RECENT DEVELOPMENTS RECENT DEVELOPMENTS IN OCEAN LAW AND IN OCEAN LAW AND

POLICYPOLICY

ABA ANNUAL MEETINGABA ANNUAL MEETINGSAN FRANCISCOSAN FRANCISCOAugust 11, 2007August 11, 2007

INTERNATIONAL LAW OFFICES OF SAN DIEGOINTERNATIONAL LAW OFFICES OF SAN DIEGOPETER H. FLOURNOYPETER H. FLOURNOY

www.international-law-offices.comwww.international-law-offices.com

LANGUAGELANGUAGE

• FISHERIESFISHERIES – ANADROMOUS, CATADROMOUS, – ANADROMOUS, CATADROMOUS, PELAGIC, GROUNDFISH, COASTAL PELAGIC, PELAGIC, GROUNDFISH, COASTAL PELAGIC, HIGHLY MIGRATORY SPECIES, STRADDLING HIGHLY MIGRATORY SPECIES, STRADDLING STOCKS, REEF FISH, INVERTEBRATESSTOCKS, REEF FISH, INVERTEBRATES

• GEAR TYPESGEAR TYPES – TRAWL, PURSE SEINE, LONG – TRAWL, PURSE SEINE, LONG LINE, POLE AND LINE (HOOK AND LINE), LINE, POLE AND LINE (HOOK AND LINE), TROLL, DRIFT NET, FISH TRAP, CYANIDE, TROLL, DRIFT NET, FISH TRAP, CYANIDE, DYNAMITE DYNAMITE

• ORGANIZATIONSORGANIZATIONS – COUNCILS, RFMOs – COUNCILS, RFMOs

FISHERY MANAGEMENT FISHERY MANAGEMENT COUNCILSCOUNCILS

Magnuson- Stevens Conservation and Magnuson- Stevens Conservation and Management Act of 1976, as Management Act of 1976, as amended through December of 2006.amended through December of 2006.– 8 Fishery Management Councils8 Fishery Management Councils

• New England, Mid-Atlantic, South Atlantic, Caribbean, New England, Mid-Atlantic, South Atlantic, Caribbean, Gulf, Pacific, North Pacific, Western PacificGulf, Pacific, North Pacific, Western Pacific

• Council MembersCouncil Members – Federal, State, Tribal, Public – Federal, State, Tribal, Public

• Advisory PanelsAdvisory Panels – often by species/gear type – often by species/gear type

• Scientific and Statistical CommitteeScientific and Statistical Committee

• FMPsFMPs – Fishery Management Plans – Fishery Management Plans

FISHERY MANAGEMENT FISHERY MANAGEMENT COUNCILSCOUNCILS

• Types of Fisheries “managed” Types of Fisheries “managed” – AnadromousAnadromous – Salmon – bilateral and – Salmon – bilateral and

multilateral multilateral – Coastal PelagicCoastal Pelagic – Squid – unilateral and – Squid – unilateral and

access agreements GIFAsaccess agreements GIFAs– ““Shared” or Straddling StocksShared” or Straddling Stocks – –

Pacific Whiting – bilateral, Halibut -- Pacific Whiting – bilateral, Halibut -- multilateralmultilateral

– Highly Migratory SpeciesHighly Migratory Species – Tuna and – Tuna and Swordfish - multilateralSwordfish - multilateral

CONFLICTS BETWEEN CONFLICTS BETWEEN COUNCILS, MAGNUSON ACT COUNCILS, MAGNUSON ACT REQUIREMENTS, AND RFMOsREQUIREMENTS, AND RFMOs• History of HMS Jurisdiction and Magnuson History of HMS Jurisdiction and Magnuson

Act RequirementsAct Requirements– When MSAct passed in 1976 to set up the When MSAct passed in 1976 to set up the

equivalent of EEZs U.S. did not recognize any equivalent of EEZs U.S. did not recognize any country’s jurisdiction over HMS in their zonescountry’s jurisdiction over HMS in their zones

