SETTING THE SCENE

Keynote address

Rt. Hon. S. Upton
Chairman of the OCD Round Table on Sustainable Development
OECD
2 rue André-Pascal, 75775 Paris Cedex 16, France
<[email protected]>

1. BACKGROUND

I want to talk today about illegal, unreported and unregulated fishing - IUU fishing - on the high seas and what might be done about it. When a problem attracts an acronym like this you know it has become institutionalized. And when the key words of the acronym are pregnant with legal significance you know it is an institutional minefield.

In a sense, there is nothing new to say about IUU fishing. This term of art in international maritime law circles continues to attract a gathering tidal wave of articles explaining the legal complexities in response to an ever-widening circle of negotiated ‘solutions’. I do not wish to rehearse the legal position in detail - I have done so in a paper I co-authored earlier this year for a meeting of the OECD Round Table on Sustainable Development that we convened to examine the problem (Upton and Vitalis 2003).

Laid out in our paper you will find, in loving detail, all you need to know about the contested boundaries of flag-state responsibilities, of port state possibilities and trade-related counter-measures. I do not make light of the complex legal setting in which high-seas fishing is conducted - the detail is important and I think, as a layperson, that I have as good a grasp of it as anyone. What I want to do in this paper is presume that the complexities are understood, but set them to one side for a moment and try to concentrate on the big picture in non-technical language.

Twenty years ago, the world community finalized the Law of the Sea. It was a mammoth undertaking, and one whose ratification by member states is still a work in progress. Not surprisingly, it has not been amended. To talk of doing so in the presence of those who painstakingly brought it into life is regarded as heresy. And in a world where multi-lateral solutions look, to say the least, no easier to negotiate, there are clearly powerful arguments against disturbing a status quo that has barely crystallized.

But if the Law of the Sea remains unamended, activity to strengthen the legal regime governing high-seas fishing has been unrelenting. The persistence of IUU fishing is certainly not a reflection of diplomatic lethargy. The last 10 years has seen an almost frenzied level of treaty-writing. Few areas of multi-lateral activity have seen so many closely related and sometimes overlapping initiatives pursued in quick succession. Negotiators have not been sitting on their hands.

Whether we are making progress is another matter. The level of activity may reflect, to some extent, shortcomings both in the strength of the legal norms that govern the global ocean commons and in the ability of multilateral processes to secure genuinely comprehensive sign-up. The complex and evolving web of binding and non-binding international instruments has undoubtedly changed the nature and the location of grossly unsustainable high-seas fishing. But it has not stopped it. Each new intervention potentially moves the problem somewhere else. And, there is no globally enforceable regime at this point that can put an end to the practice. We have instead a patchwork quilt of measures with differing geographical and legal reach.

The way forward will no doubt involve further complicated efforts to improve that reach and coverage. But before we lose ourselves in that complexity it is worth spelling out the tensions that have been internalized in the Law of the Sea. There are two universal premises that underlie the way UNCLOS deals with the high seas. One is the age-old doctrine of the freedom of the high seas, which has formed the basis of the law of the sea for more than 300 years and embodies the notion of open access to common resources that are beyond the jurisdiction and control of individual states. This is reflected in the solemn insistence that the high seas are immune from sovereign claims^[15]

But the fact that sovereign claims will not be recognized does not mean the high seas are a sovereignty-free zone. This brings us to the second universal premise: that flags on boats create pockets of mobile sovereignty that attract all the immunities necessary to prevent the unwanted attentions of other flag states or inter-state organizations^[16]

Put these two premises together and you have, in reality, a legal framework that erects a veil of sovereignty around fishing vessels which makes the enforcement of any internationally agreed rules dependent on the good will and resources of the flag state. All of the legal rules subsequently elaborated in FAO and UN instruments, which seek to spell out flag-state responsibilities and allow other states to intervene, are subject to these umbrella conditions. The veil of sovereignty conferred by flag status can only be legally pierced through the express consent of the flag state.

The result? Flag states that having no serious intention of enforcing whatever obligations they have undertaken, maintain an effective immunity for IUU fishing. It does not really matter whether or not they have gone beyond the Law of the Sea’s relatively general provisions on the conservation of marine resources; if there is no intention or ability to enforce, IUU fishing will continue unimpeded.

Articles 116-120 of the Law of the Sea provide a perfectly adequate basis for action on the part of states that have a serious intention to halt bad fishing practices. While the FAO Compliance Agreement and the UN Fish Stocks Agreement undoubtedly create more exacting responsibilities and enhance the ability of responsible nations to make IUU fishing by others more difficult, they are in a sense speaking only to the converted, because it is not states but boats that go fishing. And in the absence of effective enforcement by flag states - never an easy task even for wealthy states who have signed the binding legal instruments - good intentions will remain just that. Besides, the hard fact of international law remains that if a boat flies the flag of a state that has not signed any of the legally binding conventions, other states have no legal basis to interfere with that vessel under those conventions.

All treaties subsequent to the Law of the Sea have been negotiated without prejudice to the veil of sovereignty in which it cloaks all flagged vessels. In short, there is some IUU fishing that, while being unregulated and unreported, is not, under international law, illegal. And it is that residual ‘legality’ that poses so many enforcement problems.

It is for that reason that I remain sceptical of the efficacy of trying to bring pressure to bear through the elaboration of increasingly detailed non-binding documents such as codes of conduct and plans of action. We run the risk of believing that texts are a substitute for action. Similarly, while further strengthening the resolve and coverage of regional fisheries organisations is clearly a priority, it can only take us so far. These measures, taken under the aegis either of UNCLOS or the more specific provisions of the 1995 UN Fish Stocks Convention, are all being pursued alongside vessels whose flags are those of states who (either explicitly or implicitly) exercise their right to authorize fishing on the high seas but choose not to enter into, and be bound by, conservation measures and/or enforce them.

The search for points of leverage against IUU fishing proceeds against the reality that international law has underlined the status of the high seas as a global common to which individual sovereign states have been universally assigned access together with national responsibility for enforcement. At the same time, attempts to avert a ‘tragedy’ in that common (the rape of its fish stocks) have of necessity been conceived as regional co-operative initiatives between those who choose to join them. The challenge is to bring into some sensible relationship a top-down assertion of rights with a bottom-up attempt at management for the collective good before virtually all international fish stocks are depleted.

At the end of the day, as long as the world is not prepared to lift the veil of flag-state sovereignty and enquire into the effectiveness of the links that bind ships to states charged with requiring that they meet certain standards, we will fight IUU fishing with one hand tied firmly behind our backs. Most of our citizens would be amazed to learn that the Law of the Sea gives nations the right to intercept, on the high seas, boats that are engaged in unauthorized broadcasting, but not boats that are fishing in a way that is undermining the conservation of marine resources because they are theoretically under the control of a negligent flag state. I wanted to state that bluntly, because from time to time someone should, just to maintain a link with reality.

On the other hand, an equally realistic assessment would conclude that further modifying sovereign rights by treaty is not going to happen in a hurry. And it would be a mistake to see IUU fishing purely through a legalistic lens. The reality is that even within the inadequacies of current legal arrangements, there are a host of issues that can be progressed. These range across fields as distinct as trade measures to limiting market access for IUU product, the removal of subsidies for ship construction and the sharing of information between States and regional organizations that can improve enforcement and interception. In fact it is the sheer multi-faceted nature of the issue that frequently bewilders observers. Just where should the next step be taken? Which actions would secure the most leverage in trying to suppress IUU fishing? How could any campaign secure a co-ordinated response by agencies at global and regional levels that are responsible for just a part of the picture? Even if every country solemnly signed up to all the available conventions, how many would have the resources to carry out their responsibilities?

These were some of the issues, alongside the legal ones, we discussed in June at the OECD Round Table on Sustainable Development. It was an extraordinarily interesting meeting conducted under Chatham House rules with the full range of inter-governmental, commercial and NGO players present together with many Ministers of Fisheries. One thing became very clear; no single agency at any level is responsible for assembling all the pieces of the jigsaw. Despite the protestations of agencies like the FAO, the IMO and the UN Division for Ocean Affairs and the Law of the Sea, each has its own sphere of authority with limited ability to coordinate across boundary lines. There is nothing new in that - it mirrors the difficulties most countries experience domestically. IUU fishing may be an unambiguous source of concern to a fisheries ministry. But its relative importance to the government’s legal advisers, its trade negotiators, its border protection services and (in the case of rich countries) development assistance agencies, is another matter.

