CHAPTER 2 - REVIEW OF ISSUES FOR THE CONTROL AND REDUCTION OF FISHING CAPACITY ON THE HIGH SEAS (Christopher Newton¹)

1. INTRODUCTION
2. REVIEW OF THE DIFFICULTIES IN ASSESSING HIGH SEAS CAPACITY
3. INTERNATIONAL LEGAL INSTRUMENTS RELATING TO THE CONTROL AND REDUCTION OF CAPACITY
4. MANAGEMENT APPROACHES TO THE CONTROL AND REDUCTION OF CAPACITY
5. ESTIMATES OF CAPACITY REDUCTIONS REQUIRED IN THE INDUSTRIAL FLEET
6. ALTERNATIVE MEASURES FOR CONTROL AND REDUCTION OF CAPACITY
7. POSSIBILITIES FOR THE MANAGEMENT OF CAPACITY INCLUDING STRENGTHENING REGIONAL COOPERATION
8. SUMMARY AND CONCLUSIONS
Note on Technology Coefficients
REFERENCES AND BIBLIOGRAPHY

¹ Fisheries Consultant, 1655 22^nd Street, West Vancouver, B.C. V7V4E2, Canada

Abstract: The excessive expansion of the industrial fishing fleet represents the greatest part of economic waste in fisheries. The actions required by states in exercising control over their fleet capacities are severe. Whereas there are no internationally agreed measures to cause states to control fishing capacity, it is evident that if the world fisheries situation does not show signs of improvement, international pressure on those states with the most capacity will increase and renewed emphasis will be given to the problems of high seas fisheries. The paper reviews major issues related to the assessment, control and reduction of fishing capacity with special reference to high seas fisheries and the legal instruments relating to the conservation and management of these fisheries.

1. INTRODUCTION

The situation of world fisheries, as reported by the Food and Agriculture Organization of the United Nations in 1993 (FAO, 1993) and 1995 (FAO, 1995), is not only dramatic in terms of the state of the world's fish stocks but also in terms of the size of the world's fishing fleet, its capacity, level of capitalization and operating losses. The situation was forecasted 30 years ago, when the 1967 FAO State of Food and Agriculture (FAO, 1967) noted the trend of over-exploitation of stocks in the north Atlantic and the shift of fishing effort to unexploited stocks in more distant areas. This effort had, during the intervening years, moved to the central Atlantic and then to the south Atlantic, just as the same patterns occurred in the Pacific and Indian Oceans.

The adoption of the UN Convention on the Law of the Sea in 1982 (1982 Convention) was not only in response to the pressures placed on stocks adjacent to coastal states by distant water fishing fleets, but a belief that the extension of fisheries jurisdictions to 200 n. miles would provide coastal states with the authority to manage the resources within their zones.

The FAO State of Food and Agriculture 1992 (FAO, 1993), in its review of marine fisheries a decade after the 1982 Convention, concluded that the difficulties experienced by international fishery commissions, the problems of excessive fishing effort, subsidies, enforcement and the need to reduce costs of fishing have expanded worldwide. “It would appear that although understanding of the problems is almost universal, practical solutions are relatively few.”²

² FAO, 1993. p. iv

³ UN, 1994b. p. 5

⁴ Ibid. p. 5

The FAO State of Food and Agriculture 1980 Special Chapter on Fisheries entitled “Marine Fisheries in the New Era of National Jurisdiction” considered that the effect of extensions in fisheries jurisdictions would result in a retrenchment in distant-water fishing vessels (FAO, 1980). In the 1992 Special Chapter, Marine Fisheries and the Law of the Sea: a Decade of Change (FAO, 1993), it was noted that there had been a continued investment in large scale fishing vessels capable of fishing great distances from port, and the significant growth in fishing effort on the high seas beyond the 200 n. mile limits. Only Germany had significantly retrenched, cutting its tonnage of fishing vessels by 80% by 1990, through government support for the retirement of vessels.

Annual catches by distant-water fishing states exceeded 8 million tonnes during the peak period 1972 - 1976 prior to unilateral extensions in fisheries jurisdictions to 200 n. miles. These levels were again reached by 1986 peaking at 9 million tonnes in 1989. With the formation of the former Republics of the USSR into independent states and the shift to market economies, the catch of those states dramatically decreased from 4.3 million tonnes in 1990 to 1 million tonnes in 1995, less than 25%. Less dramatic are decreases in catches by Japan, 30% since 1990. The other major countries fishing in areas not adjacent to their coasts are France, Republic of Korea, Poland, Spain and Taiwan Province of China, which collectively maintained their catch levels over the period 1990 - 1995 at just above 2 million tonnes.

The level of distant-water catches in 1995, 3.7 million tonnes, has declined from 16% in 1972 to 4% of total marine catches. Notwithstanding however, are the catches by coastal states in their adjacent areas but beyond the 200 n. mile limit of national jurisdiction, that are not reported as high seas catches. In certain areas the reduction in fishing activities of some distant-water states has been replaced by expansion of coastal state fleets within the area. For some areas, regional fishery bodies are able to identify catches both inside national jurisdictions and outside on the high seas. The level of catches by distant-water states is therefore not representative of the actual catches taken on the high seas.

For example, the 1990 catch of Chilean jack mackerel in the south-east Pacific area taken by states of the former USSR was 1 million tonnes out of a total catch of 3.8 million tonnes. In 1995, although over-all catches increased by 1 million tonnes, the catch by Chilean vessels increased by 2 million tonnes, and the states of the former USSR did not participate. Estimates of high-seas catches, therefore, based on the catches of distant-water fleets operating in non-adjacent areas, under-reports the actual level of catches. Both of the operating tuna commissions can report relatively accurately the tuna catches taken on the high seas, since reporting is by 1 degree or 5 degrees latitude and longitude squares. For FAO's statistical purposes, however, states report catches by FAO Major Fishing Area without description as to high seas area or coastal state jurisdiction.

Identification of fishing vessels operating on the high seas, with the exception of tuna vessels, is not available nor obligatory until the 1995 UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks (1995 UN Agreement) enters into force. Therefore, an analysis of the capacity of that part of the world's fishing fleet operating on the high seas is not possible at this time. It cannot be assumed that the largest of fishing vessels are dedicated for high seas fishing, but it can be assumed that all vessels 100 GT and over, or 24m and greater, can operate on the high seas. In the past, the distant water fishing fleet, other than tuna vessels, could be considered as those vessels with the greatest tonnage, but this no longer necessarily applies with coastal state expansion into the adjacent high seas area. The size of a vessel is determined primarily on the 'at-sea' conditions it is designed to operate in, the autonomy the vessel requires for the time it is expected to operate at-sea in terms of fuel capacity and supplies, as well as the species targeted. Vessels designed for harvesting low-valued abundant species in a short period of time differ in size depending on distance to port and sea conditions between near-shore and offshore. Thus while small purse-seiners can operate effectively on schooling pelagic species near-shore, and can be supported with fish packers if necessary and feasible under weather conditions, vessels operating offshore, without support vessels and in harsher sea conditions with greater distance to port, would be required to have significant increases in capacity.