– Provision for State Department slot on Councils Provision for State Department slot on Councils was to advise on GIFAswas to advise on GIFAs

– 1992 Recognition of Other Countries’ 1992 Recognition of Other Countries’ Jurisdiction With Critical Caveat that HMS Must Jurisdiction With Critical Caveat that HMS Must be Managed Multilaterally by RFMOsbe Managed Multilaterally by RFMOs

CONFLICTS BETWEEN CONFLICTS BETWEEN COUNCILS, MAGNUSON ACT COUNCILS, MAGNUSON ACT REQUIREMENTS, AND RFMOsREQUIREMENTS, AND RFMOs• Amendment to Sections 303(a) and Amendment to Sections 303(a) and

302(h) requiring Councils to Set 302(h) requiring Councils to Set ““annual catch limitsannual catch limits” for all species ” for all species included in their FMPs including HMSincluded in their FMPs including HMS

• NOAA-NMFS Guidance States NOAA-NMFS Guidance States Discards and “all” fishing mortality Discards and “all” fishing mortality Including Rec and Sport must Be Including Rec and Sport must Be included – Lack of Dataincluded – Lack of Data

CONFLICTS BETWEEN CONFLICTS BETWEEN COUNCILS, MAGNUSON ACT COUNCILS, MAGNUSON ACT REQUIREMENTS, AND RFMOsREQUIREMENTS, AND RFMOs• ““overfishing occurring”overfishing occurring”• ““overfished”overfished”• Prior Interpretation – Council Had to Do an Prior Interpretation – Council Had to Do an

Amendment to the FMP – 2 year processAmendment to the FMP – 2 year process• Current Interpretation After Amendment to Current Interpretation After Amendment to

Section 304 by adding 304 (i) (or (j)) is “ Section 304 by adding 304 (i) (or (j)) is “ develop recommendations for domestic develop recommendations for domestic regulations to address the relative impact regulations to address the relative impact of fishing vessels of the US on the stock” of fishing vessels of the US on the stock”

REGIONAL FISHERIES REGIONAL FISHERIES MANAGEMENT MANAGEMENT ORGANIZATIONSORGANIZATIONS• North Pacific Anadromous Fish North Pacific Anadromous Fish

CommissionCommission

• International Pacific Halibut International Pacific Halibut Commission Commission

• Antarctic Living Marine ResourcesAntarctic Living Marine Resources

• Tuna (HMS) RFMOsTuna (HMS) RFMOs

TUNA (HMS) RFMOsTUNA (HMS) RFMOs

• IATTC -Inter-American Tropical Tuna IATTC -Inter-American Tropical Tuna CommissionCommission

• IOTC – Indian Ocean Tuna CommissionIOTC – Indian Ocean Tuna Commission• ICCAT – International Commission for the ICCAT – International Commission for the

Conservation of Atlantic TunasConservation of Atlantic Tunas• WCPFC – Western and Central Pacific WCPFC – Western and Central Pacific

Fisheries CommissionFisheries Commission• CCSBT – Commission for the Conservation CCSBT – Commission for the Conservation

of Southern Blue fin Tunaof Southern Blue fin Tuna

KOBE, JAPAN KOBE, JAPAN January 22-26, 2007 January 22-26, 2007• Share and Co-ordinate Data And Stock AssessmentsShare and Co-ordinate Data And Stock Assessments• Work Collectively to End IUU (Illegal, Unregulated, Work Collectively to End IUU (Illegal, Unregulated,

Unreported) Fishing Unreported) Fishing • Develop Procedures for Allocating Fishing Opportunities Develop Procedures for Allocating Fishing Opportunities • Capacity Controls Capacity Controls • Establish Decision Making Processes Establish Decision Making Processes • Promotion of  Compliance With RFMO ResolutionsPromotion of  Compliance With RFMO Resolutions• Development of Monitoring, Control, and Surveillance Development of Monitoring, Control, and Surveillance

