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Legal Considerations for the 1995 FAO Code of Conduct for Responsible Fisheries and Related International Plans of Action

Blaise Kuemlangan[36]


The Code of Conduct for Responsible Fisheries and the related international plans of actions (IPOAs) are voluntary. This means that they are not legally binding and are meant to facilitate, inter alia, the implementation of other binding fisheries instruments, namely the Law of the Sea Convention, the UN Fish Stocks Agreement and the Compliance Agreement. However the measures outlined in these voluntary instruments may have significant legislative implications. The fact that the Code is now referred to in many multilateral and bilateral agreements increases this prospect. The most meaningful way in legislatively implementing the Code is to use it as a reference document in developing legislative provisions for fisheries legal frameworks. However, this should not discourage the implementation of the Code and the other voluntary instruments by non legislative means. Much can be achieved through informal arrangements for implementation of the Code. What is important is to begin the process of adapting the Code and the IPOAs to the needs of the State for application within national jurisdiction.


This paper discusses the legal implications of the Code of Conduct for Responsible Fisheries (the Code) and related International Plans of Action (IPOAs) relating to the conservation and management of fisheries. It also points out the legislative action required to implement the Code, the 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (the Compliance Agreement) as an integral part of the Code, and the IPOAs, particularly the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU).

It has been stressed that the Code and IPOAs are voluntary instruments. That is, they are non binding or do not lead to any legal obligations. It may seem ironic therefore to be discussing or even suggest that there are legal implications of voluntary and non binding instruments. The truth is that there are indeed legal implications of these instruments even if they are themselves not biding in nature due to the fact that these instruments do not exist or intended to be applied in isolation. They were established in the context of established principles of international law and binding agreements concerning fisheries conservation and management. Indeed, they are, in many instances, intended to fill in the gaps in the pre-existing rules on fisheries conservation and management with the objective of facilitating the effective implementation of those binding rules.[37] In this context, there exists a complex web of relationships between the voluntary instruments and the binding ones which need to be taken into consideration in the more important task of implementation of fisheries conservation and management directives that these instruments contain.

Further, in the world of international law making and undertakings, States subjects of international law, and not individuals, have the ability to enter into relationships with other States and make State-level commitments. Whatever commitments entered into, whether binding or not, do not affect individuals although it may be stated in a State-level instrument that it also applies to individuals.[38] It follows therefore that if it is desired that individuals take certain actions, the international commitments should be translated into national action plans and directives. Most of these national directives take the form of legislated policy so that they are enforceable. That these would, at legislation stage, have legal obligations is therefore obvious.


The Code

The Code explicitly draws attention to its relationship with other binding international instruments and its scope. In this respect, the relevant and much cited provisions of the Code are Article 1, Nature and Scope, and Article 3, Relationship with other International Instruments. The important excerpts from these provisions are restated below:

"1.1 The Code is voluntary. However, certain parts of it are based on relevant rules of international law.....The code also contains provisions that may be or have provisions that may be or have already been given binding effect by means of other obligatory legal instruments amongst the Parties, such as the Agreement to promote Compliance with International Conservation and Management Measures by Fishing Vessels on the high Seas, 1993 which... forms an integral part of the Code."

"3.1 The Code is to be interpreted and applied in conformity with international the relevant rules of international law, as reflected in the United Nations Convention on the Law of the Sea, 1982. Nothing in this Code prejudices the rights, jurisdiction and duties of States under international law as reflected in the Convention.

3.2 The Code is also to be interpreted and applied:

(a) in a manner consistent with the relevant provisions of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks;

(b) in accordance with applicable rules of international law including the respective obligations of States pursuant to international agreements to which they are party; and,

(c) in the light of the 1992 Declaration of Cancun, the 1992 Rio Declaration on Environment and Development, and Agenda 21 adopted by the United Nations Conference on Environment and Development (UNCED), in particular Chapter 17 of Agenda 21, and other relevant declarations and international instruments."

As regards the extent of its application, the Code "is global in scope and is directed toward members and non-members of FAO, fishing entities, sub-regional, regional and global organizations.... and all persons concerned with the conservation of fisheries resources and management and development of fisheries".[39]

Thus the immediate legal considerations concerning the Code are that:

The Technical Guidelines for Responsible Fisheries[40] formulated largely to help guide implementation of the Code are also voluntary. Certain guidelines, suggest the making of regulations at the national and regional level to implement the Code. To that extent, those technical guidelines would have legislative implications.

