(a) Freedom of the High Seas
1. Article 87 of UNCLOS while referring generally to the freedoms of the high seas including the freedom of fishing, qualifies this by stating that "these freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas."
(b) Conservation and Management
2. Articles 116 to 120 of UNCLOS deal with the conservation and management of the living resources of the high seas. Under the provisions of these articles all States have the right to engage in fishing on the high seas subject to their treaty obligations (Article 116), their duty to adopt measures for the conservation of the living resources of the high seas (Article 117), and their obligation to cooperate with other States in conservation and management of living resources in the areas of the high seas (Article 118). In all these cases it is generally the responsibility of States whose nationals are engaged in fishing on the high seas to negotiate with other States fishing in the same area or fishing the same stocks to enter into negotiations with a view to taking the necessary measures for the conservation of the living resources concerned. They should, as appropriate, cooperate to establish sub-regional or regional fisheries organizations to achieve these objectives.
(c) Straddling Stocks and Highly Migratory Species.
3. Article 63(2) refers to stocks that straddle the outer limit of the EEZs and the high seas while Article 64 deals with the highly migratory species. In these cases it is the responsibility of States whose nationals are engaged in the fishing of these resources in the high seas and the coastal States involved to negotiate directly or through sub-regional or regional fisheries organizations to agree upon the measures necessary for the conservation of these resources.
4. The FAO World Conference on Fisheries Management and Development was held in Rome from 27 June to 6 July 1984. The Strategy endorsed by the 1984 World Fisheries Conference placed primary emphasis upon the need for better use and management of the world's fishery resources. It drew attention to the fact that the successful exercise of national authority to extract greater benefit from fish resources depends in large measure upon the ability of coastal States to manage their resources more effectively. It underlined that rational management is the essential basis for sound, sustainable development of fisheries.
5. The fundamental issue that must be tackled if expectations and needs in this respect are to be fulfilled is that of controlling open access to fisheries. The extension of national jurisdiction was a necessary but insufficient step towards this objective, and open access continues to exist within exclusive zones of most coastal States as well as on the high seas. The consequences of continued open access are extremely damaging. They include the further depletion of marine stocks, the dissipation of economic rents and increased conflicts among users. When no price or value is placed on the resource, capital and labour continue to enter the fishery as long as revenues exceed costs, leading to wasteful misallocations of inputs. There is thus an increasingly urgent need to address the problems associated with free and open access and to review and install alternative management concepts and mechanisms, in particular property allocation systems including exclusive use rights.
6. Such a move towards more efficient and effective management, through the creation of property rights in the resources, will require fundamental institutional changes involving licensing programmes, the allocation of individual quotas of total allowable catch or territorial use rights. It will also necessitate a shift away from the traditional concept of fishery resources as free goods towards their treatment as economic resources with specific values or prices. International collaboration in fisheries research and management has to take full account of the sovereignty of the participating States. Furthermore, the framework of international cooperation must have flexibility to take into account the particular circumstances of individual countries.
Text of the Strategy Endorsed by the 1984 FAO Conference
7. The following principles and guidelines should be taken into account when examining the changing needs for international collaboration in fisheries development and management and reviewing the present and prospective roles of existing mechanisms for such collaboration, including FAO regional fishery bodies, should include inter alia the following principles:
(i) Objectives of international cooperation should include contributions from all the parties involved on the basis of their experience and capacity, leading to enhancement of national capabilities and transfer of technology.
(ii) Cooperative research efforts and technical cooperation programmes should have clearly identified objectives, responsibilities and deadlines, be given carefully evaluated priorities and be fully integrated with overall national fisheries management and development plans. The research should be practical, make fullest possible use of existing facilities and encourage the development of appropriate technology.
(iii) Scientific and technical advice provided by international bodies should be objective and made available to all concerned. Such advice has proved especially valuable to countries negotiating fishing agreements or formulating joint management measures.
(iv) Planning of effective management and development requires adequate data and information upon the socio-economic aspects of fisheries. Collaboration at the regional level in the analysis of such data collected by national institutions should be encouraged, particularly through regional or sub-regional technical assistance projects.
(v) Central collection and analysis of data from all fleets fishing a common resource, with the participation of all interested States, are essential and should be encouraged to allow for proper management of that resource. These data could be provided through data centres associated with regional fishery bodies. Data should be collected and analysed under the same conditions for all countries, taking every step to avoid an excessive burden on fishermen to provide such information.
