Pages: 13

No chapter abstract available.

Pages: 11

In 1954, the world’s population stood at 2.8 billion, increasing to 4.1 billion by 1974 and to 8.2 billion by 2024. 1 Over the past seven decades, the population has tripled, and projections suggest a sustained upward trajectory, with an anticipated 10 billion people by the year 2050. 2 The expansion of the world’s population means that food production must steadily increase to avoid widespread hunger and malnutrition. Yet, the challenges are numerous, most notably, climate change, overexploitation of living marine resources and diminishing arable land. Living marine resources play a key role in human food supply. This is illustrated by the fact that fish represents approximately 20% of the animal protein consumed worldwide. 3 While aquaculture has developed significantly during the last 30 years, reaching an annual worldwide production of approximately 90 million tonnes, in comparison to 20 million tonnes in 1995, capture fisheries production remains important, levelling approximately an annual 90 million tonnes production. 4 Capture fisheries production amounts to around 25% of the annual meat production levelling about 370 million tonnes. 5 The importance of seafood in the general human food chain exemplifies the necessity to ensure a comprehensive international legal framework, providing for sustainable conservation and management of all living marine resources.

Pages: 55

No chapter abstract available.

Pages: 17

This chapter uses the United Kingdom’s participation in the Indian Ocean Tuna Commission (IOTC) on behalf of the Chagos Archipelago, which is contested by Mauritius, as a case study to examine the issue of regional fisheries management organisations or arrangements (RFMOs) participation by former colonial powers on behalf of overseas territories subject to decolonisation claims by other RFMO members. The chapter first provides an overview of the international legal framework concerning participation in RFMOs. Next, it examines the legal status and pending decolonisation of the Chagos Archipelago. The remainder of this chapter analyses Mauritius’ challenge to the United Kingdom’s IOTC membership on behalf of the Chagos Archipelago within the IOTC’s legal and institutional framework.

Pages: 22

The phenomenon of overlapping geographical mandates of regional fisheries management organisations (RFMOs) must be viewed in light of the evolution of international law which has proceeded in a gradual manner with little attention to hierarchy. Overlaps in geographical mandates can lead to working at cross-purposes and even conflicts. For instance, in case of fishing in the area of overlap for the same target species or for different target species but using fishing techniques which impact on non-target species or benthic habitats for which at least one of the RFMOs has adopted conservation and management measures. This chapter examines current overlapping geographical mandates of RFMOs; the underlying reasons for these overlaps; and arrangements which have been developed to avoid conflicts, work at cross-purposes and ensure complementarity. These arrangements can be regarded as regime interactions aimed at addressing problems caused by the fragmentation of international (fisheries) law and polycentricity. Arrangements can be treaty-based or not and be focused on determining primacy or rather on cooperation and coordination. Special attention is devoted to the evolving geographical and species overlap between the North East Atlantic Fisheries Commission and the Joint Norwegian Russian Fisheries Commission.

Pages: 14

The principal objective of regional fisheries management organisations or arrangements (RFMOs) is to promote cooperation among States to ensure effective conservation and management of fisheries resources. Despite the establishment of over twenty RFMOs to manage some of the world’s fisheries, and the success of some RFMOs in improving the status of certain fish stocks, the percentage of stocks fished at biologically unsustainable levels has been increasing since 1974. Effective RFMO management is particularly important in this context. Different reasons explain the failure of some RFMOs to achieve their objectives. One reason is poor compliance by RFMO members of their obligations. RFMOs have progressively strengthened their mechanisms to monitor and support their members’ implementation of international commitments. However, the problem of non-compliance persists – at times with serious and continued violations. Why do RFMO members fail to comply fully with their obligations and why are RFMOs not effectively identifying and addressing non-compliance? What changes would address these difficulties? What are the obstacles faced by RFMOs in improving their members’ compliance? This chapter, based on the outcomes of three expert workshops and subsequent recommendations by specialists in RFMO compliance, seeks to answer these questions.

Pages: 52

No chapter abstract available.

Pages: 15

This chapter addresses the relations between dispute settlement mechanisms under UNCLOS and dispute settlement mechanisms embodied in existing regional fisheries management organisations or arrangements (RFMOs). The chapter highlights the need to determine which RFMOs can provide a means to compulsory jurisdiction through Part XV of UNCLOS. The chapter also explores whether the provisions of UNCLOS can be considered as part of the applicable law in disputes arising in RFMOs.

Pages: 18

This chapter analyses trends in dispute settlement within regional fisheries management organisations or arrangements (RFMO) to identify mechanisms available to parties to settle their disputes on high-seas fish stocks. The analysis covers diplomatic and legal mechanisms as well as innovative procedures which have evolved in RFMO treaties, such as dispute prevention tools and ad hoc technical panels. Besides the options for dispute settlement, the chapter also considers the challenges which arise in practice because of the multilateral and technical nature of high seas fisheries disputes. The chapter notably discusses the question of standing in relation to erga omnes obligations and the means through which multiple actors with an interest in the dispute can participate in arbitration or adjudication under RFMO treaties.