The small boat Japanese tuna fleet that took advantage of drifting with currents along the Marianas Trench operated well beyond Japan's national fishery jurisdiction into high seas areas, just as Indonesia's sailing fleet crosses the Arafura Sea into Australia's jurisdiction. The former USSR fleet that operated between oceans had the smallest number of vessels of any region, with the exception of Oceania, yet 30% of the tonnage of the world's fishing fleet (almost 2000 tons average per vessel). There is, therefore, no definitive classification in terms of size of vessel that clearly can be identified as a vessel operating only on the high seas, or conversely as a vessel operating only in areas under national jurisdiction.

With the decrease in catches on the high seas, there has been a change in the importance of tuna fisheries. In 1990, tuna catches were 20% of all high seas catches and 45% of the value. In 1995, as a result of the significant withdrawal from distant-water fishing by the fleets from the former USSR, tunas were 41% of the catch and, impressively, 82% of the total landed value of all high seas catches.

In terms of the world’s total marine catches, the high seas catch in 1995 was 4% in quantity but 8% of the total landed value. The catch of non-tuna species on the high seas in 1995 was 3% of all marine catches but only 1% of the total landed value. The significance of these changes is that the tuna fishery is the most important high seas fishery today, and the catch of other species on the high seas is now of no real economic consequence in terms of size or value in comparison to total marine catches and landed value. This is not to say that the catches of non-tuna species on the high seas are not important in terms of biodiversity or for the need to provide adequate conservation and protection for these stocks.

What is of consequence, is the size of the fishing fleets engaged in the high seas and a concern with under-reporting of catches taken there. In the FAO 1995 State of World Fisheries and Aquaculture (FAO, 1995), it was reported that as evidence of the increasing economic difficulties of the industrial fleet, vessels owners were electing to change the registry of their vessels to open registers.

From Lloyd's Maritime Information Services, states with open registers are continually increasing their fleet size. Since 1990, these states have added 236 vessels to their fleet for a total of 153,248 GT, which is 15% of all new additions and 16% of new tonnage. These same states must be assumed to significantly under-report their catches. Panama's reported catch in 1995 was 181,332 tonnes for 574 vessels, a catch of about 316 tonnes per vessel. Honduras had an estimated catch of 24,000 tonnes for 448 vessels, a catch of 53 tonnes per vessel.

Despite the trend in the over-all reduction of distant-water fishing vessel activities, the capacity of this fleet has not been reduced. According to FAO (FAO, 1995), the age of the fleet in 1994 showed that 63.5% of the industrial fleet was built before 1980 and an additional 14% was built between 1980 and 1984 during the transition period of implementation of the 1982 UN Convention of the Law of the Sea. While some of the 1980-1984 construction would have been directed at coastal state expansion to exploit resources within extended jurisdictions, the evidence is that much of the pre-1980 distant-water fleet is still operating. Had governments followed Germany's example of scrapping most of their distant-water fleets, the overall size of the industrial fleet would have consisted of newer vessels, presumably more specifically designed to coastal state requirements for fishing in extended jurisdictions. For example, the scrapping of the large vessel distant-water fleet, those vessels greater than 1,000 GT, would have reduced the estimate of the total replacement cost of the world's fleet by $120,000 million. This would have reduced the capital demand of the fleet (10% of replacement value) from 46% to 28%, as given in (FAO, 1993; Appendix 1).

In conclusion, while there is clear evidence that distant-water fishing vessels have decreased their catches on the high seas since 1990, there has been an expansion by coastal states into adjacent areas beyond their national jurisdiction, as well as evidence of an under-reporting of catches taken by vessels using flags of convenience. While distant-water fishing vessel activities have decreased, the capacity of these vessels continues to operate in other fisheries.

2. REVIEW OF THE DIFFICULTIES IN ASSESSING HIGH SEAS CAPACITY

The preceding section outlined the issues surrounding assessment of the extent of high seas catches and the vessels involved. The major factors are:

i) the absence of reporting requirements for catches beyond national jurisdictions. The existing FAO system requires reporting by statistical area without finer definition of catches within and outside of national jurisdictions.

ii) that most states do not require vessels registered under their flags to obtain authorization to operate in areas beyond national jurisdiction. Some states, in particular EU members, authorize their vessels to operate in other coastal states' jurisdictions in accordance with the terms of bilateral fishing agreements. Other states that are parties to international fishery conventions authorize their vessels to operate within the convention area which may include high seas areas. However, for most of the high seas, authorization by flag states has not been required since the intended area of operation is beyond national jurisdiction. Japan is an exception, it has traditionally required vessels under its flag to be authorized to fish in the 'far seas'.

Where authorized high seas vessels operate in high seas and within areas of national jurisdiction, however, the opportunity to assess capacity is more difficult. This is explained in Chapter 1 of this document for vessels operating in more than one fishery. In most cases, however, industrial fishing fleets are comprised of specialized vessels designed for specific fishing activities. Tuna vessels are purse-seiners, long-lines or pole and line; each has characteristics and cost functions that make gear change impractical. In the same way, a tuna purse-seiner is not suitable for harvesting small shoaling pelagic species, primarily because of cost structure and the differences in revenue from high-valued species compared with low-valued species. It is also difficult to find examples of long-line vessels operating on tunas and demersal species; the revenues differ in comparison to the cost structure of a specialized vessel. Thus for tuna vessels there is almost a total separation between the three gear types even though catches occur within national jurisdictions and outside. The capacity of tuna fleets overall can, therefore, be assessed, even though the capacity of the purse seine fleet and long-line fleet remains problematic. This occurs because both fleets catch some of the same species of tuna and reporting catch by gear type is not an international requirement. Under the 1995 UN Agreement, this would change.

In the same way, trawler configuration is different for beam trawls, otter trawls and pelagic trawls. The largest trawlers constructed recently are pelagic trawlers whose catches are large and require highly automated sorting, handling and storage systems. Otter trawlers are smaller but have special requirements imposed by weather conditions, distance of operation and species targeted. Even the standard type Florida shrimp trawler at 75 feet and widely distributed around the world is specialized in terms of limited carrying capacity specific to the shrimp operation of low catch rates, high value product and 30 day minimum fishing trips. Their application to bottom trawls for demersal species, or retention of by-catches, has always been ineffective because the vessel design is different.

For the industrial fishing fleet, it can be generalized that specialization quite narrowly defines the fishery for which a category of vessel can operate. There is a low degree of interchange between fisheries and this facilitates assessments of capacity. As vessel size diminishes, however, particularly inside of national jurisdictions, the ability of vessels to interchange gear increases with decreases in size. Sixty foot salmon purse-seiners can operate on herring and switch to long-line gear for halibut and then traps for crustacean or other demersal species. Small long line vessels can gillnet equally efficiently. Combination fishing vessels or multiple purpose vessels, where gear changes are required, remain primarily an issue for fleets operating within national jurisdictions. There are few examples to be found in vessels that operate on the high seas. The exceptions are small boat operations in areas such as the Mediterranean, where national jurisdictions have not been extended.

