Compliance Procedure: Implementation Agreement on Straddling and Highly Migratory Fish Stocks
Bernard H Oxman
- Fisheries — Marine environment, protection — International courts and tribunals, procedure — High seas — UNCLOS (UN Convention on the Law of the Sea) — Compliance monitoring in international organizations — Compliance with international decisions
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
A. The Freedom of the High Seas
1 The principle of the freedom of the high seas has been a central feature of the international order since the emergence of modern international law. Its classic object is freedom of navigation. The principle also includes other freedoms, notably freedom of fishing in the present context.
2 The freedom of the seas requires mutual restraint in the interests of all. Article 2 Convention on the High Seas, 1958, articulates the constraint as follows: [t]he freedoms of the high seas ‘shall be exercised by all States with reasonable regard to the interests of other States in their exercise of the freedom of the high seas’. This is repeated in Article 87 United Nations Convention on the Law of the Sea (UNCLOS), 1982, with a non-substantive change from ‘reasonable regard’ to ‘due regard’. The latter term was used in the judgment of the International Court of Justice (ICJ) in Fisheries Jurisdiction (United Kingdom v Iceland) (1974, 3, para 72) (‘duty to have due regard to the rights of other States and the needs of conservation for the benefit of all’) (see Fisheries Jurisdiction Cases (United Kingdom v Iceland; Federal Republic of Germany v Iceland)). The term ‘due regard’ is used consistently in the UNCLOS provisions concerning fisheries.
B. The 1958 Convention on Fishing and Conservation of Living Resources of the High Seas
3 In addition to the Convention on the High Seas, the first conference on the law of the sea (Conferences on the Law of the Sea) convened by the United Nations (‘UN’) in 1958 adopted three other conventions, including the Convention on Fishing and Conservation of the Living Resources of the High Seas (‘Fishing Convention’). That convention provides that ‘[a]ll States have the duty to adopt, or to co-operate with other States in adopting, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas’ (Art 1 Fishing Convention). ‘If the nationals of two or more States are engaged in fishing the same stock or stocks of fish or other living marine resources in any area or areas of the high seas, these States shall, at the request of any of them, enter into negotiations with a view to prescribing by agreement for their nationals the necessary measures for the conservation of the living resources affected’ (Art 4 Fishing Convention). Since that involves only a limited number of states, while freedom of fishing applies to all states, the text goes on to address the new entrant: ‘[i]f, subsequent to the adoption of the measures … nationals of other States engage in fishing the same stock or stocks of fish or other living marine resources in any area or areas of the high seas, the other States shall apply the measures … to their own nationals’ (Art 5 Fishing Convention). There are also provisions automatically including the coastal state in this process in any area of the high seas adjacent to its territorial sea (Art 6 Fishing Convention).
5 If ‘there is a need for urgent application of conservation measures in the light of the existing knowledge of the fishery’, the coastal state is permitted to ‘adopt unilateral measures of conservation appropriate to any stock of fish or other marine resources in any area of the high seas adjacent to its territorial sea’ which ‘remain in force pending the settlement, in accordance with the relevant provisions of this Convention, of any disagreement as to their validity’ (Art 7 Fishing Convention).
6 The ultimate solution to the failure to reach agreement on conservation measures is legally binding arbitration by a special commission at the request of any party to the dispute (Arts 9–11 Fishing Convention). The use of compulsory arbitration in this Convention is particularly noteworthy because parties to the 1958 conventions on the law of the sea are not otherwise required by those conventions to accept submission of a dispute to arbitration or adjudication.
7 The Fishing Convention was the least widely ratified of the four 1958 conventions on the law of the sea. Moreover, the 1958 conventions as a whole did not succeed in stabilizing the law of the sea. In particular, coastal states increasingly made extensive unilateral claims of jurisdiction over fishing and other activities off their coasts in derogation of the freedoms of the high seas. Those claims were often disputed by other states. Following several years of preparatory work in committee, the UN General Assembly decided to convene a new comprehensive conference. The Third UN Conference on the Law of the Sea began in 1973 and continued to meet twice a year until 1982, when UNCLOS was adopted.
