Amanda-Jane Riddell
Ministry of Fisheries[96]
PO Box 1020, Wellington, New Zealand
<[email protected]>
1. INTRODUCTION
Over the last decade, managing highly migratory and straddling fish stocks has been the primary focus for coastal and distant water fishing states (Franckx 2000). However attention is now turning to managing the deep-sea fish stocks found on the high seas. These stocks are considered the "last marine frontier". While regional fisheries organizations have been identified as the "vehicle for good governance in the management of international fisheries" (FAO 1999), the design of these organizations has adapted over time to meet the changing needs of regional management.[97] Contemporary designs have focused on collective management of fisheries (regional fisheries management organizations), requiring member states to engage in active management of the fish stocks and to take measures ‘consistent with international law’ to deter the fishing activity of non-parties to the regional arrangements.[98]
The ‘regional fisheries management organization’ design recognizes that if regional management is to be successful the governance regime must be able to implement effective fisheries management measures that provide for sustainable utilisation of the fish stocks. It must also bind all states to an obligation to either comply with the regional conservation and management measures or refrain from fishing in that area (comply or refrain).[99]
Irrespective of whether the obligation to comply or refrain exists, members of three regional fisheries management organizations have agreed to impose punitive trade measures against non-parties to those arrangements in order to pressure non-parties to ‘comply or refrain’.[100] While the legality of this approach, and its ability to achieve compliance, is yet to be determined, the use of these measures is fast becoming a more widely accepted approach.[101]
This paper identifies three principles of compliance - the principle of state self-interest, the principle of perceived merit and the principle of capacity. It also reviews the governance architecture for purely high-seas fisheries, examines the lessons learned from regional management of other fish stocks and explores why the use of trade measures against non-parties is controversial. Finally within the paradigm of compliance theories this paper considers how to achieve compliance with an obligation to ‘comply or refrain’. This paper challenges those creating future governance architecture to design a regime that delivers compliance without being confined to refining yesterday’s solutions.
2. PRINCIPLES OF COMPLIANCE
In the domestic legal model there is a clear superior authority, the sovereign state, which makes the laws and has the ability to implement punitive measures to obtain compliance from its nationals (Scott and Carr 1996). When considering how to achieve compliance with international law, there is a temptation to assume that the international legal framework must match the domestic legal framework. However, international law involves the state as both "sovereign and subject" (Scott and Carr 1996), therefore, the traditional domestic enforcement model has limitations at international law.
In this context compliance has been defined as the "behaviour of a [State] when it conforms to internationally agreed obligations" (Joyner 1999). A number of international relations theories have been developed to explain and predict state compliance.
Managerial model theorists suggest that non-compliance results primarily from ambiguity of obligation and capacity of the state to comply (Chayes and Chayes 1995). Neo-liberal model theorists (invoking contemporary game theories) place state self-interest as the central driver of compliance and suggest that manipulation of positive and punitive incentives can alter state self-interest to achieve compliance (Parker 1999). Realists also focus on power and relative gains asserting, "States will always favour the outcome that maximizes its power and wealth relative to its rivals", ultimately suggesting that these factors explain and predict state compliance. Cognitive theorists reject that states’ self-interest is "always unitary and egoistic" and suggests that perception of states’ self-interest can be influenced through persuasive techniques (Parker 1999). These theorists suggest that perception of states self-interest can be modified through international and domestic discourse. Legitimacy and fairness theorists suggest that "perceptions of legitimacy and fairness" have a significant impact on achieving compliance (Parker 1999).
While these theories each explain aspects of what drives compliance and non-compliance, they fail to provide a clearly articulated and succinct model for compliance.[102] Although a comprehensive review of existing international relations theories and compliance is outside the scope of this paper, three compliance principles are readily distilled.
The first principle of compliance is state self-interest. This principle asserts that the likelihood of compliance increases when the cost-benefit analysis favours compliance. The likelihood of compliance increases when positive self-interest outcomes (rewards) result from compliance or where negative self-interest outcomes (penalties) result from non-compliance. State self-interest includes economic, reputational, and strategic gains or losses.
The second principle of compliance is perceived merit. This principle asserts that the likelihood of compliance increases when the rule making process and the outcome of compliance are perceived to have merit. Perceived merit occurs where rules have been developed through a legitimate and recognized process; and when rules are equitable, fair and right.
The third principle of compliance is capacity. This principle asserts that without the capacity to comply, irrespective of state self-interest and the perceived merit, states will be unable to comply. Capacity to comply includes access to expert knowledge, technology, resources and infrastructure.
Using these three interrelated principles as a compliance model provides a framework for examining how the contrasting international relations theories identify important elements of any comprehensive management regime that is geared for achieving compliance. This paper introduces these three interrelated principles of compliance as a model to explain and predict state compliance with an obligation to ‘comply or refrain’.
2.1 Principle of State Self-interest
International community experience has shown that when the commons are subject to no management regime, states act to maximize their immediate interests (Ostrom et al. 1999, Hardin 1968).[103] This phenomena is explained by the infamous ‘prisoner dilemma’ example of game theory that predicts that when players engage in a non-cooperative game they can adopt strategies that produce undesirable outcomes for both parties (Munro 2003).
The theory can be applied to explain the dynamics of cooperation in high-seas fishing. For example, if two states are fishing the same fish stocks, and State A decides to implement a conservation plan that involves restricting its nationals’ fishing effort, this plan may result in the health of the stock temporarily increasing. However without cooperation from State B, State A can not achieve conservation, although State B can benefit from State A reducing its effort, at no cost to State B. In this scenario State B is a ‘free-rider’ on the conservation efforts of State A. State B’s ‘free-riding’ means there is no incentive for State A to continue with conservation, and the conservation attempt will be abandoned (Munro 2003).
This theory predicts that non-cooperation is not in states long-term self-interest and that ultimately states will choose to cooperate (Parker 1999). However, the incentive to cooperate will be undermined by ‘free-riding’ by other states. Increased occurrence of ‘free-riding’ increases the likelihood that member states will be attracted to non-compliance (Munro 2003). To counter this consequence both positive and punitive incentives can be applied to modify states’ self-interest. Traditionally the domestic legal framework has relied on punitive measures as the primary incentive to drive compliance with criminal sanctions providing both economic and reputational disincentives for the individual. In international relations states have also included punitive measures, including the withdrawal of diplomatic representation, trade measures and military force.
Treaties are central to international environmental management and some have considered punitive measures to be essential for giving ‘teeth’ to these management agreements (Chayes and Chayes 1995) although a significant divergence of views exist on the appropriateness of using trade measures in this manner. Some commentators advocate trade measures as necessary to achieve the ‘leverage’ required to pressure states to engage in cooperation at a multilateral level (Parker 2001) while others advocate that trade measures should not be used to trump other states, that they are the "wrong solution to the wrong problem" (Kelly 2001) and that they are "largely a waste of time" (Chayes and Chayes 1995). Economic rewards for engaging in cooperation can just as easily be applied.
State self-interest is not a ‘static’ concept and can be influenced by positive and punitive incentives, and persuasion by international discourse and perception of self-interest can be altered by "research, knowledge infusion, normative discourse and change of players" (Parker 1999).
Key influences in shaping perceptions are multi-state expert working groups, sustained negotiations and contact between a stable set of officials and domestic politics. Media and non-governmental interest groups are having an increasing influence on the actions of state officials (Parker 1999). Developing a common understanding of the problem and the appropriate solutions can assist in states perceiving that compliance is in their self-interest.
The managerial theory suggests that international discourse is a fundamental instrument in achieving compliance. The diplomatic process of "explanation and justification, persuasion and dissuasion, approval and condemnation" is all part of the process to shape a state’s perception of self-interest and generate support or "elicit cooperation" (Chayes and Chayes 1995). While persuasion and international discourse can influence perception of state self-interest, the principle of state self-interest predicts that the absence of self-interest based rewards and penalties will reduce the likelihood of compliance.
2.2 Principle of perceived merit
It has been suggested that the international legal framework is based on four fundamental principles:
i. states are sovereign and equal
ii. state sovereignty can be restricted by consent
iii. consent binds (pacta sunt servanda) and
iv. states, in joining the international community, are bound by these and other basic ground rules of community even if they do not formally consent to them (Parker 1999). At the foundation of this framework is an expectation of good faith and no trumping.
States make international rules through two recognized and legitimate processes involving either explicit or implicit consent. Explicit consent is expressed though positively adopting an international obligation, generally through ratifying a treaty. Implicit consent is expressed through state practice coupled with opino juris, making customary international law (Bratspies 2001).[104]
As a rule, it is considered that states have a propensity to comply with treaty obligations, because the negotiation process generates an expectation of compliance.[105] Although states can withdraw from treaty obligations, "they do not negotiate agreements with the idea that they can break them whenever the commitment becomes ‘inconvenient’" (Chayes and Chayes 1995).
It is thought that rules that are considered fair, in both legitimacy and equity, are more likely to achieve compliance. Rules are considered legitimate when they are developed in accordance with the international legal framework, and involve no trumping (Parker 1999). The concept of equity requires the rule not to widen "the existing inequality of persons’ and/or States’ entitlements".
Perception of merit can be influenced through clarity of the rule and developing understanding of purpose and objectives of the rule through the international discourse and domestic interest groups. The managerial model of compliance places a heavy emphasis on using dispute settlement mechanisms to clarify any ambiguity in treaty language. This model correctly recognizes that when treaties are negotiated the language deliberately adopted provides room for a range of reasonable interpretations (Chayes and Chayes 1995). Once again the use of international mechanisms for persuasion plays a key role in shaping states’ perception of merit. International discourse between a stable set of negotiators or a stable set of experts can "promote a convergence of beliefs and values, and a developing sense of community (a sense of ‘we’) among participants that further supports cooperation" (Parker 1999).
The principle of perceived merit predicts that the absence of a legitimate rule making process and outcomes reduces the likelihood of compliance.
2.3 Principle of capacity
Managerial theory concluded that "wilful flouting of legal obligations" infrequently caused non-compliance. This theory identified lack of capacity of states, and the necessary time lapse between agreeing to a new behaviour and developing the domestic framework to deliver on those obligations, as two of the three reasons for non-compliance (Chayes and Chayes 1995).[106] The decision to commit capacity is also influenced by the perceived importance and immediacy of issues.
This theory identified that the real objective of environmental treaties is not only to affect state behaviour but also to regulate the activities of its nationals. Fulfilling these obligations usually requires "detailed administrative regulations and vigorous enforcement efforts". Irrespective of political will this involves technical capacity, appropriate bureaucracy and financial resources (Chayes and Chayes 1995).
