2.1 Internal waters, archipelagic waters and the territorial sea
2.2 The Exclusive Economic Zone (EEZ)
2.3 The High seas
2.4 UN Fish Stocks Agreement
2.5 Other International Instruments
2.6 Some General Conclusions
The 1982 UN Convention does not make any reference whatever to the collection of data in these areas, indeed, it makes only passing references to fishing in respect of innocent passage and in respect of transit passage. Thus any specific obligation to report such data will need to be found in regional or sub-regional agreements. Further, in several countries, it is the policy not to permit foreign fishing in such waters. It is an interesting legal question which need not concern us here whether there exists a basic legal obligation at least to obtain data in order to base a minimum level of management responsibility with respect to the fisheries in such waters.1
1 Indeed, it may be noted here that the provisions of the 1995 UN Fish Stocks Agreement concerning the precautionary approach (Article 6) and the compatibility of conservation and management measures (Article 7) also apply to “areas under national jurisdiction”, while the general principles set out in Article 5 apply with respect to the exercise of sovereign rights for the purpose of exploring and exploiting, conserving and managing straddling fish stocks and highly migratory fish stocks within areas under national jurisdiction. In the latter, the reference to sovereign rights combined with the objective of the 1995 UN Fish Stocks Agreement to effectively implement the relevant provisions of the 1982 UN Convention dealing with such stocks would support a limited interpretation of the phrase to apply to the exclusive economic zone only; however, the normal meaning of the phrase “areas under national jurisdiction” is capable of embracing the territorial sea, archipelagic waters and internal waters. Further, Article 3 refers to “areas under national jurisdiction, subject to the different legal regimes that apply within areas under national jurisdiction and in areas beyond national jurisdiction”, which implies an application to more than just the EEZ., while the phrase “different legal regimes” here also in its ordinary meaning would include internal waters, the territorial sea, and archipelagic waters. Cf the use of “regime” in Article 7 (3) of the 1982 UN Convention. The question becomes important in two quite distinct areas: in regions where there are archipelagic states, such as the Western Pacific, where substantial areas of water would be included or excluded depending on the interpretation adopted, and in the Mediterranean where there exist for the most part only territorial seas and where a literal interpretation of Article 63(2) combined with a narrow interpretation of the “areas under national jurisdiction” that covers only the EEZ might lead to a very limited application of these provisions of the 1995 UN Fish Stocks Agreement. Notwithstanding their ordinary meanings, both of these phrases are also quite ambiguous. It is beyond the scope of this paper to explore this ambiguity further here.
The basic provisions concerning the EEZ are set out in Part V of the 1982 UN Convention. In this zone, the coastal State has sovereign rights for the purpose of exploring and exploiting, conserving and managing inter alia the living marine resources. In Article 61 (2), the coastal State is required, taking into account the best scientific evidence available to it to ensure through proper conservation and management measures that the maintenance of the living resources in the EEZ is not endangered by over-exploitation. This duty would at least imply a responsibility on the part of the coastal State to collect such data if none were available.
The most important provision concerning data is set out in Article 61 (5), which deals with the conservation of the living resources.
It states:
“Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation offish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional, or global, where appropriate and with participation by all States concerned, including States whose nationals are allowed to fish in the exclusive economic zone”The words “available scientific information” were probably employed in part to avoid imposing too onerous a burden on countries in the collection of data, especially developing States, or in the need to undertake scientific assessments of the living marine resources. This phrase was most probably linked to the requirement in Article 61 (2) that the coastal State shall take “into account the best scientific information available to it”.
Article 61 (5) reflects the increasing importance that was attached to exchange of information through international organizations. The reference to “including states whose nationals are allowed to fish in the exclusive economic zone” does not of itself emphasise a primary role of the flag state in providing data, indeed, it seems merely to underline the intention at that time for available information to be exchanged.
The other provisions in Part V which have a bearing on the issue are to be found in Article 62 which deals with the utilisation of the living resources. These are:
Article 62.4 (d) which allows the coastal State to impose on “nationals of other States fishing in the exclusive economic zone”, amongst a number of other conditions, laws and regulations relating to “specifying the information required of fishing vessels, including catch and vessel statistics and vessel position reports”These two provisions would allow a coastal State, as a condition of allowing foreign fishing in its EEZ, to impose conditions regarding the provision of catch data (format, content, frequency, to whom the reports should be made, etc), and indeed, this is the normal situation.Another article of relevance is Article 62 4 (i), which relates to “terms and conditions relating to joint ventures or other co-operative arrangements”.
Overall, Part V does not mandate any specific or primary responsibility to collect data with respect to fishing in the EEZ. Thus, it would be open to the coastal State to do this, either in respect of its own vessels fishing in the EEZ or in respect of foreign vessels being authorised to fish in the EEZ as a condition of fishing. It would also be open to the flag State of a foreign fishing vessel to collect data, either as a condition of a licence imposed by the coastal State under a bilateral access agreement, or under a joint venture agreement, or it could be provided voluntarily.
What is made clear however is that there exists an obligation to exchange available information through competent international organizations, and that would imply the capacity on the part of such bodies to set data reporting standards for States to follow.