(vi) Adequate financial and other resources, administrative servicing and technical backstopping should be provided to support regional fishery bodies and their associated technical assistance projects. There is thus an urgent need to mobilize greater funds for regional collaboration. As soon as possible, developing countries themselves should increase their participation and commitment to the technical support of such bodies, as well as take full responsibility for their management.
(vii) Where appropriate, closer collaboration should be established between FAO regional fishery bodies and projects on the one hand and regional economic groupings and organizations concerned with fisheries on the other, and
(viii) More effective steps should be taken to facilitate the coordination of activities in fishery, oceanography and related environmental research, as well as in integrated marine affairs policy-making and management.
8. The concept of responsible fishing was first raised at the FAO Committee on Fisheries (COFI) in April 1991. In May 1992, the Government of Mexico in close consultation with FAO, organized the International Conference on Responsible Fishing that led to the adoption of the Declaration of Cancún. The Conference requested FAO to draft, in consultation with relevant international organizations, an International Code of Conduct for Responsible Fishing, taking into account the provisions set out in the Declaration. The Declaration also called on the United Nations to declare the next ten years the "Decade of Responsible Fishing" to ensure concerted efforts towards sustainable fisheries practices.
9. The principles embodied in the Declaration reflect the recent problems concerning the conservation and management of the fisheries resources both within the EEZs and on
the high seas as well as those related to the environment. The following principles are relevant to the conservation and management of high seas resources:
(i) States should cooperate on bilateral, regional and multilateral levels to establish, reinforce and implement effective means and mechanisms to ensure responsible fishing on the high seas, in accordance with relevant provisions of UNCLOS;
(ii) The freedom of States to fish on the high seas must be balanced with the obligation to cooperate with other States to ensure conservation and rational management of the living resources, in accordance with relevant provisions of UNCLOS;
(iii) States should take effective action, consistent with international law, to deter reflagging of vessels as a means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas;
(iv) States should enhance international cooperation to prevent illicit fishing that constitutes an obstacle to achieving responsible fishing objectives.
10. The United Nations Conference on Environment and Development (UNCED) was held in Rio de Janeiro, Brazil, from 3 to 14 June 1992. FAO cooperated with the UNCED Secretariat in the preparation of the draft Agenda 21 for the sustainable development of the oceans, particularly in the high seas. Section C entitled "Sustainable Use and Conservation of Marine Living Resources of the High Seas" points out that management of high seas fisheries, including the adoption, monitoring and enforcement of effective conservation measures, is inadequate in many areas and some resources are overutilized. It further notes that "There are problems of unregulated fishing, overcapitalization, excessive fleet size, vessel reflagging to escape controls, insufficiently selective gear, unreliable databases and lack of sufficient cooperation between States. Actions by States whose nationals and vessels fish on the high seas, as well as cooperation at the bilateral, sub-regional, regional and global levels, is essential particularly for highly migratory species and straddling stocks".
11. Under paragraph 17.52(e) it was recommended that "States should convene, as soon as possible, an intergovernmental conference under the United Nations auspices, taking into account relevant activities at the sub-regional, regional and global levels, with a view to promoting effective implementation of the provisions of the United Nations Convention on the Law of the Sea on straddling fish stocks and highly migratory fish stocks." The Conference should identify and assess existing problems related to the conservation and management of such fish stocks, and consider means of improving cooperation on fisheries among States, and formulate appropriate recommendations. UNCED also called on States to take effective action to deter reflagging of vessels by their nationals as a means of avoiding compliance with applicable conservation and management rules for fishing activities on the high seas.
12. The FAO Technical Consultation on High Seas Fishing was held in Rome from 7 to 15 September 1992. The Consultation was held in close cooperation with the UN Division of Ocean Affairs and Law of the Sea and was attended by 66 FAO Members, three non-member States and 15 international and regional organizations. The prime objective of the Consultation was to obtain scientific and technical information that might be used for the proper management of high seas fisheries without prejudice to the deliberations of the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks scheduled for July 1993. The Consultation addressed the issues of statistics, research, management (responsible fishing practices and new concepts and techniques), institutions, participation of developing countries in high seas fishing, and legal framework. The conclusions arrived at by the Consultation included:
- management of high seas fisheries was necessary;
- the provisions of the 1982 UN Convention on the Law of the Sea constituted the principal legal framework for the development of a regime for high seas fishing, supplemented by provisions agreed at UNCED and those contained in the Declaration of Cancún;
- FAO should prepare an International Code of Conduct for Responsible Fishing in consultation with other organizations;
- reflagging of fishing vessels to "flags of convenience" was considered a matter of critical concern and one which should be addressed urgently;
- high seas fisheries management should be, wherever possible, undertaken on a regional basis through regional and sub-regional organizations;
- effective monitoring, control and surveillance was identified as an essential requirement for high seas fisheries management; and
- consideration should be given to reviving the COFI Sub-Committee on the Development of cooperation with International Organizations to assist regional fisheries organizations in this task.
