Governance and management of living marine resources and fisheries on the continental slope and in the deep sea - a legal framework and some points of departure

Ministry of Fisherie
Grubbegata 1, Box 8118 Dep,
N-0032 Oslo, Norway
<[email protected]>

1. DEEP-SEA RESOURCES AND FISHERIES IN WATERS UNDER NORWEGIAN JURISDICTION

Fisheries in the deep sea utilize both pelagic (mid-water) and demersal (bottom-associated) resources. In the deep sea, there are four pelagic zones: the mesopelagic zone (150-1 000 m), the bathypelagic zone (1 000-3 000 m), the abyssopelagic zone (3 000-6 000 m) and the hadal zone (deep ocean trenches). The major deep-sea pelagic resources are species that inhabit the mesopelagic zone but migrate to near-surface layers to feed. Examples from the Northeast Atlantic include the blue whiting (Micromesistius poutassou) and small lantern fish and euphausids that some consider to be potential fishery targets. There are no fisheries in the bathypelagic or deeper zones. Demersal species live on, or near, the seafloor, and in the deep-water region demersal habitats comprise the continental slope, ranging from the shelf break down to the continental rise and beyond to the abyssal plains of 3 000 m or more.

The deep-water areas near the Norwegian mainland (Figure 1) are the deep fjords, the deep slope and channel of the north-eastern North Sea (Norwegian Deep or Trench, including the Skagerak), the slope towards the Norwegian Sea off western and northern Norway (north of 62? N) and the pelagic realms of the Norwegian Sea.

Deep-water fish can be divided into three main categories: mesopelagic, benthopelagic and benthic. In Norwegian waters there are fisheries for species of all categories, but mainly in the upper slope waters and the fjords. The main deep-sea fish species of Norwegian waters are:

These are the species that are landed from fisheries in Norwegian waters. Other species would be have to be added if Norwegian fisheries in other waters, e.g. the slope off the British Isles, Faeroes, Iceland, Greenland and on the Mid-Atlantic Ridge were included.

2. JURISDICTIONAL ISSUES IN RELATION TO DEMERSAL FISHERIES

Demersal species that are not sedentary and that occur within the exclusive economic zones (EEZs) of a coastal state come within the scope of the sovereign rights of the state in accordance with the rules and provisions of Part V of the 1982 United Nations Convention on the Law of the Sea (LOSC). In areas under Norwegian fisheries jurisdiction, this includes relatively isolated populations of deep-sea species such as Greenland halibut, grenadiers, greater silver smelt, forkbeards, ling, blue ling and tusk. It must be recognized, however, that for several of these species, the level of isolation, and thus knowledge of stock structures remain uncertain though the scientific evidence for isolation is limited.

Demersal species that are sedentary form part of the natural resources referred to in Part VI of the LOSC, which consist of mineral and other non-living resources of the seabed and subsoil, as well as living organisms belonging to sedentary species. Such species are defined in Article 77, paragraph 4, as being "organisms which, at the harvestable state, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil". Examples of such organisms are bivalves such as oysters and mussels, sea anemones and attached algae. All the deep-sea species that are of commercial interest are mobile, i.e. they can move varying distances without "constant physical contact with the seabed". Typical demersal species such as skates, some flatfish and perhaps wolf-fish, and certain benthic sharks could, however, be included in the definition of sedentary species, but Norwegian research using tagged fish has shown that even flatfish such as Greenland and Atlantic halibut migrate over long distances, even hundreds of kilometres.

Article 68 specifies that Part V does not apply to sedentary species as defined in Article 77, paragraph 4, of the LOSC. It thus appears to except such species from the rules of Part V on foreign access, requirements to ensure rational conservation and optimum utilisation and the obligation to co-operate with other states as regards shared stocks. Several regional fisheries management organizations, such as the North East Atlantic Fisheries Commission (NEAFC), thus exclude sedentary species from their scope of application in accordance with Article 77 no 4. It could, however, be argued that there is no reason why general obligations relating to sustainable management, use and conservation set out in the LOSC should not apply to these species as well, since this is a dominant theme throughout the Convention.

Sedentary species and habitats occurring outside the EEZs will, in so far as they are found on the continental shelf as defined in Article 76 of the LOSC, also come within the scope of the sovereign rights and continental shelf jurisdiction of the coastal state in accordance with Part VI. The Commission on the Limits of the Continental Shelf set up under Annex II of the LOSC has only recently started reviewing submissions for the establishment of the limits of the continental shelf beyond 200 nautical miles, and no states parties are under any obligation to make such submissions until 2009 at the earliest. The process of delimiting the areas of extended continental shelf that will be under national jurisdiction is, therefore, likely to take many more years.

