Historically, utilization of, and access to, the marine living resources have been one of the main driving forces which stimulated and shaped the evolution of the law of the sea. As more than 35 years have elapsed since the start of the negotiations of the 1982 United Convention on the Law of the Sea and more than 25 since its adoption, it is possible to identify a number of areas and issues where there has been a growing pressure on the Convention as a consequence of the evolution of the status and situation of these resources, of the international framework relevant to their conservation and use (including in the field of the international law of the environment and as a result of new commitments of the international community) and of the role of States, in their quality of coastal States, flag States or port States. In addition to the impact of this evolution on the legal regime established by the Convention (e.g. areas under national sovereignty or jurisdiction and high seas), there are also specific gaps in that legal regime, which result from unforeseen developments in science and technology. On the whole, however, it may be considered that any response to the collective urge to address these issues and move forward will build upon the 1982 UN Convention rather than questioning it or reopening the balanced “package” that it has established.
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Hence, the definition of a specific regime for the anadromous stocks and catadromous species in the 1982 Convention on the Law of the Sea, in Articles 66 and 67, respectively.
See Hedley (2001, pp. 71–92).
The evolution in the collective perception of whales and whaling is well illustrated by the following statement, which would have been unthinkable some decades before it was made: “Whale stocks cannot be compared with, say, fisheries resources. They include the largest animals ever seen on this planet, with brains larger than and almost as complex as our own, making them in a sense the equivalent in the marine environment of human beings on land environment… We have a chance to turn a new and brighter page in the long and sorry history of whaling, to approach these awe-inspiring, intelligent, and unique creatures from the viewpoint of their intrinsic worth, as fellow citizens of planet Earth, with perhaps much to teach us…” (Declaration of the New Zealand delegate to the Preparatory Commission of UNCED, August 1991, quoted by von Zharen 1999, p. 16).
It would be beyond the scope of this paper to explore and analyze the dynamics of that evolution or how it is prompted and accelerated by advocacy groups and NGOs. Anthropomorphization is often a tool used in this process with a view at creating empathy towards living species. An interesting and rather extreme example of such anthropomorphization (and a step beyond the “smiling” dolphin of the Eastern Pacific) was constituted by the ubiquitous pasting on the walls of the UN in New York, in June 2004, during the debate on deepwater fisheries in the UN Informal Consultative Process on the Law of the Sea (UNICPOLOS), of a photograph of a deepwater fish nicknamed “the blob” and which had the appearance of a cartoonish human face. Not less interestingly, during the debate, the representative of a leading NGO compared eating one of these very long living fishes with eating one’s own grandmother.
This belief endured during the eighteenth and nineteenth centuries, when, overestimating the ocean’s resilience and underestimating both the future increase in demand and in fishing efficiency, thinkers such as Jean-Baptiste de Lamarck and Thomas Huxley assumed that the size of the oceans and the high fecundity of commercially exploited fish and shellfish implied a low risk of extinction of fisheries resources, see SOFIA (2004c, p. 86).
A more recent evaluation indicates 16.7 million tonnes in 1950 and 62 million tonnes in 1980 (Csirke 2005, pp. 2–3).
Recovering: 1%; depleted: 8%; overexploited: 19%; fully exploited: 52%; moderately exploited: 18%; underexploited: 2%. See the FAO 2008 State of World Fisheries and Aquaculture (hereinafter SOFIA 2008, p. 30). In spite of the relative stability of these percentages during the last 10–15 years (SOFIA 2008, p. 30) but with a clear trend towards the decrease of the moderately exploited or underexploited stocks and the corresponding increase of the depleted and overexploited stocks, there are two aggravating factors which must be kept in mind when assessing the situation of these resources. First, the facts that “there is still 20 percent of the world catches that are taken from stocks or species groups for which there is not sufficient information to assess their state of exploitation” and that “there is a high proportion of the total marine catches for which there is no reliable information on what species are caught” (Csirke 2005, pp. 8–9). Second, the fact that: “The stocks of seven of the top ten species that account for 30 percent of the world total marine capture fisheries production are either fully exploited or overexploited” (Csirke 2005, p. 6).
For a recent assessment of fisheries management effectiveness, see Mora et al. (2009).
World total demand for fish and fishery products is projected to expand by almost 50 million tonnes, from 133 million tonnes in 1999/2001 to 183 million tonnes by 2015 (SOFIA 2004c, p. 146). On the projection of fish consumption to 2030 in the European Union, see ibidem pp. 150–151.
There has been a strong expansion of the world fishing fleet until the late 1980s and early 1990s. Since then it is estimated that the number of decked vessels worldwide has remained fairly stable at around 1.3 million. The number of large marine fishing vessels (above 100 gross tons) increased gradually until 2001 and has remained relatively stable around 24,000 during the recent years (SOFIA 2004c, p. 24). Overall, the number of fishing vessels worldwide did not change significantly in either 2003 or 2004 (SOFIA 2006, p. 7) and more recent evaluations allow to conclude that the numbers of both fishing vessels and fish carriers have stayed around the same level in the last 10 years (the size of the fishing fleet having even slightly decreased in terms of gross tonnage) (SOFIA 2008, p. 29).
On the definition of overcapacity, on the measurement of capacity, see SOFIA (2004c, pp. 118–121).
