1 Introduction

Ocean governance is a collective effort. It depends on the ability of all actors, from States to individuals, to work together to form common understandings, values and rules for use of the ocean. The contemporary Law of the Sea (LOS) regime, as reflected in the 1982 United Nations Convention on the Law of the Sea (UNCLOS 1982), provides a global legal order for the control of numerous and diverse activities carried out in the ocean, aiming to achieve balanced relationships among multiple users and scarce marine resources. International marine fisheries, in particular, are regulated by International Fisheries Law (IFL). This legal domain predates the UNCLOS and falls within the LOS regime (Molenaar and Caddell 2019). For most of IFL’s history, that vision for balanced ocean governance has been hindered by industrialized activities, unsustainable fishing, and many other issues, whilst the regulation of fishing activities at sea fell short on marine environmental protection and conservation (Freestone and Makuch 1997; Barnes 2019), the protection of fishers at sea and their human rights (Van der Burgt 2012; Papanicolopulus 2018). Significant changes in international law broadly occurred from the 1970s onwards, especially on the need to protect and conserve the environment, ecosystems, habitats, and biodiversity (Birnie et al. 2009; Harrison 2015). The international community’s concerns with social matters such as maritime safety and the human rights of fishers also brought about international legal developments relevant to IFL more recently (Politakis 2008; Morgera and Nakamura 2021; Nakamura 2022). Additionally, economic aspects in sustainable fisheries have been the subject of the World Trade Organization’s (WTO) two-decades of ongoing negotiations (Chang 2003; WTO 2021), which finally resulted in the important and promising, yet unfinished, agreement on fisheries subsidies (Switzer and Lennan 2022). As such, the contemporary IFL of the last half-century has been progressively evolving and supporting social, economic and environmentally-sound standards for international marine fisheries.

The analysis of IFL’s evolution over time helps one to clarify how this domain strengthens the global legal order for the oceans and fisheries sustainability (Garcia et al. 2014; Molenaar and Caddell 2019). The present chapter draws on a historical narrative of IFL’s legal developments from 1994, when the UNCLOS entered into force, up until mid-2022. It analyses selected instruments, legal issues, and judicial cases, drawing on how the contemporary IFL has developed and responded to the recurrent problems in fisheries at global and regional levels, addressing current and future needs.

This chapter is structured in four parts. After this introduction, which includes a brief recapitulation of IFL history until contemporary times, the analysis outlines the legal developments in IFL, focusing on certain fisheries issues addressed in international legally binding and non-binding instruments adopted under the auspices of the United Nations (UN). This includes the Food and Agriculture Organization of the United Nations (FAO), as well as two international judicial cases. The third part of this chapter examines regional legal developments in IFL, particularly of regional fishery bodies (RFBs) whose constitutive instruments entered into force within the past twenty-five years, and highlighting issues addressed in certain RFBs’ conservation and management measures (CMMs). Finally, this chapter’s fourth part provides a brief conclusion.

1.1 From Past to Contemporary Times

The history of IFL dates back to the seventeenth century (Thornton 2004; Somos 2012), although the interests of coastal States were not as predominant on fisheries topics as they were for navigation and trade. In 1609, Hugo Grotius published Mare Liberium, advancing the notions of inexhaustible resources of the sea, arguably considered property of no one res nullius, a common possession res communis, or public property res publica, subject to the free exploitation by all in an open sea – mare liberum. This doctrine was later challenged by scholars’ claims, as in John Selden’s publication of Mare Clausum in 1635, founded on the principle of sovereignty over the closed sea (Thornton 2004; Somos 2012). Since this early period, the central issue in IFL has been the intersection of, on one hand, the free uses by States of the open seas, and, on the other hand, the restricted uses by States of closed seas. In seeking balance between the two with respect to fishing activities in the ocean, IFL has played a key role in regulating inter-State cooperation in the sustainable use, management and conservation of fishery resources (Dagget 1934; Carroz and Savini 1979; Churchill and Lowe 1999, 279–289; Kaye 2001, 44–88; Garcia and Cochrane 2009, 447–453). However, throughout most of IFL’s history, international marine fisheries lacked global regulation, or a treaty with universal participation establishing minimum obligations on sustainable use and management of marine fisheries across the ocean (Dagget 1934; Oda 1983). Bilateral and multilateral agreements predominantly regulated the exploitation by few States of fishery resources of their joint interest, and marine waters where States’ fishing activities overlapped (Carroz and Savini 1979).

Significant changes in IFL marked the twentieth century as States progressively recognized international rules on the ocean use, initially as customary international law, and later by a global treaty (Jacobson 1985; Churchill and Lowe 1999, 279–289). At regional level, from the early 1900s and more intensively from the 1940s onwards, States began cooperating through RFBs to coordinate activities on scientific research, data collection and dissemination, and the management and conservation of fishery resources (Heck 1975; Sydnes 2001). A large portion of high sea areas were governed by RFBs up until the 1970s, whereas coastal States enjoyed narrow maritime zones (Churchill and Lowe 1999, 283). Between the 1930s and the late 1950s, important developments in IFL at the global level occurred through two attempts by States in seeking consensus on the adoption of a treaty that would broadly cover ocean governance, including the delimitation of maritime zones (Jacobson 1985; Churchill and Lowe 1999, 279–289; Boyle 2005). After these attempts, States extensively negotiated at the Third United Nations Conference on the Law of the Sea, from 1973 to 1982, and concluded the UNCLOS, which was adopted by consensus as an interlocking package deal (Boyle 2005). This treaty is the main foundation of the contemporary LOS regime (Koh 1982) and the contemporary IFL domain (Molenaar and Caddell 2019). The UNCLOS is a global treaty with 168 Parties (as of October 2022), which partially filled the missing elements of IFL by setting out a general international legal framework for marine fisheries and certain specific fisheries management requirements to be observed by States Parties (Barrie 1986; Molenaar and Caddell 2019). Notably, a larger extension of national fishery limits, from 12 to 200 nautical miles, was formalized by the UNCLOS, considerably reducing the RFBs’ sphere of influence over the management of fishery resources (Churchill 1998).