Perhaps it was frustration with the fragmented treatment of IUU fishing that was one of the factors that lead the Ministers who attended the June meeting to promote and lead a Task Force that will, for the first time, seek to draw together in one piece of analysis, all the threads - legal, economic, technical and scientific - and propose a full menu of prioritized actions. The OECD Round Table has agreed to host the Task Force and I will be working with Ministers and some key stakeholders drawn from enforcement, academia, industry and conservation groups to generate some conclusions within 18-24 months.

I will shortly invite the Chairman of the Task Force, Rt Hon Elliot Morley, to provide a view from the top, but before he does let me just say a little about the potential significance of this initiative. You could be forgiven for saying - "not another task force" or "not another committee", and the onus will be on us surprise you. But I want to suggest to you that this is a novel way of trying to advance a major international issue.

I have, over the last decade or so, had considerable exposure to the pace and ambition of international diplomacy on environmental issues. There is no shortage of declarations. But real progress is harder to come by. In truth, we have probably had far more grandiose ideas about what could be achieved through international negotiating processes than was ever realistic. Trying to bring the world on board is a daunting business and often means moving at the pace of the slowest and most sceptical party. Where there is doubt or uncertainty, or the stakes are enormous, that may be no bad thing. But if reluctance is allowed to mask outright neglect, then there is surely room for those who seek to make the case to move faster. International negotiations have a tendency to fall into comfortable rhythms, to become institutionalized. From time to time there is a need to reinvigorate them. And that does not have to be done from inside.

That is what is different about the Task Force we are announcing today. Despite endless international gatherings solemnly declaring that there is a need for ‘stronger political commitment’ on many issues on the sustainable development agenda, I am not aware of anyone being prepared to provide it. By taking an all-encompassing and strategic level brief that is not limited by institutional or disciplinary boundaries, Ministers are hoping to provide some focus to a critical global issue that suffers from a sprawling and unfocussed agenda. The active engagement of current Ministers who hold a warrant from their respective governments is almost without precedent. It is also a very direct and courageous reply to those who call for more "political will".

Today we have five Ministers - Elliot Morley, M.P. (Minister for Environment and Agri-Environment, United Kingdom), Senator Ian Macdonald (Ministry for Fisheries, Forestry and Conservation, Australia), H.E. Undersecretary Felipe Sandoval (Subsecretaria de Pesca, Chile), Hon. David Benson-Pope (Minister of Fisheries, New Zealand), Dr Abraham Iyambo (Minister of Fisheries and Marine Resources, Namibia) - who want to take the lead in fostering the political will that so many people talk about. Wisely, these Ministers do not simply want to make some statements which can be dismissed as rhetoric. They want to know that the solutions they propose are practical and able to win, in due course, wide international endorsement. It will be my job to assemble a small team to provide them with the raw material they need. My ambitions are very simple: to produce an analysis of the issue that becomes the single point of reference for anyone wanting to enter the debate on IUU fishing in the future; and place the members of this Task Force in a position to engage their counterparts directly and personally on the basis of the best analysis available.

This is, if you like, a coalition of the willing. It is not a substitute for comprehensive multilateral action and it does not seek to undermine inter-governmental negotiations. These will continue in their own inimitable fashion and to their own timetables. Rather, the Task Force will be seeking to assist those processes through fresh analysis and committed leadership.

2. LITERATURE CITED

Upton, S. & V. Vitalis 2003. Stopping the High Seas Robbers: Coming to Grips with Illegal, Unregulated and Unreported Fishing on the High Seas, OECD Round Table on Sustainable Development.

Not IUU but LRR - a commercial fishing industry perspective

A. Macfarlane
Trade and Information
New Zealand Seafood Industry Council Ltd
Private Bag 24-901, Wellington, New Zealand
<[email protected]>

1. BACKGROUND TO THE BUSINESS

Business requires profits to be sustainable. Risky business requires a profit premium to reward the risk. If an appropriate reward for risk (including a capacity to sustain anticipated failures) cannot be obtained, the business ends - one hopes before it collapses. For low-risk businesses - like selling infrastructure (roads, power, water) - a little profit all the time is good enough. For high risk businesses (developing new drugs, or exploring for undiscovered natural resources) - a large profit must be made each time the business succeeds in order to offset the frequent failures along the way. The less frequently reliable the profit reward is, the higher the profit must be when it does come. The riskiest businesses are criminal. Profits must be sky high, because the consequences of getting caught are oppositely devastating.

Moving into deep-sea based fisheries has been a natural progression over the last forty years arising from the desire to find better profits than those achievable from known fishing activities - or other business opportunities available for the capital. The risks have been, and are, many and varied, especially at the developmental stage. Overcoming the challenges have included identifying potential habitat, adapting and developing vessels, gear and skills to suit new habitats and be successful with new target species, identifying the marketable attributes of the new fish species that appear to have commercial potential, and finding customers and developing sustainable market demand for the new fish. All of these activities involve risk taking and the risks have on occasion been rewarded in new and profitable businesses. It is that record of commercial success that has brought us here this week.

Without orange roughy, oreo dories, toothfish, redfish, cardinal and really only a handful of other commercially valuable deep-sea fish, the exploration of the deep ocean would be much less advanced than it is today. It might otherwise simply be an interesting cul-de-sac of marine science, perhaps made occasionally accessible to the public by the likes of National Geographic or the Discovery Channel telling stories about Weird Fish.

We may still be at the beginning stage of exploring deep-ocean biodiversity, but I suggest (boldly) that we now know quite a lot about the prospects for commercially interesting deep-sea fishing, at least for fish that people are not only going to eat, but pay premium prices for, because of their superior eating qualities.

There may yet be other stocks of fish at even greater depths, but there is little evidence to suggest that those fish will be attractive for sale as food. The challenge for the future therefore is to make the deep-sea fisheries that we have identified into steady, sustainable businesses. That requires identifying and managing the risks facing, and even created by, fishing so that the resulting businesses can deliver sustainable and long term production, satisfy a steady and reliable customer base and secure acceptable profits for long term investors.

In so doing, the risk profile of the business will be reduced and thus seeking high profit rewards would be overtaken by aspirations of steady profit. Primary among the risks to manage is the risk of depletion. Allocation and defence of secure rights to access the fisheries resources is a key tool for managing such risks.

Contrary to some of the recent statements by preservationist interest groups, deep-sea fisheries can be, and are being, managed sustainably. But at present these successes are all within or related to EEZs. This is hardly surprising as the mechanisms to secure and defend access rights in the high seas have yet to be developed and implemented.

2. WHAT HAS HAPPENED TO FREEDOM OF THE HIGH SEAS?

2.1 A geographic view

By displaying a globe, one can overcome the visual distortion of two dimensional map projections. Overlaid on the oceans are:

The depth contour lines at 500, 1 000 and 1 500 metres
The coastal state’s EEZs
The boundaries of in-force regional fishery management agreements (RFMAs) or other international agreements that affect fisheries, and
The boundaries of proposed RFMAs.

The conclusion that one can draw from this visual display is that most of the potentially fishable deep-sea area is inside EEZs. Areas in the open oceans beyond the major continental shelf areas of the southern hemisphere are small and scattered. Many of these are also already within the boundaries of existing EEZs. The remainder are high-seas based. But some already fall, or will fall, within the boundaries of current or proposed demersal RFMAs.

2.2 A legal view

The freedom of the high seas for fishing is now a myth for vessels operating under the authority of responsible flag states. The post-UNCED Agenda 21 process of the last decade has seen to that with the development of new international law that transforms the optimistic hopes of UNCLOS III into binding measures. The key instruments are the FAO’s Compliance Agreement and the UN Fish Stocks Agreement.

An example of the effect of this regulatory change on fishing operators is the outcome of a recent case of a New Zealand registered vessel that failed to obtain a high-seas permit and then landed rock lobsters trawled from a mid-ocean seamount when it returned to New Zealand. The crime was failing to obtain a high-seas permit as New Zealand is fully reflecting its international obligations in its domestic fisheries law. It was thus found to have been fishing illegally. The high-seas area fished was not subject to any agreement, at least as far as taking rock lobsters is concerned - so the fishery itself was unregulated. So in this case there was no crime in that. The vessel operator on coming into New Zealand port reported its catch and sought to discharge - so in this case the catch was reported. Fines totalling more than $12 000 were imposed, and the vessel and catch with a combined value of $160 000 were forfeited to the Crown.

3. CONVENTIONS THAT COUNT

3.1 United Nations Convention on the Law of the Sea

The 1982 United Nations Convention on the Law of the Sea (LOSC) now has 143 adherent parties. The USA is not one of them, although it is a party to other conventions that draw their authority from the LOSC. The LOSC provides the legal basis for Exclusive Economic Zones. In fisheries terms, the strength of the LOSC is its success in enabling coastal states, in particular, to define interests in spatial terms out to 200 miles. the LOSC has provided coastal states with a robust, prior exclusive legal right to harvest living marine resources in return for exercising management responsibility.

