2.3 Scope

2.3.1 A scope beyond fisheries

COMPARATIVE ANALYSIS

Most of the arrangements relate to fisheries alone (or fisheries and aquaculture). There are ten exceptions [River Plate Treaty; Torres Strait Treaty; Faroes/UK Agreement; the seven delimitation treaties relating to Central America and the Caribbean].

The primary purpose of each of these latter ten treaties is to establish one or more maritime boundaries. Subjects covered by these treaties in addition to maritime boundary delimitation and fisheries include (depending on the treaty concerned): (a) navigation; (b) pollution; (c) research; (d) exploitation of transboundary or near-boundary mineral resources; (e) protection and preservation of the marine environment; (f) wrecks; and (g) protection of the traditional way of life and livelihood of traditional inhabitants.

COMMENTARY

In principle, there is of course no problem with fisheries being dealt with between neighbours as part of a broader maritime agenda. In practice, with the exception of the Torres Strait and River Plate Treaties, fisheries has been dealt with in the remaining eight treaties above only at the level of broad principles. However, this result is probably more attributable to the primary motivation in those cases being to find a political solution over a boundary than to any more complex reason. If two States wish to formalise their maritime relations in one treaty, including inter alia providing for the effective management of shared stocks, there is no reason why they should not do so. Indeed, such an integrated approach should in principle be encouraged.

2.3.2 References to “shared stocks”

COMPARATIVE ANALYSIS

The way in which the arrangements refer to shared stocks, either directly or tangentially, is illustrated in Table 2. In line with the definition of shared stocks adopted in section 1.1 above, note that references to highly migratory stocks or species in these arrangements have not been included in the table.

Direct references to “shared stocks” are made in only three arrangements [Australia/Indonesia Agreement; Pacific Salmon Treaty; Mauritania/Senegal Convention]. Language similar to that in Art 63(1) LOSC is also used in only two arrangements [Australia/Indonesia Agreement; African Atlantic Convention]. Eleven others make more tangential references to shared stocks, and the remainder make no reference at all.

COMMENTARY

The lack of reference to shared stocks in some cases is perhaps attributable to (a) the drafters of those arrangements not having shared stocks particularly in mind (e.g. Faroes/UK Agreement and Colombia/Jamaica Treaty [focus on delimitation], NEAFC Convention [focus on straddling stocks], FFA Convention [focus on highly migratory species]), (b) an assumption by the drafters that coordination because of the shared nature of the stocks was the primary purpose of the arrangement (e.g. Baltic Sea Convention, Herring System, River Plate Treaty [common fishing zone]) or (c) the arrangement in question being somehow subsidiary to an arrangement that does make reference to shared stocks.

Any failure to include reference to shared stocks in an arrangement which is seeking inter alia to coordinate management of such stocks is in most circumstances unlikely to cause a problem if all the parties are seeking to achieve that purpose and the various mechanisms provided for in the arrangement result in such coordination. However, it is always possible that problems of interpretation between the parties may arise at some point in the course of the arrangement’s life. On such occasions, it may become very helpful to have the original purposes enshrined within the arrangement itself, as a guide to interpretation.

Table 2: References to shared stocks

2.3.3 Provision for consultative mechanisms

COMPARATIVE ANALYSIS

Nine of the arrangements have as their main feature the establishment of a formal consultative mechanism [Argentina/UK Joint Statement; NEAFC Convention; Norway/Russia 1975 Agreement; Baltic Sea Convention; Mediterranean Agreement; Gulf Agreement; Pacific Salmon Treaty; FFA Convention; Lake Victoria Convention].

Nineteen arrangements do provide for a consultative mechanism, but more as a secondary feature rather than their main feature. The typical formula of the instrument in these cases is (a) several provisions establishing duties for the parties, some requiring cooperation and some not; and then (b) a provision on a consultative mechanism. That mechanism can vary from a power to “call for consultations” [Faroes/UK Agreement] to a duty to establish a commission.

In respect of two further arrangements, the consultations between the parties happen simply at the desire of the parties to meet annually [Herring System; Mackerel System]; there is no provision in the arrangement itself for such meetings. In a further two arrangements [SRFC Access Convention; SRFC Hot Pursuit Convention], the parties meet anyway through a pre-existing mechanism. The remaining seven arrangements do not provide for any fisheries consultative mechanism at all.

COMMENTARY

The difference between the arrangements establishing a commission or equivalent as a main feature and those establishing such a mechanism as a secondary feature can be explained as follows. The former have fewer provisions aimed at the parties as individuals but more on the parties acting collectively through the commission. The latter have several provisions aimed at the parties as individuals, including inter alia on cooperation, and then use the provisions on the commission to (a) effect some or all of this cooperation, or (b) specify some of it in more detail or (c) focus on one specific area of cooperation. At least in this last instance, the difference is not simply stylistic. Two States may wish to cooperate generally on fisheries through a treaty, but may also wish to reserve one geographic area or stock for attention through a specialised commission. In that case, an arrangement establishing such a commission only as a secondary feature may be more appropriate.

