UN fish stocks agreement: 2006 Review conference: Unfinished business: Review conference on the 1995 fish stocks agreement

International Journal of Marine and Coastal Law

Volumn 21, Issue 4, 2006, Pages 551-568

  Takei, Yoshinobu ^a  

^a UTRECHT UNIVERSITY   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

CONFERENCE PROCEEDING; FUTURE PROSPECT; INTERNATIONAL AGREEMENT; STOCK ENHANCEMENT; UNITED NATIONS;

EID: 34547744389     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180806779441110     Document Type: Conference Paper

References (118)

1. The full title of the FSA is the 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 August 1995).
2. That is, (1) conservation and management of stocks; (2) mechanisms for international cooperation and non-members; (3) monitoring, control and surveillance and compliance and enforcement; and (4) developing states and non-parties.
3. For the overview of the discussions, see the Report of the Review Conference on the 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, 5 July 2006, A/CONF.210/2006/15 (hereinafter referred to as "Conference Report"). This and other Conference documents are available at 〈http://www.un.org/Depts/los/convention_agreements/ review_conf_fish_stocks.htm〉.
4. For the purposes of this article, the term "regional" is meant to include "subregional" unless otherwise specifically mentioned.
5. Article 36(1), FSA. Note that this article uses the acronym "HMS" for highly migratory fish stocks although this acronym has often been used to mean highly migratory species.
6. Report of the Fourth Informal Consultations of States Parties to the 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, 31 May-3 June 2005), ICSP4/UNFSA/REP/TNF.1, 18 July 2005.
7. Report of the Fifth Informal Consultations of States Parties to the 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, 20-24 March 2006), ICSP5/UNFSA/REP/INF.1, 26 April 2006.
8. Article 36(1) merely stipulates that the Secretary-General of the United Nations shall invite all. states parties and those states and entities entitled to become parties, as well, as IGO and NGO observers.
9. Non-parties argued that the purpose of Article 36 is to grant to all states the right of full participation on. an equal footing and therefore demanded that the Conference adopt rules of procedure based on consensual decision-making (see supra note 7, paras. 43-55).
10. Rule 37(1) of the Provisional rules of procedure of the Review Conference, A/CONF.210/2006/6, 30 March 2006.
11. Conference Report, paras. 12-18.
12. At the preparatory meeting, while some non-party states argued for overcoming obstacles to becoming parties", other delegations stressed that amendments could be made only through procedures envisaged in Article 45. See supra note 7, para. 86.
13. Outcome of the Review Conference, New York, 26 May 2006, reproduced in Annex of the Conference Report (hereinafter referred to as "Outcome").
14. Ibid., para. 59(a).
15. Ibid., para. 59(b). Note that the idea of transforming the ICSPs to formal meetings of states parties, as in many environmental treaty regimes, was on the table at the previous ICSP (supra note 7, paras. 90-94).
16. Outcome, para. 59(b).
17. Articles 5 and 6, FSA.
18. For new RFMOs, see Article 5, Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Honolulu, 5 September 2000) and Article 3, Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean (Windhoek, Namibia, 20 April 2001). The General Fisheries Commission for the Mediterranean incorporated the precautionary approach by amending its constitutive instrument. See the Agreement, for the Establishment of a General Fisheries Commission for the Mediterranean, as amended and approved by the FAO Council at its 113th Session (4-6 November 1997), which entered into force on 29 April. 2004. As regards the practice of existing RFMOs, for example, the Northwest Atlantic Fisheries Organization (NAFO) adopted a precautionary approach framework and applied the approach initially to two stocks in 2004; the North East Atlantic Fisheries Commission (NEAFC) adopted measures on a precautionary basis to reduce existing fishing efforts in deep-sea fisheries by 30 % in spite of the lack" of scientific advice and closed five seamounts on the high seas to fishing activities to protect vulnerable deep-water habitats. See the Report submitted in accordance with paragraph 17 of General Assembly resolution 59/25 of 17 November 2004, to assist the Review Conference to implement its mandate under paragraph. 2, article 36 of the United Nations Fish Stocks Agreement, Report of the Secretary-General, 4 January 2006, A/CONF.210/2006/1 (hereinafter referred to as "Preparatory Report"), paras. 147-148 and 177.
19. For example, paragraph 58 of United Nations General Assembly (UNGA) Resolution 59/25 of 1.7 November 2004.
