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The Precautionary Principle/Approach and International Fisheries:

The Precautionary Principle/Approach and International Fisheries: Beacon of Hope, Sea of Confusion and Illusion Professor David L. VanderZwaag Canada Research Chair in Ocean Law and Governance Marine & Environmental Law Institute Dalhousie University

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The Precautionary Principle/Approach and International Fisheries:

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  1. The Precautionary Principle/Approach and International Fisheries: Beacon of Hope, Sea of Confusion and Illusion Professor David L. VanderZwaag Canada Research Chair in Ocean Law and Governance Marine & Environmental Law Institute Dalhousie University ICCAT Workshop on the Precautionary Approach Prince George Hotel, Halifax, Nova Scotia March 18, 2008

  2. I. Introduction • The Precautionary Principle / Approach Sounds Simple, Straightforward and Seems To Be Here To Stay • Captures Common Sense Notions Evident in Many Cultures • An Ounce of Prevention Is Worth a Pound of Cure • A Stitch in Time Saves Nine • Look Before You Leap • Better Safe Than Sorry • Stands as a Fundamental Principle for Marine Resource Management and Ocean Governance • Where There Is Scientific Uncertainty as to Effects of a Proposed Exploitation/Use, Decision-makers Should “Err on the Side of Caution”

  3. Seems Here To Stay as Precautionary Principle / Approach Included in Numerous International Environmental and Fisheries Agreements / Documents in Past 20 Years, For Example • Montreal Protocol on Ozone Depleting Substances • UN Framework Convention on Climate Change • Convention on Biological Diversity • FAO Code of Conduct for Responsible Fisheries • UN Agreement on Straddling and Highly Migratory Fish Stocks • Rio Declaration on Environment and Development • World Summit on Sustainable Development (WSSD) Plan of Implementation

  4. However, Fully Tracking Implementation of the Precautionary Approach in International Fisheries Management Is Perhaps Insurmountable for Three Reasons • Numerous Types of “Internationalized” Fish Stocks • Shared Stocks Across Exclusive Economic Zones (EEZs) • Straddling Stocks Moving between EEZs and the High Seas • Highly Migratory Species Like Tunas Widely Traversing National Maritime Zones and the High Seas • Discrete High Seas Fish Stocks Such as Those “Hanging Out” Over Thousands of Sea Mounts Occurring in Areas Beyond National Jurisdiction

  5. Anadromous Species Like Atlantic and Pacific Salmon That Spawn in Freshwaters and Migrate Into the High Seas and Maritime Zones of Other Countries • Catadromous Species Like American and European Eels That Move from Freshwaters into the Sea To Spawn http://life.bio.sunysb.edu/marinebio/eel.jpg

  6. Multitude of International Fisheries • For Example, Over 30 Tuna and Tuna-Like Species Fall Under the Governance Ambit of the International Commission for the Conservation of Atlantic Tunas • Fisheries in the Northwest Atlantic Fisheries Organization (NAFO) Area Target About 25 Commercial Species • Fragmented Array of Regional Fisheries Organizations • Close to 40 Regional Fisheries Bodies • Of Those, Some 18 Have Management Functions (RFMOs)

  7. http://www.fao.org/fishery/rfb/search

  8. Nevertheless, an “Impressionistic Look” Can Be Provided • Three Nautical Images Help Capture How the Precautionary Approach Has Been Faring in International Fisheries Governance Practice 1. Beacon of Hope 2. Sea of Confusion 3. Sea of Illusion

  9. II. Three Nautical Images 1. Beacon of Hope The Precautionary Principle/Approach May Be Likened to a Lighthouse Beacon with Various Potentially Powerful Beams for Avoiding the Shoals of Depleted Fisheries Resources and Losses of Marine Biodiversity • Placing the Burden of Proof on Proponents of Development / Change • No Approval Should Be Granted Unless the Proponent Establishes Some Standard of Safety/Acceptability • Examples of Standards • No Significant Damage to the Marine Environment • No Serious or Irreversible Harm to Marine Biodiversity • No Significant Threat to Ecosystem Health