C. The United Nations Convention on the Law of the Sea (UNCLOS)
8 UNCLOS largely eliminates freedom of fishing with respect to most of the commercially exploited living resources of the sea. This is the effect of:
• the 12 nautical mile (‘nm’) maximum seaward limit of the territorial sea, where coastal state sovereignty includes control of fishing (Arts 2–3 UNCLOS);
• the alternative limits of 200 nm or the outer edge of the continental margin with respect to the continental shelf, where the coastal state has sovereign rights with respect to sedentary species (Arts 68 and 76–77 UNCLOS); and
• the prohibitions on high seas fishing for anadromous and catadromous species (Arts 66–67 UNCLOS).
With respect to fisheries beyond the EEZ, UNCLOS sets forth obligations to conserve and to cooperate with other states in conservation, including the establishment of regional and subregional fisheries organizations to this end (Arts 116–19 UNCLOS).
D. Increasing High Seas Fishing
9 The expectation at the time of the negotiation of UNCLOS was that some 90 per cent of the world’s commercially exploited marine fisheries would be subject to regulatory and enforcement powers of a coastal state. But as an increasing number of states extended their jurisdiction over fisheries to 200 nm based on UNCLOS well before its entry into force in 1994, there was a marked increase in fishing in certain areas beyond and adjacent to the 200 nm limit by distant water fishing fleets. This increase may be attributed at least in part to new coastal state restrictions on access to areas within 200 nm.
1. Impact on Coastal States
10 This increase had a direct impact on the interests of coastal states not only beyond the EEZ but within it as well. The coastal state’s right under Article 61 UNCLOS to adopt a total allowable catch and other conservation measures with respect to fishing in the EEZ could be undercut by fishing for the same stock outside the EEZ of that state without regard to such measures. Similarly, the coastal state’s right under Article 62 UNCLOS to reserve to itself its harvesting capacity within the EEZ, to limit foreign fishing there to any remaining surplus within the total allowable catch it adopted, and to derive economic and other benefits from such foreign fishing also could be undercut by fishing for the same stock outside the EEZ.
2. New Unilateral Claims
11 Possibly influenced in part by the ‘urgency’ provisions of the 1958 Fishing Convention, a few coastal states responded with assertions of control over fisheries beyond 200 nm. Others were facing domestic pressures to follow suit. This in turn threatened at best to impede widespread ratification of UNCLOS, and at worst to undo the entire jurisdictional structure of UNCLOS that took intensive negotiations over a dozen years to assemble. One of the ironies of this situation is that, had UNCLOS in fact been in force for the states concerned at the time, the coastal states might have sought more effective flag state controls on high seas fishing through arbitration or adjudication under the compulsory jurisdiction provisions of UNCLOS (Annex VII arbitration: United Nations Convention on the Law of the Sea (UNCLOS); International Tribunal for the Law of the Sea (‘ITLOS’)).
3. Emergence of a New Agreement on Implementation of UNCLOS
12 Be that as it may, the result was that, at the behest of affected coastal states and certain environmental groups, the 1992 UN Conference on Environment and Development called for convening a new intergovernmental conference to promote effective implementation of the provisions of UNCLOS regarding straddling fish stocks and highly migratory fish stocks (Straddling and Highly Migratory Fish Stocks). Negotiations were undertaken to this end under UN auspices in 1993. They resulted in the adoption on 4 December 1995 of the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (‘IAFS’) (1995, 3).
E. Straddling Fish Stocks and Highly Migratory Fish Stocks
13 ‘Use of the term fish stock usually implies that the particular population is more or less isolated from other stocks of the same species and hence self-sustaining’ (FAO, 1997). Both straddling fish stocks and highly migratory fish stocks can be found on both sides of the 200 nm limit of the EEZ. The stocks are accordingly subject to two different regulatory regimes. Fishing for those stocks within 200 nm is subject to regulation by one coastal state or another. Fishing for those stocks beyond 200 nm is subject to regulation by one flag state or another.
1. Highly Migratory Fish Stocks under UNCLOS
14 Annex I UNCLOS specifically identifies the highly migratory species to which Article 64 UNCLOS applies. (Tuna species are the most widely consumed of species on the list.) Article 64 attempts to ensure consistency and effectiveness of regulation by requiring the coastal states and other states whose nationals fish in the region for highly migratory species to ‘cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone’. If no appropriate international organization exists, those states are required to ‘cooperate to establish such an organization and participate in its work’.
