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Legal implications and options for regional cooperative arrangements for the management of coastal and oceanic large pelagic resources for CARICOM states

Blaise Kuemlangen


FAO was asked to provide technical assistance to CARICOM states under project TCP/RLA/0070 (the project) in order to enable them to plan urgently the sustainable development of their fisheries for large pelagic species. The terms of reference of the Development Law Service - as provider of legal technical assistance under the project - were to “undertake a study of the benefits and technical and legal implications of alternative institutional arrangements, including joining ICCAT, for the management of: (i) coastal; and (ii) oceanic large pelagic resources”.

Thus the basic parameter was consideration of arrangements on the basis of these two groups of pelagic species in CARICOM, set out in the project. This grouping is further emphasized throughout the remaining chapters of this report, most importantly in the final chapter, which develops options for regional cooperative arrangements for the management of the identified stocks. The study also examined the international legal basis for such management options, as identified in FAO (2002), with a view to confirming those options or otherwise identifying the means by which they could be accommodated. Legislative implications of the options were also discussed where appropriate.

International law on cooperation for the management of fish stocks in the CARICOM region

Two basic principles of international law are responsible for determining the options for regional cooperation in the management of identified stocks or, indeed, whether the stocks concerned can be grouped into two categories for the purpose of regional cooperation in conservation and management in the CARICOM region. These principles of international law are that states are bound only by: (i) established international law; and (ii) international agreements (bilateral or multilateral) to which they are a party. This statement may be so simplistic as to seem obvious, but it should be kept in mind in this discussion for reasons that will later become clear.

International law principles governing fisheries conservation and management, and international cooperation for such conservation and management, are primarily found in the LOSC. Other related international agreements, particularly those based on the LOSC, and non-binding instruments are also relevant to this discussion. In reality, however, only agreements among states can be of any binding influence and, even then, it is only to the extent that they restate principles of international law or are in force for the parties. Nevertheless, states are bound by another principle of international law: not to undermine international agreements that are not in force or to which they are not parties. States can choose to “give effect” to international agreements to which they are not parties and which therefore are not binding on them. This is also the basis for states giving effect to non-binding or voluntary instruments.

The related international agreements in the regime for conservation and management of fisheries are the Compliance Agreement and the Fish Stocks Agreement. The nonbinding international instrument of major significance is the Code of Conduct. This paper will not discuss non-binding international law instruments; however, they have an important role to play in the conservation and management of living marine resources (Edeson, 1999). They lend support and legitimacy to the overall management regime through the manner in which they were negotiated and adopted, as well as through restating and re-emphasizing the objectives and principles enshrined in binding instruments and vice versa. The Code of Conduct and its supporting technical guidelines,[1] as well as the four international plans of action[2] established under the auspices of FAO, provide detailed guidance on the implementation of certain principles or approaches to conservation and management of fisheries resources at the national level.

Law of the Sea Convention

International cooperation for the conservation and management of marine living resources through regional fisheries organizations (RFOs) has its legal basis in the United Nations Charter (Kwiatkowska, 1990). However, it is probably since the negotiations for the LOSC that international cooperation at the regional level has become a recognizable trend (Lugten, 1999), while the collective effect of the LOSC provisions[3] brings such cooperation to prominence. International cooperation in the management of living resources occurs in the context of the basic rules established for management of these resources under the LOSC. The rules stipulate that:

It is noted in the present report that most if not all of the large pelagic species of concern under the project are highly migratory. That being the case, Article 64 of the LOSC is immediately relevant.

A brief analysis of Article 64 juxtaposed with Article 56 and Article 62 (rights of coastal states) would provide the following results:

It should be noted that Part V of the LOSC on the EEZ (Articles 55-75) is customary international law and therefore binding on states regardless of whether they are parties to the convention or not.

