Fisheries Management: The Current Legal and Normative Framework

Martin TsamenyiProfessor of Law & Director

The Australian National Centre for Ocean Resources & Security

(ANCORS)

University of Wollongong, Australia

Prepared for the UNEP-WWF Symposium on Disciplining Fisheries Subsidies: Incorporating Sustainability at the WTO & Beyond 1st – 2nd March 2007 Geneva, Switzerland

Presentation Summary

• Overview of the international legal and normative framework for fisheries management

• Examination of two key instruments– Law of the Sea Convention– Code of Conduct for Responsible Fisheries

• Summary of key principles underpinning the international legal framework for fisheries management

Legal & Normative Framework at a Glance

International Fisheries Law

Fisheries specificInstruments

International Environmental

InstrumentsOther Instruments

UN Fish StocksAgreement

UNGA Resolutions RFMOs

FAO ComplianceAgreement

Fisheries Specific Instruments

FAO Technical Guidelines

Law of the Sea Convention

IPOAs•Seabirds•Sharks

•Capacity•IUU

International Legal and Normative Framework

The Constitution of the OCEANS

• The most significant modification of the law of the sea in the past 500 years

• Transfer of property rights from international commons to state property regime

• Creation of the Exclusive Economic Zone concept

• Rights and Responsibilities

Rights [Art. 62]

• Promotion of the objective of optimum utilization– Conditioned by conservation obligations

• Determination of capacity to harvest allowable catch

• Allocation of surplus to foreigners– Subject to agreement

• Enforcing fisheries laws and regulations against foreigners– Subject to some safeguards

Fisheries Responsibilities [Arts.61, 63-67; arts 116-119]

• Conservation of the living resources

– Ensure that fisheries resources are not endangered through over-exploitation• Standard to be applied is the maximum sustainable yield (MSY), qualified

by relevant environmental and economic circumstances

– Determination of the allowable catch

– Protection of dependent and associated species

– Collection and exchange of scientific data

– Cooperation bilaterally and regionally to establish management measures for species that move between EEZ and high seas

– Cooperation to manage high seas fisheries

Code of Conduct for Responsible Fisheries

In 1995, against a background of growing risks to global fisheries

resource sustainability and

food security, FAO Member

States adopted the

Code of Conduct for Responsible

Fisheries

IPOA-Seabirds

IPOA-Sharks

IPOA-IUU

IPOA-Capacity

12 Technical Guidelines and

Supplements

Strategy for Improving Information on Status and Trends

Compliance Agreement

Scope of the Code of Conduct

Responsible Fisheries

Significance of the Code of Conduct

• Said to be a “Voluntary Instrument”

BUT….

• States general principles of conservation and management of fisheries resources found in binding instrument– Customary international law of fisheries

• To be interpreted and applied in accordance with applicable rules of international law

• Code of Conduct is NOT really “Voluntary”

Key Normative Principles of Responsible Fisheries

• Long-term conservation and sustainable use

• Science-based decision-making

• Precautionary approach

• Effective monitoring, control and surveillance

• Consistency with international trade law

• Special requirements of developing States

target stocks

LOSC, Art. 61 and 62; UNFSA, Art. 5(h)

Ecosystem approach to fisheries - associated and dependent species

LOSC, Art. 61, 119

Protection of critical fisheries habitats in marine and freshwater ecosystemsFAO Code of Conduct, Art. 6.8

Use of selective and environmentally safe fishing gears and practices FAO Code of Conduct, Art. 6.6

Limiting capacity and prevention of overfishing and transfer of excess capacityFAO Code of Conduct, Art. 7.1.8, Art. 7.6.3; UNFSA, Art. 5(h)

Long-term Conservation and

Sustainability Use

Assessment of stocks ecosystems, including bycatch, discards, and waste

LOSC, Art. 61 and 119; FAO code of Conduct,

Costs, benefits and effects of alternative management options related to excess capacity and fishing effort

FAO Code of Conduct, Art. 7.3

Collection & exchange of fisheries data

LOSC, Art. 61(5), 119(2)

Fisheries information and data collectionUNFSA, Annex I

Science-based Decision making

Stock specific target and limit reference points

FAO Code of Conduct, Art. 7.5.3UNFSA Art. 6(3)(b)

Relevant social, economic, and institutional factors

FAO Code of Conduct, Art. 7.4.5

Discards, non-target and associated or dependent species

FAO Code of Conduct, Art. 7.5.2; UNFSA, Art. 3(d)

Absence of adequate information should not be used as a reason for postponing or failing to take measureFAO Code of Conduct, Art. 7.5.1; UNFSA, Art. 6(2)

Cautious conservation and management measures for new or exploratory fisheriesFAO Code of Conduct, Art. 7.5.4; UNFSA, Art. 6(6)

Size and productivity of stocks, reference points, fishing mortality, impact of fishing activitiesFAO Code of Conduct, Art. 7.5.2; UNFSA, Art. 6(3)(c), Annex II

Precautionary approach

Stock specific target and limit reference points

FAO Code of Conduct, Art. 7.5.3; UNFSA, Art. 6(3)(b)

Effective control over nationals

LOSC, Art. 94; UNFSA, Art. 18; FAO Code of Conduct, Art. 8.2

Vessel monitoring systems

LOSC, Art. 62(4)(e), UNFSA, Art. 18(3)(g)(iii); FAO Code of Conduct, Art. 7.7.3

Observer programmes

LOSC, 62(4)(g); UNFSA, Art. 18(3)(g)(ii); FAO Code of Conduct, Art. 8.4.3

Boarding and inspection

LOSC, Art. 73(1); UNFSA, Art. 20-22

Sanctions of sufficient severity

UNFSA, Art. 19(2); FAO Code of Conduct, Art. 8.2.7

Effective monitoring,

control, and surveillance

Trade/statistical documentation schemes

Other Import and export controls

Catch documentation schemes

Port State measures

IUU list of vessels

International Trade Law Consistency

for compliance Measures

Access agreements, joint ventures

Training and scientific cooperation

Technology transfer

Special requirements of developing States

Financial and Technical assistance

Vulnerability of developing States and dependence on marine living resources

Not to carry disproportionate burden of conservation onto developing States

Evaluation

• Adequate international norms for sustainable fisheries management exist….BUT

• Lack of ratification/acceptance

• Lack of domestic implementation

• Lack of consistent interpretation of norms and principles– Ambiguity and exceptions

• Lack of adequate mechanisms for compliance verification

One day, all seafood might look like me.

Yum, Yum!