factual background - university of virginiazonal approach resulting in two distinctions: resource...
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1896 1920 1987 2006
Conservation and Sustainable Use of Marine
Biological Resources: Some Reflections from
the Evolving Management Approaches
XUE Guifang (Julia)
Chair Professor, KoGuan Law School
Director
Center for Rule of Ocean Law Studies
Center for Polar and Deep Ocean Development
Shanghai Jiao Tong University
Factual background
World oceans: 72% of the Earth’s surface
EEZs: 30% of ocean space (under sovereign rights
and state jurisdiction)
• 90% of world fish catch
High Seas: 10% of world fish catch
• Over 40% reported catch from high seas in the 1990s
• Exclusive Flag State Jurisdiction
• Distant water fishing States counter responses to EEZ
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Management Phases and Approaches
Prior to 1958 conventions: Free fishing era
1958-1982 UNCLOS: creeping jurisdiction:
restricted fishing activities
Post UNCLOS responses: legislated control of
fishing related matters closing the legal loop holes
21st Ocean Century: fill in the management gaps with
a variety of international policy and legal
instruments, institutional arrangements and
processes relevant to fisheries management and
biodiversity conservations
Evolution of Legal Regimes
1958 High Seas Convention
• Freedom of Fishing on high seas
1958 Convention on Conservation of
Living Resources
• Flag State Regulation/responsibility
• Failure to ratify Convention
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Environmental Instruments
The Stockholm Declaration on the Human
Environment made at the Stockholm Conference in
1972
• ….the need for a common outlook and for common
principles to inspire and guide the peoples of the world in
the preservation and enhancement of the human
environment: 7 common outlooks + 26 principles.
Environmental Instruments Relevant to Fishing and
Its Impact on Marine Biological Diversity
The Dumping Convention and its Protocol (London
Convention 1972/1996)
Convention on Biological Diversity (CBD 1992)
Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES 1973)
Convention on the Conservation of Migratory
Species of Wild Animals (CMS 1979)
International Plan of Action for Reducing Incidental
Catch of Seabirds in Longline Fisheries (IPOA-
Seabirds 2000)
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Global Effort Addressing Environmental Issues
“Earth Summit” and the “Rio Declaration” 1992
“Rio+10” 2002 for 10th anniversary of Rio
Conference (World Summit on Sustainable
Development: WSSD)
Rio+20 (WSSD)
Shipping Instruments Relevant to fishing and its
Impact on Marine Biological Diversity
IMO regulatory framework and standards to promote
safety, security and environmental performance of
international shipping
The International Convention for the Prevention of
Pollution from Ships (MARPOL 1973/1983) and its
annexes
Revised Guidelines for Identification and
Designation of Particular Sensitive Sea Areas
(PSSAs) (IMO Assembly Resolution A. 982(24)),
2005
IMO Ship Identification Schemes (fishing vessels)
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United Nations Convention on the
Law of the Sea (UNCLOS 1982)A Constitution for the Ocean: The Most
Comprehensive Single Convention
Codification of customary int’l law.
Common heritage of mankind.
Extension of resource limits
• Exclusive Economic Zone
• Continental shelf.
• Archipelagic waters.
Progressive development by subsequent
instruments……
UNCLOS Framework
Comprehensive legal framework for ocean
governance
Establish basic rights and duties of states in
relations to all maritime activities
It is the most important instrument for regulating
fishing and conservation of marine biodiversity
within and beyond national jurisdiction
Post UNCLOS instruments make reference to its
provisions either explicitly or indirectly via dealing
with issues covered by its general provisions.
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UNCLOS Framework
Zonal Approach resulting in two distinctions: resource
under (sovereignty, sovereign rights) and high seas
Within areas of national jurisdiction
• Silent for conservation and management of marine living
resources in TS, Archipelagic waters
• Protection and conservation of marine environment and
marine living resource in EEZ
Protection and preservation of the marine environment
beyond national jurisdiction
• Jurisdiction and control of fishing vessels on the high seas
• Inclusion of power to prohibit or restrict fishing in certain
areas to protect rare or fragile ecosystems
UNCLOS Provisions
Freedom of Fishing on the high seas (Art. 87(1)(e)),
Subject to conditions: i.e.