3. OBLIGATIONS TO CO-OPERATE IN THE CONSERVATION AND MANAGEMENT OF DEMERSAL SPECIES

The LOSC obliges coastal states to co-operate in the conservation and management of stocks occurring within the exclusive economic zones of two or more coastal states, both within the EEZs and in an area beyond and adjacent to it (see Article 63). Such shared stocks may also include non-sedentary deep-sea species such as grenadiers, sharks, greater silver smelt and Greenland halibut.

Most deep-sea resources in the Northeast Atlantic comporise species whose stocks are shared as they are found in two or more EEZs or are species that occur both on the high seas and in EEZs. However, the population structure of all deep-sea species is poorly understood. Modern population genetic studies have only been carried out for redfish, and to some extent, for blue whiting, and even for these species no consensus on population structure has been reached. There are plans for more work on other deep-sea species, but the necessary funding has not yet been forthcoming.

High-seas fishing is in principle open to all states (see Article 87 of the LOSC). However, Article 87 also states that this freedom must be exercized with due regard for the interests of other states and also with due regard for the rights under the Convention with respect to activities in the Area. Section 2, Part VII, of the LOS Convention (Articles 116-119) states that the right to engage in fishing on the high seas is further subject to treaty obligations and to the rights and duties as well as the interests of coastal states (see for example Article 63, paragraph 2, and Articles 64 to 67 of the Convention).

Further, states have obligations to take such measures with respect to their respective nationals as may be necessary for the conservation of the living resources of the high seas (Article 117) and to co-operate with other states in conservation and management of these resources (Article 118). Further, the LOSC oblige coastal states and other states that fish for highly-migratory species to co-operate directly or through appropriate international organisations to ensure conservation and promote the objective of optimum utilisation of highly-migratory species throughout the region, both within and beyond the EEZs of coastal states (see Article 64 of the LOSC). In regions where no appropriate international organisation exists, the states concerned are obliged to co-operate to establish such an organisation and to participate in its work. These provisions apply to all living resources, including demersal fish that are not sedentary as defined in Article 77 of the LOS Convention. The 1995 United Nations Fish Stocks Agreement further defines and elaborates these obligations with respect to straddling stocks and highly-migratory stocks.

The International Council for the Exploration of the Sea (ICES), which is the scientific advisory body to NEAFC, has classified most of the commercial deep-sea resources in the Northeast Atlantic as overexploited. There have been many warnings that the development of deep-sea fisheries is not sustainable and the immediate reduction of fisheries on deep-sea stocks has been recommended many times. NEAFC has started the process of establishing an appropriate management regime for deep-sea species. Ad hoc measures limiting the fishing effort have been agreed to for 2003. However, these measures are rather vague and no agreement has been reached on how to calculate effort or the reference period that should be used as a management basis. The parties to NEAFC Convention at a meeting in May 2003 discussed the matter further and reached a preliminary agreement for measures for 2004, including a plan for collection of scientific data. The proposed management measures are still not sufficiently comprehensive as no common understanding about the aforementioned criteria was reached. In addition, little is known about the stock structure of the species in question. Thus, it is not known whether there are different stocks, whether these are straddling stocks (i.e. occur both in the high seas and in national zones of NEAFC parties, or whether particular stocks occur only in the high seas, i.e. discrete stocks. The matter was further considered at their annual meeting in November 2003. However, the lack of data makes it unlikely that consensus will be reached on a fully-fledged management system for these species at that meeting.

4. SPECIES AND ECOSYSTEMS OF THE AREA

Species and ecosystems outside the extended continental shelf as defined in the LOSC Article 76 are by definition in the "Area", which is to be managed by the International Seabed Authority (ISA) in accordance with Article 134, paragraph 4, and Article 136 of the LOSC. The ISA’s competence applies to all "resources" in the Area, meaning "all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules". In extracting resources from the Area and with respect to all other activities, the Authority is obliged to take all "necessary measures to ensure effective protection for the marine environment from harmful effects which may arise from such activities" and shall adopt appropriate rules, regulations and procedures for "the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment".

It is questionable whether the Authority has the mandate and the competence to manage the living marine resources of the Area. It is also quite clear that the rules and regulations pertaining to the Area do not have any effect on the legal status of the waters superjacent to the Area (see Article 135) but some habitats and ecosystems are found in the subsoil under the Area and here the situation is less clear.

5. ENVIRONMENTAL CONSIDERATIONS - CONSERVATION AND PROTECTION OF BIOLOGICAL DIVERSITY IN DEEP-SEA AREAS

Deep-sea species tend to be more vulnerable to exploitation than species living in the more productive habitats near the surface or in shallow shelf and coastal waters. Often they have life-history patterns characterized by long life spans, a high age at first reproduction, slow growth and limited fecundity. This holds for many commercially exploited fish species and also for invertebrates that are actually or potentially affected by fishing activities.

