International Ocean Law

JurisdictionMarine Pollution

International Fishing

Fisheries

The Problem

• Too many boats/people• Not enough fish– Fish populations are crashing– Fishermen are losing money

Fisheries – The Legal Regime

• Overarching concepts– Exploitation must be conducted on “rational basis” =

with conscious, reasonable objectives, taking account of scientific advice

– Species must be regulated as a biological unit – i.e., within its whole range

– All ecological factors that affect conservation of species and habitat must be considered

– But must also use the species• Translating these into laws is difficult!!

Fisheries – The Legal Regime

• UNCLOS - overview– Territorial sea = coastal state has exclusive

sovereignty to regulate fisheries– EEZ = coastal state retains exclusive rights to

explore, exploit, and manage living marine resources• Subject to responsibility to manage and conserve the

living marine resources• Subject to utilization requirement

Fisheries – The Legal Regime

• Categories of fish– Straddling stocks – EEZ + high seas– Highly migratory species – many EEZs + high seas– “local” stocks – stay within a state’s EEZ or

territorial seas

Fisheries – The Legal Regime - Overview

• UNCLOS Articles• Straddling Stocks Treaty (Fish Stocks Treaty)• Equipment Regulation• Other Options?

UNCLOS

• UNCLOS Articles– EEZ rights– Conservation of living resources– Utilization of living resources– Straddling stocks– Highly migratory species– Freedom of high seas– Right to fish on high seas– Duty of states to conserve on high seas– Cooperation + conservation on high seas

UNCLOS: EEZ

• EEZ rights (Art. 56)– Coastal states have sovereign rights for exploring,

exploiting, conserving, and managing natural resources

– Coastal state shall have “due regard” to rights and duties of other states

EEZ

UNCLOS - EEZ

• Conservation of living resources (Art. 61)– Coastal state shall determine the allowable catch

of the living resources in its EEZ– Coastal state shall, taking into account best

scientific evidence, ensure proper conservation and management to avoid over-exploitation• Should cooperate with other governments and

organizations

UNCLOS - EEZ

• Conservation of living resources (Art. 61 cont.)– Coastal states shall maintain or restore

populations to maximum sustainable yield• As qualified by relevant environmental/economic

factors• Including economic needs of coastal fishing

communities• Taking into account interdependence of stocks and

generally recommended standards

UNCLOS - EEZ

• Utilization of living resources (Art. 62)– Coastal states shall promote optimum utilization

of living resources– Shall determine capacity to harvest living

resources• If coastal state does not have the capacity to harvest

the entire allowable catch, shall give other states access to the surplus of the allowable catch• Other states and their citizens must comply with

coastal state laws when harvesting in another EEZ

UNCLOS - EEZ

• Tension between conservation and utilization?• Art. 61: shall set total allowable catch at maximum

sustainable yield• Art. 62: shall promote optimum utilization of living

resources

UNCLOS - EEZ

• Tension between conservation and utilization?• What is maximum sustainable yield?• = the population of fish capable of reproducing at the

most sustainable rate– Based on many factors, including environment’s ability to

support– Too few adults = not enough to reproduce successfully– Too many adults = not enough resources to support more fish

Maximum Sustainable Yield

UNCLOS - EEZ

• Tension between conservation and utilization?• What is maximum sustainable yield?• = the population of fish capable of reproducing at the

most sustainable rate– MSY is not a magic number – it’s a range• UNCLOS directs harvest rate to be set based on MSY +

economic and social concerns

UNCLOS - EEZ

• Tension between conservation and utilization?• What is “optimum utilization”?• Harvesting of fish at levels to allow economic growth• Fish should not just be left in the sea

UNCLOS - EEZ

• Tension between conservation and utilization?• Challenges• Setting maximum sustainable yield is very difficult• Difficult to know how many fish are actually in the sea

– Scientists rely on fishermen to report» Incentive to report large catch because it gives the

appearance that populations are healthy• Utilization mandate discourages “unnecessary”

conservation

UNCLOS – High Seas

• Freedom of high seas (Art. 87)– High seas are open to all States, whether coastal

or land-locked– Freedom of high seas =• Freedom of navigation• Freedom of fishing, subject to

– Need to exercise “due regard” for interests of other States and rights under the convention

UNCLOS – High Seas

• Right to fish on high seas (Art. 116)– Subject to• Treaty obligations• Rights and duties and interests of coastal states

UNCLOS – High Seas

• Duty of states to conserve on high seas (Art. 117)– All states have a duty to take measures for their

nationals as may be necessary for conservation of living resources

UNCLOS – High Seas

• Cooperation + conservation on high seas (Art. 118)– All shall cooperate in the conservation of living

resources

UNCLOS – High Seas

• Conservation of living resources on high seas (Art. 119)– In determining allowable catch• Take measures to produce maximum sustainable yield,

as qualified by environmental and economic factors• Consider effects on harvests and associate species to

avoid harvesting at levels where reproduction may be seriously threatened.