2. Straddling Fish Stocks under UNCLOS
15 The IAFS does not define the term ‘straddling fish stocks’. It is usually thought to refer to stocks that can be found on both sides of the 200 nm line and are not specifically regulated by Article 64 or other UNCLOS articles concerning particular species. In this regard Article 63 (2) UNCLOS provides, ‘[w]here the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area’.
(a) The Role of International Institutions
16 Unlike Article 64, Article 63 (2) contemplates internationally agreed measures only with respect to the area beyond and adjacent to the EEZ, not within it. A similar perspective is evident in Article 61 UNCLOS, the basic article on conservation of living resources in the EEZ, where references to the involvement of competent international organizations are qualified by the terms ‘as appropriate’ and ‘where appropriate’. That perspective is also evident in Article 297 (3) UNCLOS, which excludes coastal state regulatory powers over fisheries in the EEZ from compulsory arbitration or adjudication. The underlying rationale, popular among environmentalists at the time and abetted by certain coastal states, was that coastal states had a strong interest in conservation of living resources in their own EEZs and that international involvement in regulation would be either unnecessary or unhelpful. By the time of the negotiation of the IAFS, serious environmentalists came to realize that the confidence in exclusive reliance on coastal state interests with respect to the EEZ may have been exaggerated, but their efforts to rectify the situation came up against strong opposition from some coastal states.
F. The Implementation Agreement on Straddling and Highly Migratory Fish Stocks
1. Geographic Scope
17 Article 3 IAFS states that, unless otherwise provided, the agreement applies only to management and conservation of fish stocks beyond areas under national jurisdiction. The provisions that apply expressly both within and beyond areas under national jurisdiction are of two sorts. One, reflecting the treatment of highly migratory species under Article 64 UNCLOS, applies to both areas the regulation under Article 7 (1) (b) IAFS of such species through subregional or regional fisheries management organizations or arrangements (‘RFMO/As’). The other, taking a limited but significant step beyond Article 63 (2) UNCLOS, applies to both areas the general principles set forth in Article 5 IAFS, the precautionary approach described in Article 6 IAFS, and the Article 7 IAFS provisions on cooperation for the purposes of ensuring the compatibility of conservation and management measures established for the high seas and those adopted for areas under national jurisdiction.
(a) Areas under National Jurisdiction
18 UNCLOS sets forth specific regimes for conservation of living resources only with respect to the EEZ and the high seas beyond. However, a duty to conserve in other areas may be implied by the obligation to protect and preserve the marine environment under Article 192 UNCLOS; the object of that obligation is all of the marine environment both geographically and substantively, including marine life. In the absence of a limiting context (a matter beyond the scope of this essay), the reference to ‘areas under national jurisdiction’ in the IAFS could be understood to embrace not only the EEZ but the territorial sea, archipelagic waters, and those internal waters that form part of the marine environment to which UNCLOS applies.
2. Regional Fisheries Management Organizations and Arrangements (RFMO/As)
19 The IAFS mirrors the 1958 Fishing Convention in relying on agreement among interested states to implement its norms. But it is far more elaborate in laying out the structure and functions of the system, relying in particular on RFMO/As. Where none exists, the states concerned are required to cooperate to establish an RFMO/A. And the IAFS focuses heavily on compliance both by flag states and by their vessels.
3. Duty to Comply with RFMO/A Measures and Prohibition on High Seas Fishing
20 Under the classic law of the sea, while the exercise of the freedom of fishing gives rise to concomitant obligations, the former was largely independent of the latter. The IAFS changes that:
‘[w]here a subregional or regional fisheries management organization or arrangement has the competence to establish conservation and management measures for particular straddling fish stocks or highly migratory fish stocks, States fishing for the stocks on the high seas and relevant coastal States shall give effect to their duty to cooperate by becoming members of such organization or participants in such arrangement, or by agreeing to apply the conservation and management measures established by such organization or arrangement’. (Art 8 (3) IAFS).
‘Only those States which are members of such an organization or participants in such an arrangement, or which agree to apply the conservation and management measures established by such organization or arrangement, shall have access to the fishery resources to which those measures apply’. (Art 8 (4) IAFS).
‘[The flag State shall] prohibit fishing on the high seas by vessels which are not duly licensed or authorized to fish’. (Art 18 (3) (b) (ii) IAFS).