Pages: 17

This chapter examines the objection procedure in the South Pacific Regional Fisheries Management Organisation (SPRFMO). In the ten years of the SPRFMO’s existence, its objection mechanism has been triggered three times in respect of allocation decisions in the jack mackerel fishery: in 2013 by Russia, in 2018 by Ecuador, and again by Russia in 2023. After offering a brief context to the objection mechanism structure and summary of the three cases, the chapter discusses the Review Panel’s recommendations, assessing whether they resolved the short- and long-term allocation conflicts among SPRFMO members.

Pages: 46

No chapter abstract available.

Pages: 22

Regional fisheries management organisations or arrangements (RFMOs) play an increasingly important role in international fisheries governance. They have multiplied in number, their normative output has increased, and several Memoranda of Understanding now regulate RFMO cooperation in areas of mutual interest. One such area is the exchange of information over so-called illegal, unreported, and unregulated (IUU) fishing activities; including the exchange of IUU vessel listings and related data (cross-listing). This chapter analyses current practices of RFMOs in this regard against the backdrop of the duty to cooperate. The duty to cooperate is fundamental to international environmental law and has been given specific meaning in the context of cooperation through RFMOs. However, little attention has been paid thus far to possible cooperation obligations of RFMOs themselves. This chapter explores the international legal personality of RFMOs and, consequently, the international law obligations that bind them. It asks whether international law confers on RFMOs a general duty to cooperate with other RFMOs over alleged IUU fishing and examines the procedural implications of this issue. Many RFMO constituent agreements reflect the need for cooperation over alleged IUU fishing. It arguably also emanates from customary international law. This chapter also briefly explores whether the practice of cross-listing should be part of RFMOs’ duty to cooperate, concluding that this is undesirable without additional safeguards.

Pages: 11

As the world’s largest archipelagic State, Indonesia is a major beneficiary of the United Nations Convention on the Law of the Sea (UNCLOS). The exclusive economic zone (EEZ) and archipelagic State regimes within UNCLOS have contributed to significantly expanding Indonesia’s control over marine living resources. This expansion has propelled Indonesia to the top of fisheries production in Southeast Asia. However, the country has struggled to combat illegal, unreported, and unregulated fishing in its EEZ. This chapter discusses Indonesia’s practice in enforcing its national laws and regulations over living resources in its EEZ, while also addressing its law enforcement practice in undelimited areas.

Pages: 11

This chapter focuses on the practice of transshipment. Transshipment is the direct transfer of fish from one vessel to another at sea or in port and is a crucial part of fishing operations worldwide. Although transshipment enables harvesting vessels to stay at sea for longer periods of time, it also facilitates illegal, unregulated, and unreported (IIU) fishing and related activities which undermine the implementation of monitoring, control, and surveillance measures to combat IUU fishing. States have developed various measures to monitor and control transshipment, including through regional fisheries management organisations or arrangements. These measures have evolved and are now integrated into broader monitoring schemes. The United Nations Food and Agriculture Organization recently adopted voluntary guidelines for the control of transshipment. The chapter highlights the impact of transshipment on IUU fishing and related issues and reviews the current measures and guidelines in place to monitor and control transshipment.

Pages: 76

No chapter abstract available.

Pages: 9

This chapter examines Article 297(3)(a) of UNCLOS relating to fisheries disputes. Article 297(3)(a) provides that disputes related to the interpretation or application of the Convention with regard to fisheries are to be resolved through compulsory dispute settlement mechanisms. However, it adds a limitation that excludes disputes over a coastal State’s sovereign rights with respect to living resources in the exclusive economic zone. The scope of this limitation is contested. The chapter examines the scope of the limitation by looking, first, at the relevant treaty terms, then, by looking at five cases addressing Article 297(3)(a), and, finally, concludes by identifying two more general questions concerning it.

Pages: 13

This chapter examines the operation and possible application of compulsory conciliation procedures under UNCLOS. The scope of compulsory conciliation may include disputes over sovereign rights with respect to fisheries. However, conciliation only plays a marginal role in the system of dispute settlement under UNCLOS because of its inherent nature as an amicable procedure and because of its articulation with adjudication.