See for instance Funge-Smith et al. (2005, p. 6): The authors define “trash fish” as “Fish that have a low commercial value by virtue of their low quality, small size or low consumer preference. They are either used for human consumption (often processed or preserved) or used for livestock/fish, either directly or through reduction to fish meal/oil”.
Confirming thus the fact that: “Aquaculture continues to be the fastest growing animal food-producing sector and to outpace population growth (…) It is set to overtake capture fisheries as a source of food fish” (SOFIA 2008, p. 6).
Although the use of terminology throughout the Code is not systematic in this respect (e.g. Article 3, e: “… fisheries management and development”, but in this case the expression “fisheries” is meant to include aquaculture), the titles of the relevant articles is quite significant: “Article 7. Fisheries management” and “Article 9. Aquaculture development”. Characteristically, in Article 7, whenever the word “development” is used, it is qualified. For instance, in the case of “new and exploratory fisheries”, management measures, after proper assessment, “should, if appropriate, allow for gradual development of the fisheries.”
In 2004, mariculture still represented still about 36.0% of aquaculture production in terms of production quantity and 33.6% of its total value—SOFIA (2006, p. 20).
Indeed, as judiciously observed, it may be observed that: “The rules for the protection of the marine environment are amongst the most highly developed in the field of international environmental law” (Sands 1995, p. 340).
For example, see, in relation to the Caribbean, Pulvenis de Séligny (1994, pp. 33–56).
In its Article 2, “Use of Terms”, the Convention defines “Biological diversity” as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.” “Sustainable Use” means the “use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.”
See more particularly Article 6. “General Measures for Conservation and Sustainable Use”; Article 7. “Identification and Monitoring”; Article 8. “In situ Conservation”; Article 9. “Ex-situ Conservation”.
Article 22. “Relationship with Other International Conventions”, para. 2: “2. Contracting Parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea.”
To quote the November 1995 Jakarta Ministerial Statement on the Implementation of the Convention on Biological Diversity. For a comprehensive review of the Convention on Biological Diversity and the Jakarta Mandate as well as related instruments, see de Fontaubert et al. (1998, pp. 753–854).
For a summarized presentation of Agenda 21 in relation to marine fisheries, see i.a. Juda (2002, pp. 111–115).
At the regional level, such is particularly the case of the regional fishery bodies (RFBs) and regional fisheries management organizations or arrangements (RFMO/As), which were established, or whose statutes were revised, in the years after the Rio Summit.
See Agenda 21, Chapter 17, para. 17.59: “(e) States should convene, as soon as possible, an intergovernmental conference under United Nations auspices, taking into account relevant activities at the subregional, regional and global levels, with a view to promoting effective implementation of the provisions of the United Nations Convention on the Law of the Sea on straddling fish stocks and highly migratory fish stocks. The conference, drawing, inter alia, on scientific and technical studies by FAO, should identify and assess existing problems related to the conservation and management of such fish stocks, and consider means of improving cooperation on fisheries among States, and formulate appropriate recommendations. The work and the results of the conference should be fully consistent with the provisions of the United Nations Convention on the Law of the Sea, in particular the rights and obligations of coastal States and States fishing on the high seas.”
For instance, the UN Informal Consultative Process on the Law of the Sea (referred to as UNICPOLOS or ICP), which was established in November 1999 (through UN General Assembly resolution 54/33) in response to initiatives taken within the Commission on Sustainable Development (CSD). The CSD, which had considered at its seventh session the question of “Oceans and seas”, had been established by the General Assembly and by the UN Economic and Social Council (ECOSOC) as a standing body and functional commission of the ECOSOC, to undertake a continuous review of actions at the national and international levels to ensure the implementation of the conclusions of the Rio Conference (see i.a. Juda 2002, p. 109). The ICP secretariat is ensured, rather symbolically, by officers belonging to the two units in the UN dealing with the law of the sea, on the one hand, and with sustainable development, on the other. Significantly too, it has been in this forum where, in preparation to the discussions to be held in the UN General Assembly, all the most substantive and pressing and emerging issues related to the law of the sea are dealt with rather than in the Meeting of the Parties to the 1982 UN Convention on the Law of the Sea.
The Meeting of the Parties of the Convention has been focusing its activities on discussing mainly administrative and budgetary matters related to the International Tribunal on the Law of the Sea, the Commission on the limits of the Continental Shelf and the International Seabed Authority. This has been discussed at the June 2005 session of the Meeting, when several delegations reiterated their views that the Meeting “represented the logical forum for discussions on all issues pertaining to the implementation of the Convention and could contribute to finding consensus on emerging issues” and “should also consider substantive issues relating to the implementation of the Convention”, thus complementing “the work of the Consultative Process and the General Assembly by providing a forum for exchange of information on State practice, promote cooperation and further debates on relevant issues of interest to States parties.” Other delegations were of the view however “that the Meeting of States Parties did not have the competence to consider issues relating to the implementation of the Convention” and that it had “only an administrative and budgetary role”. These delegations underlined “that the General Assembly was the only inclusive forum in which to discuss substantive issues raised in the reports of the Secretary-General as well as the implementation of the Convention”, adding that the Consultative Process, on the other hand, “had been established by the Assembly to facilitate its annual review of developments in ocean affairs”. (Report of the fifteenth Meeting of States Parties, Doc. SPLOS/135, 25 July 2005, paragraphs 81–82).