‘A State which is not a member of a subregional or regional fisheries management organization or is not a participant in a subregional or regional fisheries management arrangement, and which does not otherwise agree to apply the conservation and management measures established by such organization or arrangement, … shall not authorize vessels flying its flag to engage in fishing operations for the straddling fish stocks or highly migratory fish stocks which are subject to the conservation and management measures established by such organization or arrangement’. (Art 17 (1)–(2) IAFS).
21 A state may authorize vessels of its flag to fish on the high seas ‘only where it is able to exercise effectively its responsibilities in respect of such vessels under’ UNCLOS and the IAFS (Art 18 (2) IAFS). The flag state is obliged to ‘take such measures as may be necessary to ensure that vessels flying its flag comply with subregional and regional conservation and management measures and that such vessels do not engage in any activity which undermines the effectiveness of such measures’ (Art 18 (1) IAFS). Flag state ‘[s]anctions applicable in respect of violations shall be adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and shall deprive offenders of the benefits accruing from their illegal activities’ (Art 19 (2) IAFS). These flag state duties are developed in considerable detail.
4. Compliance Incentives: Port States
22 The IAFS creates several incentives for flag states and fishing vessels to comply with their obligations. One such incentive is avoiding action by port states in the exercise of their sovereignty over their ports. Influenced by the growing role of port states in enforcing measures to control pollution under UNCLOS (eg Arts 25, 218–20 UNCLOS), Article 23 IAFS specifies that a port state ‘has the right and the duty to take measures, in accordance with international law, to promote the effectiveness of subregional, regional and global conservation and management measures’. It may inspect documents, fishing gear and catch on board fishing vessels that are voluntarily in its ports or at its offshore terminals. It also may ‘prohibit landing and transshipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of subregional, regional or global conservation and management measures on the high seas’. Article 23 has been reinforced by the Food and Agriculture Organization (‘FAO’) Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, which was adopted in 2009 and entered into force in 2016.
5. Compliance Incentives: Enforcement Action at Sea
23 Another such incentive is avoiding enforcement action at sea by a foreign state. Article 21 IAFS permits ‘duly authorized inspectors’ of a state party that is a member of an RFMO/A to board and inspect fishing vessels flying the flag of another state party to the IAFS in any high seas areas covered by the RFMO/A, whether or not the latter state is also a member of the RFMO/A. Moreover, in the event that ‘there are clear grounds for believing that a vessel has committed a serious violation, and the flag state has either failed to respond or failed’ to investigate or authorize the inspecting state to investigate, the inspectors may require the master to bring the vessel to the nearest appropriate port. The language limiting this provision to states party to the IAFS brings it within the ‘powers conferred by treaty’ exception to the prohibition on boarding a foreign ship on the high seas (Art 110 UNCLOS).
6. Compliance Incentives: Compulsory Arbitration and Adjudication
(a) Application to the IAFS and Other Fisheries Agreements
24 Yet another such incentive is avoiding submission of the matter to arbitration or adjudication. Article 30 IAFS incorporates by reference the dispute settlement procedures set forth in Part XV UNCLOS, including the compulsory jurisdiction provisions of section 2 of Part XV. They apply to disputes between parties to the IAFS whether or not they are also parties to UNCLOS (Art 30 (1) IAFS). And they apply not only to any dispute concerning the interpretation or application of the IAFS, but to ‘any dispute between States Parties to this Agreement concerning the interpretation or application of a subregional, regional or global fisheries agreement relating to straddling fish stocks or highly migratory fish stocks to which they are parties, including any dispute concerning the conservation and management of such stocks’ (Art 30 (2) IAFS). This is important because a fair number of fisheries agreements in existence at the time of the conclusion of the IAFS do not contain compromissory clauses. The Convention for the Conservation of Southern Bluefin Tuna is but one example. The paragraph of the Southern Bluefin Tuna arbitral award immediately preceding the dispositif expressly acknowledged that the IAFS, when it comes into force, should ‘go far towards resolving’ the jurisdictional problems that occasioned dismissal of that case, and in this connection repeated the language of Article 30 (2) IAFS (Southern Bluefin Tuna Case (Australia and New Zealand v Japan) 2000, para 71).
(b) Applicable Law
25 The IAFS also adds useful detail to the law to be applied by a court or tribunal. Article 293 UNCLOS calls for the application of ‘this Convention and other rules of international law not incompatible with this Convention’. Article 30 (5) IAFS calls for a court or tribunal to which a dispute has been submitted under the IAFS to apply the relevant provisions of UNCLOS and the IAFS and ‘any relevant subregional, regional or global fisheries agreement, as well as generally accepted standards for the conservation and management of living marine resources and other rules of international law not incompatible with the Convention, with a view to ensuring the conservation of the straddling fish stocks and highly migratory fish stocks concerned’.