Pages: 11

An issue which may arise in the dispute settlement system under the United Nations Convention on the Law of the Sea (UNCLOS) is whether international disputes over fish stocks straddling the exclusive economic zone (EEZ) and the high seas are subject to the compulsory procedures set out in UNCLOS. Fish stocks which straddle the EEZ and the high seas can create more intractable fisheries disputes. This jurisdictional issue is therefore particularly important. UNCLOS or the Fish Stocks Agreement did not resolve the ambiguity as to the applicability of the compulsory dispute settlement procedures to straddling fish stocks disputes. No definitive conclusion can be drawn from the text of UNCLOS or supplementary means of interpretation, including the travaux préparatoires. Against that background, this chapter examines the jurisdiction of adjudicative bodies acting under Part XV of UNCLOS with regard to disputes on straddling fish stocks from three viewpoints: the consent of States, the effective settlement of international disputes, and safeguarding common interests of the international community or community interests.

Pages: 18

This chapter outlines the substantive and procedural scope of Article 63(1) of UNCLOS. It also examines challenges to its implementation in relation to disputes on the conservation and management of shared fishery resources in the exclusive economic zone (EEZ). Article 63(1) enshrines a general obligation on States sharing fishery resources, which migrate or are distributed between their respective EEZs, ‘to seek to agree’ on a joint conservation and management arrangement. This obligation is one of conduct, not an obligation to agree on any arrangement. Nevertheless, it is not a mere aspiration. It encompasses specific due diligence obligations including, first, exchanging information and consulting with affected States, and second, negotiating meaningfully and in good faith with a view to arriving at a cooperative agreement. Failure to comply with Article 63(1) may be scrutinised by a court or tribunal under Part XV, Section 2, of UNCLOS. However, proving a breach of a due diligence obligation under Article 63(1) will generally be difficult.

Pages: 23

Given that straddling stocks and highly migratory species of fish move with ease between the exclusive economic zones of coastal States and the high seas, the 1982 United Nations Convention on the Law of the Sea contains provisions that seek to promote cooperation among States for their conservation and management. These provisions were developed in the 1995 Fish Stocks Agreement, notably in Article 7(2), which provides that [c]onservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety (emphasis added). This chapter considers the legal framework within which this ‘compatibility requirement’ rests and identifies several ambiguities of that requirement which may be impeding international cooperation. To promote greater cooperation, this chapter considers whether a regional fisheries management organisation or arrangement should request an advisory opinion from the International Tribunal for the Law of the Sea on the nature and scope of the compatibility requirement.

Pages: 62

No chapter abstract available.

Pages: 18

This chapter explores the divergent views on the appropriate role of public international law in World Trade Organization (WTO) dispute settlement and examines how public international law has informed rulings of WTO adjudicative bodies in trade-related disputes, including those involving living marine resources. It also examines the role of public international law in addressing fisheries management and conservation issues in WTO disputes. The chapter concludes with reflections on the future role of public international law in WTO dispute settlement.

Pages: 11

The WTO Agreement on Fisheries Subsidies, adopted by WTO Members at the WTO’s 12th Ministerial Conference in June 2022, represents a major step forward for ocean sustainability by prohibiting various forms of harmful fisheries subsidies. The Agreement is highly relevant to the topic of new international instruments, mechanisms and actors in tackling illegal, unreported and unregulated (‘IUU’) fishing, as it contains certain provisions specifically on IUU fishing and subsidies to IUU fishing. Affirmative findings of IUU fishing in respect of vessels or operators by coastal WTO Members, flag state WTO Members, and RFMOs/RFMAs, will create an obligation on Members to stop subsidization to such vessels or operators. The Agreement also will require new transparency in respect of the IUU findings as well as the measures taken to halt subsidies to the implicated actors. The Agreement makes clear that it does not change existing international instruments aimed at combatting IUU fishing. Instead, it is complementary to those other instruments by adding a new tool in the fight against this harmful practice. For the Agreement to enter into force, two-thirds of the WTO’s 164 Members must deposit an instrument of acceptance with the WTO Secretariat. As of the date of finalisation of this chapter, 52 WTO Members had deposited their instruments, almost half of what is needed for entry into force. It is hoped that the remaining Members will accelerate their domestic acceptance processes so that the Agreement can enter into force as soon as possible.

Pages: 20

International trade rules, such as those of the World Trade Organization (WTO), primarily focus on establishing disciplines on measures affecting trade to pursue economic goals. At the same time, trade rules carve out regulatory space to allow governments to pursue other policy objectives. This chapter explores the balance struck between these two objectives, using as a case study trade in marine resource products, which has been associated with numerous disputes in the WTO. Recently, WTO members have also concluded new disciplines on fisheries subsidies. The chapter examines how adjudicators and negotiators have applied rules quite strictly to measures pursuing exclusively economic objectives. Conversely, they have sought to carve out degrees of policy space for health-protection measures, environmental measures, and measures found to be based on ‘moral’ considerations. The chapter concludes by discussing several implications of this continuum in the relative rigour through which trade rules are applied. While there is merit in ensuring that policy space exists, variable application impacts on the security and predictability of trade rules. Variable application also creates choices for policymakers and litigants on how to structure, defend, or challenge measures.