The Millennium Declaration was adopted by the world’s leaders at the Millennium Summit convened by the UN from 6 to 8 September 2000, before being adopted subsequently adopted by the UN General Assembly in its resolution 55/2.
In its section IV, “Protecting our common environment”, the Declaration calls for sparing “no effort to free all of humanity, and above all our children and grandchildren, from the threat of living on a planet irredeemably spoilt by human activities, and whose resources would no longer be sufficient for their needs”; it reaffirms “support for the principles of sustainable development, including those set out in Agenda 21”; it resolves to “adopt in all our environmental actions a new ethic of conservation and stewardship” and presses “for the full implementation of the Convention on Biological Diversity”.
The “2005 World Summit Outcome” was adopted by heads of States and Governments who met in New York, from 14 to 16 September 2005, as a follow-up to the Millennium Summit.
Paragraph 56: “In pursuance of our commitment to achieve sustainable development, we further resolve: (…) (l) to improve cooperation and coordination at all levels in order to address issues related to oceans and seas in an integrated manner and promote integrated management and sustainable development of the oceans and seas”. Another relevant component of the Outcome is the acknowledgement “that good governance and the rule of law at the national and international levels are essential for sustained economic growth, sustainable development and the eradication of poverty and hunger” (Ibidem, paragraph 11).
See section IV “Protecting and managing the natural resource base of economic and social development”, paragraphs 30–36, and other provisions passim.
Ibidem, paragraph 31.
On the possibility of reaching this goal, see “Can we meet the Johannesburg directive?”, in SOFIA (2004c, p. 90).
That solution of a uniform area of national jurisdiction up to 200 nautical miles had also been proposed by Malta in the comprehensive draft Convention on the ocean space that it presented to the UN Sea-Bed Committee. We will mention this proposal again in relation with the question of the governance of the high seas fisheries (see infra).
It is interesting to recall that the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas had indeed recognized this special interest and qualification of the coastal State, but in a limited way, through endowing it with the power of legislate unilaterally in case of failure of negotiations for the adoption of an agreement between all parties traditionally fishing in the area adjacent to its territorial sea (see Article 7 of the Convention).
Both spaces are territory or quasi-territory over which the coastal State exercises its sovereignty or sovereign rights, respectively. Consequently, the rights of the coastal State over the living resources of its territorial sea or continental shelf are exclusive. This approach contained in the 1958 Convention on the continental shelf was maintained in the 1982 Convention in spite of the considerable extension of the shelf, which may, in some cases, extend beyond 200 miles. The coastal State exercises sovereign rights over the continental shelf and these rights are exclusive (UNCLOS, Article 76, paragraphs 1 and 2), that is, as the Convention puts it very clearly, “if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the consent of the coastal State” (ibidem, para. 3). On the regime of the continental shelf, see Pulvenis (1991, pp. 315–381).
1982 Convention on the Law of the Sea, Article 62, para. 1.
Ibidem, Article 61.
Ibidem, Article 62.
Ibidem, Article 62, para. 3.
For an analysis of the causes of failure in management and the presentation of remedies, including a definition of the key steps in promoting effective and accountable management from mustering the political will to ensuring monitoring performance, see Cochrane (2000, pp. 3–21).
See Compliance Agreement, Article III, “Flag State responsibility”, para. 2: “(…) no Party shall allow any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless it has been authorized to be so used by the appropriate authority or authorities of that Party. A fishing vessel so authorized shall fish in accordance with the conditions of the authorization.”
Ibidem, para. 3: “No Party shall authorize any fishing vessel entitled to fly its flag to be used for fishing on the high seas unless the Party is satisfied that it is able, taking into account the links that exist between it and the fishing vessel concerned, to exercise effectively its responsibilities under this Agreement in respect of that fishing vessel.”
Ibidem, Article IV, “Record of fishing vessels”. “Each Party shall, for the purposes of this Agreement, maintain a record of fishing vessels entitled to fly its flag and authorized to be used for fishing on the high seas, and shall take such measures as may be necessary to ensure that all such fishing vessels are entered in that record.”
Ibidem, Article III, para. 6 “Each Party shall ensure that all fishing vessels entitled to fly its flag that it has entered in the record maintained under Article IV are marked in such a way that they can be readily identified in accordance with generally accepted standards, such as the FAO Standard Specifications for the Marking and Identification of Fishing Vessels.”
Ibidem, para. 8 “Each Party shall take enforcement measures in respect of fishing vessels entitled to fly its flag which act in contravention of the provisions of this Agreement, including, where appropriate, making the contravention of such provisions an offence under national legislation. Sanctions applicable in respect of such contraventions shall be of sufficient gravity as to be effective in securing compliance with the requirements of this Agreement and to deprive offenders of the benefits accruing from their illegal activities. Such sanctions shall, for serious offences, include refusal, suspension or withdrawal of the authorization to fish on the high seas.”
See ibidem, para. 5 (a): “(a) No Party shall authorize any fishing vessel previously registered in the territory of another Party that has undermined the effectiveness of international conservation and management measures to be used for fishing on the high seas, unless it is satisfied that (i) any period of suspension by another Party of an authorization for such fishing vessel to be used for fishing on the high seas has expired; and (ii) no authorization for such fishing vessel to be used for fishing on the high seas has been withdrawn by another Party within the last three years.”