Of the seven arrangements not providing for any consultative mechanism at all, six are delimitation treaties in Central America/Caribbean. These six all include provisions on cooperation in fisheries and so it is unclear why consultative mechanisms are not in turn provided for. The seventh is the Loophole Agreement. The parties are Iceland, Norway and Russia. A consultative mechanism may have been omitted for political reasons. Alternatively it may have been deemed unnecessary since these parties meet annually anyway in relation to both the Herring System and the NEAFC Convention.

2.3.4 Species covered

COMPARATIVE ANALYSIS

There are three cases of single-species arrangements [Herring System; Mackerel System; Halibut Convention]. Most of the remainder cover all fisheries in the area concerned. However, some of these in turn put particular weight on certain types of fishery (notably the South Pacific arrangements which, expressly or impliedly, focus on highly migratory species). Examples of arrangements excluding species are the River Plate Treaty and the NEAFC Convention. The former expressly excludes marine mammals; the latter excludes “sea mammals, sedentary species... and, in so far as they are dealt with by other international agreements, highly migratory species and anadromous stocks”.

COMMENTARY

Where different grouping of States are relevant depending on the stock (e.g. the five-participant Herring System compared to the three-participant Mackerel System), or where the institutional machinery required is fundamentally different from one stock to another, a species-specific arrangement may be appropriate. In more general agreements, exclusions are a matter for the parties. However, it may well be appropriate to exclude stocks already under the competence of other arrangements of which the States concerned are parties.

2.3.5 Access rights

COMPARATIVE ANALYSIS

The main thrust of several arrangements is access rights. In some cases, these may be given among the parties, whether reciprocal or one-way [Japan/China Agreement; Japan/Korea Agreement; Norway/Russia 1976 Agreement; Loophole Agreement; Trinidad and Tobago/Venezuela Agreement]. In other cases the main motivation for the arrangement is cooperation by the parties with regard to access by distant water fishing States [Nauru Agreement; Niue Agreement; Micronesia Arrangement; SRFC Access Convention; SRFC Hot Pursuit Convention].

COMMENTARY

In principle, one way of achieving cooperation in research, conservation and management, or monitoring, control and surveillance of a shared stock is through cooperation on access or through using such cooperation as a political platform for further cooperation.

2.3.6 Monitoring, control and surveillance

COMPARATIVE ANALYSIS

Six of the arrangements relate to cooperation in monitoring, control and surveillance (“MCS”) without providing for any cooperation in the establishment of conservation and management measures [Australia/Indonesia MOU; Canada/US Enforcement Agreement; Nauru Agreement; Niue Agreement; Micronesia Arrangement; SRFC Hot Pursuit Convention].

Comments: What about the other arrangements. e.g. how many arrangements provided for MCS?

With two exceptions [Australia/Indonesia MOU and Canada/US Enforcement Agreement], these arrangements relate directly to a pre-existing treaty. Thus the Naura Agreement, Niue Agreement and Micronesia Arrangement can all be related to the FFA Convention, and the SRFC Hot Pursuit Convention can be related to the convention establishing the SRFC.

COMMENTARY

An arrangement dealing specifically with MCS may well be appropriate if cooperation over conservation and management has already been dealt with in an earlier instrument or there is no scope for political agreement on conservation and management cooperation. For example, the Canada/US Enforcement Agreement has been applied in the Gulf of Maine^[7] where there is little or no conservation and management cooperation between the two parties (before or since the 1984 ICJ boundary decision). However, in a political atmosphere of little or no pre-existing conservation and management cooperation, the provisions of an MCS arrangement are unlikely to go beyond flag State enforcement by each party on its side of the line. This is indeed the case with both the Canada/US Enforcement Agreement and the Australia/Indonesia MOU.

2.3.7 Conservation and management

COMPARATIVE ANALYSIS

Four arrangements fail to provide for meaningful cooperation on the control element of MCS, yet have strong provisions on conservation and management cooperation [Mackerel System; Black Sea Convention; Pacific Salmon Treaty; Lake Victoria Convention].

COMMENTARY

In the case of the Mackerel System, it could be argued that some competence for MCS cooperation instead rests with the commission provided for in the NEAFC Convention. However, this does not explain why the Herring System (whose five participants are also all NEAFC Convention parties) does in contrast contain some provisions on control cooperation. In the case of the Black Sea and Lake Victoria Conventions, the omission of cooperation on control is indeed a shortfall;^[8] in the former case it is perhaps explainable only in terms of the politics among the three parties at the time. The Pacific Salmon Treaty’s strong and highly detailed focus on conservation and management and enhancement is not a logical justification for its omission of control cooperation. As conjecture, in view of the nature of salmon politics between the two parties, perhaps cooperation on control has been seen as a bridge too far. However, control cooperation is now provided by the Canada/US Enforcement Agreement, which in principle applies to all fisheries (and was in force before the 1999 Agreement was negotiated).

In at least two of the above four cases, politics or the existence of an alternative arrangement is possibly the cause of exclusion of meaningful control cooperation. In the remaining two cases the reason is unclear. MCS is a key element of fisheries management. Though it may effected to some degree by flag State control and exchange of catch or landings information, there is scope through cooperation of doing much more (see section 2.11 below). However, the omission from the cited four arrangements of meaningful cooperation on control must be seen as a weakness.