Pages: 11

This chapter examines the United States’ implementation of the import provisions in the U.S. Marine Mammal Protection Act (MMPA). The United States government is re-structuring the obligations placed on all fisheries exporting to the United States, requiring them to demonstrate a threshold level of protection of marine mammals set by the United States. In so doing, U.S. regulators have sought to manage the conditions of entry to respond to both environmental and animal advocates, as well as to business and foreign trading partners. The debate surrounding the MMPA’s Import Rule is a good example of the regulatory struggle faced by governments as they seek to achieve different important public policy aims and to meet their respective international commitments, when these aims and commitments appear at cross-purposes.

Pages: 33

No chapter abstract available.

Pages: 17

The negotiations leading up to the adoption of the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement) have highlighted a range of views on the interface between this agreement and regional fisheries management organisations or arrangements (RFMOs). A prevalent aspect stressed in the United Nations General Assembly resolutions leading to the negotiations was that these negotiations should not undermine existing legal instruments, frameworks, and relevant regional and sectoral bodies. Despite negotiators widely supporting this concept during the negotiations, what this entails in practice is not clear or uniform. This chapter discusses the concept that the BBNJ Agreement should not undermine RFMOs’ mandates regarding area-based management tools. It focuses on marine protected areas and other effective area-based conservation measures (OECMs). OECMs are a relatively new concept established in the United Nations Convention on Biological Diversity and which has started to receive attention from RFMOs. This chapter considers the potential role of the BBNJ Agreement in facilitating cross-sectoral cooperation to ensure that OECMs identified by RFMOs can deliver biodiversity conservation outcomes.

Pages: 14

This chapter focuses on the changes which may be brought to the operation of regional fisheries management organisations or arrangements (RFMOs) by the entry into force of the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement). It first reviews the relevant provisions of the BBNJ Agreement on the relationship between the Agreement and relevant instruments, frameworks, and bodies (IFBs), including RFMOs. It then identifies and discusses the mechanisms through which the BBNJ Agreement seeks to provide a more coherent system of governance in areas beyond national jurisdiction (ABNJ): by creating a platform for interaction with and among IFBs; issuing recommendations on appropriate measures; and influencing parties’ behaviour within IFBs by obliging them to promote the adoption of measures in IFBs so as to support the implementation of the decisions and recommendations adopted by the Conference of the Parties (COP) to the BBNJ Agreement. The chapter concludes by observing that the BBNJ Agreement reflects a balanced approach which could fill gaps and create a strong pull towards a coherent system for the governance of ABNJ without undermining relevant IFBs. While RFMOs will continue to play their roles in managing high seas fisheries resources, they will be invited and expected to interact with the new legal framework of the BBNJ Agreement. RFMOs’ performance could come under increased scrutiny in relation to possible recommendations over ABMTs, including marine protected areas, or guidelines and/or standards on environmental impact assessments adopted by the BBNJ Agreement’s COP.

Pages: 30

No chapter abstract available.

Pages: 14

International fisheries law, in its current construction, operates based on several foundational principles which have created corresponding collective regime-based narratives. This chapter examines three of these narratives and their foundational principles. These are the principle of maximum sustainable yield, the zonal approach to resource allocation, and the centrality of single-species assessments. Each continues to play a key role in international fisheries law, despite efforts to modernise their application. The Anthropocene concept, while often contested, challenges the continued relevance of these narratives. According to this concept, the world has left the relatively stable Holocene geological era and has entered an era where human activities are the major driver of planetary change. These human-induced global changes impact the world’s oceans, which are particularly vulnerable to a number of these stressors. The impacts of climate change, through ocean warming, acidification, and sea-level rise, as well as other threats to marine biodiversity, such as overfishing, shipping, and pollution, put marine ecosystems under increasing pressure. This chapter looks at each of the narratives outlined previously in turn. It highlights that foundational narratives underpinning international fisheries law will need to be rethought in the context of the emerging conditions of the Anthropocene Ocean.

Pages: 14

This chapter demonstrates that international fisheries law does not need a radical transformation to cope with the consequences for management of shared and straddling stocks when they redistribute themselves across international boundaries in response to either anthropogenic global warming or pre-existing climatic cycles advancing from one phase to the next. Rather, these phenomena reinforce the need for States and the regional fisheries management organisations through which they cooperate to make their allocative regimes more responsive to such changes through pre-agreed mechanisms that avoid assuming that the stock concerned will not move, or will move in one direction only – something that is easier when it is uncertain which States will gain and which will lose in relation to individual stocks, even if the aggregate trend is predictable and so too the rise in frequency of sudden shifts. Reopening of settled exclusive economic zone boundaries is not the answer; transferability of quotas may be but would require a sounder basis for rights claimed to derive from participation in high seas fisheries than currently exists.