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The International Legal Framework for Conservation and Management of Fisheries and Marine Mammals

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Handbook on Marine Environment Protection

Abstract

The record and ever-present danger of overfishing of living resources requires there to be a legal framework for the international management of these oceanic resources. The chapter opens with a history of the legal fisheries regime as it has developed since the late nineteenth century when the negative impact of overfishing on stocks was first noticed, highlighting how the remedial measures have had limited success because they have been biologically rather than economically grounded, including the pivotal concept, maximum sustainable yield. It then turns to an examination of the fisheries regime in the 1982 UN Convention on the Law of the Sea, both in the exclusive economic zone, where the bulk of fisheries take place, and on the high seas. The following section then deals with six major innovations by which the 1995 UN Fish Stocks Agreement attempts to overcome these problems for stocks that straddle the boundary between national zones and the high seas or are highly migratory; this is complemented by the 1993 FAO Compliance Agreement covering some of the same ground. Non-economic uses have in recent decades become dominant as regards marine mammals. The framework for these is briefly introduced. Finally, a concluding section on current issues and future developments concentrates on the perennial problem of allocation among States of limited participatory rights in international fisheries and on the composite concept of illegal, unreported and unregulated fishing, which, because it is usually treated as a single undifferentiated phenomenon, threatens to obscure the important distinction between fishing that is unlawful and fishing that is merely unregulated.

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Notes

  1. 1.

    For a fuller treatment of that framework, the reader is referred to Rothwell and Stephens (2016), Chapter 13 (part III on marine living resources).

  2. 2.

    The Conference was convened by the UN General Assembly in its Resolution 900(IX) of 14 December 1954 in order to “study the problem of the international conservation of the living resources of the sea and to make appropriate scientific and technical recommendations.” Based on this report, García Amador, a Cuban member of the ILC who had been Deputy Chairman of the Rome Conference, submitted to the ILC’s 1955 session new draft articles which were adopted with minor amendments, see UN 1960, pp. 29–31.

  3. 3.

    Frustratingly, there has never been a judicial decision on what precisely the obligation to cooperate, found in Articles 63, 64, 117 and 118, entails.

  4. 4.

    Anadromous species are spawned in rivers but migrate to the ocean where they spend their adult lives; the various species of salmon are the best known of these.

  5. 5.

    Catadromous species, such as eels, do the opposite.

  6. 6.

    In Art 2 of the relevant 1958 Convention, it was defined as “the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products.”

  7. 7.

    The facts are related in the ICJ’s decision dismissing for lack of jurisdiction the case brought by Spain: Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, ICJ Reports 1998, p. 432.

  8. 8.

    See Article XIV of the overhauled text of NAFO’s constitutive treaty in NAFO doc NAFO/GC Doc. 07/4, Amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries. The amendment is not yet in force. Rather than similarly amend its own treaty, the North-East Atlantic Fisheries Commission (NEAFC, created by the Convention on Future Multilateral Cooperation in the Northeast Atlantic Fisheries) adopted a binding measure in 2004 requiring an objecting party to give a statement of its reasons and a declaration of its intentions, including a description of any alternative conservation and management measures that it intends to take or has already taken; see NEAFC 2004, Volume I, pp. 37–38; Volume II, Annexes.

  9. 9.

    In a similar situation outside the fisheries context, a differently composed Annex VII tribunal declined to follow the Southern Bluefin Tuna reasoning: South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility (29 October 2015), Permanent Court of Arbitration Case No 2013-13 <https://pcacases.com/web/sendAttach/1506>.

  10. 10.

    Space does not permit a description of this or the FAO’s other soft-law instruments, the International Plan of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries, the International Plan of Action for the Conservation and Management of Sharks and the International Plan of Action for the Management of Fishing Capacity and the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, adopted by the FAO’s Committee on Fisheries at its 24th Session on 2 March 2001 and endorsed by the 120th Session of the FAO Council on 23 June 2001. The first and last of these have more recently been supplemented by treaties, the 2001 Agreement for the Conservation of Albatross and Petrels (negotiated outside the FAO) and the 2009 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing.

  11. 11.

    The likeliest explanation is that many more States than in the past now have a stake in one or more international fisheries and see on balance more benefit from shoring up their position by excluding newcomers from those, even at the price of their own exclusion from fisheries they have not themselves yet entered.

  12. 12.

    The term has its origin in an agenda item at CCAMLR’s 1997 meeting, but was not defined there: see CCAMLR (1997), pp. 8–13. This blurring is understandable in its original CCAMLR context where it serves the purpose of avoiding the issue as to whether or not there are any coastal States in Antarctica, but its later extension to international fisheries generally was criticised in Serdy (2016), Chapter 3 for conflating unregulated with illegal, risking making the bargain in Article 8 UNFSA, meaningless because newcomers are not guaranteed any share of the benefits. The strong rhetoric against IUU fishing globally continues in annual UN General Assembly Resolutions, and see also UN 2012, para 170.

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Authors and Affiliations

  1. University of Southampton, Southampton, UK

    Andrew Serdy

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  1. Andrew Serdy
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Correspondence to Andrew Serdy .

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Editors and Affiliations

  1. German Advisory Council on the Environment, Berlin, Germany

    Markus Salomon

  2. University of Bremen, Bremen, Germany

    Till Markus

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Serdy, A. (2018). The International Legal Framework for Conservation and Management of Fisheries and Marine Mammals. In: Salomon, M., Markus, T. (eds) Handbook on Marine Environment Protection . Springer, Cham. https://doi.org/10.1007/978-3-319-60156-4_33

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