the international legal regime for fisheries management
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The International Legal Regime for Fisheries Management. Martin Tsamenyi, PhD Professor of Law & Director Centre for Maritime Policy University of Wollongong NSW, Australia UNEP WORKSHOP ON FISHERIES SUBSIDIES AND SUSTAINABLE FISHERIES MANAGEMENT - PowerPoint PPT PresentationTRANSCRIPT
The International Legal Regime for Fisheries
Management
Martin Tsamenyi, PhDProfessor of Law & DirectorCentre for Maritime PolicyUniversity of WollongongNSW, Australia
UNEP WORKSHOP ON FISHERIES SUBSIDIES AND SUSTAINABLE FISHERIES MANAGEMENT
International Environment House II Geneva, 26-27 April 2004
IN THE BEGINNING
Papal Bull of Demarcation 1492 & The Treaty of Tordesillas 1493
Freedom of the Seas
The resources of the oceans “belong to all men by natural law.”
Hugo Grotius:1609
Freedom of the Seas
“The sea is common to all, because it is so limitless that it cannot become the possession of any one, and because it is adapted for use of all, whether we consider it from the point of navigation or fisheries.”
‘Over-fishing unscientific’
• “Any tendency to over-fish will meet with its natural check in the diminution of the supply,… this check will always come into operation long before anything like permanent exhaustion has occurred” (Huxley, 1883).
Over-fishing Impossible
“ I say it is impossible, not merely to exhaust them [fisheries] but even noticeably to lessen their number by means now used for their capture, . For the last three hundred years fishing has gone on … and although enormous quantities of fish have been caught, there are no indications of exhaustion.” (L.Z Joncas, Canadian Ministry of Agriculture, 1885).
The High Seas Convention-1958
• The freedom of the High Seas comprises inter alia:•Freedom of fishing
• “Tragedy of the [international] commons”
Modern International Legal & Policy Framework
• Three CategoriesFisheries Specific
Instruments“Soft Law” Instruments
•Policy frameworkGeneral international marine
environmental treaties
Fisheries Specific Instruments
• UN Law of the Sea Convention• UN Fish Stocks Agreement• FAO Compliance Agreement• Regional and Bilateral
Fisheries Agreements/Conventions
UN Convention on the Law of the Sea 1982
• The exclusive economic zone (EEZ)The most extensive
transformation of the law of the sea in past 500 years
Transfer of property rights from international community to coastal States
EEZ – an inheritance
“Under the new regime of the seas, the world community has WILLED to the coastal States the bulk of living resources in waters off their shores.”
Coastal State Rights in the EEZ
•Promotion of optimum utilization of resources
•Preferential access to the resources
•Power to enforce fisheries laws and regulations
Responsibilities in the EEZ
• Effective conservation and management framework
• Maintaining or restoring populations of dependent and associated species
• Data collection and exchange• International and regional
cooperation to manage and conserve
Impact of the EEZ Regime
• Rights without Responsibilities“Gold mine mentality”
No conservation measuresNo TAC determinationIndiscriminate allocation/licensing of foreign vessels
Impact of EEZ Regime• Management Problems
Lack of compatibility of measuresEEZ/EEZEEZs/high seasRegional and international management frameworks
Lack of capacity to manageDWFNs counter-responses
UN Fish Stock/Compliance Agreement
Common Themes
• Control activities of nationals through proper authorization Flag State
Responsibility• International, regional
and sub-regional cooperation Conservation Data collection and
exchange enforcement/surveillance Vessel monitoring
systems
• Control of non-parties• Port State enforcement• Multilateral trade
sanctions• Implementation of
international obligations
• Limited recognition of ecosystem approaches management Marine biodiversity
generally High seas biodiversity
Impact of UN Fish Stocks/Compliance Agreement
•Right Direction
•BUTLack of widespread
ratificationLack of implementation
Soft Law” Instruments• Action Plans• Strategies• Declarations• Codes of
Conduct FAO Code of
Conduct for Responsible Fisheries 1995
• Guidelines
• Plans of Action (1999-2001) Management of sharks Reducing Incidental
catch of Seabirds in Longline Fisheries
Management of Fishing Capacity
Prevent, Deter and Eliminate IUU Fishing
• Resolutions of the UNGA, or of international fisheries bodies
Impact of “soft law” instruments
• POSITIVE Policy framework to
implement binding instruments the development of concepts
and principles e.g the precautionary approach
testing grounds for new ideas, or adaptations of old ideas to new areas
Impact of “soft law” instruments
• NEGATIVE easy to include text in such
documents in the knowledge that they will not have to be implemented.
shifting from the language of ‘should’ to ‘shall’ to avoid legal obligation to implement
International Marine Environmental Treaties
• Biodiversity Convention• CITES• World Heritage Convention• Ramsar Convention• Bonn Convention• MARPOL
Impact of Environmental Instruments
• Marginalized• No effective framework for
coordination between “fisheries” and “environmental” sectors atNational levelInternational level
The Way Forward• Moratorium on new international
instrumentsMore than adequate international legal and
policy framework to address the problem• Need for fresh thinking on
implementation strategiesHolistic approachSynergy and linkages between and among
• Instruments•Sectors
Capacity building •especially for developing countries