Also available at http://Www.dfo-mpo.gc.ca/fgc-cgp/conf_report_e.pdf or http://www.dfompo.gc.ca/fgc-cgp/conf_report_e.htm (hereafter, Conference Report).
4. The United Nations General Assembly Ad Hoc Open-Ended Informal Working Group to study issues relating to the conservations and sustainable use of marine biological diversity beyond areas of national jurisdiction was established pursuant to UNGA Res. 59/24, para. 73. Its mandate includes: "(d) Indicate, where appropriate, possible options and approaches to promote international cooperation and coordination for the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction."
5. 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 of 4 December 1995 (entered into force 11 December 2001 (hereinafter, UNFSA), (1995) 34 ILM 1542.
6. Many authors have taken the opportunity to expand their discussion and provide additional reference material.
7. M.W. Lodge and S.N. Nandan, "Some Suggestions Towards Better Implementation of the United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks of 1995", (2005) 20 IJMCL 345-380 (Lodge & Nandan). Lodge & Nandan review the UNFSA's main contributions to fisheries conservation and management and suggest ways to improve implementation and to address areas that UNFSA failed to deal with in sufficient detail. Their recommendations are summarised in Annex II of their article.
8. S. Parsons, "Ecosystem Considerations in Fisheries Management: Theory and Practice", (2005) 20 IJMCL 381-422 (Parsons). Parsons provides a comprehensive overview of approaches to ecosystem-based fisheries management and the practicalities of its implementation.
9. T.L. McDorman, "Implementing Existing Tools: Decision-Making Processes of Regional Fisheries Management Organisations", (2005) 20 IJMCL 423-458 (McDorman). McDorman describes decision-making processes of RFMOs, including challenges, trends and suggestions to meet the challenge. An annex reviews decision-making procedures within the key RFMOs dealing with highly migratory and straddling fish stocks.
10. R. Metzner, "Fishing Aspirations and Fishing Capacity: Two Key Management Issues", (2005) 20 IJMCL 459-478 (Metzner). Metzner examines capacity management measures and highlights some challenges and opportunities for addressing fishing aspirations and capacity management. Two appendices provide background information on definitions and technical tools for capacity management.
11. C.C. Schmidt, "Economic Drivers of Illegal, Unreported and Unregulated (IUU) Fishing", (2005) 20 IJMCL 479-508 (Schmidt). Schmidt discusses the complex drivers of IUU fishing and describes OECD work to identify new strategies to increase the costs and reduce the net benefits of IUU fishing. Annexes report on the status of OECD member countries regarding three major fishing agreements, the history of international initiatives on IUU fishing and key observations from an OECD-sponsored workshop on IUU fishing.
12. R. Rayfuse, "To Our Children's Children's Children: From Promoting to Achieving Compliance in High Seas Fisheries", (2005) 20 IJMCL 509-532 (Rayfuse). Rayfuse discusses the shortcomings of existing compliance and enforcement measures and provides practical suggestions for harnessing the tools of customary and conventional international law to adopt an expanded range of measures to strengthen the enforcement capacity of RFMOs and states.
13. E.J. Molenaar, "Addressing Regulatory Gaps in High Seas Fisheries", (2005) 20 IJMCL 533-572 (Molenaar). Molenaar reviews geographic and substantive regulatory gaps, recent developments regarding RFMOs in the South Pacific and Southern Indian Ocean, and approaches to upgrading regional fisheries bodies and RFMOs. He also addresses coastal state rights to regulate high seas fishing practices that may impact on sedentary species of their legal continental shelf and proffers suggestions for global fisheries governance reform including measures specific to discrete high seas fish stocks.
14. E. Meltzer, "Global Overview of Straddling and Highly Migratory Fish Stocks", (2005) 20 IJMCL 573-608 (Meltzer). Meltzer's tables and maps provide an overview of individual RFMOs' mandates, structure, application of precautionary approach and ecosystem approach, participation, monitoring, control and surveillance (MCS), and other governance efforts and challenges. They are designed to assist comparisons of mandates and approaches taken by the many RFMOs with responsibility over highly migratory and/or straddling fish stocks.
15. The Conference Report, note 3 above, expresses "a range of views on possible, practical views by which States and RFMOs might move forward". As some workshops reported only on views where there was consensus, the full range of views are not necessarily reflected.