• Art. 116: Treaty obligations
• Rights duties and interests of coastal States in Arts. 63 (2),
64 and 67
• Duty to adopt measures in respect of nationals (Art. 117)
• Duty to cooperate in taking measures in respect of nationals
to conserve (Art. 117)
Art. 118: Cooperation to conserve and manage
Art. 119: Conservation requirements:
• TAC
• MSY-best science available
• Dependent and associated species
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High Seas Fisheries Challenges
Vessel re-flagging to escape controls
Use of “flags of convenience” vessels
Unreliable data base
Marginal high seas fishing
Lack of sufficient cooperation among
States
Limitations of the UNCLOS Regime
Resource Pool Not Under Single Ownership
Zonal Approach: Artificial jurisdictional boundaries
Freedom of Fishing on the high seas
Failure to define scope of cooperation
• Failure to cooperate
Failure to regulate nationals
Failure to determine TAC
Compatibility of EEZ/High Seas fishing regimes
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Post UNCLOS Responses: International
Fisheries Agreements1992: Agenda 21: Chapter 17 (Ocean Chapter)
1993: FAO Compliance Agreement
1995: UNFSA
1995:Code of Conduct for Responsible Fisheries
IPOAs: 1999 IPOAs on Seabirds, Shark
Management, and Fisheries Overcapacity, 2001 on
IUU Fishing
New instruments to resolve practical aspects and
emerging issues: Flag State Guidelines 2008, Port
State Measures 2009, and UN Resolutions
Post UNCLOS Responses
Agenda 21 (1992)(Chapter 17): Sustainable
development and protection of the oceans
States to take effective action to deter re-
flagging of fishing vessels
States to convene international conference
with a view to promoting effective
implementation of the Law of the Sea
Convention
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Post UNCLOS Responses
Compliance Agreement 1993: Agreement to promote
compliance with international conservation and
management measures by fishing vessels on the high
seas
States to ensure that fishing vessels that fly their flags
do not undermine the effectiveness of international
conservation and management measures
Proper authorization procedures for fishing vessels on
the high seas
Proper marking and full details of operations
Post UNCLOS Responses
Compliance Agreement 1993
Not to authorize vessels unless sufficient links to
exercise flag State responsibilities effectively
Link authorization to fish with right to fly the flag
Enforcement procedures against vessels with
sanctions of “sufficient gravity”
Port State enforcement measures
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Post UNCLOS Responses
UN Fish Stocks Agreement 1995
Scope
• Applies to Straddling Fish stocks and highly migratory
fish stocks only
Requires cooperation among coastal States and
States whose national fish on the high seas to
cooperate by establishing Regional Fisheries
Management Organizations
Post UNCLOS Responses
UN Fish Stocks Agreement 1995
Applies essentially to management measures on the
high seas
Requires compatibility between high seas measures
and EEZ measures
Requires the application of the precautionary
principle both in areas under national jurisdiction
and on the high seas
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Post UNCLOS Responses
UN Fish Stocks Agreement 1995
Framework for International Cooperation (Art. 8)
• agree on specific conservation and management
measures intended to ensure the long-term
sustainability of the stocks;
• agree on participatory rights such as allocation of
allowable catch or levels of fishing effort;
• adopt and apply any generally recommended
international minimum standards for the responsible
conduct of fishing operations;
Post UNCLOS Responses
UN Fish Stocks Agreement 1995: Framework for
Cooperation
obtain and evaluate scientific advice, review the
status of the stocks and assess the impact of fishing
on non-target and associated or dependent species;
agree on standards for collection, reporting,
verification and exchange of data on fisheries for the
stocks;
compile and disseminate accurate and complete
statistical data to ensure that the best scientific
evidence is available;
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Post UNCLOS Responses
UN Fish Stocks Agreement 1995: Framework for
Cooperation
promote and conduct scientific assessment of the
stocks and relevant research and disseminate the
results of such research;
establish appropriate co-operative mechanisms for
effective monitoring, control, surveillance and
enforcement;
agree on means by which fishing interests of new
members of, or participants in, the organisation or
arrangement will be accommodated;
Post UNCLOS Responses
UN Fish Stocks Agreement 1995: Regulation of non-
Parties
Only States which are members of regional/sub-regional
organisations or arrangements or States which agree to
apply the conservation and management measures
instituted by the organisation or arrangement can have
access to the fisheries resources to which the measures
apply (Article 8(4)).