For the sake of completeness, it should be added that a coastal State does have the power to control marine scientific research in its EEZ or on its continental shelf. The coastal state should in normal circumstances grant its consent to undertake marine science research projects, though it has a discretion to withhold that consent if it is of direct significance for the exploitation of the natural resources of the zone. (Article 246, 1982 UN Convention).
As with the EEZ, the 1982 UN Convention did not mandate any specific responsibility with regard to the collection of scientific data. The principal provision is Article 119 (2) which provides: “available scientific information, catch and fishing effort statistics, and other scientific data relevant to the conservation offish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned”
This obligation mirrors that which was found in respect of Article 61 concerning the EEZ, namely that there is an obligation to exchange information, etc. For practical purposes, this would only be information provided by the flag State.
The obligation to establish conservation measures for the high seas set out in Article 119 (1) presupposes that the State undertaking the fishing of these high seas stocks has access to the necessary data, or is able to provide it in order to arrive at meaningful conservation measures.
The simple regime laid down in the 1982 UN Convention for the high seas is now modified substantially by the UN Fish Stocks Agreement. Indeed, insofar as straddling fish stocks and highly migratory fish stocks are concerned, we will see that it has also had some impact on the EEZ.
The UN Fish Stocks Agreement is not yet in force, but it reflects a much more elaborate and sophisticated approach to the collection of data. Whereas the 1982 UN Convention only addressed the question of collection and exchange of data in passing, it had come to be recognized that it should be addressed much more vigorously. Further, it imposes quite specific obligations on States that are in contrast to those found in the 1982 UN Convention, some of which, we have seen, are at best implied.
The Agreement is also quite complex in its operation. Although it is not yet in force, that may be less important in respect of data collection than it at first appears, as there is nothing to prevent States from collecting and sharing the information required under the Agreement even before it comes into force. Indeed, something like that is already happening with the FAO Compliance Agreement as some States are already providing the information they are required to provide before it has come into force, and there is no reason why States should not be able to do the same with respect to the obligations under the UN Fish Stocks Agreement.
It is also important to note that the UN Fish Stocks Agreement only applies to highly migratory fish stocks and straddling fish stocks beyond areas under national jurisdiction, though some of its provisions also apply in areas under national jurisdiction2. In particular, the coastal State is to apply mutatis mutandis the general principles set out in Article 5, while Articles 6 (Precautionary Approach) and 7 (Compatibility of Conservation and Management Measures) shall also apply to such areas.
2 See footnote 1 above.The introduction to Article 5 itself is interesting, for it states: “In order to conserve and manage straddling fish stocks and highly migratory fish stocks, coastal States and States fishing on the high seas shall, in giving effect to their duty to cooperate in accordance with the Convention:” This picks up the various duties in the 1982 UN Convention to cooperate, which would include those referred to above with respect to exchange of data, limited though it is to the particular stocks to which the Agreement applies.
One of the general principles stated in Article 5 is of direct concern to us here. Paragraph (j) provides: “collect and share, in a timely manner, complete and accurate data concerning fishing activities on, inter alia, vessel position, catch of target and non-target species and fishing effort, as set out in Annex I, as well as information from national and international research programmes”
Article 6, which sets out the precautionary approach which is to be applied by “States”, also makes reference to the need to collect data, for paragraph (d) provides: “develop data collection and research programmes to assess the impact of fishing on non-target and associated or dependent species and their environment....”
It will be noted that these two provisions are cast in general terms. Where the fishing is taking place on the high seas, this will in almost all situations place the primary burden on the flag State.
The UN Fish Stocks Agreement also makes specific provision for the responsibility of the flag State. Article 14 sets out the following:
“States shall ensure that fishing vessels flying their flag provide such information as may be necessary in order to fulfil their obligations under this Agreement. To this end States shall in accordance with Annex I...”Here follows a number of detailed conditions regarding the collection and exchange of scientific, technical and statistical data.
This is backed up by Article 18 which sets out Duties of the Flag State, which include among the measures to be taken by the flag State in paragraph 3 e) “requirements for recording and timely reporting of vessel position, catch of target and non-target species, fishing effort and other relevant fisheries data in accordance with subregional, regional, and global standards for the collection of such data.”