(c) Provisional Measures
26 The object of provisional measures that may be prescribed is significantly elaborated. Under Article 41 (1) Statute of the ICJ, provisional measures may be indicated ‘to preserve the respective rights of either party’. To preservation of the respective rights of the parties to the dispute, Article 290 (1) UNCLOS adds ‘or to prevent serious harm to the marine environment’. Article 31 (2) IAFS reformulates this ‘[w]ithout prejudice to article 290 of [UNCLOS]’: the court or tribunal may prescribe provisional measures ‘to preserve the respective rights of the parties to the dispute or to prevent damage to the stocks in question’.
27 Pursuant to Article 7 (2) IAFS, coastal states and states fishing on the high seas are required to cooperate for the purpose of ensuring that conservation and management measures established for the high seas and those adopted for areas under national jurisdiction are compatible. Pending agreement on compatible measures, paragraph 5 requires those states to make every effort to enter into provisional arrangements of a practical nature. ‘In the event that they are unable to agree on such arrangements, any of the States concerned may, for the purpose of obtaining provisional measures, submit the dispute to a court or tribunal in accordance with the procedures for the settlement of disputes provided for in’ the IAFS (Article 7 (5) IAFS). Paragraph 6 adds that the provisional measures ‘shall have due regard to rights and obligations of all States concerned’ (Article 7 (6) IAFS).
28 Thus, while the IAFS in many respects bears little similarity to the 1958 Fishing Convention, its reliance on international courts or tribunals as what might be styled default regulators is quite similar. Among other things, the IAFS adds particular emphasis on provisional measures in the context of perhaps the most difficult issue involved in harmonizing the interests of coastal states and high seas fishing states, namely compatibility of the measures applicable within and beyond 200 nm.
29 From the perspective of those engaged in fishing, the risk of provisional measures limiting fishing is particularly important. Under Article 290 UNCLOS, such measures may be prescribed promptly by ITLOS under not only where ITLOS has jurisdiction over the merits but pending the constitution of an arbitral tribunal to which the dispute has been submitted under section 2 of Part XV UNCLOS. Unless modified or revoked, those measures remain in effect until the final decision in the case is rendered. That could well cover much or all of a current or forthcoming fishing season. For that reason alone, those engaged in fishing on the high seas may regard cooperation and negotiating flexibility as preferable to the risks of litigation.
(d) Coastal States
30 Article 297 (3) UNCLOS provides that ‘the coastal State shall not be obliged to accept the submission to [arbitration or adjudication under section 2 of Part XV UNCLOS] of any dispute relating to its sovereign rights with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations’. Article 297 (3) is expressly incorporated by reference by Article 32 IAFS. It requires two qualifications.
31 First, two arbitral tribunals have concluded that because this jurisdictional limitation refers only to the EEZ, it applies neither to the territorial sea nor, in the first case cited, to sedentary species of the continental shelf excluded from the regime of the EEZ by Article 68 UNCLOS (Chagos Marine Protected Area (Mauritius v United Kingdom), 18 March 2015, paras 304, 547 (A) (3) (a); South China Sea Arbitration (Philippines v China), 12 July 2016, para 407). For similar reasons, the limitation might not apply to a submission alleging that a coastal state has failed to comply with its duty to cooperate with respect to the conservation and management of stocks outside its EEZ, bearing in mind that the limitation could nevertheless affect the nature and scope of the claim and the remedy.
32 Second, the coastal state is subject to compulsory conciliation with respect to certain allegations, including manifest failure to comply with obligations ‘to ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not seriously endangered’ (Art 297 (3) (b) UNCLOS). But the conclusions and recommendations of the conciliators are not binding on the parties (Annex 5, Art 7 (2) UNCLOS; Annex V conciliation: United Nations Convention on the Law of the Sea (UNCLOS)).