13. The need for an agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas was first underlined at the Cancún Conference on Responsible Fishing in May 1992. The call for an agreement was reiterated by UNCED in June 1992 and supported by the FAO Technical Consultation on High Seas Fishing in September 1992. At its One hundred and second Session held in November 1992, the FAO Council agreed that the Organization should draw up an international agreement with a view to its formal approval at the Twenty-seventh Session of the FAO Conference in November 1993. The Draft Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas was approved unanimously by the FAO Conference at its Twenty-seventh Session in November 1993.
14. The Preamble to the Agreement outlines three important aspects of high seas fishing. First, it refers to the duties of every State to exercise effectively its jurisdiction and control over vessels' trans-shipment of fish. Secondly, it points out that the practice of flagging or reflagging fishing vessels as a means of avoiding compliance with international conservation and management measures for living marine resources is among the factors that seriously undermines the effectiveness of such measures. Thirdly, it sets out the main objectives of the Agreement including Flag States' responsibility in respect of fishing vessels entitled to fly their flags and operating on the high seas.
15. The general and specific provisions on Flag States' responsibilities laid down in Article III of the Agreement include (a) an obligation on the part of Flag States to take measures to ensure that vessels flying their flags do not undermine the effectiveness of international conservation and management measures, (b) States are required to authorize vessels wishing to fish on the high seas only if there are sufficient links between them and the vessels in order to allow them to exercise adequate control over the vessels and fulfil their obligations under the Agreement, (c) vessels are not allowed to act under double authorization, (d) authorization may not be issued to a vessel which had been registered in another State and had its authorization revoked or suspended for breach of international conservation and management measures, (e) all vessels authorized to fish must bear standard markings and Flag States commit themselves to take enforcement action against vessels flying their flags that act in contravention of the provisions of the Agreement, and (f) sanctions are to be of sufficient gravity to secure compliance with the requirements of the Agreement and include suspension or withdrawal of the authorization.
16. Flag States are required to maintain detailed records on all their vessels authorized to fish on the high seas (Art. IV) and make all such information available to FAO (Art. VI) which will then circulate the information to all Contracting Parties. Any infringements by vessels flying their flags which undermine the effectiveness of the conservation and management measures are to be promptly communicated by Flag States to FAO, which will then pass the information to all contracting parties (Art. VI). Vessels under 24 metres are exempted from the application of the Agreement unless such an exemption would undermine the object and purposes of the Agreement (Art. III.1(b).
17. Finally, coastal States in areas where exclusive economic zones or equivalent zones of national jurisdiction over fisheries have not yet been declared, may set their own limits collectively for their own flag vessels operating exclusively in those regions (Art.II.3). The agreement will form an integral part of the Code of Conduct for Responsible Fisheries (Preamble). The Agreement has, so far, been ratified by Canada, Saint Kitts and Nevis, Georgia, Myanmar, Sweden, Madagascar, Norway and USA.
18. On 14 and 15 March 1995 a Ministerial Meeting on Fisheries was held in Rome at the invitation of the Director-General of FAO to review the state of world fisheries and the FAO follow-up to the United Nations Conference on Environment and Development (UNCED). The meeting adopted the Rome Consensus on World Fisheries. In the discussion, the Ministerial Meeting noted the FAO analysis which indicated that the problems of overfishing in general, and overcapacity of industrial fishing fleets in particular, threaten the sustainability of the world's fisheries resources for present and future generations. It recognized the need for continuing international cooperation and coordination toward reestablishing sustainability of world fisheries. It stated that improved fisheries conservation and management, along with better protection of fisheries from harmful sea- and land-based activities, are crucial to maintaining world fish resources and aquatic ecosystems. The particular importance of the fisheries sector for small island developing States was noted.
19. Recognizing the socio-economic, environmental, and nutritional importance of fisheries, and the growing demand for fish products, the Ministerial Meeting concluded that additional actions are urgently required to:
- eliminate overfishing,
- rebuild and enhance fish stocks,
- minimize wasteful fisheries practices,
- develop sustainable aquaculture,
- rehabilitate fish habitats, and
- develop fisheries for new and alternate species based on principles of scientific sustainability and responsible management.