The importance of ensuring all states have the capacity to comply has been recognized in contemporary multilateral fisheries agreements.[107] Under the United Nations Fish Stocks Agreement[108] (UNFSA Art. 24), states are to "give full recognition to the special requirements of developing States" and to this end are to provide assistance. The forms of assistance particularized by this article include "financial assistance, assistance relating to human resource development, technical assistance, transfer of technology, including through joint venture arrangements, and advisory and consultative services".
This assistance was to be directed at improving conservation and management of fish stocks through "collection, reporting, verification, exchange and analysis of fisheries data" (UNFSA Art. 25(3)(a)); "stock assessment and scientific research" (UNFSA Art. 25(3)(b)) and "monitoring, control, surveillance, compliance and enforcement, including training and capacity-building at the local level, development and funding of national and regional observer programmes and access to technology and equipment" (UNFSA Art. 25(3)(c)).
The principle of capacity predicts that in the absence of the commitment by developed states to assist developing states, compliance with sophisticated regulatory regimes will be unattainable and therefore will reduce the likelihood of compliance.
3. REGIONAL MANAGEMENT
3.1 The United Nations Convention of the Law of the Sea Framework
The mare liberum doctrine has been an international norm since the seventeenth century[109], recognized as a jus cogen "in the interests of all mankind" (Anand 2001). At a time when coastal states only exercised jurisdiction over a small territorial sea, usually 3 nm, this principle justified nationals of all states freely exploiting the resources of the high seas. This principle was premised on a belief that ocean resources were inexhaustible and "that one State’s right to exploit those resources would not interfere with the corresponding rights of other States" (Hewison 1999).
The concept of free or open access to exploit exhaustible resources frequently attracts the label "tragedy of the commons" and Garrett Hardin wrote in the late 1960s: "Ruin is the destination towards which all men rush, each pursuing his own interest in a society which believes in the freedom of the commons. Freedom in a common brings ruin to all." (Ardia 1998)
After the Second World War fishing vessels of developed states commenced fishing areas of high seas bordering the territorial seas of developing states, and through significant technological advancements these vessels became more effective harvesters (Bratspies 2001, Sydnes 2002). By the 1950s coastal states were beginning to challenge the appropriateness of managing these common resources under an ‘open access regime’, asserting jurisdiction over varying areas of the high seas under the premise of "protecting their fisheries from depredations by outsiders" (Anand 2001).
Whether it was the inconsistency of state practice or the realisation that fisheries were not an inexhaustible resource (Anand 2001, Hewison 1999, Carr and Scheiber 2002), the United Nations was prompted to convene the 1958 conference on the law of the sea (UNCLOS I) in an attempt to settle and codify the rules. During that conference the Convention on Fishing and Conservation of the Living Resources of the High Seas was concluded (the 1958 Convention). Thirty-seven states ratified this convention and it remains in force to the extent it is not superseded by the 1982 United Nations Convention of the Law of the Sea (LOSC). The language of the 1958 Convention purported to apply to all states, despite ratification by only 37 states. While the right of state parties’ nationals to fish on the high seas was confirmed, that right was made subject to treaty obligations, the interests and rights of coastal states, and the obligations concerning the conservation of high-seas resources (Art. 1(1)).
All state parties were obliged to adopt, or cooperate with others in adopting, measures necessary for the conservation of high-seas resources (Art. 1(2)). The LOSC also provided that where nationals from two or more parties fished the same stocks, and agreed to adopt conservation measures, new entrants to the fishery (who were parties to the 1958 Convention) were obliged to adopt the measures. Failure to comply with this obligation provided a basis for commencing binding dispute settlement procedures (Art. 5).
UNCLOS I addressed cooperation for the purposes of conservation of high-seas resources but it failed to resolve the area that could be subject to coastal state jurisdiction. In 1960 a second United Nations conference on the law of the sea was convened to resolve this issue, however agreement was not reached. The third United Nations conference on the law of the sea commenced in 1973 and after ten years of negotiation the United Nations Convention on the Law of the Sea (LOSC) was concluded in December 1982 (Bratspies 2001, Sydnes 2002).
The negotiating States intended the LOSC to be a "complete package of rights and obligations to serve as the legal foundation for all activities and uses of the world’s oceans" (McLaughlin 1997, Rayfuse 1999). The 1982 Convention was to prevail over the 1958 Convention and future agreements were required to be compatible with "the effective execution of the object and purpose" (Art. 311(3)) and not to affect the application of the basic principles of the Convention, or the "enjoyment by other State Parties of their rights or the performance of their obligations under [the] Convention" (Art. 311(3)).
The 1982 Convention[110] provides a framework for regulating fisheries, using the setting of a total allowable catch for maximum sustainable yield (Art. 119(1)) as the primary tool and required States to "ensure conservation measures and their implementation [did] not discriminate in fact or form against fishermen of any State" (Art. 119(3)). The binding dispute resolution mechanisms (Part XV) together with the duty on each state to "fulfil in good faith the obligations" (Art. 300) under the Convention and to "exercise the rights, jurisdiction and freedoms recognized in [the] Convention in a manner which would not constitute as abuse of rights" (Art. 300) provided a clear expectation between the parties that any conflicts arising under the LOSC would be resolved in accordance with its provisions, unless expressly excluded (McLaughlin 1997).
While the Convention delivered a detailed governance framework for fisheries resources within the exclusive economic zones and the territorial seas articulating state rights and obligations (McLaughlin 1997), little attention was given to governance arrangements for the high seas (Brownlie 1998). The foundation for legal order remained with the flag state, which retains basic exclusive jurisdiction over the activities of its vessels on the high seas (Shaw 1997). In effect the LOSC repeated the right of all states to fish on the high seas, subject to specified obligations and the duty of cooperation from the 1958 Convention (Edeson 2001) leaving a distinct tension between freedom to exploit and the need to conserve (Ardia 1998).
While the LOSC affirmed the concept of the "regional fisheries organization" (Art. 318) as the mechanism for state cooperation, the 1982 Convention did not repeat the 1958 Convention obligation on new entrants to comply with established conservation measures. This approach is understandable, given that at that time 99 percent of all fish harvested was taken within 200 nm of the coast. Therefore with the establishment of exclusive economic zones, States may have presumed that international high-seas fisheries were ‘nationalized’ (Sydnes 2001). But, fishing fleets have now developed high-seas fisheries beyond exclusive economic zones (Juda 1997) and the international community has once again been required to address management of the commons.
3.2 Modern regional fisheries management organizations
Governance architecture for regional fisheries organizations reflects two broad levels of cooperation, primary and secondary. Organizations of ‘primary level’ cooperation co-ordinate and facilitate for member states. Primary level organizations may "conduct and coordinate marine research" for the purposes of advising member states or alternatively, they coordinate regional fisheries policy and facilitate industry access to member’s zones. Organizations at a ‘secondary level’ of cooperation "manage regional fisheries in the traditional sense by collecting and assessing scientific data, setting regulatory measures and establishing enforcement measures" (Sydnes 2001).
Contemporary fisheries management governance regimes are designed to achieve effective fisheries management, which requires constraining fishing activity to levels that achieve sustainable yield and requires two fundamental decisions, namely how much fish can be taken and by whom. These organizations are equipped with a decision-making body and a secretariat and states with a ‘real interest’ in the fishery are eligible to become members (Applebaum and Amos 1999). The decision-making body is responsible for agreeing on conservation and management measures necessary to achieve long-term sustainability and setting a total allowable catch or levels of fishing effort as required (UNFSA Art. 10(a)). The decision-making body is normally supported by advice from committees or working groups on scientific, compliance and other technical matters (Sydnes 2001).[111] Funding for the secretariat and other functions are met through member contributions (e.g. WCPT Art. 18 as an example of how membership contributions are calculated).
These regional fisheries management arrangements authorize the decision-making body to adopt conservation and management measures that are relatively sophisticated from a regulatory perspective (Applebaum and Amos 1999). Measures involve: establishing a vessel register to record the vessels authorized to fish in the Convention Area (e.g. WCPT Art. 24(7) that requires the Commission to maintain a vessel register), requiring vessel to carry and operate a vessel monitoring system (e.g. WCPT Art. 24(8) that requires vessels to operate a "near real-time satellite position-fixing transmitter" and transmit the data to the Commission); observer coverage (e.g. WCPT Art. 28 that requires the Commission to establish a regional observer programme), fisheries data collection (e.g. WCPT Art. 23), high-seas boarding and inspection (e.g. UNFSA, Art. 21 and 22; and WCPT, Art. 26), port state inspections (e.g. UNFSA, Art. 23; and WCPT, Art. 27), enforcement of conservation and management measures (e.g. UNFSA, Art. 19; and WCPT, Art. 25), and vessel markings (e.g. UNFSA, Art. 18(3)(d); and WCPT, Annex III); measures to deter the fishing activity of non-parties, which undermine the effectiveness of the measures adopted (e.g. UNFSA Art. 33 and WCPT Art. 32.1).
The objective of these modern organizations is to effectively regulate the individual fishers harvesting the fisheries resources. Therefore, when ratifying fisheries agreements, states are undertaking to regulate the activities of their nationals, with "detailed administrative regulations and vigorous enforcement efforts" (Chayes and Chayes 1995).
3.3 Challenge of non-parties
Despite the creation of exclusive economic zones and the efforts of regional fisheries organizations, depletion of global fish stocks has continued (Vigneron 1998). The state of world fisheries has been labelled "one of the most urgent resource problems facing the international community today" (Carr and Scheiber 2002). It has been estimated that "two thirds of the fish stocks in the oceans are in urgent need of management" (FAO 1999). With this outcome the effectiveness of the current governance architecture is being challenged. Regional fisheries management organizations have been identified as the ‘vehicles of good governance’ but they have yet to deliver sustainable utilisation (Sydnes 2001). A key cause of this failure is the activity of non party states.
For instance, the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)[112] has implemented a catch limit for Patagonian toothfish, but now estimates that more toothfish is taken each year by vessels engaging in illegal, unreported or unregulated activities (IUU fishing), than that taken by authorized vessels. Flags of convenience[113] have been identified as primarily responsible for this IUU fishing[114]. Flags of convenience either run vessel registers that require no genuine link between the vessel owner and the flag state and consequently the flag state is unable to exercise effective control over the vessel, or the flag state does not have the legislative or administrative processes necessary to exercise effective control over its vessels (Polick 2001).
Greenpeace have identified the ‘top ten’ flags of convenience states[115] as Belize, Honduras, Panama, St Vincent & the Grenadines, Equatorial Guinea, Cyprus, Sierra Leone, Mauritius and Netherlands Antilles. All of these flag states are parties to the 1982 Convention and, therefore, have accepted the ‘duty to cooperate’ to manage and conserve high-seas fisheries. However, nine out of ten of these states are considered developing countries, with four being classified by the United Nations as ‘least developed countries’.
