Global, regional and unilateral approaches to unregulated deep-sea fisheries

E.J. Molenaar
Netherlands Institute for the Law of the Sea (NILOS) - Utrecht University and Institute of Antarctic and Southern Ocean Studies (IASOS) - University of Tasmania
Private Bag 77, Hobart, TAS 7001, Australia
<[email protected]>

1. INTRODUCTION

The Deep Sea 2003 Conference focuses on deep-sea fisheries, which are defined as those fisheries that take place on the continental slope and in deep-sea areas at depths greater than 200 m. The characteristics of deep-sea fisheries frequently distinguish them from other fisheries. First, they often target long-lived and slow-growing species with late maturity and low fecundity with consequential high risks of overexploitation and the collapse of stocks. As scientific understanding of the biological characteristics of many deep-sea species is still limited, this has serious implications for the adequacy of stock assessment models. This further increases the aforementioned risks. This brings along biodiversity concerns as they may lead not just to economic extinction but even local extinction. These concerns are even more acute for species or populations with small ranges of distribution, as often seems to be the case with species that aggregate around seamounts.

Second, as many of the target species are demersal, the use of certain fishing practices such as bottom trawling can have considerable ecosystem effects, for instance bycatch of other sedentary species and impacts on the sea-bed and subsoil (e.g. deepwater coral reefs). The ecosystem effects of these fishing practices may also lead to biodiversity concerns.

Third, and this leads to the core of this paper, due to their depth of operation, a considerable proportion of deep-sea fisheries takes place in areas where the current international law of the sea gives coastal states no jurisdiction to regulate fisheries unilaterally. In view of the fact that both coastal states and high-seas fishing states have rights and obligations with respect to straddling deep-sea fish stocks and discrete high-seas deep-sea fish stocks^[152], their regulation must take place at the international level. As the effectiveness of international regulation is seriously constrained by its consensual nature, reflected in ‘lowest common denominator’, ‘free rider’ and ‘prisoner’s dilemma’ problems, this makes deep-sea fisheries even more problematical. This does not mean, as is by now widely recognized, that unilateral coastal state authority is a sufficient guarantee of sustainable fisheries.

The last decade especially has witnessed a strong growth in deep-sea fishing activity, as a consequence of the continued worldwide over-capacity in fleet sizes, increasing overexploitation of traditional fish species, increasing global demand for fish products and technological innovations among other factors. In recent years the international community has become more and more aware of, and concerned by, the threats to sustainability of deep-sea fisheries and the threats to marine biodiversity. Such concern was inter alia expressed by the focus on protecting vulnerable marine ecosystems at the Fourth Meeting of the UN’s Open-ended Informal Consultative Process on Oceans and the Law of the Sea^[153], by the latest United Nations General Assembly (UNGA) Resolution on Oceans and the law of the sea^[154], and by the 7^th Meeting of Parties (CoP7)^[155] to the Biodiversity Convention^[156] in February 2004. Moreover, various non-governmental organizations with environmental objectives and several states have been actively addressing these concerns at the national and international level.^[157]

The main objective of this paper is to examine whether, in view of the special characteristics of deep-sea fisheries, the present international legal regime and state practice, there is a need to develop new international law and, or, a more widespread, consistent or pro-active application of existing international law. Section 2 gives a succinct analysis of the present international legal regime and state practice on the basis of which Section 2 proposes regulatory approaches to enhance the sustainability of deep-sea fisheries and to lessen the threats to marine biodiversity. Section 2 ends with some conclusions and observations.

2. THE PRESENT INTERNATIONAL LEGAL REGIME AND STATE PRACTICE

The present international legal regime that applying to deep-sea fisheries that target straddling and discrete high-seas deep-sea stocks is not laid down in a single treaty. Rather, it consists of a multitude of global, regional and bilateral treaties with diverging objectives as well as legally binding acts from various global and regional inter-governmental organizations (IOs). Particularly relevant IOs at the regional level are regional fisheries management organizations (RFMOs).^[158] In addition, many non-legally binding international instruments and acts of IOs have relevance as well.

The basic international legal framework for deep-sea fisheries is provided by the 1982 United Nations Law of the Sea Convention (LOSC). Most importantly, this convention recognizes the sovereignty, sovereign rights and jurisdiction of coastal states with respect to marine living resources within their maritime zones (Arts 2(1), 49(1), 56(1)(a), 56(3) and 77 of LOSC) and the right for all states for their nationals to engage in fishing on the high-seas (Art. 116. See also Art. 92(1)). These rights are qualified by obligations owed to each other (e.g. Arts. 63(2) and 116(b)) and to the international community. The latter obligations are aimed at safeguarding such international community interests as conservation and optimum utilisation of marine living resources and the protection and preservation of the marine environment, including rare or fragile ecosystems and habitats of depleted, threatened or endangered species and other forms of life.^[159]