20. To respond effectively to the current fisheries situation and the difficulties that can be foreseen in satisfying growing demand for fish and in conserving aquatic ecosystems, the Rome Ministerial Meeting urged that governments and international organizations take prompt action to:
- reduce fishing to sustainable levels in areas and on stocks currently heavily exploited or overfished;
- review the capacity of fishing fleets in relation to sustainable yields of fishery resources and where necessary reduce these fleets;
- strengthen and support regional, sub-regional, and national fisheries organizations and arrangements for implementing conservation and management measures;
- keep under review the effectiveness of conservation and management measures for ensuring the long-term sustainability of fisheries and aquatic ecosystems;
- continue and, when possible, increase technical, financial, and other assistance to developing countries, in particular to least developed countries, to support their efforts in fisheries conservation and management, and in aquaculture development;
- encourage States to further develop ecologically sound aquaculture as an important contributor to overall food security;
- strengthen fisheries research and increase cooperation among research institutions;
- increase consultation on fisheries with the private sector and non-governmental organizations;
- effectively implement the relevant rules of international law on fisheries and related matters which are reflected in the provisions of the UN Convention on the Law of the Sea;
- consider ratifying the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas.
21. The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks was adopted by the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks in New York on 4 August 1995. The Final Act of the Conference and the Agreement opened for signature on 4 December 1995. The Agreement will enter into force 30 days after the date of deposit of the thirtieth instrument of ratification or accession. The objective of the Agreement is "to ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of the (LOS) Convention". It is, by far, the most detailed and comprehensive international legal instrument on the subject of conservation and management of straddling and highly migratory fish stocks.
22. Part III of the Agreement is entitled "Mechanisms for International Cooperation Concerning Straddling Fish Stocks and Highly Migratory Fish Stocks". In general, coastal States and States fishing on the high seas shall cooperate in relation to straddling fish stocks and highly migratory fish stocks either directly or through appropriate subregional or regional fisheries management organizations or arrangements. The purpose of such cooperation is to agree on conservation and management measures with respect to particular fish stock(s) where there is evidence that such stock(s) may be under threat of over-exploitation or where a new fishery is being developed for such stock(s). Where a regional or sub-regional fisheries body exists and has the competence to establish conservation and management measures for straddling and highly migratory fish stocks, States fishing for the stock(s)on the high seas and coastal States with an interest in the stock(s) are to give effect to their duty to cooperate by participating in the work of that body. States with an interest in the stock(s) which are not parties to an existing fishery organization or arrangements are encouraged to participate in the work of the organization. Only those States which are members of such an organization or participants in such an arrangement, or which agree to apply the conservation and management measures established by such organization or arrangement, are to have access to the fishery resources to which those measures apply.
23. Article 9 of the Agreement "subregional and regional fisheries management organizations and arrangements" states that:
1. In establishing subregional or regional fisheries management organizations or in entering into subregional or regional fisheries management arrangements for straddling fish stocks and highly migratory fish stocks, States shall agree, inter alia, on:
(a) the stocks to which conservation and management measures apply, taking into account the biological characteristics of the stocks directly concerned and the nature of all the fisheries involved;
(b) the area of application, taking into account the characteristics of the subregion or region, including socio-economic, geographical and environmental factors;
(c) the relationship between the work of the new organization or arrangement and the role, objectives and operations of any relevant existing fisheries management organizations or arrangements; and
(d) the mechanisms by which the organization or arrangement will obtain scientific advice and review the status of the stocks, including, where appropriate, the establishment of a scientific advisory body.
24. States cooperating in the formation of a subregional or regional fisheries management organization or arrangement shall inform other States which they are aware have a real interest in the work of the proposed organization or arrangement of such cooperation.