Ibidem, para. 5 (c) and (d). First, “(…) where the ownership of the fishing vessel has subsequently changed, and the new owner has provided sufficient evidence demonstrating that the previous owner or operator has no further legal, beneficial or financial interest in, or control of, the fishing vessel” and, second—and more drastically—when the new flag State “(…) after having taken into account all relevant facts, including the circumstances in which the fishing authorization has been withdrawn by the other Party or State, has determined that to grant an authorization to use the vessel for fishing on the high seas would not undermine the object and purpose of this Agreement.”
Article 3, Application, paragraph 1: “Unless otherwise provided, this Agreement applies to the conservation and management of straddling fish stocks and highly migratory fish stocks beyond areas under national jurisdiction, except that Articles 6 and 7 apply also to the conservation and management of such stocks within areas under national jurisdiction, subject to the different legal regimes that apply within areas under national jurisdiction and in areas beyond national jurisdiction as provided for in the Convention.”
See Article 18, “Duties of the flag State”.
See Article 19, “Compliance and enforcement by the flag State”; Article 20, “International cooperation in enforcement”; Article 21, “Subregional and regional cooperation in enforcement”.
See Article 91 “Nationality of ships”, para. 1: “(…) There must exist a genuine link between the State and the ship.”
Any reference to the “genuine link” was also avoided in the conclusions and recommendations adopted by the consultations that were convened to further the implementation of these instruments.
The Declaration was adopted by the FAO Ministerial Meeting on Fisheries, which was held in Rome, on 10–11 March 1999.
“(j) Will develop a global plan of action to deal effectively with all forms of illegal, unregulated and unreported fishing including fishing vessels flying ‘flags of convenience’ (…)”.
See the Report of the Expert Consultation, pp. 10–14.
Although no drastically new elements were presented—for instance, the identification by the participants of the lack of communication between the fisheries authorities and the maritime authorities as one of the main causes for hampering the possibility of efficient control by the flag State—a new light was shed on some issues as well on the overall question of open registries. In synthesis, it appeared clearly that open registries, because of the importance of the socio-economic and financial benefits they have been deriving from the development over the years of a large fleet flying their flag, will not even consider giving up this lucrative activity—based on the “convenience” they offer to those who wish to use their flag: ease and speed in registering, fiscal advantages and benefits, etc. However, due to the growing pressure by the international community and the threat of sanctions, liabilities or retaliations, many of these countries are interested in ensuring that vessels flying their flags comply with the applicable laws, regulations and measures. While merchant vessels are relatively easy and inexpensive to control, this is not the case of fishing vessels. Flagging these vessels is thus increasingly unattractive, because the benefits are far outweighed by the potential costs, in addition to the fact that, anyway, the percentage of these vessels in the overall fleet is usually small. Hence, the constant migration of fishing vessels involved in IUU fishing towards newly established open registries or towards States which do not belong to this category, and are not usually labeled as “flags of convenience” but are willing to let them pursue their activities.
There was a lack of consensus among the experts about what should be done with regards to the “genuine link”. Some experts were of the opinion that “the issue should be addressed with the purpose of clarifying the term’s meaning. This could be accomplished, for instance, through the development of a set of criteria on what constitutes a “genuine link” between a vessel and a flag State—a step that would also contribute to strengthening the concept. Other Experts expressed the view that such clarification had already been attempted, not very successfully, and that instead there was a need to look for more practical solutions or guidelines in exercising effective control over their fishing vessels.” (Report, para. 11).
See A/RES/62/177 (Adopted on 18 December 2007) Sustainable Fisheries, including through the 1995 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, and related instruments: “46. Urges further international action to eliminate illegal, unreported and unregulated fishing by vessels flying “flags of convenience” as well as to require that a “genuine link” be established between States and fishing vessels flying their flags, and calls upon States to implement the 2005 Rome Declaration on Illegal, Unreported and Unregulated Fishing as a matter of priority.”
Ibidem, “48. Urges States, individually and collectively through regional fisheries management organizations and arrangements, to cooperate to clarify the role of the “genuine link” in relation to the duty of States to exercise effective control over fishing vessels flying their flag.”
See A/RES/60/31 (adopted on 29 November 2005) Sustainable Fisheries (…): “38. Recalls the request to the Secretary-General to report to the General Assembly at its sixty-first session on the study undertaken by the International Maritime Organization, in cooperation with other competent international organizations, following the invitation extended to it in resolution 58/14 and resolution 58/240 of 23 December 2003, to examine and clarify the role of the “genuine link” in relation to the duty of flag States to exercise effective control over ships flying their flag, including fishing vessels, and the potential consequences of non-compliance with the duties and obligations of flag States prescribed in the relevant international instruments.”
See the Report of the Ad Hoc Consultative Meeting of senior representatives of international organizations on the “genuine link” (2006b).
See the Report of the 27th session of the Committee on Fisheries (COFI) (March 2007): “71. A number of Members spoke about irresponsible flag States. Many Members suggested the need to develop criteria for assessing the performance of flag States as well as to examine possible actions against vessels flying the flags of States not meeting such criteria. An expert consultation was proposed. Subject to the availability of funds, FAO was requested to further consider this possibility.” As a first step in this process, an Expert workshop on flag State responsibilities: assessing performance and taking action, was held at the initiative of the Canadian government with the technical cooperation of FAO in Vancouver, Canada on 25–28 March 2008. A second step was the convening by FAO of an Expert Consultation on Flag State Performance that was held in Rome on 23–26 June 2009, which adopted a comprehensive set of recommendations. The third step will be the holding of a FAO Technical Consultation in 2010.