1.2 From 1994 Onwards

The adoption of the UNCLOS was paramount to the international regulation of marine fisheries (Oda 1983; Barrie 1986; Miles and Burke 1989; Hey 1999), albeit still with many limitations as detailed later. This treaty contributed to clarifying the rights and duties of State Parties with respect to fishing, and the fisheries legal regime applicable to areas under national jurisdiction (AUNJ) (Attard 1987; Tsamenyi and Hanich 2012; Andreone 2015). These include the coastal States and archipelagic States’ territorial sea of up to 12 nautical miles, and the exclusive economic zone (EEZ), which can be claimed by them and reach up to 200 nautical miles (UNCLOS 1982, Articles 3, 48, 57–58). The UNCLOS also clarifies, to some extent, the legal regime applicable to the high seas, whilst setting out the foundation for further international regulation of fish stocks straddling between maritime zones and/or migrating across long distances (Davies and Redgwell 1997; Hewison 1999; Nelson 1999).

A decade after the UNCLOS’s adoption, the 1992 UN Conference on Environment and Development (UNCED) brought about significant influence to the evolution of IFL, fostering sustainability perspectives from other specialised fields of law (Proelss 2016). This resulted in a growing interaction of IFL with environmental law (Freestone and Makuch 1997; Juda 2002), trade law (Young 2011; Urrutia 2018; Churchill 2019) and human rights law (Van der Burgt 2012; Papanicolopulu 2018; Song and Soliman 2019). Examples important to the international fisheries context include the precautionary principle (Freestone 1999; Boyle 2005; Ebben 2011), the ecosystem approach (Molenaar 2002; Diz 2012; De Lucia 2015; Kenny et al. 2018), the principle of marine biodiversity conservation (Rengifo 1997; Diz 2012; Garcia et al. 2014), and more recently the human rights-based approach (Azmi et al. 2016; Jentoft and Bavinck 2019; Nakamura 2022). Fisheries-specific concepts such as total allowable catch (TAC), illegal, unreported and unregulated (IUU) fishing, fisheries co-management and small-scale fisheries (SSF) have also evolved through the adoption of improved international standards by influence of those principles and approaches. All these legal developments have contributed to a richer and more holistic legal landscape for international marine fisheries (Molenaar and Caddell 2019; Harrison 2017; Garcia et al. 2014; Palma et al. 2010, 54–92).

After the 1992 UNCED, other key legal developments occurred in IFL. The UNCLOS entered into force in 1994 and, as will be examined later in this chapter, subsequent international legally binding and non-binding fisheries instruments were adopted, complementing the treaty’s provisions on fisheries. Due to this progressive evolution of IFL following 1994, this chapter examines selected IFL developments from that year until mid-2022. The next section dedicates the analysis to instruments adopted at global level, highlighting certain issues that are less explored in the IFL literature.

2 Global Legal Developments in International Fisheries Law

IFL is mainly concerned with marine capture fisheries (Molenaar and Caddell 2019), which can be distinguished by their main manner and purpose of conducting marine fishing (Thomson 1980). As such, it comprises coastal artisanal and/or subsistence small-scale fisheries (SSF), which utilise small boats and low-capital finance, make for the largest fisheries workforce, and around forty percent of global fisheries production (Purcell and Pomeroy 2015; Chuenpagdee and Jentoft 2018; Smith and Basurto 2019). Marine capture fisheries also encompass industrial commercial large-scale fisheries, which utilise big vessels and high-capital finance, serving the broader market, including regional and international trade (McCauley et al. 2018). Both categories are not defined by international law, and while they may generally fall under generic references to ‘fishing’ or ‘fisheries’ in IFL instruments, national fisheries legislation of certain countries specifically define or refer to SSF (Nakamura et al. 2021). As will be detailed later, SSF gained increasing attention by the international community in the last decade due to their pivotal role in the provision of nutritious food, jobs, culture and livelihoods in coastal communities of both developed and developing countries, and due to the need to tackle their vulnerabilities to social, environmental and economic stressors (Nakamura et al. 2021; Nakamura 2022). Associated to marine capture fisheries are also the activities concerning planning, development, management, conservation, monitoring, control, surveillance and enforcement (MCSE), fisheries trade, which are or can be regulated by IFL instruments (Kuemlangan 2009). The contemporary IFL framework is, therefore, very broad and constantly evolving (see Table 8.1).

Table 8.1 Selected legally binding instruments and other guidance relevant to International Fisheries Law 1994 to mid-2022
Full size table

The way IFL has unfolded at diverse governance levels follows how public international law has itself developed more generally. It is part of a State-centric horizontal system where law-making primarily derives from States’ consent (Caddell 2019). Such a system represents the traditional way of international law-making, which depends on States’ willingness to agree to negotiate, prepare and adopt international rules on a given fisheries issue. The implementation of international obligations and standards on fisheries management and conservation greatly relies on States’ individual and collective efforts in both internalizing and operationalizing the relevant international instruments at national levels (Kuemlangan 2009). During the period from 1994 to mid-2022, innovation and technology have been advancing quickly and consequently affecting fisheries, in positive terms (with improved data monitoring tools and systems) and negative terms (by highly mechanised equipment harmful to the environment and destructive fishing gears). At the same time, as the global population continues to grow, the greater is the pressure on fishery resources, which, in turn, has become more vulnerable to and impacted by increasing climate-related environmental changes (Cisneros-Montemayor et al. 2019). The next subsections will therefore examine how IFL has evolved to meet these global concerns, analysing selected issues based on the UNCLOS’s legal developments; the United Nations General Assembly’s (UNGA) fisheries-related non-binding resolutions; the instruments adopted under FAO’s auspices; and two international judicial cases.

2.1 Law of the Sea Convention and the International Regulation of Fisheries

The UNCLOS has the ability to ‘live’ beyond its adoption, addressing persisting and emerging problems, as well as adapting to technological progress and social recognition of values (Barret and Barnes 2016; Molenaar and Caddell 2019, 3). This treaty’s incorporation of generally accepted international rules and standards (GAIRS) make room for other IFL instruments to be interpreted and applied complementarily, arguably determining certain coastal States’ obligations to manage and conserve their domestic fish stocks (Harrison 2017, 171–180). Notwithstanding, the UNCLOS has a limited approach to the regulation of fishing activities (Freestone and Makuch 1997). Fisheries management and conservation are more specifically addressed therein with respect to the EEZ, including the imposition of TAC, and use of best scientific evidence available for the conservation and management of fishery resources (UNCLOS 1982, Articles 61–62; Nakamura 2022). Beyond the EEZ’s water column, in the high seas, States enjoy the freedom of fishing pursuant to their duty to cooperate with other States for the conservation and management of living resources (UNCLOS 1982, Articles 87(1)(e), 116–118). In all maritime zones, States have the general duty to protect and preserve the marine environment (UNCLOS 1982, Articles 192–237).