16. IUCN Species Survival Commission, 2004 IUCN Redlist of Threatened Species (Switzerland, Gland, 2004), available at http://www.redlist.org. Several fish stocks are already classified by the World Conservation Union (IUCN) as critically endangered (e.g. Western Atlantic bluefin tuna, South Atlantic albacore) or endangered (e.g. Northern Atlantic swordfish, Pacific bigeye tuna and Eastern Atlantic bluefin tuna) and thus facing a very high risk of extinction in the wild in the near future (last checked 7 July 2005).
17. A.A. Rosenberg et al., "The History of Ocean Resources: Modeling Cod Biomass Using Historical Records", (2005) 3 Front. Ecol. Environ. 84-90
18. J. Raloff, "Empty Nets: Fishers May be Crippling Themselves by Targeting the Big Ones", (2005) 167 Science News 360 (Raloff).
19. R.A. Myers and B. Worm, "Extinction, Survival or Recovery of Large Predatory Fishes", (2005) 360 Philosophical Transactions of the Royal Society 13 (Myers & Worm 2005).
20. FAO, The State of the World Fisheries and Aquaculture (Rome, FAO, 2004) (SOFIA).
21. See also Parsons, note 8 above, p. 325.
22. J.B.C. Jackson et al., "Historical Over.shing and the Recent Collapse of Coastal Ecomark systems", (2001) 293 Science 629
23. H.K. Lotze and I. Milewski, "Two Centuries of Multiple Human Impacts and Successive Stages in a North Atlantic Food Web", (2004) 14 Ecol. Applic. 1428
24. R.A. Myers and B. Worm, "Rapid Worldwide Depletion of Predatory Fish Communities", (2003) 423 Nature 280 (Myers & Worm 2003)
25. Myers & Worm 2005, note 18 above.
26. Myers & Worm 2003, note 20 above
27. Myers & Worm 2005, note 18 above.
28. Myers & Worm 2005, note 18 above.
29. Parsons, note 8 above
30. see also Meltzer, note 14 above, for the status of key target fish stocks managed by surveyed RFMOs.
31. COFI 2005/6, "Deep Sea Fisheries" (FAO, 2005)
32. see also FAO, SOFIA, note 19, pp. 91-99.
33. Parsons, note 8 above. Although Atlantic swordfish used to grow more than 1,000 pounds, the average one landed in 1995 weighted just 90 pounds.
34. Raloff, note 17 above.
35. Parsons, note 8 above
36. citing Pauly et al., "Fishing Down Marine Food Webs", (1998) 279 Science 860.
37. See e.g. J.A. Koslow et al., "Continental Slope and Deep Sea Fisheries, Implications for a Fragile Ecosystem", (2000) 57 ICES Journal of Marine Science 548
38. J.R. Spotila et al., "Pacific Leatherback Turtles Face Extinction: Fisheries Can Help Avert the Alarming Decline in Population of these Ancient Reptiles", (2000) 405 Nature 529
39. R.L. Lewison, S.A. Freeman and L.B. Crowder, "Quantifying the Effects of Fisheries on Threatened Species: The Impact of Pelagic Longlines on Loggerhead and Leatherback Sea Turtles", (2004) 7 Ecology Letters 221
40. R. Lewison and L. Crowder, "Estimating Fishery Bycatch and Effects on a Vulnerable Seabird Population", (2003) 13 Ecol. Applic. 743.
41. Myers & Worm 2005, note 18 above.
42. Parsons, note 8 above
43. K.T. Frank et al., "Trophic Cascades in a Formerly Cod-Dominated Ecosystem", (2005) 308 Science 1621.
44. Frank et al., ibid.
45. C. Roberts, Marine Reserves: The State of the Wild (Wildlife Conservation Society, in press, manuscript on file with author).
46. According to Roberts, "haematodinium is a dinoflagellate that invades the bodies of crustaceans, over time converting every organ into parasite until one day the animal can move no further. In a spectacular exit, dinoflagellates stream forth from every joint in the carapace in dense clouds so the prawn appears to be on fire". Ibid.
47. United Nations Convention on the Law of the Sea, 10 December 1982 (entered into force 16 Nov. 1994 (hereinafter, the LOSC), 1833 UNTS 397
48. see also, Lodge & Nandan, note 7 above, which provides a more detailed overview of high seas fisheries agreements.