The LOSC confirms a fundamental freedom to use the resources of the high seas. The limits on that freedom are weak. It sets a limited baseline requirement for states, on their own responsibility, to act responsibly and to co-operate with others in the management and utilisation of resources in the high seas. Through that obligation to co-operate, the LOSC indicates that the formation of regional agreements among states may be pursued to bring about sustainable fishery use. But the LOSC provides little basis other than altruism for states to exercise their obligations to act responsibly and cooperate one with another. The LOSC does not enable states as of right to obtain any allocation of secure interest in high-seas resources in return for exercising responsibility. The "tragedy of the commons" has demonstrated time and again the in-built certainty of failure when a right to access a common resource is not accompanied by a right to acquire a defined interest in that resource.

But the LOSC’s limited obligation on states legal basis for the formation of several regional fisheries arrangements concentrating on highly migratory stocks or in areas where the group of interested states were relatively self evident. Some RFMAs have consequently made allocations of catch opportunity for some fish stocks among their members.

Subsequent to the LOSC, United Nations members have sought ways to address the shortcomings of the high-seas elements of the LOSC. The two Conventions noted above, negotiated in the mid-1990s to address elements of the problem, have only recently come into force. Both were negotiated to finality within a short space of time following the conclusion of UNCED Agenda 21 process in the earlier 1990s. But both then appeared to struggle to obtain the minimum number of adherents to bring them into force. While now in force, both continue to lack the mass of support that the LOSC has, and their global effectiveness may be questioned as a consequence.

3.2 FAO Compliance Agreement

The FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the high seas was approved in November 1993, but only came into force with the receipt of the 25^th instrument of acceptance on 24 April 2003. The 26 parties include European Union, Japan, Norway, USA, Argentina, Canada, Mexico, Morocco, Namibia, Peru and Uruguay as parties with significant fisheries interests. Several other significant distant water fishing nations (DWFNs) are not parties. New Zealand also is not a party, but the New Zealand 1996 Fisheries Act imposes the disciplines required by the convention on New Zealand vessels and nationals.

3.3 UN Fish Stocks Agreement

The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks came into force in December 2001 with the deposition of the 30^th instrument of ratification. Since then the Convention has grown by a further six parties.

The states with significant distant water fishing interests, or aspirations in that direction, that are party to the Agreement include Ukraine, New Zealand, Brazil, Australia, Uruguay, Canada, Russian Federation, Iceland, Norway, Namibia, South Africa and USA. No Asian states apart from India, Sri Lanka and the Maldives, no European Union member state and, apart from Uruguay and Brazil, no countries from Latin America have yet ratified. The Convention is notable for the number of Pacific Island and other small island coastal states that have ratified. It may be surmised that coastal states, especially those whose EEZs form part of the migratory routes for highly migratory stocks, see advantages in adhering to a convention that provides strong capacity for such states to assert interests in those stocks. DWFNs that catch most of the migratory fish appear to remain uncommitted.

3.4 Commercial implications

The outcome of the last ten years of review and updating of the international legal framework is the creation of binding obligations on adherents. The the obligation of the LOSC on states to co-operate has been strengthened by the Compliance Agreement, which defines the responsibilities of flag states and elucidating what is meant by cooperation in the high seas. In the Fish Stocks Agreement a strengthened legal basis is provided for Regional Arrangements between DWFNs and coastal states to co-operate in the allocation of interest in, and management of, shared fish stocks.

For fishing enterprises registered with states that have ratified either or both Agreements, their activities must be expressly permitted by their authorities. They are subject to requirements to record and report fishing activity to those authorities and are, perhaps, required to carry official observers. They are required to allow their activities to be scrutinised by the authorities of other party states, provided those other Parties seek clearance from the flag state of the vessel being scrutinised. Commercially, the value of the measures is the provision of an authority to fish from the flag state. If the vessel operator complies with the conditions, its rights to the fish are safeguarded.

The creation of legal confirmation of access rights to fisheries resources may provide a basis for those rights to be further strengthened through agreements at a regional level by other like-minded states leading to allocation of catch rights among those states. It is then up to states individually as to whether they will further elaborate those national allocations to the enterprise level as secure catch rights.

But what of the responsibilities of non-party states and their vessels? Most fishing nations are parties to the LOSC and as a result bound by the LOSC requirements to co-operate. But if the LOSC 1982 is the only instrument that a state recognises, the vessels from those flag states may avoid having any significant impediment put in the way of their activities. It becomes very much an issue of voluntary adherence. And therein lies a key problem for responsible fishing operators operating under the jurisdiction of states that are parties to the FAO and the UNFSA Agreements and, or, are parties or observers of regional fisheries arrangements. Their security of access to fish stocks is constantly under threat of attenuation from vessels operating under the authority of non-party and non-co-operating states.

The primary reason for re-flagging is the presence of an uneven playing field. The reality of a commons is that, all else being equal, performance will be driven to move to the level required by the lowest common denominator. Legal, responsible operators require the state to intervene to defend the rights and obligations that the state has created. Where states are unable or unprepared to do so, the benefits of flagging to such states becomes either illusory, or paradoxically they may be attractive flags for less scrupulous operators.

4. IUU AND LRR

Defining illegal and unregulated and unreported fishing (IUU) requires that states and stakeholders know what legal and regulated and reported fishing (LRR) is. It is unfortunate that the three letters I and U and U have become linked together as an acronym of fishing. They are very different things - as the opening example of the recent New Zealand case demonstrated.

The fundamental issue is ‘illegal agreement of what constitutes ‘legal widely in determining legal operation inside each EEZ’s of acting illegally vary more widely still. When those rules are then applied to fishing vessels in the high seas, the differences can continue. Regional fisheries management organizations (RFMOs) can determine common grounds - or at least a common set of expectations - for vessels of all Parties to an arrangement. But the frameworks of compliance that RFMOs have at present fundamentally rely on the capacities of flag state members. Where they vary, one from another, the opportunity can be created even for responsible owners to seek the least onerous, legal conditions to operate under.

Without a definition of ‘legal fishing’, there cannot be regulated fishing. Without a frame of regulation, it is unlikely that fishing results will be reported. The FAO Compliance Agreement requires parties to authorize their vessels to fish. In the absence of law to do so, the vessels that operate under those jurisdictions are in fact acting legally as far as their regulatory framework is concerned. So called Flags of Convenience offer the opportunity for legal but unregulated and unreported fishing. The need to develop international consensus on the removal of open registers and flags of convenience for fishing vessels is clear. This may be brought about most efficiently by ensuring that the developing countries that in the main offer this perceived "service" are provided with the financial and legal capability to pass the necessary fisheries law, defend it, and uphold it.

Legal responsible operators want these changes to be made. In this exercise of blame, the blame is on international incapacity and lack of political will - among bureaucrats and politicians. Perhaps it will not truly happen until the ballot box dictates that failure has political consequences for the governments concerned.

5. OTHER NEEDS

5.1 Is there a legal gap in the high seas?

In short the answer to the above question is yes! Sustainable harvests require a framework for determining what a sustainable level should be and then implementing actions necessary to ensure that participants deliver that result.

The high seas are outside spatial jurisdiction of sovereign states. Thus agreements on management must be between states disconnected from their geographic boundaries and be a result of consensus among the parties. The Parties need to have capacity for recourse to impose consequences on non-performers, both inside and outside the membership of any agreement.

The FAO Compliance Agreement sets a frame for national rather than collective responsibility among DWFNs. UNFSA ties interests to coastal states boundaries and as a result finds a basis for collective responsibility. The high seas are disconnected and all participants are, by definition, DWFNs. The legal capacity to secure the economic benefits arising from allocating rights to catch among parties to high seas RFMOs, as reward for defending sustainable management, may still elude fisheries arrangements solely in the high seas. Unless high seas RFMOs can legally defend stocks from fishing by non-parties, agreements are worth next to nothing.

5.2 The "do nothing" threat

Finally I want to comment on the growing pressure to set fishable deep-sea habitat aside into no-take marine protected areas - particularly in the high-seas - in order to protect the stocks.

Driven by advocacy, rather than science, the pressure to put fishable habitat out of reach of legal fishing is unlikely to be able to protect the scattered remote high-seas habitats from unscrupulous fishing. But it will be effective in removing legal and responsible fishers from those areas.

