by
Michael Lodge54
Summary
Previous workshops in this series had found that, although international fishery instruments address directly or indirectly many of the factors of unsustainability in fisheries, better implementation is required. To avoid unsustainability, institutional arrangements need to involve interested parties in the decision-making process and develop an appropriate incentives structure. Weaknesses in existing governance systems need to be addressed and it is essential to move more rapidly to the situation envisaged by the 1995 Agreement where effective management systems are in place for all international fisheries. Where there are currently-unregulated high seas fisheries, new organizations or arrangements need to be established as a matter of urgency, using the template of the 1995 Agreement as a basis for resolving key issues affecting sustainability such as disagreements over allocations and the question of new entrants and non-compliant States. Currently unregulated high seas fisheries had been identified as an area requiring particular attention. This paper reviews international developments since 2001 and considers how available tools found in existing international fishery instruments may be adapted to provide better governance of high seas fisheries, including new deep ocean fisheries. Many of the problems currently facing high seas fisheries are common to all regions and all fisheries and there are compelling reasons why some sort of global framework management system may become necessary.
1. BACKGROUND AND INTRODUCTION
In a document prepared for the first international workshop on the implementation of international fisheries instruments and factors of unsustainability and overexploitation in fisheries [Bangkok, February 2001], the author considered whether the main factors contributing to unsustainability and overexploitation identified by Cunningham and Maguire (Cunningham and Maguire, 2002) had been addressed in international fisheries instruments.
By way of background, the document provided a general review of international fisheries instruments including the 1982 UN Convention on the Law of the Sea (LOSC), the 1995 UN Fish Stocks Agreement (UNFSA),55 the 1995 FAO Code of Conduct for Responsible Fisheries (CCRF), the FAO International Plans of Action (IPOAs) elaborated under the CCRF and various other ‘soft law’ instruments. It was noted that it was difficult to make any precise correlation between the factors of unsustainability identified by Cunningham and Maguire and international fisheries instruments, primarily because many of the factors identified were of an economic nature, driven by external factors not necessarily reflected in international instruments that are frequently developed as a response to political concerns rather than as a scientific response to economic, ecological or social problems. Notwithstanding, the author proposed that international fishery instruments were a critical tool for the establishment of appropriate institutional arrangements, which in turn have a direct effect on the sustainability of the fisheries they are designed to manage. In addition, some preliminary conclusions, as follows, were drawn from a brief analysis of some of the key international fisheries instruments:
Considerable progress at the international level had been made in creating mechanisms for addressing the problems of illegal, unreported and unregulated (IUU) fishing, especially through the IPOA - IUU56 and relevant provisions of the UNFSA;.
Some progress had been made in addressing biological and ecological issues, especially through the emphasis in both the UNFSA and the CCRF on the application of the precautionary approach and growing recognition of the need for ecosystem based management;.
Less progress had been made in addressing the problems of sustainability in small-scale and artisanal fisheries, with the focus at international level mainly on the role of States and national fisheries administrations.
Progress had also been made in addressing institutional issues, and in particular in defining more clearly the functions and responsibilities of regional fisheriesy management organizations (RFMOs).
The emphasis on the role of RFMOs as the key delivery mechanism for conservation and management of transboundary fish stocks was noted as one of the most significant and important recent trends in international fisheries management. At the same time, it was noted that some of the existing RFMOs, particularly those whose mandates had been established prior to the adoption of the UNFSA in 1995, were ineffective, whilst others had not successfully addressed key factors affecting sustainability including those relating to compliance, illegal, unregulated and unreported fishing, as well as effective decision-making. It was suggested that further efforts needed to be made to strengthen RFMOs to ensure that they (a) meet the standards established by the relevant international fishery instruments, and, (b) possess the necessary mandates to enable them to address the factors affecting sustainability.
Following discussion of the paper during the first workshop, it was concluded that although international fishery instruments revealed a high level of consensus at global level on the factors to be addressed, failure to implement existing instruments was a major problem. More guidance and capacity-building activities should be directed at the implementation of international instruments at the national, regional and global levels.
At the second international workshop on the implementation of international fisheries instruments and factors of unsustainability and overexploitation in fisheries [Mauritius, February 2003], participants attempted to answer more specifically the following questions:.
What are the major obstacles to the implementation of major legal instruments?
What are the main lessons learned and the possible paths to solutions for improved implementation?
What are the possible gaps that may exist in these instruments to guide the international community in improving the management of marine fisheries?
In the light of a number of case studies, the following factors were identified as significant to addressing unsustainability for all fisheries, with the relative importance of the various factors of unsustainability varying according to the type of fishery under consideration (Swan and Gréboval and Swan, 2004):.
Poor governance is a major cause for the inability to reach sustainable fisheries. Failure to have good governance, in itself, is sufficient for fishery management to fail.
