Observations on compliance and enforcement and regional fisheries institutions1: Overcoming the limitations of the law of the sea

Legal Aspects of Sustainable Development

Volumn 8, Issue , 2010, Pages 71-98

  McConnell, Moira L ^a  

^a NONE

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EID: 84941099115     PISSN: 18750923     EISSN: None     Source Type: Book Series    
DOI: None     Document Type: Review

References (51)

1. The term regional fisheries institution (RFI) is used in this chapter to include a wide range of institutions/organizations with differing mandates and roles that function as either advisory bodies (RFBs) or as management bodies organizations (RRMOs). I am adopting the broad definition of international institutions as "explicit arrangements, negotiated amongst international actors, that prescribe, proscribe and/or authorize behavior ..." and are public and can also be "fruits of agreement," that was proposed in B. Koremenos, C. Lipson and D. Snidal, "The rational design of international institutions," International Organizations 55, 2001, 761-719 at 762.
2. J. R. Mack, "International fisheries management: How the U.N. Conference on Straddling and Highly Migratory Fish Stocks changes the law of fishing on the high seas," California Western International Law Journal, 26, 1995-1996, 313.
3. Fisheries and Aquaculture Department, Food and Agriculture Organization of the United Nations (FAO), The State of World Fisheries and Aquaculture, 2008, FAO: Rome, 2009, p. 7. Online: (accessed 12 August 2009) [hereinafter SOFIA 2008].
4. For example, to name but only a few of these studies: M. W. Lodge, D. Anderson, T. Løbach, G. Munro, K. Sainsbury, and A. Willock, Recommended Best Practices for Regional Fisheries Management Organizations Report of an independent panel to develop a model for improved governance by Regional Fisheries Management Organizations, London: The Royal Institute of International Affairs, 2007
5. R. Rayfuse, "Compliance and Enforcement in Regional Fisheries Management Organizations (RFMOs)," Paper presented at the Conference on the Governance of High Seas Fisheries and the UN Fish Agreement - Moving From Words to Action, St. John's, Newfoundland and Labrador, 1-5 May 2005
6. W. Edeson, "Practice of compliance control within the framework of the protection of marine living resources," in U. Beyerlin, P. Tobian Stoll, and R. Wolfrum (eds), Ensuring Compliance with Multilateral Environmental Agreements. A Dialogue between Practitioners and Academia, Boston/Leiden: Martinus Nijhoff, 2006
7. E. Franckx, Fisheries Enforcement, Related Legal and Institutional Issues: National, Sub regional or Regional Perspectives, FAO Legislative Study No. 71, Rome: FAO, 2001
8. E. Meltzer, diagramatic update to "Global Overview of Straddling and Highly Migratory Fish Stocks: the Nonsustainable Nature of High Sea Fisheries," Ocean Development and International Law 1994, 25 (materials from the Conference on the Governance of High Seas Fisheries and the UN Fish Agreement - Moving From Words to Action, St. John's, Newfoundland and Labrador, 1-5 May 2005)
9. J. Swan, The Role of National Fisheries Administrations and Regional Fishery Bodies in Adopting and Implementing Measures to Combat IUU Fishing, Study for the Expert Consultation on Illegal, Unreported and Unregulated Fishing organized by the Government of Australia in Cooperation with FAO, 18-19 May 2000 (AUS IUU/2000/10)
10. E. Franckx, K. Van den Bossche, and D. VanderZwaag, "Canada, the European Union and regional fisheries management in the North Atlantic: Conflict, cooperation and challenges," in T. Koivurova, A. Chircop, E. Franckx, E. Molenaar, and D. VanderZwaag (eds), Understanding and Strengthening European Union - Canada Relations in Law of the Sea and Ocean Governance, Juridica Lapponica 35, Rovaniemi: University of Lapland, 2009, 261 at section 10.4.5 p. 306 ff.
11. See online: (accessed 12 August 2009).
12. United Nations Convention on the Law of the Sea, 10 December 1982, UN Doc. A/Conf. 62/122, 21 I.L.M. 161 (entered into force on 16 November 1994) [hereinafter LOSC].
13. B. A. Simmons, "International law and state behaviour: Commitment and compliance in international monetary affairs," The American Political Science Review 94, 2000, 819-835 at 833
14. J. Trachtman (ed.), International Law and Politics, Burlington, VT: Ashgate Publishing, 2008.