Despite the milestones achieved with the adoption of UNCLOS, many issues remained insufficiently addressed or imprecisely regulated, such as high seas fisheries and marine biodiversity conservation (Barrie 1986; Vicuña 1993). The Convention’s provisions on straddling fish stocks and highly migratory fish stocks were further elaborated by the second implementing agreement relating to the UNCLOS, adopted in 1995, widely known as the UN Fish Stocks Agreement (UNFSA 1995). This agreement is considered an adaptation or modification of the UNCLOS by subsequent practice (Buga 2015), building upon the 1992 Agenda 21 oriented vision of sustainable development and conservation (Agenda 21, Chapter 17). The UNFSA has gone beyond UNCLOS in various ways. It follows an ecosystem approach to fisheries (EAF) (Garcia et al. 2003) and expressly provides for the protection of ‘biodiversity in the marine environment’ (UNFSA 1995, Articles 3(1) and 5(b), (d), (f)). The UNFSA provides for the precautionary principle, outlining the measures to be taken in applying this principle (UNFSA 1995, Articles 5(c), (i) and 6(3), (4), (6)). It also addresses SSF by requiring the Parties to take into account the interests of ‘artisanal and subsistence fishers’ in their duty to cooperate under this agreement (UNFSA 1995, Article 6(5)). All these three elements are to be observed by the Parties in any maritime area, including in AUNJ (UNFSA 1995, Article 3(1)). Another important feature of the UNFSA is the principle of compatibility, according to which States are required to cooperate for ensuring coherent and non-conflictual conservation and management measures (CMMs) applicable in EEZ and adjacent high sea areas (UNFSA 1995, Article 7(2)).

In respect to high seas fisheries, the UNFSA has contributed to lift RFBs to their central role in the conservation and management of high seas stocks while enabling all States, including distant water fishing nations and RFBs’ non-members, to enter into international fisheries, or at least challenge their potential exclusion from participating in fishing and fishing related activities in the areas governed by RFBs (Serdy 2016). The UNFSA contains far-reaching provisions on fisheries enforcement by States members of RFBs (Buga 2015), which hold the right to board and inspect any other State’s vessels to ensure compliance with the applicable CMMs for stocks falling under the competent RFB area (UNFSA 1995, Article 21). With such provisions, the UNFSA was considered a pioneering legal instrument to move away from the primary control of flag State jurisdiction over fishing vessels on the high seas (Lodge and Nandan 2005). In turn, the control over fishing vessels by States other than the flag States, with respect to legal compliance with CMMs, rules on customs, immigration, sanitation and national security, is a matter that was (and continues to be) challenged by the increasing influence of port States’ control and enforcement (Molenaar 2007).

Overall, the UNFSA has had a very constructive influence in IFL (Fresstone and Makuch 1997; Hayashi 1999; Bratspies 2001; Lodge and Nandan 2005) despite the lack of consideration for climate change (Pinsky et al. 2018). This is one of the gaps underpinning the debate around the UNCLOS’s third implementing agreement i.e., the proposed international legally binding instrument on the conservation and management of marine biodiversity beyond national jurisdiction (BBNJ Agreement). Though most nations fish within their own EEZ, high seas fishing is a reality for some flag States and fishing entities, including China, Spain, Taiwan, Japan and South Korea (Kroodsma et al. 2018). The fact that high seas fisheries are regulated by existing international instruments, including the UNFSA and regional CMMs, has raised difficult questions vis-à-vis its inclusion in the proposed BBNJ Agreement (Barnes 2016). While such an agreement could conflict with the activities of RFBs already in place, it could nevertheless be an alternative or complementary tool to help them tackle poorly regulated, weakly enforced and unsustainable high seas fishing. At most, it could regulate discrete high seas stocks and other aquatic species and/or areas not regulated by RFBs (Barnes 2016) and which may be impacted by fisheries industry directly or indirectly through abandoned, lost or otherwise discarded fishing gears.

In relation to treaty-monitoring mechanism for UNCLOS, it is important to note that the UN Secretary-General performs functions through the Division for Oceans Affairs and Law of the Sea (DOALOS), which serves as the Secretariat of UNCLOS. One of the functions of the UN Secretary-General, pursuant to the UNCLOS, is to convene the meetings of State parties to the Convention (UNCLOS 1982, Article 319(2)(e)), but the matters dealt in such occasions have not focused on fisheries issues per se (Tarassenko and Tani 2012). Legal developments on fisheries have rather been showcased through several high-level UN conferences and meetings, as seen below.

2.2 Other Legal Developments Through High-Level UN Conferences and Meetings

The main legal sources produced, under the UN auspices and which integrate the IFL framework, are the LOS-related and fisheries-related resolutions adopted at the UNGA annual meetings (Harrison 2011; Caddell 2019). The UNGA resolutions are non-binding instruments, but they hold law-making importance by influencing activities of States, regional and international organizations in numerous issues, including fisheries management and conservation (Caddell 2019). Notably, specific concerns with large-scale driftnet fishing came to force in the early 1990s, and by the mid-2000s, UNGA began to address the negative impacts caused on deep-sea vulnerable marine ecosystems (VMEs) by unsustainable bottom fishing practices (Caddell 2019). From 1994 onwards, there have been at least two UNGA resolutions per year, one addressing the broad LOS theme, which resonates more closely with the UNCLOS, and others addressing certain fisheries topics, which concern those issues of the UNFSA and related fisheries instruments (Caddell 2019). In this context, important contributions of the UNGA resolutions to IFL developments have addressed three key fisheries issues, highlighted by UNGA in the past twenty-five years, relating to: (i) unauthorised fishing, (ii) fisheries by-catch and discards and (iii) artisanal and subsistence small-scale fisheries.