7. Compliance Incentives: Non-members of the Relevant RFMO/A
33 With respect to vessels of flag states that are not members of a relevant RFMO/A, and are nevertheless engaged in fishing operations for the relevant stocks, Article 17 (4) IAFS, in the spirit of Article X 1959 Antarctic Treaty, provides that states that are members of the RFMO/A ‘shall take measures consistent with this Agreement and international law to deter activities of such vessels which undermine the effectiveness of subregional or regional conservation and management measures’. One example would be measures by port states in the exercise of their sovereignty over their ports, including those mentioned expressly in Article 23 IAFS. Another would be measures affecting access to markets and perhaps supplies or finance within a state.
34 The consistency of such measures with international law (and perhaps trade agreements as well) may depend in part on whether the states involved are party to a treaty creating the obligation to observe the relevant subregional or regional conservation measures. The IAFS is obviously such a treaty, and its parties would be subject to all of the compliance incentives in the IAFS. As of the time of writing, the UN website lists 89 parties to the IAFS and 168 parties to UNCLOS. Certain parties to the IAFS, notably Iran and the United States, are not yet party to UNCLOS.
(a) Parties to UNCLOS but not the IAFS
35 Many states are party to UNCLOS but are not yet party to the IAFS. Some may have significant long-distance fishing fleets. With respect to such states, even if there is no express obligation to observe the relevant subregional or regional conservation measures as such, there may be an obligation under UNCLOS to cooperate and to take steps with comparable effect. In this connection various obligations under UNCLOS may be relevant, including the ‘due regard’ obligation (Art 87 (2) UNCLOS), the specific obligations with respect to straddling stocks and highly migratory stocks (Arts 63 (2), 64 (1) UNCLOS), the high seas conservation obligations (Arts 117–99 UNCLOS), the environmental obligations (Arts 192, 194 (5), 197 UNCLOS), and the cooperation obligations of states bordering enclosed or semi-enclosed seas (Art 123 UNCLOS).
36 The text of Article 8 (3) IAFS indicates that the duty to become a member of an RFMO/A, or to agree to apply the conservation and management measures thereby adopted, arises from the duty to cooperate. Article 7 (3) IAFS contains a similar reference to the duty to cooperate in connection with the obligation to make every effort to agree on compatible conservation and management measures. The underlying duty to cooperate arises from UNCLOS, including Articles 63 (2), 64, and 117 UNCLOS. In the 2015 ITLOS advisory opinion on fisheries, Judge (later President) Paik looked to the IAFS for guidance as to how the duty to cooperate under UNCLOS is to be performed (Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, para 36). The voluntary FAO Code of Conduct for Responsible Fisheries incorporates significant elements of UNCLOS and the IAFS and states that it is to be interpreted and applied in accordance with both.
(b) Nonparties to UNCLOS and the IAFS
37 With respect to the few states that are party to neither UNCLOS nor the IAFS, the argument that the substantive provisions of UNCLOS are declaratory of customary international law is a strong one that has been accepted by the ICJ in numerous contexts. Since access to arbitration or adjudication would depend on some other agreement, the main utility of the customary law argument in this limited situation may be its contribution to the effort to persuade other states to take action as envisaged by Article 17 (4) IAFS in response to noncompliance by the nonparty and fishing vessels flying its flag. Were they to do so, the tangible evidence of state practice would doubtless strengthen the underlying argument itself.
G. Assessment: the Review Conference
38 Any evaluation of the success or failure of the IAFS compliance system must begin with unhappy general statistics. The resumed review conference attended by states parties to the IAFS in May 2016 ‘expressed concern that, according to the report of the Secretary-General to the resumed Review Conference, the overall status of highly migratory fish stocks and straddling fish stocks had not improved since [the earlier reviews in] 2006 and 2010. The status of a significant number of stocks had deteriorated even as it had improved for a smaller number of stocks. The resumed Review Conference noted with concern that the First Global Integrated Marine Assessment had highlighted that the sustainability and productivity of global capture fisheries continued to suffer the impacts of overfishing and, in some cases, poor management, as the demand for fish and fish products continued to rise, in particular in the light of their important contribution to food security and nutrition. It noted moreover that fisheries were increasingly being affected by ecosystem degradation and biodiversity loss resulting from a combination of stressors, including climate change, ocean acidification, pollution and destructive fishing practices’ (Report of the resumed Review Conference on the [IAFS], Annex, 33–34, paras 3 and 8).