  10. Establishing Prohibitions (For Example, No Deliberate Introduction of Non-Indigenous Aquatic Species, No Import or Production of Genetically Modified Fish) • Imposing Zero Discharge or Virtual Elimination Standards at Least for Toxic Substances • Adopting “Reverse Listing” Where Only Substances Listed as Safe Can Be Manufactured or Marketed

  11. Legal “Revolution” to Strong Version Seen in Ocean Dumping Field • London Convention 1972 Favours Polluters and Is Permissive in Approach Anything Can Be Dumped with a Permit Except Prohibited Substances on a “Black List” • Mercury • Cadmium • Organohalogen Compounds • Persistent Plastics • Various Oils • Biological and Chemical Warfare Materials • Radioactive Wastes • Industrial Wastes • Incineration of Sea of Industrial Wastes and Sewage • Sludge

  12. 1996 Protocol to London Convention Adopts “Reverse Listing” Approach Where Listing Favours the Environment and Is Precautionary Nothing Can Be Dumped Unless It Is Listed on a “Safe List” • Dredged Material • Sewage Sludge • Fish Wastes • Vessels and Platforms or Other Man-made Structures • Inert, Inorganic Geological Material • Organic Materials of Natural Origin • Bulky Items Primarily Comprising Iron, Steel, Concrete, and Similarly Unharmful Materials for Which Concern Is Physical Impact (Limited to Where Wastes Are Generated at Locations Having No Practicable Access To Disposal Options Other Than Dumping) • Sequestration of Carbon Dioxide (CO2) under the Seabed (Adopted 2 November 2006, in Force 10 February 2007)

  13. A “Powerful Beam” Version of Precaution in International Fisheries Is Exemplified by the Banning of Large Scale Driftnets on the High Seas • Moratoria on All Large-Scale Pelagic Driftnet Fishing Urged To Be Implemented By All States With Moratoria Lifting Dependent on Demonstration of Effective Conservation and Management Measures and Ensurance of Living Marine Resource Conservation (UN GA Resolution 44/225 Adopted 22 December 1989) • Global Moratorium on All Large-Scale Pelagic Drift-Net Fishing To Be Fully Implemented on the High Seas, Including Enclosed and Semi-Enclosed Seas by 31 December 1992 (UN GA Resolution 46/215 Adopted 20 December 1991) http://weblog.greenpeace.org/deep sea/images/hammerhead_grace.jpg

  14. 2. Sea of Confusion Various Confusing Currents “Quick Five” • Definitional Generalities • Uncertainty in Terminology • Wide Spectrum of Precautionary Management Measures Available • Differing Academic Views on Implications • Limited Interpretations by International Tribunals/Courts

  15. Definitional Generalities • For Example, Rio Declaration, Principle 15 In Order to Protect the Environment, the Precautionary Approach Shall Be Widely Applied by States According to Their Capabilities. Where There Are Threats of Serious or Irreversible Damage, Lack of Full Scientific Certainty Shall Not Be Used as a Reason for Postponing Cost- Effective Measures to Prevent Environmental Degradation. • Definition Leaves Considerable Interpretive Leeways • What Exactly Are State Capabilities? • How Should Serious or Irreversible Damage Be Defined? • What Should Be the Role of Science in Determining Risks? • What Are Cost-Effective Measures?

  16. Definitional Generality Also Hovers Over International Fisheries Law, E.G. • UN Agreement on Straddling and Highly Migratory Fish Stocks (1995) Provides: States Shall Be More Cautious When Information Is Uncertain, Unreliable or Inadequate. The Absence of Adequate Scientific Information Shall Not Be Used as a Reason for Postponing or Failing To Take Conservation and Management Measures (Art. 6(2)) • FAO Code of Conduct for Responsible Fisheries (1995) urges: States Should Apply the Precautionary Approach Widely to Conservation, Management and Exploitation of Living Aquatic Resources in Order to Protect Them and Preserve the Aquatic Environment. The Absence of Adequate Scientific Information Should Not Be Used as a Reason for Postponing or Failing to Take Conservation and Management Measures (para. 7.5.1)