The Compliance Agreement

The purpose of the Compliance Agreement is to reinforce the effectiveness of international fisheries conservation and management measures. It does this by redefining and reinforcing in a number of specific ways the concept of flag State responsibility for the activities of fishing vessels flying the flag of a State Party. It also seeks to provide means to ensure the free flow of information on all high seas fishing operations. 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 arrangement.[41]

In the context of the Code, the Compliance agreement is, as stipulated under Article 1.1, an integral part of the Code.


The International Plans of Actions relating to fisheries established under the auspices of FAO are also voluntary. These IPOAs are: the International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries, the International Plan of Action for Conservation and Management of Sharks, the International Plan of Action for the Management of Fishing Capacity and the IPOA-IUU. The IPOAs were negotiated within the context of Article 2 (d) of the Code in that they provide guidance which may be used where appropriate in the formulation and implementation of the international agreements and other legal instruments. The IPOA-IUU in particular states that it is "elaborated within the framework of the FAO Code of Conduct for Responsible Fisheries as envisaged under Article 2 (d)".

Like the Code, the IPOAs are not intended to give rise to any legally binding obligations. This is apparent from drafting style (the "verbose essay style" of drafting), the use of non-mandatory language (e.g. the use of "should" instead of "shall"), the general context in which the negotiations of the texts took place, and other means such as that they do not require formal acts of acceptance by States, they are not structured like internationally binding instruments and there are no provisions on signature, entry into force or other standard final clauses as are common of binding instruments.[42] As is evident from the text, the context of negotiations and declarations made at the adoption of the text, the negotiators of the IPOA-IUU in particular went out of their way, perhaps unnecessarily, to underscore the voluntary nature of the IPOA and that it does not prejudice their rights and obligations under international law and other relevant agreements.[43]


The inherent value of the Code, the Technical Guidelines and the IPOAs is in their objectives, which should be kept in mind in implementation. Many of the actions elaborated in these instruments are specific enough so as to be implemented directly. Other prescribed actions require other prerequisite action or that institutional infrastructure be put in place so that the prescribed actions can be effected. The Code and the IPOA-IUU, specifically directs that specific legislative provisions or frameworks for specific purposes should be established. In other instances, these instruments require that for a specific action to be established, the legal framework or legislative action should be among the matters to be considered if that specific action were to be pursued. This section examines and presents the legislative implication of the Code, the Compliance Agreement and IPOA-IUU.

It should be noted that while it is a possibility, enacting legislation or the promulgation of regulations to effect action should not always be the preferred national implementation response to the Code and the IPOAs. This is because by incorporating their provisions in legislation, the required actions stipulated in the Code and other voluntary instruments once legislated, would become legally binding if mandatory language is used. It is important therefore to ensure that non mandatory language is used in drafting language if certain actions (for example principles) are put in legislation only to draw attention to them or to give them emphasis. Much can be achieved without legislation, through calls to undertake voluntary action by way of national plans of action, policy statements, national voluntary codes of practice and other non binding instruments.

Legislative implications of the Code

The provisions of the Code identified herein are only those that explicitly refer to the need for legislative action or where it is considered that legislative action could provide realistic opportunity for implementation. However, there are instances where national legislative practices have used certain provisions of the Code as inspiration for legislative texts even if these provisions do not prescribe legislative action. Such provisions would be highlighted where appropriate.

The general role of legal frameworks in implementation of the Code

While it has been mentioned that legislation is not the only means by which the Code can be implemented, it is evident that the Code itself recognises the important role of national laws and regulations comprising the legal framework concerning fisheries (including aquaculture) management, as an integral part of the implementation approach for the Code. The fact that one of the objectives of the Code, as stipulated under Article 2 (c), is to "serve as an instrument to help States to establish or improve legal frameworks required for the exercise of responsible fisheries", underscores the important role that legal frameworks play in conservation and management efforts.

This significant role is further emphasized in Article 7.1 which requires that "appropriate policy, legal and institutional frameworks to pursue the goal of long term conservation and sustainable use of fisheries resources" should be established. The importance of appropriate legal framework to facilitate the pursuance of the Code's objectives is restated again in article 7.7.1, article 8.3.1 (in respect of Port State duties), article 9.1.1 (in respect of facilitating responsible aquaculture) and article 10.1.1 (in respect of integration of fisheries in coastal area management). This specific role, once stated as an objective of fisheries management legislation, provides the fundamental basis for general implementation of the Code as well as the specific activities required for the pursuance of the Code's objectives.

Specific legislative implications of the Code

The other provisions of the Code with specific or implied legislative implications are articles:

As the Compliance Agreement is an integral part of the Code, provisions of the Code which reflect the requirements of the Compliance Agreement would in some instances, need to be implemented by State parties to the Agreement through national legislation even if such provisions do no explicitly require this. The same is true with the provisions of the Code which reflect international law and other Agreements, in particular the UN Fish Stocks Agreement.