Among the large number of relevant treaties, two global treaties are particularly relevant. These are the Fish Stocks Agreement and the Biodiversity Convention. The Fish Stocks Agreement applies exclusively to straddling fish stocks and highly migratory fish stocks and therefore not to discrete high-seas fish stocks.^[160] In view of the characteristics of deep-sea fisheries this has important implications. Both treaties contain provisions that ensure that the jurisdictional framework of the LOSC is left unaffected.^[161] The reality is, however, that while the basic fishing entitlements of the LOSC remain unaltered, international legal developments since the adoption of the LOSC have made the exercise of these entitlements increasingly qualified. The widening and deepening of relevant obligations is also evident in these two treaties, for instance their basic obligations to conserve biological diversity and to apply the precautionary approach.^[162] In addition, the key role accorded to RMFOs under Article 8 of the Fish Stocks Agreement is intended to eventually lead to a situation where (high seas) fishing can only be engaged in by vessels flying the flag of states that are members of RFMOs or that cooperate with them (Art. 8(4) of the Fish Stocks Agreement). Opportunities for a high level of compliance are offered by the compulsory dispute settlement procedures of the LOSC and the Fish Stocks Agreement.^[163]

In spite of these positive developments, the effectiveness of the regulation of international fisheries is constrained by the principle of pacta tertiis. This fundamental principle of international law provides that states cannot be bound by rules of international law unless they have in one way or another consented to them^[164]. This not only imposes considerable restraints on law formation but also tempts states to ignore commitments made by others and enjoy ‘free-rider’ benefits. As these benefits can in principle be enjoyed by all nationals of a state, both natural and juridical persons, obtaining the nationality of a free rider state is attractive. General international law and the LOSC moreover give states a wide discretion in deciding on the conditions that vessels must meet to register with it (fly its flag or obtain its nationality). The requirement of a ‘genuine link’^[165] between a state and its vessels is broadly accepted as meaning ‘no more’ than that flag states must exercize effective jurisdiction and control over them.^[166] Sadly, there is no multilateral agreement on a minimum level of effectiveness or what the consequences should be if effectiveness falls below that level.

To an important extent, these international law constraints lie at the heart of the problems that illegal, unreported and unregulated (IUU) fishing currently pose to marine capture fisheries worldwide. This is particularly true for unregulated fishing within the meaning of Paragraph 3.3.1 of the IPOA on IUU Fishing.^[167] There, unregulated fishing essentially refers to fishing activity under the flag of non-(cooperating) members of RFMOs. Until the Fish Stocks Agreement enjoys (quasi-) universal participation by states that fully comply with its obligations, in particularly those in Article 8 in relation to RFMOs, this is expected to remain a considerable problem in the foreseeable future due to the pacta tertiis principle. This troublesome prospect was a major factor in the call for an IPOA on IUU Fishing, whose overarching objective is to ensure that states and IOs do whatever possible to combat IUU fishing, provided they remain within the limits of international law.

It is submitted that unregulated fishing within the meaning of Para. 3.3.2 of the IPOA on IUU Fishing - that is: fishing in the absence of (international) regulation - is at the moment actually a more serious problem for deep-sea fisheries. Clearly, in the absence of regulation by RFMOs, fishing cannot be inconsistent with, or contravene any, measures and thereby amount to unregulated fishing within the meaning of Para. 3.3.1. Although such fishing activities may amount to state responsibility, this seems less likely to lead to unilateral or multilateral action by other states than if fishing activity would have been contrary to an RFMO’s measures. In the latter case, action would benefit from more legitimacy and could be taken pursuant to established compliance procedures.

The absence of international regulation can in part be explained by the fact that deep-sea fishing is a relatively new type of fishing. So far, the only example of international regulation with an exclusive focus on deep-sea fisheries seems to be the bilateral arrangement of 2000 between Australia and New Zealand for the South Tasman Rise orange roughy (Hoplostethus atlanticus) fishery.^[168] As a consequence of new population size estimates, both states agreed in July 2003 to considerably lower the total allowable catch (TAC) with immediate effect and to further lower the TAC in coming years unless the fish return in large quantities.^[169]

Only a few of the RFMOs that are currently operating would in principle have competence to deal with straddling and discrete high-seas deep-sea fish stocks.^[170] Of these, only the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR),^[171] the Northwest Atlantic Fisheries Organization (NAFO)^[172] and the North-East Atlantic Fisheries Commission (NEAFC)^[173] seem to have actually exercized that competence so far. This does not mean that a need to regulate deep-sea fisheries will arise or has already arisen within the regulatory area of all or most existing RFMOs. However, in areas where such a need does arise and a competent RFMO is not in place, the characteristics of deep-sea fisheries are such that they may no longer exist once the international institutions are operational. An example is the negotiation of the establishment of a South West Indian Ocean Commission (SWIOFC), where progress has so far been slow.^[174] The lucrative orange roughy fishing grounds which triggered one of the two SWIOFC negotiating tracks have by now been exhausted.^[175] It is admitted, however, that the nature and history of these negotiations, especially that the two tracks were initially operating in isolation from, and ignorance of, each other and the difficulty of integrating the fundamentally different objectives of these two tracks, contributed greatly to this lack of progress.