Regional fisheries management organizations have struggled with states that have failed to subscribe to the collective management model. Where conservation measures have been implemented to limit the fish harvested, fishing by non-parties has not only thwarted the efforts of those organizations, but has resulted in the non-party vessels benefitting from the reduction of fishing effort in the area (Franckx 2000). Non-parties fall into two categories, states who cannot become parties due to lack of capacity, and states that choose not to participate "because they seek to avoid the obligations" (Rayfuse 1999).
The UNFSA sought to address "problems of unregulated fishing, over-capitalization, excessive fleet size, vessel reflagging to escape controls, insufficiently reflective gear, unreliable databases and lack of sufficient co-operation between States"(Moran 1995). The agreement emphasizes collective management to deliver effective fisheries management. It also further particularized the LOSC rights, duties and obligations to the Parties, introducing a rule stipulating that where its parties were not prepared to comply with conservation and management measures adopted by a regional fisheries management organization, they were to refrain from fishing in that region/comply or refrain (UNFSA, Art. 17(1) and 17(2)).
While under international law states can consent in advance to the obligation to ‘comply or refrain’ (Franckx 2000), there has been significant debate as to whether the UNFSA obligation could be imposed on non-parties to UNFSA (Orebech, Sigurjonsson and McDorman 1998, Bratspies 2001). Despite the drafting language of the UNFSA purporting to create an obligation to ‘comply or refrain’ for all states, and the desire to create an international legal norm to stop "recalcitrant state[s] [being] a spoiler for the entire international community" (Charney 1993), commentators have finally concluded the Pacta tertiis rule prevails (Orebech et al. 1998, Franckx 2000).
The Pacta tertiis rule provides that treaty obligations bind only those states that have consented to be bound.[116] Without the express consent of states or the development of customary international law, the obligation to ‘comply or refrain’ would be limited in effect to UNFSA parties.
It has been suggested that theoretically the UNFSA obligations are unlikely to develop into customary international law, because the rules are too "technical and concrete" (Franckx 2000) to be appropriately developed as customary international law. Franckx (2000) contrasted the UNFSA to the the LOSC, and concluded that because of the special nature of the 1982 Convention and the "quasi-universal adherence to it" the LOSC may have application beyond the parties, but that UNFSA did not. He further considered that where the UNFSA provisions "merely implemented" the LOSC but did not "go beyond its framework by incorporating rules, which cannot be reconciled with the content" of the LOSC then those rules would be binding on the parties to the LOSC. However, Franckx considered that the nature of the UNFSA Art. 8(4) obligation to ‘comply or refrain’ was of "novel character" and reflected "progressive development rather than codification of present day international law". He concluded that "[a]s a consequence, even though the article in question only uses the term ‘States’, its application remains restricted to the parties to the 1995 Agreement".
An alternative interpretation considers that the Article 8(4) obligation to ‘comply or refrain’ merely reflected a particularisation of the 1982 Convention’s "duty to cooperate" (Upton and Vangelis 2003). In the US Shrimp-Turtle case, the Appellate Body of the WTO considered that the generic term ‘natural resource’ was not "static in its content or reference, but rather by definition, evolutionary". The Appellate Body interpreted the term in light of the acknowledgements made by the international community through bilateral and multilateral forums. It cited as authority for this approach the Namibia (Legal Consequences) Advisory Opinion (1971) ICJ Rep 31 where the Appellate Body had found
"The International Court of Justice states that where concepts embodied in a treaty are by ‘definition, evolutionary’, their ‘interpretation cannot remain unaffected by the subsequent development of law [...] Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of interpretation."
Rayford (1999) has suggested that for the LOSC "to maintain its relevance and stature as the ‘constitution’ of the oceans, interpretation of its provisions today must account for alter[ing] realities and customary developments".[117] Multilateral forums have shaped contemporary international law (Charney 1993) and have played a significant role in particularising the elements of the LOSC duties and obligations that are necessary to meet current international expectations.
In the recently concluded International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (IPOA-IUU) (FAO 2001) it is recorded that states who are not members of regional fisheries management organizations "are not discharged from their obligation to cooperate" with those organizations. States are to "give effect to their duty to cooperate by agreeing to apply the conservation and management measures established by that regional fisheries management organization, or by adopting measures consistent with those conservation and management measures, and should ensure that vessels entitled to fly their flag do not undermine such measures" (Art. 79, FAO 2001).
Interpreting the 1982 Convention’s "duty to cooperate" as requiring parties to ‘comply or refrain’ is consistent with international development. Currently one hundred and forty-two states have agreed to ‘cooperate in the conservation and management" of high-seas fish stocks and to use regional fisheries organizations as appropriate. Regional fisheries organizations cannot effectively conserve and manage these fisheries unless the duty to cooperate requires states to ‘comply or refrain’. One hundred states involved in negotiating the text of the UNFSA mandated with considering "means of improving fisheries cooperation among states" articulated the obligation to ‘comply or refrain’ in an article entitled ‘Cooperation for conservation and management measure’ (FAO 2001). Non-party fishing was classified as ‘unregulated’ and deserving of punitive measures under the IPOA-IUU, adopted at the 24th session of the FAO Committee on Fisheries.
The LOSC ‘duty to cooperate’ is yet to be defined under the international dispute resolution procedures and to date only the ‘duty to cooperate’ matter has been referred to the International Tribunal for the Law of the Sea (ITLOS). That was in regard to the Chile-European Community case concerning the conservation and sustainable exploitation of swordfish stocks in the South-Eastern Pacific Ocean. The dispute was resolved prior to any determination by the Tribunal.
Despite the apparent limits under international law of the ability to bind non-parties, and without clarifying the duty through the LOSC mechanisms, members of regional fisheries management organizations have been tempted to consider fishing by non-parties as illegal (Chaves 2001)[118] rather than unregulated by the organization. As a consequence they have begun to develop compliance measures based upon this conviction.
The perceived failure of regional fisheries management organizations to deter ‘free-riders’ has led to members seeking compliance measures to give their agreement ‘teeth’. To strengthen the effectiveness of regional fisheries management organizations, modern agreements include provisions requiring member states to take measures to deter non-compliant fishing activities by non-cooperating states.[119] At a global level, parties to UNFSA have agreed to "take measures consistent with [that] Agreement and international law to deter the activities of vessels flying the flag of non-parties which undermine the effective implementation of the Agreement".
At a regional level similar provisions are being adopted (WCPT, Art. 32(1); SEAFO, Art. 22(3)). The Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPT) obliges all members to "take measures consistent with the Convention, the Agreement and international law to deter the activities of vessels flying the flags of non-parties to this Convention which undermine the effectiveness of conservation and management measures" (e.g. WCPT, Art. 32(1). It is under the authority of these types of provisions that members of CCAMLR, ICCAT and Chile under the Galapagos Agreement have implemented trade measures against non-parties.
Fisheries-related state-imposed trade measures primarily include import prohibitions, flag state certification schemes, and port state landing prohibitions. Importation prohibitions are a blanket approach by which the importing state declares that specific fish from a specific country will not be imported. Flag state certification schemes have been adopted by a number of regional fisheries management organizations as a means of establishing the total harvest; member states require the flag state to declare from where the fish has been taken prior to import. Port state landing prohibitions are implemented on a vessel-by-vessel basis; here port states exercise their exclusive jurisdiction to control vessel activities while in their internal waters. This assumption was challenged in the EC-Chile dispute, but was not resolved. Port state measures were introduced to fisheries management in 1989 with the adoption of the Convention for the Prohibition of Fishing with Long Drift-nets in the South Pacific. This Convention provided for member states to restrict access to ports and port facilities where vessels had been involved in drift-net fishing (Lobach 2001).
The UNFSA adopted the concept of port state measures when it had been established that catches were being taken in "a manner that undermines the effectiveness of" (UNFSA, Art. 23) regional or global conservation measures for the high seas but it did not address the inevitable interaction between these measures and international trade agreements. It is yet to be resolved whether port state measures and import bans are consistent with international law. However, there is a clear tension between achieving sustainable utilisation of the ‘commons’ and maintaining states’ obligations under international trade agreements. While Greenpeace has asked governments to stop the use of flags of convenience by closing their ports, closing their markets, and prohibiting their nationals from owning or operating flag of convenience vessels,[120] developing states claim these measures are discriminatory (Upton and Vitalis 2003).
3.4 Contemporary consideration of trade measures
International trade accounts for nearly 40 percent of all fishery products (Chaves 2001) so the significance of trade access has had a major impact on the thinking of states in determining how to leverage non-parties to ‘comply or refrain’ (Parker 1999). Trade sanctions that are ‘WTO consistent’ are "considered an essential strategy to enforce global norms because many international institutions suffer from an enforcement gap" (Kelly 2001). These measures have the potential to significantly affect developing states because the "flow of international fisheries trade is from developing countries to industrial countries" (McDorman 1999).
The World Trade Organization had 146 members as of April 2003. The majority of these members are also parties to the LOSC. The WTO obligations on members significantly limit the lawful actions that can be taken by states to encourage non-party compliance with regional fisheries management organizations (Upton and Vitalis 2003). Regional fisheries organizations are currently promoting trade sanctions to obtain compliance from non-parties but these measures are yet to receive scrutiny or endorsement from the WTO (Kelly 2001).
Signatories to the General Agreements on Tariffs and Trade (GATT) have adopted a multilateral trade system to "reduce and eliminate international trade barriers and [which] strives to provide equal access to foreign markets". The WTO was established to implement the agreed trade policies and it is the WTO that provides the dispute resolution mechanisms to resolve conflict between members (Owen 2000).
The WTO does not ‘positively regulate’ trade, rather through adjudication it clarifies and expands the norms negotiated by the members. Historically, broad principles of customary international law have not been applied by the WTO to disputes. Recently commentators have suggested, "the broad principles of customary international law, such as human rights norms and the precautionary principle, are universal norms superior to negotiated trade norms and therefore should be applied by WTO dispute panels" (Kelly 2001). It has also been suggested that the customary international rule of sustainable development should be reflected in the WTO system. The object of sustainable development may be defined as to "consider the needs of present and future generations; accept limits on the use and exploitation of natural resources for environmental protection reasons; apply equity in the allocation of rights and obligations; and to integrate all aspects of environment and development" (Dailey 2001).
GATT contains three foundation principles: "most favoured nation treatment, national treatment and the prohibition of quantitative restrictions on trade". Any restraint on trade by one member of the GATT against another provides a basis for commencing dispute resolution procedures available only to WTO (Owen (2000).
When considering trade measures employed by members of regional fisheries management organizations to deter fishing by non-parties, there are relevant GATT rules (GATT, Art. V).
i. WTO members have agreed that there is to be freedom of transit through the territory of each member (GATT, Art. V).
ii. No distinction is to be made on the basis of flag of vessel, place of origin, departure, entry, exit or destination, or on any circumstances relating to the ownership of goods, of vessels or of other means of transport (GATT, Art. V).
iii. Goods are considered to be in transit when the passage across such territory is only a portion of a complete journey (GATT, Art. V). This transit obligation is relevant when considering the legitimacy of coastal states using port closures and landing prohibitions to deter the fishing activities of non-parties.
iv. WTO members have also agreed to prohibit the use of quantitative restrictions on imports and exports (GATT, Art. XI), a relevant obligation when considering the use of import or export bans to support regional fisheries management organizations’ conservation measures.
