International Ocean Law

1. International Ocean Law Jurisdiction Marine Pollution International Fishing

2. Fisheries

3. The Problem • Too many boats/people • Not enough fish • Fish populations are crashing • Fishermen are losing money

4. Fisheries – The Legal Regime • Overarching concepts • Exploitation must be conducted on “rational basis” = with conscious, reasonable objectives, taking account of scientific advice • Species must be regulated as a biological unit – i.e., within its whole range • All ecological factors that affect conservation of species and habitat must be considered • But must also use the species • Translating these into laws is difficult!!

5. Fisheries – The Legal Regime • UNCLOS - overview • Territorial sea = coastal state has exclusive sovereignty to regulate fisheries • EEZ = coastal state retains exclusive rights to explore, exploit, and manage living marine resources • Subject to responsibility to manage and conserve the living marine resources • Subject to utilization requirement

6. Fisheries – The Legal Regime • Categories of fish • Straddling stocks – EEZ + high seas • Highly migratory species – many EEZs + high seas • “local” stocks – stay within a state’s EEZ or territorial seas

8. Fisheries – The Legal Regime - Overview • UNCLOS Articles • Straddling Stocks Treaty (Fish Stocks Treaty) • Equipment Regulation • Other Options?

9. UNCLOS • UNCLOS Articles • EEZ rights • Conservation of living resources • Utilization of living resources • Straddling stocks • Highly migratory species • Freedom of high seas • Right to fish on high seas • Duty of states to conserve on high seas • Cooperation + conservation on high seas

10. UNCLOS: EEZ • EEZ rights (Art. 56) • Coastal states have sovereign rights for exploring, exploiting, conserving, and managing natural resources • Coastal state shall have “due regard” to rights and duties of other states EEZ

11. UNCLOS - EEZ • Conservation of living resources (Art. 61) • Coastal state shall determine the allowable catch of the living resources in its EEZ • Coastal state shall, taking into account best scientific evidence, ensure proper conservation and management to avoid over-exploitation • Should cooperate with other governments and organizations

12. UNCLOS - EEZ • Conservation of living resources (Art. 61 cont.) • Coastal states shall maintain or restore populations to maximum sustainable yield • As qualified by relevant environmental/economic factors • Including economic needs of coastal fishing communities • Taking into account interdependence of stocks and generally recommended standards

13. UNCLOS - EEZ • Utilization of living resources (Art. 62) • Coastal states shall promote optimum utilization of living resources • Shall determine capacity to harvest living resources • If coastal state does not have the capacity to harvest the entire allowable catch, shall give other states access to the surplus of the allowable catch • Other states and their citizens must comply with coastal state laws when harvesting in another EEZ

14. UNCLOS - EEZ • Tension between conservation and utilization? • Art. 61: shall set total allowable catch at maximum sustainable yield • Art. 62: shall promote optimum utilization of living resources

15. UNCLOS - EEZ • Tension between conservation and utilization? • What is maximum sustainable yield? • = the population of fish capable of reproducing at the most sustainable rate • Based on many factors, including environment’s ability to support • Too few adults = not enough to reproduce successfully • Too many adults = not enough resources to support more fish

16. Maximum Sustainable Yield

17. UNCLOS - EEZ • Tension between conservation and utilization? • What is maximum sustainable yield? • = the population of fish capable of reproducing at the most sustainable rate • MSY is not a magic number – it’s a range • UNCLOS directs harvest rate to be set based on MSY + economic and social concerns

18. UNCLOS - EEZ • Tension between conservation and utilization? • What is “optimum utilization”? • Harvesting of fish at levels to allow economic growth • Fish should not just be left in the sea

19. UNCLOS - EEZ • Tension between conservation and utilization? • Challenges • Setting maximum sustainable yield is very difficult • Difficult to know how many fish are actually in the sea • Scientists rely on fishermen to report • Incentive to report large catch because it gives the appearance that populations are healthy • Utilization mandate discourages “unnecessary” conservation

20. UNCLOS – High Seas • Freedom of high seas (Art. 87) • High seas are open to all States, whether coastal or land-locked • Freedom of high seas = • Freedom of navigation • Freedom of fishing, subject to • Need to exercise “due regard” for interests of other States and rights under the convention

21. UNCLOS – High Seas • Right to fish on high seas (Art. 116) • Subject to • Treaty obligations • Rights and duties and interests of coastal states

22. UNCLOS – High Seas • Duty of states to conserve on high seas (Art. 117) • All states have a duty to take measures for their nationals as may be necessary for conservation of living resources

23. UNCLOS – High Seas • Cooperation + conservation on high seas (Art. 118) • All shall cooperate in the conservation of living resources

24. UNCLOS – High Seas • Conservation of living resources on high seas (Art. 119) • In determining allowable catch • Take measures to produce maximum sustainable yield, as qualified by environmental and economic factors • Consider effects on harvests and associate species to avoid harvesting at levels where reproduction may be seriously threatened.