Space here does not allow for a comprehensive examination of global state practice on the regulation of deep-sea fisheries. But, the overall impression is nevertheless that, so far, both national and international regulation of deep-sea fisheries has often been too little, too late and insufficiently cautious to ensure sustainable fisheries and to avert serious ecosystem effects and biodiversity threats.^[176] Whereas the need for (more) national and international regulation of deep-sea fisheries is not challenged, diverging views abound as to the level at which regulation should take place and which form it should take.

3. SOME REGULATORY APPROACHES

3.1 Regulatory options

The future national and international regulation of deep-sea fisheries can take many forms due to the wide choice of potentially effective technical measures and more generally oriented regulatory approaches. Which measures are appropriate for regulating deep-sea fisheries depends on many factors, most importantly on their spatial dimension and the level (national or international) at which they are adopted. Examples of possible measures are strict ‘no-take zones’, area-closures for certain fishing practices and areas with vertical zoning. The next three subsections address possible global, regional and unilateral regulatory approaches. The emphasis is specifically on deep-sea fisheries rather than on current problems of high-seas fishing in general. Generic regulatory approaches are therefore only mentioned.

3.2 Global regulatory approaches

At present there is no single ‘purpose-built’ global treaty or IO for high-seas fishing in general or for discrete high-seas fish stocks in particular. As the Fish Stocks Agreement does not apply to discrete high-seas fish stocks, the international legal framework for these fisheries proceeds from rather general provisions of the LOSC, without the benefits of the progressive development of the law that has been achieved by means of the Fish Stocks Agreement. The question is therefore whether negotiations should be started to create such a global treaty^[177] and, if so, whether that global treaty should at the same time function as the constituent instrument for a single global fisheries management organization (GFMO). It is submitted that in view of the urgent need for regulation of deep-sea fisheries and the considerable time that is likely to be involved in negotiating such a treaty, these approaches should not have the international community’s priority. They should only be pursued after, or in tandem with, agreement on other global, regional or unilateral approaches that are likely to have more beneficial short-term impact on the regulation of deep-sea fisheries.

The negotiation process for the UNCLOS III had little support for the establishment of a single GFMO.^[178] To some extent this may have been motivated by a traditional, common and widespread resistance against ambitious and comprehensive institutional reform, especially where the role and competence of existing institutions established pursuant to the then predominant piecemeal approach, would be under threat. Such sentiments are likely to be widespread today as well. A lack of support then and now can further be explained by a recognition that the regulation of marine fisheries will always require a strong regional component. In contrast, there was widespread recognition that the need for uniformity in international merchant shipping required regulation at the global level. For this reason, the LOSC enhances the role of the International Maritime Organization (IMO) as the "competent international organization".^[179] It is therefore agreed with Hayashi (2005) that the most appropriate way forward would be to gradually strengthen the respective roles of the UNGA and FAO’s Committee on Fisheries (COFI).^[180]

The negotiation of a global treaty for high-seas fisheries would, similar to the Fish Stocks Agreement, require implementation at the regional level by means of (the establishment of) RFMOs. That the treaty may also take considerable time to enter into force may perhaps be less problematic. Even prior to its entry into force, the Fish Stocks Agreement already had a large impact on the negotiation-processes of the SEAFO Convention^[181] and the WCPFC Convention^[182] and the treaties that were eventually adopted. More problematic is the fact that the Fish Stocks Agreement has been adopted only relatively recently and its status of participation, and thereby its support, does not yet come near that of the LOSC.^[183] Presumably, therefore, the most that the negotiation of a global treaty could at the moment hope for is essentially a mutatis mutandis application of some of the main provisions of the Fish Stocks Agreement.^[184] It could even be argued that some years are needed to consolidate the advances in international law laid down in the Fish Stocks Agreement and to secure its wider participation and support. Starting a related global negotiation-process too early could even lead to a regression of the law.^[185] If the mutatis mutandis approach is accepted as the best that can be hoped for, the UNGA could in one way or another be involved in achieving this result.

It is also questionable whether such a global treaty would really be necessary before action can be taken at the regional level. The negotiation and adoption of the Fish Stocks Agreement has not triggered a general overhaul of the constituent instruments of RFMOs that were already in existence prior to the negotiations.^[186] Instead of constitutional reform, most RFMOs seem nevertheless to have adjusted their practice to many aspects of the Fish Stocks Agreement. Furthermore, it seems reasonable to assume that those RFMOs with competence to deal with discrete high-seas (deep-sea) fish stocks^[187] will manage these stocks on relevant aspects essentially similar to straddling fish stocks. It is noted that in relation to discrete high-seas stocks, RFMOs could not rely on provisions of the Fish Stocks Agreement, which are unable to become customary international law or are unlikely to do so in the near future. Examples are the dispute settlement provisions and the technical intricacies of the provisions on non-flag state high-seas enforcement. But, it is also submitted, existing RFMOs and negotiation-processes to establish new RFMOs can by now quite safely rely on customary international law in applying concepts like the precautionary approach.