GATT has made some provision for "green exceptions" (Polick 2001) to these rules. Article XX provides an exception where the trade measures are implemented in a manner that does not constitute a means of arbitrary or unjustifiable discrimination and are not disguised restrictions on international trade; and the measures are "necessary to protect human, animal or plant life or health" or where measures relate to the "conservation of exhaustible natural resources" and are "made effective in conjunction with restrictions on domestic production or consumption" (GATT, Art. XX (b) and (g)).
The use of import bans to support regional fisheries management organizations commenced with the endorsement of the imposition of measures in the International Commission for the Conservation of Atlantic Tunas (ICCAT).[121] In 1996 the Commission recommended that import prohibitions be implemented against Belize,[122] Honduras[120] and Panama[123] in respect of the imports of bluefin tuna. These measures were to have effect from 4 August 1997 against Belize and Honduras and from 1 January 1998 against Panama. These states were non-parties to ICCAT and classified as flags of convenience. This recommendation was implemented by the United States and Japan, although the United States had never imported bluefin tuna from these states.[124] Japan also prohibited port calls by tuna longline fishing vessels registered in Panama, Belize and Honduras because those countries were designated by ICCAT as "diminishing the effectiveness of the management regime" (Komatsu 2001).
On 28 December 1998 Panama became a contracting party to ICCAT and at the 1999 Commission meeting it was recommended that member states lift the import prohibition on Panama in recognition of their new status. On 30 January 2000 Honduras became a member and as a result at the 2001 commission meeting it was recommended that the importation prohibition be lifted against Honduras. To date Belize still remains a non-party. The effective use of trade sanctions by the United States and Japan to encourage participation in ICCAT and the absence of WTO challenge appears to have encouraged other regional fisheries management organizations to implement these types of measures.
Subsequently, CCAMLR has been at the forefront of implementing trade sanctions. CCAMLR scientists have divided the convention area into a number of statistical areas for which management conservation measures have been adopted in respect of toothfish fisheries. These measures include: imposing catch limits for areas where access is subject to the jurisdiction of coastal states;[125] permitting exploratory fishing only,[126] prohibiting fishing except for scientific research;[127] and prohibiting fishing entirely.[128] To support these management measures compliance conservation measures have been imposed to deter the fishing activities of non-parties in the convention area.
CCAMLR now requires contracting parties to inspect all fishing vessels that enter their ports carrying toothfish,[129] to determine whether the fish was taken in the Convention Area and whether the fishing activity was in accordance with the conservation and management measures.[130] If vessel masters intend to land catch taken from the Convention area, the port state must confirm that all toothfish is accompanied by appropriate catch documentation.[131] Where there is evidence of fishing in the Convention area in contravention of the conservation and management measures, landing or transhipment is to be prohibited.[132]
As every landing of toothfish must be accompanied by a completed catch documentation declaration, the Commission provides for cooperating non-contracting parties to issue catch documentation forms.[133] However, landing of fish taken in the Convention area by non-contracting parties is prohibited. The catch documentation form requires masters to declare if toothfish was taken in a manner consistent with the CCAMLR conservation measures. If a non-contracting party has taken catch in the Convention area that catch will be presumed to have been taken in a manner that undermines "the effectiveness of CCAMLR conservation and management measures"[134] and on that basis landing is prohibited.
Recently Seychelles, Singapore, Mauritius and China have all implemented the catch documentation scheme for their ports as cooperating non-parties.[135] Namibia joined the Commission and implemented the catch documentation scheme in February 2001. CCAMLR has established a fund for enhancing the capacity of the Commission to improve the catch documentation scheme. The fund may be used to assist acceding states and non-contracting Parties that wish to cooperate with CCAMLR and implement a catch documentation scheme.
At each Commission meeting vessels that have engaged in illegal, unreported or unregulated fishing in the convention area are identified and entered on an ‘IUU Vessel List’.[136] To the extent possible under their domestic legislation, all contracting parties are required, inter alia, to prohibit listed IUU vessels from fishing in their national jurisdiction, prohibit those vessels landing in their ports and prohibit importation of toothfish taken by those vessels.
The Commission has labelled the trade measures agreed by the contracting parties "multilateral trade-related measures". These trade measures have yet to be challenged, however, similar measures were challenged in the Chile-European Community Swordfish dispute that arose from port state measures implemented under the Galapagos Agreement for the Conservation of Living Marine Resources on the High Seas of the South Pacific (the Galapagos Agreement).
The Galapagos Agreement was concluded by four coastal states - Chile, Colombia, Ecuador and Peru in August 2000. The Agreement was a purely high-seas arrangement with the exclusive economic zones of the coastal states expressly excluded from the area of application (Art. 3). Distant water fishing nations were able to accede to the agreement if they had "an established interest" (Art. 1(3)) in specific fishery resources in the agreement area. An ‘established interest’ was defined "interest demonstrated by a state whose nationals habitually fish for one or more fish populations within [the] Agreement’s area of application and whose participation may fall within the scope of this interest" (Art. 1(4)).
The Agreement required the Parties to prevent "disembarkation and ship-to-ship transfers when reasonable grounds exist to believe that captures of fish in the Agreement’s area of application have been carried out in the contravention of the rules and conservation measures adopted by the States Parties" (Art. 9(b)). It was agreed that the state parties in relation to non-parties would either "individually or collectively, adopt appropriate measures, compatible with international law, to dissuade fishing vessels flying the flags of non-party states from undertaking activities which undermine the effectiveness of the conservation measures adopted" (Art. 13).
Pursuant to these provisions Chile closed its ports to vessels flagged to states in the European Community that fished for swordfish in the high-seas area subject to the Agreement. In November 2000 the European Community requested a WTO dispute resolution panel be established to consider the port prohibition imposed by Chile. The European Community claimed that prohibiting the unloading of swordfish in Chilean ports rendered transit and importation impossible. (WTO WT/DS193/2, 7.11.2000). The European Community considered that the prohibition was "inconsistent with Art. V:1-3 and XI:1 of the GATT 1994 and, as a result nullif[ied] the benefits to the EC under that agreement"
In December 2000 Chile commenced proceedings in the ITLOS requesting that the dispute be submitted to a special chamber of the Tribunal.[137] On 20 December 2000 the ITLOS unanimously agreed to form a special chamber of five judges to hear the dispute[138]. The issues included: whether the European Community had complied with its obligations under Articles 116-119 to ensure conservation of swordfish; whether the European Community had complied its Article 64 obligation to cooperate with Chile as coastal state for the conservation of swordfish; whether the European Community had challenged the sovereign right and duty of Chile to prescribe conservation measures and implement port state measures, and whether such a challenge would be incompatible with the LOSC; whether the Articles 300 and 297(1)(b) obligations had been fulfilled by the European Community.
For the European Community the issues included: whether Chile’s domestic legislation imposing the ‘unilateral conservation measure’ was in breach of Articles 87, 89 and 116-119 of the LOSC; whether the Galapagos Agreement was negotiated in accordance with Art. 64 and 116-119 of the LOSC; whether Chile’s actions conformed with Article 300; and whether the special chamber had jurisdiction over the issue of the European Community challenge to Chile’s ‘sovereign right and duty’ by commencing the WTO dispute procedures.
Prior to either body considering these matters Chile and the European Community resolved their dispute. The European Community and Chile established a bilateral Scientific and Technical Commission to exchange information on swordfish stocks, fishing activities of the parties, environmentally safe and cost-effective fishing gear; to evaluate the state of the stocks; to identify research priorities and to draw-up necessary programmes; to advise on possible conservation measures; and consider further means of cooperation in scientific, technical or administrative fields. A research programme was also commenced allowing Chilean vessels and European Community vessels to each take 1 000 t of swordfish a year. They also agreed to commence a joint initiative to promote multilateral cooperation for the conservation of the stocks throughout their range (WTO WT/DS193/3, 06.04.2001).
3.5 ‘WTO Consistent’ Assessment
In the United States there have been an increasing number of statutes that authorize the imposition of unilateral trade measures as a method of pressuring other states on environmental issues (McLaughlin 1997). When challenged, these measures have failed to withstand the scrutiny of the WTO Appellate Body. Its decision in the United States - Import Prohibition of Certain Shrimp and Shrimp Products case (the US Shrimp-Turtle case) provided some direction to regulatory agencies on the framework required for trade measures to withstand WTO challenge (Owen 2000).
In the Shrimp-Turtle case the United States had enacted a law that prohibited the import of shrimp or shrimp products harvested by a method that "trap[ped] and suffocate[d] endangered sea turtles" (Dailey 2000). The legislation placed as a prerequisite for access to the United States market that the shrimp be certified as having been taken "under conditions that do not adversely affect sea turtles" or that the shrimps were harvested in "waters of a nation currently certified". Certificates were to be granted "to countries with a fishing environment which [did] not pose a threat of the incidental taking of sea turtles in the course of shrimp harvesting". The United States Secretary of State was also called upon to "initiate negotiations as soon as possible for the development of bilateral or multilateral agreements with other nations for the protection and conservation of [...] sea turtles".[139]
The WTO dispute settlement panel found the legislation was not consistent with Article XI:1 of the GATT 1994, and "could not be justified under Article XX". The United States did not appeal the finding, instead it appealed on whether the panel was correct in determining that the measure constituted unjustifiable discrimination between countries where the same conditions prevail. The Appellate Body considered that a balance must be struck between the rights and duties of members and suggested that parties achieve this equilibrium in agreements that contain "consensual undertakings", and they implement environmental measures while giving ‘reaffirmation’ to WTO obligations. In considering whether the measure constituted ‘unjustifiable discrimination’ the Appellate Body commented that "[p]erhaps the most conspicuous flaw in this measure’s application relates to its intended and actual coercive effect on the specific policy decisions made by foreign governments which are members of the WTO".[140]
The Appellate Body found that the United States had failed to engage in "serious, across-the-board negotiation with the objective of concluding bilateral or multilateral agreements for the protection and conservation of sea turtles" and that the process for determining not to issue a certificate for a foreign state did not meet the "standards for transparency and procedural fairness in the administration of trade regulations." In determining this, the Appellate Body considered first whether the measure could be characterized as a XX(g) exception, and then whether the measure breached the chapeau. They emphasized that the purpose and object of the chapeau was to prevent abuse of the exceptions nd an expression of the "principle of good faith".[141]
The Appellate Body went through six steps before determining that the measure was unjustifiably and arbitrarily discriminating. It determined: whether sea turtles were an exhaustible natural resource; whether there was a jurisdiction nexus between the United States and the turtles; whether the measure related to the conservation of an exhaustible natural resource; whether the measures were imposed on domestic vessels; whether there was unjustifiable discrimination between countries where the same conditions prevail, questioning whether the measure was reasonable, fair and equitable; and whether there was arbitrary discrimination.