It seems clear to me that the challenge for states trying to defend remote patches of EEZ from pirate fishing - as in Australia’s Heard and Macdonald Island toothfish fisheries - is lack of a year round presence of legal operators. Thus the way is clear for others to come into the area and fish without detection.

The costs of defending isolated and remote patches of valuable habitat from predation are already enormous - as Australian industry and officials will confirm. But will states - and voters - be prepared to foot the bill for defence of areas once any legal economic benefit has been removed?

The contrary lesson to date may be examples such as the developing Antarctic toothfish fishery in the Ross Sea. For much of the year the habitat is protected by ice and is inaccessible. When it is accessible there is a now a small fleet of legal operators present throughout. That legal presence is a deterrent to "illegal" operators chancing not getting detected and so far there is no evidence of illegal activity.

I do not have time to comment further on the no-take high-seas MPA pressure other than to note the lack of any legal basis for them. MPAs would cut across the fundamental basis for the Law of the Sea - a requirement to recognise the rights of all states and persons to use the resources of the high seas while obligating co-operation to ensure resources are conserved - in the ‘dictionary’ non-use sense of the word.

6. CONCLUSION

In order for the resources of the sea to be managed, states must have the capacity and will to implement legal frameworks that will control the inevitable alternative of depletion and failure.

The IUU problem can only fixed by development of LRR frameworks. It is clear that the world is not prepared to see the remaining high seas brought under national jurisdictions in a sovereign sense, The LOSC alternative of relying on the altruism of states to act responsibly and require responsible behaviour from fishing operators with no guarantee of secure rewards must now be seen as a failure.

The obvious next step is to develop regional arrangements among willing parties. While regional arrangement must ultimately have the capacity to exclude non-co-operating states from the benefits of access to the resources concerned, this requires the cooperation of other non-parties who may be market or port states for the catch of non-parties to cooperate and exclude such catch from the benefits of market reward.

As yet the new international law passed in the last decade and only recently brought into force has not been adequately tested. The conventions have little more than the bare minimum of adherents enabling them to be brought into force. Much remains to be done to build confidence in the new international legal instruments. This will only come about through the development of new regional arrangements that put into effect the powers of the new international law. On the other hand, I see little need to have to develop yet more international law until the existing instruments have been adequately tested and found wanting.

The risk profile for commercial operatings undertaking high-seas fishing must be reduced. The provision of secure, legally enforceable rights to the resources will enable this to be achieved. Until the risk/reward profile is "normalised", the attraction of the perverse incentives of bonanza fishing will continue to encourage IUU fishing to the detriment of LRR operators.

High-seas bottom fisheries and their impact on the biodiversity of vulnerable deep-sea ecosystems: preliminary findings^[17]

M. Gianni
Advisor to the IUCN Marine Programme
Cliostraat 29-2, 1077 KB Amsterdam, Netherlands
<[email protected]>

1. INTRODUCTION

The United Nations General Assembly in 2002 called upon relevant organizations "to consider urgently ways to integrate and improve, on a scientific basis, the management of risks to marine biodiversity of seamounts and certain other underwater features" within the framework of the United Nations Convention on the Law of the Sea. This report presents preliminary findings on the extent, location and current governance of high-seas bottom-trawl fishing as it affects these areas. It highlights the need for urgent action to protect seamounts, deepwater corals and other biodiversity hotspots from high-seas bottom trawling and to avoid the serial depletion of commercially-targeted stocks in these areas while knowledge gaps and governance gaps are addressed. The UN General Assembly can play an important role in addressing these issues.

The key findings presented in this progress report are as follows:

Given the localized distribution and high degree of endemism associated with seamount ecosystems, a large fraction of species belonging to these ecosystems are particularly vulnerable to extinction.
High-seas bottom-trawl fishing poses a major threat to the biodiversity of vulnerable deep-sea habitats and ecosystems.
High-seas bottom fishing has often led to the serial, or sequential depletion, of targeted deep-sea fish stocks.
Little is known about the distribution, abundance and dynamics of deep coral, seamounts and other vulnerable bottom ecosystems.
There has been no systematic study of the geographic extent of bottom-trawl fishing in relation to vulnerable deep-sea ecosystems or the extent of its impact on these ecosystems.
Despite the lack of systematic study, significant high-seas bottom-trawl fisheries take place along the continental margin where it extends beyond 200 nautical miles, and on seamounts, oceanic ridges and plateaus of the deep ocean floor. This type of fishing is likely to grow in coming years as deep-sea fish stocks within national jurisdiction are depleted and/or increasing restrictions are placed on fisheries within national jurisdiction.
Virtually all high-seas bottom-trawl fisheries are presently unregulated insofar as their impacts on benthic biodiversity are concerned.
Most high-seas areas are not covered by a regional fisheries management organization (RFMO) with competence to regulate deep-sea bottom fishing.
High-seas bottom-trawl fishing at present constitutes only about 0.2 percent of global marine fisheries capture production (see Appendix).
The overall annual value of high-seas bottom-trawl fisheries is not likely to exceed US$300-400 million at present, a figure equivalent to approximately 0.5 percent of the estimated value of the global marine fish catch in 2001 (US$75 thousand million) (see Appendix).
The overall contribution of high-seas bottom-trawl fisheries to global food security is negligible.
Fishing vessels flagged to only a dozen or so countries (most of which are OECD members) take 80-90 percent of the high-seas bottom-trawl catch (see Appendix).

A number of important gaps in knowledge and ocean governance must be addressed before the sustainability of deep-sea fish stocks and the protection of vulnerable deep-sea habitats and biodiversity from bottom trawling on the high seas can be ensured. These include the need for:

immediate protection of seamounts, deepwater corals and other biodiversity hotspots from bottom trawling on the high seas to prevent further serial depletion of deepwater fish stocks and damage to the biodiversity of these vulnerable areas
further identification of biodiversity hotspots beyond the 200 nm EEZ through mapping and sampling of vital seamount ecosystems and cold-water corals along continental margins and deep ocean areas under the high seas
more complete and systematic data collection on high-seas bottom fisheries including data on catch, bycatch, and areas fished, as well as basic data on the biology of targeted species
more complete information on the number of flag states and vessels involved in high-seas bottom fishing, and ensuring their reporting to the appropriate international bodies
the adoption of international management measures for high-seas bottom-trawl fisheries in keeping with ecosystem-based fisheries management and the precautionary approach, for example through
- determining which of these fisheries are straddling stock fisheries and thus subject to the UN Fish Stocks Agreement (UNFSA)

- ensuring that regional fishery management organizations (RFMOs) at present competent to regulate these fisheries do so consistent with the principles and provisions of the United Nations Fish Stock Agreement (UNFSA)^[18]

- establishing new RFMOs consistent with the principles and provisions of the UNFSA to regulate these fisheries where management regimes do not currently exist

- extending the competence of existing RFMOs to these fisheries, again consistent with the principles and provisions of the UNFSA, notably where target species currently regulated by the RFMO are associated with vulnerable benthic ecosystems and/or

- establishing an international regime for deepwater fisheries on stocks and associated species found exclusively on the high seas which, at a minimum, incorporates the principles and provisions of the UNFSA and

- the establishment and implementation of effective mechanisms for monitoring, compliance and enforcement for high-seas bottom fisheries, including the elimination of IUU fishing.

It will also be important to resolve the issue of a coastal state’s authority to protect the benthic biodiversity of its legal continental shelf (and continental margin) from the impact of high-seas bottom fishing. Further protection may be achieved through the development of long-term approaches and tools, including the establishment of marine protected areas, consistent with international law and based on scientific information, for the protection of vulnerable deep-sea ecosystems and biodiversity under the high seas.

2. THE BIODIVERSITY OF THE DEEP SEA

Most biologists agree that the deep sea constitutes a major reservoir of the earth’s biodiversity. Estimates of the number of species inhabiting this area range between 500 000 and 100 million. The deep sea starts beyond the shallower continental shelf and includes the slope and rise of the continental margin as well as mid-ocean ridges, seamounts and plateaus of the deep ocean floor. Much, if not most, of this habitat lies beyond 200 nautical miles from shore^[19].

Seamounts are increasingly recognized as having large numbers of endemic species - isolated islands or island chains of biodiversity beneath the surface of the sea. Because of the slow growth and restricted distribution of many of the species associated with seamount ecosystems, they are considered particularly vulnerable to human impacts and the risk of extinction. More than 30 000 seamounts over 1 000 metres high are estimated to exist in the world’s oceans. Many additional features of several hundred metres or more are believed to exist along continental margins and oceanic ridge systems^[20]. While the locations of the 1 000-metre-plus seamounts are generally known, much less is known about the location of these smaller features.

