The International Legal Regime for Fisheries

Management

Martin Tsamenyi, PhDProfessor of Law & DirectorCentre for Maritime PolicyUniversity of WollongongNSW, Australia

UNEP WORKSHOP ON FISHERIES SUBSIDIES AND SUSTAINABLE FISHERIES MANAGEMENT

International Environment House II Geneva, 26-27 April 2004

IN THE BEGINNING

Papal Bull of Demarcation 1492 & The Treaty of Tordesillas 1493

Freedom of the Seas

The resources of the oceans “belong to all men by natural law.”

Hugo Grotius:1609

Freedom of the Seas

“The sea is common to all, because it is so limitless that it cannot become the possession of any one, and because it is adapted for use of all, whether we consider it from the point of navigation or fisheries.”

‘Over-fishing unscientific’

• “Any tendency to over-fish will meet with its natural check in the diminution of the supply,… this check will always come into operation long before anything like permanent exhaustion has occurred” (Huxley, 1883).

Over-fishing Impossible

“ I say it is impossible, not merely to exhaust them [fisheries] but even noticeably to lessen their number by means now used for their capture, . For the last three hundred years fishing has gone on … and although enormous quantities of fish have been caught, there are no indications of exhaustion.” (L.Z Joncas, Canadian Ministry of Agriculture, 1885).

The High Seas Convention-1958

• The freedom of the High Seas comprises inter alia:•Freedom of fishing

• “Tragedy of the [international] commons”

Modern International Legal & Policy Framework

• Three CategoriesFisheries Specific

Instruments“Soft Law” Instruments

•Policy frameworkGeneral international marine

environmental treaties

Fisheries Specific Instruments

• UN Law of the Sea Convention• UN Fish Stocks Agreement• FAO Compliance Agreement• Regional and Bilateral

Fisheries Agreements/Conventions

UN Convention on the Law of the Sea 1982

• The exclusive economic zone (EEZ)The most extensive

transformation of the law of the sea in past 500 years

Transfer of property rights from international community to coastal States

EEZ – an inheritance

“Under the new regime of the seas, the world community has WILLED to the coastal States the bulk of living resources in waters off their shores.”

Coastal State Rights in the EEZ

•Promotion of optimum utilization of resources

•Preferential access to the resources

•Power to enforce fisheries laws and regulations

Responsibilities in the EEZ

• Effective conservation and management framework

• Maintaining or restoring populations of dependent and associated species

• Data collection and exchange• International and regional

cooperation to manage and conserve

Impact of the EEZ Regime

• Rights without Responsibilities“Gold mine mentality”

No conservation measuresNo TAC determinationIndiscriminate allocation/licensing of foreign vessels

Impact of EEZ Regime• Management Problems

Lack of compatibility of measuresEEZ/EEZEEZs/high seasRegional and international management frameworks

Lack of capacity to manageDWFNs counter-responses

UN Fish Stock/Compliance Agreement

Common Themes

• Control activities of nationals through proper authorization Flag State

Responsibility• International, regional

and sub-regional cooperation Conservation Data collection and

exchange enforcement/surveillance Vessel monitoring

systems

• Control of non-parties• Port State enforcement• Multilateral trade

sanctions• Implementation of

international obligations

• Limited recognition of ecosystem approaches management Marine biodiversity

generally High seas biodiversity

Impact of UN Fish Stocks/Compliance Agreement

•Right Direction

•BUTLack of widespread

ratificationLack of implementation

Soft Law” Instruments• Action Plans• Strategies• Declarations• Codes of

Conduct FAO Code of

Conduct for Responsible Fisheries 1995

• Guidelines

• Plans of Action (1999-2001) Management of sharks Reducing Incidental

catch of Seabirds in Longline Fisheries

Management of Fishing Capacity

Prevent, Deter and Eliminate IUU Fishing

• Resolutions of the UNGA, or of international fisheries bodies

Impact of “soft law” instruments

• POSITIVE Policy framework to

implement binding instruments the development of concepts

and principles e.g the precautionary approach

testing grounds for new ideas, or adaptations of old ideas to new areas

Impact of “soft law” instruments

• NEGATIVE easy to include text in such

documents in the knowledge that they will not have to be implemented.

shifting from the language of ‘should’ to ‘shall’ to avoid legal obligation to implement

International Marine Environmental Treaties

• Biodiversity Convention• CITES• World Heritage Convention• Ramsar Convention• Bonn Convention• MARPOL

Impact of Environmental Instruments

• Marginalized• No effective framework for

coordination between “fisheries” and “environmental” sectors atNational levelInternational level

The Way Forward• Moratorium on new international

instrumentsMore than adequate international legal and

policy framework to address the problem• Need for fresh thinking on

implementation strategiesHolistic approachSynergy and linkages between and among

• Instruments•Sectors

Capacity building •especially for developing countries