allocation of high seas fisheries highly migratory stocks ... 160.pdfthe ocean's natural system...

Allocation of High Seas Fisheries in Ligh f Climate Change

The scienlijic evidence is clear: global climate change caused by human activities is occurring now, and il is a growing threat to socieQ', Accumulating datafrom across the globe reveal a wide array of effec ts: rapidly melting glaciers, destabilization of major ice sheets, increases in extreme weatlter, rising sea level, shifts ill species ranges, alld more. The pace of change and the evidence of harm have increased markedly over the last five years. The lime to control greenhouse gas emissions is now.

from the Climate Change Statement of the AAAS Board, reh.:ased 2-1 8-07

ocean currenlS or competition avai lability of nutrients and

dispos ition and juvenile orgamsms) Water exchange between the shelf and open sea region Moderate warming would improve recruitment to cod, herring and Pollock stocks

King crab stocks in the eastern r 1~~~~~~~~1 Bering Sea have declined (debate ~ as to whether over fishing or environmental conditions)

Highly Migratory Stocks

(

-

September 2005 and as it was in Sept 1979

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

Impacts of Global Climate C ange * Temperature Increases - cousillg species 10 seek /0

relocate ... Loss of Sea Ice

Seu-Level Rhe - impucti"K coastal e.\Ilwrie.\ ... Climate Becomes More Variable alUl Extreme .. Diminished Wetlands & Nursery Areas ... Signijicalll Impact 011 Alladromous Species

IIICreO!ied Po/fmioll

* Increased UV-B Radiatioll #< increased Acidifieatioll of tile Ocean ~j ., l-2. =-)' ... C02 Sequestration ?'--~~ ... Ope" Oceun Fertilizution jeer/;IIC 'he OCl!tlll wil"

iroll (currelll(I' tlllregultlled)

n Technology

• 1982 Law of the Sea Convention Articles I 16- I 19 require cooperation to conserve and manage fi sh and the creation of regional fi sheries organizations.

• 1995 Straddling alld Migratory Fish Stocks Agreement gives deta ils of the duty to cooperate, requiring the sharing of data and adherence to the precautionary principle.

• 2000 HOIlOlul1l COllvellfion 011 Western alld CelltraL Pacific Highly Migratory Fish Stocks creates a Commission with power to allocate

C02 Sequestration There are two ways to take advan tage of the ocean's

natural carbon storage processes . The first way is to increase rite number 0/

phytoplankton. Phytoplankton absorb carbon dioxide 10 use as fuel , and in the process, slore carbon - in Ihe same way that plants and trees on the land store carbon. Researchers have done expcrimcnts/ertilizillg the ocea" witlt iron, in Lhe same way Lhat farmers fenilize their fie lds wilh animal waste or commercial feni lizers.

The second way Lhat we can use the ocean's natural system 10 Slore carbon is by illjectillg liquid carbon dioxide deep illto tile ocean where it call dissolve into the water.

California firm enlists ocean plankton to fight climate change

A San Frnncisco Bay area outfit is using heavy metal to help mitigate global warming. Pltmklos II/C. has delle/oped a process 10 illcrease plankloll POPUIOliollS by providing 'he lIu·croscopic orgallisms wilh iroll lIutrieflls. In return, the plankton sequesters carbon dioxide in exchange for oxygen during photosynthesis.

Plankton blooms suck carbon dioxide out of the air and release oxygen as a byproduct during photosynthesis, just like land·based fo rests And with oceans covering some 70 percent of the Eanh ·s surface, plankton can sequester a substantial amount of greenhouse gas.

But planklOn productivit), has been dipping since the laiC 1970s, and iron has been the limiting element. Normally, wind blows iron dust from land to the open ocean, where plonkton consumes it as a nutrient.

Pial/laos ' process uses ultra-fine particles of irOIl oxide, or hematite, around I microl/, to feell the pIal/I.-ton.

1982 UN Law of the Sea Convention The acceptance by the negotiators at the United Nations

Convention on the Law of the Sea of the simple direct and elegant language of Anicle J92 marked a tumin~9int in_ the human st~wardship ofLhe ocean: Iff 1

"States have the ob/igaciolllo protect ami f. ( preserve the marine ellvirollmelll. .. ~

• "obligatio,, " = countries have positive ~ duties and responsibilities and must take action.

• "protect" and 'preserve" = emphasize Lhat countries must respect the natural processes of the ocean and must ensure that they conl"inue for future generations.