Comparing and contrasting New Zealand’s domestic implementation of the CCAMLR measures with the Appellate Body’s consideration of the issues in the US Shrimp-Turtle case provides a useful framework for examining whether the WTO dispute resolution process is likely to find these types of fisheries trade measure ‘WTO consistent’. A similar exercise has been undertaken, in respect of the United States’ implementation of the CCAMLR catch documentation scheme. Polick (2001) concluded that the measures were likely to survive scrutiny because the regulations "in reality should not prevent or limit the importation of toothfish" and determined that toothfish could be landed accompanied by catch documentation issued by non-contracting parties, without any assessment as to whether the catch had been taken consistent with the CCAMLR conservation measures.
New Zealand has domestic statutory authority under the Fisheries Act 1996 (Section 113ZD) to implement port state measures to prohibit the landing of toothfish taken in a manner that undermines CCAMLR conservation measures (Section 113ZD, Fisheries Act 1996). The Chief Executive of the Ministry of Fisheries has the statutory power to prohibit vessels coming into New Zealand’s internal waters where he or she is satisfied that the vessel has been used to undermine international conservation and management measures. The Minister of Fisheries has also been empowered to prohibit vessels entering New Zealand’s internal waters that have undermined international conservation and management measures.
New Zealand has implemented the CCAMLR catch documentation scheme and import and export prohibitions through a variety of domestic legislation.[142] The importation of Patagonian and Antarctic toothfish[143] is prohibited unless covered by a completed catch document "issued by a party to the Convention" By requiring the catch to be accompanied by a catch document issued by a party, New Zealand has prohibited importation of toothfish caught by nationals of cooperating non-contracting parties. Exportation of Patagonian and Antarctic toothfish is also prohibited unless accompanied by party issued catch documentation (Customs Export Prohibition (toothfish) Order 2003, Section 4).
Foreign-flagged vessels may only land Patagonian and Antarctic toothfish in New Zealand if the master of the vessel has completed catch documentation issued by a "party other than New Zealand". If fish is landed in contravention of this requirement the master commits an offence and is liable to a fine up to NZ$100 000.[144]
This domestic implementation does not allow for cooperating non-parties to issue the catch documentation. Further, because the CCAMLR measures and New Zealand’s implementation has made no distinction between toothfish taken in the Convention area and toothfish taken outside the Convention,[145] New Zealand has prohibited the landing, import and export of all Patagonian and Antarctic toothfish by non-parties irrespective of whether it was taken inside the Convention area and irrespective of whether the non-party is a cooperating non-party.
4. EVALUATION OF TRADE MEASURES IN RELATION TO NEW ZEALAND
4.1 Exhaustible natural resource - comparison
In the US Shrimp-Turtle case the Appellate Body was satisfied "in the light of contemporary concerns of the international community about the protection and conservation of the environment", that sea turtles were indeed a "natural resource" (US Shrimp-Turtle case (Appellate Body)). In making this finding the Appellate Body was mindful of the members’ commitment to sustainable development of the world’s resources as provided in the preamble to the WTO Agreement. The Appellate Body also considered that it was beyond challenge that sea turtles were an exhaustible resource as recognized by their inclusion in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) as a species "threatened with extinction" [US Shrimp-Turtle case (Appellate Body) (Dailey 2000)].
At the 21st meeting of the CCAMLR Australia advised the Commission that "it had nominated toothfish for listing under Appendix II of the CITES". Most CCAMLR members expressed concern with Australia’s proposal and urged Australia to withdraw its nomination. Members were mainly concerned that Australia’s proposal was not based on CCAMLR scientific data; that CITES listing were ‘species’ based rather than ‘stock’ based and therefore toothfish could not meet the criteria for ‘endangered’ when the CCAMLR scientific committee were recommending increasing the TAC for a toothfish stock in Sub-area 48.3; and the proposal had not been discussed by CCAMLR members before making the nomination. The Commission did, however, agree to engage in further cooperation with CITES and to "urge all CITES Parties to require a CCAMLR CDS document on all toothfish imports".
The absence of a CITES listing should not be fatal to establishing exhaustibility. The CCAMLR conservation measures restricting fishing effort have been agreed multilaterally on advice from a scientific committee for the purpose of conserving and managing the fisheries. With sustainable development accepted as a customary international norm (Dailey 2000), there should be no difficulty in establishing toothfish to be an ‘exhaustible natural resource’.
4.2 Jurisdictional Nexus - comparison
In the US Shrimp-Turtle case the WTO Appellate Body considered that there was a sufficient jurisdictional nexus between the United States as the ‘import banning state’ and the resource, for the purposes of XX(g). The Appellate Body found that because the species of sea turtles subject to the import ban were all found within the national jurisdiction of the United States, and information indicated that in certain circumstances those species migrated, there was "sufficient nexus between the migratory and endangered marine populations involved and the United States" (US Shrimp-Turtle case (Appellate Body)).
As Patagonian toothfish is found in the New Zealand EEZ and New Zealand participates in the regional organization responsible for conservation of Patagonian and Antarctic toothfish, there appears to be ample jurisdiction nexus between the species and New Zealand. CCAMLR was established to "conserve the marine living resources of the Antarctic marine ecosystem"[146] and it also demonstrates the attributes of a regional fisheries management organization acting under the auspices of the United Nations.[147]
4.3 Measure ‘related to’ conservation - comparison
In the US Shrimp-Turtle case the Appellate Body examined the trade measure to determine whether it was ‘related’ to the conservation of the exhaustible natural resource. The Appellate Body required a "substantial relationship" between the measure and the conservation goal defining such a relationship as a "close and genuine relationship of ends and means".
The Appellate Body found that the exemptions from the import ban related "clearly and directly to the policy goal of conserving seas turtles" (Dailey 2000). The policy implementation of the import ban was designed not to be a blanket prohibition "without regard to the consequences (or lack thereof) of the mode of harvesting employed upon the incidental capture or mortality of sea turtles". On that basis the Appellate Body concluded that the measure and policy guidelines were "not disproportionately wide in its scope and reach in relation to the policy objective of protecting and conservation of sea turtle species", and therefore the means were "in principle, reasonably related to the ends".
CCAMLR conservation measures restricting landing, import and export are designed to support the measures that restrict fishing effort in the Convention area. CCAMLR had carefully allowed for non-parties to certify the fish as being taken outside the Convention area and therefore as being consistent with the conservation measures for the Convention area. Had New Zealand faithfully implemented those measures into domestic legislation there would have been a tangible ‘means/ends’ relationship between the CCAMLR conservation measures and the domestic implementation. However a prohibition on all landing, import or export of toothfish by non-parties irrespective of cooperation or fishing area appears disproportionately wide for CCAMLR’s stated conservation purpose.
4.4 Domestic consistency - comparison
In the US Shrimp-Turtle case the Appellate Body was satisfied that there was ‘evenhandedness’ in the imposition of restrictions because the United States shrimp trawlers were required to comply with the United States regulatory regime (US Shrimp-Turtle case (Appellate Body), Dailey 2000).
New Zealand has imposed under its domestic legislation a requirement for all toothfish to be accompanied by catch documentation, therefore fish taken by domestic fishers is subject to the same requirements as fish taken by foreign fishers. However, New Zealand’s access to the CCAMLR fisheries could form the basis of an ‘unevenhandedness’ challenge.
While coastal states control access to CCAMLR fisheries inside exclusive economic zones, CCAMLR controls access to exploratory fisheries on the high seas areas in the Convention Area. Access is granted on an annual basis and there is no state allocation of quota. For the areas that are open for exploratory fishing all members are entitled to submit an exploratory fishing plan for consideration by the Commission. Therefore, new entrants have the same opportunity to gain access to those fisheries.
Over time New Zealand has negotiated access to three exploratory fisheries. For the 2002/2003 fishing year New Zealand was granted access for the purpose of exploratory fishing to Sub-areas 88.1, 88.2 which contains the Ross Sea and 48.6. In Sub-area 88.1 two vessels from Japan, six vessels from New Zealand, two vessels from Russia, two vessels from South Africa and one vessel from Spain were authorized by the Commission to fish. The total precautionary catch limit for those vessels was 3 780 t. In Sub-area 88.2 two vessels from Japan, five vessels from New Zealand and two vessels from Russia were authorized by the Commission to fish. The total precautionary catch limit for those vessels was 375 t. In Sub-area 48.6 one vessel from Japan, one vessel from New Zealand and one vessel from South Africa were authorized by the Commission to fish. The total precautionary catch limit for those vessels was 910 t.
While New Zealand has to date had greater access than other states, given access is negotiated each year, a determination that this access could amount to ‘unevenhandedness’ is unlikely. If every state is able to join CCAMLR, and every state is entitled to submit an exploratory fishing plan, as long as the process for determining access is fair it would be reasonable to conclude that there is no ‘unevenhandedness’.
4.5 Unjustifiably discriminatory - comparison
In the US Shrimp-Turtle case the Appellate body concluded that the legislation and guidelines were "provisionally justified under Article XX(g)" (Dailey 2000) and went on consider whether there was a breach of the chapeau to that Article. The Appellate Body described the chapeau as providing the line of equilibrium:
"between the right of a member to invoke an exception [...] and the rights of the other members under varying substantive provisions [...], so that neither of the competing rights will cancel the other and thereby distort and nullify or impair the balance of rights and obligations."
The Appellate Body considered that that the line was "not fixed and unchanging; the line moves as the kind and the shape of the measures at stake vary and as the facts making up specific cases differ". The Appellate Body found that the United States’ measure constituted unjustifiable discrimination because of its "intended and actual coercive effect" on the policy decisions of foreign governments. The measure was "rigid and unbending"; the measure was "more concerned with effectively influencing WTO members to adopt the same comprehensive regulatory regime"; and the United States had failed to engage "in serious, across-the-board negotiations with the objective of concluding bilateral or multilateral agreements" (US Shrimp-Turtle case (Appellate Body), 149).
The Appellate Body was critical of the United States failure to give due consideration to the different positions and conditions of other WTO members (US Shrimp-Turtle case (Appellate Body), 155)and the practice of the United States of merely exchanging letters with the governments of some of the affected states.[148] They concluded that because the United States had negotiated seriously with some states, and not with others, the effect of the measure was "plainly discriminatory and, in our view, unjustifiable" (US Shrimp-Turtle case (Appellate Body), 168).