Compliance Agreement

The Compliance Agreement was initially conceived as an instrument to close a legal loophole in regional and species fisheries arrangements whereby fishing vessels could change their state of registration (“reflag”) in order to evade or avoid the obligations of such arrangements. The purpose of the agreement is to reinforce the effectiveness of international fisheries conservation and management measures (Moore, 1995) by promoting compliance. It does this through redefining and reinforcing the responsibility of flag states for the activities of fishing vessels flying their flags, particularly through the requirement that state parties do not allow the vessels flagged by them to fish on the high seas without authorization. It also seeks to ensure the free flow of information on all high-seas fishing operations. In support of the latter responsibility, state parties are required to: establish records of fishing vessels that they have authorized to fish on the high seas; cooperate in the exchange of information, including providing evidence of non-compliance; and submit specific information to FAO on the vessels they have flagged.

The Compliance Agreement is relevant here to the extent that it re-emphasizes international cooperation, primarily by requiring action by state parties, as flag states, to ensure compliance with international conservation and management measures. In the CARICOM region, such measures could include those established for the stocks in the region by a competent RFO.

It should be noted that the Compliance Agreement is not yet in force[4]. Even if it were, it would be binding only on the parties to the agreement, pursuant to the principle of international law relating to treaties referred to above. Despite this, some parties and non-parties to the agreement have started to give effect to it through legislation.

Fish Stocks Agreement

The Fish Stocks Agreement, as its full title suggests, seeks to implement the provisions of the LOSC relating to conservation and management of straddling fish stocks and highly migratory fish stocks. Its primary focus therefore is to ensure the conservation and management of Article 63 and Article 64 fish stocks in the zones beyond national jurisdiction, “unless otherwise provided”. Article 6 (on the precautionary approach) and Article 7 (on the compatibility of management measures established for the high seas with those for areas under national jurisdiction) shall also apply to those national areas. Similarly, coastal states are required to apply, mutatis mutandis, the general principles set out in Article 5 in the exercise of their sovereign rights concerning straddling and highly migratory fish stocks. In addition, the management frameworks that they weave are placed within the wider context of impact on the environment, preservation of marine biodiversity and the integrity of the marine ecosystem.

A summary follows of the main elements of the Fish Stocks Agreement in the context of the discussion of options for regional cooperation:

It is obvious that the Fish Stocks Agreement is highly relevant to the issue at hand, in particular the provisions relating to cooperative conservation and management of straddling and highly migratory fish stocks through subregional and regional fisheries management organizations (Part III, Articles 8-16). Its relevance depends on its relationship to the LOSC and on how it should be followed, if at all, in determining options for regional management for CARICOM states - taking into account the circumstances and developments in the region with respect to regional cooperative arrangements.

Brief comparison of the Law of the Sea Convention and the Fish Stocks Agreement

It should be remembered that while the Fish Stocks Agreement purports to implement the LOSC and is therefore related to it, it has its own entry into force procedures and as such is very much an autonomous agreement. Consequently, it binds only the parties to the agreement. However, as has been noted in the case of the Compliance Agreement, while the Fish Stocks Agreement is only binding on the parties, it can nevertheless be implemented by non-parties if they so choose. A basic comparison is needed of the terms of the agreement with the provisions of the LOSC highlighted above in order to assess the impact that the latter should have on a decision to act in accordance with the Fish Stocks Agreement in the deliberation on options for regional cooperation.

Article 4 of the agreement stipulates, in confirmation of the intent as seen in its title, that nothing in the agreement shall prejudice the rights, jurisdiction and duties of states under the convention and that the agreement shall be interpreted and applied in the context of and in a manner consistent with the convention. However, while the agreement confirms the basic LOSC principle that special rules apply to conservation and management of straddling and highly migratory fish stocks, from the start it goes further than the LOSC in placing emphasis on long-term conservation and sustainable use, rather than optimum utilization. The agreement also introduces the new concepts of the precautionary approach and of compatibility of measures in areas under national jurisdiction and on the high seas.

