THEME 7
Governance and management

Governing deep-sea fisheries: future options and challenges

M. Hayashi
Waseda University, School of Law
Nishi-Waseda, Shinjuku-ku, Tokyo, Japan
<[email protected]>

1. INTRODUCTION

The papers and discussions presented at the Conference make it clear that despite great advances in the global regime on fisheries the existing legal instruments are not adequate in dealing effectively with the current challenges to the management of deepsea fisheries. The main task of this paper is to explore the ways to address the gaps in the existing regime with a view to establishing a better global governance system.

At the outset, it should be stressed that given the universal acceptance of the 1982 UN Convention on the Law of the Sea (LOSC) and its character as the "constitution for the oceans", the global governance of deep-sea fisheries in the foreseeable future must be built on the basis of the Convention. Some new steps can be taken under existing provisions to strengthen the management of deep-sea fisheries. This does not mean, however, that they are perfect and sufficiently detailed to meet the current and future challenges effectively.

One of the options available for filling any gaps or improving existing provisions of the LOSC is the amendment procedure under Article 312, as Dr Johnston has pointed out (Johnston 2004). It has also been widely felt that the Convention, which lays down essentially the general principles and framework, particularly in the field of fisheries, should be supplemented by additional legal instruments as the international community perceives such needs or finds new gaps in its provisions. Indeed, this is what was already done in the form of the UN Agreement^[338] in 1995 with respect to the conservation and management of straddling stocks and highly migratory stocks. These two approaches are not incompatible with each other, and in any future discussions both options should be kept open, so that depending on the substantive contents, either of the two, or both, approaches may be used.

In this paper, I shall focus on the latter approach since I believe that a supplementary instrument could provide a vehicle for formulating more specific, detailed and flexible rules. It is also a procedurally easier one to employ than the amendment approach.

In discussing future legal options for the more effective management of deep-sea fisheries, four situations should be clearly distinguished according to the location where the targeted stocks occur: first, stocks occurring solely within the exclusive economic zone (EEZ) of a coastal state; second, those straddling the borderline of two or more EEZs; third, those that straddle an EEZ and adjacent high sea areas; and fourth, the discrete stocks occurring only in the high seas. The first three situations do not require any new binding instrument supplementing the LOSC. However, in my view, the last situation would benefit from a supplementary agreement.

I shall discuss these four situations in turn. But the main focus will be on the last, dealing with the high seas.

2. STOCKS OCCURRING WITHIN AN EEZ

Where a deep-sea stock is found solely within the EEZ of a coastal state, the coastal state has the exclusive jurisdiction and a duty to conserve and manage them in accordance with Articles 61 and 62 of the Convention. In addition, the relevant provisions of Part XII (Protection and preservation of the marine environment), in particular Article 194 (5), apply. That article requires states to take measures "necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species". It should also be noted that in taking any regulatory measure related to fishing, the coastal state must have due regard to the rights and duties of other states within the EEZ. This last point is particularly relevant when the coastal state establishes highly restricted marine areas, such as marine protected areas (MPAs), which could affect the freedom of normal navigation and other lawful uses.

One may argue that these provisions are not sufficient for the effective management of deep-sea stocks. However, since such stocks are located within areas under exclusive national jurisdiction, it would be unrealistic to expect that a more detailed agreement be concluded at the global level. A more practical approach would be the preparation of a set of guidelines by the FAO on the basis of the LOSC and the various existing soft-law instruments, particularly the FAO Code of Conduct for Responsible Fisheries and the Reykjavik Declaration on Responsible Fisheries in the Marine Ecosystem. Incidentally, this suggestion for FAO guidelines is made not only with respect to those stocks within EEZs, but also all types of deep-sea stocks. The guidelines thus should be a comprehensive document containing specific measures to be taken by all stakeholders involved in deep-sea fisheries. It should be a code of conduct relating specifically to deep-sea fisheries in the various jurisdictional waters.

3. STOCKS STRADDLING TWO OR MORE EEZs

With respect to the shared or transboundary deep-sea stocks straddling two or more EEZs, there is only one general provision of Article 63(1) in the LOSC. The provision requires the coastal states concerned to "seek, ... to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks". Several bilateral or regional arrangements or agreements have been concluded dealing with some of such stocks.

However, no agreement dealing specifically with shared deep-sea stocks has apparently been concluded. Since the coastal states are duty bound to make efforts in good faith, under Article 63(1) and also under Article 300 of the Convention, to reach agreement on necessary measures, it would be useful if the suggested FAO guidelines could develop some model arrangements.

4. STRADDLING STOCKS

Turning now to straddling stocks, a great deal of international attention has been paid since the early 1990s and the comprehensive agreement that was adopted on the basis of Article 63(2) of the LOSC, for the effective conservation and better management of such stocks, as well as highly migratory stocks. That agreement, the UN Fish Stocks Agreement, is applicable to straddling deep-sea stocks between the parties. It applies, presumably, to orange roughy on the Challenger Plateau and the South Tasman Rise, since New Zealand and Australia respectively regard them as such stocks.