The reasons for this apparent separation in gear inter-change between small vessels and large vessels is the difference in cost structures associated with capacity. Pelagic trawls target on low and relatively low-valued species and require high catch rates and large capacity to be economic. Shrimp trawlers have low catch rates, high-valued product and require small capacity. Tuna long-liners have relatively low catch rates, high-valued product and require limited capacity. Tuna purse seiners have large search areas for high-value product and require reasonable capacity. Each vessel type has its unique design requirements and consequently associated cost structure. Under these design configurations the cost structure for a tuna purse-seiner prevents change to small pelagic fishing, where volume requirements to become economic exceed the capacity of the vessel to cover its cost structure.

With any generalization, there are exceptions. The U.S. requires fishing vessels to be U.S. built with the consequence that a number of U.S. factory trawlers are vessels converted from other uses.

There are industrial fishing vessels that do change to other fisheries, but such change constitutes a major refit and this is often recorded in Lloyd's Maritime Information Services. Lloyd's remains, however, the only international source of record of fishing vessels. The register contains those fishing vessels that are 100 GT and larger. The register is known to be not complete in that China's fishing fleet is under recorded. There are also difficulties with measurement standards, whereby some Asian vessels are 24 m or over but not 100 GT, and are not included in the register. The register also does not indicate whether vessels are 'laid up' and there is some delay in amending the information to reflect scrapping. The FAO Bulletin of fleet statistics supplements much of it's fleet information with Lloyd's, but this is published only on a three year basis.

The conclusion has to be that the information on the industrial fishing fleet as contained in Lloyd's Maritime Information Services is less than the actual fleet size. Its use for analysis therefore errs on the conservative side.

Analysis of the world's fleet capacity, its capital value and annual gross revenues from landed catches are all gross measures. Differentiation by areas or by fleets require much more detailed information which is not readily available. Perhaps the most accessible information for more detailed analysis exists for the tuna fishery, where the regional tuna commissions, International Commission for the Conservation of Atlantic Tunas (ICCAT), Inter-American Tropical Tuna Commission (IATTC), Indian Ocean Tuna Commission (IOTC), and the South Pacific Commission collect and collate data on catches and tuna vessels. The capacity of the tuna fleets could most readily be assessed and as recommended to the FAO Technical Consultation on High Seas Fisheries,⁵ improved co-ordination between the tuna commissions would improve efficiency and facilitate such an analysis. The concept of a world tuna body or central coordinating council was proposed. If management measures were to be effective, they need to be applied wherever the species are exploited.

⁵ FAO, 1992. Statement by Inter-American Tropical Tuna Commission.

3. INTERNATIONAL LEGAL INSTRUMENTS RELATING TO THE CONTROL AND REDUCTION OF CAPACITY

With the entry into force of the 1982 Convention in 1994, the rights and obligations of coastal states with respect to fisheries are clearly defined. Articles 116 - 120 establish the rights and duties of states fishing on the high seas. It is the duty of states to co-operate with each other in the conservation and management of the living resources in the areas of the high seas, through sub-regional or regional fisheries organizations.

For two-thirds of the Atlantic, all of the Indian Ocean and less than half of the Pacific, regional fisheries organizations have been established in terms of areas. There are also fisheries organizations for specific species, whales, tunas, salmon and halibut. The Southern Ocean (Antarctic area) is also covered by a fisheries organization.

Most of the fisheries organizations established by area have competence over high seas areas. Most of the fishery organizations established for species also have competence in high seas areas. Many of these organizations have regulatory powers for conservation and management, subject to objection procedure. None have exercised regulation of capacity. Article 116 of the 1982 Convention states that: “All states have the right for their nationals to engage in fishing on the high seas...” and Article 119, paragraph 3, states: “States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any State.” Fishery organizations that do impose regulatory measures in accordance with the 1982 Convention, have negotiated national quotas and required participating states to notify the organization concerned of vessels authorized to fish in the regulatory area. In the same way, coastal states providing access to their areas of jurisdiction, through bilateral fishing agreements, require flag states to provide details on their vessels authorized to operate within the coastal state area. The issue of capacity is therefore subsumed within a catch quota system.

This regulatory measure of catch quotas by participating states, in order not to contravene Articles 116 and 119, cannot deny access to nationals of new participating or non-participating states. Such increases in participation reduce catch quotas of existing participating states since the total allowable catch seldom increases as a result of successful conservation and management measures. In fact Article 116 and 119 do not readily allow for the achievement of conservation goals, since existing participants have no incentive to rebuild stocks if the benefits of rebuilding are to be shared with additional participants and eventually to be dissipated in the process. Thus the fishing regime for the high seas areas and stocks can be characterized as a 'pure' open access or 'regulated' open access fishery if total allowable catches are established and enforced. Had the 1982 Convention recognized the economic dislocation imposed on distant-water fishing states by extensions in national jurisdictions to 200 nautical miles and given provisions for preferential access to the newly defined high seas stocks, the existing situation in terms of conservation and management may have been different.

The 1992 UN Conference on Environment and Development in Agenda 21, section C entitled “Sustainable Use and Conservation of Marine Living Resources”, noted that the management of high seas fisheries was inadequate in many areas and some resources were over-utilized. Accordingly, it was recommended that states convene an intergovernmental conference under the United Nations auspices. The conference was convened and a UN Agreement adopted in 1995. In the intervening period, member nations of FAO commenced negotiations on an Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement). This Agreement was adopted by the FAO Conference in 1993 and has at this time not yet entered into force. The importance of both the Compliance Agreement and the 1995 UN Agreement is the requirement for flag states to license, authorize or permit their national fishing vessels to operate on the high seas and to prohibit any national fishing vessel from operating on the high seas without such authorization. Flag states are required to maintain national records of authorized fishing vessels. The Compliance Agreement, however, requires flag states that are party to the Agreement to make available to FAO details of fishing vessels authorized to fish on the high seas. FAO would be required to circulate this information to all parties to the Agreement, as well as to any global, regional or sub-regional fisheries organizations. The Compliance Agreement would provide the necessary information on the authorized high seas fishing fleet from which capacity could be determined.

