«LL.M in Natural Resources Law and International Environmental Law Sigrid Merino Sardà Faculty of Law School of Social Sciences Pétur Dam Leifsson ...»
HIGH SEAS FISHERIES REGULATION BEYOND THE SCOPE OF
INTERNATIONAL LAW OF THE SEA: PROSPECTS OF CHANGE
LL.M in Natural Resources Law and International Environmental Law
Sigrid Merino Sardà
Faculty of Law
School of Social Sciences
Pétur Dam Leifsson
University of Iceland
The fishery industry on the high seas is becoming a threat for the conservation and
survival of the marine living resources and the maintenance of artisanal fisheries. The international regulations on high seas fisheries, international treaties and conventions, have failed to establish an effective regulation that prevents illegal activities from happening beyond the national jurisdiction of the coastal states. It is then that illegal, unreported and unregulated fishing occurs, eased by the lack of controls and international cooperation. Consequently, the purpose of this thesis is to analyse the existing legal texts dealing with high seas fisheries. As a result of this analysis, a proposal of amendment of the situation will be presented in order to offer a renewed academic perspective, for a future effective and more sustainable high seas fisheries regulation.
Table of Contents Introduction
1. Historical review. High Seas Fisheries and Freedom of the Seas
1.1. Mare Liberum and the establishment of the Freedom of the Seas
The development of the Law of the Sea in the 20th century
1.3. The Third United Nations Conference on the Law of the Sea and current state of the living resources.
1.4. Constitutional status of LOSC and further international agreements dealing with fishing conservation and management measures on the high seas after 1982
2. International Agreements dealing with fisheries conservation and management on the high seas
2.1. The 1992 Declaration of Cancun
2.2. Agenda 21
2.3. The 1993 FAO High Seas Compliance Agreement
2.4. The 1995 FAO Code for Responsible Fisheries
2.5. The 1995 United Nations Fish Stock Agreement
2.6. The 1998 International Plan of Action for the Management of Fishing Capacity...... 27 2.7. The 2006 United Nations Fish Stock Agreement Review Conference
3. Regional Fisheries Management Organizations and IUU Fishing: Causes and impacts of Illegal, Unreported and Unregulated Fishing.
3.1. Regional Fisheries Management Organizations
3.2. Illegal, Unreported and Unregulated Fishing
3.3. IUU fishing as a specific problem: IUU in Tuna fisheries
3.4. Impacts of IUU fishing on human rights and slavery
3.5. IUU fishing facing the future. Illegal Fisheries as an international crime?................. 51
4. The future of high seas fisheries regulation and prospects of change.............. 52 4.1. Port state enforcement outside the national jurisdiction
4.2. Prospects of change
The law of the sea has evolved throughout the centuries thanks to the successful work of jurists and the posterior negotiation processes between states that have characterized the modern era. This is a result of the growing concerns about the need to protect our oceans, the largest source of life of our planet, and to keep the law evolving for the regulation of human activities related to the demands of modern society, which is highly influenced by the state of science and technology. In the present, commercial fishing has far outreached fishing as a mere source of livelihood and developed countries lead, since the post World War era, the so-called overfishing system based on the foundation of business that is emptying out our seas and oceans from life. Moreover, the industrialization processes experienced by developing countries during the 20th century, influenced their fishing practices also. They left behind traditional and artisanal fisheries and engaged the mass fishing vessel fleets industry, which have given rise to the breach of human rights promoting human trafficking and slavery.
Taking action to develop an effectively enforceable regulation on the high seas has become unavoidable due to the relevance that practices such as the depletion of marine ecosystem and the endangerment – or even the extinction – of several marine species entail from a sustainable and environmental point of view. Accordingly, it is assumed that an improved and specialized legal response based both on the ecosystem approach and the precautionary approach, would not only give a more specific content to the regulations included in international agreements and conferences, but would also establish an environmental damage mechanism preventing more overfishing to occur.
As a consequence of redefining the fisheries conservation and management into an environmental scope, where the environment counts as much as economic and social concerns, not only the ocean‟s living resources would recover but a balance would be recovered between coastal states and land locked states. The first would maintain their fishing rights restricted to the Exclusive Economic Zone (EEZ), whilst the second ones could engage regulated fishing practices on the high seas without partaking in the race 1 towards the destruction of the marine ecosystem.1 Thus, additionally would create a new balance between developed and developing countries, and between a restricted industrial fishery and the protection of artisanal and local fishers.
The aim of this work is to prove, that despite the efficiency of the existent premises for the time they were established for, the present and future effects of Illegal Unreported and Unregulated fishing and overfishing need to be controlled across a matching, revised and enforceable regulation. Thereto it is relevant to lay the foundation of the following dissertation holistically, which intends to help understand the evolution of the legal treatment of the high seas. Taking the past as the start point of this dissertation will doubtlessly assist to form a more suitable legal structure for the present and future of fishing on the high seas.