Under the Fish Stocks Agreement, states fishing for the straddling stock and relevant coastal states are obliged to become members of the regional fishery management organization or arrangement (RFMO), or, if no RFMO exists, to cooperate to establish one (Article 8(3) and (5)). Only those states that are members of such an RFMO, or which agree to apply the conservation and management measures established by such RFMO, are given access to the resources concerned (Article 8(4)). The Agreement provides for the precautionary approach and contains detailed rules in order to ensure effective conservation and management of the stocks. It further gives teeth to its provisions by empowering states parties that are members of the RFMO to board and inspect fishing vessels of another party in the high-seas regulatory area of the RFMO concerned, whether or not such a state party is a member of the RFMO.

The Agreement, thus, would go a long way toward achieving an effective regime for the conservation and management of straddling deep-sea stocks. A major challenge, however, is how to make it universally applicable. Until that objective is achieved, there are always some free-rider vessels that keep engaging in fishing in regulatory areas without being bound by the Agreement nor by conservation and management measures adopted by the RFMOs concerned. Thus, for example, even if a RFMO adopts a moratorium on fishing or establishes an MPA within its competence, it cannot be enforced against those states which are party to neither the RFMO nor the Fish Stocks Agreement.

Currently there are three groups of states that are not parties to the Fish Stocks Agreement. The first group consists mainly of some distant water fishing states, which are in favour of its general thrust but are reluctant to become parties because some of the provisions are considered as contrary to their important interests. The second group consists of those which want to stay out of the Agreement to keep their fishing activities as free as possible under freedom of high-seas fishing, thus maximizing their short-term profit. These are mainly flag-of-convenience states whose vessels are mostly owned in fact by nationals of other states. The third group of state are those that pay little attention to the Agreement because they have virtually no stake in the subject. The problem is how to bring the first two groups of states into accepting the regime established by the Fish Stocks Agreement. It is clear that unless, and until, these fishing states become parties or otherwise accept the regime the Agreement would never become effective.

In my view, two different strategies should be adopted to make the Fish Stocks Agreement regime more effective. One addresses the first group of states and another the second group. The latter states would never be willing to accept the regime as long as they have the first group on their side. The only way to bring the second group of states into the regime would be to isolate them and bring concerted pressures upon them. Such pressures may include economic and trade measures. Several RFOs, particularly regional tuna management organizations such as the ICCAT and the IOTC, have actually adopted such measures. On the other hand, the first group of states are fully aware of the biological as well as economic risks that they themselves would eventually have to face unless they cooperate with other fishing states and the coastal states. Unlike the second group of states, these distant water fishing states do have a strong motivation to establish effective regional management regimes.

It is therefore desirable that the current parties to the Fish Stocks Agreement consider practical ways and means for removing the obstacles that non-party distant-water fishing states are facing. To this end, dialogues should be started between the two. This does not necessarily mean that the Agreement should be amended; all possible means for adjusting those provisions causing problems in their implementation should be explored. The review conference, which is to be convened shortly after December 2005, would be a timely occasion for that purpose.

5. DISCRETE HIGH-SEAS STOCKS

On the high seas, all states have freedom of fishing, including for deep-sea species, subject to Articles 117-119 of the LOSC and any obligations under other treaties to which they are parties. Article 117 requires of all states that their nationals take conservation measures. Article 118 provides for the duty of all states to cooperate in the conservation and management of fishery resources, including in establishing RFMOs as appropriate. And Article 119 lays down certain standards in taking conservation measures. In addition, within the context of their duty to protect and preserve the marine environment in all areas, states are required to take the measures necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life (Article 194(5)). It should also be stressed that in exercising the freedom of fishing, states are obliged to pay due regard to the interests of other states (Article 87(2)).

These are, however, all generally-formulated duties in the form of framework provisions. Several regional agreements have been adopted for the conservation and management of certain stocks, and some attempts have been made specifically to regulate the orange roughy fishery on the high seas in the southeastern part of the Indian Ocean. However, no agreement exists that would serve as a linkage between the LOSC and regional agreements or arrangements. All states are certainly under a general duty to cooperate in the conservation and management of high-seas stocks and to set up RFMOs if necessary. But these provisions alone do not provide a sufficient legal basis to compel unwilling fishing states to join in specific collaborative efforts. Without a global agreement that facilitates the implementation of the general duties contained in the LOSC and provides for enforcement scheme, there would always be some states which choose not to join RFMOs and continue their unregulated fishing under freedom of high-seas fishing.