The matter of ‘unauthorised fishing’ was introduced in UNGA’s discussions in 1994. The initial concern was with the detrimental impact caused by fishing in AUNJ, especially in developing countries, and the duty of flag States with respect to duly implementing, controlling and enforcing their fishing authorisation schemes (UNGA Resolution 49/1161994). Only in 1999, the UNGA Resolution 54/32 expressly mentioned concern with IUU fishing, as reflected previously at the regional level (Serdy 2016), and it provided for FAO’s mandate to develop what came later to be the International Plan of Action (IPOA)-IUU. Since then, the general treatment of ‘unauthorised fishing’ was also associated with IUU fishing practices on the high seas as well as the numerous related activities concerning compliance with international CMMs. From 2003 onwards, an IUU-fishing dedicated section was included in the fisheries-specific resolution, deepening the discussions on this topic and referring not only to the related activities by States and FAO, but also including WTO’s efforts and cooperation through the International Maritime Organization (IMO). The recurrent appearance of these issues have influenced the adhesion of States to the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement 1993) and the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (PSMA 2009), both adopted under FAO auspices, as well as have fostered inter-agency cooperation to implement them. The recently adopted UNGA Resolution 75/89 reflects the various additional matters which have been included in the topic of IUU fishing throughout the past years. These comprise concerns with effective flag States’ jurisdiction, control and enforcement over the vessels flying their flag, port States’ measures and control, maritime safety and decent labour conditions, landings and catch reporting and associated data-sharing, the importance of trade and market-related measures, public and private ecolabelling schemes, and the linkage between illegal fishing and transnational organised crime (UNGA Resolution 75/892021).

The ‘fisheries by-catch and discards’ issue was also introduced in UNGA’s discussions in 1994 (UNGA Resolution 49/1181994). While by-catch concerns non-target species caught incidentally, the problem of discards applies to any species subject to ‘oceans wasting’ (Gillespie 2002). Discards occur for all sorts of reasons such as lack of space to keep the species on board the fishing vessel, non-profitability of the species, which lead one to discard the species overboard instead of landing it or bringing it to the shore. Certain species of marine mammals, sharks, sea turtles and seabirds have nevertheless acquired special protection in other international instruments, including multilateral environmental agreements through time. Associated debates were then generally improved in the international fora and, since 2003, a ‘fisheries by-catch and discards’ dedicated section has been fostering activities to reduce and combat these problems, including catch by lost or abandoned gear and post-harvest losses, with particular attention to juvenile fish (UNGA Resolution 58/142003). The UNGA Resolution 75/89 includes the concern with impacts by large-scale fish aggregating devices, the importance of electronic monitoring, standardised data collection and reporting protocols, conservation of non-target species incidentally harvested, minimizing sea turtles and seabirds by-catch and increasing post-release survival of these species (UNGA Resolution 75/892021).

Finally, SSF issues, which do not enjoy a specific section in the fisheries-related UNGA resolutions yet, are worth highlighting for their increasing importance and limited coverage by IFL literature. Particular attention to SSF by UNGA was made in 2003, highlighting the impacts of directed and non-directed shark catch fisheries on shark populations and related species, taking into account the nutritional and socio-economic considerations ‘particularly as they relate to small-scale, subsistence and artisanal fisheries and communities’ (UNGA Resolution 58/142003). In 2005, UNGA acknowledged the importance of the fisheries sector ‘including small-scale and artisanal fisheries’ to developing countries, in respect of the need to eliminate fisheries subsidies that contribute to IUU fishing and fishing overcapacity (UNGA Resolution 60/312005). In 2006, the ‘participation of small-scale fishery stakeholders’ in policy development and fisheries management strategies were emphasized, and FAO was mandated to develop guidance for enhancing the contribution of SSF to poverty alleviation and food security (UNGA Resolution 61/1052006), later resulting in the adoption of the 2014 Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (SSF Guidelines 2014). The SSF Guidelines are the first comprehensive international instrument dedicated to the full SSF value-chain, and have significantly contributed to strengthen the recognition, protection and empowerment of small-scale fishers, their human rights, and SSF sustainability (Morgera and Nakamura 2021; Nakamura 2022). The SSF Guidelines arguably hold normative significance, despite their non-binding nature, and can produce law-making effects at international, regional and national levels of governance (Nakamura 2022). While a specific section in the UNGA resolutions has not yet been fixed, the consideration of SSF needs and the mandate of FAO to develop guidelines for this fisheries subsector illustrate the growing importance given by UNGA to SSF. The UNGA Resolution 75/89 includes the concerns with SSF access to fishery resources and markets, capacity development and technical support to SSF, participation of SSF stakeholders in policy development and fisheries management, the recognition of SSF’s important role and need for support to their long-term environmental, economic and social sustainability (UNGA Resolution 75/892021).

In addition to these specific issues of IUU fishing, by-catch and SSF, it is worth noting the UNGA Resolution that established the UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea in 1999 (UNGA Resolution 54/331999), which has been meeting annually for the international review of ocean affairs and generating important instruments and discussions, on which DOALOS has been producing relevant reports as well (de La Fayette 2006). The UNGA Resolution 70/1, in turn, provides for the Sustainable Development Goals (SDGs), setting out SDG14, entirely dedicated to the conservation and sustainable use of the oceans and marine resources, contemplating ten targets, four of which directly related to fisheries, tackling overfishing and IUU fishing (SDG 14.4), harmful fisheries subsidies (SDG 14.6), sustainable fisheries in Small Island Developing States and least developed countries (SDG 14.7), and SSF access to marine resources and markets (SDG 14B) (UNGA Resolution 70/12015). Of particular relevance to IFL and ocean governance is SDG 14C, aimed at enhancing conservation ad sustainable use of oceans and their resources by implementing international law as reflected in the UNCLOS. While SDG14 is the evident SDG related to IFL, other SDGs are particularly important in addressing key social and environmental issues (e.g., hunger, gender, decent work, climate change) that affect fisheries, especially SSF (Said and Chuenpagdee 2019; Morgera and Nakamura 2021).

2.3 FAO Complementary Instruments

Since the establishment of FAO in 1945, the organization has been facilitating the cooperation among its members with respect to the appropriate use, management, development and conservation of world fisheries (Harrison 2011). It acts as the principal body for developing IFL and promoting the implementation of UNCLOS’s provisions on fisheries (Harrison 2011; Boyle and Chinkin 2007, 126–128). FAO’s initiatives involve providing technical support through the elaboration and improvement of the international standards for fishing, and do not depend on the provision of a clear mandate delegated by the UNCLOS (e.g., CCRF 1995; Edeson 1996). Nonetheless, the Convention has strengthened the ability of FAO to perform such activities. The aforementioned UNCLOS’s rule of reference or GAIRS, addressing the conservation of living resources and protection of the marine environment in any maritime zone (UNCLOS 1982, Articles 61(3), 119(1)(a) and 197), arguably encourage coastal States to follow best practices when developing CMMs (Harrison 2017, 171), many of which are oriented by FAO’s guidance. From the mid-1990s onwards, numerous FAO guidelines on fishing and fishing related activities as well as two legally binding instruments complemented the UNCLOS.