(MCS) Measures (MCS) Measures • Monitor Catches from Vessels to Market Monitor Catches from Vessels to Market • RFMO Performance Review RFMO Performance Review • Ecosystem Approach to Fisheries Management Ecosystem Approach to Fisheries Management • Coordination of meetings Coordination of meetings

1982 U.N. LAW OF THE SEA 1982 U.N. LAW OF THE SEA CONVENTIONCONVENTION

• In Force Since November 16, 1994In Force Since November 16, 1994

• Ratified by 155 CountriesRatified by 155 Countries

• Not Ratified By the United StatesNot Ratified By the United States• Priority of Bush Administration Since The BeginningPriority of Bush Administration Since The Beginning

• Passed Unanimously By Senate Foreign Relations Passed Unanimously By Senate Foreign Relations Committee In 2006Committee In 2006

• Better Chance With Absence of Amb. KilpatrickBetter Chance With Absence of Amb. Kilpatrick

and Senator Helmsand Senator Helms

• Prognosis Not GoodPrognosis Not Good

U.N. HIGHLY MIGRATORY U.N. HIGHLY MIGRATORY SPECIES AND STRADDLING SPECIES AND STRADDLING FISH STOCKS AGREEMENTFISH STOCKS AGREEMENT• In Force Since 11 December 2001 In Force Since 11 December 2001

• Ratified by 67 Countries (UNCLOS – Ratified by 67 Countries (UNCLOS – 155)155)

• Ratified by United StatesRatified by United States

• Not Ratified by Japan, Korea, China Not Ratified by Japan, Korea, China

• July 2006 Review ConferenceJuly 2006 Review Conference

WESTERN AND CENTRAL WESTERN AND CENTRAL PACIFIC FISHERIES PACIFIC FISHERIES CONVENTIONCONVENTION• Enabling Legislation – Part of MS Act Enabling Legislation – Part of MS Act

AmendmentsAmendments• Five U.S. CommissionersFive U.S. Commissioners

– U.S. “industry”U.S. “industry”– WPFMCWPFMC– PFMCPFMC– Federal – PIRO DirectorFederal – PIRO Director– Public Interest = ENGO?Public Interest = ENGO?

WCPFCWCPFC– Advisory CommitteeAdvisory Committee

•Guam, American Samoa, Northern MarianasGuam, American Samoa, Northern Marianas

•Payment of out of pocket expensesPayment of out of pocket expenses

•Attendance at U.S. Commissioner’s Attendance at U.S. Commissioner’s MeetingsMeetings

•Attendance at Government to Government Attendance at Government to Government Meetings (?)Meetings (?)

•Administrative Procedures Act does not Administrative Procedures Act does not applyapply

ANTIGUA CONVENTION ANTIGUA CONVENTION (Update of IATTC)(Update of IATTC)• Ratified by U.S.Ratified by U.S.• Ratified by 8 CountriesRatified by 8 Countries

– Belize, Korea, El Salvador, France, Mexico, Belize, Korea, El Salvador, France, Mexico, Nicaragua, Panama, E.U.Nicaragua, Panama, E.U.

• Entry Into Force Likely by 2008Entry Into Force Likely by 2008• Implementing Legislation LanguishesImplementing Legislation Languishes• Current Members of IATTCCurrent Members of IATTC

– Costa Rica, France, Ecuador, El Salvador, Costa Rica, France, Ecuador, El Salvador, Guatemala, Japan, Korea, Mexico, Nicaragua, Guatemala, Japan, Korea, Mexico, Nicaragua, Panama, Peru, Spain, U.S., Venezuela, VanuatuPanama, Peru, Spain, U.S., Venezuela, Vanuatu

NEW AMENDMENT TO PUNISH NEW AMENDMENT TO PUNISH IUU FISHINGIUU FISHING

• Definition by NMFS – overly broadDefinition by NMFS – overly broad

• NMFS Guidance – check out the web-NMFS Guidance – check out the web-sitessites

• NMFS PresentationNMFS Presentation

• Recent Actions (Bud Walsh covered)Recent Actions (Bud Walsh covered)