The cold-water coral reefs of the Northeast Atlantic are an example of a vulnerable type of habitat. Biological diversity is particularly rich on these reefs and they are of major importance for fisheries, research and even as a source of marine genetic resources. Between 30 and 50 per cent of all coldwater coral reefs in Norwegian waters have been damaged or crushed as a result of bottom-trawling activities. It is uncertain whether destroyed reefs will regenerate and, even if they do, this will probably take a long time. Some coral reefs within the limits of Norway’s EEZ have been given protection against certain fishing practices. These include the Sula ridge, the Iver ridge and the world’s largest coldwater reef, the Røst reef, which was discovered in 2002. The use of fishing gear that is dragged along the bottom and that may come in contact with the reefs is prohibited in the protected areas.

Other particularly vulnerable deep-sea habitats are seamounts, hydrothermal vents (chemosynthetic ecosystems) and deep-sea trenches. Within the area of Norwegian jurisdiction there are no seamounts or hydrothermal vents similar to those known from the mid-Atlantic area further south. However, investigation of the extension of the Mid-Atlantic Ridge from Iceland northwards to the Arctic Ocean is an area of future interest.

The term seamount usually refers to large isolated elevations of volcanic origin on the deep-sea floor. Several underwater sea-floor peaks that may be classified as seamounts have been identified from the new multibeam bathymetry data set of the Norwegian Sea acquired by the Norwegian Petroleum Directorate. These seamounts are related to the Mohns Ridge and the Knipowitch Ridge, the mid-ocean spreading ridges between Norway and Greenland north of Jan Mayen Is., and to a submarine ridge along the Jan Mayen Fracture Zone between the Vøring Plateau and Jan Mayen. These features rise between 1100 and 2200 m from the seafloor, and their summits reach up to a water depth of 1 500 to 600 m. A number of these seamounts are situated within the EEZ of Norway; several others are located on the extended continental shelf of Norway in the sense of Article 76 of the LOSC. So far, the seamounts of the Norwegian Sea have not been the subject of systematic marine biological research and their associated fauna is unknown. However, recent preliminary video studies by the Institute of Geosciences of the University of Bergen show high amounts of biological activity, including a rich benthic fauna concentrated on these seamounts. Further research is of crucial importance for the assessment and future management of these resources.

Underwater hydrothermal vents are hot water springs on the seabed associated with volcanic activity and are characteristic of the mid-ocean spreading ridges of the world’s oceans. They are known to be the habitat of specialized faunas not seen elsewhere. Recently, earth scientists from the University of Bergen identified an interesting hydrothermal vent with a rich microbiological fauna on the Mohns Ridge just north of Jan Mayen. The scientists also found indications of several more vents along the Mohns and Knipowitch spreading ridges, and they expect that further research will confirm their existence and reveal still more. If so, most of these vents will be located within the EEZ of Norway and it is expected that some will also be identified on the Norwegian continental shelf beyond the EEZ. Again, further research is needed, both for scientific and for management reasons. There are no submarine trenches in the sense of subduction zones in the North Atlantic.

Article 8, litra a), of the Convention on Biological Diversity (CBD) requires Parties as far as possible to "establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity". A protected area under the CBD differ from "a particularly clearly defined area", as mentioned in Article 211, paragraph 6, of the LOSC, and is understood to be "a geographically defined area, which is designated or regulated and managed to achieve specific conservation objectives" (see Article 2). At the same time it is clear that with regard to the marine environment, the rights and obligations set out in the CBD must not be in conflict with those laid down in the LOSC (see Article 22, paragraph 2). The establishment of protected areas in the high seas would appear to be in conflict with the prohibition of the LOSC Article 89, under which "no state may validly purport to subject any part of the high seas to its sovereignty". Equally, Article. 137, paragraph 3, of the LOSC states that no claim, acquisition or exercize of any rights with respect to minerals recovered from the Area by any state or natural or juridical person shall be recognized. Further, it is quite clear that no marine scientific research activities can constitute the legal basis for any claim to any part of the marine environment or its resources.

It would thus appear that while state parties may undertake to designate protected areas under Article 8, paragraph a), of the CBD in areas under their jurisdiction and in accordance with the LOSC, no such areas can be established on the high seas.

6. FLAG-STATE JURISDICTION AND CONTROL OVER FISHING VESSELS ON THE HIGH SEAS

Articles 91-94 of the LOSC and the 1995 UN Fish Stocks Agreement give flag states a legal basis to exercize effective jurisdiction and control over ships flying their flag, including fishing vessels. At the core of these obligations is provision of a genuine link between a fishing vessel and the flag state that makes it possible to exercize effective flag-state jurisdiction.