The number of coral species known to inhabit the deep sea is now greater than the number found in shallow and tropical seas. Deep-sea coral ‘reefs’, like their shallow water counterparts, have been found along the continental slope throughout the world’s oceans and are known to support rich and diverse assemblages of marine life. Deep coral reef structures found in the Northeast Atlantic may be up to 10 000 years old. Knowledge of the location, abundance and dynamics of these features remains limited.

3. DEEP-SEA FISHERIES

Deep-sea fisheries are generally considered to be fisheries conducted for bottom dwelling species below 400 m on the continental slope, seamounts, deep-sea ridges and plateaus and associated underwater features. With current technologies, these fisheries take place down to depths of approximately 2 000 m.

Many deepwater fish species are highly vulnerable to overfishing because of their unique biology and adaptation to deep-sea environments. The biology and life history of species targeted or caught as bycatch in deep-sea fisheries are often poorly understood or not understood at all. Basic information needed to determine the level of exploitation that these fish populations (stocks) can sustain is lacking in many cases. Deepwater fisheries are often characterized as ‘serial’ or ‘sequential depletion’ fisheries because fishing vessels find and deplete a stock, then move on and repeat the practice. Little is known about the recovery times for these populations. The problem of stock assessment is greatly exacerbated in deep-sea bottom-trawl fisheries, which take varying quantities of numerous species of fish, as opposed to more selective forms of fishing.

4. THE IMPACTS OF BOTTOM FISHERIES ON VULNERABLE DEEP-SEA ECOSYSTEMS

The environmental or ecosystem impacts of bottom fishing in the deep-sea are characterized as two-fold. One is the impact of the removal of large quantities of biomass (fish populations) from the food web of ‘food-poor’ or low energy environments characteristic of the deep-sea. The other is the physical impact of fishing on ocean-bottom ecosystems, primarily coral, sponge and other filter feeding species that often provide the basic structure of seamount and other ecosystems and which are also found along continental slopes, canyons and ridges throughout the world’s oceans.

The three major gear types used in deep-sea bottom fishing - gillnets, longlines, and bottom trawls - are all believed to have some degree of impact on corals and other bottom-dwelling organisms. Bottom trawling, however, is considered to be the most damaging by far and is the most common gear used in deep-sea bottom fishing throughout the world. Its destructive impact has been clearly documented in a number of areas of the Northeast Atlantic and Southwest Pacific Oceans, both on seamounts as well as along the continental slope^[21].

Despite several decades of bottom-trawl fishing in deep-sea areas, there has been no systematic study of its geographic extent, and little is known about the full geographic extent of its impact on deep-sea ecosystems. It difficult to disaggregate the amount of high-seas bottom fishing that actually takes place on seamounts, cold water corals and other vulnerable deep-sea ecosystems from available information. Nevertheless, catch information from the FAO and various regions of the world indicates that extensive deep-sea bottom trawling takes place. (See Appendix) At present, the majority takes places within national zones, but there are significant high-seas bottom-trawl fisheries along the continental margin where it extends beyond 200 nm, and on seamounts, oceanic ridges and plateaus of the deep ocean floor. This type of fishing is likely to grow in coming years as continental shelf and deep-sea fish stocks within national jurisdiction are depleted and/or increasing restrictions are placed on fisheries within national jurisdiction.

5. COMPETENCE TO REGULATE BOTTOM TRAWLING ON THE HIGH SEAS

While each coastal nation within its EEZ is responsible for fisheries conservation and has the jurisdiction to protect and preserve the marine environment, the protection and preservation of the marine environment beyond national jurisdiction and the conservation of high-seas living resources are the collective responsibility of all nations.

Moreover, high-seas marine living resources and biodiversity form part of the global commons. Who benefits from these resources, their contribution to world food security and the overall health of the world’s oceans, and who suffers from unsustainable fisheries and damage to vulnerable deep-sea ecosystems, are important questions for the international community.

The RFMOs below have competence to regulate high-seas bottom fisheries.

Northwest Atlantic Fisheries Organization (NAFO)
Northeast Atlantic Fisheries Commission (NEAFC)
Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and
The Southeast Atlantic Fisheries Organization (SEAFO).

None of these organizations have regulated bottom trawling on the high seas for purposes of protecting vulnerable marine ecosystems^[22]. SEAFO, however, has just entered into force, and NEAFC has only begun to regulate these fisheries. In all other regions, it appears that high-seas bottom fisheries are unregulated and largely unreported^[23]. In fact, most high-seas areas do not have a management regime in place to regulate bottom fisheries^[24].

At the global level, the UN Fish Stocks Agreement, an implementing agreement for UNCLOS, elaborates rights and obligations for conservation and management of straddling-fish stocks and highly-migratory fish stocks. Moreover, it obligates states to assess the impact of fishing on non-target species and species belonging to the same ecosystem, minimize the impact of fishing on non-target species, protect habitats of special concern and protect biodiversity in the marine environment. In some regions, notably the North Atlantic, it appears that many of the stocks fished by bottom trawlers on the high seas are straddling fish stocks. As most of the vessels involved in high-seas bottom trawling in the North Atlantic are flagged to countries, that are, or will shortly be, parties to the UNFSA, it will be incumbent upon these states and relevant RFMOs to fully implement ecosystem-based fisheries management and the precautionary approach called for in the UNFSA. Similarly, in other regions, further research may indicate that bottom-trawl fisheries target straddling stocks, or that target species subject to the UNFSA and governed by RFMOs are associated with vulnerable benthic ecosystems and should factor them into conservation and management measures.

In addition, coastal states may be concerned that where the continental margin extends beyond 200 nm^[25], high-seas bottom trawling may adversely affect the biodiversity of these underwater areas and the ‘sedentary’ species, such as corals, over which they exercise sovereign rights. The right of a coastal state to protect biodiversity in general in this area is not clear, and in spite of the potential importance of coral-based ecosystems and habitat, there is no express right of a coastal state to conserve sedentary species. Arguably, it may protect these species and associated habitat from damage by high-seas bottom trawling, and it does have sovereign rights over direct exploitation of sedentary species of the shelf in the relatively rare instances when fishing vessels target them. The ambiguities regarding coastal state rights and duties vis-à-vis high-seas bottom fishing in this area need to be addressed.

As the competence to regulate bottom trawling on the high seas is presently limited, or in some cases inadequately exercised, the international community as a whole has the responsibility to explore this situation further and take appropriate action - not only under relevant international ocean agreements but also under a wider array of international instruments that now call for the conservation of biological diversity, a precautionary approach, and ecosystem-based ocean and fisheries management. In this regard, the UN General Assembly has the opportunity to play a key, coordinating role.

APPENDIX

Regional summaries of high-seas bottom [trawl] fishing

1. INTRODUCTION

Precise information on the deep-sea bottom-trawl catch, the value of the catch and the proportion of the catch taken by fishing fleets in various parts of the world is not readily available. The FAO in its Report on the State of World Fisheries and Aquaculture 2002^[26] states: "It is difficult to assess the development of fishing on the high seas because reports to the FAO of marine catches make no distinction between those taken within EEZs and those taken on the high seas".

Among other problems in obtaining data is that official statistics often do not distinguish between fish caught by bottom trawling and other forms of bottom fishing and there are serious problems with under-reporting of catches and accounting for catches made by illegal, unreported and unregulated fishing. Nonetheless, a review of available catch and market data can provide an indication of the major players in these fisheries and a rough estimate of the value of the high-seas catch.

There is reasonably good information on high-seas bottom trawling and catches of deepwater species in the Northwest Atlantic and to a much lesser extent the Northeast Atlantic, although only from approximately 35 0N to the Arctic Circle (corresponding to the areas of application of NAFO and NEAFC). There is also good catch information for the Southern Ocean around Antarctica from countries that officially report their fishing activities, although there is a serious problem of unreported, unregulated and illegal fishing in that area. Some information on high-seas fishing in the Southwest Indian Ocean exists as a result of recent efforts to negotiate an agreement to manage the deep-sea fisheries that have recently developed in the region.

Data for the year 2001, the latest year for which catch data and market data are consistently available, provides a recent ‘snapshot’ of the extent and value of high sea bottom-trawl fisheries.

2. NORTHEAST ATLANTIC OCEAN - NORTHEAST ATLANTIC FISHERIES COMMISSION (NEAFC)

Throughout the 1990s, deepwater bottom fisheries expanded rapidly in the Northeast Atlantic. However, NEAFC has only begun to attempt to regulate high-seas bottom fisheries within the past two years. It appears that vessels from France, Spain, and Russia dominate the high-seas bottom-trawl fisheries, which take place on the continental margin, the Mid-Atlantic ridge and various banks and seamounts in the region, primarily for roundnose grenadier and blue ling. Vessels from New Zealand and possibly Ireland are also involved in high-seas trawling, the former fishing for orange roughy and the latter rapidly developing deepwater fisheries for a number of species.