15. A basic obligation under Article 26 of the 1969 Vienna Convention on the Law of Treaties and LOSC, Article 300, supra note 7, and Article 34 of the 1995 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, 2167 U.N.T.S. 88, (1995) 34 I.L.M. 1542 (entered into force 11 December 2001) [hereinafter UNFA].
16. G. Downs, D. Rocke, and P. Barsoom, "Is the good news about compliance good news about cooperation?," International Organization 50, 1996, 379-406 in Trachtman, supra note 9, 157-185.
17. A. Chayes and A. H. Chayes, "On compliance," International Organization 47, 1993, 175, p. 176 in Trachtman, supra note 9, p. 264.
18. FAO, "Fisheries Topics: Governance. Fisheries governance." In: FAO Fisheries and Aquaculture Department [online]. Rome. Updated 2006 15 09. Online: (accessed 12 August 2009).
19. See, for example, S. Oda, "Fisheries under the United Nations Convention on the Law of the Sea," American Journal of International Law 77, 1983, 739.
20. See the discussion in D. Russell and D. VanderZwaag, "Recasting Transboundary Fisheries Management Arrangements in Light of Sustainability Principles" Chapter 1 of this book.
21. Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, 559 U.N.T.S. 285 (entered into force 20 March 1966)
22. Convention on the High Seas, 29 April 1958, 450 U.N.T.S. 82 (entered into force 30 September 1962).
23. FAO, Regional Fishery Bodies (RFB) - Web Site. "Regional Fishery Body Secretariats Network (RSN)." In: FAO Fisheries and Aquaculture Department [online]. Rome. Updated 17 March 2009. Online: (accessed 12 August 2009).
24. NAFO traces its origins to 1921 and the establishment of the North American Council on Fishery Investigations (NACFI) which was concerned with assessing the common fishery. In the 1950s the International Commission for the Northwest Atlantic Fisheries (ICNAF) was established with the objective of protecting and conserving the fish resources. See, NAFO, "Historical Overview of the Northwest Atlantic Fishery." Online: (accessed 12 August 2009).
25. Franckx, supra note 4, p. 141, citing (at note 68) C. Joyner, "Compliance with and enforcement of international fisheries law," in E. Hey (ed.), Developments in International Fisheries Law, The Hague: Kluwer, 1999, p. 327.
26. The three main theories on international compliance are rationalist theory, normative theory, and liberal theory. See the analysis in K. Raustiala, "Compliance and effectiveness in international regulatory cooperation," Case Western Reserve Journal of International Law 32, 2000, 387.
27. M. Burgstellar, Theories of Compliance with International Law, Boston: Martinus Nijhoff, 2005, p. 29.
28. See M. L. McConnell, "Inter-agency collabouration or inter-agency competition - A challenge for the UN system," in A. Kirchner (ed.), International Marine Environmental Law, The Hague, New York, London: Kluwer Law International, 2003, chapter 7 and sources cited therein.
29. Ibid., citing D. B. Guralnik (Gen. Editor), Webster's New World Dictionary, 2nd concise edition, New York: Simon & Shuster, 1979, p. 760.
30. McConnell, supra note 31, citing Sloane School of Management, MIT. Undated Document. Online: .
31. See E. Raftopoulos, "International environmental negotiation as a governance technique," in E. Raftopoulos and M. L. McConnell (eds), Contributions to International Environmental Negotiation in the Mediterranean Context, MEPIELAN Studies in International Environmental Law and Negotiation - 2, Athens, Brussels: Bruylant Publishers, 2004, pp. 3-64.
32. United Nations, General Assembly, Report of the Secretary-General of the United Nations on Sustainable fisheries, including through the 1995 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, and related instruments, 14 July 2008, UN Doc. A/63/128. Online: (accessed 12 August 2009) [hereinafter July 2008 SG Report].
33. Ibid., at footnote 5: "FAO website at: http://www.fao.org/fishery/topic/2883/en. The value of world exports of fish and fish products grew 9.5 per cent in 2006 to US$86 billion and nearly 7 per cent in 2007 to US$92 billion, with developing States accounting for 50 per cent of all fish exports. The proportion of world fish production traded internationally represented 38 per cent of the total, or 55 million tonnes (see FAO News Release 2 June 2008, available at: http://www.fao.org/newsroom/en/news/2008/1000850/index.html).