Two of such instruments were adopted under Article XIV of FAO’s Constitution, namely the Compliance Agreement and the PSMA, whose provisions respectively bind 45 and 74 Parties, including the EU (as of October 2022). The advantage of being adopted at different times in IFL history is that each can resonate with the interests of governments, which neither the UNCLOS nor UNFSA may have captured before. The United States, for example, is not a Party to the UNCLOS, but has ratified the UNFSA, the PSMA and the Compliance Agreement. In turn, Libya and Turkey are non-Parties to the UNCLOS and the UNFSA, but both countries are Parties to the PSMA. As such, these States, while non-Parties to the UNCLOS, are bound by those other IFL instruments, which provide more detailed rules on, for instance, the conservation and management of straddling fish stocks and highly migratory fish stocks, port States measures and flag States jurisdiction on the high seas. Despite their limited participation, both the PSMA and the Compliance Agreement play significant roles in IFL and, as seen further below, many regional initiatives have to some extent addressed their requirements in relevant CMMs.

In the same year the UNFSA was adopted, 1995, FAO Members adopted the Code of Conduct for Responsible Fisheries (CCRF 1995). In spite of its voluntary nature, this code reflects rules already provided in legally binding instruments, including the UNCLOS and the Compliance Agreement (CCRF 1995, Article 1). The use of the CCRF in providing more precise or detailed meanings of the obligations contained in legally binding instruments arguably strengthens the CCRF’s capacity of generating a normative effect or influence (Barnes 2006 at 253; Harrison 2017, 180). The objectives of this code include providing guidance for the implementation of other international legal instruments and standards of conduct for all persons in the fisheries sector (CCRF 1995, Article 2(a)(j)). In form, the CCRF resembles one of a general regulatory framework, providing an improved set of provisions that elaborates on those present in the UNCLOS’s primary rules. In doing so, the CCRF clearly provides for an EAF (CCRF 1995, Articles 6.1–6.7, 6.9), the precautionary principle (CCRF 1995, Article 6.5), and takes into account the interests of the SSF (CCRF 1995, Article 6.18). It has a broader scope than the UNFSA, applying to any aquatic species subject to fishing and fishing related activities, and not solely to the straddling and highly migratory fish stocks. It also covers concerns falling under national sovereignty such as fisheries management and operations in AUNJ (CCRF 1995, Articles 7–8), aquaculture (CCRF 1995, Article 9) and the interaction between fisheries and coastal management (CCRF 1995, Article 10), setting important international standards or GAIRS in IFL.

With more than twenty-five years of implementation, the CCRF has been significantly influential in IFL developments. Similar to the UNCLOS, it may be hard to find an international fisheries instrument adopted in the course of the last two decades which does not mention the CCRF either explicitly or in replicating certain CCRF’s provisions. The aforementioned two FAO agreements have in fact intrinsic relationships with the CCRF, sharing common provisions and concepts (Moore 1999 at 91–93). While the Compliance Agreement forms an integral part of the CCRF (CCRF 1995, Article 1.1), the PSMA provides the regulatory stream that expands on the Port States duties of Article 8.3 of the CCRF. The influence that the CCRF has on IFL developments is also perceived in the numerous declarations adopted at international conferences and ministerial meetings, which reinforce the importance of applying the CCRF (e.g., Kyoto Declaration 1995; Rome Declaration 1999 and Reykjavik Declaration 2001). The UNGA recognises the CCRF and other international related instruments, including FAO’s IPOAs), as setting out the ‘principles and global standards of behaviour for responsible practices for conservation of fisheries resources and the management and development of fisheries’ (UNGA Resolution 75/892021, Preamble).

The FAO has also developed several technical guidelines for responsible fisheries to further clarify and guide the implementation of the CCRF provisions with respect to a specific matter (Kuemlangan 2009). Despite holding no formal legal status, these instruments have an important role in the development of customary law in IFL by reproducing the set of internationally elaborated principles based on which States are expected to follow in their domestic practices (Barnes 2006, 254; Kuemlangan 2009). Notably, FAO’s IPOA aimed at preventing, deterring and eliminating IUU fishing has created the parameters necessary for what further came to be the PSMA. These voluntary instruments have also addressed certain matters that have been for long neglected or insufficiently covered by IFL. For instance, with the adoption of the SSF Guidelines in 2014, bringing international recognition and attention to a fisheries subsector that has been widely suffered from marginalisation and vulnerability (Béné et al. 2010; Chuenpagdee and Jentoft 2011; Purcell and Pomeroy 2015). These FAO instruments consolidate common understandings about a given subject in fisheries, filing gaps in the international legal regime of fisheries, to which States and judicial bodies may use for evidence of what IFL stands for (Edeson 1999). It is on the latter that the next subsection turns to, analysing two selected international cases to illustrate how IFL sources can be interpreted by an international court.

2.4 Judicial Interpretation of IFL in Selected International Cases

Although international judicial decisions, within contentious cases, apply strictly to the parties of the relevant dispute, these decisions set a precedence to guide international judges in deciding future cases, thereby being significant for any State (Harrison 2007). International judicial decisions may also be of an advisory nature, non-binding to the party requesting the opinion, but also serves States in interpreting and applying international legal instruments. While the merits of the cases are not put in scrutiny, this subsection examines how certain IFL instruments were interpreted or considered by the international judicial body constituted by the UNCLOS (UNCLOS 1982, Annex VI) – the International Tribunal for the Law of the Sea (ITLOS or Tribunal). Disputes concerning the interpretation or application of the UNCLOS provisions must be initially resolved consensually, and, if such consensus is not reached, may be referred to through the ITLOS by any Party, pursuant to all Parties having declared the Tribunal as their preferred means of settlement (Churchill 2007, 387). Parties may also declare their preference for other dispute settlement mechanisms, including the International Court of Justice and arbitral tribunals constituted in accordance with UNCLOS requirements (UNCLOS 1982, Article 287(1)). Due to the limited space left in this chapter, however, only two selected ITLOS cases will be examined: an advisory opinion and a contentious case.