The 1995 UN Agreement, in Article 5, paragraph (h), requires states to “take measures to prevent or eliminate overfishing and excess fishing capacity and to ensure that levels of fishing effort do not exceed those commensurate with the sustainable use of fishery resources.” Application of these measures in respect of fishing capacity by individual states under 'open access' conditions would appear to be contrary to the interest of any state, unless some formulas had been developed, and consented to, by a regional or subregional fishery organization and applied to all participatory states. The experience of regional bodies in reaching consensus on reductions in total allowable catches has shown that consensus has only been achievable through adoption of a minimal reduction in catches, instead of the optimal for conservation purposes. Application of measures to reduce capacity of fleets could be expected to have the same outcome, as well as shift capacity to areas under other regional or sub-regional fishery organizations. The dilemma is directly attributable to the open access condition prevailing in high seas fisheries, including the obligation to “not discriminate against the fishermen of any state.”

The 1995 UN Agreement in Article 11 does, however, outline factors to be considered by regional or sub-regional fishery organizations in admitting new members or by regional and sub-regional arrangements in allowing new participants. Furthermore, states not agreeing to apply conservation and management measures of a regional fishery organization would be required, under Article 17, to not authorize vessels flying their flags to engage in fishing operations in the area of competence of that fishery organization. States which are members of such organizations or participants in regional arrangements “shall take measures consistent with this Agreement and international law to deter activities of such vessels which undermine the effectiveness of conservation and management measures.” It is presumed that the outcome of this action is acceptance of the conservation and management measures or denial of the authorization to fish. The international action that can be taken to ensure non-cooperating states revoke authorizations to fish is not specified. Under Article 20, paragraph 4, “states shall assist each other in identifying vessels reported to have engaged in activities undermining the effectiveness of subregional, regional or global conservation and management measures.” This suggests that international action is restricted to a form of 'blacklisting' of non-complying vessels and/or their flag states.

Whereas the 1995 UN Agreement tightens the obligations of flag states to adhere to conservation and management measures imposed by regional fishery organizations, measures required to reduce over-capacity in participating fishing fleets are not specified.

The 1995 UN Agreement, although requiring flag states to establish a record of fishing vessels authorized to fish on the high seas, does not require states to provide details of such authorizations to a depository collating all states' authorizations. The Compliance Agreement establishes this mechanism and, coupled with the development of its 24 hour a day electronic access to its world list of authorizations, provides a basic tool for compliance and enforcement of authorizations to all regional fishery organizations. Without access to such a data file, authorized vessels would unduly be required to be boarded in order to verify their authorizations to fish. This would reduce the ability of fishery organizations to expeditiously ensure that unauthorized vessels were not operating within their area of competence. The data file would also provide the information necessary for assessing the capacity of the high seas fleet.

While the application of the Compliance Agreement is limited to vessels authorized to fish on the high seas that are 24 metres and over, the 1995 UN Agreement applies to any vessel authorized to fish. Thus the 1995 UN Agreement covers all vessels fishing on the high seas for straddling fish stocks and highly migratory stocks without a depository for flag state authorizations, while the Compliance Agreement only covers all high seas fishing authorizations for vessels above a certain size and provides access to all states' authorizations for these vessels.

While there are still difficulties with monitoring under these agreements, there is also a long standing difficulty with the measurement of fishing vessels. There is no standard for measurement. The International Maritime Organization's (IMO) International Convention for the Safety of Fishing Vessels, Torremolinos, 1977 and its Protocol of 1993 would require a signatory to declare the numbers of fishing vessels of 24 metres in length and above that are authorized to fly its flag. Neither the Convention or its Protocol have entered into force. Lloyd's Register of Shipping, considered by many as the 'authority' on merchant ships, records ships, including fishing vessels, of 100 GT and over. It is not possible to assess the length of a vessel from its tonnage, and length measurements for fishing vessels do not always correspond to IMO's measurement method. Vessels can also be 24 metres in length and less than 100 GT, in particular the Asian construction of narrow hulled fishing vessels. There is, therefore, no full or authoritative record of fishing vessels in the world. Information has to be sought from numerous sources which is time consuming and at best provides only an estimate of the size of the world's fleets.

There is an urgent requirement for the international community to standardize the measurement of fishing vessels and establish an acceptable mechanism for an international register of fishing vessels of certain size, taking into consideration existing requirements. This action should be expected to improve the transparency for which fishing fleet size can be monitored and capacity issues addressed.

4. MANAGEMENT APPROACHES TO THE CONTROL AND REDUCTION OF CAPACITY

For most of the world's fisheries, management approaches have not included capacity as an issue for control. Indeed, up until the late 1970s, most states directed attention towards fisheries development, primarily at increasing production. In areas with overfishing, management attention was given to setting catch limits, regulating fishing practices and closing fisheries when catch limits were reached. For these areas, management adopted a 'laissez-faire' attitude towards fleet capacity, particularly when surplus capacity could move outside and beyond the area. The unilateral extensions of fisheries jurisdictions to 200 n. miles that occurred from the mid 1970s to 1982 when the UN Convention was adopted, renewed states' interest in fishery development, even though the benefits from the removal of distant-water fleets were not widely distributed.⁶

⁶ FAO 1992.

By and large, the experience with controlling or reducing capacity has been limited, not surprisingly given the attention by most states toward fishery development. In areas where retrenchment was required as a result of extensions in fisheries jurisdictions, such as in the northeast Atlantic, particularly the European Union, reductions in capacity were not immediately addressed. Conventional management continued with catch limits and national quotas for the member States of the European Union. In fact, the EU actively encouraged joint-venture fishing agreements with other states to resolve its capacity problem. In time, as a result of the efficiency of its domestic fleets and increasing costs for securing access to other states' fisheries, the EU implemented its scrapping and decommissioning programme. Japan has also adjusted its fleet, reducing vessels operating in the north Pacific in the Alaska Pollock fishery; it also provided substantial funding to remove its drift-net fishing fleet in the North Pacific.

While the experience with controlling and reducing capacity is limited, the argument over methods to reduce overfishing in fisheries has been ongoing for over 30 years. The methods are reviewed and evaluated by Gréboval and Munro in Chapter 1 with regard to the management of fishing capacity. Correctly Gréboval and Munro have reservations concerning all of the methods, but in addressing the capacity issue additional considerations may be given to institutional constraints that limit management options.

For nearly every state, fisheries are governed as a common property resource. Attempts to privatize them invoke constitutional issues. The 1982 Convention, in extending fisheries jurisdictions to 200 n. miles, while reducing the area of the previous regime of the freedom of the seas, did not necessarily establish the conditions to privatize fisheries; it extended the sovereignty of states and their authority to manage fisheries. In the same way, the 1995 UN Agreement provides for the need for flag states to “authorize” the use of vessels for fishing on the high seas. It refers to the measures to be taken by states as “to apply terms and conditions to the license, authorization or permit”. It has to be presumed that this language reflects the established conditions governing fisheries in the participating states that adopted the Agreement. This political reality removes individual transferable quotas (ITQs) as a method for controlling capacity in most of the worlds fisheries and in practical terms, restricts control of capacity issues to authorizations, licenses or permits. This is not to say that a number of states may elect to use ITQ's as a management approach, as some have already done. It is difficult however, to visualize any state with shared stocks finding ITQs to be in its national interest, compared with open access conditions in the pursuit of out fishing its neighbour state(s), unless a binding and satisfactory agreement has been reached on the division of catch. Shared stocks exist in all parts of the world.

