International Law Relating to Access Conditions
Trends affecting the demand for access by foreign states and national considerations affecting coastal States interests in granting access
Forms of foreign participation in coastal States' zones and the bases far analyses of alternatives
5. The papers considered under this Agenda Item were:
AC/10: The Legal Regime with Respect to Fisheries under the United Nations Convention on the Law of the Sea, with a Brief History of the Negotiations Leading up to the Adoption of the Convention (Preliminary Draft), by the Secretariat for the UN Conference on the Law of the Sea
AC/1: 1982 Convention on the Law of the Sea Provisions on Conditions of Access to Fisheries Subject to National Jurisdiction, by Prof. W.T. Burke (University of Washington)
AC/12: The Practice of Coastal States Regarding Foreign Access to Fishery Resources (An analysis of bilateral agreements), by J. Carroz and M. Savini (FAO)
6. In introducing his paper, Professor Burke stressed what he considered to be the very wide discretion or authority under the Convention given to the coastal State over the resources in its 200-mile zone. Article 61 gave the coastal State a wide discretion in the establishment of the total allowable catch of living resources for its zone. In making this determination, the coastal State would not be confined to purely biological factors, but could also take into account other pertinent matters, including economic, environmental and other factors. Certain limits were provided for under Article 61. An upper limit on the level of exploitation would be set by the obligation not to endanger the maintenance of the living resources, although this seemed a difficult limit to reach. Avoiding threats to associated and dependent species on the other hand, would present problems of multi-species management of very considerable, almost insurmountable, complexity.
7. Once a surplus had been declared, the coastal State would be under an obligation to give access to other States. Considerable discretion would be given to the coastal State under the Convention in the allocation of access and the setting of the terms and conditions under which access could be enjoyed. It was his opinion, however, that in the setting of access conditions under the Convention, coastal States would be subject to the test of reasonableness and good faith, and that conditions that were unrealistic and had the effect of denying access would not be in conformity with the Convention.
8. In introducing paper AC/12, Mr. Savini indicated that it was complementary to that of Professor Burke dealing with State practice as revealed in bilateral agreements rather than conventional law. Main issues noted were a tendency towards longer term agreements, now that some experience had been gained, and a move towards regional groupings, both of flag States (as in the EEC) and among coastal States (as in the South Pacific and West Africa). Mr. Savini also discussed the treatment of the concept of surplus in bilateral agreements, criteria for the allocation of surplus, conditions of access, surveillance and control and dispute settlement.
9. Much of the discussion that followed centred on the discretionary powers of the coastal State with respect to the establishment of the allowable catch and the declaration of surplus. Some participants made the point that the concept of reasonableness should extend to these determinations. It was also noted, however, that disputes over these decisions by a coastal State are not subject to compulsory dispute settlement procedures under the Convention. The difficulties faced by developing coastal States in undertaking the necessary scientific work were emphasized. A strong call was made for assistance by FAO in the training and strengthening of national administrations in order to be able to fulfil the tasks and take advantage of the opportunities presented by the new regime of the sea. The need for regional cooperation in the setting of allowable catches, particularly where shared stocks were concerned, was also noted.
10. One participant stressed the emphasis given in the Convention to optimum utilization of the resource. He felt that the wide discretionary powers given to coastal States under the Convention could result in under- or over-exploitation and called for efforts to avoid the wasting of resources.
11. The different approaches towards, or concepts of, bilateral agreements were noted. In some cases these represented fully negotiated terms and conditions, in other cases the agreements were more like licences with the terms set unilaterally by the coastal State. Agreements with developing countries tended to be broader than mere access arrangements and aimed more at optimum utilization of the resources through cooperation.
12. The Consultation noted that the discussions on the provisions of the Convention were informal and did not attempt in any way to establish any definite interpretation of the provisions of the Convention.
13. The papers considered under this Agenda item were:
AC/2: Trends Affecting the Interests of Distant-Water Fishing Nations and Outlook for the Future, by P. Adam (OECD)
AC/4: Conditions of Access to Fisheries: Some Resource Considerations, by J.A. Gulland (FAO)
AC/14: Some Considerations on the Adaptation of National Policy in a Distant-Water Fishing Nation to the Recent Evolution of the Law of the Sea, by J. Prat y Coll
14. Mr. Adam's paper traced the trends affecting distant-water operations through three stages:
(1) Before the New Regime, when far distant fleets competed on the same grounds, though often in the face of unequal economic situations.
(2) The First Years of the New Regime, during which far distant operations were excluded from many fishing grounds and suffered increased costs as conditions of fishing in others. On balance, the difficulties for many distant-water States were due more to cost increases than to EEZs.
(3) Future Far Distant Fishing Activities, which were likely to result in far distant fishing operations facing cost increases which could not be recouped through price increases for fisheries products as these would be limited in international markets by competition with other foodstuffs which were not likely to be subject to the same pressures of rising costs.
15. When introducing his paper, Dr. Gulland noted that even without the questions of economic and social considerations, it was difficult from a biological standpoint to establish the right amount of fish to be taken from any fishery, because the research required was expensive, there was inherent variability in the biological systems involved, and the multi-species interaction questions were complex.
16. Dr. Gulland went on to note that the danger of extinction of a species was often overplayed. The prospect of depletion of a resource was the real problem.