There is a need to grant secure rights to resource users (individually or collectively) for use of a portion of the resource, space, or other relevant aspect of the fishery. Inappropriate incentives and lack of good governance are often predominant issues preventing sustainability and both link to the absence of secure rights.
There is a widespread need for capacity building, training, education, awareness building, and sharing of knowledge relevant to fisheries management for all stakeholders.
Fishery management has usually focused primarily on the bio-ecological component of sustainability, but has often failed even on this dimension of sustainability, possibly because it did not pay enough explicit attention to the other components of sustainability. Achieving sustainability requires a blend of a conservation perspective and the social and economic perspective of those directly associated with the fisheries. Either alone will not succeed. The social component of sustainability is insufficiently covered by fisheries management instruments in general.
There is a need to make better progress in the implementation of international instruments relating to sustainability at the national and regional levels;.
Achieving sustainability is often impeded because there is a lack of will to make management decisions or because decisions that have been made are not enacted either due to a lack of will or a lack of capacity to act on them.
It was emphasized that the linkages and interactions between these factors were highly complex and had not been fully addressed. It is often the failure to take into account these interactions that have impaired past management attempts.
In light of the outcomes of the first and second workshops, the present paper is intended to serve as a background for continuing discussion of the prospects of achieving good governance of international fisheries through better implementation of existing instruments. The paper reviews a number of important international developments that have taken place since 2001 (i.e. since the first workshop in this series) and attempts to identify some of the main trends arising out of these developments. Contrary to what has become a common perception, the paper postulates that there is in fact a broad recognition of the need for better implementation of existing instruments, but that this needs to be combined with gap-filling where necessary and a more precise focus on the leverage that can be gained through ‘smarter’ implementation of existing measures. In many cases it is apparent that States and RFMOs do not necessarily need to do more, but they do need to do what they are already doing much more efficiently.
2. INTERNATIONAL DEVELOPMENTS SINCE 2001
The following section briefly reviews and places into context some of the important developments that have occurred in important multilateral fora in recent years, including the United Nations General Assembly, FAO and Organization for Economic Co-operation and Development (OECD) in relation to key instruments.
2.1 UN Fish Stocks Agreement
The UNFSA entered into force on 11 December 2001. As of July 2004, there were 52 Parties to the Agreement has 52 Parties, including the European Community and its member States. Although the Parties to the Agreement include some of the major maritime powers, including the United States and Russian Federation, one of the problems has been a lack of commitment to the Agreement by some of the major distant water fishing States, including Japan, Republic of Korea, China and Poland and open registry States, such as Belize, Panama, St Vincent and the Grenadines and Guinea.
The most important international development that has taken place with regard to the UNFSA is the establishment of an annual round of informal consultations between States Parties. The first such meeting took place in July 2002 and has now become an annual event. The meeting has provided a useful forum for States Parties to review the implementation of UNFSA, including through exchange of information on measures taken at the national level to implement the provisions of the Agreement and identification of particular problems associated with its implementation. The discussions at the informal consultations have been much facilitated by the preparation of an annual report by the Secretary-General, partly compiled on the basis of a questionnaire to States Parties, on the status and implementation of the Agreement and its impact on related or proposed instruments throughout the UN system.
Among the outcomes of the informal consultations have been the adoption in 2003 of a recommendation to the General Assembly on terms of reference for the establishment of an Assistance Fund under Part VII of the Agreement, administered by FAO, to assist developing States parties in the implementation of the Agreement, as one component of the forms of assistance envisaged by Part VII. The recommendation of the informal consultation was formally adopted by the General Assembly in its resolution A/58/240 in December 2003. The Fund is designed to respond, in part, to the need for capacity-building as a precondition to full implementation of the Agreement in developing countries, whilst recognizing the need to consider other options for strengthening national, subregional and regional institutions and policies to better address the special needs of developing countries (IDDRA, 2002).
In addition to providing an opportunity for comment on the format and content of the annual General Assembly resolutions on sustainable fisheries, the informal consultations have also revealed a broad level of agreement on the problems that continue to affect international fisheries for straddling fish stocks and highly migratory fish stocks, especially on the high seas. These include:
the need for strict scrutiny and clarification by the international community of the concept of the ‘genuine link’ between flag States and their vessels in the context of conservation and management of fisheries;
lack of implementation of the basic principles set out in Part II of the Agreement and undermining of the provisions of UNFSA by IUU activities, particularly in high seas areas adjacent to areas under national jurisdiction;
the need to reduce fishing capacity as a matter of urgency, and the link between IUU fishing vessels, operating outside international management schemes, and the problems of excess fishing capacity; and
the need to address the role and competence of existing RFMOs, particularly their deficiencies concerning species coverage, ecosystem-based fisheries management, and reduction of by-catch of associated or dependent species. Participants also identified as a major gap in present high seas fisheries management the absence of a regulatory regime for demersal species. An extension of the UNFSA regulatory regime was considered a possible solution to addressing this gap.