49. LOSC, id., Art. 194.5.
50. Lodge & Nandan, note 7 above.
51. Lodge & Nandan, note 7 above.
52. See Meltzer, note 14 above, figure D, for a list of parties to UNFSA and the Compliance Agreement.
53. For example, the objective of the 1979 Northwest Atlantic Fisheries Organization (NAFO) is "to contribute through consultation and co-operation to the optimum utilization, rational management and conservation of the fisheries resources" of the Convention areas. Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries 24 October 1978 (entered into force 1 January 1979), Art. II.1, 1135 UNTS 369; available at http://www.nafo.ca (NAFO Convention).
54. B. McDiarmid, M. Gotje and K. Sack, The Northwest Atlantic Fisheries Organization: A Case Study in How RFMOs Regularly Fail to Manage our Oceans (Greenpeace, 2005), available at http://www.greenpeace.org/raw/content/international/press/reports/ NAFO-Case-Study.pdf (McDiarmid et al.).
55. See also Meltzer, note 14 above, for a good overview of challenges to RFMO governance.
56. According to McDiarmid et al., note 39 above, Canadian investigators issued 319 citations for illegal fishing against European Union Member States-flagged vessels over the past decade. Where penalties are imposed, the average fine was around 3,000 euros. http://www.greenpeace.org/raw/content/international/press/reports/ NAFO-Case-Study.pdf
57. Schmidt, note 11 above, cites a case study on IUU fishing indicating that fines would have to be raised 24 times to eliminate expected net profits.
58. Schmidt, note 11 above.
59. McDiarmid et al., note 39 above, reports on Russian-owned vessels flying the flag of Dominica which then fish in the NAFO area, where Russia is a member. http://www.greenpeace.org/raw/content/international/press/reports/ NAFO-Case-Study.pdf
60. See COFI 2005/6, "Deep Sea Fisheries" (Rome, FAO, 2005).
61. Lodge & Nandan, note 7 above
62. Molenaar, note 13 above.
63. FAO, SOFIA, note 19 above, p. 86.
64. Report of the Secretary-General on Oceans and Law of the Sea, UN Doc. A/ 60/63, para. 171 (2005).
65. Lodge & Nandan, note 7 above
66. citing High Seas Task Force Report 09, available at http://www.high-seas.org. The High Seas Task Force Report observes 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.
67. Rayfuse, note 12 above
68. citing R. Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (Leiden, Martinius Nijhoff, 2004), p. 370.
69. This review indicated that RFMOs are now demanding, and are increasingly receiving, membership, co-operation or abstention from fishing by non-members. Thus state practice appears to accept not only the customary duty to co-operate through RFMOs but that an essential element of that duty is the requirement for both parties and non-contracting parties alike to respect the measures adopted by RFMOs either by compliance or through restraint from fishing. State practice further indicates that non-contracting parties have accepted their responsibility to take action to stop their vessels from fishing in violation of RFMOs measures.
70. For a more detailed discussion of this point, see R. Rayfuse, "Countermeasures and High Seas Fisheries Enforcement", (2004) 51 Netherlands International Law Review 41.
71. Metzner, note 10 above.
72. As noted by Metzner, note 10 above, traditional "incentive blocking" management tools such as limited entry programmes, controls on vessel size, gear, times and areas only create more incentives in fishers to find ways around the controls, thus stimulating overcapacity. Allocations based on total allowable catches can lead to lethal fishing derbies where a race for fishing develops, providing incentives for discarding less commercially valuable fish and false reporting. The only way to avoid this at present is through more regulations to ensure fish can be traced from catch to consumer's table, control transshipment and prevent new forms of overcapacity from arising. The theory behind this rights-based approach is that when fishery resources are no longer free to whoever harvests them first, fishers have a reason to invest in the future by conserving both fisheries resources and other resources (capital and labour) used in its harvesting.
73. The column on "objectives" in Meltzer's tables, note 14 above, indicates that many of the older RFMOs are constrained to promoting the conservation and optimal utilisation of the fishery resources. Only the Commission for the Conservation of Antarctic Living Marine Resources (CCAMLR) operates under the wide mandate of ensuring "the conservation, including rational use, of Antarctic living marine resources".