Of importance to this discussion is that the agreement refers to “highly migratory fish stocks” rather than “highly migratory species”, thus broadening the range of the resources to which the agreement applies.

It also confirms the obligation under the LOSC to cooperate in the conservation and management of straddling and highly migratory fish stocks. However, the agreement makes this duty contingent on the compatibility of measures within and beyond EEZs by taking into account:

Moreover, the agreement elaborates a process for cooperation, most of which is arguably helpful in fulfilling the duty to cooperate under the LOSC and thus not inconsistent with it. However it introduces new concepts and language into this duty by:

The basic obligations of coastal states - to cooperate with fishing states for the conservation and management of highly migratory fish stocks and that such cooperation be done through a competent regional body - are established under the LOSC and reaffirmed in the Fish Stocks Agreement. The latter adds further requirements for states in fulfilling their duty to cooperate.

The minimum action to be taken by CARICOM states is to comply with the LOSC. If they choose to meet the cooperation requirements of the Fish Stocks Agreement, even though not parties to it, they will also be meeting the minimum requirements of the LOSC although they will obviously be requiring more of themselves. However, the question of whether CARICOM states choose to meet the cooperation requirements of the Fish Stocks Agreement becomes redundant in the context of the CRFM, which refers to awareness of CARICOM states of the agreement, indicating that they shall at least observe it. In addition, three CARICOM states, i.e. the Bahamas, Barbados and Saint Lucia, are already parties to the agreement, and indications are that more will become parties, making this a non-issue. This does not mean, however, that they can require that fishing states that are not parties to the Fish Stocks Agreement also meet its requirements in the region.

Thus the real question for this issue of regional cooperation, in the context of the above discussion, is whether there is an appropriate (competent) RFO established, of which the CARICOM states should be members, or is there a need to establish one?

Existing regional fisheries entities and options for future cooperation mechanisms

Western Central Atlantic Fishery Commission

The Constitution of the Food and Agriculture Organization of the United Nations provides that the Organization shall promote and, where appropriate, recommend national and international action with respect to, inter alia, conservation of natural resources and scientific, technological, social and economic research; improvement of education and administration; and the spread of public knowledge as these subjects relate to nutrition and food. Under this general mandate, FAO regional fishery bodies are established under Article VI (Article VI bodies) and Article XIV (Article XIV bodies) of the FAO Constitution. Article VI (1) allows the FAO Conference or Council to establish commissions or regional commissions “to advise on the formulation and implementation of policy and to coordinate the implementation of policy”. Article VI (2) provides that the FAO Conference, Council or Director General may establish committees and working parties to “study and report on matters pertaining to the purpose of the Organization”.

Article VI bodies are dependent on the Organization for financial and secretarial support. They do not have an autonomous budget and their expenses are met by FAO’s regular programme and ad hoc voluntary contributions by Member Nations. The terms of reference and reporting procedures of these bodies are determined by the FAO Conference or Council. Within the specific mandates provided by Article VI, the commissions or committees established under this article can only perform advisory functions and cannot perform any direct management functions (Marashi, 1996).

Article XIV bodies, which are established under agreements approved and submitted to Member Nations of FAO, have a legal life of their own. Their constitutions can provide for different and greater contractual obligations among parties, which extend beyond the obligations assumed under the FAO Constitution. The constitutions of Article XIV bodies (such as the Asia-Pacific Fisheries Commission, General Fisheries Commission for the Mediterranean and Indian Ocean Tuna Commission) provide an opportunity for a more interventionist role in fishery conservation and management.

The basic differences between the two types of bodies are formally set out, and the FAO Committee on Fisheries had encouraged the conversion of Article VI bodies to Article XIV bodies so that FAO fishery bodies could perform a regulatory role. It can be argued, however, that the effectiveness of both types of bodies depends more on the political will of members to act for conservation and management than on the prescribed mandate.[5] In addition, a dynamic secretariat with adequate resources could facilitate a more proactive role by an FAO fishery body. This weakness had been particularly noted with regard to Article XIV bodies at the committee’s twenty-second session in Rome, 17-20 March 1997 (FAO, 1997a).