It is envisaged that the informal consultations will also form an important preparatory forum for determining the structure and process for the Review Conference envisaged by a Article 36 of the UNFSA, scheduled to take place in the first part of 2006. That Conference will be important, not least because it is likely to bring to a head the potential for polarization between those who wish to see UNFSA strengthened and implemented in good faith, and the realpolitik of those who could well argue that, with only 52 States Parties, the way to achieve universal acceptance of UNFSA is, as with Part XI of the LOSC, to remove those elements that are most objectionable.
2.2 Implementation of the IPOA - IUU and related FAO measures
Considerable effort has been expended by FAO since 2001 on the implementation of its IPOAs on IUU fishing (2001) and on the management of fishing capacity (l999). These efforts have included review of the status of implementation of the IPOAs at COFI (25th session, February 2003) followed by the adoption of a Resolution at the Thirty second Session of the FAO Conference in November 2003 in which FAO members expressed their concern at the growing incidence of IUU fishing and the lack of effective implementation of the IPOA - IUU. In the same Resolution, member States went on to note the lack of commitment by some States to meet their obligations under international law as well as the increasing incidence of vessels flying “flags of convenience” and the inability or lack of will on the part of some countries to apply any controls over the vessels they flag. Apart from the usual exhortations to States to sign up to the relevant international instruments (exhortations which, in the view of this author at least, have absolutely no impact on the behaviour of States), FAO members also encouraged States and RFMOs to adopt, by 2004, national and regional plans of action to implement the IPOA IUU, to prevent fish caught by vessels identified by relevant RFMOs to have been engaged in IUU fishing being traded or imported into their territories and to ensure compliance with and enforcement of policies and measures having a bearing on IUU fishing which are adopted by any relevant RFMOs.
Following the concerns expressed at COFI and at the FAO Conference, FAO convened in June 2004 a Technical Consultation to Review Progress and Promote the Full Implementation of the IPOA - IUU and the IPOA Capacity. Expert consultations have also been held on the impact on IUU fishing of fishing vessels operating under open registries (September 2003) and on legal issues related to CITES (June 2004). In August 2004, FAO will hold a further technical consultation on the role of port States in deterring IUU fishing. To support these efforts, FAO has issued comprehensive analyses of action taken by FAO members to implement the IPOAs and on the progress of regional fishery bodies and RFMOs in implementing the IPOA - IUU. FAO has also issued Technical Guidelines to support implementation of the IPOA - IUU, containing advice on measures and recommendations on the organization and content of national plans of action.
The analyses undertaken by FAO of the actions taken by States and RFMOs are informative and useful, even if they do not in themselves add anything new to the debate on sustainability of fisheries. They show that the serious concerns expressed by the governing bodies of the FAO have had some impact, with approximately a quarter of FAO members having formulated national plans of action for the implementation of the IPOAs. The analyses indicate (as may be expected) that the dynamic nature of IUU fishing allows illegal activities to flourish where controls are less. Of the measures recommended to deal with IUU fishing, control over nationals, flag State controls and market-related measures emerge as the least effectively implemented, with worrying lapses reported in the exercise of flag State responsibility and enforcement of measures against nationals. The main constraints to full implementation of the IPOAs at national level were reported as lack of financial and human resources (reading this in parallel with the FAO Conference resolution, in which ministers decried the “lack of political will and capacity of some governments” one might well pause here to wonder whether the real problem is a lack of resources per se or a lack of willingness to target available resources in the right direction).
At the regional level, FAO's analysis indicated that a predominant issue for RFMOs was the need for more effective enforcement measures. It was considered that trade and market-related measures had had a positive impact, where implemented, but that the lack of effective flag State control remained a major impediment to progress. One cannot help but agree with the conclusions proffered by the FAO Secretariat that success in the fight against IUU fishing will only come through “increased regional cooperation, harmonization of legal frameworks and monitoring, control and surveillance (MCS) systems … and the building of networks that will become more and more impenetrable to IUU fishing interests.” The question, of course, is how is all this to come about.
One matter of particular concern is the lack of commitment shown by States to the 1993 FAO Compliance Agreement.57 The Agreement entered into force on 24 April 2003, but to date (August 2004) has been formally accepted by only 28 FAO members. As pointed out by Norway in a paper presented to the June 2004 FAO technical consultation mentioned above, only 10 States and the European Community have ratified both the FAO Compliance Agreement and the UNFSA. This is a somewhat strange phenomenon given the overlap between the two instruments, but at the same time has the serious repercussion of undermining the potential effectiveness of the high seas fishing vessel register maintained by FAO under the Compliance Agreement.
2.3 Deep Sea 2003 and UNICPOLOS V
High seas governance in general became a focus for discussion at a special conference convened by the Governments of Australia and New Zealand in conjunction with FAO at Queenstown, New Zealand in December 2003. Although the conference was convened with a broad mandate to examine issues relating to the management of deep sea fisheries in general, specific concerns emerged with respect to the sustainability of currently unregulated deep sea fisheries on the high seas and the relationship between fisheries management and high seas governance in general. Lodge (Lodge, 2004) discusses the relationship between management regimes for deep sea fisheries and the implementation and enforcement of an effective legal regime to protect biodiversity in the deep ocean.
