Transcript International Fisheries Law - UNEP

The International Legal Regime
for Fisheries Management
Martin Tsamenyi, PhD
Professor of Law & Director
Centre for Maritime Policy
University of Wollongong
NSW, Australia
UNEP WORKSHOP ON FISHERIES SUBSIDIES AND
SUSTAINABLE FISHERIES MANAGEMENT
International Environment House II
Geneva, 26-27 April 2004
IN THE BEGINNING
Papal Bull of Demarcation 1492 &
The Treaty of Tordesillas 1493
Freedom of the Seas
The resources
of the oceans
“belong to all
men by natural
law.”
Hugo Grotius:1609
Freedom of the Seas
“The
sea is common
to all, because it is so
limitless that it
cannot become the
possession of any
one, and because it
is adapted for use of
all, whether we
consider it from the
point of navigation
or fisheries.”
‘Over-fishing unscientific’
• “Any tendency to over-fish will
meet with its natural check in the
diminution of the supply,… this
check will always come into
operation long before anything
like permanent exhaustion has
occurred” (Huxley, 1883).
Over-fishing Impossible
“ I say it is impossible, not merely to
exhaust them [fisheries] but even
noticeably to lessen their number by
means now used for their capture, . For
the last three hundred years fishing has
gone on … and although enormous
quantities of fish have been caught,
there are no indications of exhaustion.”
(L.Z Joncas, Canadian Ministry of
Agriculture, 1885).
The High Seas Convention1958
• The freedom of the High Seas
comprises inter alia:
• Freedom of fishing
• “Tragedy of the [international]
commons”
Modern International Legal &
Policy Framework
• Three Categories
Fisheries Specific Instruments
“Soft Law” Instruments
• Policy framework
General international marine
environmental treaties
Fisheries Specific Instruments
• UN Law of the Sea Convention
• UN Fish Stocks Agreement
• FAO Compliance Agreement
• Regional and Bilateral Fisheries
Agreements/Conventions
UN Convention on the Law of the
Sea 1982
• The exclusive economic zone (EEZ)
The most extensive transformation of
the law of the sea in past 500 years
Transfer of property rights from
international community to coastal
States
EEZ – an inheritance
“Under the new regime of the seas,
the world community has
WILLED to the coastal States the
bulk of living resources in waters
off their shores.”
Coastal State Rights in the EEZ
• Promotion of optimum
utilization of resources
• Preferential access to the
resources
• Power to enforce fisheries laws
and regulations
Responsibilities in the EEZ
• Effective conservation and
management framework
• Maintaining or restoring
populations of dependent and
associated species
• Data collection and exchange
• International and regional
cooperation to manage and
conserve
Impact of the EEZ Regime
• Rights without Responsibilities
“Gold mine mentality”
 No conservation measures
 No TAC determination
 Indiscriminate
allocation/licensing of foreign
vessels
Impact of EEZ Regime
• Management Problems
Lack of compatibility of measures
 EEZ/EEZ
 EEZs/high seas
 Regional and international
management frameworks
Lack of capacity to manage
DWFNs counter-responses
UN Fish Stock/Compliance Agreement
Common Themes
• Control activities of
nationals through proper
authorization
 Flag State Responsibility
• International, regional
and sub-regional
cooperation
 Conservation
 Data collection and
exchange
 enforcement/surveillance
 Vessel monitoring
systems
• Control of non-parties
• Port State enforcement
• Multilateral trade
sanctions
• Implementation of
international obligations
• Limited recognition of
ecosystem approaches
management
 Marine biodiversity
generally
 High seas biodiversity
Impact of UN Fish
Stocks/Compliance Agreement
• Right Direction
•BUT
Lack of widespread ratification
Lack of implementation
Soft Law” Instruments
• Action Plans
• Strategies
• Declarations
• Codes of Conduct
 FAO Code of Conduct
for Responsible
Fisheries 1995
• Guidelines
• Plans of Action
(1999-2001)
 Management of sharks
 Reducing Incidental
catch of Seabirds in
Longline Fisheries
 Management of Fishing
Capacity
 Prevent, Deter and
Eliminate IUU Fishing
• Resolutions of the
UNGA, or of
international
fisheries bodies
Impact of “soft law” instruments
• POSITIVE
Policy framework to implement
binding instruments
 the development of concepts
and principles e.g the
precautionary approach
 testing grounds for new ideas,
or adaptations of old ideas to
new areas

Impact of “soft law” instruments
• NEGATIVE
 easy to include text in such
documents in the knowledge that
they will not have to be implemented.
 shifting from the language of
‘should’ to ‘shall’ to avoid legal
obligation to implement
International Marine
Environmental Treaties
• Biodiversity Convention
• CITES
• World Heritage Convention
• Ramsar Convention
• Bonn Convention
• MARPOL
Impact of Environmental Instruments
• Marginalized
• No effective framework for
coordination between “fisheries”
and “environmental” sectors at
National level
International level
The Way Forward
• Moratorium on new international
instruments
More than adequate international legal and
policy framework to address the problem
• Need for fresh thinking on
implementation strategies
Holistic approach
Synergy and linkages between and among
• Instruments
• Sectors
Capacity building
• especially for developing countries