Article 192 thlls recogui:e.\· the profound re.<;poll5ibilit)" that all cOllllfrieJ have to govefll lite ocea1ls il1 a mmllter Ihat respect\" the mari"t! creatures tlwt illhabittltem.


H:~h!~~~ seas, Articles 118 ( ~ and 119 require stutes til l:(J/ cOllperate with other states whose ~ nationals exploit identical or associated species. Article 118 is mandatory in stati ng that nations "shall enter into negotiations with a view to taking the measures necessary for the conservation ofthe living resources concerned" and suggests creating regional fisheries organizations, as appropriate.

1995 UN STRADDLING AND MIGRATORY FISH STOCKS AGREEMENT

• States Are Obliged to Cooperate Existing Regional Organizations Such Bodies Where Needed

• Strengthens the Role of Regional Organizations -- effecti ve m' LDapernel,1 come from Regional or Subregional Organizations or arrangements

• Applies the Dispute Setllemell1 Provisions of the Law of the Sea Convention to the Straddling ami Migratory Stocks

International Tribunal for the Law of the Sea - Judges Yanai

!J apa~, Park Korea, Pawlak Polan , Jesus Cape Verde), Tuerk Austria)


* Duty to cooperate ... DuO' to work through all existing or /lew

fisheries organization * Duty to apply the precautionary principle ... Duty to assess and to collect & share data

... Enforcement measures ... Dispute-resolution

mechanisms

... Recognition of Ihe

needs of developing /lation.\'

International Tribunal for the Law of the Sea, Hamburg, Germany

Alexander Yankov/ Tullio Treves/ Anthony Lucky


AND MIGRA TORY FISH STOCKS AGREEMENT

More thall 55 cOllntries have M.'ifipr/

Agreement, including most European countries, the United States, India, and Liberia,

But key fishing countries like Japan, South Korea, China, and most of the Latin American and African countries, and many of the countries providing fl ags of convenience have not yet ratified the Agreement.

Wor dwide Crisis in Fisheries • Scientists now understand that without "highly

precautionary management," most deep-sea fisheries are unmallageable, because the characteristics of deep-sea species - "long-life spans, latc maturity, slow growth, and low fertili ty" -- make them particularly vulnerable to overfishing.

• Recenl research has revealed Ihal """ . Oil deep-sea species in the northern Atlantic :~_ ... {"j~'::- .. - ~ are on the brink of extinction because of ._~ ~ ... ::;;_~ _

large-scale bo"om trawling. • Fisheries in the EEZs of the United States remain

dangerously depleted, and members of the U.S. Ocean Commission and the Pew Commission issued a reccnt report saying that if immediate action is not taken the crisis will become irreversible in jive to seven years.

Rio Declaration on Environment •

and Develol1ment (1992)

Principle 15: " In order to protect

the environment, the precautiollary 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."


Professor Rosemary Rayfuse has recently suggested that "even in the absence of.. . wider ratification, it is arguable that cenain principles embodied in Ihe [Straddling and Migratory Fish Stocks Agreement] and the [FAD] Compliance Agreement may now be binding on all states as a matter of customary international law."

Her primary example of a provision that has become obligatory Ihrough stale practice is "the ohligutitm to co-operate m respect of high leas fisher/f \ throuldl fir· medillm (/ , R,- 10\ or other Co-op4·rllll ,'e arrongmellffj . ..

What Is the "Precautionary Principle"?

* "Take care"?

* "Better safe than sorry"?

* "Precautionary approach "?

What Is the "Precautionary Princip e."? * Studies must precede acnoll - fmerdisciplillary

ellvironmental impaci assessments must be wrillell OIrd distributed. with public i"put.

Shiff,<; Ihe burdell 10 those Illat wou/(/ 'lIIt/atalle a lie»-' del'elopment or u<;e of lUI em'irollmetrlul resource

.. Accords respect to ecosystems and living creatures for their own sake

.. Rejects idea that risks & costs can be transferred from one region to another, or from this generation to future ones.

.. Requires tflat risks 01/(/ costs be illlemalized in order to engage in a fair and sober analysis of whether to proceed with a project.

.. Requires thai we proceed slowly in the face of uncertainty, constantly testing and monitoring the effects of our activities.


What Is the "Precautionary Principle"? When ri sks are anticipated, the precautionary

principle requires those creating the risks to work with potentially-affected nations:

.. to prepare for foreseeable emergency contingencies.

.. to create appropriate liability regimes to ensure that injured panies are properly compensated,

• to notify other countries of situations threatening hannful effects on their environment, and

* to take every appropriate precaution to prevent or limit damage to the environment.