Reviews of management case studies from New Zealand, Namibia, the South Tasman Rise and within CCAMLR revealed that high levels of precaution are required to manage deep sea fisheries in a sustainable manner. Scientific advice needs to properly reflect known uncertainties in the data and allow for potential unknown uncertainties, including the profound impact of oceanographic and climatic variations. The South Tasman Rise orange roughy fishery management agreement was regarded as particularly instructive in that it contains an innovative decision rule that recognizes alternative hypotheses concerning intermittent aggregation of orange roughy stocks. The default management is based on the worst-case scenario and allows for increases in catch levels should the more optimistic hypothesis appear correct.
On the question of high seas governance, there was widespread agreement that multilateral governance needs improvement, but varying views on how this might be achieved. Some of the issues raised included the urgent need to address allocation of fishing rights and benefits-especially among developing countries in order to secure multilateral cooperation; whether changes to the existing high seas regime should focus on sustainable management of deep sea fisheries or more broadly on deep sea biodiversity and the wide range of possible activities that might affect deep sea biodiversity; and whether any new legal measures should focus on the high seas only, or should extend to fisheries on the continental margins and within exclusive economic zones.
The debate on high seas governance was taken a step further during the fifth meeting of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea (UNICPOLOS) in June 2004, which discussed, inter alia, the theme of ‘New sustainable uses of the oceans, including the conservation and management of the biological diversity of the seabed in areas beyond national jurisdiction’. The meeting noted the increasing levels of concern expressed by many States, scientists and several nongovernmental organizations over ineffective conservation and management of the biodiversity of the seabed beyond national jurisdiction. It was proposed that the General Assembly in 2004 take the following actions:
urge States, either by themselves or through RFMOs, where these are competent to do so, to consider on a case-by-case basis and where justified on a scientific basis, including the application of precaution, the interim prohibition of destructive practices by vessels under their jurisdiction that have an adverse impact on vulnerable marine ecosystems, including seamounts, hydrothermal vents and cold water corals located beyond national jurisdiction; seamounts, hydrothermal vents and cold-water corals located beyond national jurisdiction;
encourage RFMOs with a mandate to regulate bottom fisheries to urgently address the impact of deep sea bottom trawling on vulnerable marine ecosystems in accordance with international law; and
urge members of RFMOs without the competence to regulate bottom fisheries to expand the mandate, where appropriate, of their RFMOs to cover such activities in accordance with international law, with the progress on action taken in response to these requests to be reviewed within two years with a view to further recommendations, where necessary.
Several delegations made specific proposals for the conservation and management of marine biodiversity beyond national jurisdiction, including: (1) addressing scientific and legal gaps in the conservation and management of high sea biodiversity; (2) providing direction and substance to the debate on the governance of high seas marine biodiversity; and (3) identifying further options for progress. These suggestions included: (a) the convening of an intergovernmental conference on deep sea fishing on the high seas by the General Assembly to identify gaps in governance and scientific knowledge, and to provide a forum for negotiating and promoting the implementation of long-term measures necessary to protect and preserve rare and fragile ecosystems as well as the habitat of depleted, threatened or endangered species; (b) the initiation of an intergovernmental process by the General Assembly to identify existing gaps regarding governance and scientific knowledge; and (c) the establishment of a task force on high seas biodiversity. Nevertheless, given the wide divergence in views, UNICPOLOS V was not able to recommend the adoption by the General Assembly of any of the specific measures that had been proposed such as a global moratorium on high seas bottom trawling, or the setting up of a group of experts or intergovernmental process to identify and address the gap in existing governance arrangements on the high seas. The most that could be agreed to at this stage was to welcome a decision by the Conference of the Parties to the Convention on Biological Diversity for its ad hoc open-ended working group on protected areas to explore options for cooperation for the establishment of marine protected areas beyond national jurisdiction, consistent with international law, and on the basis of the best available scientific information, and to encourage the participation of oceans experts in the working group.
2.4 OECD
Under its 2003–2005 programme of work, the OECD's Committee on Fisheries is considering the environmental, economic and social arguments in support of measures in relation to IUU fishing as well as the economic and social impacts of IUU fishing. In April 2004, the OECD hosted a workshop on IUU fishing activities with the objective of gathering information and data on the extent of IUU fishing and identifying the economic and social drivers to IUU fishing (OECD, 2004). Around 120 experts from OECD and non-OECD countries, RFMOs, intergovernmental organizations, non-governmental organizations and academia attended the workshop.