Compliance Agreement, Article V, International cooperation, paragraph 2.
See the UNFSA Preamble: “Calling for more effective enforcement by flag States, port States and coastal States of the conservation and management measures adopted for such stocks”; and Article 23, “Measures taken by a port State”.
See the Report of the Technical Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated fishing, Rome, 31 August–2 September 2004 (2004). The Technical Consultation had been preceded by an Expert Consultation held in November 2002.
Ibidem, Appendix E.
See Report, paragraphs 20–25.
Ibidem, paragraphs 26–28.
See the Report of the 26th session of COFI (March 2005b), para. 25.
See the Report of the 27th session of COFI (March 2007), para. 68: “68. Acknowledging the urgent need for a comprehensive suite of port State measures, the Committee took note of the strong support for the Norwegian proposal to develop a new legally binding instrument based on the model scheme on port State measures to combat IUU fishing and the IPOA-IUU. The Committee endorsed the following timetable: an Expert Consultation to be convened during the latter half of 2007 to prepare a draft agreement and a Technical Consultation to finalize the instrument’s text during the first half of 2008 and present it to the 28th COFI session in 2009. Many Members stressed that the new instrument would represent minimum standards for port States, with flexibility to adopt more stringent measures and some Members also stressed that it should not detract from other previously agreed measures such as the need for capacity reduction. It was noted that Norway advised the Committee that it was prepared to contribute financially to the required process within FAO.”
Chile and Peru in 1947, Costa Rica in 1948, El Salvador in 1950, followed by the joint declaration adopted by Chile, Ecuador and Peru in 1952. Historical enquiries about the origin of that “round number” of 200 miles have shattered the myth of its supposed relation with the wish to take into account the Humboldt Current, and therefore of an origin grounded in some kind of oceanographic considerations. In fact, the choice of that number derived from an accidental misreading of the width, offshore of the Chilean coast, of the maritime security zone that had been established during the Second World War around the American continent as a whole. It was maintained because, at the time, the Chilean stakeholders deemed it sufficient to encompass the stocks of interest to the Chilean fishing fleet.
On the establishment by Argentina in 1946 of an “epicontinental sea”, see ibidem, p. 327.
In its 1951 Report, the International Law Commission was very clear in its view that fishing activities and the conservation of the living resources of the sea should be dealt with separately from the continental shelf. See Pulvenis (1991, p. 363).
“(…) the single species model in fisheries management (…) is by far the most prominent model in most parts of the world” (Mathew 2003, p. 61).
For the high seas, similar provisions are found in Article 119.
As defined by the 1992 Convention on Biological Diversity, in its Article 2, Use of Terms, “‘Ecosystem’ means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.”
For the text of the Reykjavik Declaration, see Sinclair and Valdimarsson (2003, pp. 409–411). For a good presentation of the ecosystem approach, see Sissenwine and Mace (2003, pp. 363–391), as well as the background paper that had been prepared by FAO for the Reykjavik Conference, entitled “Towards Ecosystem-based fisheries management”, ibidem, pp. 393–403; on the difficulties that have to be met, see also Hall and Mainprize (2004, pp. 1–20).
With the fear that ecosystems may change to alternate states if severely disturbed, in addition to the fact that once populations collapse it may take them decades to rebuild. See Christensen et al. (2003, p. 2).
For instance, the Bay of Bengal Large Marine Ecosystem Programme (BOBLME); the Canary Current Large Marine Ecosystem Project (CCLME); the Benguela Current Large Marine Ecosystem (BCLME); the Caribbean Sea Large Marine Ecosystem Project.
“CCMLR’s ecosystem-based approach and ecological definition of jurisdiction can serve as models for future regional cooperation to achieve the Biodiversity Convention’s objectives” L. Kimball referred to in de Fontaubert et al. (1998, p. 837).
For instance, one of the elements that are presently considered in the ongoing process of strengthening the Western Central Atlantic Fishery Commission (WECAFC) is its possible association and cooperation with the Caribbean Sea Large Marine Ecosystem Project.
These steps are identified ibidem, pp. 776–777.
These instruments, like the 1992 Framework Convention on Climatic Changes, generally consist of a short and general convention the provisions of which are to be completed and developed later through the subsequent negotiation and adoption on annexes and protocols.
The other one being the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea, which was adopted by the General Assembly in 1994.
Article 120, Marine mammals; “Article 65 also applies to the conservation and management of marine mammals in the high seas.”
The freedom to construct artificial islands and other installations and the freedom of scientific research, Article 87, Freedom of the high seas, paragraph 1(d) and (f).
Article 87, paragraph 1(e).
Article 116, Right to fish on the high seas: “All States have the right for their nationals to engage in fishing on the high seas (…)”.
Article 119, Conservation of the living resources of the high seas: “3. States concerned shall ensure that conservation measures and their implementation do not discriminate in form or in fact against the fishermen of any State.”
Article 116, Right to fish on the high seas: “All States have the right for their nationals to engage in fishing on the high seas subject to(…) (b) the rights and duties as well as the interests of coastal States provided for, inter alia, in article 63, paragraph 2, and articles 64 to 67 (…)”.