  17. FAO Technical Guidelines on the Precautionary Approach to Capture Fishery and Species Introductions (1996) Also Overflow with Generalities • No Clear Allocation of Burden of Proof Technical Guidelines Call For “Appropriate Placement of the Burden of Proof” (para. 6(h)). • Vague Guidance on Standard of Proof Technical Guidelines Provide the Standard of Proof “Should Be Commensurate With the Potential Risk to the Resource, While Also Taking Into Account the Expected Benefits of the Activities” (para. 7(d)).

  18. Uncertainty in Terminology • Approach vs. Principle? • Is There a Difference? • No - The Terms Are Interchangeable (For Example, Rio Declaration Uses Both Terms) • Yes - The Term Approach Is Preferable Because It • Better Connotes the Non-Legally Binding Nature (US and Canada Preference in Beef Hormones Case (1998) Before the WTO) • Avoids Extreme Applications (FAO Preference To Avoid Fishing Moratoria and Reversal in Burden of Proof to Fishers To Show “No Harm”) FAO Technical Guidelines State: “[A]lthough the Precautionary Approach to Fisheries May Require Cessation of Fishing Activities That Have Potentially Serious Adverse Impacts, It Does Not Imply That No Fishing Can Take Place Until All Potential Impacts Have Been Addressed and Found To Be Negligible” (para. 7(b)).

  19. Wide Spectrum of Precautionary Management Measures • Not Just a Potential Reversal in the “Burden of Proof” • A Menu of Fisheries Management Measures • Setting Cautious Quotas (For Example, Catch Limits so as Not to Reduce Average Biomass of Target / Non-Target Species by More Than 20%) • Terminating Open Access Fisheries and Developing Management Plans Within Certain Time Frame • Prohibiting / Limiting Destructive Fishing Techniques • Promoting Selective Fishing Gears / Methods • Requiring EIAs Before Opening New Fisheries • Allowing Fish to Spawn at Least Once • Increasing NGO Participation in Fisheries Management • Establishing Marine Protected Areas

  20. 1995 UN Fish Stocks Agreement (Annex II) Urges Application of Precautionary Reference Points To Manage Straddling and Highly Migratory Stocks • Limit Reference Points • Conservation Thresholds That Should Not Be Exceeded To Ensure Harvesting Is Within Safe Biological Limits • Maximum Sustainable Yield Should Be Regarded as a Minimum Standard for Limit Reference Points • Example Would Be Setting a Precautionary Level for Spawning Stock Biomass Below Which It Should Not Fall

  21. Target Reference Points • Intended To Meet Management Objectives • No Examples of Types of Management Objectives Given • Example Might Be Setting a Target of Returning a Stock Biomass to a Healthy Historical Level • Precautionary Reference Points Shall Be Used To Trigger Pre-agreed Conservation and Management Actions (For Example, a Recovery Plan Where a Stock Falls Below the Limit Reference Point)

  22. Differing Academic Views on Implications • Enthusiastic and “Little Doubt” about Precautionary Approach in Ocean Governance • Richard C. Hildreth et al. “The Precautionary Approach Entails a Reversal of the Burden of Proof. Reversing the Burden of Proof Requires Shifting the Burden from Those Who Seek To Regulate an Activity to Those Who Propose and Would Benefit from the Activity” (“Roles for a Precautionary Approach in Marine Resources Management” (2005) 19 Ocean Yearbook 33, 36).