It is finally argued that the legitimacy of RFMOs in managing marine capture fisheries is not, or is no longer, fundamentally challenged. The challenges that do arise relate to the consistency of their establishment with international law^[188] or the consistency of the adoption and application of their conservation and management measures with international law. In fact, challenges based on these grounds implicitly confirm the legitimacy of RFMOs and their competence to take, or call for, measures against (non-cooperating) non-members.^[189] This also suggests that the strengthened duty to cooperate with RFMOs pursuant to paragraph (3) of Article 8 of the Fish Stocks Agreement has already evolved into customary international law.^[190] However, an authoritative confirmation of the correctness of this assertion may not be available until such time that RFMOs accept the need for bolder measures against non-cooperating non-members, for instance through trade-related measures. As such measures could lead to the institution of proceedings under international trade law, RFMOs need to be aware of the consequences of discrimination between (cooperating non-) members and (non-cooperating) non-members.^[191] But as argued here, those RFMOs that do not have to fear such consequences, would be acting in accordance with international law when combating unregulated fishing of discrete high-seas (deep-sea) fish stocks.

3.3 Global regulatory approaches involving existing global bodies

There are several global bodies that could assist in averting some of the threats to the sustainability and biodiversity of deep-sea fisheries. This is a consequence of the decentralized nature of international law. No hierarchy exists between the various forms or manifestations of international law (e.g. treaties, custom, international judgments and acts of IOs). Even the notion that the doctrine of the consensual nature of international law does not apply to peremptory norms of international law (jus cogens)^[192] is merely accepted as a principle, whereas no agreement exists on which norms would be covered. All that is available is a handful of general principles such as that more specific rules take precedence over general rules (lex specialis derogat legi generali)^[193] or that newer rules take precedence over older rules (lex posterior derogat lex priori).^[194] Hierarchy is also absent in relation to international law-making processes (e.g. IOs, international dispute settlement bodies and diplomatic conferences).

The competence or mandate of many international bodies, including dispute settlement bodies, often overlap with each other. Overlaps in competence can take many forms. An overlap in a geographical sense is usually not a problem in the absence of a substantive overlap (e.g. of species). Where a substantive overlap does exist, different types of regulation (e.g. management, conservation or trade regulation) may still lead to incompatible results. To minimize incompatibility, many international bodies have formal or informal coordination or primacy arrangements.^[195] These arrangements as well as the competence of international bodies are in a constant state of flux as a consequence of new developments and the changing needs and interests of the international community. The decision of a particular international body, including dispute settlement bodies, to pursue a particular issue, is often determined by considerations of international policy, politics and ‘forum-shopping’.^[196] This also shows that international bodies are not independent actors as such, but groupings of sates in diverging compositions subjected to diverging rules of procedure and decision-making.

In view of their objective of averting some of the sustainability and biodiversity threats of deep-sea fisheries, the usefulness of three global bodies is discussed: CITES^[197], CMS^[198] and the UNGA. With respect to the use of the ‘machinery’ of the Biodiversity Convention, it is merely noted that this may be an attractive option for some states, but not for others.^[199]

The usefulness of CITES in regulating trade in deep-sea fish species has been the subject of heated debate in recent years. The suitability of the criteria used by CITES to determine the need for trade regulation for commercially exploited aquatic species has been questioned.^[200] One of the main problems is that where one or more stocks of such a species is or are healthy, this would make listing the species too general a tool. But, there may be situations where the interests of biodiversity outweigh those of exploitation. Many states also regard a resort to CITES as a move that would undermine the authority and legitimacy of RFMOs and the FAO.^[201] This played a considerable role during the 12^th Meeting of the Conference of the Parties (CoP12) to CITES, 2002 when Australia proposed to list Patagonian and Antarctic toothfish (Dissostichus spp.) on Appendix II of CITES, but, faced by lack of support, eventually withdrew the proposal.^[202] A month or so prior to CoP12, this Australian proposal had received practically no support at the XXI^st Annual CCAMLR Meeting (2002).^[203] In the background, the sensitive sovereignty situation in the Antarctic Treaty System (ATS), of which CCAMLR is part, also explains the reluctance to ‘external interference’. Whereas the 25^th Meeting of COFI in 2003 saw the ‘in principle’ confirmation of the primacy of the FAO and RFMOs in fisheries conservation and management, it also recognized that a role for CITES is not excluded "in exceptional circumstances".^[204]

Whether or not parallel regulation by CITES has more advantages than disadvantages cannot be adequately discussed here. However, it is to be hoped that the possibility of full involvement by CITES will eventually be beneficial to the sustainability of (deep-sea) fisheries, including the minimization of ecosystem effects. At least for the moment the focus is on strengthening cooperation between CITES and FAO on the one hand and CITES and RFMOs like CCAMLR on the other.^[205] Unfortunately, at the XXII^nd Annual CCAMLR Meeting in 2003 no progress was made in this respect.^[206] If progress on the enhancement of the conservation and management of toothfish continues to be minimal, this inaction is expected to bolster the determination of those in favour of using CITES^[207] to enhance conservation measures. This is particularly relevant for deep-sea fisheries, where regulation is currently often absent. While this would, therefore, avoid actual overlaps in competence between CITES and a concrete RFMO or arrangement, the more fundamental concerns about the roles of the FAO and RFMOs would still exist. At least in the immediate future the role of CITES may therefore be limited to that of the ‘bogeyman’ for RFMOs.