39 It would be a mistake to conclude that this means the IAFS has failed in its principal object. There is reason to believe that the state of regulation and compliance could well have been worse without the IAFS. There are more, and more efficient and effective, RFMOs functioning than in the past. The first agreement to be concluded for the specific purpose of giving effect to the IAFS was the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, adopted in Honolulu in 4 September 2000. Participants in the various RFMOs concerned with highly migratory tuna fisheries have begun meeting and cooperating with each other through what is called the Kobe process, so named for the location of their first meeting in Kobe, Japan, in 2007. The recent IAFS review conference focused significant effort on the question of enhancing compliance with the measures adopted, including the use of new means for monitoring fishing activities and catch. Such enhanced enforcement tools and cooperative structures would unquestionably assist in addressing the vexing problem of illegal, unreported, and unregulated fishing.
1. RFMO Decision-making Procedures
40 The review conference also considered the related question of the effectiveness of the decision-making system within RFMOs. Article 13 IAFS calls for improvements in the effectiveness of RFMOs in establishing and implementing conservation and management measures. Common consensus decision-making systems have many virtues, including from the perspective of compliance when the participating states are expected to implement and enforce the decisions. But as was noted at the recent review conference, consensus ‘sometimes led, when it was the only rule, to blockage of measures or adoption of weak measures. [Several delegations] therefore suggested that decision-making rules should allow for voting when necessary’ (Report of the 2016 resumed Review Conference, 20–21, para 110).
41 Regulatory treaties often entail the agreement of states to abide by and implement the measures adopted at meetings of a designated organ. The classic protection that many governments have sought in this context is consensus decision-making procedures, thus giving priority to their concerns about the possibility of being bound by decisions they do not like over their desire to promote decisions they like. If one wishes to convince governments to accept a more efficient system of majority or qualified majority voting, one may need to find additional means to minimize the risk of adverse decisions. This can be done in many ways. One option is to qualify the agreement to abide by a decision, for example by according a right to opt out. The difficulty is that such lack of uniformity may undermine the effectiveness of the measure adopted. A possible solution is to limit the right to opt out either procedurally or substantively. That in turn raises questions of compliance with the limitations. Another option is to provide a review procedure to consider claims concerning excess of jurisdiction or misuse of power (the terminology adopted by Article 189 UNCLOS with respect to judicial review of Seabed Authority actions). Such procedures are common in municipal administrative law. But they take time, and it is necessary to provide for what happens in the interim.
2. The South Pacific Regional Fisheries Management Organization (SPRFMO)
42 During discussion of the matter at the 2016 IAFS review conference, several delegations highlighted the practice of the South Pacific Regional Fisheries Management Organization (‘SPRFMO’). Pursuant to the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, 2009 (‘South Pacific Convention’), which established the SPRFMO, binding commission decisions may be taken by a two-thirds majority when the chair considers that all efforts to reach a decision by consensus have been exhausted. (Art 16 South Pacific Convention). This is coupled with an objection and review procedure (Review panels: Regional fisheries management organizations (RFMOs)). ‘The only admissible grounds for an objection are that the decision unjustifiably discriminates in form or in fact against the member of the Commission, or is inconsistent with the provisions of this Convention or other relevant international law as reflected in [UNCLOS] or the [IAFS]’ (Art 17 South Pacific Convention). A member that objects need not implement the decision, but must ‘adopt alternative measures that are equivalent in effect to the decision to which it has objected’ (Art 17). A review panel of three members is then promptly appointed by the chair of the Commission and the objecting state (Art 17, Annex II, para 1). The review panel has 45 days to transmit its findings ‘on whether the grounds specified for the objection … are justified and whether the alternative measures adopted are equivalent in effect to the decision to which objection has been presented’ (Art 17). The findings and recommendations of the two review panels convened under this process are available on the website of the PCA (<https://pcacases.com/web/sendAttach/2082> [accessed 6 February 2019] and <https://pcacases.com/web/sendAttach/2400> [accessed 6 February 2019]).
43 There is perhaps a touch of irony in the fact that the law of the sea responded to the difficulties of achieving sound management and conservation of marine living resources through regional arrangements by the extension of coastal state jurisdiction over fisheries to 200 nm, and is now addressing the limitations of that response by strengthening the role of regional and global organizations as well as international dispute settlement mechanisms. The object, as in all matters of governance, is to keep seeking better ways to achieve better outcomes. The IAFS provides a very useful set of tools in this effort. States that have yet to become party should be encouraged to do so.
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