It is therefore suggested that a new global agreement be adopted with a view to bridging the gap between the LOSC and RFMOs, and where no RFMOs exist to facilitating the establishment of such an RFO. Although the immediate candidate species to be covered by such a global agreement are the deep-sea stocks, it would be desirable that the new agreement be formulated in such a way as to cover all existing and potentially harvestable fishery resources in the high seas. The specific species to be regulated deep-sea or otherwise, should be grouped according to appropriate criteria and placed in a separate annex to the agreement, together with a set of conservation and management measures that are specifically required for each group. Some of the measures may be in an obligatory form, while others could be in the form of guidelines, which could subsequently be adopted as binding measures by RFMOs. The meeting of states parties should be given the power to adopt new annexes as new species are discovered or new needs arise. The conservation and management measures accompanying each annex should also be subject to review and modification through simplified procedures, as new scientific knowledge and techniques become available.

The main parts of such new high-seas fish stocks agreement could be modelled on the UN Fish Stocks Agreement. A number of the latter’s substantive provisions can be used mostly with minor adjustment. These are, in particular, Articles 5 (general principles) and 6 (the precautionary approach) in Part II, as well as most of the provisions in Parts III (mechanisms for international cooperation), Part IV (non-members of RFOs), Part V (duties of the flag state), Part VI (compliance and enforcement) and Part VII (requirements of developing states). Similarly, Annexes I (data collection and sharing) and II (the application of precautionary reference points) could also be adjusted and updated. Naturally, any developments in the review conference under Article 36 of the Agreement, if any, must be taken into account. In addition, the future agreement should incorporate one new element, under which FAO’s Committee on Fisheries (COFI) would be given a coordinating role for all RFMOs dealing with the high seas as well as straddling fish stocks. I return to this point below.

In the negotiations for a new high-seas stocks agreement, it is of utmost importance to ensure that the new agreement command widespread support. Otherwise, it would not serve as an effective link between the LOSC and RFMOs. So, here again, the major challenge to be overcome is the drafting of a global agreement capable of attracting universal or near-universal adherence.

6. GLOBAL FISHERIES GOVERNANCE STRUCTURE

Once the UN Fish Stocks Agreement and the proposed global high-seas stocks agreement achieve de facto universal acceptance, and main high-seas fisheries are regulated by relevant RFMOs, one can expect that the global governance of high-seas fisheries will be improved considerably and be better structured than what we have today. This governance system would actually not be limited to the high seas, but it would serve generally for all fisheries including, to a certain degree, the areas under national jurisdiction.

The basic global governance structure consists of the UN General Assembly, the FAO’s COFI and the various RFMOs. As the world’s highest political body, the UN General Assembly continues to lay down most important policy recommendations within the overall context of ocean governance addressed to states as well as global and regional organizations. At the same time, as an organ with oversight role in the implementation of the LOSC, the Assembly may initiate the process of negotiating new instruments, particularly those intended to promote the implementation of some of its provisions. Since the time for the Assembly’s annual debate on ocean affairs and the law of the sea is quite limited, it should continue to be assisted by the more detailed informal discussions (e.g. by the UNICPO) on some of the priority topics, which are open also for participation by international organizations and civil society representatives.

The COFI receives specific requests from time to time from the General Assembly. It is, however, in its own right the highest global body in fishery matters, competent at the direction of FAO member states to deal with all questions relating to fisheries, including the drafting of new conventions and non-binding instruments such as the codes of conduct and international plans of action. In many cases, such conventions and instruments are addressed not only to states but also to RFMOs.

The COFI has some degrees of supervisory or coordinating power over RFMOs that have been created on the basis of the FAO Constitution. It has, however, currently no such power with respect to those RFMOs which are set up outside the FAO framework. With the increase in the number of non-FAO RFMOs, it is highly desirable for FAO to be given the role to coordinate the activities of not only FAO bodies but also of non-FAO RFMOs. The Meeting of Regional Fishery Bodies, which has been institutionalized recently to meet in conjunction with COFI is an encouraging step in this direction. Existing RFMOs should be urged to establish closer ties to COFI through this arrangement. With regard to future RFMOs in charge of high-seas stocks, the proposed new global agreement on discrete high-seas stocks should provide for such linkage.

Coordination and cooperation among RFMOs is increasingly becoming important for variety of purposes, including sharing of experience and information, settling problems of overlapping jurisdiction, cooperation in enforcement against IUU fishing vessels and avoiding duplication of efforts.

7. CONCLUSIONS

I have tried to paint a somewhat ideal picture for the conservation and management of deep-sea stocks. It is of course easy to draw the picture; the actual work to achieve it would face a number of obstacles and require a great deal of time.

In order to facilitate that long-term goal, however, the FAO, through the COFI, should be given the immediate task of preparing four sets of guidelines for deep-sea fisheries, i.e. for those stocks found solely within EEZs, those shared by two or more EEZs, those that straddle an EEZ and the high seas, and those occurring solely in the high seas. The guidelines should contain specific measures to be recommended to states and RFMOs, as appropriate, for the conservation and management of such stocks. They should not be intended to be comprehensive and rigid from the beginning; rather they should take a step-by-step approach, to be expanded as the new discoveries are made and scientific information and data become sufficiently available. Such guidelines would no doubt be of great value for the future works, discussed above, in improving the regime of the UN Fish Stocks Agreement, as well as the development of a new regime covering high-seas stocks.