  23. Skeptical and “Lots of Doubt” about PP Providing Guidance • Jaye Ellis and Alison FitzGerald The Precautionary Principle “Does Not Tell Decision-makers or Individual Actors What To Do or When; It Does Not Reverse the Burden of Proof; and It Does Not Place Environmental Concerns Ahead of Social and Economic Ones.” (“The Precautionary Principle in International Law: Lessons from Fuller’s Internal Morality” (2004) 49 McGill L.J. 779, 782)

  24. Limited Interpretation by International Tribunals / Courts, • Southern Bluefin Tuna Case(s) (Law of the Sea Tribunal, August 1999) • Australia and New Zealand Arguing Japan Should Be Stopped, Based on the Precautionary Principle, From Unilaterally Increasing Catch Levels of Southern Bluefin Tuna • Tribunal Ordered Japan To Refrain From Further ‘Experimental Fishing’ (Except with Agreement of Parties or Under Experimental Catch Counted Against Its Annual Quota)

  25. While Tribunal’s Decision Did Not Expressly Mention the Precautionary Approach, at Least 2 Judges Indicated the Provisional Measures Ordered Were Based on Precaution • Judge Laing Raised Question of Whether the Precautionary Principle Should Reverse Onus of Proof to Party Wishing to Increase Catch Levels, But Felt Question Should Be Left to Full Arbitration • Arbitral Tribunal Ultimately Declined Jurisdiction (Award of 4 August 2000)

  26. Other Environmental Cases Only ‘Tangentially Touching’ on Precaution, E.G. • Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore) (International Tribunal for the Law of the Sea, 2003) • The MOX PlantCase (Ireland v. United Kingdom) (International Tribunal for the Law of the Sea, 2001) • Case Concerning Gabcikovo-Nagymaros Project (Hungary v. Slovakia) (ICJ, 1997) • New Zealand v. France (ICJ, 1995)

  27. 3. Sea of Illusion While Acknowledging the Need To Apply the Precautionary Approach in International Fisheries Management, State Practice Might Be Described as Largely Illusory at the Global and Regional Levels • Implementation of Precaution in the High Seas Beyond the National Jurisdiction (Over 60% of the Oceans) Has Been Problematic

  28. <http://www.dfo-mpo.gc.ca/overfishing-surpeche/images/Map/200-mill_small.jpg><http://www.dfo-mpo.gc.ca/overfishing-surpeche/images/Map/200-mill_small.jpg>

  29. A Consortium of NGOs Has Pushed Hard for a Precautionary Moratorium on High Seas Bottom Trawling through a UN Resolution • Concerns over the Impacts on Deep-Sea Corals, Sponges, Hydrothermal Vents and Seamounts • At Least 14,000 Seamounts Estimated To Exist with Little Scientific Sampling

  30. Distribution of large seamounts estimated by Kitchingman and Lai (2004). This map displays approximately 14,000, particularly well-defined (conical), seamounts, including a wider range of seamount shapes and sizes could increase their number to 100,000.

  31. Countries Have Balked at Adopting a Global Precautionary Moratorium on High Seas Bottom Trawling • States Have Instead Largely “Downloaded” the Precautionary Challenge to RFMOs Through UN General Assembly Resolution 61/105 (December 2006) on Sustainable Fisheries Which Urges RFMOs with Competence To Regulate Bottom Fisheries To • Identify Vulnerable Marine Ecosystems (VMEs) and To Determine Whether Bottom Fishing Activities Would Cause Significant Adverse Impacts (Data Collection Could Come From New and Exploratory Fisheries) (para. 83(b)) • Close VMEs, Known To Exist or Likely To Occur Based Upon Best Available Scientific Information, to Bottom Fishing and Not Allow Bottom Fishing Unless Conservation and Management Measures Have Been Established To Prevent Significant Adverse Impacts (para. 83(c))

  32. Require Members of the RFMO To Require Vessels Flying Their Flag To Cease Bottom Fishing in Areas where Vulnerable Marine Ecosystems Are Encountered (para. 83(d)) • Modernize Their Mandates To Include Precautionary and Ecosystem Approaches (para. 70) • Undertake Performance Reviews which Should Include Some Element of Independent Evaluation (para. 73) • Countries Also Urged To Expedite Negotiations for New RFMOs To Regulate Bottom Fishing and To Implement Interim Measures To Protect VMEs By No Later Than 31 December 2007

  33. - South Pacific Example http://www.southpacificrfmo.org/area/proposed-coverage-of-rfmo/