See Article 7 on the 1958 Convention.
Initially proposed by Malta in the Sea-Bed Committee in its Draft Convention on the Ocean Space, Doc. A/AC.138/53.
See for a recent study of this concept see Kibel (2000).
Agenda 21, Chapter 17, “C. Sustainable use and conservation of marine living resources of the high seas”, paras. 17.44–17.68.
The “Conference on the Governance of High Seas Fisheries and the United Nations Fish Agreement—Moving from Words to Action”, St John’s (Canada), 1–5 May 2005.
Article 118, Co-operation of States in the conservation and management of living resources: “States (…) shall, as appropriate, co-operate to establish subregional and regional fisheries organizations to this end.”
Needless to say, the efficiency of a fishery organization is largely commensurate to the level of human and financial resources that member States put at its disposal, in particular through its secretariat.
Within FAO itself these two kinds of bodies coexist: the advisory RFBs, which are established under article VI of the Constitution of the Organisation, and the RFMOs with the power of adopting binding decisions, which are established under article XIV of the Constitution.
For instance, most of the high seas are falling into the areas of competence of tuna commissions, but these commissions are generally competent only to manage the tuna and tuna-like species referred to in their constitutive agreements, unless the agreements are modified or complemented by a separate agreement, as, for example the Agreement on the International Dolphin Conservation Programme in the case of the IATTC in the Eastern Pacific.
See the Report of the Review Conference, para. 2.
Such an approach had been previously discussed at the 2005 St John’s Conference. In occasion of the fourth Informal Consultations of States Parties to the 1995 UNFSA, in May–June 2005, dedicated mainly to considering issues related to preparation for the Review Conference to be convened by the Secretary-General in 2006, the Chairman, Ambassador David Balton (USA) presented a “Background Paper 1” on “Possible initiatives for strengthening the substance and methods of implementation of the provisions of the Agreement”, listing among the “Commitments and other suggestions from recent international meetings”, “Apply basic UNFSA provisions to high seas discrete stocks and/or to deep sea fisheries”. (See the Report of the Meeting 18 July 2005, p. 20).
For instance, in the Western Indian Ocean, the links of cooperation and networking between two commissions [the recently establish advisory RFB, the South West Indian Ocean Fisheries Commission (SWIOFC), the Indian Ocean Tuna Commission (IOTC)] and one arrangement [the South Indian Ocean Fisheries Agreement (SIOFA) that was adopted in July 2006].
This question is also linked with the question of compliance by non-members of the RFMOs. In recent years, there has been a generalized development among RFMOs for instance consisting of allowing some States to be considered as “cooperating non-Parties” (in ICCAT, IOTC, IATTC, i.a.). In some cases (e.g. ICCAT), this category is used to solve the question of the participation of the “fishing entity” (in ICCAT, the cooperating fishing entity/cooperating entity designated as “Chinese Taipei”). On the way IATTC has solved differently this problem, see “The 2003 Antigua Convention and the strengthening of the Inter-American Tropical Tuna Convention” in SOFIA (2004c, pp. 62–63).
Through the adoption by these commissions of new mechanisms or procedures, for instance trade sanctions, or the establishment of subsidiary organs, such as compliance committees (e.g. the Indian Ocean Tuna Commission established a Compliance Committee in 2002, which met for the first time in 2003); or on the revision of its constitutive agreement or negotiation of a new one (e.g. in the case of the Inter American Tropical Tuna Commission the negotiations that started in 1998 and ended in June 2003 with the adoption by the Commission of the “Antigua Convention” to replace the 1949 Convention through which IATTC was originally created).
See the Report of the 27th session of COFI, paras. 83–87; see also the UNGA Resolution 62/177, para. 90.
For instance the negotiation in the South West Indian Ocean of an arrangement for non-tuna resources of the high seas, without the establishment of a commission with a permanent secretariat.
See the Report on Deep-Sea 2003.
See the Report of the 26th session of COFI (2005b), paras. 86–95.
A significant example of action taken by a RFB is the decision of the members of the General Fisheries Commission for the Mediterranean (GFCM) to “prohibit the use of towed dredges and trawl nets fisheries at depths beyond 1000 m of depth.” (Resolution GFCM/2005/1).
See the Report of the 27th session of COFI, para. 77.
Among the scenarios and aspects that they describe in their challenging reflection on the future of marine capture fisheries, Garcia and Grainger (2005) mention the “[g]lobal integration of high-sea fisheries in a few large fishing corporations, allowing for an industry-controlled rotational scheme of exploitation of the high seas.” (p. 41).
See Munro et al. (2004), loc. cit. supra.
Article 87—Freedom of the high seas, paragraph 1 (d) “(d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI”. The cross-reference to Part VI does not limit the sphere of application of that provision to all such activities wherever in the high seas as in the case of the freedom to lay submarine cables and pipelines, which contains an identical cross reference.
Hence the call for, in the 1995 Jakarta Mandate, cooperation between the CBD Secretariat and the UN Office for Ocean Affairs and the Law of the Sea to cooperate on a study on marine genetic resources found on the deep seabed.
On views and proposals for a set of actions see i.a. Lodge (2004, p. 299 et seq).
See the Letter dated 15 May 2008 from the Co-Chairpersons of the Ad-Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction addressed to the President of the General Assembly, Document A/63/79 (16 May 2008).