The high-seas catch reported by NEAFC of deepwater species taken in bottom fisheries was slightly less than 15 000 t in 2001 with an approximate landed value of US$26 million.

Overall, the catch of deepwater species in the entire North East Atlantic (excluding the blue whiting and redfish fisheries that are caught by ‘mid-water’ or pelagic trawl on the high seas) was approximately 150-200 thousand tonnes. It would appear that 10 percent or less of the bottom catch of deepwater species in the region was taken on the high seas with the remainder caught within the EEZs. Compared to the overall reported marine fish catch in the entire Northeast Atlantic Ocean (FAO Statistical Area 27), which in 2001 was 11 164 413 t, the 15 000 t of reported catch from the high-seas bottom-trawl fishery would account for approximately 0.13 percent of the catch in the area.

There are a number of other species such as deep-sea sharks, which were caught in substantial quantities in deepwater bottom-trawl fisheries for which NEAFC has no data but which are variously reported by the International Council for the Exploration of the Sea (ICES), the European Commission, and scientific papers on deepwater fishers in the region. The total catch of these species in high-seas bottom-trawl fisheries may have been an additional 10 000 t or more above the reported catch. This, coupled with the general problem of under-reporting in the region, may mean that the deep-sea bottom-trawl fishery on the high seas of the Northeast Atlantic in 2001 could have been up to twice the reported high-seas catch, with a value of up to US$50 million. Even so, the bottom-trawl catch on the high seas is a fraction of the overall catch in the Northwest Atlantic. Further, the catch is not likely to be sustainable - ICES reports that most exploited deepwater species are considered to be fished "outside safe biological limits".

3. NORTHWEST ATLANTIC OCEAN - NORTHWEST ATLANTIC FISHERIES ORGANIZATION (NAFO)

High-seas bottom-trawl fisheries for cod, redfish, flounders and other flatfish have intensified significantly for the past several decades, primarily in the international waters of the Grand Banks (the so-called ‘nose’ and ‘tail’) and the Flemish Cap. However, the more ‘traditional’ fisheries have been largely depleted or collapsed and replaced by bottom-trawl fisheries for northern prawn and Greenland halibut (with some resurgence in fishing for redfish on the tail of the Banks). Russia, Spain, Portugal and Estonia catch most of the groundfish, which amounted to some 50 000 t in 2001. Northern prawns are fished on the bottom in international waters at depths of 200-700 m, with approximately 90 percent of the high-seas catch taken on the Flemish Cap. Norway, the Faeroes, Iceland, Latvia and Lithuania are the main countries involved in the fishery, in addition to Russia, Spain, Portugal and Estonia. Together, these nine countries took over 95 percent of the total high-seas catch of 60 000 t of northern prawns in 2001. The landed value of the northern prawn catch on the high seas was approximately US$90 million.

A preliminary estimate of the total value of the high-seas bottom-trawl catch in the Northwest Atlantic in 2001, including the northern prawn and the groundfish fisheries, is approximately US$180 million. The overall marine fish catch reported in the Northwest Atlantic Ocean (FAO statistical area 121) was 2 238 371 t in 2001. The estimated 110 000 t of bottom-trawl catch on the high seas represents approximately 5 percent of the total marinecatchin the region.

4. SOUTHWEST INDIAN OCEAN

Bottom-trawl fisheries on seamounts and ridges in the international waters of the region developed rapidly in the late 1990s, primarily for orange roughy and alfonsinos. Statistics on the high-seas fisheries in the region have been compiled as a result of the negotiations, currently underway, to establish a regional fisheries management organization in the region. Five vessels were reportedly bottom-trawl fishing on the high seas in 1999; by 2000, up to 40 vessels may have been involved. The reported catch hit a peak in 2000 at 39 412 t of deepwater species, falling to 7 962 t in 2001. The fishery apparently declined even further in 2002 with most of the vessels having left the fishery because the catches were no longer economically viable.

In 2001, the majority of the reported catch appears to have been taken by New Zealand, Japan and Australia. However, only six countries reported catches in the fishery although vessels from an additional eight countries were believed to have been involved according to FAO reports^[27].

The estimated value of the reported high-seas catch for 2001 is approximately US$8-9 million. Given the numbers of vessels involved, the unreported catch could be equal to the reported catch. The overall reported marine catch of all species in the Western Indian Ocean (FAO Statistical Area 51) was 3 948 676 t in 2001. The 7 962t t of fish reported caught by bottom-trawl vessels on the high seas represented about 0.2 percent, or one-fifth of 1 percent, of the total marine catch in the region.

5. SOUTHWEST PACIFIC OCEAN

There has been a significant fishery for orange roughy on the high seas outside of the New Zealand and Australian EEZs in the Tasman Sea (between New Zealand and Australia), south of Tasmania, and to the east of New Zealand in the South Pacific. According to information available from New Zealand, the high-seas catch of orange roughy by vessels from New Zealand and Australia in the region totaled almost 4 000 t in 2001. An additional 200 t of orange roughy were reportedly caught in the region by distant water fishing nations. Assuming this was caught on the high seas, the reported high-seas catch was approximately 4 100 t. Several thousand tonnes of alfonsinos are caught by New Zealand in the region, though it is unclear the extent to which any of the catch is taken on the high seas. It is worth noting that the overall catch of orange roughy in the region (both inside and outside the EEZs) has dropped from a high of almost 90 000 t in 1990 to approximately 14 300 t in 2001 according to FAO statistics.

This high-seas catch, combined with several hundred tonnes of oreos also reported caught on the high seas, would put the value of the catch of both species in 2001 at approximately US$10 million. The overall reported marine catch of all species in the Southwest Pacific (FAO Statistical Area 81) in 2001 was 750 967 t. The high-seas catch of orange roughy and oreos represents about 0.6 percent of the total marine catch in the Southwest Pacific.

6. SOUTHERN OCEAN AROUND ANTARCTICA - COMMISSION FOR THE CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES (CCAMLR)

There is extensive deepwater fishing in the Southern Ocean, notably for Patagonian Toothfish. However, CCAMLR reports that no bottom-trawl fishing on the high seas of the CCAMLR area takes place, though a relatively small amount of bottom trawling for deep-sea species does occur within several EEZs in the region. Although there is good information on catches, there is a serious problem of unreported, as well as unregulated and illegal fishing in the region.

7. SOUTHEAST ATLANTIC - SOUTHEAST ATLANTIC FISHERIES ORGANIZATION (SEAFO)

There is little information currently available on the extent, if any, of high-seas bottom-trawl fishing in the region. Deepwater fisheries for orange roughy, alfonsinos, cardinalfish and oreos have developed over the past several years, although a review of the catch of deepwater species on the FAO FISHSTAT database lists virtually no catches by distant water fishing nations for deepwater species in this region in recent years, suggesting that little high-seas bottom-trawl fishing takes place.

8. SOUTHEAST PACIFIC

Deepwater fisheries for orange roughy, alfonsinos, cardinal fish and oreos have also developed over the past several years in the Southeast Pacific, but as with the Southeast Atlantic, a review of the catch of deepwater species on the FAO FISHSTAT database lists virtually no catches by distant water fishing nations for deepwater species in this region. There is a high-seas catch of Patagonian grenadier (hoki) in the region but it is not clear whether this involves any bottom-trawl fishing.

9. NORTH PACIFIC, THE CENTRAL ATLANTIC AND EASTERN INDIAN OCEAN, MEDITERRANEAN SEA

More research must be done to determine the extent of high-seas bottom fishing in these regions.

10. SOUTHWEST ATLANTIC

There is extensive bottom fishing by distant-water nations in the Southwest Atlantic. More research is planned to determine the extent of deepwater and high-seas bottom trawling.

11. SUMMARY

This information is preliminary and not all ocean regions have been thoroughly researched. At this stage, based on various assumptions used (which will be detailed in the full report) the estimate of the high-seas bottom-trawl catch for 2001 - the latest year for which data is consistently available - for the regions listed above is approximately 145 000-155 000 t valued at approximately US$225-250 million. These figures were derived from reported catch and landing data from a variety of sources. The figure of US$300-400 million may be closer to the actual value in 2001, taking into account possible catch in regions not yet researched (e.g. the Mediterranean) and including the value of IUU bottom-trawl catches on the high seas.