  34. High Seas Governance Arrangements Remain To Be Fully Sorted Out So the Future of Precaution Remains in Some “Limbo” • Some NGOs and States Have Been Pushing for an Implementation Agreement to the Law of the Sea Convention on High Seas Biodiversity • Could, Among Other Things, Establish a Global Framework for Listing and Protecting MPAs on the High Seas • However, No Consensus on the Need for Such an Implementation Agreement or Its Details • The Ad Hoc Open-ended Informal Working Group To Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity beyond Areas of National Jurisdiction Met in February 2006 and Has Been Tasked by the General Assembly To Meet Again 28 April – 2 May 2008 To Further International Discussions on High Seas Governance Issues and Governance Options

  35. FAO Has Led Consultations and Drafting of International Guidelines for the Management of Deep-Sea Fisheries in the High Seas • Draft Guidelines Discussed at February 2008 Meeting in Rome Included Quite a Few Precautionary Elements Including • The Identification of Vulnerable Marine Ecosystems Should Be Precautionary (para. 42) • Flag States Should Conduct Impact Assessments of Proposed Deep-Sea Fisheries and If Assessments Indicate Harvesting Is Likely To Produce Significant Adverse Impacts, Authorizations Should Not Be Issued (para. 73) • In Light of Low-Productivity of Deep-Sea Fisheries, Management Reference Points Need To Be More Precautionary (Than the MSY Limit Suggested in the 1995 Fish Stocks Agreement)

  36. In Light of Disagreements Over Textual Details, a Further Round of Discussions Will Occur in August 2008

  37. Implementation of Precaution at the Regional Level Has Also Been Limited As Exemplified by Three Atlantic RFMOs • North Atlantic Salmon Conservation Organization (NASCO) http://www.nasco.int/about.htm

  38. North Atlantic Salmon Conservation Organization (NASCO) Adopted a Precautionary Approach to Salmon Fisheries Management in 1998 • Salmon Fishery Off West Greenland Represents One “Precautionary Illusion” • Precautionary Scientific Advice Given in 2007 Recommended No Catch on the Wild Salmon Stocks Off West Greenland for the Years 2007, 2008, 2009 Because of the Poor State of Salmon Populations, Especially in North America Which Contribute to the West Greenland Fishery • Salmon in Eight Maine Rivers (USA) Are Listed as Endangered • Salmon in 32 Inner Bay of Fundy Rivers Have Been Listed as Endangered

  39. NASCO Nevertheless Approved for the Years 2007 and 2008 a Subsistence Catch of Salmon Off West Greenland, Estimated To Be about 20 Tonnes, • Especially Worrisome from a Precautionary Stand Point Is the Estimated Annual 10 Ton Unreported Salmon Catch in Greenland • St Pierre & Miquelon Fisheries Is a Second “Illusory” Example • St Pierre & Miquelon Fisheries Took about 3.6 Tonnes of Salmon in 2006 with North American Depressed Salmon Stocks Contributing to the Harvestings • NASCO Has Not Been Able to Effectively Invoke the Precautionary Approach to the St Pierre & Miquelon Fishery Since France (Responsible for Its Dependent Islands) Has Not Become a Party to NASCO on Behalf of St Pierre & Miquelon

  40. Northwest Atlantic Fisheries Organization (NAFO) http://www.parl.gc.ca/39/1/parlbus/commbus/senate/com-e/fish-e/rep-e/rep06feb07-e_files/image002.jpg

  41. Has Embraced the Precautionary Approach in Principle • NAFO Formally Adopted the Precautionary Approach Through a 1999 Resolution (Res. 2/99) • Scientific Council Has Developed a NAFO Precautionary Approach Framework as Summarized in a 2004 Document NAFO/FC Doc. 04/18 • At Its 29th Annual Meeting in September 2007, NAFO Adopted Convention Amendments • Contracting Parties Agree To Apply the Precautionary Approach in Accordance with Article 6 of the 1995 Fish Stocks Agreement • Text Needs To Be Ratified by at Least Three-Fourths of the NAFO Contracting Parties