Arguably, in the absence of an international obligation being breached, impositions of trade measures are prohibited under international trade law on the basis of ‘unjustifiable discrimination’ (McDorman 1999). While the CCAMLR measures have been endorsed by a multilateral forum this does not negate the presence of coercion. These measures are attempting to convince other governments that they are under an obligation to ‘comply or refrain’.
Against the international legal history of the right of states to fish on the high seas, pressuring compliance with an established regional fisheries management regime has the potential to be classified as ‘unjustified discrimination’. New Zealand is currently in an unenviable position, with its domestic implementation of the CCAMLR measures failing to be a faithful implementation. Having cast the prohibition beyond that authorized by the CCAMLR, there is a likelihood that a claim of unjustifiable discrimination could be established.
Further, unlike the United States, New Zealand has LOSC obligations. The 1982 Convention requires that "conservation measures on the high seas must not "discriminate in form or fact against the fishermen of any State" (McLaughlin 1997). The LOSC provided binding dispute resolution procedures for clarifying the nature of rights and obligations under the Convention and bound parties to a duty of good faith. In those circumstances, without a clear obligation on non-parties to ‘comply or refrain’, New Zealand is in jeopardy of breaching its own international obligations (McLaughlin 1997).
4.6 Arbitrarily discriminatory - comparison
In the US Shrimp-Turtle case, the Appellate Body considered that the United States’ process for certifications allowed no opportunity for the affected states to be heard, therefore denying natural justice. The ex parte nature of the United States certification process resulted in the Appellate Body finding the measures also amounted to arbitrary discrimination (US Shrimp-Turtle case (Appellate Body) 177, 180).
When measures are developed in multilateral forums, after affected states are put on notice and given the opportunity to communicate with the Commission and Secretariat, they have a degree of transparency and due process. However, should New Zealand ever use its legislative prohibitions to actually stop a landing or import or export of toothfish from a non-party of CCAMLR, the process for refusing the fish would need to be transparent and fair. Currently, under the legislation all non-party toothfish would be prohibited without the non-party having the opportunity to prove that the catch was taken outside the Convention area or in accordance with the conservation and management measures. The absence of this opportunity could result in a challenge on the basis of arbitrary discrimination.
4.7 Final comments by the Appellate Body
The Appellate Body concluded with a clear statement that WTO consistent measures could be used to protect the environment (US Shrimp-Turtle case (Appellate Body, 181)):
"We have not decided that the protection and preservation of the environment is of no significance to the members of WTO. Clearly, it is. We have not decided that the sovereign nations that are members of the WTO cannot adopt effective measures to protect endangered species, such as sea turtles. Clearly, they can and should. And we have not decided that sovereign states should not act bilaterally, plurilaterally or multilaterally, either within the WTO or in other international fora, to protect endangered species or to otherwise protect the environment. Clearly, they should and do."
However, it emphasized that member states must fulfil their WTO obligations and respect the rights of other members (US Shrimp-Turtle case (Appellate Body), 182). There was a clear message from this decision: that measures could be ‘WTO consistent’, but that they must be grounded in consent and good faith.
It appears that until the Galapagos challenge it had been assumed by developed states that trade measures applied via a regional fisheries management organization were ‘WTO consistent’ (Upton and Vitalis 2003). However, developing states are now actively promoting the stance that trade measures against non-parties of environmental agreements risk "breaching the non-discrimination provision of GATT" (Upton and Vitalis 2003). Developed states can no longer assume that attempts to make unilateral measures multilateral by obtaining endorsement from a multilateral organization to which the exporting states is not a member will make the measure ‘WTO consistent’.
This divergence of view has resulted in the WTO members excluding consideration of the use of trade measures against non-parties from the Doha Ministerial Declaration (Adopted by WTO on 14 November 2001). Members have limited their negotiations to the relationship between WTO rules and ‘specific trade obligations’ set out in multilateral environment agreements, expressly confirming, "the negotiations shall not prejudice the WTO rights of any member that is not a party to the MEA in question" (Doha Ministerial Declaration, 14 November 2001, par. 31).
By not addressing the most pressing issue for fisheries management organizations, the long-term effectiveness of fisheries management governance hangs in the balance. If WTO members continue to exclude this issue from the international negotiating table, it will ultimately be resolved under an international dispute resolution mechanism. Should governance frameworks be based on the assumption that trade measures can legitimately be used to obtain compliance from non-parties, and that assumption later proves to be false, the international community will be powerless to address ‘free-riders’, and the foundation of the management regime may be irrevocably undermined.
5. GEARING FOR COMPLIANCE
5.1 Background
Achieving sustainable development and effective management of the high seas will require states to engage in the collective management of those stocks and comply with a global obligation to ‘comply or refrain’. Applying the compliance principles to non-party fishing activities assists in identifying why states are continuing to fish in a manner that undermines regional fisheries management organizations, despite members asserting that non-parties are under an obligation to ‘comply or refrain’. Although there are differing reasons for non-compliance depending on whether the state is a non-party due to lack of capacity or because it is choosing to avoid obligations (Rayfuse 1999), these same principles can be used to design a governance regime that pulls towards compliance. The necessary elements of a new design are clear, there is a need for a global obligation to ‘comply or refrain’. If the obligation cannot be established under the dispute resolution processes of the LOSC, it needs to be negotiated.
5.2 Applying the principle of state self-interest
While ultimately it will be in all states’ self-interest to conserve fisheries for future generations, joining a regional fisheries management organization will not necessarily be in the immediate self-interest of all states. For developing states, if joining a regional fisheries management organization would result in a restriction on fishing effort and the requirement to implement a sophisticated domestic regulatory regime to actively manage the fishing activities of their nationals, the cost-benefit analysis will favour non-compliance (Rayfuse 1999).
A further disincentive for developing states is the risk that once they are members of the organization, punitive measures will still be imposed because they will not be able to meet the regulatory standards required. Equatorial Guinea joined ICCAT in 1987, however, at the 1999 meeting of the Commission, it was recommended that contracting parties prohibit the import of Atlantic bluefin tuna and its products from Equatorial Guinea[149], despite Equatorial Guinea being categorized by the United Nations as one of the ‘least developed countries’ (<http://www.unisdr.org/unisdr/LDC.htm>). In those circumstances a developing state’s self-interest would be best served by denying that there is an obligation to ‘comply or refrain’ rather than joining a regional fisheries management organization, only to receive further punitive measures.
For states that choose to avoid obligations, exercising control may result in the cost of compliance outweighing the benefits. Inevitably, exercising control would encourage vessel operators to use the state as a flag of convenience and to reflag their vessels. In circumstances where these states have no "indigenous fishing fleet of their own capable of participating in the fishery" there is no incentive in current regional fisheries management organizations for those state to comply (Balton 1999).
The principle of state self-interest implies that under the current regimes, for both developing and developed states acting as flags of convenience, the cost of complying outweighs the benefit of complying, therefore, reducing the likelihood of compliance. Positive incentives, rather than punitive, measures appear more likely to achieve compliance at a global level to an obligation to ‘comply or refrain’. Punitive measures may have a role in maintaining compliance with established rules but using these measures to pressure compliance undermines the principle of perceived merit and thus undermines achieving compliance.
Future designs will need to reshape the impacts upon state self-interest through incentives to favour compliance; one mechanism available is guaranteeing a share of high-seas fish stocks to each state. Potentially, the ability to lease a ‘State share’ would provide an incentive for developing states not to fish the high seas in the absence of the ability to control its nationals, receiving a benefit through leasing rather than fishing. However, the allocation model for shares would require careful consideration to ensure it satisfied the principle of perceived merit over time (Applebaum and Donohue 1999).
5.3 Applying the principle of perceived merit
The ambiguity in the 1982 Convention language fails to encourage compliance with an obligation to ‘comply or refrain’. Given that the LOSC failed to include the 1958 Convention’s requirement of the duty to cooperate, non-parties may believe that they are not breaching their treaty obligations when failing to ‘comply or refrain’. The LOSC was carefully drafted to balance rights of coastal and distant water fishing states (McLaughlin 1997. Therefore, without clear articulation, of duties sufficient room is left for states to have a large range of interpretations (Chayes and Chayes 1995).
Failure to use the LOSC dispute resolution mechanisms serves to increase the legitimacy of a range of interpretations rather than increasing the perceived merit of the obligation to ‘comply or refrain’. In 1974 the United States representative at the third United Nations Conference on the Law of the Sea made the following statement:
"[My] government believes that any law of the sea treaty is almost as easily susceptible to unreasonable unilateral interpretation as are the principles of customary international law. This is particularly true when we consider the essential balance of critical portions of the treaty, such as the economic zone, must rest upon impartial interpretation of treaty provisions. One primary motivation of my government in supporting the negotiation of a new law of the sea treaty is that of making an enduring contribution to a new structure for peaceful relations amongst States. Accordingly, we must reiterate our view that a system of peaceful and compulsory third-party settlement of disputes is in the end perhaps the most significant justification for the accommodations we are all being asked to make."
Yet despite the LOSC providing this clarification mechanism, parties to the 1982 Convention have preferred to use punitive measures rather than engage in determining the scope of the duty. In these circumstances all non-parties would be entitled to claim that LOSC parties have breached their obligation of good faith and have interfered with the flag state’s rights under the LOSC (McLaughlin 1997). They could further claim that applying punitive measures to pressure compliance with an obligation to ‘comply or refrain’ without having first clarified the rule and assessing the capacity of the state to comply is fundamentally unfair (Parker 1999). In turn, this perceived unfairness may shape domestic pressure to cause the government to consider that non-compliance is preferable to the "political cost of compliance" (Joyner 1999).
While there is a valid relationship between trade and the environment, the process of implementing trade measures needs to be perceived to be legitimate. WTO members are free to consider the use of trade measures. This approach was endorsed in the US Shrimp-Turtle case. However, failure to clarify the relationship leaves states vulnerable to a WTO finding unjustifiable discrimination. If trade leverage rather than positive incentives is deemed essential for convincing non-members to join the negotiating table, states should be exploring this option (Parker 2001).
In the interim, any state that implements trade measures to deter fishing activities of non-parties will need to consider carefully whether that measure is justifiable. The definition of the ‘duty of cooperation’, the scientific basis for the total allowable catch, the degree of negotiations that have been engaged in, the extent of the offers to build capacity and the due process for the imposition of the measure will all be critical in this determination.
The principle of perceived merit implies that the likelihood of compliance is decreased where: a treaty obligation is ambiguous; where parties to the treaty have failed to clarify the obligation; or where punitive measures are imposed without proper consideration of the limited capacity of states.
While ambiguous treaty language assists the negotiation process, where obligations are critical to the integrity of the regime they need to be clearly articulated and particularized (Parker 2001). Failure to have a clear obligation undermines the legitimacy of imposing any punitive measures to encourage compliance. If the ‘duty to cooperate’ means something less than an obligation to ‘comply or refrain’, then the international community must design a governance arrangement that provides the necessary incentives for states to consensually adopt such an obligation.