34. The eleventh session of the FAO's Sub-Committee on Fish Trade (2-6 June 2008, Bremen, Germany) endorsed a set of technical guidelines aimed at promoting responsible international trade in fish and fishery products, which were intended to ensure that international trade in fish and fishery products did not compromise the sustainable development of fisheries and responsible utilization of living aquatic resources (see FAO News Release 17 June 2008, available at: http://www.fao.org/newsroom/en/news/2008/1000867/index.html).
35. See, E. Molenaar, "Port State Jurisdiction to Combat IUU Fishing: The Port State Measures Agreement," Chapter 13 of this book.
36. Lodge, supra note 4, see chapter 5 especially. See also the May 2007 study by M. Mooney-Seus and A. Rosenberg, Best Practices for High Seas Fisheries Management: Lessons Learned, Chatham House Briefing Paper, London: The Royal Institute of International Affairs, 2007, pp. 5 and 6.
37. FAO, "Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing", FAO Technical Guidelines for Responsible Fisheries, No. 9, Rome: FAO, 2002, p. 69 ff.
38. Carl-Christian Schmidt, "Economic Drivers of Illegal, Unreported and Unregulated Fishing," Presented at the Conference on the Governance of High Seas Fisheries and the UN Fish Agreement - Moving From Words to Action, St. John's, Newfoundland and Labrador, 1-5 May 2005. Online: (accessed 12 August 2009).
39. R. Torres, "Labour standards and jobs-the cases of social policy and termination of employment," Presentation to the Workshop on the Economic Dynamics of International Labour Standards, ILO, Geneva, Switzerland, 21-22 June 2007.
40. In fact, FAO has numerous information-based tools that could support global monitoring and enforcement. See, for example, "Fisheries and Aquaculture Fact Sheets," online:
41. the public "Database on Port State Measures," online: (accessed 12 August 2009).
42. See, for example, United Nations Environment Programme, Online Manual on Compliance with and Enforcement of Multilateral Environmental Agreements. Online: (accessed 12 August 2009).
43. R. Baird, "Australia's response to illegal foreign fishing: case of winning the battle but losing the war?," International Journal of Marine and Coastal Law, 23, 2008, 95.
44. Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, 559 U.N.T.S. 285 (entered into force 20 March 1966).
45. See, UN General Assembly, "Note by the Secretary-General," UN Doc. A/61/160, 17 July 2006, containing a letter from the IMO with the Report of the Ad Hoc Consultative Meeting of senior representatives of international organizations on the 'genuine link'. The report notes: "On 17 November 2004, the General Assembly requested the Secretary-General of the United Nations to report on the outcome of the study undertaken by IMO, in cooperation with other competent international organizations, "to 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, and the potential consequences of non-compliance with the duties and obligations of flag States described in relevant international instruments" (resolution 59/24, para. 41)." Appendix 1, para. 2, "Examination and clarification of the role of the "genuine link" in relation to the duty of flag States to exercise effective control over ships flying their flags, including fishing vessels, submitted by the International Labour Office," p. 16.
46. FAO, Report of the Expert Consultation on the Development of a Comprehensive Global Record of Fishing Vessels, Rome, 25-28 February 2008, Fisheries Report No. 865 FIIT/R865 (En), Rome: FAO, 2008.
47. United Nations Convention on Conditions for Registration of Ships, Geneva, 7 February 1986. Not in force. Adopted under the auspices of United Nations Conference on Trade and Development (UNCTAD).
48. The M/V Saiga (No.2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment 1 July 1999 (online: ), para. 55-88
49. see also The M/V Grand Prince case (Belize v. France) Judgement 20 April 2001 (online: ), para. 80-94, and other cases involving applications under LOSC Article 292.
50. Ibid., Appendix G. R. Baird, "The development of a comprehensive Global Record for fishing vessels, refrigerated transport vessels and supply vessels: an analysis of the practice of regional fishery bodies," pp. 25-35.
51. Z. Tyler, "Saving fisheries on the high seas: the use of trade sanctions to force compliance with multilateral fisheries agreement," Tulane Environmental Law Journal 20, 2006, 43-96 at 66.