The workshop reached a number of (unsurprising and somewhat self-evident) conclusions, including that IUU fishing is harmful to fish stocks and undermines the efficiency of measures adopted nationally and internationally to secure fish stocks for the future and that IUU activities also have adverse effects on the marine ecosystem, notably on the populations of seabirds, marine mammals, sea turtles and biodiversity as a whole (discards, etc.). More significantly perhaps, the workshop agreed that the IPOA - IUU contains sufficient tools to tackle the IUU issue. The question is to find ways to better implement such tools. In this respect, IUU fishing is a dynamic and multifaceted problem and no single strategy is sufficient to eliminate or reduce IUU fishing - a concerted approach is required nationally, regionally and internationally, and by type of fishery. The full range of players should be involved in helping bring forward solutions to the IUU problem.
As to the information and data needs that would assist in addressing IUU fishing, the workshop considered that in spite of recent improvements in information collection, there remains a lack of systematic and comprehensive information on the extent of IUU operations and impacts. This is compounded by the varying level in quality, accessibility, reliability and usefulness of the available data. It was considered that trade tracking and the resulting accumulation of information by market countries are an enormous task but very important for the creation of effective measures to combat IUU fishing. While there are a number of international instruments addressing the collection of fisheries information and statistics, these need to be integrated and further, there remains a need for improvement in national statistics on trade in fish and fish products, especially in relation to IUU fishing. There is also a need to broaden the scope of the information gathered so it covers activities and situations “upstream” and “downstream” of the IUU fishing operations themselves. This will help to better define the nature and scope of IUU fishing and to improve knowledge of the economic and social forces which drive IUU fishing in order to help target future actions.
2.5 Ministerially-led Task Force on IUU Fishing on the High Seas
The importance of securing the political will to tackle the problem of IUU fishing on the high seas was one of the aspects underlined by ministers and other participants who attended the Eleventh Meeting of the Round Table on Sustainable Development held at the OECD on 6 June 2003. One key problem is what appears to be a lack of willingness on the part of some States to participate in multilateral arrangements and secondly to participate effectively in them (which begs the questions whether there is any way to ensure that States have a common view of their responsibilities so that agreed actions are implemented and desired outcomes achieved).
As a result of that meeting, on 1 December 2003, the United Kingdom Minister for the Environment, Elliot Morley MP, announced the formation of a ministerially-led task force to address the problem of IUU fishing on the high seas in order to produce an analysis of the IUU fishing problem together with recommended and prioritized actions that can be both implemented by members of the task force and advocated as the best course for others to follow. The Task Force has been established under the auspices of the Round Table on Sustainable Development at the OECD, with a small secretariat hosted at the OECD's Paris headquarters.
The mission of the Task Force, which is envisaged to take between eighteen to twenty-four months to accomplish, is to spell out a way forward at global, regional and national levels and propose a full menu of prioritized actions that keeps the ‘big picture’ to the fore. A key outcome must be an authoritative, pragmatic and prioritized action plan that is both analytically sound and politically saleable. The intention is that the completed action plan will be placed by ministerial members of the Task Force directly in the hands of other ministers who will then be asked for their views on the main findings and recommendations. Assuming that the analysis is persuasive, ministerial members of the Task Force will be in a strong position to press their colleagues on why, given the consensus on the analysis of the problem, implementation of the recommendations at national, regional and global levels should not be possible. In conjunction with the bilateral ministerial-level approaches, the Task Force's broad business and NGO membership is expected to help mobilize wider public support for the report's main findings with a view to generating further momentum for change.
Importantly too, the Task Force will present its report and recommendations to, inter alia, the FAO Committee for Fisheries, as well as relevant bodies of the UN, United Nations Environment Programme (UNEP), OECD, the International Maritime Organization (IMO), the UN Commission for Sustainable Development (CSD) and RFMOs. The purpose of these ministerially-led presentations will be to seek agreement on the analysis and to press for the implementation of the action plan in a coordinated manner through the respective mandates of such bodies.
In July 2004, the High Seas Task Force issued its first consultation paper (HSTF, 2004), being a consolidated list of the legal, science, economics and trade, and enforcement issues arising in relation to IUU The paper suggests a diagnostic and analytical matrix designed to approach the problem from the perspective of each of the major ‘actors’ (flags, vessels, nationals and fish) in relation to the location where activities take place (at sea, on land, in port) in order to enable identification of how the cross-linkages may be optimized between the various stages of or activities comprising the IUU fishing operation. The paper also examines opportunities for the application of tighter or more effective control points which will address the causes of IUU fishing rather than just the symptoms.
3. IMPORTANT REGIONAL DEVELOPMENTS SINCE 2001
This section reviews a number of the more important regional initiatives that have taken place since 2001. The list is necessarily selective; with attention confined to those initiatives that have most relevance to the overall subject of the workshop.