The overall volume of marine capture fisheries worldwide in 2001, as reported by the FAO, was 83 663 276 t. The overall value of global marine capture fisheries in 2001 was approximately US$75 thousand million. The volume and value of the bottom-trawl catch on the high seas represents a fraction of a percent of the reported total marine capture fisheries in 2001, and even less when considering the overall volume of global fisheries production in 2001 (including freshwater and aquaculture production), which was approximately 130 million tonnes.

Improving international governance in the deep sea

Michael W. Lodge^[28]
OECD, 2, rue André Pascal, 75016 Paris Cedex 16, France
(formerly, Legal Adviser, International Seabed Authority)
<[email protected]>

1. INTRODUCTION

I want to begin by speaking about how we might use and adapt existing governance mechanisms to improve the management of deep-sea fisheries on the high seas. This is not to disregard deep-sea fisheries on the continental slope, but it seems to me that the problems associated with fisheries within areas under national jurisdiction are far more tractable than those affecting high-seas fisheries. Then I want to talk briefly about the management of the deep ocean environment as a whole.

2. DEEP-SEA FISHERIES ON THE HIGH SEAS

No one who participated during the 1990s in the frenzied round of international negotiations aimed at addressing the problem of managing straddling and highly migratory fish stocks can fail to have a strong sense of déjà vu when it comes to managing deep-sea fisheries on the high seas.

As we all know, the result of that intensive diplomatic activity during the 1990s was a comprehensive suite of new ‘hard’ and ‘soft’ international law instruments aimed at addressing the weaknesses inherent in the regime for high-seas fisheries set out in the Law of the Sea Convention and establishing a global system of governance for high-seas fishing.

So why are we here? We might well ask ourselves what went wrong? Did we miss something out? Or, as seems more likely, are the problems simply a further indication that, despite all the rhetoric and all the words, there is a failure of commitment and will to implement the measures that we have agreed to.

The fact is that the problems currently facing deep-sea fisheries are not new. In so far as governance is concerned, the problem of managing deep-sea fisheries on the high seas is really no different from the management of any other high-seas fishery. While it is true that the problems are exacerbated in the case of deep-sea fisheries because deep-sea species tend to be characterized by slow growth and low productivity (and we also have an imperfect understanding of the biology of these species), problems of over-capacity, allocations, IUU fishing and compliance are likely to be the same as in high-seas fisheries for highly-migratory species and straddling stocks. We already have the tools to deal with these problems in the 1995 Agreement, the FAO Code of Conduct and the various IPOAs adopted by FAO.

Regrettably, with a few notable exceptions such as the new conventions for the Western and Central Pacific Ocean and the South-East Atlantic, the indications to date that these tools will be applied and enforced are not encouraging. It is, to say the least, unfortunate that, so far, only 36 states have signed on to the Agreement compared to 117 that have become party to the 1994 implementation agreement related to seabed mining. Therefore, one of the first things we need to do is to urge all parties to the Law of the Sea Convention - especially important fishing nations like the European Community - to become parties to the 1995 Agreement.

But, as Simon Upton made clear in his presentation, just becoming party to an agreement is not enough by itself. Words have to be translated into action and this requires political commitment and action at national, regional and global levels. This is one reason why initiatives such as the Task Force announced earlier today are so important.

I want to suggest three areas of concrete action in which the debate on deep-sea fisheries might be moved forward this week.

First, there needs to be a recognition that the fundamental principles and measures for conservation and management contained in the 1995 Agreement (and elaborated upon in the FAO Code of Conduct) establish basic standards for fisheries management and should be applicable to all high-seas fish stocks - regardless of whether they may be classed as straddling or highly migratory.

Unlike some, I do not see the need for a further implementation agreement dealing specifically with high-seas fisheries. I believe that such an agreement would not only be difficult to negotiate, and would run the risk of diluting some of the provisions of the 1995 Agreement, but would also divert attention from the real issues before us - which are how to ensure better implementation of existing international instruments and how to deal effectively with the problem of IUU fishing. Further, given the advanced technological capability of the world fishing industry and the highly mobile nature of modern fishing fleets, it is more likely than not that by the time negotiations for a new agreement have been concluded, and decisions have been made and implemented, those decisions may come too late to prevent massive and irreversible damage to the stocks we are trying to protect.

Under Articles 117 to 119 of the Law of the Sea Convention, all states have the duty to cooperate to conserve and manage the living resources of the high seas. The only place in which that duty to cooperate has been elaborated is in the 1995 Agreement (reflected in the Code of Conduct). Surely it would be illogical, and inconsistent with ecosystem-based approaches to management, to apply the provisions of Articles 5 and 6 of the Agreement to straddling and highly migratory stocks and not deal with other stocks in the same way. Recognition of the application of the Agreement to all fish stocks at a political level, for example, by a General Assembly resolution to that effect, would go a long way towards broadening the scope of the Agreement and establishing a sound basis from which regional organizations might develop and apply more specific conservation and management measures to deal with the problems that are specific to deep-sea fisheries, such as bottom trawling and unregulated fishing on seamounts. This would be a far easier and more practical objective to attain than, for example, a global moratorium on bottom trawling or a new international agreement for the establishment of marine protected areas on the high seas, yet could achieve the same effect.

Second, regional fisheries management organizations must be made to be more effective. Where there are currently unregulated high-seas fisheries for deep-sea stocks, new organizations must be created to manage them, or the mandates of existing organizations extended to cover them. The role of RFMOs is of critical importance. In simple terms, the logic behind the 1995 Compliance Agreement is to create a situation where global rules are applied on a regional basis through regional organizations and those who do not play by the rules of the relevant RFMO may not fish.

Unfortunately, despite the 1995 Agreement, it must be said that some existing RFMOs continue to be ineffective, while others have not yet successfully addressed issues relating to compliance, IUU fishing, effective decision-making and the provision of independent and unbiased scientific advice. In particular, no RFMO can effectively promote proper management if its decision-making methods are such as to frustrate the conservation and management goals of that organization. These weaknesses need to be addressed and it is essential to move more rapidly to the situation envisaged by the 1995 Agreement where effective management systems, which include effective mechanisms for dispute settlement, are in place for all international fisheries. There is no fundamental reason why existing RFMOs cannot be used to regulate deep-sea fisheries on the high seas including, if necessary, adopting scientifically-based criteria to designate closed areas around sensitive seamounts and prohibiting the use of certain destructive gear types.

Third, and this has been said already at this Conference, there has to be a collective effort to deal with the related problems of IUU fishing and free riders. In part this can be achieved by fully utilizing the existing tools to combat IUU fishing, such as coordinating global and regional high-seas vessel registers, vessel monitoring systems, port state measures, the use of trade measures and so on. But it is also essential that members of RFMOs take responsibility for the activities of their nationals. It is intolerable, for example, that members of RFMOs should commit to measures to set allocations and eliminate IUU fishing, but then provide incentives for their industry to reflag to non-members of the RFMO.

3. THE DEEP OCEAN ENVIRONMENT

But the deep sea is about much more than just fisheries. I believe it is also important for this conference to consider the broader issue of the management of the deep ocean as a whole. The deep sea provides the largest habitat on earth. It covers more than a third of the earth’s surface yet our understanding of this vast and complex ecosystem is minimal. Every time a scientist makes some completely unexpected discovery in the oceans it is a reminder of how little we know about this critical environment. It is also a reminder of the tremendous untapped potential of the deep ocean both in terms of the minerals that lie on and under the seabed, as well as the diverse life forms found in association with hydrothermal vent systems, cold water seeps and seamounts.

Since any management action must be based on sound scientific advice, the first imperative surely has to be to improve the state of scientific knowledge of the deep ocean, especially in critical areas such as deep ocean biodiversity, the sub-sea biosphere and the ecology of seamounts. We need to drastically alter the existing situation where tens of billions of dollars are spent on civil research into outer space and only a very small fraction of that amount on understanding the ocean.

The scientific issues that we have to deal with are issues of broad international interest that require collaborative research. The real problem is that no single nation has the financial, technological and intellectual capacity to undertake a global programme of scientific research of the magnitude that is required. To be truly effective, international collaboration on a vast scale is required, involving scientists, researchers, organizations and governments from around the world. We are beginning to see such programmes take shape. The Integrated Ocean Drilling Programme involving scientists from some 23 countries is designed to study geological and geophysical aspects of the seabed. On a more ambitious scale, the Census of Marine Life is a programme of international research involving more than 60 institutions from 15 countries for assessing and explaining the diversity, distribution and abundance of marine organisms throughout the world’s oceans. Many other cooperative programmes, of various levels of complexity and formality, are also taking place, including through my own organization, the International Seabed Authority. We have recently engaged in cooperative efforts to develop a geologic model of the deep ocean floor and to study the gene-flow and species diversity across the abyssal plain. Yet the point is that these are all essentially sectoral studies and there is no global oversight mechanism in terms of determining priorities, mobilizing the necessary political and financial commitments and sharing the benefits of such work. The relation between the various objectives, methods that may be used and strategic context in which this variety of requirement can be addressed are outlined in Figure 1.