74. FAO, "Fisheries Management 2. The Ecosystem Approach to Fisheries", FAO Technical Guidelines for Responsible Fisheries No. 4, Suppl. 2 (Rome, FAO, 2003).
75. Myers & Worm 2005, note 18 above, predict the collapse and extinction of sensitive latematuring and slow-growing species unless current levels of fishing mortality are significantly lowered. In the Northwest Atlantic, they estimate that fishing mortality has to be lowered by 40-80%. Existing information on maximum reproductive rates can be used to set maximum fishing mortalities to ensure survival of sensitive species. They recommend a combination of four management tools to halt and reverse declines of large predatory fish communities: (i) reduce fishing mortality enough to avoid extinction of the most sensitive species; (ii) reduce bycatch mortality wherever possible; (iii use spatial closures to initiate recovery; and (iv) establish permanently closed marine reserves in key areas such as spawning grounds and diversity hot spots.
76. See Conference Report, note 3 above, especially Annex I: "Implementing Ecosystem-based Considerations in Fisheries Management".
77. See also D. Miller et al., "Managing Antarctic Marine Living Resources: The CCAMLR Approach", (2004) 19 IJMCL 3, 317.
78. At the Fourth Round of Informal Consultation of States Parties to the UNFSA it was agreed that DOALOS would undertake a review of the extent to which the UNFSA has been incorporated into sub-regional or regional agreements or arrangements to conserve and manage straddling fish stocks and highly migratory fish stocks as well as national laws and regulations relating to the implementation of the UNFSA, and also of measures that have been adopted relevant to these stocks. They would also examine those issues (i) preventing some states from becoming party to the Agreement; (ii) affecting implementation of the Agreement by developing states parties, taking into account Part VII of the Agreement; and (iii) regarding management of straddling fish stocks and highly migratory fish stocks for which no measures have yet been adopted. The Chairman's Working Paper identifies possible criteria for assessing effectiveness of the UNFSA Draft Report of the Fourth Round of Informal Consultation of States Parties to the UNFSA, May 2005 (final report due in August).
79. Lodge & Nandan, note 7 above, Annex II.
80. Molenaar thus identi.es one of the key issues that will surely occupy time at the UNGA informal working group on the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. Molenaar, note 13 above, p. 555, explains that in the view of some fishing states: Any initiative by environmental NGOs or States without a fisheries interest to support the cause of safeguarding marine biodiversity at the global level, for instance within the UNGA, CBD, CITES and the GMA process, may therefore be regarded as an attempt to ensure that the interests of protection of marine biodiversity or non-utilization of marine living resources become superior to the socio-economic interests of utilization as well as a threat to science-based fisheries management. Finding a way to balance the global community's interests in conservation and sustainable use of biological diversity in this context will indeed be a challenging task.
81. McDorman, note 9 above.
82. Schmidt, note 11 above.
83. Lodge & Nandan, note 7 above.
84. Rayfuse, note 12 above.
85. See Molenaar, note 13 above, for a full discussion of which RFMOs have what type of competence with respect to discrete high seas fisheries.
86. See also K.M. Gjerde and D. Freestone, "Unfinished Business: Deep Sea Fisheries and the Conservation of Marine Biodiversity Beyond National Jurisdiction", (2004) 19 IJMCL 3, 209-222.
87. GA Res. 59/25 (2004), adopted 17 November 2004, 59th Session, UN Doc. A/ RES/59/25 (2005).
88. International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, adopted by FAO's Committee on Fisheries on 2 March 2001 and endorsed by the FAO Council on 23 June 2001; available at http://www.fao.org/fi.
89. Molenaar, note 13 above.
90. Lodge & Nandan, note 7 above, Annex II.
91. As noted by Molenaar, note 13 above, this may apply to roughly 33 states. The rights of a coastal state over the legal continental shelf (as defined by LOSC, Art. 76) are inherent; they do not need to be claimed. Submission to the Commission on the Limits of the Continental Shelf is necessary however to establish the outer limits of the shelf.
92. Lodge & Nandan, note 7 above.
93. This proposal is based on draft articles adopted by the International Law Commission at its first session. Report on the Regime of the High Seas and the Regime of the Territorial Sea, UN GAOR, 8th Session, Suppl. No. 19, UN Doc. A/2456 (1953).