Of particular interest is current States practice relating to the article 6 - General Principles. As can be seen from the text of this article, its prevailing nature is that it is a statement of principles or fundamental considerations that should be the basis for specific national action for sound conservation and management of fisheries resources. The nature of the article is its very attraction.

Many States have adapted article 6 and incorporated it into national legislation as statement of principles to guide interpretation or implementation of national laws or a reference for specific conservation and management measures. It this way, the principles have become legislated policy but non necessarily binding requirements for many States. In the Pacific, such statement of principles in legislation can be found in the Fisheries Act of Solomon Islands, the Fisheries Management Act of Papua New Guinea, the Fisheries Management Act of Marshall Islands, the Fisheries Management Act of Nauru and the Fisheries Management Act of Tonga. This is a good example of legislating provisions of the Code which gives its principles high profile desired while avoiding the difficulty of having to undertake complicated drafting to translate the utopian objectives of Article 6 into specific action.

The Compliance Agreement

It should be recalled that with respect to binding instruments such as the Compliance Agreement, only States as subjects are obliged to implement it if they are parties to that Agreement. For common law countries such as the island countries of the Pacific, the legal obligation of States under international binding agreements can only be binding on individuals if there is enabling national legislation in place. It should be noted however that States, if they so wish, may implement an international agreement even if they are not parties to the Agreement.

The provisions of the Compliance Agreement with legislative implications[44] are as follows:


The IPOA-IUU was conceived to, as is stated in its name, prevent deter and eliminate illegal, unreported and unregulated fishing.[45] It does this by providing all States, within its terms, comprehensive, effective and transparent measures by which to act. These measures shall be applied, taking into consideration the special requirements of developing countries and respecting the principles of participation and coordination, phased implementation, comprehensive and integrated approach, conservation, transparency and non-discrimination.[46] The IPOA-IUU is said to be probably the most important global instrument concerning fisheries since 1995 when both the Code and the UN Fish Stocks Agreement were finalized.[47]

Due to the nature of the IPOA-IUU (i.e. dealing with largely illegitimate activity), it should come as no surprise that most of the measures set out under the IPOA-IUU would have to be facilitated by national laws and regulations. Most of the groups of measures under Part IV (implementing international instruments, exercising State control over nationals, dealing with vessels without nationality, imposing sanctions for IUU fishing and dealing with IUU fishing by non-cooperating states and MCS), would need implementation through national legislation. The same is true for implementing flag state responsibilities relating to fishing vessel registration, keeping records of fishing vessels, authorizations to fish, coastal State responsibilities and port States measures.

The FAO Technical Guidelines for Responsible Fisheries 9, Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU Technical Guidelines) provides a comprehensive guide to implement the IPOA-IUU including what needs to be provided in national legislation which should be referred to by any national legislative review process.

It suffices for the purposes of this paper to refer to the recommendation in the IPOA-IUU Technical Guidelines relating to national laws, regulations and practice that "[a]t any early stage in the implementation of the IPOA-IUU, each State should undertake a thorough review of its national laws, regulations and practices relating to IUU fishing."[48]

The review should consider such questions as:

To the above could be added the considerations, including legislative options for strengthening State control over nationals also set out in the IPOA-IUU Technical guidelines.[49] In relation to reviewing national legislation to implement the IPOA-IUU measures on MCS, the questions to be asked in the review for strengthening national legislation relevant to MCS contained in Annex C of FAO Fisheries Technical Paper 415[50] are also relevant.


The above review certainly reveal that while the Code and the IPOAs are meant to be voluntary and meant to facilitate implementation of binding instruments, the measures outlined in these voluntary instruments may have significant legislative implications. The fact that the Code is now referred to in many binding international instruments increases this prospect.[51] However, this should not discourage the implementation of the Code and the other voluntary instruments by non legislative means. Much can be achieved through informal arrangements for implementation of the Code. What is important is to begin the process of adapting the Code and the IPOAs to the needs of the State for application within national jurisdiction. This implies, as has been stated with respect to the Code, "a phased assessment - Analysis - Action - process through which the provisions of the Code are set in context of the specific conditions of a region, sub-region, country, locality or fisheries."