17. In the area of establishing allowable catches and any associated surpluses it was important to assess the gains and losses from foreign participation. Such losses could include:
- Impact on catch rates in local fisheries
- The cost of monitoring, surveillance and control
- The possible negative impacts of attempting to adopt large-scale high technology fishing techniques which were often inappropriate for coastal state fisheries development
18. Mr. Prat, when introducing his paper, showed how the new regime had affected Spain. The Spanish industry, which had expanded its far distant industrial fishery operations during the 1960s, suffered economic dislocations from the impacts of the new regime, compounded by the effects of the oil crisis.
19. The employment impacts had been particularly severe since they were concentrated in a few regions of Spain where far distant fishing operations were an important component of economic activity. The Spanish Government had responded with a 6-point programme, comprising:
- The reorganization of domestic fisheries
- The reorganization of the far distant fisheries
- Improvements in the internal fish marketing system
- Foreign trade policy for fish products
- Foreign fisheries policy
- The expansion of the fisheries administration to meet the new complexity of fisheries management
20. Spain had successfully developed joint-venture fishing operations by offering incentives for Spanish vessels to enter into such arrangements.
21. In discussing the trends affecting demands for access by foreign States, the experts noted that the distant water fishing operations were beset by the parallel impacts of rising costs, especially for fuel, and of the new regime. Distant water fleets were in decline. Fish imports in distant-water fishing States (DWFS) were rising, efforts were being made to increase the output from their own 200-mile zones, and there was some shift in consumption patterns away from the products traditionally supplied by distant water operations.
22. Distant-water fishing States had sought to make the necessary adjustments to these changes in their operations and to the new regime in various ways. A range of cooperative approaches with coastal States had been tried. Joint ventures had always seemed an appropriate vehicle for that cooperation, but results from joint ventures were seen by both coastal and distant-water States as mixed. To be successful over a long term, joint ventures required a stable operating and policy environment.
23. Inevitably, distant-water States have had to face the painful aspect of the adjustment in relocating domestic resources, an adjustment that was particularly difficult when the impacts of the fishing industry decline were concentrated in particular regions.
24. Coastal States' interests in granting access varied widely. In some industrialized countries, pressures for the protection of opportunities for domestic fish catching and processing industries were strong. These states sought to take up as much as possible of the resource harvest available from their zones and market it themselves. Developing countries with aspirations to build up their own fishing industries were more generally interested in cooperation towards that end with distant water fishing interests; seeking technology transfer, training, research, development credits, infrastructural development, and access to markets. Developing States with fisheries resources which were likely to far exceed their fishing capacity in anything but the very long term were more generally interested in direct financial benefits such as fees, or in wider developmental assistance.
25. Foreign fisheries relations were also complicated by the range of conflicting interests involved. The Convention on the Law of the Sea made it clear that the fisheries resources of 200-mile zones were to be managed for the benefit of coastal States, but some participants stressed the view that the concept of optimum utilization required that the interests of all mankind needed to be taken into account. Within a State there were often conflicts of interest between components of the fishing industry, or between the fishing industry and wider national interests. It was also necessary to recognize that the problem of access for foreign fishermen frequently involved political factors and that access was a matter of international relations.
26. The experts also discussed the complex mix of public and private sector participation in fisheries access programmes. There had often been serious misunderstandings where governments had made arrangements within which the private sector was reluctant to operate or found it difficult to operate.
27. The paper considered under this Agenda item was:
AC/11: Forms of Foreign Participation in Fisheries: Coastal State Practice, by L.C. Christy & G. Moore (FAO)
28. This paper presented an overview of the three broad categories of possible forms of participation:
(1) Access licensing agreements
(2) Joint ventures
(3) Hybrid systems such as over-the-side sales
29. It was first noted that in many cases bilateral fisheries relationships were based on more complex arrangements combining the various categories above.
30. The degree of involvement of coastal State governments or administrations was also discussed. Some experts suggested that when a flag State has long experience in fishing in a given fishery which the coastal State has no interest in exploiting itself, the flag State should be given flexibility in managing the venture in exchange for benefits to the coastal State. Other experts stressed the need for developing countries to be involved in all steps of the fisheries operations in order to allow them to improve their competence to manage and control their own resources.
31. With regard to option (i) above, it was mentioned that it provides a good opportunity for coastal States to obtain valuable information on the resources and to gain revenues in cash (licence fees) or in kind (e.g., in the form of fresh fish landed for domestic marketing). Such arrangements are rather flexible and, because they can be easily terminated, may be used as management tools to utilize temporary abundances in resources. They imply, however, a good deal of control by the coastal State.
32. Concerning joint ventures, the experts agreed that they are often a very good vehicle for transfer of technology and they may generate employment and foster the economic development of the fisheries in the coastal States. However, difficulties arising from social and cultural diversity should not be under-estimated. The success of joint ventures depends frequently on the type of fishing operation. When the resources are to be harvested by small boats operating far from their home port, joint ventures may be a convenient solution for both parties. This is, for example, the case in the Japanese shrimp fishery. On the other hand, when large and long-range vessels are involved, or when fishing operations are very specific, joint ventures are frequently unsuccessful. It was also noted that if under a joint venture agreement the vessels of the distant-water fishing nations were obliged to fly the flag of the coastal States, the need for bilateral agreement would tend to become irrelevant.
33. With regard to hybrid systems, a lively discussion took place on over-the-side sales arrangements. The view was expressed that such arrangements may not be conducive to the development of the coastal State land-based industry. On the other hand some instances were noted where such arrangements could be the most appropriate option. Some discussion took place on the commercial large-scale test fishing operations which were conducted in Argentina. These test operations were followed by investments from the flag States in the Argentinian fisheries sector. It was noted, however, that this was a rather rare and exceptional type of cooperation.