Fisheries and their Impact on the MarineEnvironment: UNCLOS and Beyond
Robin Churchill
f f lProfessor of International Law
University of Dundee, United Kingdom
Types of impactyp p
• Depletion of fish stocks
• Killing or injuring species other than fish as a result of using non selective fishing gearresult of using non‐selective fishing gear
• Damage to marine habitats caused by various forms of fishing
Causes of the adverse impact of fisheries on the marine environmentfisheries on the marine environment
• Developments in technology
• Increasing consumer demand for fish
• Increasing demand for fish for uses other than directIncreasing demand for fish for uses other than direct human consumption such as animal feed (including in aquaculture)in aquaculture)
• Over‐capacity of fishing fleets, partly stimulated by subsidiessubsidies
• Excessive catches of non‐target
species, often discarded
Causes of the adverse impact (cont)Causes of the adverse impact (cont)
d d• Inadequate management measures, caused by, inter alia, lack of scientific knowledge,
/political/industry pressures, and lack of co‐operation between States over shared stocks
• Lack of capacity and/or unwillingness to implement and enforce management p gmeasures effectively
• Change of flag by fishing vessels to evade• Change of flag by fishing vessels to evade controls
Weaknesses of UNCLOS in combating adverse fisheries impactsadverse fisheries impacts
Normative weaknesses. The relevant provisions of UNCLOS are heavily qualified or lack precision, e.g.
Management measures must be designed to maintain or t l ti f h t d i t l l th trestore populations of harvested species at levels that
can produce the maximum sustainable yield – but as qualified by relevant environmental and economicqualified by relevant environmental and economic factors
conservation measures must ‘take into consideration’their effect on associated or dependent species with a view to maintaining or restoring populations of such species ‘above levels at which their reproduction mayspecies above levels at which their reproduction may become seriously threatened’
Weaknesses of UNCLOS (cont)Weaknesses of UNCLOS (cont)
Jurisdictional limitations
On the high seas fishing vessels are subjectOn the high seas fishing vessels are subject only to the jurisdiction of their flag State
Th i i f UNCLOS h i liThe provisions of UNCLOS on the nationality of ships, in particular the genuine link requirement, are too imprecise to have prevented the growth of flag of convenienceprevented the growth of flag of convenience fishing vessels
Weaknesses of UNCLOS (cont)Limited compliance mechanisms. UNCLOS system of compulsory dispute settlement excludes disputes relating to fisheries in the EEZ, where 90% of fishing takes place
Limited means for development of UNCLOS. Of potential means:
opposition to giving the annual meetings of UNCLOS States parties a greater role p g
the amendment procedures of UNCLOS are too cumbersome to be usefulcumbersome to be useful
little appetite for considering the possibility of more implementation agreementsmore implementation agreements
Beyond UNCLOS 1. Resource depletion
• UN Fish Stocks Agreement (1995) • Conservation and management measures adopted by RFMOs
• FAO Compliance Agreement (1993); Port State Measures Agreement (2009); Code of Conduct for Responsible Fisheries (1995); International Plans of Action (IPOAs) on illegal, unreported and
l d ( ) f h ( ) f hunregulated (IUU) fishing (2001), fishing capacity (1999), and sharks (1999); and Guidelines on B h M d R d i f Di dBycatch Management and Reduction of Discards (2011)
• CITES listing of various fish species
Beyond UNCLOS 1 (cont.)Existing measures not very successful
Wh t ld b d ?What more could be done?
• Encouraging more ratifications of FAO g gCompliance and Port State Measures AgreementsAgreements
• More effective implementation of the FAO Code f d dof Conduct and IPOAs
• Financial and technical assistance to improve pthe capacity of poor States to manage their EEZ fisheries more effectivelyfisheries more effectively
Beyond UNCLOS 1 (cont.)• Tackling subsidies through international trade lawlaw
• Prohibiting imports of fishery products taken i IUU fi hi ( l d b f lin IUU fishing (currently done by, for example, the EU and USA)
• The encouragement of ethical consumerism through development of better labelling andthrough development of better labelling and certification schemes
Beyond UNCLOS 2. Harm to non‐fish species
• UN General Assembly resolutions, Wellington Convention (1989) and RFMO measures relating to high seas driftnet fishingg
• FAO Code of Conduct for Responsible FisheriesFisheries
• Agreements on the reduction of dolphin t lit i E t P ifi O (1992 dmortality in Eastern Pacific Ocean (1992 and
1999) (on incidental take of dolphins in the f h )tuna purse‐seine fishery)
• FAO IPOA (1999) and RFMO measures on ( )taking of seabirds in long‐line fishing
Beyond UNCLOS 2 (cont)• FAO Guidelines to reduce sea turtle mortality• FAO Guidelines to reduce sea turtle mortality in fishing operations (2004)
• Measures adopted under various CMS agreements and MOUs on protection from theagreements and MOUs on protection from the adverse effects of fishing of small cetaceans, albatrosses and petrels dugongsalbatrosses and petrels, dugongs, Mediterranean monk seals
and turtles
Beyond UNCLOS 2 (cont)Some success with these measures, e.g.
fishing on the high seas with driftnets infishing on the high seas with driftnets in excess of 2.5 km has virtually ceased;
substantial decline in dolphin mortality in the Eastern Pacific Ocean
reduction in incidental catches of small cetaceans in European waterscetaceans in European waters
Beyond UNCLOS 3. Damage to marine h bihabitats
• UNGA Resolutions on bottom fishingg• FAO Guidelines on deep sea fisheries on the high seas (2008) ( )
• FAO Code of Conduct for Responsible Fisheries• RFMO measures to restrict or prohibit fishing in• RFMO measures to restrict or prohibit fishing in the vicinity of specific vulnerable marine ecosystems (VMEs)ecosystems (VMEs)
• CBD COP decisions on protection of marine habitatshabitats
Beyond UNCLOS 2 and 3. What more?• Keep existing measures under review and assess their effectiveness in order to see whether moretheir effectiveness in order to see whether more hard or soft law is desirable
• Establish more marine protected areas both within• Establish more marine protected areas, both within and beyond national jurisdiction
• Extend ethical consumerism from sustainable fishing• Extend ethical consumerism from sustainable fishing to fishery products taken in a way that does not damage the wider marine environmentdamage the wider marine environment
• Prohibit imports of fishery products taken in ways that contravene agreements on preventing thethat contravene agreements on preventing the incidental taking of non‐fishery species and harm to the marine environmentthe marine environment