The ITLOS 2015 Sub-Regional Fisheries Commission (SRFC) Advisory Opinion (ITLOS Case No. 21) was the first advisory opinion delivered by the full Tribunal (Freestone 2016). It clarified the SRFC’s four questions related to the exercise of fishing in the EEZs of SRFC’s member States by fishing vessels flying the flag of the EU member States, with which the SRFC have concluded fishing access agreements. In respect of IFL instruments, the Tribunal noted the importance of the definition of IUU fishing provided by the IPOA-IUU, highlighting that it ‘draws up within the framework of the [CCRF]’, was ‘subsequently incorporated and reaffirmed in article 1(e) of the [PSMA]’ and ‘has also been included in decisions of some regional fisheries management organizations, (…) the national legislation of a number of States and the law of the [EU]’ (ITLOS Case No. 21, Para 92). This reference indicated the Tribunal’s view of the importance of the IUU fishing definition in the IPOA-IUU, which played ‘an important role in the context of the consideration of the obligations borne’ within the SRFC Convention’s area of application (ITLOS Case No. 21, Para 95). The definition of ‘unregulated fishing’ in particular helped the Tribunal to clarify the duty of the coastal State to ‘have in place national management and conservation measures and policies in relation to fishing resources’ within its EEZ (ITLOS Case No. 21, Para 114).

The Tribunal answered the SRFC’s four questions based on interpretation of the UNCLOS, especially the provisions on the EEZ, as well as on relevant international cases. Other specific IFL instruments were discussed by the Tribunal. For instance, the ITLOS noted that the bilateral fisheries access agreements concluded by the SRFC member States provided for the obligation of the flag State to ensure compliance with CMMs of the International Commission for the Conservation of the Atlantic Tunas (ICCAT) (ITLOS Case No. 21, Para 96), and it referred to the EU Common Fisheries Policy’s definition of ‘Union fishing vessel’ for arguing on the liability aspects of the case (ITLOS Case No. 21, Paras 165–174). Such references were quite limited, but Judge Paik’s separate opinion elaborated further on the relevance of IFL instruments, particularly those non-legally binding, noting that ‘the post-UNCLOS normative developments as a whole (…) are relevant to the present case as to the state and direction of international fisheries law on this question’. Judge Paik emphasised the reason for the Tribunal to look carefully into such legal developments as a means to clarify what constitutes the generally accepted international regulations, procedures and practices or GAIRS, ‘not because they are binding upon States as either treaty law or customary law, but rather because they are indicative of such regulations, procedures and practices’ (Separate Opinion, Para 27).

In turn, the ITLOS 2014 M/V Virginia G (Panama v Guinea Bissau) case (ITLOS Case No. 19) generated important views by the Tribunal and Judges on certain IFL instruments. Notwithstanding other matters dealt by the Tribunal, the key point for the interpretation of IFL instruments was addressed in respect of the competence to exercise regulatory jurisdiction over the bunkering activities (i.e., provision of gas and oil) in support of foreign vessels fishing in Guinea Bissau’s EEZ. The Tribunal clarified the need of such activities to have a ‘direct connection to fishing’ in order to fall under the list of matters on which the coastal State, in the exercise of its sovereign rights to explore, exploit, conserve and manage its EEZ living resources, is entitled to adopt laws and regulations (ITLOS Case No. 19, Paras 207–215). The Tribunal concluded that ‘coastal States have jurisdiction to regulate the bunkering of foreign vessels fishing in their [EEZs] and to provide for the necessary enforcement measures’, which include the boarding, inspection and arrest of vessels concerned (ITLOS Case No. 19, Paras 264–265).

Notably, ITLOS expressly affirmed that, in reaching such conclusion, it was ‘also guided by the definitions of “fishing” and “fishing related” activities in several of the international agreements’ (ITLOS Case No. 19, Para 216). The Tribunal cited various examples of IFL instruments, including the PSMA, the revised SRFC Convention, the North Pacific Anadromous Fish Commission (NPAFC)’s Convention, the South East Atlantic Fisheries Organisation (SEAFO)’s Convention, the Southern Indian Ocean Fisheries Agreement (SIOFA), the Western and Central Pacific Fisheries Commission (WCPFC)‘s Convention, and the Commission for the Conservation of Southern Bluefin Tuna (CCSBT)’s Convention. Based on these IFL instruments, the Tribunal concluded that the bunkering of foreign fishing vessels in Guinea Bissau’s EEZ, including the supply of fuel to fishing vessels, is comprised by these instruments’ definition of ‘fishing related activities’ (ITLOS Case No. 19, Paras 216–219). This part of the judgement is an important example of how IFL instruments, to which the Parties of the dispute are not necessarily bound by, may be used to guide the Tribunal’s reasoning.

According to Judge Gao, the Tribunal’s decision was a pioneering and progressive step which might be regarded as ‘breaking new ground in international case law’ by determining that such bunkering activities connected to fishing vessels do not fall under the category of freedom of navigation, allowing for coastal States to regulate on and take enforcement measures against them (Separate Opinion, Paras 11–12). Judge Ndiaye, in turn, recalled the role of the UN system’s specialised agencies to ‘concern themselves with the technical details under the chapter headings established by the Convention [UNCLOS]’, referring to instruments drawn up under the auspices of the FAO, expressly mentioning the CCRF, the IPOA-IUU, the Compliance Agreement and the PSMA (Dissenting Opinion, Para 179). Such instruments were again referred by Judge Ndiaye as examples at the global level of the ‘extensive regulation of fishing and related activities in the EEZ’, as well as many other IFL instruments of regional scope (Dissenting Opinion, Paras 209–215).

These two ITLOS cases, particularly the Judges’ separate opinions highlighted above, strengthen the legal force of the overall IFL framework, which can be used to guide the resolution of future cases or dispute resolutions in other international adjudicatory and arbitral forums. These cases demonstrate how international jurisprudence can also contribute to the development of IFL and the interpretation of relevant IFL instruments, including non-binding ones, which consist of a large part of the IFL domain.