The new regime set out in the UN Fish Stocks Agreement is complemented by Articles 9 (Subregional and regional fisheries organizations and arrangements) and 10 (Functions of subregional and regional fisheries management organizations and arrangements). The most important provision for our purposes is found in paragraphs (d), (e), and (f) of Article 10. These state:
(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”All of these provisions are complemented by Annex I of the UN Fish Stocks Agreement. The chapeau to Article 1 of this Annex powerfully illustrates the progress made since the 1982 UN Convention in regard to increased recognition of the essential need for the collection of reliable data: “The timely collection, compilation and analysis of data are fundamental to the effective conservation and management of straddling fish stocks and highly migratory fish stocks.” Only the limitation as to the stocks covered by the Agreement and the Annex (i.e. the straddling fish stocks and highly migratory fish stocks) obscures the progress made since 1982. The Annex sets out very elaborate provisions concerning data. It is important to note that the obligations are placed on both the flag State and more generally on States. Thus while the flag State has a specific obligation which is set out in Articles 14 and 18 above, it is clearly not put in such a way in this Annex as to exclude responsibility on the part of the coastal State from collecting data also.“(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 as described in Annex I, to ensure the best scientific evidence is available, while maintaining confidentiality where appropriate”
However, in one very important respect, the Annex places particularly strong obligations on the flag State, for in Article 5, there is an obligation to ensure that vessels flying its flag send to its national fisheries administration, and where agreed, to the relevant subregional or regional fisheries management organization or arrangement, log book data on catch and effort, including data on fishing operations on the high seas. Likewise, in Article 7, concerning data exchange, it is stated: “Data collected by flag States must be shared with other flag States and relevant coastal States through appropriate subregional or regional fisheries management organizations or arrangements”. Such organizations are also to compile such data and make them freely available in a timely manner and in an agreed format to all interested States.
It is useful to look briefly at other international instruments that might have a bearing on the question of data collection.3
3 For a useful table summarizing the provisions of several regional agreements, see further M. Tsamenyi and K. Mfodwo, Integrated Fisheries Monitoring - the Legal Framework, pp 12-14. Paper presented at International Conference on Integrated Fisheries Monitoring, Sydney 1-5 February, 1999 The table is attached as an annex to this paper. They conclude: “The language of obligation set out in many of these treaties is weak by contrast with for example, the Straddling/Highly Migratory Stocks Agreement, and also in relation to the importance of the tasks.” p12.The Code of Conduct has extensive provisions touching on fisheries data collection and exchange, though space limitations do not allow a fuller analysis here. The principal articles dealing with fisheries data are to be found in articles 7.3.4. 7.4, 8.1.3, and 12. The Code is neutral on the question of attributing primary responsibility for collecting data, placing the obligations on States, though the role of subregional or regional fisheries management organizations or arrangements is fully recognised (Article 7.4) As well there are references to States ensuring that “timely, complete and reliable statistics on catch and fishing effort are collected and maintained in accordance with applicable international standards, and in sufficient detail to allow sound statistical analysis” The Code also urges subregional and regional fisheries management organizations or arrangements to compile data and make them available, in a manner consistent with any applicable confidentiality requirements in a timely manner and in an agreed format to all members of these organizations and other interested parties in accordance with agreed procedures (Article 7.4.7).
The Compliance Agreement imposes obligations on flag States to exchange information with respect to vessels. Article VI requires parties to make readily available to FAO certain information with respect to each fishing vessel entered on its record of fishing vessels. This information is to be circulated periodically to all parties, and on request, to any individual Party, and, subject to any restrictions imposed by the party concerned, to any global, regional or subregional fisheries organization. This information does not address catch data, but the information that will be circulated will play an important part in helping to detect unauthorised fishing on the high seas.
It will be apparent from the above that there is no systematic obligation to obtain or to exchange data set out in the 1982 UN Convention. Certainly there is no single approach mandated to the collection of data under that Convention. The UN Fish Stocks Agreement comes closest in the clear obligation it imposes on the flag State to provide the relevant data. This obligation is not intended to exclude the responsibility of others. However, legally speaking, the UN Fish Stocks Agreement is limited to straddling fish stocks and highly migratory fish stocks4, and in any event, like the Compliance Agreement, is not yet in force.
4 Though it should be noted that Article 18 is worded generally, while Article 14 is clearly limited to straddling fish stocks and highly migratory fish stocks, while Annex I is also dearly limited to those stocks.However, this aspect is less important than it might appear, as the action necessary i.e. to exchange data, is not of itself an activity which depends on the existence of an agreement. It is something that can be done by either the coastal State or the flag State under existing powers.5 Indeed, the only constraint that could arise is if there were a provision under national law restricting the release of information.
5 An example of this can be found in the present situation regarding the FAO Compliance Agreement in respect of its obligation to provide data on certain vessels operating on the high seas. This can already be provided by the flag State, and already Canada and US are providing that information.There is of course another way of approaching the matter, namely that there exists a general duty to cooperate with respect to shared resources which brings with it at least a minimal duty to share basic information regarding such stocks. Without diminishing the importance of such an approach, it is suggested that it is too vague in setting relevant standards for data collection.
What is more important from a legal point of view is that the national law of the flag State or of the coastal State in question mandates the provision of data in a form that enables it to provide this information to an international forum and in a meaningful form.
More importantly, there are clear obligations to share available information, and it is appropriate that this should be collected in an internationally agreed manner. All the references in the 1982 UN Convention refer to co-operation through competent global, regional sub-regional organizations. The UN Fish Stocks Agreement goes further in that it imposes an obligation to provide the information in accordance with “sub-regional, regional and global standards for the collection of such data” (Article 19 Duties of the flag State), while Annex I itself provides the basis for formulating standard requirements for the collection and sharing of data.
Thus the approach of the Co-ordinating Working Party on Fishery Statistics (CWP) becomes of critical importance in setting those internationally agreed standards.