20. See, e.g., The Seventh Meeting of the UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea. Its agreed consensual elements to be suggested to the General Assembly in paragraph 6 recognize that "there is no universally agreed definition of an ecosystem, approach" and list actions to be included in an ecosystem approach. (Report on the work of the United Nations Open-ended Infonnal Consultative Process on Oceans and the Law of the Sea at its seventh meeting, available at 〈http://www.un.org/Depts/los/ consultative_pocess/consultative_process.htm〉).
21. I.e., minimization of discards, conservation of species belonging to the same ecosystem and associated or dependent species, and protection of the marine environment, including habitats of special concern, and biological diversity. See Articles 5 and 6, FSA.
22. Outcome, para. 18(d).
23. Ibid., para. 15.
24. While the term "discrete high seas stocks" is intended to mean stocks solely occurring on the high seas, this tenninology is not uniform. For example, although the term "discrete high seas (fish) stocks" is most often used, the Conference employed the term "high seas discrete stocks". Moreover, the FAO previously used "purely high seas stocks". The Report prepared by the DOALOS for the Conference used "other high seas stocks" (i.e., other than SFS or HMS) since it is generally unknown whether such stocks are definitely discrete high seas stocks. See Preparatory Report, para. 14.
25. Outcome, para. 18(e).
26. This is more or less in line with recent trends in other fora regarding high seas MPAs. At the informal open-ended working group meeting on biodiversity beyond national jurisdiction, while many delegations regarded high seas MPAs as a key tool, some states considered them as a possible, but not necessary, tool, to obtain, a multi-sectoral approach and were of the view that there should be a. strong causal link between impacts and measures. See paras. 59-62, especially 61-62, Report of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological, diversity beyond areas of national jurisdiction, A/61/65, 20 March. 2006 available at 〈http://www.un.org/Depts/los/biodiversityworkinggroup/ biodiversityworkinggroup.htm〉. The Eighth Meeting of the Parties to the Convention on Biological Diversity (CBD), in its Decision VIII/24, recognized that MPAs are "one of the essential tools to help achieve conservation and sustainable use of biodiversity" in areas beyond the limits of national, jurisdiction, while "they should be considered as "part of a wider management framework consisting of a range of appropriate tools" (para. 38); it also recognized that "there is a need to achieve a more integrated approach to establishing and managing marine protected areas" (para. 39), and even referred to an option of "assessing the need for an implementing agreement" under the LOSC (para. 40), although Mexico asked to include a statement to the effect, that it was not convinced of the need for an implementing agreement (see the Report of the Eighth Meeting of the Parties to the Convention on Biological Diversity, UNEP/CBD/COP/8/31, 15 June 2006, p. 68, para. 456). These documents of the CBD are available at 〈http://www.biodiv. org/default.shtml〉.
27. United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982.
28. The objective of the FSA is "to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish, stocks through effective implementation of the relevant provisions" of the LOSC. Article 2, FSA.
29. See Preparatory Report, para. 104.
30. In theory, where fisheries for DHSS affect, the marine ecosystems through interference with predator-prey relationships, over-exploitation of DHSS will affect the stock, status of SFS and HMS. However, this has not yet become a serious concern for the international community.
31. Deep-sea fisheries do not occur"exclusively on the high seas. Therefore, the Conference addressed the issue of deep-sea. fisheries in general (whether occurring on the high seas or in the EEZ) by urging submission to the FAO of information on. deep-sea fish catches and other cooperation with the FAO. Outcome, para. 18(k).
32. Earth Negotiations Bulletin (ENB), Vol. 7 No. 57 (23 May 2006), p. 2. ENB is available at 〈http://www.iisd.ca/〉.
33. Outcome, para. 1.6.
34. Ibid., para. 19(b).
35. Ibid., para. 18(c). In this respect, it is noted that the negotiations to establish, new RFMOs with a. mandate to deal with species other than HMS (presumably, SFS and DHSS) are underway in the Pacific (in the South Pacific led by Australia, Chile and New Zealand, and in the Northwest Pacific among Japan, the Republic of Korea and the Russian Federation). In addition, at the Conference, interest in similar initiatives for the South Atlantic Ocean and the North Pacific Ocean was expressed. Conference Report, paras. 60-63.
36. Article 8(2), FSA.
37. Article 6(6), FSA.
38. Outcome, para. 18(c).
39. See, for example, Conference Report, para. 72.