The reasons for the limited usefulness of CITES for tackling unregulated deep-sea fisheries are partly similar to those of the CMS. The scope of the CMS would certainly allow states to list commercially exploited fish species occurring within coastal state maritime zones as well as the high-seas under its Appendix I.^[208] Listing means that state parties must prohibit intentional capture and also protect relevant habitats. Species could also be listed on Appendix II and be covered by agreements aimed not merely at conservation but also management, thus encompassing utilization.^[209] Such agreements could also be developed without listing on Appendix II, pursuant to Article IV(4) of the CMS. It is worth noting that none of the agreements that have been established under Article IV so far have a utilization component. However, as is similar to the situation with CITES, even if this would not lead to actual overlaps in competence, it would raise fundamental concerns about the roles of the FAO and RFMOs.^[210] Resort to the CMS in the near future is therefore not only unlikely but is also insufficiently plausible to exert a bogeyman effect.

A potentially more successful approach to addressing the urgent situation in deep-sea fisheries would involve the UNGA. Based on the UNGA’s instrumental role in establishing a global moratorium on large-scale pelagic drift-net fishing on the high seas^[211], the UNGA could adopt a (non-legally binding) resolution calling for a moratorium on certain types of deep-sea fishing, for instance for bottom trawling on seamounts, deepwater coral reefs and other biodiversity hotspots.^[212] Although such a moratorium would certainly be welcome, it seems that whereas the non-sustainability and wastefulness of large-scale pelagic drift-net fishing was widely recognized, such a general and unqualified view probably does not exist vis-à-vis deep-sea fishing, or even more specifically, deep-sea bottom trawling. Proposed resolutions may therefore not be adopted without a vote and may even attract a significant number of votes. Whereas such resolutions would still be passed in accordance with the decision-making procedures (Art. 18 of the UN Charter), they may eventually be unable to attract the necessary universal support, and thereby authority, to lead to universal implementation. While this may be true, even an UNGA resolution that lacks universal support can make a contribution to enhancing awareness and to creating stimulus and legitimacy for further action at the regional and national level.

3.4 Regional regulatory approaches

A regional approach to addressing the absence of regulation of deep-sea fisheries appears both logical and suitable, whether or not pursued in tandem with a global approach through, for instance, the UNGA. As was argued in Section 1, action at the regional level does not have to await the adoption or entry into force of a global treaty modelled on the Fish Stocks Agreement. Those RFMOs that already have competence to regulate discrete high-seas deep-sea fish stocks should therefore immediately use this competence to assess the need for regulation and, if this need has been ascertained, to commence regulation consistent with the Fish Stocks Agreement. More problematic are situations where no existing RFMOs have competence spatially or substantively (species) owing to the range of distribution and the type of deep-sea fish stocks will have greater difficulties. As the negotiation-process for SWIOFC to some extent illustrates, the urgent need for regulation may render the negotiation of a classic-style RFMO an inadequate solution. An alternative would be an ‘arrangement’ within the meaning of Article 1(1)(d) of the Fish Stocks Agreement. This provision defines an arrangement as

"a cooperative mechanism established in accordance with the [LOS] Convention and this Agreement by two or more states for the purpose, inter alia, of establishing conservation and management measures in a subregion or region for one or more straddling fish stocks or highly migratory fish stocks".

This clearly allows for a wide range of different types of arrangements, provided the general condition of consistency with international law is met and the arrangement’s purpose falls within the scope of the Fish Stocks Agreement. This does not prevent sates from establishing arrangements with a purpose that falls beyond the scope of the Fish Stocks Agreement, e.g. because they deal with discrete high-seas stocks. Such arrangements must nevertheless comply with other rules of international law, including the LOSC and customary international law. Moreover, as the 2000 South Tasman Rise Orange Roughy Arrangement illustrates, an arrangement does not necessarily have to be laid down in a treaty.^[213] Compared with RFMOs, establishing arrangements may often have more benefits in relation to expeditiousness, flexibility and cost.