Such a process involves "a review of the state of the fisheries, including initiatives that influence or are likely to impact on the sector, a study of the provisions of the Code, the identification of the pertinent issues and constraints, and the elaboration of strategies and (Action plan) to address the issues and constraints."[52]

[36] Legal Officer, Development Law Service, FAO Legal Office, FAO, Viale delle Terme di Caracalla, 00100 Rome, Italy. The views expressed in this paper are personal and do not necessarily reflect the views of FAO.
[37] For instance, the Code in article 2 (d) states: "the objectives of the Code are to... provide guidance which may be used where appropriate in the formulation and implementation of the international agreements and other legal instruments, both binding and voluntary."
[38] For example Article 1.2 of the Code.
[39] The Code Article 1, paragraph 1.2.
[40] The Technical Guidelines are on: Fishing Operations, supplement to Fishing Operations on Vessel Monitoring Systems; the Precautionary Approach to Capture Fisheries and Species Introduction; the Integration of Fisheries into Coastal Area Management; Fisheries Management, supplement to Fisheries Management on Conservation and Management of Sharks and on Ecosystem Approach to Fisheries; Aquaculture Development, supplement to Aquaculture Development on Good Aquaculture Feed Management Practice; Inland Fisheries; Responsible Fish Utilization; Indicators for Sustainable Development of Marine Capture Fisheries; Implementation of the International Plan of Action to Prevent, Deter and Eliminate Illegal Unreported and Unregulated Fisheries.
[41] In its first versions, the Agreement was meant to deal directly with the act of re-flagging, by providing "that parties to the agreement should refuse to register fishing vessels unless they had sufficient grounds to believe that the vessel would 'not be used to undermine the effectiveness of internationally agreed conservation and management measures." It soon became clear however, that general consent would not be reached on any such agreement and for this reason, the primary focus of the draft agreement was changed from the legal act of flagging and vessel registration to the act of authorizing a vessel to fish on the high seas." Gerald Moore, "The Food and Agriculture Organization Compliance Agreement" (1995) 10 International Journal of Marine and Coastal Law 412-416 at 412.
[42] See William Edeson, The International Plan of Action on Illegal Unreported and Unregulated Fishing: The Legal Context of a Non-Legally Binding Instrument, International Journal of Marine and Coastal Law, Vol 16, No. 4, 603-623 at page 608.
[43] See William Edeson ibid.
[44] See also Law and sustainable development since Rio, Legal trends in agriculture and natural resource management, FAO Legislative Study 73, Rome 2002. For a further reading into implementation of the Compliance Agreement in national legislation, see William Edeson, David Freestone and Elly Gudmundsdottir, Legislating for Sustainable Fisheries: A Guide to Implementing the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement, The World Bank Law, Justice and Development Series, Washington, D.C.
[45] For the purposes of the IPOA-IUU:

"3.1 Illegal fishing refers to activities:

3.1.1 conducted by national or foreign vessels in waters under national jurisdiction of a State, without the permission of that State, or in contravention of its laws and regulations;

3.1.2 conducted by vessels flying the flag of States that are parties to a relevant regional fisheries management organization but operate in contravention of the conservation and management measures adopted by that organization and by which the States are bound, or relevant provisions of the applicable international law; or

3.1.3 in violation of national laws or international obligations, including those undertaken by cooperating states to a relevant fisheries management organization.

3.2 Unreported fishing refers to fishing activities:

3.2.1 which have not been reported, or have been misreported, to the relevant national authority, in contravention of national laws and regulations; or

3.2.2 undertaken in the area of competence of a relevant regional fisheries management organization which have not been reported, or have been misreported, in contravention of the reporting procedures of that organization.

3..3 Unregulated fishing refers to fishing activities:

3.3.1 in the area of application of a relevant regional fisheries management organization that are conducted by vessels without nationality, or by those flying the flag of a State not party to that organization, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization; or

3.3.2 in areas or for fish stocks in relation to which there are no applicable conservation and management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law."

[46] See paragraphs 8 to 9.6 of the IPOA-IUU.
[47] William Edeson, supra note 6 at page 603.
[48] IPOA-IUU Technical Guidelines at page 11.
[49] IPOA-IUU Technical Guidelines at pages 13 - 14.
[50] Recent trends in monitoring, control and surveillance systems for capture fisheries, FAO Fisheries Technical Paper 415, Rome 2003 at page 141.
[51] See William Edeson, Towards long-term Sustainable Use: Some Recent Development in the Legal Regime of Fisheries, In International Law and Sustainable Development, Past Achievements and Future Challenges, Eds. Alan Boyle and David Freestone, Oxford University Press, 1999.
[52] B Satia, The Concept, Rationale and Process for the Adaptation of the Code of Conduct for Responsible Fisheries, FAO Rome, paper presented at the West African Regional Workshop on the Adaptation of the Code of Conduct for Responsible Fisheries in West Africa, held in Cotonou, Benin, 1-5 June 1998.

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