One of the most important contributions of the 1995 UN Agreement was international acceptance of the need to “authorize” fishing vessels. The FAO Code of Conduct extends this authorization to all fishing vessels including vessels operating within national jurisdictions. This terminology empowers fishery administrations with control over national fishing fleets. For many states, fishing vessels have been under the domain of port authorities or ministries of transport, shipping, maritime affairs or merchant marine. Under these arrangements, fishery administrations were powerless to effect any control over vessel size or number of vessels engaged in fishing. The empowerment provided by the 1995 UN Agreement in giving fishery administrations the responsibility to 'apply terms and conditions' allows for significant scope in exercising control over fishing fleets. Administrations can require replacement ratios for new vessels, prevent subsidized or foreign built vessels from receiving authorizations, establish areas of operation and define gear restrictions to each authorization.

Within the scope of authorizations to fish, fishery administrations may be able to invoke the ‘reversal of the burden of proof’ in reference to the precautionary approach (Article 6) in respect to new fisheries, new technology and other areas that might undermine conservation and management measures.⁷ The 'burden of proof' concept can facilitate fishery administration's abilities to determine the impact of technology on stocks and existing fishing fleets, assist in verifying technological equivalencies in capacity between new and existing fishing vessels as well as fiscalinitiatives that encourage technological innovation, such as ship-building subsidies or preferential tax allowances that encourage increases in fishing capacity.

⁷ UN, 1994a. p. 20

5. ESTIMATES OF CAPACITY REDUCTIONS REQUIRED IN THE INDUSTRIAL FLEET

Fitzpatrick and Newton (1998) estimated that new construction of fishing vessels 24 m or greater in length and 100 GT or over increased over the period 1991 - 1995 by 3% in terms of tonnage. Application of technology coefficients⁸ to the new additions to the fleet, using an average coefficient of 3:1 in comparing new vessels to vessels built before 1980, indicate that these new vessels represent an increase in capacity of 14%. In addition, vessels built after 1980 and refitted 10 - 15 years later increased potential fishing capacity by another 8%. Therefore a 3% increase in new tonnage to the world's fleet, together with vessels refitted, can be considered to have increased fishing capacity by 22%.

⁸ See FAO, 1996b.

The situation is, however, more serious. The acceptance by the international community, as contained in the 1995 UN Agreement, that Maximum Sustainable Yield (MSY) can serve as a “rebuilding target for overfished stocks” but only “as a minimum standard for limit reference points” will require downward adjustment to catch levels. Paragraph 5 in Annex II of the 1995 UN Agreement also states that “fishery management strategies shall ensure that the risk of exceeding limit reference points is very low”. As illustrated in “Reference Points for fishery management”, the estimate of the error around MSY is plus or minus 10 - 30%. “This means that MSY (or any other reference point used as a target) will be exceeded at least 50% of the time, and often by a considerable margin. In the case of MSY, this target reference point has lost its reputability, primarily as a result of errors in population estimates, and corresponding consequences to fisheries”.⁹

⁹ UN, 1994b. p. 5.

The implications are severe. In order to minimize economic hardship on the existing fleet from the application of precautionary reference points and subsequently a reduction in catches, 19% of existing tonnage will be required to be decommissioned/scrapped in order to maintain the 1995 catch rate. However, in order to offset the impact of comparative technology in new fishing vessel additions to the fleet and refits and prevent continuing increases in potential fishing capacity, a 22% reduction in capacity is required from vessels built prior to 1980. In total these two actions require a 41% overall reduction, one to adjust to decreased catches from implementation of the precautionary approach and the other to offset technological efficiency in new vessels.

Alternatively, Garcia and Newton,¹⁰ in their global model for the world's fisheries, refer to a 25% to 53% reduction in fishing capacity depending on whether fishing costs are reduced by 43%, or the price at landed value increases by 71%, or some combination of cost reduction, price increase and fleet reduction. Using the low figure of 25%, together with the 22% adjustment to negate the increase in potential fishing capacity from new fishing vessels and refits, would result in an overall reduction in fishing capacity of 47%. Almost 63% of today's fleet was built prior to 1980, and such a major adjustment from removing fishing capacity would greatly improve the profile of the fleet's age structure.

¹⁰ Garcia and Newton, 1997. p. 23.

The estimated landed value of non-tuna species taken by distant-water states in 1995 was $1,153 million. If the capital demand (at 10%) should be expected to be at, or around 25% of the landed value, the actual replacement value of this fleet should be at $2,800 million. This would support a fleet comprised of either 36 100m super trawlers, 262 50m freezer trawlers or 686 35m stern trawlers or some combination of the three types of vessels. By comparison, in 1994 the industrial fleet was comprised of 2,299 vessels greater then 1000 GT (60 m or larger), 2,263 vessels between 500 and 1000 GT (50m or larger) and 6,266 vessels between 250 and 500 GT (30 m or larger). The same calculations could be made for the tuna fleets.

The purpose of this discussion is to provide attention to the fundamental problems of controlling capacity in national fishing fleets. There has been an inheritance of over-capacity resulting from extensions in fisheries jurisdictions, where coastal states expanded fishing effort within their new areas of jurisdictions and most flag states with displaced distant-water fleets failed to effectively remove their vessels, in many cases actively continuing to support their fleets through access agreements with coastal states. As a result, today's fleet has a disproportionate number of vessels more than 20 years old.

States have been slow to recognize that the 'bounty of the seas' from fisheries has reached its limit. Many states maintain fishery development policies based on increased production, instead of appropriate conservation and management regimes to maintain yields. Few have directly addressed the need to rationalize fleet capacity. Most have 'laissez-faire' policies for fleets. Those that have restricted licenses or authorizations have improved income levels within their fleets, but with rare exception, these states have failed to manage technological innovation and its impact on fleet capacity. Australia has demonstrated the ongoing need to adjust capacity from technological innovation in the rock lobster fishery and northern prawn fishery. The example of the British Columbia Mifflin Plan for the salmon fishery given in Chapter 1 provides evidence. At the time of implementing the License Programme in 1969, the ratio of purse-seines to the gillnet/troll fleet was 1:15. Through transferability of licenses without technology efficiency coefficients, this ratio changed by 1995 to 1:7. The Mifflin Plan establishes a mechanism that will ultimately result in a ratio of 1:2. This denies recognition that the most significant technological efficiency has occurred in the purse-seine fleet.

In Chapter 1, Gréboval and Munro identify the non-malleability of capital as a cause for over-capacity in fleets. The large vessels are usually fishery and gear specific, their flexibility is achieved through opportunistic fishing activities in any ocean of the world. Lay-up is a costly alternative. For example, the fishing moratorium imposed on Canada's northern cod fishery resulted in a number of Canadian trawlers changing to flags of convenience to avoid the cost of lay-up.

