The International Legal Regime for Fisheries Management Martin

The International Legal Regime for Fisheries Management Martin Tsamenyi, Ph. D Professor of Law & Director Centre for Maritime Policy University of Wollongong NSW, 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 Categories v. Fisheries Specific Instruments v“Soft Law” Instruments • Policy framework v. General 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) v. The most extensive transformation of the law of the sea in past 500 years v. 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 v“Gold mine mentality” § No conservation measures § No TAC determination § Indiscriminate allocation/licensing of foreign vessels

Impact of EEZ Regime • Management Problems v. Lack of compatibility of measures § EEZ/EEZ § EEZs/high seas § Regional and international management frameworks v. Lack of capacity to manage v. DWFNs counter-responses

UN Fish Stock/Compliance Agreement Common Themes • Control activities of nationals through proper authorization v Flag State Responsibility • International, regional and sub-regional cooperation v Conservation v Data collection and exchange v enforcement/surveillance v Vessel monitoring systems • Control of non-parties • Port State enforcement • Multilateral trade sanctions • Implementation of international obligations • Limited recognition of ecosystem approaches management v Marine biodiversity generally v High seas biodiversity

Impact of UN Fish Stocks/Compliance Agreement • Right Direction • BUT v. Lack of widespread ratification v. Lack of implementation

Soft Law” Instruments • Action Plans • Strategies • Declarations • Codes of Conduct v FAO Code of Conduct for Responsible Fisheries 1995 • Guidelines • Plans of Action (1999 -2001) v Management of sharks v Reducing Incidental catch of Seabirds in Longline Fisheries v Management of Fishing Capacity v 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 v the development of concepts and principles e. g the precautionary approach v testing grounds for new ideas, or adaptations of old ideas to new areas v

Impact of “soft law” instruments • NEGATIVE v easy to include text in such documents in the knowledge that they will not have to be implemented. v 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 at v. National level v. International level

The Way Forward • Moratorium on new international instruments v. More than adequate international legal and policy framework to address the problem • Need for fresh thinking on implementation strategies v. Holistic approach v. Synergy and linkages between and among • Instruments • Sectors v. Capacity building • especially for developing countries