The duties and obligations of flag states with respect to fishing vessels are specified in the FAO Code of Conduct for Responsible Fisheries, which is global in scope and relates to all living aquatic resources, and in the 1993 FAO Compliance Agreement. The latter forms an integral part of the FAO Code of Conduct for Responsible Fisheries and has recently entered into force. It applies to "international conservation and management measures" adopted and applied in accordance with the LOSC. Thus, it is not limited to species covered by the 1995 UN Fish Stocks Agreement.

The focus of the FAO Compliance Agreement is the authorisation of fishing on the high seas and the development of the concept of flag-state responsibility and of mechanisms to ensure the free flow of information on high-seas fishing operations. Article III (3) prohibits a party from authorising a fishing vessel to fish on the high seas unless it is satisfied, taking into account the links that exist between it and the vessel concerned, that it is able to exercize effectively its responsibilities under the Agreement in respect of that vessel. It is thus up to flag states to ensure that the concept of flag-state responsibility is given meaningful substance and to exercize effective flag-state jurisdiction, also in relation to demersal fisheries.

Of particular concern is the growing trend in the use of "flag of convenience" (FOC) by fishing vessels. Flagging and re-flagging of vessels is easy and in some cases entails no more than a few moments’ work on the internet. "FOC" is a term often used in relation to states with open shipping registers. In a fisheries context, the term could have a wider application as the problem partly stems from the fact that it is "convenient" to use some specific flags to avoid binding conservation and management measures. In principle, states with restricted shipping registers could thus be regarded as FOC in relation to fishing. Under the LOSC flag states are obliged to ensure that their vessels follow relevant rules. However, some states are willing to sell their flag, with no questions asked, in exchange for the licence fee while exerting no control over the vessel’s activities.

7. PORT STATE MEASURES

International calls for enhanced port state measures are closely linked to the lack of effective exercise of flag-state jurisdiction and control. If all flag states exercised effective flag-state jurisdiction in relation to their fishing fleets, port state control would be more-or-less superfluous. The underlying principle formulated in Article 23 of the 1995 UN Fish Stocks Agreement is "the right and the duty" of a port state to take non-discriminatory measures in accordance with international laws in order to "promote the effectiveness of sub-regional, regional and global conservation and management measures". Emphasis needs to be put not only on the "right", but also on the "duty", and some minimum requirements for port state controls should be developed.

In order to establish a workable system, port states should adopt harmonized mandatory obligations for control of foreign fishing vessels. Some RFMOs have already introduced some port state duties. MOUs would have a wider application as not all port states are members of a RFMO. There are regions where RFMOs are unlikely to be established and appropriate port measures might involve more than one RFMO. It may, however, be appropriate in most cases to link such a system to the existing RFMOs.

Parties to a RFMO are most likely both fishing nations and states having responsibilities as port states. This may facilitate mandatory port state control for both contracting and non-contracting party vessels as a part of the organisation’s conservation measures, which could have a great impact on IUU fishing. However, vessels conducting IUU fishing move from one region to another and are therefore not the concern of one RFMO alone. In order to establish a comprehensive system, developing a MOU on port state control between such bodies could be a way forward. In that context port states should have the duty to take action against vessels that have participated in IUU fishing in areas managed by other regional bodies. Therefore, RFMOs should be encouraged to enter into multilateral agreements on port state control. Such cooperation would be essential in areas where IUU fishing is the concern of two or more regional bodies.

8. SUMMARY AND FUTURE ACTIONS

Future efforts to ensure the long-term conservation and sustainable use of deep-sea resources, improve co-operation between states to that end, avoid adverse impacts on the marine environment, preserve biodiversity and maintain the integrity of marine ecosystems in the high seas, must be based on harmonisation of treaty obligations and involve all relevant international organisations and treaty bodies. Any new regimes concerning deep-sea resources and ecosystems should be based on a global agreement building on the 1982 UN Law of the Sea Convention and modelled on the 1995 Implementation Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. A global agreement for the implementation of the relevant provisions of the LOSC as well as other relevant conventions, such as the Convention on Biological Diversity, would best serve the purposes mentioned above and contribute to the maintenance of international peace and security.

At the same time, international calls for more effective enforcement by flag states, port states and coastal states must continue as well as efforts to ensure the universal acceptance of and adherence to existing instruments such as the LOSC, the 1995 UN Fish Stocks Agreement and the FAO Agreement to Promote Compliance with international Conservation and Management Measures by Fishing Vessels on the High Seas (the 1993 FAO Compliance Agreement), as well as the FAO Code of Conduct for Responsible Fisheries and related Action Plans. Consultations on future directions of the governance and management of deep-sea fisheries and ecosystems should take place at the UN General Assembly and in co-operation with all relevant Law of the Sea institutions, including the International Seabed Authority, UN agencies and organisations as well as Convention on Bio-diversity related bodies.