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Regulation of Non-Parties (cont)
Non-parties to sub-regional or regional fisheries
management organisations or arrangements are not to
authorise vessels flying their flags to engage in fishing
operations for relevant stocks subject to the
conservation and management measures imposed by
the organisation or arrangement (Article 17(2)).
Parties are to take measures consistent with
international law and the Agreement to deter activities
of vessels of third Parties which undermine the
effectiveness of sub-regional or regional conservation
and management measures (Article 17(4)).
Flag State Responsibilities (Art. 18)
Control of vessels on the high seas by mean of
fishing licences, authorisations or permits
Regulations to:
• apply terms and conditions to the licence,
• authorisation or permit; prohibit fishing on the high seas
by vessels not licensed or authorised;
require vessels fishing on the high seas to carry their
licence, authorisation or permit on board at all times;
• ensure that such vessels do not conduct unauthorised
fishing within areas under national jurisdiction of other
States;
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Flag State Responsibilities
Creation of a national record of fishing vessels
authorized to fish on the high seas
Requirements for marking of fishing vessels and
fishing gear to facilitate easy identification;
Recording and timely reporting of relevant fishing
statistics and information such as vessel position, catch
of target and non-target species, and fishing effort;
Catch verification through measures such as observer
programs, inspection schemes; monitoring, control and
surveillance of vessels, including the use of satellite
vessel monitoring; and
Regulation of transshipment on the high seas.
Post UNCLOS Responses
Agreement on Port State Measures to Prevent,
Deter and Eliminate Illegal, Unreported and
Unregulated Fishing, 2009
Marine biodiversity and biotechnology
UN Resolution
Development on biodiversity in areas beyond
national jurisdiction
BBNJ PrepComs: forthcoming 4th session
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The Problem: Concept Conflicts or
Business as Usual?Oceans Law & policy has been greatly enhanced to
control and enclose the open ocean for resources
exploitation and conservation purposes
Maritime activities have been restricted to the greatest extent;
Yet,
Enduring problems related to the usage of ocean space and resources have not been resolved to any satisfaction, and
More and more environmental problems are transnational in nature and are linked with issues of sustainable development
The Problem: Concept Conflicts or
Business as Usual?Fisheries resource were used to be regarded as
“inexhaustible.”
We know this is not true, but the demand has to be
met……
Big questions need to be asked:
• How far have we gone to exploit the natural resources our
planet has to offer?
• How much have the international laws and policies been
performing and functioning?
• Are we confident in keeping the present biodiversity and
pass them on to the future generations to come?
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Problems and Solutions
Challenges of domestic implementation of
international instruments
Global warming, sea level rise etc.
Precautionary approach: not too late?
Need or greed?
• Environmental and biodiversity damage: Individual Users
Have a Disincentive to Conserve
NATO vs. action?
• Global Commitment: Is another mega conference
necessary?
• Do we have enough international legal instruments?
Problems and Solutions
Beneath these issues with such a long process are
hidden complex State interests on
• Food security
• Economic development
• International trade
• Intrinsic ecological considerations
For sustainable resource and marine biodiversity:
• Effectiveness of the system
• The constraints affecting effectiveness
• National implementation choices
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Problems and Solutions
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?
• Collaboration and linkages between and among
• Instruments
• Sectors-National and International
• Capacity building
• especially for developing countries?
Thank you for your attention!