3 Regional Regulation of Marine Fisheries

A substantive part of IFL is produced at regional or multilateral levels through RFBs, of which there are now about 50 (Løbach et al. 2020). Inter-State cooperation through RFBs, for the management of straddling and highly migratory fish stocks in AUNJ and beyond, existed years before the UNCLOS’s entry into force (Heck 1975). Yet, when comparing the contexts before and after the EEZ concept was codified, the number of RFBs has doubled (Sydnes 2001, 355). Since 1994, over fifteen of the RFBs constitutive instruments have entered into force (see Table 8.1). Historical trends in the RFBs from the years before the negotiation of UNCLOS to the period following the 1990s, have been characterised as moving from ‘loose, mainly advisory regional commissions which had multi-species responsibilities and relatively limited powers’ into further being predominated by ‘the establishment of several species-specific institutions’ (Barston 1999, 341–342). Despite the multiple RFBs currently in place, there remain regions on the high seas and species, including high seas discrete species, which are not governed by an RFB, a regulatory gap that could be filled by the proposed BBNJ Agreement (Barnes 2016).

The functions of RFBs vary, but the main feature distinguishing those referred to as regional fisheries management organizations and/or arrangements (RFMO/As) is their competence to establish legally binding CMMs, as opposed to a mandate focused on scientific research, coordinative and/or developmental (Caddell 2019; Harrison 2019; Sydnes 2001). Most of RFBs have a purely advisory role (Løbach et al. 2020). In general, the constitutive instruments of RFMO/As provide for their competence to adopt CMMs that may be binding on their members pursuant to applicable procedures (Harrison 2019; Molenaar 2019). These CMMs contribute to the regional regulatory framework of IFL by, for instance, regulating issues not covered by the UNFSA. IFL instruments of RFMO/As therefore include their constitutive instrument, binding on the parties, and the CMMs, which may be binding on member States or not, depending on the State member’s acceptance of the CMM (Harrison 2019). An interesting point of debate is the differentiated opt-out procedures adopted by RFMO/As, which often pose constraints on members objecting to a given CMM. The restrictions vary and may include an additional requirement for members to justify their objecting reasons and/or present alternative measures, or a detailed procedure by which members’ objections, reasons and alternative measures are also subject to the judgement of a review panel (Harrison 2017, 183–184). Another important discussion concerns the legal personality and capacity of such organisations, which entitle them to exercise rights and powers on various fisheries issues in the international fora (Manoa 2016).

The next subsections examine selected RFBs created under the auspices of FAO and other selected RFMOs outside the UN system.

3.1 RFBs Created Under FAO’s Auspices

A key contribution to IFL from FAO, in the exercise of the powers provided by FAO’s Constitution (Articles VI(1)(2) and XIV), is the creation of RFBs, which have been supporting the preparation, adoption and implementation of CMMs for fisheries resources falling under their areas of competence (Barnes et al. 2006, 10). The RFBs established by a legally binding instrument originate from FAO’s competence to approve conventions and agreements. These RFBs include the Asia-Pacific Fishery Commission (APFIC), the General Fisheries Commission for the Mediterranean (GFCM), the Indian Ocean Tuna Commission (IOTC) and the Regional Commission for Fisheries (RECOFI). Another set of RFBs are those created by non-binding instruments adopted by FAO’s Conference and Council, both with competence to establish regional commissions for the purpose of advising on the formulation and coordinated implementation of policy, as determined by FAO’s Constitution (Article VI(1)) or for the purpose of studying and reporting on matters pertaining to the purpose of the Organization (Article VI(2)). Those RFBs include the Western Central Atlantic Fishery Commission (WECAFC), the South West Indian Ocean Fisheries Commission (SWIOFC) and the Fishery Committee for the Eastern Central Atlantic (CECAF).

Most of these RFBs were established prior to 1994, but their main contributions to IFL stem from their practical operation through regular meetings to report, discuss, share data, best practices, concerns, activities, decide on institutional arrangements, programmes of works and to adopt recommendations towards bettering the sustainable utilization, management, development of living resources of the respective areas falling under their competence. As mentioned earlier, the main difference among these RFBs is the normative nature of their recommendations, which can be legally binding on the members that have accepted them i.e., not objected, pursuant to the decision-making procedures laid out in their constitutive instruments. In this respect, the latest compilation of CMMs issued by two of FAO’s RFMOs provides useful insights into their alignment with global IFL developments. These RFMOs are the GFCM and the IOTC, whose respective recommendations and resolutions, if adopted by a qualified majority of two-thirds votes, become legally binding on members except for those who make a timely objection to the proposed measure (GFCM Agreement 1949, Article 13, IOTC Agreement 1993, Article IX(1)–(7)). These RFMOs have the membership of two countries in common, France and Japan, as well as the EU. Thus, if considering the number of members that each hold, a total of 54 members are legally bound by CMMs applicable in their areas of competence.

Such CMMs have significantly strengthened the IFL’s framework in addressing a range of contemporary issues and even reinforcing States’ obligations, which previously relied on non-binding instruments. For instance, the management and conservation of sharks and ray species, which were partially covered by the non-binding IPOA-Sharks, currently correspond to legally binding CMMs for the members of both the GFCM (Recommendations GFCM/42//2018/2, GFCM/36/2012/3) and the IOTC (Resolutions 19/03, 18/02, 17/05, 13/05, 13/06, 12/09). The former has generally addressed all sharks and rays through strict management measures (e.g., prohibitions on removal of shark fins on-board vessels, on retaining, transhipping or landing shark fins, on beheading and skinning of specimens on-board and before landing) (Recommendation GFCM/42//2018/2, Para 4) and specific conservation measures (e.g., obligations to ensure a high protection to certain species, which must be released unharmed and alive, to the extent possible) (Recommendation GFCM/42//2018/2, Para 6). The IOTC, in turn, has adopted general CMMs for all sharks (e.g., retention by the fishing vessel of all parts of sharks, except its head, guts and skins, to the point of landing) (Resolution 17/05, Para 2), and special conservation measures for certain shark species (e.g., blue sharks, whale sharks and thresher sharks) (Resolutions 18/02,13/05, 12/09 and 19/03). In a similar manner, both GFCM and IOTC have reflected the IPOA-Seabirds in their CMMs on reducing the incidental bycatch of these species in longline fisheries (Recommendation GFCM/35/2011/3, Resolution 12/06), and they have also each established a list of vessels presumed to have carried out IUU fishing respectively in their areas of competence (Resolution 18/03, Recommendation GFCM/33/2009/8), which supports both the implementation of the IPOA-IUU fishing and the PSMA.