The Western Central Atlantic Fishery Commission is one of the FAO fishery bodies established under Article VI of the FAO Constitution. It was set up to facilitate cooperation in the conservation and management of living resources in the area, especially shrimp. As has been noted by FAO (2002), WECAFC is the most appropriately structured for the conservation and management of fishery resources in the region from the perspective of its criteria for membership and current membership (comprising coastal states and fishing states). In this case, it should also be remembered that the fishery resources are large coastal and ocean pelagic resources. As an Article VI body, however, it does not have management/regulatory competence. In the context of the wider international legal framework, and considering the competence criteria for an RFO for highly migratory fish stocks, WECAFC can become a competent RFO as envisaged by the LOSC. FAO (2002) reports that the WECAFC working parties on Marine Fishery Resources and Fisheries Economics and Planning (FAO, 1998) both recommended that the commission consider altering its status from an Article VI to an Article XIV body, so that it would have management competence. However, at its meeting in September 1999, the commission decided that WECAFC would remain in its present form, as a body that provides a forum for technical exchanges and for provision of advice to the countries of the region.

International Commission for the Conservation of Atlantic Tunas

ICCAT was established in 1969 by the International Convention for the Conservation of Atlantic Tunas. Its mandate is to conserve tuna and tuna-like species resources (including all large pelagic species) in all waters of the Atlantic Ocean and adjacent seas (including the Caribbean, Mediterranean and Gulf of Mexico).[6]

It has been said that there could be one single competent RFO for all fisheries in the Caribbean or several RFOs for different types of resources. This proposition is generally true, but its viability depends on the species concerned and on whether or not it is already the subject of a regional management regime (based on the basic rules for the management of fishery resources under the LOSC). It has also been said that ICCAT is the only competent RFO for the management of shared straddling and highly migratory fish stocks. Given this background, the possibility of having a single organization for all fisheries (including shared straddling and highly migratory fish stocks) is ruled out. With respect to the other option (of having several RFOs), their creation, mandates or roles will be determined by the RFOs already established, in the context of the applicable international legal framework. The possibilities available with respect to the latter option pose not only a question of the international legal framework governing fisheries, but also, and perhaps more importantly, a question of operational efficacy and economics.

Caribbean Regional Fisheries Mechanism

The agreement to establish the Caribbean Regional Fisheries Mechanism was signed by the heads of governments of the Caribbean Community on 6 February 2002.[7] The mechanism was established in March 2003 with the following objectives:

The membership of the CRFM is open only to CARICOM states (member states of the Caribbean Community) and associate members of CARICOM (other states or territories within the Caribbean region admitted as associate members).

The above objectives and membership criteria characterize the CRFM as being:

Indeed, it appears that the designers of the CRFM had considered that there was already a competent body for the management of the shared straddling and highly migratory fish stocks in the region, or that if there was none, the CRFM was not to be such a body.[10] Rather, the designers of the CRFM saw its role as a facilitator for cooperation with, and through, such other competent body. This is further confirmed by the fact that membership in the CRFM is closed (which does not make it the body envisaged under Article 63 (2) or 64 of the LOSC and in the Fish Stocks Agreement) and that management action by the CRFM for resources other than shared straddling or highly migratory species is within the jurisdiction of CARICOM member states.

Considerations and options

Operation of the applicable rules of the international legal framework for fishery management, the constitutions of the existing RFOs and the nature of the resource concerned narrow the options for cooperation in the CARICOM region for shared large pelagic species, regardless of whether they are coastal or oceanic.