The small boat fleet is at the other end of the spectrum; its fishing area is confined and its flexibility is achieved through low-cost gear changes to other fisheries and inexpensive lay-up. The capital cost of the vessels in the small boat fleet is fractional of the large vessels¹¹ and although the life-span of these small vessels is less than 10 years, many continue to operate for much longer periods because the technological innovation on vessel hull design has a much lower impact on fishing efficiency. Part of the overcapacity problem can be solved by giving increased attention to the merits of the small boat fleet, even though control over this fleet can be more fractious due to socio-economic conditions. In fact, fishery administrations have not provided fishing industries with fleet profile objectives formulated on the basis of least cost operations, capital demand, or conservation and allocation requirements. Attention to simplifying management by favouring the industrial fleets with fewer number of vessels has directly contributed to the capacity problem.

¹¹ The replacement value of the small boat fleet is estimated at 30% of the total replacement value of all fishing vessels. See (FAO, 1992) p. 51.

6. ALTERNATIVE MEASURES FOR CONTROL AND REDUCTION OF CAPACITY

As described earlier, the capacity problem in the industrial fleet was caused in the first instance by flag states not making adjustments to their fleets as a result of lost fishing opportunities from extensions in fisheries jurisdictions. Too high a percentage of today's fleet is comprised of vessels over 20 years old. This adjustment has still to occur if progress in capacity adjustment is to be made. This adjustment, given the economic outlook for these vessels and their decreasing competitiveness with new vessels, as well as the effects of adjustments to catches from implementation of the precautionary approach, will require directed programmes to scrap these old vessels. Otherwise the capacity or potential capacity of the fleet will continue to increase. Sales of these vessels to developing countries, which can be seen as advantageous to the flag state, will not reduce the level of capacity.

Implementation of technology coefficients for new vessels will increase the cost of new vessels entering fisheries by requiring the scrapping of technologically equivalent capacity. This will have the effect of reducing over-all fleet size over time and prevent over-all potential fishing capacity from increasing as a result of the relative efficiency of new vessels. The increase in costs imposed on new vessels will dampen new construction until such time as the over-all fleet has been significantly reduced and the effects of the precautionary approach have improved the abundance of fish stocks and improved revenues to the fleet. Increased revenues will stimulate new technological innovation which will, in turn, alter technology coefficients between new vessels and older vessels. If appropriate adjustments are not made, the effectiveness of controlling capacity will be undermined.

For high seas fisheries, while there are no identifiable incentives for flag states to restrict the capacity of their fleets given the open access conditions in these fisheries, the data on vessels authorized to fish on the high seas collated by FAO through the Compliance Agreement would provide transparency and allow for international monitoring of the capacity and subsequent international pressure to be exerted. Flag states with high seas fleets are relatively few in number in comparison to coastal states and international pressure can be effective.

There are two principal areas for concern. The first is the tuna fishery which contributes over 80% of the revenue to the high seas fleets. Whereas the tuna fleets move between oceans, the tuna commissions do not cover all areas of the Pacific and there is no relationship between the commissions concerning conservation and management of inter-ocean tuna stocks or fleets. The major tuna stocks are considered by FAO to be heavily exploited, with bluefin tunas viewed as depleted. Coastal states also impose access fees for tuna fishing within their jurisdictions and some of the management measures imposed by the commissions such as increasing the minimum size at capture are not sufficiently complied with by some fleets. At the same time, tuna vessels have a significant percentage of flags of convenience fishing vessels.

Despite these complexities, the tuna fishery has performed well. Fleet capacity in the purse seine sector has been relatively constrained by the dependence of vessels on technological innovation in order to be competitive and thus profitable. To a certain degree this has provided a barrier to entry in the fishery.

The recommendation of IATTC at the FAO Technical Consultation on High Seas Fishing for an umbrella mechanism deserves international attention, in particular for improving conservation and management requirements as well as establishing conditions for fishing vessel access to high seas stocks and arrangements for coastal state's sharing of these highly migratory species. In this connection the experience and practices of the South Pacific Forum Fisheries Agency have much to contribute and the responsibilities of the regional commissions need not be undermined. At the same time, in the Report of the FAO Technical Consultation on High Seas Fishing, paragraph 83 refers to: “The idea of setting up an international high seas fisheries management authority to which the individual bodies would be responsible, received many reservations and the consultation recognized that this was an issue that lay outside its competence. The consultation acknowledged that regional fisheries bodies were responsible to their members.”

An umbrella mechanism, if acceptable to the international community in terms of a coordinating role only, and if the Compliance Agreement fails to enter into force within a reasonable time frame, could act as the depository for all flag state authorizations for vessels to operate in tuna fisheries outside of their jurisdictions. By implementing the 'FAO developed' 24 hour electronic access to the data file, all tuna commissions would have access to the authorizations and this would facilitate coordinated action against vessels with non compliance to conservation and management measures, as included in the 1995 UN Agreement. In the same way, the umbrella organization could set standards for acceptance of new participants to the commissions for tuna resources as contained in the UN Agreement, which may include an assessment of the flag state's application in terms of adherence to internationally accepted conservation and management measures and its control over its fleet capacity. Coordinated action by the tuna commissions through an umbrella mechanism may be effective in improving the compliance to conservation and management measures by non-complying vessels (FOCs), or refusing access to their vessels until standards have been satisfied.

The greatest difficulties experienced by most regional fishery bodies has been the need for consensus by participants to adopt conservation and management measures. Unless a new style of mechanism can be accepted by the international community, decisions by the umbrella mechanism will be no more effective than the experience of the regional fishery organizations. The UN General Assembly may need to review the situation for tuna fisheries when the 1995 UN Agreement enters into force so as to provide an effective mechanism for the implementation of the terms and conditions of the Agreement for high seas tuna fisheries.

In the same way, the expansion of a fishing fleet beyond the limits of national jurisdiction into the high seas for the harvesting of a straddling/shared stock raises questions when there is no regional fishery organization extending over the area where the species can be found.¹² Such circumstances raise difficulties in the implementation of the 1995 UN Agreement.

¹² See, for example, the case of the Chilean Jack Mackerel.

Part of the answer is the 'hang-over' from extensions in fisheries jurisdictions and the displacement of distant-water fishing operations, part is technology dumping of older vessels in developing countries, part is the advantages in terms of operating costs offered by flags of convenience, and a part may be subsidies to ship-building or other fiscal incentives to encourage new technological innovation. The removal of old capacity through scrapping programmes, the prevention of technology dumping by encouraging flag states to prevent change in flags of their fishing vessels and implement effective vessel replacement programmes, and the removal of eligibility of vessels built under subsidy or fiscal incentive from receiving authorizations to fish, are all necessary actions to address the capacity issue. The imposition of the standards established by the 1995 UN Agreement by regional fishery organizations for both participating and non-participating members may exert pressure on flags of convenience, but it is questionable as to whether these actions would be sufficient to offset the benefits from operating under these flags.