25. UNCLOS – High Seas • Same challenges on high seas, but science is even less clear • What are the fish populations? • What is MSY? • How do scientists know when the harvest has exceeded MSY? • The politics are even more challenging • High seas provide landlocked states access to fish – may be their only access

26. UNCLOS – Straddling and Highly Migratory Stocks • Straddling stocks (Art. 63) • Where the same stock/stocks of associated species occur within EEZ of 2 or more coastal states, States shall work to manage stocks cooperatively EEZ #1 EEZ #2

27. UNCLOS – Straddling and Highly Migratory Stocks • Straddling stocks (Art. 63) • Where the same stock/stocks of associated species occur both within EEZ and another adjacent area, the coastal State and other States fishing for the stocks in the adjacent area of 2 or more coastal states, States shall, through subregional and regional organizations, agree on measures necessary for the conservation EEZ #1 EEZ #2 High Seas

28. UNCLOS – Straddling and Highly Migratory Stocks • Highly migratory species (Art. 64) • Coastal state and other states whose nationals fish for highly migratory species shall cooperate through international organizations to ensure conservation and optimum utilization of the species throughout the region EEZ #1 EEZ #2 High Seas

29. Before the Fish Stocks Treaty • Regional Management Organizations • Would set total allowable catch + quota for each State • Quotas were not binding, however – States could unilaterally establish different ones • If State were to fish in high seas, right outside of EEZ, unclear enforcement authority

30. Straddling Stocks/Highly Migratory Fish – Fish Stocks Treaty • Regional Fishery Management Organizations (RFMOs) • Will decide how to manage • Total Allowable Catch + quotas for each country • If a state does not become a member of an RFMO or does not comply with the RFMO’s regulations, no access to fishery’s resources • Limits freedom of the high seas – for the first time

31. RFMOs

32. Tuna RFMOs

33. Fish Stocks Treaty • RFMOs • Who can join? • States with real interest in the fisheries • Essentially means that states that were already participating in the fishery before the creation of the RFMO may join • If new members want to join, members is based on needs of coastal state, existing level of fishing, and new member contributions to conservation • Not guaranteed entry

34. Fish Stocks Treaty • Enforcement • Before Fish Stock Treaty, up to flag state to enforce • Under Straddling Stocks, members can investigate and even seize vessels fishing illegally • Not only up to flag states • May also detain vessels until flag state investigates

35. Fish Stocks Treaty • Enforcement • Member states subject to inspection and boarding by other member states • If they find a violation, flag state must order vessel to submit to investigation and suspend authorization to fish if vessel does not comply • If they find a serious violation (use of prohibited gear or violation of a quota), member state may detain another member state’s vessel • Port states may inspect, prohibit landings, or prohibit transfer of catch

36. Status of species since Fish Stocks Treaty?

37. Status of species since Fish Stocks Treaty? • Why? • Regulating at MSY, but setting the allowable yield at the higher limits within MSY

38. Status of species since Fish Stocks Treaty? • Why? • RFMOs = Member states • Self-regulation – quotas • Unhappiness with quotas leads RFMOs to increase TAC, rather than reduce every State’s quota

39. Status of species since Fish Stocks Treaty? • Why? • Fish stocks – often predicted based on what fishermen report as the catch = incentive to overstate catch • Fishermen are afraid of having entire fishery closed down

40. Status of species since Fish Stocks Treaty? • Solutions? • Reduce fleets through “buyout” programs • = pay fishermen to sell their boats and stop fishing • Gear limitations and bans • E.g. bans on purse seine nets and other equipment • Aquaculture

41. Driftnets: Wellington Convention • Bans use of driftnets outside of coastal areas within the South Pacific area covered by the convention