WECAFC’s constitution could be revised so that it becomes a cooperative management/regulatory body for the CARICOM region with respect to resources other than shared straddling or highly migratory species, already under the mandate of ICCAT. The strategy that was outlined in the commission’s tenth session recalls the decision of its members to maintain WECAFC as an Article VI body, but invites them to reconsider reconstituting it as an Article XIV body. From a legal standpoint, this option is still open, although its viability will have to be reassessed in the light of the establishment of the CRFM. A related issue for consideration, and which merits a detailed study, is the mandates and roles of WECAFC and the CRFM, their relationship, and the relationship between them and the competent RFO. Only a limited aspect of this issue is discussed below, because it is beyond the scope of this paper to provide a comprehensive analysis.

It can be argued forcefully that the CRFM cannot be the competent RFO for shared straddling or highly migratory fish stocks, whether coastal or oceanic pelagic resources, for the reasons given above in the discussion of the CRFM and for the primary reason that it is inconsistent with the LOSC and the Fish Stocks Agreement (in respect of the parties or potential parties to that agreement). This does not mean that it cannot play a role in management of these resources, but such a role would have to be performed so as to complement the work of the competent RFO. As an analogy for such a role, one can look to the situation in the central and western Pacific region. The Forum Fisheries Agency (FFA) had been established to undertake a largely coordinating and advisory role[11] for the Pacific coastal states, but it also negotiated and adopted a convention,[12] together with fishing states, for the conservation and management of highly migratory fish stocks of the western and central Pacific Ocean.[13]

From a legal standpoint, therefore, regionwide cooperation in CARICOM through/ within the ICCAT framework seems to be the only viable option for the conservation and management of all large pelagic resources (if they are shared straddling and highly migratory fish stocks or tuna and tuna-like species). The following are some considerations for facilitating CARICOM states’ participation.

The current structure of ICCAT provides that membership is open to individual states and the European Union. In addition to becoming a member of ICCAT, a contracting party can become a member of the panels on which most important decisions for the conservation and management of the relevant species are initiated. It is logical to expect that this is where CARICOM states would like to be represented and to effectively participate in the work of ICCAT towards achieving the commission’s objectives. It also appears possible that ICCAT could consider establishing a new panel or other mechanism within its framework for the conservation and management of large pelagic resources of the Caribbean Sea region. Such an option would allow ICCAT to make decisions, including measures that are stock- or species-specific throughout the range of each resource, but which take into account the peculiarities of the region in design as well as in implementation.

The related financial implications and the tangible benefits of membership in ICCAT are pertinent issues in a decision to join but they are beyond the scope of this study. Suffice it to note that new rules on allocation and financial contributions appear to be more favourable to developing country parties of ICCAT than the current mechanisms.

Role of subregional,“closed”fisheries bodies

As noted above, the CRFM and other similar, regional (“non-competent”) bodies could play an important and complementary role in ICCAT’s work. As a body established for CARICOM states, the CRFM will certainly be acting within its mandate to act as a forum for discussing ICCAT issues and coordinating the positions of these states regarding such issues, whether in ICCAT or other international fora.[14] CARICOM states are developing countries and may thus add support to initiatives placed before ICCAT by the developing country members for consideration and decision. The CRFM could be the medium for postulating developing country concerns and interests in a coordinated and cohesive manner.

It would also be within the right of a CARICOM state, party to ICCAT, to propose that ICCAT consider and agree on amendments to the rules and modus operandi of ICCAT itself if current ones are considered inappropriate. The current rules do not allow CARICOM states to have a representative entity. An in-depth study may need to be undertaken to determine if rules of membership or participation in ICCAT could be amended to allow CARICOM states to participate through such an entity (such as the CRFM) instead of as individual states. This approach might be problematic and may require more than changes to ICCAT rules, including possible amendments to the CARICOM constitution and to CARICOM’s character and competence as an international legal entity.