Numerous other issues addressed by the CMMs of IOTC and GFCM indicate their evolution in respect to emerging concerns outlined in the analysed global IFL framework. Progressive examples from the IOTC were the measures on non-entangling and the use of biodegradable fishing aggregated devices within their detailed management plan procedures (Resolutions 19/02, 15/09), while from the GFCM an important recent measure included the establishment of a fisheries restricted area in the Jabuka/Pomo Pit are in the Adriatic Sea for the purpose of protecting VMEs and essential fish habitats for demersal stocks (Recommendation GFCM/41/2017/3). These two specific issues align with IFL’s contemporary concerns and the overall contribution to respectively minimise the detrimental impacts caused by destructive fishing gears and to protect and conserve coastal and marine areas, including fragile ecosystems and habitats. Even though these measures suggest an important step forward, there seems not to be sufficient integration of certain matters such as those concerning sustainable SSF. In this respect, however, the GFCM has taken the initiative by adopting a non-binding resolution, which calls for the support to accelerate the implementation of the SSF Guidelines (Resolution GFCM/40/2016/3).

3.2 Other RFBs Outside the UN System

There is a range of other RFBs, including RFMOs (e.g. NAFO; CCAMLR; SEAFO; ICCAT) which have been created throughout the last decades and their works have generated what likely constitutes the largest part of IFL sources. As anticipated, the legal developments and contributions of RFMOs to IFL stem from their constitutive instruments as well as their evolution through time, by adoption of amendments to these constitutive instruments and/or of updated CMMs based on their most recent meetings and performance reviews. The present section sheds light on the South Pacific Regional Fisheries Management Organization (SPRFMO), whose constitutive instrument entered into force in 2012 (SPRFMO Convention 2009). The SPRFMO’s Convention has gained deserved attention for providing an improved legal framework for international fisheries management, suggesting higher IFL standards for regional rules, with innovative decision-making procedures concerning their member’s adoption of CMMs, as well as provision for compulsory dispute settlement mechanisms (Harrison 2019; Caddell 2019; Schiffman 2013).

In respect of the substantive issues dealt with by the SPRFMO, some key provisions of its Convention are worth noting. The SPRFMO Convention requires its Parties, Commission (SPRFMO Convention 2009, Article 6) and subsidiary bodies (Articles 6(2) and 9(1)) to apply the precautionary approach and the EAF (Article 3(1)(b) and (2)(a)). It also requires them to apply principles of transparency, accountability and inclusion in adopting CMMs (Article 3(1)(a)(i)), and the proportionality principle in the establishment of sanctions that are adequate in severity as to avoid illegal fishing (Article 3(1)(a)(ix)). The SPRFMO Commission’s technical committee is not only required to monitor the implementation and compliance with CMMs, but also to review such implementation as well as review the implementation of cooperative measures for MCSE (Article 11(2)(a),(c)). Moreover, the SPRFMO’s Convention expressly refers to VMEs in both considerations which its Scientific Committee and the CMMs adopted by SPRFMO’s members are required to observe (Articles 10(c) and 20(1)(d)). Additionally, it follows the UNFSA provision on the duty to cooperate for the establishment of CMMs, taking special account to the need to avoid adverse impacts on, and ensure access to fisheries by, ‘subsistence, small-scale and artisanal fishers and women fish workers, as well as indigenous people’ in developing States’ SPRFMO members and their territories and possessions (Article 19(2)(b)).

4 Conclusion: From Past to Future in International Fisheries Law

As Ottenheimer noted, back in the early 1970s, ‘[l]egal policy in general and legal fisheries policy in particular must choose between giving priority to potentialities for change in an evolving future or to determinants for stability in an unchangeable past’ (Ottenheimer 1973). These remain the underlying options in contemporary IFL, though the need for more improvements in this domain appears to reveal States’ reliance on the second choice. As seen in this chapter, some progress has been made at both global and regional levels, but this analysis was limited in the face of the numerous RFBs, relevant international instruments, judicial and arbitral cases. Recent IFL literature highlighted several key issues that have to some extent been leading ongoing and future developments in IFL. Such matters include the consideration of fisheries and related issues in the proposed BBNJ Agreement, furthering the application of the precautionary principle to new and exploratory fisheries management, in light of increasing population and fish food demand, as well as climate change and climate variability threats (Molenaar and Caddell 2019). Notably, the latter issue has fallen short in the RFMO arena (Rayfuse 2019). The present chapter narrated some other important developments of the recent past in contemporary IFL, particularly with respect to SSF issues, which are not sufficiently explored by IFL scholars.

In following the trend of integration, enhanced cooperation and coherence in ocean governance, numerous institutions interested in bettering the uses of marine living resources more generally have also acquired an interest in fisheries issues, therefore, being important drivers of IFL development. They include regional development and/or economic bodies, which have had issues of weak coordination and overlap with fisheries management due to the political, cultural and economic diversity of the region (e.g., West Central Atlantic and the Gulf regions) (Barston 1999, 343). It is also worth mentioning the growing interaction between IFL and other specialized legal regimes. For instance, the inclusion of aquatic species commercially exploited by the fisheries sector in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES 1973), has required improved coordination between government authorities involved in CITES implementation and the fisheries sector (Nakamura and Kuemlangan 2020). SSF, in turn, raises important linkages between the SSF Guidelines and international human rights standards, including the recently adopted 2018 UN Declaration on the Rights of Peasants and Other People Working in Rural Areas, which explicitly applies to small-scale fishers (Morgera and Nakamura 2021; Nakamura 2022).

Despite the efforts taken by the international community in bringing global marine fisheries to an improved state of healthy, resilient and restored fish stocks, the status of currently recognised fish stocks remains alarming (FAO 2022). In dealing with the fisheries crisis, it is fundamental that the IFL is interpreted and applied by taking due consideration of all the existing IFL instruments at global and regional levels. IFL sets out the minimum standards of permissible action in fisheries management and outlines the principles guiding such management (Kaye 2001, 1–2). However, the regulation of international fisheries needs to advance faster and more effectively to live up to a growing global population, increasing demand for seafood protein and often unpredictable environmental changes. At the regional level, adequate incentives for RFMOs to fully embrace their roles as ‘custodians of regional fish stocks’ as well as mechanisms to hold them accountable for their CMMs (Barnes et al. 2006) remain key suggestions for future developments in IFL. As Ottenheimer’s put it, ‘[s]urely our hopes lie not with yesterday, but tomorrow’ (Ottenheimer 1973), and States would need to take that first choice more incisively to allow the promising developments that have occurred in the recent past of contemporary IFL to resonate better in the future.