One possible regional approach is to use the cooperative framework of an existing RFMO to establish such an arrangement. Here again, many different approaches are possible. An interesting case is that of the regulation of toothfish under the CCAMLR Convention. The regulatory scope of the CCAMLR Convention, and thereby the competence of CCAMLR, is set out spatially and substantively in Articles I and II. The basis of its spatial competence is an approximation of the Antarctic Convergence (Art. I), which delimits the warmer northern waters from the cooler southern waters. The CCAMLR Convention Area is therefore regarded as one of the few RFMOs whose regulatory area largely coincides with that of a large marine ecosystem (LME),^[214] with all the consequential advantages that should bring for ecosystem-based management. In reality, however, several species managed by CCAMLR also occur outside the Convention Area, either as transboundary or discrete stocks. In the latter case, stocks may be discrete to the high seas (outside the Convention Area) or to coastal state maritime zones or they may be straddling stocks between these areas.^[215] Its occurrence beyond the Convention Area is particularly relevant for Patagonian toothfish. Article XI of the CCAMLR Convention addresses a part of this problem by requiring CCAMLR to cooperate with coastal states with a view to harmonizing conservation for transboundary stocks between the Convention Area and coastal states maritime zones beyond the Convention Area.^[216]

Faced with serious IUU fishing problems, CCAMLR was compelled to act not only under Article XI but to also address the high-seas dimension of the problem. In addition to adopting four (non-legally binding) CCAMLR Resolutions,^[217] the main measure so far has been the regulation of trade in toothfish through the ‘Catch Documentation Scheme for Dissostichus spp.’ (CDS).^[218] The main objective of the CDS is to determine whether toothfish are caught in a manner consistent with CCAMLR’s Conservation Measures. All toothfish transhipped, landed in ports, imported, exported or reexported must be accompanied by a completed and validated Dissostichus catch document (DCD).

Whereas contracting parties to the CCAMLR Convention are legally bound to these specific obligations under the CDS,^[219] if non-contracting parties or their vessels want to engage in some of these activities, in particular fish export, they are effectively forced to participate in the CDS. Several non-contracting parties therefore currently participate on a voluntary basis in the CDS.^[220] Obviously, however, if toothfish are caught in contravention of CCAMLR’s Conservation Measures, in particular inside the Convention Area by an unlicensed vessel,^[221] the DCD will not be accepted. If, on the other hand, the DCD indicates that the catches were made outside the Convention Area, whether on the high seas or within coastal state maritime zones, the DCD must in principle be accepted in view of the sovereignty, sovereign rights and high-seas freedoms related to fishing under international law. As a consequence, however, CCAMLR had implicitly started to regulate fishing activities outside the Convention Area.^[222] The experience in the operation of the CDS so far has demonstrated a serious suspicion that much of the toothfish reported in DCDs as caught on the high seas outside the Convention Area, is in reality caught inside the Convention Area.^[223] Whereas the CDS^[224] and CCAMLR Resolutions 16/XXII and 17/XX^[225] recognize the discretion of states, in particular in their capacity as port state, to require additional verification of DCDs for catches on the high seas outside the Convention Area, inter alia by means of satellite-based vessel monitoring system (VMS) data, there is no legally-binding obligation to do so. Attempts to address these problems at the XXIst and XXIInd Annual CCAMLR Meetings in 2002 and 2003 by means of more explicit regulation beyond the Convention Area were largely unsuccessful.

At the XXIst Meeting, Australia proposed that the spatial scope of the CCAMLR Convention be amended to include certain areas of the Indian Ocean. In addition, or alternatively, it was proposed that CCAMLR adopt the necessary Conservation Measures to regulate fishing in the high-seas parts of these areas.^[226] The first proposal attracted no support whatsoever and the alternative proposal was not discussed.^[227] Some delegations noted that the process of amending the CCAMLR Convention pursuant to its Article XXX would be lengthy and possibly unsuccessful as it requires formal adherence by all Commission Members. Other delegations noted that this would affect the competence of other RFMOs.

At the XXIInd Meeting, Australia, New Zealand and the United States submitted a proposal for a centralized VMS (CVMS) which would also apply to fishing for toothfish outside the Convention Area..^[228] Rather than amending the CCAMLR Convention, this proposal envisaged a Conservation Measure that would either apply explicitly outside the Convention Area or implicitly by means of a linkage with the CDS.^[229] This time the objections not only related to other RFMOs with competence but also alluded to CCAMLR’s lack of (spatial) competence.^[230] In the end, even a watered-down proposal whose scope was limited to the Convention Area was unable to attract a consensus.^[231]

The lack of consensus on these 2002 and 2003 proposals seems to indicate that whereas CCAMLR Members were prepared to accept the implicit approach pursued by the CDS in 1999, the explicit approach pursued by these recent proposals would secure no consensus. It is submitted that some of the objections that were raised are more convincing than others. As regards conflicting, or overlapping competence with other RFMOs it should be recognized that the establishment of SWIOFC may not just still take considerable time but may not even happen at all. Also, even if the Galapagos Agreement^[232] enters into force and becomes fully operational, some CCAMLR Members may not regard it as a ‘competent’ organization in view of the substance of the Agreement as well its negotiation-process.^[233] Last, while the SEAFO Convention has recently entered into force, it will take some time for it to become fully operational. And even when that happens, its membership may decide to recognize the primacy of CCAMLR in regulating toothfish.^[234] Finally, if CCAMLR would adopt Conservation Measures whose spatial scope would overlap with the proposed regulatory area of another RFMO, it could specifically indicate that these are to be withdrawn when that RFMO, once established, so wishes. It is to be hoped that such an RFMO does not request such a withdrawal until it is capable of managing the fish stocks with comparable effectiveness and that the two RFMOs establish cooperative arrangements to ensure compatibility in their management.^[235]