It will also be necessary to design transparent processes for imposing punitive measures or delivering positive incentives. Ensuring that a decision-making body has the ability to impose measures that are contrary to some states’ self-interest will be fundamental if punitive measures are to play a role in achieving compliance. For this to be achieved decision-making by consensus may be, of necessity, replaced by majority vote in this context. A forum for open discussion of compliance and non-compliance would also be essential in motivating state compliance. Compulsory dispute resolution mechanisms will continue to play a central role in resolving ambiguity and non-compliance issues (Parker 2001).
5.4 Applying the principle of capacity
Capacity to comply is a necessary ingredient of compliance where non-parties are developing states (Joyner 1999). When developed states have undertaken to build the capacity of developing states so that they can meet their obligations, failure to deliver on that obligation will decrease the likelihood of compliance.
Regulatory frameworks are designed to manage international issues over time. While fisheries arrangements should not be viewed as merely ‘aspirational’ there needs to be a recognition that all states are not equal in development and that compliance with the rules will be influenced by the social, political and economic situation of each state and, therefore, achieving compliance will take time (Chayes and Chayes 1995).
States may lack the technical ability to meet their obligations to participate in a sophisticated regulatory regime. Alternatively, states may not have the infrastructure or financial resources to establish a domestic fisheries compliance regime. When nine of the ‘top ten’ flags of convenience are classified as developing states, irrespective of the political will to comply, non-compliance is inevitable (Joyner 1995).
The principle of capacity implies that when the non-party is a developing state, the likelihood of compliance is decreased if compliance with the obligation to ‘comply or refrain’ requires a sophisticated domestic regulatory regime. The extent to which capacity of states needs to be developed depends upon the degree of responsibility that remains with the flag state under the management regime. Robust monitoring, surveillance and enforcement underpin effective fisheries management. With fishing activity being difficult to control and enforce, enforcement authorities have relied heavily on electronic data and verification (Parker 1999). Capacity building may involve building the individual capacity of each developing state or developing a multilateral regulatory and compliance capacity. If flag states were to retain exclusive jurisdiction over their vessels, capacity building through the transfer of expert knowledge and technical assistance would be as essential as financial assistance. There would need to be a long-term commitment to capacity building to ensure that all states have the ability to move with the times as the regulatory regime refines and develops (Parker 1999).
Before determining a future design the concept of flag states retaining exclusive jurisdiction should be examined and debated. Building international capacity rather than state capacity has economic advantages, but potentially challenges state sovereignty.
6. CONCLUSIONS
It is tempting to employ domestic solutions to fix international problems. However, it is essential officials understand international relations and the role of international dynamics in achieving compliance with management regimes and conservation measures. The principles of compliance outlined in this paper provide a framework for assessing the likelihood of compliance, and a mechanism to explain and predict compliance with international governance regimes.
Sustainable utilisation and effective management of high-seas fish stocks requires compliance with the obligation to ‘comply or refrain’ and states are more likely to engage in non-compliant activity when the regime fails to deliver on the principles of compliance. Ambiguity of obligation, lack of effective punitive measures to discourage non-compliance, lack of positive incentives to encourage compliance, and lack of technical knowledge and resources all pull towards non-compliance.
The focus of the international community is now turning to managing purely high-seas fish stocks and states must take the opportunity to examine how they can gear high-seas fisheries management regimes to deliver compliance with the obligation to ‘comply or refrain’. This paper has begun that examination. The challenge for officials is to design a structure fit for the purpose without being constrained by what have been considered appropriate solutions in the past.
7. LITERATURE CITED
Anand, R.P. 2001. Freedom of the Seas: Past, Present and Future. Published in H. Caminos (Ed). The Library of Essays in International Law of the Sea. The Cornwell Press, Great Britain.
Applebaum, B. & A. Donohue 1999. The Role of Regional Fisheries Management Organizations. Published in Ellen Hey (Ed) Developments in International Fisheries Law. Kluwer Law International, Netherlands.
Ardia, D.S. 1998. Does the Emperor Have No Clothes? Enforcement of International Laws Protecting the Marine Environment. Michigan Journal of International Law 497.
Balton, D.A. 1999. The Compliance Agreement. Published in Ellen Hey (Ed) Developments in International Fisheries Law. Kluwer Law International, Netherlands.
Bratspies, R. 2001. Finessing King Neptune: Fisheries Management and the Limits of International Law. Harvard Environmental Law Review 213.
Brownlie, I. 1998. Principles of Public International Law. 5th edition, Oxford University Press, Great Britain.
Carr, C.J. & H.N. Scheiber 2002. Dealing with a Resource Crisis: Regulatory Regimes For Managing the World’s Marine Fisheries. Stanford Environmental Law Journal 45.
Charney, J.I. 1993. In: Universal International Law. 87 The American Journal of International Law 529.
Chaves, L.A. 2001. Illegal, Unreported and Unregulated Fishing: WTO Consistent Trade Related Measures to Address IUU Fishing. In Report of and Papers Presented at the Expert Consultation on Illegal, Unreported & Unregulated Fishing. FAO, Rome.
Chayes, A. & A. Handler Chayes 1995. The New Sovereignty. Harvard University Press, Massachusetts.
Dailey, V. 2000. Comment: Sustainable Development: Reevaluating the Trade-Turtles Conflict and the WTO. Journal of Transnational Law & Policy 331.
Edeson, W. 2001. Tools to Address IUU Fishing: The Current Legal Situation. In Report of and Papers Presented at the Expert Consultation on Illegal, Unreported and Unregulated Fishing. FAO, Rome.
FAO 1999. The State of World Fisheries and Aquaculture 1998. FAO, Rome. 31pp.
FAO 2001. In Report of and papers presented at the Expert Consultation on Illegal, Unreported and Unregulated Fishing. Fisheries Report No. 666. FAO, Rome (Italy). Fishery Policy and Planning Div. 306pp.
Franckx, E. 2000. Pacta Tertiis and the Agreement for the Implementation of the Straddling and Highly Migratory Fish Stocks Provisions of the United Nations Convention on the Law of the Sea. Tulane Journal of International and Comparative Law 49.
Hardin, G. 1968. The Tragedy of the Commons. Science 162: 1243-1248.
Hewison, G. 1999. Balancing the Freedom of Fishing and Coastal State Jurisdiction. Published in Ellen Hay (Ed) Developments in International Fisheries Law. Kluwer Law International, Netherlands.
Joyner, C.C. 1999. Compliance with and Enforcement of International Fisheries Law. Published in Ellen Hey (Ed) Developments of International Fisheries Law. Kluwer Law International, Netherlands.
Juda, L. 1997. The 1995 United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A Critique. 28 Ocean Development & International Law 147.
Kelly, J.P. 2001. III Institutional Concerns of an Expanded Trade Regime: Where Should Global Social and Regulatory Policy be Made?: The WTO and Global Governance: The Case for Contractual Treaty Regimes. Widener Law Symposium 109.
Komatsu, M. 2001. The Importance of Taking Cooperative Action Against Specific Fishing Vessels that are Diminishing the Effectiveness of Tuna Conservation and Management Measures. In Report of and Papers Presented at the Expert Consultation on Illegal, Unreported and Unregulated Fishing. FAO, Rome.
Lobach, T. 2001. Measure to be Adopted by the Port State in Combating IUU Fishing. In Report of and Papers Presented at the Expert Consultation on Illegal, Unreported & Unregulated Fishing. FAO, Rome.
McDorman, T.L. 1999. Fisheries Conservation and Management and International Trade Law. Published in Ellen Hey (Ed) Developments in International Fisheries Law. Kluwer Law International, Netherlands.
McLaughlin, R.J. 1997. Settling Trade-Related Disputes Over the Protection of Marine Living Resources: UNCLOS or the WTO? 10 Georgetown International Environmental Law Review 29.
Moran, P. 1995. High Seas Fisheries Management Agreement adopted by the UN Conference: the final session of the United Nations Conference on Straddling and Highly Migratory Fish Stocks, New York, 24 July-4 August 1995. Ocean & Coastal Management. 27:217.
Munro, G. 2003. On the Management of Shared Fish Stocks. A paper prepared for the Norway-FAO Expert Consultation on the Management of Shared Fish Stocks (Norway, 7-10 October 2002).
Orebech, P., K. Sigurjonsson & T.L. McDorman 1998. The United Nations Straddling and Highly Migratory Fish Stocks Agreement: Management, Enforcement and Dispute Settlement. The International Journal of Marine and Coastal Law, 13(2) 119.
Ostrom, E., J. Burger, C.B. Field, R.B. Norgaard & D. Policansky 1999. Revisiting the Commons: Local Lessons, Global Challenges. 284 Science 278, 278.
Owen, S.C. 2000. Might A future Tuna Embargo Withstand a WTO Challenge in Light of the Recent Shrimp-Turtle Ruling? Houston Journal of International Law 123.
Parker, R.W. 1999. The Use and Abuse of Trade Leverage to Protect the Global Commons: What We Can Learn from the Tuna-Dolphin Conflict. Georgetown International Environmental Law Review 1.
Parker, R.W. 2001. The Case for Environmental Trade Sanctions. Widener Law Journal Symposium 21.
Polick, I.J. 2001. Are there Really Plenty of Fish in the Sea? The World Trade Organization’s Presence is effectively Frustrating the International Community’s Attempts to Conserve the Chilean Sea Bass. Emory Law Journal 939.
Rayfuse, R. 1999. "The Interrelationship Between the Global Instrument of International Fisheries Law" published in Ellen Hey Developments in International Fisheries Law (Kluwer Law International, Netherlands).
Scott, G.L. & C.L Carr 1996. Multilateral Treaties and the Formation of Customary International Law. Denv. J. International Law & Policy 71-94.
Shaw, M.N. 1997. International Law. Fourth edition, Cambridge University Press, United Kingdom.
Sydnes, A.K. 2002. Regional Fishery Organizations in developing Regions: Adapting to Changes in International Fisheries Law. 26 Marine Policy 373-381.
Sydnes, A.K. 2001. Regional Fisheries Organizations: How and Why Organizational Diversity Matters. Ocean Development & International Law 349.
Upton, S. & Vitalis, V. 2003. Stopping the High Seas Robbers: Coming to Grips with Illegal, Unreported and Unregulated Fisheries on the High Seas. prepared for the Round Table on Sustainable Development.
Vigneron, G. 1998. Compliance and International Environmental Agreements: A Case Study of the 1995 United Nations Straddling Fish Stocks Agreement. 10 Georgetown International Environmental Law Review 581-623.