3.1 Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean
The Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, adopted in 2000 after four years of negotiations, entered into force on 19 June 2004. The Convention formally establishes the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, which will have management authority over the world's largest and last-remaining unregulated tuna stocks in the Central and Western Pacific Ocean. The establishment of the Commission means that all tropical tuna stocks worldwide are now covered by one or more of the following five RFMOs: International Commission for the Conservation of Atlantic Tuna (ICCAT), Indian Ocean Tuna Commission (IOTC), Inter-American Tropical Tuna Commission (IATTC), Western Central Pacific Fisheries Commission (WCPFC) and Commission for the Conservation of Southern Bluefin Tuna (CCSBT) (in the case of Southern Bluefin tuna).
It is too early to say whether the establishment of the WCPFC will have a positive impact on the sustainability of tuna stocks in the Central and Western Pacific Ocean. At the institutional level, the potential parties to the Convention have made good progress since 2000 in preparing the groundwork for the entry into force of the Convention, but it remains a matter of concern that, as of August 2004, the Parties that have ratified the Convention are mainly small island developing States. No major fishing States have yet ratified the Convention. This raises the question not only of their commitment to the Convention, but also whether the Commission will be able to secure a sound funding base in order to carry out its work. Further, for the first time, real fears have been raised concerning the sustainability of bigeye and yellowfin stocks in the region, as well as a growing problem of overcapacity in both the purse seine and longline fisheries despite the adoption of a number of resolutions aimed at preventing overcapacity by participants to the negotiations leading to the establishment of the Commission. Although the Commission starts with a significant advantage in that it is one of the few RFMOs that contains decision-making mechanisms that result in binding decisions, the real test ahead for the new Commission lies in how it will deal with the question of allocation of limited fishing opportunities between the Parties, including an increasing number of developing country participants that wish to participate in the high seas fishery.
3.2 Inter-American Tropical Tuna Commission
The most significant development that has taken place since 2001 with respect to IATTC is the negotiation of an entirely new convention to replace the rather outdated and unsatisfactory 1949 bilateral agreement that established the IATTC. The resulting Antigua Convention was adopted in June, 2003 (but will not enter into force until there are seven ratifications). Among the objectives of the revised Convention are to incorporate the fisheries management principles established in the LOSC and UNFSA, both of which post-date the existing IATTC Convention. Thus, the Antigua Convention incorporates explicit references to the precautionary approach, the requirement of compatibility of measures between EEZs and high seas and the objective of long-term sustainability of fish stocks. It is not clear that the new Convention will make radical and immediate changes to the way in which IATTC operates, primarily because existing rights of parties to the present Convention are grandfathered in for an indefinite period. Nevertheless, explicit references to new management principles, and steps such as an agreement to confer participatory status on Taiwan, as a fishing entity, mean that the groundwork has been laid for future developments in the IATTC region.
3.3 Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)
Since 2000, CCAMLR has adopted two significant initiatives. The first is a catch documentation scheme for Patagonian toothfish. The scheme is intended to establish a framework for tracking landings and trade flows of toothfish in order to verify that catches from the CCAMLR area have been taken in a manner consistent with CCAMLR conservation and management measures. The scheme met with initial successes (for example, closing down the port of Walvis Bay, Namibia to toothfish operators), but has not been implemented by all CCAMLR parties and is, to some extent, also being circumvented by fraudulent certifications issued by non-participating States and by a growing black market in non-certified toothfish. On the other hand, the extent of illegal operations within the CCAMLR area has been highlighted by evidence of substantial increases in reported catches from high seas areas adjacent to the CCAMLR area - the bulk of which are believed to be fraudulently misreported.
The second measure established by CCAMLR, partly as a response to one of the major problems with the catch documentation scheme, is a policy to enhance cooperation between CCAMLR and non-contracting Parties, particularly with a view to such non-contracting Parties participating voluntarily in the catch documentation scheme and either taking steps to prevent their flag vessels from fishing in the CCAMLR area or joining the organization. The scheme has contributed to the development of a new concept of “cooperating non-Party”, whereby benefits in the fishery may be granted to non-parties who show a willingness to cooperate with the conservation and management measures established by the RFMO. In the case of CCAMLR, the policy has resulted in Namibia and Vanuatu acceding to the Convention. Efforts have been made to engage other non-contracting flag States and port States, including Belize, China, Guinea Bissau, Maldives, Mauritius, Mauritania, Panama, Seychelles, St. Vincent and the Grenadines, Taiwan and Togo. As a result of these efforts, Mauritius undertook to close its ports to toothfish landings without valid catch documentation as from 2002 and Mozambique in 2002 denied landing to a Uruguayan-flagged vessel, Dorita. Belize cooperated with CCAMLR in ordering one of its vessels to remain in port in Durban pending an inspection by South African authorities.