As regards the formal competence of CCAMLR, it has to be admitted that the relevant provisions of the CCAMLR Convention leave little room for an extensive, purposive or ‘implied powers’ interpretation. Even though Article I(1) and (2) of the CCAMLR Convention provide that it applies to ‘Antarctic marine living resources’, this is firmly linked to the spatial scope of the Convention. Moreover, the Convention’s objective of "the conservation of Antarctic marine living resources" in Article II(1) must be interpreted in light of Article I(1) and (2). The function or mandate of CCAMLR laid down in Article IX(1) is to give effect to the Convention’s objective and is thereby also linked to Article I(1) and (2). The residual tasks and types of Conservation Measures under Article IX(1)(h) and (2)(i) and CCAMLR’s obligations to cooperate with coastal states under Article XI and with relevant IOs (including RFMOs) under Article XXIII(3) and (4), do not warrant a different conclusion either.

It seems also likely that some CCAMLR Members were concerned about potential implications beyond CCAMLR if a strict treaty interpretation would not be followed. The many competence issues that have arisen under the IWC Convention^[236] in recent years are just one example.^[237] Having said that, one fundamental difference between the IWC Convention and the CCAMLR Convention is that decision-making in the former occurs by simple or qualified majority. Consensus decision-making within the CCAMLR Convention at least guarantees the widest possible support. One possible solution to the lack of formal competence would be, as suggested in the beginning of this subsection, to use the cooperative framework of CCAMLR to establish an arrangement. Whereas CCAMLR would function as a forum to negotiate such an arrangement, its adoption would take place according to independent procedures. As already noted, such an arrangement must be consistent with international law, including the LOSC and customary international law. Most importantly, it should be non-discriminatory, open to new participants and based on an equitable distribution of fishing opportunities. The adoption of such an arrangement would attest to the CCAMLR Members’ willingness to provide flexible and expeditious solutions to pressing problems. Such action would also allow CCAMLR to reassert its position as a pioneering and leading RFMO; a position that has been under increasing pressure in recent years. While the specifics of CCAMLR’s lack of competence are probably unique to CCAMLR, the proposed solution is relevant for many different lack-of-competence scenarios. The envisaged action by CCAMLR may therefore also inspire others to adopt the flexible and expeditious solutions that the regulation of deep-sea fisheries so desperately needs.

3.5 Unilateral regulatory approaches

States can choose from a wide range of unilateral regulatory approaches that can benefit the sustainability of deep-sea fisheries and the safeguarding of biodiversity. However, where these are based on a state’s jurisdiction under the nationality principle (including flag state jurisdiction), there are of course economic implications. The domestic fishing industry is likely to regard stringent unilateral regulation or a prohibition of (certain) deep-sea fisheries as unfair in view of the competitive advantages for states regulating less stringently or not at all. The effectiveness of such unilateral regulation may also be less than satisfactory. However, a lack of effective national or international regulation cannot serve as an excuse for continuing to engage in fishing activity that is inconsistent with obligations under international law both for being unsustainable and for the threat it poses to biodiversity. Action at the global level, e.g. through a resolution by the UNGA, would be helpful as it would remind states of their obligations and, one hopes, contribute towards creating a level playing field.

One approach to regulating or prohibiting high-seas bottom trawling that would not be affected by open access and ‘free rider’ problems relies on a coastal state’s sovereign rights over its continental shelf. This option would be available to states that have not yet established an EEZ or exclusive fishing zone (EFZ), e.g. many coastal states in the Mediterranean Sea. It would also be available to states with a so-called outer continental shelf: i.e. the legal continental shelf extending beyond 200 nm from the baseline in accordance with Article 76 of the LOSC.^[238]

A coastal state has sovereign rights over its continental shelf "for the purpose of exploring it and exploiting its natural resources" (Art. 77(1) of the LOSC). These natural resources consist of the non-living resources of the sea-bed and subsoil together with living organisms belonging to sedentary species (Art. 77(4) of the LOSC). The latter are defined as:

"organisms which, at the harvestable stage, either are immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil" (Art. 77(4) of the LOSC).

While it is generally accepted that this would include species like clams and abalone, for other species this is not so clear.^[239] This notion of ‘sovereign rights’ falls short of full sovereignty, but comprises comprehensive jurisdiction with a scope that is identical to the scope of the sovereign rights.^[240] Article 78(2) of the LOSC stipulates that coastal states are not to exercize their sovereign rights in a way that would infringe or result in unjustifiable interference with the rights and freedoms of other states.

