RECENT DEVELOPMENTS IN OCEAN LAW AND POLICY

1. RECENT DEVELOPMENTS IN OCEAN LAW AND POLICY ABA ANNUAL MEETING SAN FRANCISCO August 11, 2007 INTERNATIONAL LAW OFFICES OF SAN DIEGO PETER H. FLOURNOY www.international-law-offices.com

2. LANGUAGE • FISHERIES – ANADROMOUS, CATADROMOUS, PELAGIC, GROUNDFISH, COASTAL PELAGIC, HIGHLY MIGRATORY SPECIES, STRADDLING STOCKS, REEF FISH, INVERTEBRATES • GEAR TYPES – TRAWL, PURSE SEINE, LONG LINE, POLE AND LINE (HOOK AND LINE), TROLL, DRIFT NET, FISH TRAP, CYANIDE, DYNAMITE • ORGANIZATIONS – COUNCILS, RFMOs

3. FISHERY MANAGEMENT COUNCILS Magnuson- Stevens Conservation and Management Act of 1976, as amended through December of 2006. • 8 Fishery Management Councils • New England, Mid-Atlantic, South Atlantic, Caribbean, Gulf, Pacific, North Pacific, Western Pacific • Council Members – Federal, State, Tribal, Public • Advisory Panels – often by species/gear type • Scientific and Statistical Committee • FMPs – Fishery Management Plans

4. FISHERY MANAGEMENT COUNCILS • Types of Fisheries “managed” • Anadromous – Salmon – bilateral and multilateral • Coastal Pelagic – Squid – unilateral and access agreements GIFAs • “Shared” or Straddling Stocks – Pacific Whiting – bilateral, Halibut -- multilateral • Highly Migratory Species – Tuna and Swordfish - multilateral

5. CONFLICTS BETWEEN COUNCILS, MAGNUSON ACT REQUIREMENTS, AND RFMOs • History of HMS Jurisdiction and Magnuson Act Requirements • When MSAct passed in 1976 to set up the equivalent of EEZs U.S. did not recognize any country’s jurisdiction over HMS in their zones • Provision for State Department slot on Councils was to advise on GIFAs • 1992 Recognition of Other Countries’ Jurisdiction With Critical Caveat that HMS Must be Managed Multilaterally by RFMOs

6. CONFLICTS BETWEEN COUNCILS, MAGNUSON ACT REQUIREMENTS, AND RFMOs • Amendment to Sections 303(a) and 302(h) requiring Councils to Set “annual catch limits” for all species included in their FMPs including HMS • NOAA-NMFS Guidance States Discards and “all” fishing mortality Including Rec and Sport must Be included – Lack of Data

7. CONFLICTS BETWEEN COUNCILS, MAGNUSON ACT REQUIREMENTS, AND RFMOs • “overfishing occurring” • “overfished” • Prior Interpretation – Council Had to Do an Amendment to the FMP – 2 year process • Current Interpretation After Amendment to Section 304 by adding 304 (i) (or (j)) is “ develop recommendations for domestic regulations to address the relative impact of fishing vessels of the US on the stock”

8. REGIONAL FISHERIES MANAGEMENT ORGANIZATIONS • North Pacific Anadromous Fish Commission • International Pacific Halibut Commission • Antarctic Living Marine Resources • Tuna (HMS) RFMOs

9. TUNA (HMS) RFMOs • IATTC -Inter-American Tropical Tuna Commission • IOTC – Indian Ocean Tuna Commission • ICCAT – International Commission for the Conservation of Atlantic Tunas • WCPFC – Western and Central Pacific Fisheries Commission • CCSBT – Commission for the Conservation of Southern Blue fin Tuna

10. KOBE, JAPAN January 22-26, 2007 • Share and Co-ordinate Data And Stock Assessments • Work Collectively to End IUU (Illegal, Unregulated, Unreported) Fishing • Develop Procedures for Allocating Fishing Opportunities • Capacity Controls • Establish Decision Making Processes • Promotion of  Compliance With RFMO Resolutions • Development of Monitoring, Control, and Surveillance (MCS) Measures • Monitor Catches from Vessels to Market • RFMO Performance Review • Ecosystem Approach to Fisheries Management • Coordination of meetings

11. 1982 U.N. LAW OF THE SEA CONVENTION • In Force Since November 16, 1994 • Ratified by 155 Countries • Not Ratified By the United States • Priority of Bush Administration Since The Beginning • Passed Unanimously By Senate Foreign Relations Committee In 2006 • Better Chance With Absence of Amb. Kilpatrick and Senator Helms • Prognosis Not Good

12. U.N. HIGHLY MIGRATORY SPECIES AND STRADDLING FISH STOCKS AGREEMENT • In Force Since 11 December 2001 • Ratified by 67 Countries (UNCLOS – 155) • Ratified by United States • Not Ratified by Japan, Korea, China • July 2006 Review Conference

13. WESTERN AND CENTRAL PACIFIC FISHERIES CONVENTION • Enabling Legislation – Part of MS Act Amendments • Five U.S. Commissioners • U.S. “industry” • WPFMC • PFMC • Federal – PIRO Director • Public Interest = ENGO?