  42. NAFO Parties Have Begun To Implement Precautionary Measures for Vulnerable Marine Ecosystems • Have Closed Four Areas To Demersal Fishing Gears from January 1, 2007 until December 31, 2010 • Orphan Knoll • Corner Seamounts • Newfoundland Seamounts • New England Seamounts • Have Established a Coral Protection Zone • Closed To All Fishing Activity Involving Bottom Gear Contact • Applicable to Part of Division 3O • Effective January 1, 2008 until December 31, 2012

  43. However, Precaution Has Foundered on at Least Four Fronts • Ignoring Precautionary Scientific Advice in Establishing Total Allowable Catches, E.G. • Redfish for Area 3O • The Scientific Council in its 2007 Advice Stated • There Is Insufficient Information on Which To Base Predictions of Annual Yield Potential • Stock Dynamics and Recruitment Patterns Are Poorly Understood • Not Possible To Advise on an appropriate TAC in 2008, 2009 and 2010 • Nevertheless, the Fisheries Commission Approved a 2008 TAC of 20,000 Metric Tons

  44. Redfish for Area 3M • The Scientific Council Recommended, in Light of a Low Spawning Stock Level, a Catch for 2008 and 2009 Not To Exceed 5,000 Tons • Nevertheless, the Fisheries Commission Approved a 2008 TAC of 8,500 Tons • Allowing Considerable Bycatch of Species under Moratoriums (Expressed as Percentage of Current Biomass), E.G. • 70 – 89% of 3NO Cod • 15 – 27% of 3LNO American Plaice • 8.6 – 18.9% of 3NO Witch Flounder (Rosenberg et al. 2005)

  45. Minimally Addressing the Taking of Sharks (Art. 16 of NAFO Conservation and Enforcement Measures) • Contracting Parties Required To Report Data on All Catches of Sharks • Imposition of a Shark Finning Ban (Contracting Parties Shall Require Their Vessels Not to Have Onboard Shark Fins That Total More Than 5% of the Weight of Sharks Onboard) • For Sharks Caught as Bycatch, Parties Are Encouraged To Promote the Release of Live Sharks, Especially Juveniles • Parties Urged To Conduct Research on Shark Nursery Areas

  46. Only Managing 11 out of 25 Commercial Species, E.G. • Northern and Spotted Wolffish Listed as Threatened Under Canada’s Species at Risk Act • NAFO Has Not Imposed Conservation Measures for Wolffish http://www.dfo-mpo.gc.ca/species-especes/news/news_01062004bac_f.asp http://www.seawater.no/fauna/Fisk/images/CRW_7396.jpg

  47. International Commission for the Conservation of Atlantic Tunas http://www.iccat.int/Images/misc/ConvArea.jpg

  48. ICCAT Has Placed Precaution on the “Radar Screen” • The Ad Hoc Working Group on Precautionary Approach Was Established in 1997 and a 1999 Report Made Various Recommendations to Further Facilitate Implementation of the Precautionary Approach, E.G. • Improving Catch and Bycatch Information • Increasing Funding at All Levels Including Data Collection, Monitoring, Enforcement and Possibly Large Tagging Experiments

  49. The Ad Hoc Working Group on Precautionary Approach Might Be Described as “Dormant” • Person Convening the WG Has Left ICCAT • WG Not Presently Listed on the Organizational Charts Available on the ICCAT Website • Canada Will Be Convening a Precautionary Approach Workshop Focusing on Western Bluefin Tuna During the Week of March 17, 2008 But Not Under the Auspices of the Ad Hoc WG on Precautionary Approach

  50. However, ICCAT Has Largely Ignored Precaution in Practice • The ICCAT Convention Is at Odds with the Precautionary Approach Advocated by the 1995 UN Fish Stocks Agreement • The Convention Elevates Maximum Sustainable Yield as the Overall Management Target (The Point To Aspire To) • The Fish Stocks Agreement Suggests MSY as a Limit Reference Point (The Point To Avoid)

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