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[96] The views expressed in
this paper are those of the author and are not necessarily those of the Ministry
of Fisheries. [97] Sydnes (2001) has identified three types of regional fisheries organizations - organizations focused on facilitating cooperation, organizations focused on developing regional policy, coordination and development and regional fisheries management organizations. [98] Art. 9 of the United Nations Agreement on Fish Stocks provided for the establishment of regional fisheries management organizations for straddling and highly migratory fish stocks. This model has been implemented in the recently concluded Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (concluded 2000) and the Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean (concluded 2001). Art. 33.3 of UNFSA requires parties to take measures consistent with International Law to deter the activities of non-parties, which undermine the effective implementation of the Agreement. [99] Both of these concepts are contained in Art. 17 of UNFSA. [100] See the conservation and management measures of the Commission for the Conservation and Management of Antarctic Marine Living Resources, and the International Commission for the Conservation of Atlantic Tunas and the measures taken by Chile pursuant to the Galapagos Agreement. [101] See Articles 65 to 76 of the FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU). [102] Parker (1999) states: "However, there are two main weaknesses of IR theory: a proliferation of competing models; and the failure, so far, of IR theorists to address the special case of environmental trade leverage. The first weakness has impeded efforts to arrive at a single, comprehensive model of international behaviour; the second, regrettably, has marginalized IR theory as a guide to trade and the environment." [103] Hardin suggested "The rational user of a commons makes demands on a resource until the expected benefit of his or her actions equal the expected costs. Because each user ignores costs imposed on others, individual decisions cumulate to a tragic overuse and potential destruction of an open-access commons." Those commentators go on to state "Although tragedies have undoubtedly occurred, it is also obvious that for thousands of years people have self-organized to manage common pool resources, and users often devise long-term, sustainable institutions for governing these resources." [104] Bratspies (2001) notes that some rules of customary international law are considered so important they are classified as principles of jus cogens and take primacy over others. [105] See Chayes & Chayes (1995) Pacta sunt servanda is a fundamental norm of international law providing that treaty obligations are to be obeyed. [106] The other reason was ambiguity of the rule (addressed in this paper under perceived merits). [107] See the UNFSA and the FAO Compliance Agreement, Art. VII "The parties shall cooperate, at a global, regional, subregional or bilateral level, and, as appropriate, with the support of the FAO and other international or regional organizations, to provide assistance, including technical assistance, to Parties that are developing countries in order to assist them in fulfilling their obligations under this Agreement." [108] In full "The Agreement for the Implementation of 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". [109] Hugo Grotius propounded this doctrine. See Anand (2001). [110] There are currently 142 parties to the 1982 Convention and while the United States of America is yet to ratify the convention, the Convention is recognized as the living constitution of the oceans. [111] See also UNFSA, Art. 9(1)(d) and Art. 10(h). As an example, the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific (WCPT) establishes a Commission; a scientific committee; and a technical and compliance committee. [112] CCAMLR contracting parties are - Argentina, Australia, Belgium, Brazil, Chile, European Community, France, Germany, India, Italy, Japan, Republic of Korea, Namibia, New Zealand, Norway, Poland, Russian Federation, South Africa, Spain, Sweden, UK, Ukraine, USA and Uruguay. [113] See <http://www.itf.org.uk.seafarers/foc/Bodyfoc,html>. The International Transport Workers Federation identifies the following countries as flags of convenience - Antigua and Barbuda Bahamas, Barbados, Belize, Bermuda, Bolivia, Burma/Myanmar, Cambodia, Cayman Islands, Comoros, Cyprus, Equatorial Guinea, Germany (second register), Gibraltar, Honduras, Jamaica, Lebanon, Liberia, Malta, Marshall Islands, Mauritius, Netherlands Antilles, Panama, Sao Tome and Principe, St. Vincent & The Grenadines, Ski Lanka, Tonga and Vanuatu. Of these 29 States, only 5 have not enter into a treaty ‘duty to cooperate’ in respect of high seas fishing. [114] See <http://www.traffic.org/toothfish/tooth2.html>. [115] See <http://archive.greenpeace.org/oceans/piratefishing/dodgingrules.html>. [116] The Pacta tertiis rule is both a rule of customary international law and codified in the Vienna Convention on the Law of Treaties. [117] Rayfuse (1999) cites the case concerning Gabeikovo-Nagymaros Project (Hungrey/Slovakia) ICJ, 25 September 1997, para 140 "Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing activities of the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development". [118] Chaves suggested that regional fisheries management organizations should implement a trade certification scheme "whose goal is to allow commerce in only legally harvested fish", missing the point that non-party fishing is unregulated, not illegal according to the IPOA-IUU. [119] E.g. Art. 15(4) of the Convention for the Conservation of Southern Bluefin Tuna (concluded May 1993); Art. XII(3) of the Convention on the Conservation and Management of Pollock Resources Central Bering Sea (concluded June 1994); Art. 22(3) of the Convention on the Conservation and Management of Fishery Resources in the South East Atlantic Ocean (concluded November 2000). [120] See <http://achieve.greenpeace.org/oceans/piratefishing/troubleahead.html>. [121] See NOAA 96-76 press release "The import bans represent the first time multilateral measures have been authorized by an international fishery management organization to enforce compliance with conservation rules." <http://www.publicaffairs.noaa.gov/pr96/nov96/noaa96-76.html>. [122] Recommendation by ICCAT Regarding Belize and Honduras Pursuant to the 1994 Bluefin Tuna Action Plan Resolution (96-11). This recommendation entered into force on 4 August 1997 and the measures were to be effective from that date. In 1999 a import ban was recommended against Belize and Honduras in respect of swordfish, see Recommendation by ICCAT Regarding Belize and Honduras Pursuant to the 1995 Swordfish Action Plan Resolution (99-9), which entered into force on 15 June 2000. In 2000 a further import ban was imposed against Belize, Cambodia, Honduras, St. Vincent & Grenadines in respect of Atlantic bigeye tuna, see Recommendation by ICCAT Regarding Belize, Cambodia, Honduras, and St. Vincent & Grenadines Pursuant to the 1998 Resolution Concerning the Unreported and Unregulated Catches of Tuna by Large-Scale Longliner Vessels in the Convention Area. [123] Recommendation by ICCAT Regarding Panama Pursuant to the 1994 ICCAT Bluefin Tuna Action Plan Resolution (96-12). This recommendation entered into force on 4 August 1997, but measures were not to take effect until 1 January 1998. [124] NOAA Press Release 97-R158 "US Bans Bluefin Tuna Imports From Three Nations Fishing in Violation of ICCAT" <http://www.noaa.gov/public-affairs> which stated "While no Atlantic bluefin tuna are currently imported into the United States from these countries, a formal prohibition against such imports was necessary to close the potential market and to support the anticipated actions of other ICCAT member countries such as Japan. Japan imports about 90 percent of the world’s bluefin tuna harvest." [125] E.g., Conservation Measure 41-02 (2002) set a total allowable catch of 7 810 t for the Dissostichus eleginoides fishery in Statistical Sub-area 48.3 for vessels using longliners and pots only; Conservation Measure 41-03 (1999) setting a total allowable catch of 28 t for the D. eleginoides fishery in Statistical Sub-area 48.4. Access to these areas are regulated by coastal States. [126] For example, Conservation Measure 41-04 (2002) limiting the toothfish fishery in Statistical Sub-area 48.6 to exploratory longline fishing by Japan, New Zealand and South Africa, and setting a precautionary catch limit at 455 t; Conservation Measure 41-05 (2002) limiting the toothfish fishery in Statistical Sub-area 58.4.2 to exploratory longline fishing by Australia, and setting a precautionary catch limit of 500 t. [127] For example, Conservation Measure 41-03 (1999) limiting the Dissostichus mawsoni fishery in statistical Sub-area 48.4 to scientific research only. [128] For example, Conservation Measure 32-09 (2002) "Prohibiting of Directed Fishing for Dissostichus spp. Except in accordance with Specific Conservation Measures in the 2002/03 Season". [129] CCAMLR Conservation Measure 10-03 (2002) Port Inspections of Vessels Carrying Toothfish. [130] CCAMLR Conservation Measure 10-03, paragraph 1. [131] CCAMLR Conservation Measure 10-03, paragraph 1. [132] CCAMLR Conservation Measure 10-03, paragraph 3. [133] CCAMLR Measure 10-05 (2002) Catch Documentation Scheme for Dissostichus spp. [134] CCAMLR Conservation Measure 10-07 (2002) Scheme to Promote Compliance by Non-Contracting Party Vessels with CCAMLR Conservation Measures, par. 3. [135] Report of the Twentieth Meeting of the Commission, Hobart, Australia, 22 October-2 November 2001, CCAMLR XX, 132. [136] CCAMLR Conservation Measure 10-07 (2002) Scheme to Promote Compliance by Non-Contracting Party Vessels with CCAMLR Conservation Measures. [137] Order of the ITLOS "Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean" 20.12.2000. [138] Order of the ITLOS "Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean" 20.12.2000. [139] US Shrimp-Turtle case (Appellate Body). [140] US Shrimp-Turtle case (Appellate Body). [141] 46 US Shrimp-Turtle case (Appellate Body). [142] Fisheries Act 1996, Antarctic Marine Living Resources Act 1981, Fisheries (Toothfish Catch Documentation Scheme) Regulations 2000, Customs Import Prohibition (toothfish) Order 2003, and Customs Export Prohibition (toothfish) Order 2003. [143] Section 2, Customs Import Prohibition (toothfish) Order 2003; Regulation 4, Fisheries (toothfish Catch Documentation Scheme Regulations) 2000; Section 4, Customs Export Prohibition (toothfish) Order 2003. [144] Fisheries (Toothfish Catch Documentation Scheme) Regulations 2000, Regulations 8 and 9. [145] 50 Antarctic toothfish can only be taken in the convention area, however Patagonian toothfish can be taken beyond the convention area. See <http:www.niwa.co.nz/ncfa/fau/2003-06/>. [146] CCAMLR Resolution 18/XXI Harvesting of Dissostichus eleginoides in Areas Outside the Coastal State Jurisdiction adjacent to the CCAMLR Are in FAO Statistical Areas 51 and 57. [147] CCAMLR Resolution 18/XXI Harvesting of Dissostichus eleginoides in Areas Outside the Coastal State Jurisdiction adjacent to the CCAMLR Are in FAO Statistical Areas 51 and 57. [148] Compare this to what occurred at the twenty-first meeting of the CCAMLR Commission, the Commission noted "the extensive work conducted by the Secretariat in cooperation with non-Contracting parties", although, it did not elaborate on the nature and extent of this work. Spain advised that over the past two and a half years it had sent letters to IUU vessel flag States, calling on the States to "comply with their obligations under international law". Spain recommended that other members also engage in that type of diplomatic action and offered to circulate their standard letter. [149] Recommendation by ICCAT Regarding Equatorial Guinea Pursuant to the 1996 Recommendation Regarding Compliance in the Bluefin Tuna and North Atlantic Swordfish Fisheries (99-10). |
