THEME 6
Review of existing policies and instruments

Towards a high-seas fishery management regime: vision and reality

D.M. Johnston
Emeritus Professor of Law
University of Victoria
P.O. Box 2400, Victoria BC, V8W3H7 Canada
<[email protected]>

1. IDEALISM AND REALISM IN FISHERY MANAGEMENT

Since the 1920s states have been trying to regulate ocean fishing outside territorial limits with a view to conserving commercially important stocks. The system of international fishery commissions established after the Second World War proved unable to achieve that goal in most cases. The global approach adopted at the First UN Conference on the Law of the Sea (UNCLOS I) in 1958 was no more successful. Bringing most of the world’s major fisheries under coastal state jurisdiction at UNCLOS III in the 1970s introduced a higher order of equity into the international law of fisheries, at least from the coastal state’s perspective, but not generally a much higher level of management effectiveness.

This history of frustrations should be uppermost in our minds as we try to come to grips with the prospect of a management regime for high-seas fisheries. Past efforts at international fishery management and conservation have not, of course, been totally unsuccessful, but the most accurate verdict is one of relative failure. The record of failure has been blamed on a wide variety of factors: overcapacity in the world fishing industry, the intensiveness of industrial fishing technology, the prevalence of national interest in a competitive domain, the unreliability of scientific data and predictions, the overambitiousness of fishery management goals, the inability or reluctance of national governments to control their fishing fleets, the difficulty of educating fishermen in conservation law and policy and so on.

Much of the present debate on world fishery management is heavily influenced by the idealism of ecologists and environmental ethicists. In the national sector, ecological and ethical concerns normally have to be balanced against industrial and communal interests. When the debate focuses on high-seas stocks, there may be less likelihood of the kind of balancing that is normally necessary for the formation of national fishery policy. So, on the one hand, there may be a better opportunity to place fishery management on an ideal, ecological and ethical, base than in national waters, but, on the other hand, there is a greater risk that relatively unfettered idealism will result in an unrealistic and unenforceable regime: another chapter in the history of frustrations. The challenge is to find a balance between idealistic and pragmatic expectations.

It has often been argued that the failure of international fishery management between the 1920s and 1970s was due in large part to the unrealistic language of international fishery management instruments: the language of biologically-defined goals and methods. It was discovered that the prescribed standards of evidence could not be met by most states, especially those with severely limited research and management expertise. Bringing in ecological language in place of discredited biological language may be supported by a growing number of scientists, but many non-scientists have reason for skepticism that the new language will prove to have any great political or operational credibility.

Recent calls for ecosystem-based fishery management have included appeals for the use of large marine ecosystems (LMEs) as units of international fishery management and for the establishment of marine protected areas (MPAs) beyond, as well as inside, limits of national jurisdiction. Recently Australia hosted an important workshop on marine biodiversity conservation requirements.^[150] Other significant initiatives are being taken to advocate a new, sophisticated, holistic approach to the management of high-seas fisheries. But, however attractive these ideas may be within the scientific and environmental communities, can they be "sold" to the negotiators of a new high-seas fishery management regime? If such a regime could be agreed to on paper, would it have a reasonable chance of becoming effective? What combination of "hard-law" and "soft-law" elements would be necessary to create realistic hopes of a reasonable degree of compliance with such a regime?

These are difficult questions; but perhaps a few preliminary observations may serve as a starting point in the Queenstown 2003 discussions.

2. GAPS IN THE SYSTEM OF INTERNATIONAL INSTRUMENTS

The legal and institutional difficulties involved in the design of a high-seas fishery management regime begin, of course, with the overall governance of the regime of the high seas. In its 1982 formulation, this regime retains the ancient principle of the freedom of fishing in the high seas, subject to the provisions of the UN Convention on the Law of the Sea (LOSC). Straddling stocks and highly migratory species were singled out for special attention and a major step in the direction was taken with the adoption of the United Nation’s Fish Stocks Agreement (UNFSA)^[151] in 1995. However, states that choose not to become parties to UNFSA are free from the constraints created by that legally binding instrument, which is now in force but still collecting ratifications. Moreover, UNFSA does not apply to "discrete" high-seas stocks, such as fisheries associated with seamounts beyond the 200-mile limits of the exclusive economic zone (EEZ). There are, therefore, "gaps" in the international treaty system that would have to be filled in order to create a "complete" regime specifically designed for the protection of high-seas fisheries.