3.4 South West Indian Ocean Fisheries Commission (SWIOFC)
In 1999, the former Indian Ocean Fishery Commission (an FAO body) was formally abolished. Since that date, a series of intergovernmental consultations have been convened with a view to establishing a new RFMO in the South West Indian Ocean. The most recent such consultation took place in July 2004 in Seychelles. Although there is a growing view (even amongst the participants involved) that the fisheries which prompted the decision to establish a new RFMO are now generally depleted and possibly no longer of major interest to those who had pioneered the expansion of the fishery (Molenaar, 2003), the proposed new body would manage straddling fish stocks and demersal species, including Hoplostethus atlanticus (Orange roughy), Allocyttus niger (Black oreo), Neocyttus rhomboidalis (Spiky oreo), Pseudocyttus maculatus (Smooth oreo), Beryx splendens (Alfonsino) and Hyperoglyphe antarctica (Bluenose), in a large area of the Indian Ocean roughly corresponding to FAO Statistical Areas 51 and 57. It would not manage highly migratory fish stocks, which are within the competence of the Indian Ocean Tuna Commission (IOTC). Importantly, too, the proposed new RFMO would have competence only over the high seas portion of the fishery, with a separate regional body to be established, under Article VI of the FAO Constitution, for waters under the sovereignty of coastal States.
In the view of this author at least, this is symptomatic of an extremely worrying trend, which almost takes us back to the reasons why it was necessary to convene the UN Fish Stocks Conference in the first place. Given the emphasis in the UNFSA on the need to manage both straddling fish stocks and highly migratory fish stocks throughout their range and on the need for compatibility between measures adopted for areas within national jurisdiction and on the high seas, it is difficult to see how the proposed new organization can hope to achieve the management objectives set out in the UNFSA within such a structure. Decision-making procedures within the proposed high seas body are relatively robust, with the current proposal being a qualified (four-fifths) majority vote in default of consensus, but it is difficult to see how this can fit comfortably with a system where coastal States are under no binding obligation to apply compatible measures within areas under national jurisdiction. A point that is often overlooked with respect to UNFSA is that coastal States, including many developing coastal States and some developed ones too, were at least as much to blame as distant water fishing nations for mismanagement and overfishing of straddling stocks and highly migratory fish stocks. The UNFSA therefore makes it abundantly clear that the principles and measures for management set out in Articles 5 and 6 are to apply both within areas of jurisdiction and on the high seas. Within areas under national jurisdiction it is primarily the responsibility of the coastal State to apply those measures. Seen in this light, the proposed SWIOFC, in its present form, cannot be viewed as anything but a retrograde step.
4. MAIN TRENDS
Whereas the first workshop in this series, in 2001, concluded that although international fishery instruments revealed a high level of consensus at global level on the factors to be addressed, but failure to implement existing instruments was a major problem, the above summary of developments since 2001 indicates a clear recognition in most multilateral fora that we need to focus on better implementation of existing instruments, not on creating new international agreements that will not be adhered to. This is a significant positive trend, if only because it has enabled the international community to focus its attention on attempting to identify the main weaknesses in implementation that need to be addressed. Broadly, these would appear to be:
lack of implementation (by both coastal States and fishing States) of the basic principles for conservation and management set out in Part II of the UNFSA,;
this lack of implementation is largely associated with undermining of the provisions of the UNFSA by IUU activities, particularly in high seas areas adjacent to areas under national jurisdiction;
the urgent need to reduce fishing capacity and the link between IUU fishing vessels, operating outside international management schemes, and the problems of excess fishing capacity; and
the urgent need to fill gaps in existing high seas management arrangements, for example, for deep sea fisheries, including by addressing the role and competence of existing RFMOs.
At the same time, there are strong indications that existing instruments have not been fully implemented. In general, there has been a failure to operationalize the enforcement provisions of the UNFSA. For example, no high seas boarding and inspection regime under the UNFSA has been established anywhere in the world. The problem of flag State responsibility has not been dealt with and the concept of the ‘genuine link’ between flag States and their vessels remains unresolved.
A more fundamental problem is the continued bias in international fisheries management towards biological management, i.e. management that is centred on stock assessment and the fish stock as the unit of management. Although one of the important achievements of the UNFSA was a more precise (if imperfect) legal definition of the precautionary approach to fisheries management, recent years have seen a growing emphasis on the need for an “ecosystem approach” or “ecosystem-based fisheries management.” This is at best a fuzzy concept which has not yet been defined in clear enough terms to give rise to legally-binding rights and obligations. The strong scientific bias in management derives from a somewhat idealistic view prevalent in the 1950s that fisheries management could be rational if based on scientific findings and the “best available evidence.” Unfortunately, this overlooks the fact that, not only is the never-ending quest for “best available” scientific evidence often invoked as an excuse for inaction, but also that the science structures in most RFMOs are excessively politicised. This in turn leads to the existence of inconsistencies and apparent incompatibilities in science relating to global phenomena that is artificially compartmentalized and delivered on a regional basis. A particular problem in science-based systems is the dominance of developed countries’ science over developing countries, that do not have access to the same levels of expertise. This leads to imbalance in the institutional structure. To what extent can an institution be effective if most of its science comes from one source, or is dependent on the vested interests of a small group of members? These problems have been addressed to some extent in the WCPFC through the existence of a relatively independent advisory body (the Oceanic Fisheries Programme of the South Pacific Community) and by a carefully designed science structure which filters the scientific advice that is considered by the (political) Scientific Committee through independent “scientific experts”. On the other hand, whilst scientific knowledge of fish stocks is clearly a very important element in any fisheries management system, it is only one of a number of elements which are often overlooked, even in the WCPFC, including economic and social considerations.