UNCLOS – High Seas

• Same challenges on high seas, but science is even less clear• What are the fish populations?• What is MSY?• How do scientists know when the harvest has

exceeded MSY?• The politics are even more challenging– High seas provide landlocked states access to fish

– may be their only access

UNCLOS – Straddling and Highly Migratory Stocks

• Straddling stocks (Art. 63)– Where the same stock/stocks of associated

species occur within EEZ of 2 or more coastal states, States shall work to manage stocks cooperatively

EEZ #1 EEZ #2

UNCLOS – Straddling and Highly Migratory Stocks

• Straddling stocks (Art. 63)– Where the same stock/stocks of associated species

occur both within EEZ and another adjacent area, the coastal State and other States fishing for the stocks in the adjacent area of 2 or more coastal states, States shall, through subregional and regional organizations, agree on measures necessary for the conservation

EEZ #1 EEZ #2

High Seas

UNCLOS – Straddling and Highly Migratory Stocks

• Highly migratory species (Art. 64)– Coastal state and other states whose nationals fish

for highly migratory species shall cooperate through international organizations to ensure conservation and optimum utilization of the species throughout the region

EEZ #1

High Seas

EEZ #2

Before the Fish Stocks Treaty

• Regional Management Organizations– Would set total allowable catch + quota for each

State– Quotas were not binding, however – States could

unilaterally establish different ones– If State were to fish in high seas, right outside of

EEZ, unclear enforcement authority

Straddling Stocks/Highly Migratory Fish – Fish Stocks Treaty

• Regional Fishery Management Organizations (RFMOs)– Will decide how to manage– Total Allowable Catch + quotas for each country– If a state does not become a member of an RFMO

or does not comply with the RFMO’s regulations, no access to fishery’s resources• Limits freedom of the high seas – for the first time

RFMOs

Tuna RFMOs

Fish Stocks Treaty

• RFMOs– Who can join?• States with real interest in the fisheries• Essentially means that states that were already

participating in the fishery before the creation of the RFMO may join

– If new members want to join, members is based on needs of coastal state, existing level of fishing, and new member contributions to conservation• Not guaranteed entry

Fish Stocks Treaty

• Enforcement– Before Fish Stock Treaty, up to flag state to enforce– Under Straddling Stocks, members can investigate

and even seize vessels fishing illegally• Not only up to flag states• May also detain vessels until flag state investigates

Fish Stocks Treaty

• Enforcement– Member states subject to inspection and boarding by

other member states• If they find a violation, flag state must order vessel to

submit to investigation and suspend authorization to fish if vessel does not comply• If they find a serious violation (use of prohibited gear or

violation of a quota), member state may detain another member state’s vessel

– Port states may inspect, prohibit landings, or prohibit transfer of catch

Status of species since Fish Stocks Treaty?

Status of species since Fish Stocks Treaty?

• Why?– Regulating at MSY, but setting the allowable yield

at the higher limits within MSY

Status of species since Fish Stocks Treaty?

• Why?– RFMOs = Member states– Self-regulation – quotas • Unhappiness with quotas leads RFMOs to increase TAC,

rather than reduce every State’s quota

Status of species since Fish Stocks Treaty?

• Why?– Fish stocks – often predicted based on what

fishermen report as the catch = incentive to overstate catch• Fishermen are afraid of having entire fishery closed

down

Status of species since Fish Stocks Treaty?

• Solutions?– Reduce fleets through “buyout” programs• = pay fishermen to sell their boats and stop fishing

– Gear limitations and bans• E.g. bans on purse seine nets and other equipment

– Aquaculture

Driftnets: Wellington Convention

• Bans use of driftnets outside of coastal areas within the South Pacific area covered by the convention