40. Outcome, para. 5. See also ibid, para. 26. For example, it was pointed out that even in cases where there was scientific advice, states and RFMOs had not always taken such advice into account. Conference Report, para. 44.
41. For example, the International Commission for the Conservation of Atlantic Tunas, NAFO and NEAFC. See Preparatory Report, paras. 220-222.
42. Outcome, para. 29.
43. Ibid., para. 32(j).
44. Ibid. In exchange, ensuring public availability of the results of such assessments was inserted in the paragraph.
45. Ibid.
46. Ibid., para. 32(k).
47. Ibid., para. 25.
48. See, for example, ibid, para. 26.
49. Article 8(4), FSA.
50. Outcome, para. 32(d).
51. Ibid., para. 24. During the discussion in the drafting committee, the following view was expressed: "Cooperating status should in general be temporary. Those with a real interest in the fisheries in question should join RFMOs where this is possible".
52. Ibid., para. 32(e). This is in conformity with the practice of RFMOs. For example, an application from Japan for the status of cooperating non-member was rejected by the South-east Atlantic Fisheries Organization in that parties considered that states fishing in the area should be involved in the decision-making process and that benefits should be matched by obligations such as budgetary contributions. Preparatory Report, para. 242.
53. Article 18(1) of the FSA provides that a flag state shall take measures necessary to ensure that its vessels do not engage in any activity undennining the effectiveness of subregional and regional conservation and management measures. Some commentators argue that by this provision, objecting states are allowed to depart from such measures only to a limited extent. See R. Churchill, "Legal Uncertainties in International High Seas Fisheries Management", 37 Fisheries Research (1998), p. 229;
54. T. Henriksen, G. Hemneland and A. Sydnes, Law and Politics in Ocean Governance: The UN Fish Stocks Agreement and Regional Fisheries Management Regimes (Leiden: Martinus Nijhoff Publishers, 2006), pp. 39-40.
55. Outcome, para. 32(f).
56. Ibid., para. 32(b). It is recalled that consultations among RFMOs under the auspices of the FÄO have taken place several times. These meetings could also provide opportunities to consider cooperation and coordination, among RFMOs.
57. Ibid., para, 35.
58. Ibid., para, 37.
59. Ibid., para, 43(b).
60. Ibid., para, 43(e), Originating in a commitment made at an international conference in 2000, the MCS Network was established to improve the efficiency and effectiveness of MCS activities through enhanced cooperation, coordination, information collection and exchange between governmental bodies. For more information, see its website at 〈htrp://www.imcsnet.org/〉. The Ministerially-led Task Force on IUU Fishing on the High Seas' also emphasized the need to strengthen the International MCS Network in its proposal in the final report.
61. See pp. 65-68 of Closing the Net: Stopping Illegal Fishing on the High Seas, Final Report of the The Ministerially-led Task Force on IUU Fishing on the High Seas, March 2006, available at 〈http://www.high-seas.org/ 〉.
62. Article 11, FSA.
63. Outcome, para, 30.
64. Ibid., para, 32(c). A number of developing states criticized the criteria based on historic catches as hampering their increased participation in the fisheries regulated by RFMOs. Conference Report, paras, 80 and 93. The Conference did not clarify the meaning of "a real interest" in Article 8(3) of the FSA, The need to take due account of the interests of all those with a real interest in the fishery was referred to within the framework of addressing participatory rights, not within that of solving the specific issue of allocation of fishing opportunities, Thus, it is still unclear whether the concept includes an interest not only in exploitation but also in conservation of the resources (i.e., an interest of non-consumer states). On this issue, see also para, 5 of the Declaration of the Latin American and Caribbean countries ahead of the Review Conference on the 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, Lima, 9 March 2006, reproduced in A/CONF.210/2006/12 (hereinafter referred to as "Lima Declaration"), which provides that states with "a real interest." may join RFMOs but conservation and management measures must be taken exclusively by coastal states and high seas fishing states.
65. The discussion, concerning port states is dealt with in the section "Non-parties to the FSA", together with the controversies surrounding the topic.
66. Outcome, para. 43(a).