As mentioned before, it is submitted that these sovereign rights can also be used to regulate or prohibit deep-sea fisheries that use bottom-trawling, for instance to protect deepwater coral reefs (e.g. Lophelia pertusa) or benthic communities.^[241] To protect these, such fishing practices have occasionally been prohibited within EEZs or EFZs. For instance, in 1999 Norway commenced mapping deepwater coral reefs within its EEZ and subsequently protected them by prohibiting the use of fishing gear that is dragged along the bottom. At the time of writing, the protected reefs include the Sula ridge, the Iver ridge and the Røst reef, the world’s largest coldwater reef.^[242] In May 1999 Australia proclaimed the Tasmanian Seamounts Marine Reserve in which all trawling deeper than 500 m was prohibited to protect benthic coral- and urchin dominated communities as from August 1999.^[243] And, the EU banned bottom trawling in the area of the Darwin Mounds, northwest of Scotland in 2003^[244] and proposed a similar ban in areas around the Azores, Madeira and the Canary Islands in 2004.^[245]

So far, however, there does not seem to have been an exercise of sovereign rights over the continental shelf or on the outer continental shelf in the circumstances envisaged in this subsection; that is, in the absence of an EEZ or EFZ. It is nevertheless submitted that international law, including the LOSC, would not only allow an exercise of these sovereign rights for this purpose but would at times require this. As regards the scope of the sovereign rights, the purpose of "exploring it and exploiting its natural resources" would by implication allow a coastal state to prohibit any exploring or exploitation whatsoever and thereby preserve the natural resources (Art. 77(2) of the LOSC). However, whereas the definition of natural resources in Paragraph (4) of Article 77 includes all non-living resources, the only living organisms explicitly included are those belonging to sedentary species. The rationale for the inclusion of sedentary species can partly be explained by their limited mobility at the harvestable stage. As their exploitation would have only minimal transboundary impacts, there was no need for internationalisation. It was generally accepted that demersal fish species would not fall within this category.^[246]

It can be argued that coral reefs fall within the definition of natural resources for the reason that they consist of both living and non-living components. It is submitted, however, that the words "at the harvestable stage" should not be interpreted in a way that would exclude benthic organisms that are not (yet) intended for exploitation. Such an interpretation would not be consistent with the above-mentioned rationale. Consequently, it is submitted that the sovereign rights under Article 77 can also be used to preserve such organisms and protect them from interference. States wishing to prohibit bottom trawling or other fishing practices that have adverse impacts on the natural resources of their continental shelf, including sedentary species, should also point to their obligations under international law and emphasize that such action would respond to the growing concern of the international community on these issues.^[247] Here too, action at the global level, inter alia through a resolution of the UNGA, would help to support states that contemplate such action.

Finally, it should be emphasized that Articles 78(2) and 300 of the LOSC require coastal states to ensure non-discrimination in the exercise of their sovereign rights. This is necessary in two distinct situations. In the first, coastal state regulations on the (outer) continental shelf must apply equally to foreign and nation vessels. In the second, the stringency of coastal state regulation must be consistently uniform in all its maritime zones. An unjustifiable or arbitrary higher level of stringency in regulation on the (outer) continental shelf in comparison with maritime zones where foreign vessels have no fishing access, would give national vessels a competitive advantage and thereby discriminate against high-seas fishing states.

4. CONCLUSIONS AND OBSERVATIONS

If the gradual worsening of the current worldwide crisis in marine capture fisheries is to be reversed, states have to be progressive, pro-active and precautionary, whether at the national, regional or global level. If ever there were a need for such a course of action it would be for the regulation of deep-sea fisheries now. In view of the special characteristics of deep-sea fisheries, the current international legal regime and relevant state practice, regulatory action needs to be taken with the utmost urgency. As there may not be enough time for conceptually sound and holistic but incremental processes for regime-building, the focus should first of all be on flexible and expeditious action in the short term.

The approach advocated in this paper would be one where complementary action is taken simultaneously at the global, regional and national level. Efforts at the global level should first be directed through the UNGA to enhance awareness and to create the necessary stimulus and legitimacy for further action at the regional and national level. In view of the urgency of the matter priority should not be given to starting a negotiation-process for a global treaty modelled on the Fish Stocks Agreement. Under the current circumstances, the outcomes of such a process are expected to be modest at best. Moreover, even without such a global treaty, the regulation of discrete high-seas (deep-sea) fish stocks would still be possible on the basis of customary international law. This basis can be relied on not only for such concepts as the precautionary approach but also for the fundamental role and authority of RFMOs in fisheries management and their ability to call for, or take, action against (non-cooperating) non-members.

At the regional level, the need for urgency requires that efforts should not initially be aimed at establishing new RFMOs but instead at more flexible and expeditious options, for instance concluding arrangements, treaty or non-treaty, and within or outside the cooperative framework of existing RFMOs. It is to be hoped that CCAMLR can play a leading and guiding role in this regard.

One option for unilateral action discussed in this paper would be available for coastal states that have yet to declare an EEZ or an EFZ or that have a continental shelf beyond 200 nm from their baselines. Such states should exercize, in a non-discriminatory manner, their sovereign rights to regulate or prohibit bottom trawling and other fishing practices that have adverse impacts on the natural resources of their continental shelf.

5. ACKNOWLEDGMENTS

The author is grateful for comments by N. Bouffard, I. Hay, M. Lodge and A. Serdy on an earlier version of the article. The author remains entirely responsible for the current text.

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