The latter point is particularly important because it is essential, not only that such scientific studies be done, but also that the results must be shared between all nations, developed and developing, coastal and land-locked, on an equitable basis - for the fact is that economic development is directly linked to developments in science and technology.

The final thought I want to leave with you therefore is whether we need to think in terms not only of improving the system of international fisheries governance, but also of improving high-seas governance as a whole. Do existing concepts of jurisdiction and national sovereignty enable us to fully realize the potential of the deep oceans? Is it logical to have a different jurisdictional framework for marine scientific research on the high seas and in the seabed? How do we ensure that the legitimate expectations of developing states for a share in the benefits derived from advances in marine science and technology can be met without creating disincentives to innovation?

In short, the challenge is how to give effect to the ideal expressed in the Law of the Sea Convention - the constitution for the oceans - of a "just and equitable international economic order which takes into account the interests of mankind as a whole and, in particular, the special needs and interests of developing countries".

Figure 1
Deep Sea 2003: The Way Forward

KEY OBJECTIVES	METHODOLOGY	STRATEGIES
	Arrangement between interested states to elaborate voluntary conservation and management measures Declaration of Principles (UNGA) 2004	Interested states currently fishing responsibly to take initiative to establish high seas fishing arrangement (2004)
International management of currently unregulated high seas fisheries	Universal application of UNFSA Application of UNFSA principles to all high seas stocks Prohibit destructive fishing methods/gear pending agreement on international regulation of discrete high seas fisheries Recognition of High Seas fishing Protocol.	Expansion of FAO Code of Conduct to cover high seas stocks (FAO Technical Consultation leading to COFI 2005) Expand RFMO coverage to presently unregulated deep sea fisheries in accordance with UNFSA model RFMO performance audit. Increase global accountability of RFMOs, through biennial meeting of RFBs, FAO and UN. ITLOS action.
Promotion of marine science (ocean exploration), not just fisheries science	Commitment to broad-based programme of ocean exploration with open access to results
Mechanism for conservation of high seas biodiversity	Establishment of time-limited international process to consider implementation of the regime for high seas fisheries, MSR and mechanisms for protection of biodiversity on the high seas.	Process to identify high seas areas of particular scientific interest for intensive international study and conservation (possible mechanism through ISA) States to identify 10 - 20 deep sea areas as areas for protection. Use results of ocean exploration and study as a basis for global regulation to prevent/minimize loss of biodiversity Sample collection and associated activities to be sustainable and subject to EIA in every case. Consistent regional and global approach to conditions for access and benefit-sharing. Access to data, scientific knowledge and intrinsic values to be considered in lieu of economic benefit-sharing
Appropriate regulation of activities related to "biodiscovery"
Regime applicable to the "Area", high seas, EEZ, continental shelf and continental margin.	Process may lead to LOSC amendment, UNFSA Protocol, implementation agreement, GA resolution or other legal options, but important not to pre-empt outcome pending detailed consideration of options. Opportunity to feed into LOS/UNFSA review process.

Can deep-sea fisheries satisfy growing consumer demand for fish? Unilever’s approach to sustainable fisheries

V. Kuntzsch
Frozen Fish International GmbH
Am Lunedeich, 115 Bremerhaven, Germany D-27572
<[email protected]>

The growth in global fish consumption puts ever increasing pressure on fisheries to ensure supply. And, as developing countries become more affluent, fish consumption is expected to increase even further. The landings from capture fisheries have remained relatively stable at approximatley 90 million tonnes for some years now and no further increases are expected. The catches of the financially-lucrative groundfish species, e.g. Atlantic cod, Argentinian hake, and Russian pollock have more than halved within the last 15 years.

This increase in fish consumption and the decline in groundfish catches has resulted in a continuous expansion of aquaculture and an increasing emphasis on deep-sea fisheries as a source of supply. While aquaculture nowadays requires considerable scientific knowledge to be efficient and succesful, this is not the case with deep-sea fisheries where large volumes of fish can be harvested provided the necessary equipment is available.

However, deep-sea fishes are too often based on species whose biology is not yet well understood. It is therefore essential that sufficient scientific data are gathered and an extremely precautionary approach is followed to guarantee the sustainability of harvests from such fisheries.

Unilever has pledged to buy all its fish and seafood from sustainable sources only. In order to progress towards that goal Unilever purchases from fisheries that have been certified by the Marine Stewardship Council, who have developed a system to rate the management of those fisheries that provides an indication of the sustainability of the fisheries it audits. Unilever may use fish from the deep sea once the scientific knowledge of such species is sufficient to implement stringent fisheries management, i.e. defining sustainable total allowable catches, allocating fishing quotas among the participants and ensuring effective controls.

^[15] UN Convention on the Law of the Sea, Article 89.
^[16] Article 91 makes it clear that ships take the nationality of the flag they are entitled to fly and it is up to the flag state to impose any conditions on the right to fly its flag.
^[17] This report was prepared by Matthew Gianni for IUCNThe World Conservation Union, the Natural Resources Defense Council (NRDC) and WWF in October 2003. A more detailed and comprehensive report will be made available by early 2004. All information at this stage is preliminary and certain figures will require further analysis before completion of the final report. The purpose of this interim report is to inform discussions in the UN General Assembly.
^[18] 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".
^[19] Where the continental margin (submerged prolongation of the land mass of the coastal state) extends beyond 200 nm from the baseline of the territorial sea, this forms part of the coastal state’s legal continental shelf, whose outer limits are defined in art. 76 of the UN Convention on the Law of the Sea. The coastal state exercises sovereign rights for the purpose of exploiting the natural resources of its legal continental shelf. For living resources, these consist of organisms belonging to sedentary species, as defined in Art. 77.4. The United States, for example, states in its law that a number of varieties of coral, crab, mollusks and sponges are included within the sedentary species subject to US continental shelf jurisdiction.
^[20] These are sometimes referred to as seamounts or variously as hills, knolls and mounds.
^[21] Deep-sea surveys conducted south of Tasmania in the Southwest Pacific have indicated a near total destruction of coral ecosystems on seamounts that have been subject to heavy trawl fishing. Damage to continental slope coral reefs from bottom-trawl fishing has been well documented in the Northeast Atlantic.
^[22] In the North Atlantic there has been some regulation of high-seas bottom-trawl fisheries in order to reduce impacts on other target species. Various nations regulate bottom-trawl fisheries within the EEZ, in some cases to protect habitat and/or other species.
^[23] It does not appear that other RFMOs have competence to regulate high seas bottom fishing, although further research may reveal that this is not the case.
^[24] The Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs of the United Nations, has compiled a set of maps illustrating bathymetric profiles, the 200-nautical-mile lines, the areas of competence of regional fisheries bodies (based on information provided by the FAO) and points indicating the location of seamounts. Website: <http://www.un.org/Depts/los/index.htm>
^[25] There are over 30 nations whose continental margins are known to extend beyond the 200 nm limit in the North and South Atlantic, Pacific, and Indian Ocean. See UN Document CLCS/11, 13 May 1999, at 3 and note 2.
^[26] FAO Fisheries Department. The State of World Fisheries and Aquaculture, 2002. The state of world fisheries and aquaculture. Rome, FAO. 2002. 150p.
^[27] Report of the Ad Hoc meeting on management of deepwater fisheries resources of the Southern Indian Ocean. FAO Fisheries Report No. 652, 2001, and Report of the second Ad Hoc meeting on management of deepwater fisheries resources of the Southern Indian Ocean. FAO Fisheries Report No. 677, 2002.
^[28] The views expressed are those of the author and do not necessarily reflect the views of the Authority or any of its members.

SETTING THE SCENE

Keynote address

Not IUU but LRR - a commercial fishing industry perspective

High-seas bottom fisheries and their impact on the biodiversity of vulnerable deep-sea ecosystems: preliminary findings[17]

Improving international governance in the deep sea

Can deep-sea fisheries satisfy growing consumer demand for fish? Unilever’s approach to sustainable fisheries

High-seas bottom fisheries and their impact on the biodiversity of vulnerable deep-sea ecosystems: preliminary findings^[17]