7. POSSIBILITIES FOR THE MANAGEMENT OF CAPACITY INCLUDING STRENGTHENING REGIONAL COOPERATION

The need for serious restructuring of the world’s industrial fleet is evident from the magnitude of its actual replacement value in relation to annual landed value of catch, the estimates of economic distortion resulting from subsidies and from the FAO appraisal of the degree of over-exploitation of fish stocks. As this paper explains, the capacity issue is a result of the displacement of former high-seas fleets as a result of extensions in jurisdictions, expansion by some coastal states to increase production as a result of extended jurisdiction, technology dumping of older fishing vessels by some flag states to developing countries and flags of convenience, and an increasing proportion of new construction by flags of convenience.

What can be said for the industrial fishing fleet, however, does not necessarily apply to all high seas fisheries. The decline in the level of overall high-seas catches, in particular the catches of the former USSR, brings the over-all catch level to within 4% of all marine landings. And within this 4%, the tuna fishing industry is the most valuable. A coherent mechanism for ‘good conduct’ in this fishery would alleviate most of the concerns with the high seas fishery.

The tuna fishery is experiencing an increasing trend of flags of convenience fishing vessels, both new vessels and older vessels from other flag states. Under-reporting by flags of convenience vessels appears chronic and the tuna industry should be sufficiently concerned to improve its practises. As has been pointed out, regional tuna organizations do not provide full coverage for the species, either by area or interaction of species between organizations. When the UN Agreement enters into force, these gaps in coverage of tuna species will be apparent in the reporting requirements to the UN for highly migratory species. Encouragement for the formation of some mechanism to ensure full coverage of harvesting levels of tunas on the high seas and to monitor flag state practises for tuna fishing, including capacity, should be given by the international community. Ten states catch 80% of the world’s tuna (nine states have catches of 100,000 tonnes or over) which should be a small enough number to allow for support of a mechanism.

For non-tuna species, however, the problems of high seas stocks are, in value terms, of minor importance but more complex. For the most part they are straddling stocks, either straddling coastal state’s jurisdiction or jurisdictions within or without a regional organization, or straddle the high seas and a regional organization’s area of competence such as the Patagonian tooth fish, which straddles the area of competence of the Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR).

It is to be noted that whereas the north Atlantic is neatly divided between two regional fishery organizations, the only other existing area regional fishery organizations in the Atlantic for non-tuna species are FAO fishery bodies such as for the central Atlantic and Mediterranean. For the central Atlantic, there are no identifiable non-tuna species harvested outside of 200 mile limits, which make these FAO bodies primarily concerned with problems of shared stocks. For the south Atlantic, where FAO bodies either do not exist or do not function there are fisheries on the high seas that straddle the CCAMLR area, and the areas under the jurisdiction of Argentina or the Falkland (Las Malvinas).

For the Mediterranean, where no country has declared an EEZ, the fisheries fall within the competence of an FAO body and can be considered shared stock fisheries.

The Indian Ocean’s high seas fisheries are at this time entirely tuna related. For the Pacific, FAO bodies are confined to the Asia Pacific Fishery Commission which has narrowed its focus to fisheries in the South China Sea and therefore shared stock fisheries. For the rest of the Pacific, there are straddling stocks of Alaska Pollock in the Bering Sea high seas and the Sea of Okhotsk, as well as high seas stocks of flying squid and Japanese Pilchard in the north Pacific. There is also Chilean Jack Mackerel as a straddling stock in the south-east Pacific. No regional fishery organizations are established for the management of these high seas stocks.

In this connection, it would appear that reporting to the UN on high seas catches of straddling stocks and even high seas stocks, where regional fishery organizations do not exist, will remain the responsibility of FAO through its statistical programme. FAO may consider redefining its statistical programme to allow for reporting by high seas areas as well as collate fishing effort data provided by flag states under the terms of the 1995 UN Agreement, once it enters into force.

These non-tuna fisheries are minor in comparison to the over-fishing that is encouraged by shared stocks. Although the value of the high seas fishery is minor, it provides no rationale for the size of the fleets that exist with distant-water capability. If flag states do not effectively address the issue of over-capacity, it can be expected that international pressure for conservation of high seas stocks may ultimately result in closure, or at least a moratorium, to all fishing on non-tuna species so as to provide some marine ‘sanctuary’ to the over-fishing that is occurring on stocks within coastal state jurisdictions. The removal of the high seas area for fishing activities would squarely place the problem of over-capacity back to the flag states and force direct action as a result of protests from their national fishermen.

Alternatively, some coastal states, in particular those that are unable to provide effective conservation and management over stocks within their national jurisdiction, may be expected to solicit support for extending national jurisdiction beyond 200 n. miles. Under the circumstances of coastal state performance to date in conservation and management, such action should be expected to receive little international support in terms of addressing existing conservation problems. In any event, states in whose jurisdictions mini-high seas areas occur, would appear to have stronger justification, as accidents of geography, for bringing such areas under improved control. But this would also remain quite controversial.

Ultimately, the UN may be required to take a more active role in high seas fisheries. But this will be dependent on first having the 1995 UN Agreement enter into force and second, for the international community to assess the degree of compliance by both flag and coastal states to the terms of the Agreement. Particular attention will be given to the state of high seas resources and the principle of equity sharing.

In this connection, the application of precautionary reference points can be expected to be contentious. From the experiences of existing regional fishery organizations, consensus for the setting of limit reference points will only be achieved at the expense of the coastal state, since the number of flag states supporting higher levels for limit reference points will outweigh the coastal state’s choice of lower levels of limit reference points. Under the existing arrangements for most regional fishery organizations, the setting of appropriate limit reference points appears destined for resolution under the dispute mechanism.

This will be unfortunate and undermine the value of having two reference points for fisheries conservation and management. In order to promote the precautionary reference points as ‘good practise’ for fisheries conservation and management, it would be preferable for the setting of limit reference points for high seas fisheries to be undertaken by third parties to the membership of the regional organization. In this way, the regional organization could find consensus on the target reference point and proceed with this as its management objective under the terms contained in Annex II of the precautionary approach. For regional fishery organizations to establish both limit and target reference points would appear to be self-defeating to the intent of Annex II.

Within the context of the UN Agreement (Article 5 referring to excess fishing capacity), although no specifics are provided, it must be assumed that limit reference points should take into consideration excess fishing capacity. In fact, by setting limit reference points lower than biological requirements to take into consideration excess capacity, this would provide an incentive for flag states to adjust their capacity as a means to increase catch levels.