See for instance Edeson (1999, p. 165): “There can be little doubt that the sum total of changes introduced has substantially strengthened the regime of the 1982 Convention, leaving aside the question whether there has been a de facto amendment of it in some respect”. See also Rothwell (2004, p. 149).
Such was the conclusion reached by the FAO Committee on Fisheries in 2005: “Aware that many international fisheries instruments had been concluded since the 1992 United Nations Conference on Environment and Development (UNCED), the Committee agreed that from now on there should be a stronger focus on implementing the instruments concluded since UNCED rather than seeking to conclude new instruments. In this respect, some Members called for a “decade of implementation” for these instruments.” (Report of the 26th session of the COFI, para. 13).
Beurier J-P (1997) Les problèmes juridiques de l’exploitation des resources halieutiques, Thèse pour le doctorat d’Etat, novembre
Brander K (2009) Impacts of climate change on marine ecosystems and fisheries. J Marine Biol Assoc India 51:1–13
Christensen V, Guénette S, Heymans JJ, Walters CJ, Watson R, Zeller D, Pauly D (2003) Hundred year decline of North Atlantic predatory fishes. Fish Fish 4(1):1–24
Clover C (2005) The end of the line, Chapter 8: After the gold rush. Ebury Press, London
Cochrane K (2000) Reconciling sustainability, economic efficiency and equity in fisheries: the one that got away? Fish Fish 1:3–21
Csirke J (2005) Global production and state of marine fishery resources. Review of the state of world marine fishery resources. FAO Fisheries Technical Paper 457. FAO, Rome
Csirke J, Vasconcellos M (2005) Fisheries and long-term climate variability. Review of the state of world marine fishery resources. FAO Fisheries Technical Paper 457. FAO, Rome
de Fontaubert C, Downes DR, Agardy TS (1998) Biodiversity in the seas: implementing the convention on biological diversity in marine and coastal habitats. Georgetown Int Environ Law Rev 10:753–854
Dupuy R-J (1981) Droit de la mer et communauté internationale. Mélanges offerts à Paul Reuter, Paris, Pédone
Edeson W (1999) Towards long-term sustainable use: some recent developments in the legal regime of fisheries. In: Boyle A, Freestone D (eds) International law and sustainable development. Oxford University Press, Oxford
Edmonds Paul P (1994) The greening of international law. McGill Law J 1:742–769
Ellis J (2001) The straddling stocks agreement and the precautionary principle as interpretive device and rule of law. Ocean Dev Int Law 32:289–301
Fleischer CA (1991) Fisheries and biological resources. In: Dupuy R-J, Vignes D (eds) A handbook on the new law of the sea, vol 2. Martinus Nijhoff, Dordrecht, pp 989–1126
Food and Agriculture Organization of the United Nations (FAO) (1994) Marine Fisheries and the Law of the Sea: a decade of change. FAO Fisheries Circular No. 853. FAO, Rome
Food and Agriculture Organization of the United Nations (FAO) (2003) Technical guidelines for responsible fisheries, 4, Suppl 2. FAO, Rome
Food and Agriculture Organization of the United Nations (FAO) (2004a) Report of the expert consultation on fishing vessels operating under open registries and their impact on illegal, unreported and unregulated fishing, Miami, FL, United States of America, 23–25 September 2003. FAO Fisheries Report No. 722. FAO, Rome
Food and Agriculture Organization of the United Nations (FAO) (2004b) Report of the technical consultation to review port state measures to combat illegal, unreported and unregulated fishing, Rome, 31 August–2 September 2004. FAO Fisheries Report No. 759. FAO, Rome
Food and Agriculture Organization of the United Nations (FAO) (2004c) The state of world fisheries and aquaculture—2004 (SOFIA 2004). FAO, Rome
Food and Agriculture Organization of the United Nations (FAO) (2005a) Report on Deep-Sea 2003, an international conference on governance and management of deep-sea fisheries, Queenstown, New Zealand, 1–5 December 2003. FAO Fisheries Report No. 772. FAO, Rome
Food and Agriculture Organization of the United Nations (FAO) (2005b) Report of the 26th session of the Committee on Fisheries (COFI) (March 2005). FAO, Rome
Food and Agriculture Organization of the United Nations (FAO) (2006) The State of World Fisheries and Aquaculture—2006 (SOFIA 2006). FAO, Rome
Food and Agriculture Organization of the United Nations (FAO) (2007) Report of the 27th session of the Committee on Fisheries (COFI) (March 2007). FAO, Rome
Food and Agriculture Organization of the United Nations (FAO) (2008) The State of World Fisheries and Aquaculture—2008 (SOFIA 2008). FAO, Rome
Food and Agriculture Organization of the United Nations (FAO) (2009) Report of the 28th session of the Committee on Fisheries (COFI) (March 2009). FAO, Rome
Friedheim R (2000) Designing the ocean policy future: an essay on how I am going to do that. Ocean Dev Int Law 31:183–195
Funge-Smith S, Lindebo E, Staples D (2005) Asian Fisheries Today: the production and use of trash fish from marine fisheries in the Asia–Pacific region, May