14. WCPFC • Advisory Committee • Guam, American Samoa, Northern Marianas • Payment of out of pocket expenses • Attendance at U.S. Commissioner’s Meetings • Attendance at Government to Government Meetings (?) • Administrative Procedures Act does not apply

15. ANTIGUA CONVENTION (Update of IATTC) • Ratified by U.S. • Ratified by 8 Countries • Belize, Korea, El Salvador, France, Mexico, Nicaragua, Panama, E.U. • Entry Into Force Likely by 2008 • Implementing Legislation Languishes • Current Members of IATTC • Costa Rica, France, Ecuador, El Salvador, Guatemala, Japan, Korea, Mexico, Nicaragua, Panama, Peru, Spain, U.S., Venezuela, Vanuatu

16. NEW AMENDMENT TO PUNISH IUU FISHING • Definition by NMFS – overly broad • NMFS Guidance – check out the web-sites • NMFS Presentation • Recent Actions (Bud Walsh covered)

17. INTERNATIONAL AGREEMENTS CONCERNING LIVING MARINERESOURCES OF INTEREST TO NOAA FISHERIES • ATLANTIC OCEAN • International Convention for the Conservation of Atlantic Tunas (Basic Instrument for the International • Commission for the Conservation of Atlantic Tunas -- ICCAT) • Convention for the Conservation of Salmon in the North Atlantic Ocean (Basic Instrument for the North • Atlantic Salmon Conservation Organization -- NASCO) • Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (Basic Instrument for • the Northwest Atlantic Fisheries Organization -- NAFO)

18. Cont. • PACIFIC OCEAN • Agreement on the International Dolphin Conservation Program (AIDCP) • Convention for the Establishment of an Inter-American Tropical Tuna Commission (IATTC) • Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (Basic • Instrument for the International Pacific Halibut Commission -- IPHC) • Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean (Basic Instrument for • the North Pacific Anadromous Fish Commission – NPAFC) • Treaty Between the Government of the United States of America and the Government of Canada • Concerning Pacific Salmon (Basic Instrument for the Pacific Salmon Commission – PSC)

19. PACIFIC (CONT.) • Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea • Treaty Between the Government of the United States of America and the Government of Canada on Pacific • Coast Albacore Tuna Vessels and Port Privileges • Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the • United States of America (South Pacific Tuna Treaty -- SPTT) • Multilateral High-level Conference on the Conservation and Management of Highly Migratory Fish Stocks • in the Western and Central Pacific (Western and Central Pacific Fisheries Convention-WCPFC)

20. SOUTHERN OCEAN • Convention for the Conservation of Antarctic Marine Living Resources (Basic Instrument for the • Commission for the Conservation of Antarctic Marine Living Resources – CCAMLR) • Convention for the Conservation of Antarctic Seals (CCAS)

21. AND ……………………………… • WESTERN HEMISPHERE • Inter-American Convention (IAC) for the Protection and Conservation of Sea Turtles • GREAT LAKES • Convention on Great Lakes Fisheries Between the United States and Canada (Basic Instrument for the • Great Lakes Fishery Commission – GLFC) • GLOBAL • Agreement on the Conservation of Albatrosses and Petrels (ACAP) • Convention on Biological Diversity (CBD) • Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) • International Whaling Commission (IWC)

22. USEFUL WEBSITES • U.S. Mission to the U.N.http://www.usunnewyork.usmission.gov/index.htm • National Marine Fisheries Service http://www.nmfs.noaa.gov/ • State Department Telephone Directoryhttp://www.foia.state.gov/alphalisting • NOAA-NMFS Magnuson Act Amendmentshttp://wwwnmfs.noaa.gov/msa2007/ • U.S. Commission on Ocean Policy http://www.oceancommission.gov/ • NOAA Office of International Affairs http://www.nmfs.noaa.gov/ia/index.htm

23. QUESTIONS ? • What happened to 90% of the big fish? • Are we, or sharks, at the top of the food chain? • Why is NMFS worse than the IRS? • Where have all the sea turtles gone?