Legislative implications of implementing the identified options

In facilitating participation in the identified competent body, the main legislative implications for CARICOM states are the following: in relation to the enacting of enabling legislation, they would be bound, upon acceptance, by the convention establishing ICCAT; and in the same enactment, or amendment of existing legislation, they would provide for the implementation of applicable conservation and management measures established by the competent RFO.


An effective management of transboundary stocks that produces equitable benefits is important to fishing and coastal states alike. The concern becomes pressing where no or inadequate management of such stocks leads to overexploitation and, in rare cases these days, underutilization of certain stocks that do not benefit developing coastal states. In the prevailing scenario of ineffective management, it is inviting for states such as those in CARICOM to initiate unilateral management action. Indeed, it will be noted that many such initiatives, even though not validly based, have led to increased awareness and eventually improved management of the stocks concerned. However, these initiatives must eventually be replaced by legitimate, multilateral action based on the LOSC and related international fisheries agreements. The CARICOM states have not benefited, in their view, from the existing management regime for large pelagics of the Caribbean region. It is clear that this situation should be improved. But this can only be done through solutions for the regional management of these stocks that are compatible with and functional within the existing management regimes and, above all, consistent with international law. These results cannot be achieved without cohesive action by the CARICOM states, in collaboration with other Caribbean coastal states, states fishing in the region and members of ICCAT.

[1] FAO Technical Guidelines have been published on: Fishing operations; Fishing operations - vessel monitoring system; Precautionary approach to capture fisheries and species introduction; Integration of fisheries into coastal area management; Fisheries management; Fisheries management - conservation and management of sharks; Aquaculture development; Aquaculture development - good aquaculture feed manufacturing practice; Inland fisheries; Responsible fish utilization; Indicators for sustainable development of marine capture fisheries; Marine capture fisheries; and Deter, prevent and eliminate illegal, unreported and unregulated fishing.
[2] The four International Plans of Action are the International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries; International Plan of Action for the Conservation and Management of Sharks; International Plan of Action for the Management of Fishing Capacity; and International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing.
[3] These provisions are Article 61 - exercise of the rights of a coastal state in determining the total allowable catch within its EEZ; Article 62 - utilization of living resources within a state’s EEZ based on harvest capacity and the allocation of surplus; Article 63 - management of straddling stocks; Article 64 - management of highly migratory fish stocks; and Articles 116-120 - conservation and management of living resources of the high seas.
[4] The Compliance Agreement was not in force at the time of writing this article. In accordance with Article XI.1, the Agreement entered into force on 24 April 2003, date of receipt by the Director-General of FAO of the twenty-fifth instrument of acceptance.
[5] For example, the Fishery Committee for the Eastern Central Atlantic (CECAF), an Article VI body, has a tradition of being proactive in carrying out stock assessments and making recommendations with regard to sustainable fishing practices.
[6] This mandate includes about 30 species, among them some commercially important ones: Atlantic bluefin tuna, yellowfin tuna, albacore and bigeye tuna, skipjack tuna, swordfish, billfishes (such as blue and white marlins, sailfish and spearfish), the Spanish mackerel family (such as spotted Spanish mackerel and king mackerel), as well as small tunas (such as black skipjack, frigate tuna and Atlantic bonito).
[7] See Press Release 25/2002 on the CARICOM Web site:
[8] Emphases added.
[9] Article 4.
[10] This, however, is a matter of interpretation. Even if the interpretation is erroneous, the CRFM may be able to play a management role for shared straddling and highly migratory stocks, but only to the extent that the measures apply to areas under national jurisdiction.
[11] In practice, FFA member states have established conservation and management measures as recommendations for implementation by parties in areas under their national jurisdiction or through agreements.
[12] The Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, 5 September 2000.
[13] It should be noted that FFA was established before the adoption of the Convention, which established an RFO. The converse is true in the CARICOM region, where an RFO was established before the establishment of the CRFM.
[14] This is the kind of role that FFA performs for its members, in preparation for the discussion of issues in international organizations.

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