67. Ibid., para. 32(h). For a recent study on the same topic undertaken by the International Maritime Organization and other relevant international organizations in response to a request by the UNGA, see the Report of the Ad Hoc Consultative Meeting of senior representatives of international organizations on the "genuine link", A/61/160, 17 July 2006. In paragraphs 10 and 11, it states that while a definition, of the term, "genuine link" was "a matter to be determined by States and international and domestic courts and tribunals on the basis of provisions" of the LOSC and other applicable international instruments, "the role of the 'genuine link' [. . .] is directly related to the issue of the effective exercise of flag State obligations. The two matters were, in their view, inseparable, since the ability of a flag State to effectively exercise its responsibilities appeared to be contingent upon a sufficiently strong link between the flag State and the ships flying its flag".
68. Outcome, para. 43(n). A proposal to specify the deadline as no later than 2008 (see Conference Report, para. 1.04) was not adopted.
69. Outcome, para. 38.
70. Ibid., para. 43(h).
71. Article 92, LOSC; Articles 18-19 and 21, FSA.
72. See, inter alia, international Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU), endorsed by the Hundred and Twentieth Session of the FAO Council on 23 June 2001, paras. 18 and 48.
73. Outcome, para. 43(j).
74. Ibid., para. 43(m).
75. Ibid., para. 43(c).
76. Ibid., para. 43(1).
77. Ibid., para. 43(g). Compare with IPOA-IUU, para. 66 ("Trade-related measures should only be used in exceptional, circumstances, where other measures have proven unsuccessful to prevent, deter and eliminate IUU fishing, and only after prior consultation with interested States").
78. Outcome, para. 43(i).
79. Ibid., para. 46.
80. Ibid., para. 52.
81. This concerns: (1) stock assessment and scientific research; (2) data collection and reporting; (3) MCS; (4) port state control; (5) compliance with market- and trade-related measures and meeting market access requirements, including with respect to health and quality standards; (6) development, of fisheries for SFS and HMS; (7) human resource development; and (8) information sharing. Ibid., para. 49.
82. Ibid., para. 55(a).
83. Ibid., para. 55(d).
84. See ibid., para. 47.
85. Ibid., para. 55(a).
86. Ibid., para. 56(a).
87. Conference Report, para. 117.
88. Outcome, para. 43(f). Although the scope of assistance under this paragraph is not limited to developing states, it is reasonable to consider that assistance under this paragraph, could help developing states in many cases since many fisheries access agreements have been concluded between developed states and developing coastal states.
89. Ibid., para. 55(c).
90. Ibid., para. 32(i).
91. Ibid., para. 1.8(f). Note that as regards other states, the Conference recommended reducing fishing capacity to levels commensurate with the susteinability of fish stocks and eliminating subsidies that contributed to IUU fishing, overfishing and fishing overcapacity. Ibid., paras. 18(f)-(g).
92. Ibid., para. 55(b).
93. Ibid.
94. Ibid., para. 53.
95. Ibid., para. 44.
96. Ibid., para. 54.
97. Ibid., para. 55(e).
98. Ibid., para. 52.
99. See Conference Report, para. 126.
100. Outcome, para. 55(f).
101. Lima Declaration, para. 2.
102. See, for example, the Statement by the delegation of Chile on measures to promote accession to the New York Agreement, distributed at the Conference, p. 2 (on file with the author).
103. Preparatory Report, para. 323.
104. It is not clear why such a view was absent, at the Conference. A possible reason might be that the implementation by RFMOs has so far turned out to be acceptable for these states.
105. Outcome, para. 18(b).
106. Articles 21. and 22, FSA.
107. Preparatory Report, para. 326.
108. Conference Report, para. 102.
109. See, for example, ibid, paras. 125-126.
110. Outcome, para. 43(o).
111. See, for example, Lima Declaration, para. 4. Chile further argues that full sovereignty and discretion exercised by port states in their terminal facilities reinforce their ability to preserve not only the resources in the EEZ but also those in adjacent high seas areas. Supra note 100, p. 3. It should be noted that Article 23(1) refers to port measures to ensure the effectiveness of subregional, regional and global conservation and management measures, rather than unilateral ones.
112. See Articles V and XX of the General Agreement on Tariffs and Trade, Geneva, 30 October 1947. This is exactly the issue of the swordfish dispute between Chile and the EU under the LOSC and the WTO.
113. See, for example, R. G. Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (Leiden: Martinus Nijhoff Publishers, 2004), pp. 335-337 (arguing that state practice indicates that port states have no right to impose sanctions under general international law).
114. Outcome, para. 43(d). The full title of the document is the Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing (reproduced as Appendix E of the Report of the Technical Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated Fishing, FAO Fisheries Report No. 759).
115. Outcome, para. 43(d).
116. ENB, Vol. "7 No. 59 (25 May 2006), pp. 1-2;
117. Conference Report, para. 108.
118. Ibid., para. 135.