Garcia S (2005) quoted in «La mer surexploitée», Ushuaia Magazine, No. 5, June–July–August, p. 82
Garcia S, Grainger R (2005) Gloom and doom? The future of marine capture fisheries. Phil Trans R Soc 360:21–46
Guterl F (2003) in “Troubled seas”, Newsweek, July 2003, pp. 46–51, quoted by Garcia and Grainger (2005), op. cit. supra
Hall S, Mainprize B (2004) Towards ecosystem-based fisheries management. Fish Fish 5(1):1–20
Hedley C (2001) Dolphin conservation program: recent developments in the Tuna-Dolphin Controversy in the Eastern Pacific Ocean. Ocean Dev Int Law 32(1):71–92
International Tribunal for the Law of the Sea (ITLOS) (1999) The M/V “Saiga” (no. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment, 1 July
Juda L (2002) Rio Plus Ten: the evolution of international marine fisheries governance. Ocean Dev Int Law 33(2):109–144
Kibel PS (2000) Alone at sea: Chile’s Presencial Ocean Policy. J Environ Law 12(1):44–63
Lodge MW (2004) Improving international governance in the deep sea. Int J Marine Coast Law 19(3):299 et seq
Mathew S (2003) Small-scale fisheries approach to fisheries management. In: Sinclair M, Valdimarsson G (eds) Responsible fisheries in the marine ecosystem. FAO & CABI, Rome
McKee A (1969) Farming the sea. Crowell, New York
Momtaz D (1991) The high seas. In: Dupuy R-J, Vignes D (eds) A handbook on the new law of the sea, vol 1. Martinus Nijhoff, Dordrecht, pp 383–423
Mora C, Myers RA, Coll M, Libralat S, Pitcher TJ, Sumaila RU, Zeller D, Watson R, Gaston KJ, Worm B (2009) Management effectiveness of the world’s marine fisheries. http://www.plosbiology.org/article/info%3Adoi%2Fjournal.pbio.1000131, 23 June 2009, Accessed 03 July
Munro G, Van Houtte A, Willmann R (2004) The conservation and management of shared fish stocks: legal and economic aspects. FAO Fisheries Technical Papers No. 465. FAO, Rome
Nandan SN (2005) Current Fisheries Governance, Keynote Address at the Conference on the Governance of High Seas Fisheries and the United Nations Fish Agreement—Moving from Words to Action, St. John’s, Newfoundland and Labrador, 1–5 May 2005
Pulvenis J-F (1991) The continental shelf—definition and rules applicable to resources. In: Dupuy R-J, Vignes D (eds) A handbook on the new law of the sea, vol 1. Martinus Nijhoff, Dordrecht, pp 315–381
Pulvenis de Séligny J-F (1994) L’action des institutions régionales dans la zone intertropicale de la Caraïbe [en matière d’environnement]. Revue juridique de l’environnement, No hors – série, pp 33–56
Rothwell DR (2004) Building on the strengths and addressing the challenges: the role of law of the sea institutions. Ocean Dev Int Law 35(2):131–156
Sands P (1994) The ‘greening’ of international law: emerging principles and rules. Global Legal Stud J 1:293–383
Sands P (1995) Principles of international environmental law, vol 1. Manchester University Press, Manchester
Shotton R (2005) “Deepwater Fisheries” and “Northwest Atlantic”. Review of the state of world marine fishery resources. FAO Fisheries Technical Paper 457. FAO, Rome
Sinclair M, Valdimarsson G (eds) (2003) Responsible fisheries in the marine ecosystem. FAO & CABI, Rome
Sissenwine MP, Mace PM (2003) Governance for responsible fisheries. In: Sinclair M, Valdimarsson G (eds) Responsible fisheries in the marine ecosystem. FAO & CABI, Rome
Troadec JP (1976) Développement de la pêche dans le monde. In: Bougis P (ed) Océanographie biologique appliquée. Masson, Paris
United Nations (2004) Oceans and the law of the sea: Consultative Group on Flag State Implementation—Report of the Secretary-General, Document A/59/63, 5 March 2004
United Nations (2005a) Report of the Fourth Informal Consultations of States Parties to 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 (New York, 31 May–3 June 2005), Doc. ICSP4/UNFSA/REP/INF.1, 18 July 2005
United Nations (2005b) Report of the fifteenth Meeting of States Parties, Doc. SPLOS/135, 25 July 2005
United Nations (2006a) Report of the Review Conference on 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, New York, 22 to 26 May 2006, Document A. CONF. 210/2006/15, 3 July 2006
United Nations (2006b) Note by the Secretary-General, Annex—Letter dated 23 June 2006 from the secretary-general of the International Maritime Organization addressed to the Secretary-General, Report of the Ad Hoc Consultative Meeting of senior representatives of international organizations on the “genuine link”, Document A/61/160, 17 July 2006
Vignes D, Casado Raigon R, Cataldi G (2000) Le droit international de la pêche maritime (Bruxelles, Bruylant)
von Zharen WM (1999) An ecopolicy perspective for sustaining living marine species. Ocean Dev Int Law 30(1):1–41
Zeller D, Pauly D (2005) Good news, bad news: global fisheries discards are declining, but so are global catches. Fish Fish 6:156–159
The views expressed in this work are personal to the author and do not reflect a formal position of the Organization.
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Pulvenis de Séligny, JF. The marine living resources and the evolving law of the sea. Aegean Rev Law Sea 1, 61–94 (2010). https://doi.org/10.1007/s12180-009-0006-2