The closest the international community has come to dealing generically with the conservation and management of high-seas fisheries (and other living resources) is in the rather general provisions of Section 2 of Part VII of the LOSC: Articles 116 to 120. Apart from the modest constraints of the Convention, states not bound by other treaty obligations, such as those of UNFSA and are free to fish on the high seas under Article 116. Articles 117 and 118 merely invoke a "duty to cooperate" in the conservation of high-seas living resources. Article 119 reproduces the general criteria set out for EEZ fishery conservation in Article 61. Article 120 makes the provisions of Article 65 applicable to marine mammals in the high seas.

There is not much here to build on. Ecologists will note the existence of ecological language on "associated or dependent species" in Article 119 (1)(b), which was added through the United States delegation’s proposal, suggested by the IUCN, at a late stage of negotiations at UNCLOS III. However, Section 2 of Part VII has very little mandatory force. It was not intended to. The challenge is how to design a regime that goes beyond Section 2, includes stronger and more modern provisions, and yet is likely to be accepted by most high-seas fishing states.

The orthodox approach would be to fill the "gap" with a single, legally binding instrument, but this may be the least likely way of capturing the consent of "culprit" states who could avoid conservation obligations by simply staying outside a consensual regime. The diplomatic alternative would be to design a regime in the form of a "package" consisting of two or more instruments, each an extension of existing instruments, containing both "hard law" and "soft law" in its elements.

The key norms that most would wish to incorporate into a high-seas fishery management regime already exist in a number of existing instruments. The LOSC, the UNFSA, Agenda 21, and the FAO Code of Conduct for Responsible Fisheries refer to such norms and goals as integrated ocean management, sustainability of ocean resources, the duty to cooperate, responsible fishing, the obligation to conserve, and the necessity for a precautionary approach to fishery development. Each of these instruments makes a distinctive contribution to the process of legal development. Each also has certain limitations. The package, ideally, would draw upon the strengths of each and reduce the importance of state consent given to any one legally binding instrument. The coexistence of two or more instruments that reflect the evolution of state practice, as far as most high-seas fishing states are concerned, would provide tangible evidence that the key responsibilities upon which effective high-seas fishery management will depend are becoming established in customary international law.

The 1982 United Nations Law of the Sea Convention, as we have seen, consists of general, "old-fashioned" provisions on high-seas fishery conservation and management. On the other hand, it is a legally binding, "hard law" instrument that is close to a "sacred text" of international law. By November 2004, it will become possible for any party to the LOSC to initiate the procedure of formal amendment under Article 312. Amendment to Section 2 of Part VII could be proposed thereafter by reference to other instruments in "soft law" form that could be negotiated within the next year or two. The purpose of the suggested package-making strategy would be to end up with amended high-seas fishery provisions of the LOSC that would be enforceable within the framework of Part XV on the settlement of disputes.

To circumvent the requirement for consent to a binding agreement, it may be useful for two kinds of non-binding instruments to be negotiated. One might be a Code of Conduct for Responsible High-seas Fisheries based on appropriate norms drawn from the existing FAO Code of Conduct for Responsible Fisheries, which is not presently applicable to the high seas. Language might also be taken from Agenda 21 and perhaps other sources. The second suggested new instrument might be a protocol to UNFSA, or an independent Statement of Principles Applicable to the Conservation and Management of High-seas Fisheries, whose purpose would be to extend some of the relevant norms and procedures of UNFSA now applicable to straddling stocks and highly migratory species to "discrete" high-seas fisheries.

3. THE QUESTION OF REGIME EFFECTIVENESS

Even if a high-seas fishery management regime could be assembled through a package-building strategy, as described above, what steps should be taken to reduce the risk of failure? What lessons have been learned from existing international regulatory regimes? The designers of the regime would have to concentrate on those aspects of regime-building that appear most likely to render such a package dysfunctional.

Scope: Care should be taken to avoid the trap of overextension. Because of the vastness of the high seas, encompassing more than half of ocean space by surface area, the enterprise might be rendered more credible if it were confined to straddling stocks, high migratory species and relatively shallow-water fish populations associated with seamounts. Most deepwater areas of the high seas are not sufficiently researched to produce a reliable database for fishery management purposes. Too many efforts to conserve fish in familiar waters have failed - in part because of unreliable data. Overreaching the capacity of the scientific research community in unfamiliar waters would be the best way to guarantee failure.

The concept of large marine ecosystems (LMEs) has been suggested as appropriate for defining the scope of ocean management systems, ensuring an integrated approach to the assessment, conservation and management of all living resources within a large area. The operational credibility of this concept is obviously less questionable outside limits of national jurisdiction in regions of the high seas uncomplicated by maritime boundaries. Yet the larger the marine ecosystem invoked as the unit of management, the larger the problems of effective management are likely to become. In short, the LME concept does not strengthen the case for a high-seas fishery management regime. Indeed it is more likely to weaken the practicality or operational credibility of the whole enterprise.