25. The Provisions embodied in Article 10 of the Agreement "Functions of subregional and regional fisheries management organizations and arrangements" are of particular relevance to the future role of the regional fishery bodies:
In fulfilling their obligation to cooperate through subregional or regional fisheries management organizations or arrangements, States shall:
(a) agree on and comply with conservation and management measures to ensure the long-term sustainability of straddling fish stocks and highly migratory fish stocks;
(b) agree, as appropriate, on participatory rights such as allocations of allowable catch or levels of fishing effort;
(c) adopt and apply any generally recommended international minimum standards for the responsible conduct of fishing operations;
(d) obtain and evaluate scientific advice, review the status of the stocks and assess the impact of fishing on non-target and associated or dependent species;
(e) agree on standards for collection, reporting, verification and exchange of data on fisheries for the stocks;
(f) compile and disseminate accurate and complete statistical data to ensure that the best scientific evidence is available, while maintaining confidentiality where appropriate;
(g) promote and conduct scientific assessments of the stocks and relevant research and disseminate the results thereof;
(h) establish appropriate cooperative mechanisms for effective monitoring, control, surveillance and enforcement;
(i) agree on means by which the fishing interests of new members of, or participants in, the organization or arrangement will be accommodated;
(j) agree on decision-making procedures which facilitate the adoption of conservation and management measures in a timely and effective manner;
(k) promote the peaceful settlement of disputes in accordance with Part VIII;
(l) ensure the full cooperation of their relevant national agencies and industries in implementing the recommendations and decisions of the subregional or regional fisheries management organization or arrangement; and
(m) give due publicity to the conservation and management measures established by the organization or arrangement.
26. Under Article 13, States are required to cooperate to strengthen existing subregional and regional fisheries management organizations and arrangements in order to improve their effectiveness in establishing and implementing conservation and management measures for straddling fish stocks and highly migratory fish stocks. The Agreement also provides detailed provisions on Compliance and Enforcement (Part IV) and Peaceful Settlement of Disputes (Part VIII). In general, States parties to a subregional or regional fishery management organization or arrangement are obliged to enforce the conservation and management measures adopted by that body and the disputes arising from the adoption of such measures are to be settled by compulsory means should it become necessary. These provisions go beyond the present commitment by States in the work of existing fishery management organizations.
27. The Declaration of Cancún called on FAO to draft an International Code of Conduct for Responsible Fishing in consultation with relevant international organizations taking into account the provisions of the Declaration. This call was endorsed by the Technical Consultation on High Seas Fishing and in November 1992 the FAO Council formally approved the commencement of the preparation of the Code, taking into account the Declaration of Cancún, the provisions of Agenda 21 of UNCED and the conclusions and recommendations of the Technical Consultation on High Seas Fishing. Proposals regarding the content of the Code and a time-frame for its adoption and implementation were submitted to and discussed by FAO Committee on Fisheries (COFI) in March 1993. The Committee recommended that the Code should have an encompassing umbrella of general principles which would p_ovide the framework for the detailed guidelines on the issues to be covered.
28. Paragraph 1 of the Declaration of Cancún calls on States to adopt effective fisheries planning and management standards within the context of sustainable development. The concept of sustainable development was first defined in 1988 by the FAO Ad hoc Working Group on Sustainable Development as "the management and conservation of the natural resource base, and the orientation of technological and institutional change in such a manner as to ensure the attainment and continued satisfaction of human needs for present and future generations. Such sustainable development (in the agriculture, forestry and fisheries sector) conserves land, water, plant and animal genetic resources, is environmentally non-degrading, technically appropriate, economically viable and socially acceptable". Thus the preamble of the declaration of Cancún uses the above definition in defining responsible fishing by stating that "this concept encompasses the sustainable utilization of fisheries resources in harmony with the environment, the use of capture and aquaculture practices which are not harmful to ecosystems, resources or their quality; the incorporation of added value to such products through transformation processes meeting the required sanitary standards; the conduct of commercial practices so as to provide consumers access to good quality products". In this context the essential element of sustainable utilization or development is the cornerstone of the Code.
29. The FAO Code of Conduct for Responsible Fisheries was adopted by the FAO Conference at its Twenty-eighth Session, Rome, 20 October to 2 November 1995. The Code sets out principles and international standards of behaviour for responsible practices with a view to ensuring the effective conservation, management and development of living aquatic resources, with due respect for the ecosystem and biodiversity. The application of the Code is voluntary and it contains provisions that have already given binding effect by means of other obligatory legal instruments. The Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas forms an integral part of the Code. The Code consists of twelve Articles. The first five deal with nature and scope, objectives, relationship with other international instruments, implementation, monitoring and updating, and special requirements of developing countries. Article 6 deals with general principles while the remaining Articles cover specific subjects. These are: Fisheries management, fishing operations, aquaculture developments, integration of fisheries into coastal area management, post-harvest practice and trade, and fisheries research. The Code places a great emphasis on the regional and sub-regional fisheries organizations for its implementation.
FAO Statistical Areas