The first chapter deals with the aforementioned historical overview, starting with the first attempt to legally define the high seas included in Hugo Grotius Mare Liberum2 and finishes by featuring the 20th century international legal regime on the matter, starting with the First and the Second United Nations Conferences on the Law of the that lead to the agreement of the final and Third United Nations Conference on the Law of the Sea (UNCLOS).3 Following that,chapter two analyses the legally binding and voluntary outcomes of UNCLOS by assessing the normative force of the 1995 United Nations Fish Stock Agreement, the 1993 FAO High Seas Compliance Agreement, the 1995 FAO Code for responsible Fisheries and the 2006 United Nations Fish Stock Agreement review Conference among others.4 Moreover, to assist the reader, ANNEXES I,II and III include the texts of most relevant articles of the 1982 Law of the Sea Convention, the 1995 United Nations Fish Stock Agreement and the 2006 United Nations Fish Stock Agreement Review Conference, cited in this chapter. Furthermore, the third chapter analyses the functioning of the Regional Fisheries Management Organizations (RFMOs) and the concept and impacts of illegal, unreported and unregulated fishing (IUU fishing) illustrating the last reports and data given by FAO 1 The Exclusive Economic Zone is the limit of national jurisdiction of coastal states, set at 200 nautical miles.
2 James Brown Scott republished Mare Liberum as The Freedom of the Seas or the Right which Belongs to the Dutch to take part in the East Indian Trade (New York, Oxford University Press, 1916).
dited Grotius‟ work and included an introductory note in the version of 1916(New York, Oxford University Press, 1916). Original work by Hugo Grotius, Mare Liberum (published in 1608).
3 The Third United Nations Conference of the Law of the Sea first meeting took place in 1973 and concluded with its ratification in the 11th meeting in December 10th 1982.
4 The United Nation Fish Stock Agreement was negotiated in a international conference, the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, from 1993 to 1995.
2 and UNEP on the statistics of the state of fishing.5 RFMOs are currently the only institutions spread around the world, that deal with fishing restrictions on the high seas.
The effectiveness of these organizations will determine, according to their achieved outcomes, in how far they should remain the only ones taking action. Following that and to complement the preceding rather theoretical arguments based on regulations, relevant case law is introduced, which will allow the reader to consider the practical implementation of limitations and allowances in commercial fishing straight through real disputes between states. Lastly, chapter 4 contains the challenging task of suggesting the improvement of the regulation of high seas fisheries, globally, to prevent, deter and eliminate IUU fishing. Thereto, the creation of an international framework based on the precautionary and ecosystem based approaches is presented, which allows the implementation of a brand new legal order of the high seas, discouraging illegal unreported and unregulated fishing and overfishing of endangered species.
5 Food and Agriculture Organization of the United Nations was created on October 16 th 1945. United Nations Environmental Programme is an agency of the United Nations that appeard on June 5 th 1972.
Oceans have always awakened the interest of mankind. In fact, men soon discovered the significance of the ocean; they are the basic source of life. They entail richness because of what is hidden underneath the surface. More so, exploring the Oceans connected distant civilizations and meant the rise of colonisation and territorial power behind the national borders. As society evolved, so did its relationship with the nature it was surrounded by, making trade by sea easier establishing trade routes with far away territories and exploiting the living resources found there. The singularities of the oceans however, have made it difficult for men to conquer certain parts of it. It is in this difficulty where law found its way, by trying to give a legal answer to a natural situation: can or cannot the ocean be subject of dominion and sovereignty unilaterally by one State, which decides unilaterally to occupy certain part of it?
The answer to that question of course varies according to the interests at game, for example having control of established routes and limiting passage to other nations.
Empires built under the basis of expansion throughout conquest carried out strategic politics displaying their sovereignty over the conquered areas, according to that believe.
International law was the one to give a legal regulation to that situation. However, public international law is by its origins and nature one of the most complex branches of law, which makes its creation and establishment processes quite challenging. It is so due to the fact that in order for it to evolve and progress through international treaties and conventions, acceptance and agreement of the actors playing within its rules, mainly States, is necessary. Therefore, a faster development and modernization remains usually a theoretical attempt rather than a practical outcome. More so, one of its areas, the international law of the sea, perfectly reflects these difficulties when trying to achieve global commitment and enforcement measures. In the present, the controversial status of international law of the seas has to face several real problems that threaten the maintenance of our marine environment. Although this statement is no new revelation to the public, the consequences of a depletion of the greatest source of life as a result of viewing the ocean from an anthropocentric point of view might help to raise awareness of the impact of human activities in the oceans. If we keep damaging the marine ecosystem by carrying out practices of illegal unreported and unregulated fishing as 4 well as overfishing, the oceans will become nothing more than dead zones in between continents.
It is the aim of this first chapter to explain the historical developments that have lead to the increase of the aforementioned practices that is the lack of regulation of areas like the high seas. To that purpose, two basic pillars of the law of the sea will be analysed and discussed. First, the principle of Freedom of the Seas6,upon which the modern law of the sea has constructed its premises, and as a consequence of that tractate by Dutch international lawyer Hugo Grotius, the evolution that this branch experienced throughout the 20th century, which led to the second pillar, the shaping of the contemporary law of the sea. They will be examined in the context of the time and circumstances they appeared in.