INTERNATIONAL AGREEMENTS CONCERNING LIVING MARINERESOURCES OF INTEREST TO NOAA FISHERIES

• ATLANTIC OCEAN• International Convention for the Conservation of Atlantic

Tunas (Basic Instrument for the International• Commission for the Conservation of Atlantic Tunas --

ICCAT)• Convention for the Conservation of Salmon in the North

Atlantic Ocean (Basic Instrument for the North• Atlantic Salmon Conservation Organization -- NASCO)• Convention on Future Multilateral Cooperation in the

Northwest Atlantic Fisheries (Basic Instrument for• the Northwest Atlantic Fisheries Organization -- NAFO)

Cont.Cont.

• PACIFIC OCEAN• Agreement on the International Dolphin Conservation Program

(AIDCP)• Convention for the Establishment of an Inter-American Tropical

Tuna Commission (IATTC) • Convention for the Preservation of the Halibut Fishery of the

Northern Pacific Ocean and Bering Sea (Basic• Instrument for the International Pacific Halibut Commission --

IPHC) • Convention for the Conservation of Anadromous Stocks in the

North Pacific Ocean (Basic Instrument for• the North Pacific Anadromous Fish Commission – NPAFC) • Treaty Between the Government of the United States of America

and the Government of Canada• Concerning Pacific Salmon (Basic Instrument for the Pacific

Salmon Commission – PSC)

PACIFIC (CONT.)PACIFIC (CONT.)

• Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea

• Treaty Between the Government of the United States of America and the Government of Canada on Pacific

• Coast Albacore Tuna Vessels and Port Privileges• Treaty on Fisheries Between the Governments of Certain

Pacific Island States and the Government of the• United States of America (South Pacific Tuna Treaty -- SPTT)• Multilateral High-level Conference on the Conservation and

Management of Highly Migratory Fish Stocks• in the Western and Central Pacific (Western and Central

Pacific Fisheries Convention-WCPFC)

SOUTHERN OCEAN

•Convention for the Conservation of Antarctic Marine Living Resources (Basic Instrument for the

•Commission for the Conservation of Antarctic Marine Living Resources – CCAMLR)

•Convention for the Conservation of Antarctic Seals (CCAS)

AND AND ………………………………………………………………• WESTERN HEMISPHERE• Inter-American Convention (IAC) for the Protection and

Conservation of Sea Turtles• GREAT LAKES• Convention on Great Lakes Fisheries Between the United

States and Canada (Basic Instrument for the• Great Lakes Fishery Commission – GLFC)• GLOBAL• Agreement on the Conservation of Albatrosses and Petrels

(ACAP)• Convention on Biological Diversity (CBD) • Convention on International Trade in Endangered Species of

Wild Fauna and Flora (CITES)• International Whaling Commission (IWC)

USEFUL WEBSITESUSEFUL WEBSITES

• U.S. Mission to the U.N. http://www.usunnewyork.usmission.gov/index.htm

• National Marine Fisheries Service http://www.nmfs.noaa.gov/

• State Department Telephone Directory http://www.foia.state.gov/alphalisting

• NOAA-NMFS Magnuson Act Amendments http://wwwnmfs.noaa.gov/msa2007/

• U.S. Commission on Ocean Policy http://www.oceancommission.gov/

• NOAA Office of International Affairs http://www.nmfs.noaa.gov/ia/index.htm

QUESTIONS ?QUESTIONS ?

• What happened to 90% of the big What happened to 90% of the big fish?fish?

• Are we, or sharks, at the top of the Are we, or sharks, at the top of the food chain?food chain?

• Why is NMFS worse than the IRS?Why is NMFS worse than the IRS?

• Where have all the sea turtles gone?Where have all the sea turtles gone?