For this to occur there is a pressing need to develop innovative indicators for capacity measurement for fishery administrations to adopt. These indicators may include technology coefficients and cross-efficiency curves by vessel type and size, ‘capital demand’ from fleets as a percentage of landed-value and many others. Particular attention is required to be given to the relative cost of fishing between different gear types and methods of fishing. The severe economic distortions that have occurred in the industrial fleet have for a significant period of time disadvantaged the small boat fleet and its ability to compete on an ‘open’ basis. A useful approach for fishery administrations to follow would be the preparation of fleet profiles as objectives for fisheries. Such profiles would need to consider cost structures, technical coefficients as well as socio-economic criteria.

8. SUMMARY AND CONCLUSIONS

The direction of high seas fisheries since 1990 indicates a decreasing trend overall by distant-water states. This decline in catches is primarily the result of the withdrawal of such fishing by the states of the former USSR. It is noted, however, that other states, with the exception of Japan, have maintained their distant-water catch levels. There is also an increasing number of fishing vessels registered under flags of convenience, which appear to significantly under-report catches. At the same time, some coastal states have expanded their fishing activities on stocks outside of their area of national jurisdiction but in the FAO statistical area adjacent to their coasts. These catches cannot be identified as high seas catches in the existing FAO statistical reporting system.

With these qualifications, high seas catch levels were 4% of all marine catches in 1995 and 8% of total landed value. The tuna fishery has become the most important part of high seas fishing. It represents 41% of the high seas catch and 82% of the value. Some of its practises, however, are appearing to be increasingly less responsible. These include the growing importance of flags of convenience vessels, serious questions concerning under-reporting of catches, as well as the absence of a comprehensive over-all management regime.

For the non-tuna catches on the high seas, at 3% of all marine catches and 1% of the total landed value, the importance of this fishery is small in relation to the problems occurring in the 96% of catches of all the other fisheries conducted within the jurisdiction of coastal states. But the capacity of the fleets that was constructed to develop this fishery has not contracted in the same way that the catches have diminished. Identification of the number and type of vessels actively operating on the high seas is not possible at this time, until the UN Agreement or the FAO Compliance Agreement enter into force.

An assessment of the world’s industrial fishing fleet, those vessels that are capable of operating on the high seas, provides an indication of the degree of overcapacity that exists. The methods used are an approximation of the magnitude of the fleet reduction required; somewhere between 41% and 47%. At this level of magnitude, it is clear that incentives are required to increase the rate of removal of older fishing vessels. These incentives will need to include scrapping and decommissioning programmes, new fiscal incentives, as well as implementing vessel replacement policies to offset technological efficiencies.

Without question, the size of this fleet and its capital value represents an economic juggernaut that must be seen to seriously undermine all conservation and management measures. It is also a reflection on the way fisheries have been managed in the past; that fisheries management can effectively contain fishing effort through traditional methods of openings and closures, quotas and allowable catches. Management has to directly address the capacity issue.

There are two immediate issues requiring the attention of the international community. First, there is a requirement to improve the transparency of the industrial fishing fleet. This requires international support for a comprehensive register for these vessels and establishment of a standard measure for fishing vessels of a certain size.

Second, international attention is required to address the increasing trend of vessel owners changing to flags of convenience. In most cases, states offering flags of convenience have no knowledge of the fishing activities of their vessels, since these vessels never enter into their jurisdictional waters and therefore their flag state responsibility is ineffective. Particular attention is required to be given to new vessels registered under these flags.

To prevent ‘undesirable’ changes in flags by vessel owners, from one state to another, flag states could consider addressing this situation by denying requests by national vessel owners to have their vessels deleted from the national register. In this way, vessel owners changing to other flags will contravene Article 92 of the 1982 Convention: “A ship which sails under the flags of two or more states, using them according to convenience, may not claim any of the nationalities in question with respect to any other state, and may be assimilated to a ship without nationality”. A ship without nationality is, under Article 110, considered to be the same as a ship engaged in piracy. Identification of vessels failing to delete their vessels from one flag register, when changing to another flag, may be facilitated by the establishment of an international register of fishing vessels of a certain size and improved scrutiny by flag states of vessels recorded on their national registers in order to ensure that their vessels operate under one flag, in accordance with Article 91, Paragraph 1.

Finally, the requirements for states to cooperate in fishing on the high seas to establish sub-regional or regional fishery organizations, as included in Article 118 of the 1982 Convention and also included in the UN Agreement, will require changes in some of the existing organizations as well as the establishment of new organizations. In this connection, there will be a need to develop new methods of procedure to strengthen such organizations to enable them to make more effective decisions concerning fisheries conservation and management.

Acknowledgements

The author is grateful for comments and suggestions received from Moritaka Hayashi and Dominique Gréboval from the Fisheries Department, FAO, Rome.

Note on Technology Coefficients

The use of technology coefficients as one of the components in a formula to determine a vessel replacement ratio in fleet restructuring helps by identifying the difference in potential fishing effort by focusing on technology. This brings attention to developments in technology arising from legislation adopted as a consequence of international conventions that relate to safety at sea and implementation of the Montreal Protocol to the Vienna Convention. In this way, the use of technology becomes a legal requirement and undermines efforts by fishery administrators to restrict the use of technology. In practise, the fishing industry applies these internationally agreed technology requirements to increase efficiency.

The technology coefficients reflect changes in technology over time. These include the following:

· for vessels built in 1965 to 1975: refrigeration, hydrostatic transmissions, engine weight to power ratios, electronics, fishing gear developments, automation and safety radio communications.

· for vessels built in 1976 to 1985: advanced sonar techniques, auto trawling, advanced single side band radio stations to INMARSAT communication systems, satellite positioning for vessels, on board machinery monitoring for fuel economy, developments in net twines.

· for vessels built in 1986 to 1995: seabed profiling and echo sounder software, advanced auto-lining, prediction techniques using satellite imagery, on-board handling as a component of HACCP, side scan sonar, integrated wheelhouse designs remotely sensing trawl and purse-seine operations, high technology electronics, improved satellite data communication systems with application to vessel safety, precision vessel positioning systems (including low cost hand-held receivers).

In terms of new construction, the application of technology coefficients can be viewed within the context of the increased importance of low-valued high volume species that began in the 1980’s, compared with the importance of high valued demersal species in the 1970’s.¹³ The shift to low-valued species requires vessels to be cost-efficient particularly in terms of fuel consumption. Older vessels have higher fuel consumption because main and auxiliary machinery have poor specific fuel consumption to horse-power ratios, sub-optimum propeller design, poor insulating materials (insulation qualities are measured by standard “k” factors) in fish holds requiring increased use of refrigeration compressors. These higher costs, together with reduced sea-time through break-down, have to be offset, which increases the pressure to undermine conservation and management measures that include infringement of coastal state jurisdictions or protected inshore areas, retention of protected under-minimum size species of higher value and other practices. This is particularly relevant to the need to reduce fishing pressure on demersal stocks by 30% as well as on pelagics by 20%.

¹³ FAO, 1995. p 6-8. As an example, of the ten principle species, Atlantic cod has moved from #2 in 1973 to #5 in 1983 to #9 in 1993.

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