Compliance: A good deal of attention has been given in recent years to the range of positive and negative sanctions available to induce compliance with international environmental regimes. The idea of freedom of use of the high seas has been established for hundreds of years. States cannot be browbeaten into cooperation with a new regime designed to restrict or constrain high-seas fishing. Distant fishing states have been driven out of the offshore areas of foreign states that now come under the EEZ regime subject to the sovereign rights of the coastal state. We need the food protein available in the high seas. The question is how to design incentives likely to persuade high-seas fishing states - and their fleets - to comply with reasonable and potentially effective international management controls.

This is not the time or place to review alternative incentive programmes. It might, however, be suggested that a study of the future economics of high-seas fishing should be commissioned by FAO with a view to identifying the realistic role that incentives might play in the operations of internationally regulated fisheries within the framework of a high-seas fishery management regime.

It is unlikely that an incentives programme, however sophisticated, would be sufficient on its own to deter cheaters. Surely it will be necessary also to resort occasionally to sticks as well as carrots. It is for this reason that it is argued above that the final stage in the design of the regime must involve formal amendment of the LOSC, so that virtually all nation-states, as parties to that "constitutional" text, can be brought within the dispute settlement procedures created at UNCLOS III for breach of the amended provisions of Section 2 of Part VII.

Enforcement: Some may fear that the kind of regime envisaged is more likely to be undermined by "rogue" fishing vessels rather than by flag states. By this reasoning, the effectiveness of the suggested regime depends as much on enforcement measures as on an incentives programme. Some alternative enforcement strategies for application to "discrete" high-seas fisheries might be developed through analogy with straddling stocks.

Enforcement measures applied to extensive ocean areas are expensive undertakings. Only the most highly motivated states - fishing nations with the most at stake economically - will be prepared to contribute substantially to the establishment and maintenance of observation, inspection and related enforcement programmes. How many high-seas fishing states are likely to fall into this category of affluent and willing fishing states? Do we have an appropriate coalition at hand?

It may be necessary to resort to more innovative, affordable, alternative strategies. For example, is it possible that the insurance and banking sectors could be persuaded to deny coverage and financial services to blacklisted fishing vessels that have been identified as "persistent offenders"? The target would be vessels used for "illicit" or "irresponsible" high-seas fishing in clear contravention of FAO-endorsed efforts to regulate high-seas fishing in the global interest of marine resource conservation. Many states and international organizations would have to be willing to cooperate in the compilation of such blacklists. Since it is so easy to change vessel ownership and registration, it is important to understand that it is the vessels themselves that have to be blacklisted, so that new owners or states of registry cannot escape this system of financial sanctions.

Ethos: It may be that the approaches to the chronic problem of regime ineffectiveness are doomed to failure in the absence of a new ethos of sustainability applied to the high seas. As pressures on established commercial ocean fisheries continue to mount, and the threat of "fishery collapse" becomes more immediate, the appropriate global institutions will have to come together to launch a campaign to warn the world community of the imminence, or near-imminence, of ecocatastrophe in our ocean food production system.

Direful predictions of this kind are likely to be counterproductive unless backed up by strong scientific and economic evidence. Mere reference to the principle or rhetoric of precautionary avoidance is unlikely to carry the day, especially in the still-permissive domain of the high seas.

If a credible projection of present overexploitative trends were supported by the organized world community, then an ethos might evolve that would permit radical measures, such as unilateral intervention by a threatened coastal state, to deter culprit vessels from illicit misuse of the valuable living resources of the high seas.

4. AGENDA SETTING PRIORITIES

One thing is certain. Incrementalism cannot succeed. Only bold, innovative diplomacy supported by the most highly motivated high-seas fishing states can result in a potentially effective management system for high-seas fisheries, including the new category of discrete high-seas fisheries. Such an initiative should begin, perhaps, with the appointment of an international task force consisting of the most highly qualified and people respected in the field of fishery management. The task force would have to be mandated to review the complete range of approaches that might be taken to this regime-building challenge for high-seas fishery conservation and management.

One hopes that FAO and other global institutions such as UNEP and the Commission for Sustainable Development would be willing to work together in the call for such a task force. It might be the beneficiary of collective endorsement, with a cachet comparable to the UN Brundtland Commission in the 1980s and to the Stratton Commission of the United States of the 1960s. With the appointment of such a mechanism, the world community may be ready to assign priority to the problem of high-seas fishery conservation.