Not only has there been a failure to give effect to existing instruments, but also several recent trends show a disturbing fragility in the level of consensus relating to existing instruments. The South-west Indian Ocean negotiations, for example, represent a significant step backwards from the notions of compatibility of measures within and beyond EEZs that are emphasized by the UNFSA. The fact that, within the Northwest Atlantic Fisheries Organization (NAFO), potential unilateral measures are once again under seriously consideration by Canada, raises serious concerns, as does the fact, on the other hand, that even apparently responsible developed countries are reported to have unilaterally decided not to observe multilaterally-agreed NAFO quotas. Such actions show a serious failure of and lack of confidence in existing multilateral institutions but can only lead to unravelling of the gains that have been made so far through instruments such as UNFSA and the IPOA - IUU.
Slightly more positive trends have emerged from WCPFC and CCAMLR. The latter has made particular progress with respect to the problem of securing compliance by non parties and the judicious implementation of trade-related measures, particularly against so-called “flags of non-compliance.” WCPFC has made significant progress in setting up institutional structures that reflect the requirements of UNFSA, but, like UNFSA itself, failed to establish a mechanism for allocation.
5. CONCLUSION
Overall, it can be said that there has been a mixed response to calls for the reform of RFMOs and that little real progress has been made to date. In particular, little progress has been achieved in dealing with the fundamental questions of “real interest”, allocation of fishing opportunities, new entrants and binding decision-making. The latter are critical problems. They relate directly to the major causes of unsustainability, i.e. poor governance and lack of secure user rights. At the heart of the conceptual debate with respect to high seas fisheries is a polarization of views about the fundamental purpose of RFMOs. The fundamental objective on which UNFSA is based is the need to seek, as a collective responsibility of all States concerned in a particular fishery, compatible conservation and management regimes both inside and outside areas of national jurisdiction. On one view, which it is submitted is the preferred (pro-UNFSA) view, RFMOs are intended to be conservation oriented, with responsibilities as effective stock managers. On another view, which it has to be said is the traditional way in which RFMOs have been approached by major distant water fishing nations (DWFNs), RFMOs exist merely as a mechanism for allocation of quotas and stock access rights between those who are members of a rather exclusive “club” in which notional allocations to developing countries and new entrants simply operate as mechanisms to support reflagging and transfer of effort by distant water fishing nations. If one looks at the situation in IOTC, ICCAT and WCPFC (less so in IATTC), the coastal States in the area of competence of the RFMO are mainly developing countries, with the high seas portion of the catch taken almost exclusively by DWFNs, who have very different interests to coastal States. Two divergent and potentially disastrous trends are apparent:.
DFWNs active simultaneously in all RFMOs cooperating with one another (openly or implicitly) to use RFMO allocations as a means of gaining access to coastal States EEZs and transferring excess capacity to other regions.
Developing coastal States using RFMOs to obtain high seas allocations and develop their own capacity as new entrants (frequently acting as proxies for excess DWFN capacity with little real benefit flowing to the coastal State).
It is essential that original thinking is brought to bear rapidly on the question of how to fairly accommodate developing country interests in already over-subscribed high seas fisheries. This might take the form of (at one end of the spectrum) effort limitations (as applied by IATTC) rather than catch limitations to (at the other end) models where “high seas rights” may be traded in place of quota.
The fisheries debate is further complicated by newly-emerging concerns over how to accommodate an ecosystem-based approach to fisheries and to problems such as the protection of high seas biodiversity. Proposed solutions such as the establishment of high seas marine protected areas (MPAs) are imperfectly supported by existing legal instruments, which even if they authorize the establishment of high seas MPAs, offer few tools for enforcement. Nor do they provide a satisfactory mechanism to re-allocate fisheries resources where access is denied in order to protect biodiversity. Neither the LOSC, nor the Convention on Biological Diversity offer any robust solutions to the dilemma of managing inter-related living and non-living resources as common property. We cannot avoid the fact that we have reached a crisis point with respect to high seas governance. Major changes are needed if the law is to keep pace with science and technology. Unfortunately, institutional change is also a very slow and difficult process, dependent upon political will and motivation for change and highly resistant to the influence of vested interests on the part of elites. With an important review conference for UNFSA likely to take place in 2006, and a review of the LOSC itself during the same year, it is imperative to take a fundamental look at the shape of high seas governance arrangements that will be needed in the future.
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54 The views expressed in this paper are solely those of the author, Michael Lodge.