Recognition in International Treaties and Documents

• 1996 Cetacean Conservation Agreement • 19961zmir Protocol on Transfrontier Movement of Hazardous Wastes · 1997 Kyoto Protocol on Climate Challge

• 1997 Convention on the Law of the Non-navigational Uses of International Watercourses (Article 7)

• 1998 Convention on Cooperation fo r the Protection and Sustainable Use of the Danube River

• 1998 Rhine River Convention • 2000 Seabed Mining Regulations

• 2000 Cartagena Biosarery Protocol · 2001 Persistent Organic Pollutants Treaty

UN FRAMEWORK CONVENTION ON CLIMATE CHANGE (1992)

Is Article 2 a restatement of the precautionary principle as applied to climate changj'-ie"? __ 1

If so, does it have

any binding content?

Recognition in International Treaties and Documents .. 1985 Vienll3 Ozone Con~ention

• 1989 MOnlreal Orone Protocol

• 1991 Bamako Huardous Waste MOI'ement Convention

• 1991 Decl&n.tion oiEsbjerg on the ProtC!;lion of the Wadden Sea

~ 1991 Framnvuk COnl'en/ion on aimnte Chllnge

• 1992 Com'ention ()Il the ProtC!;lion and Use ofTnmsboundary Watercourses and [ntemat iona! Lakes Environment Conventil)n

• Amended EurofCUn O",""U",i,)' r,...",y

• 1992 Conl'ention on the Protection of the !-.-lIrine Environment of the Baitic Sea

"'~ • 1992 Non h-EJ.SI Atlantic Marine

.. 1992 BiiH/h,.,nity COIll'Ilntion

• 1994 Pr..agreement on the Application of Sanitary and Phytosanitary Measures

• 1994 Sulphur Air Pollution Protocol

• 1995 ~1tuse River Agreement

• 1995 ScheIdt Rive! Agreement

UNFCC (1992) - ARTICLE 2 " Th e ultimate objective of this

Convention and any related legal

instruments that the Conference of the

Parties may adopt is to achieve. in accordance with the relevant provisions

of the Convention, stabilization of greenhouse gas COllcelltrations ill the atmosphere at a level that wOllld prevent dangerous amltropogellic illferferellce witlt tlte climate system . Such a level should be achieved witlti" a time/rame su/ficiem to allow ecosystems to adapt lJaturally to climate cltalJge, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner."

FISHERIES ORGANIZATIONS/ ARRANGEMENTS


Precautionllry approach - foculi on cOllsen'atioll, prott!ctillg biot/iwmiity lllld "Iollg-I!!r", ""lloim,biIiO' hig"~1' migrlltoryji.r.;h slockr.;"

Huge boundaries - includes Tcrritoria1 Seas & EEZs & High Seas Commissioll call aI/ocate quotas of

specific species to member countries

Compatibility with decisiolls made by

states " IIder Art. 61 for Iheir OW"

Duty to cooperate Taiwan can panicipate (as "Chinese Taipei") Territories can participate NGOs can

Convention (2000)

Total allowable catch

Fish ing capacity

Exclusion o/vessel types Area and time limitations,.... ____ _

Fish size restrictions

Gear restrictions

Decision-Making:

* Consensus - total allowable catchlbudgetfru les of procedure/

.. "",,"'"' '- Conlr.1 Pacific ""= ~_ ~ FI , h.riO,

~ Comm' ... on

new members/exclusion of vessel types * Chambered Voting - 314 of each chamber needed for passage (but at least three votes are needed to defeat a measure) -

• Members of Pacific Island Forum Fisheries Agency ( 16 nations)

• Distant-Water Fishing Nations (10 nations) * Judicial Review by an Arbitra l Panel determine if decision is consistent with 1982 Convention, 1995 Agreement, and 2000 Treaty.

In developing criteria for allocation of the I rul~'W.lb l " ,,",h the total level of fi shing effort the Commission shall take into

• tlte historic fishing catch of I?unicipoms "and the extetll of tile COle" being u(ifizedfor domestic consumption"

• t . 1111 "i". 'i , lej (HD .... ) in the Convention Area "whose economies. food supplies and livelihoods are overwhclmingly dependent on the exploitation of marinc living resources"

• "the fi shing interests and aspimtions of coastal States, particularly small island devclopin~ Sillies, and territories and possessions. in wllose areos of 1101101101 j urisdictioll tile Slocks olso occur"

• the III 'II I till' ! 111 m ,ft} ·k~ . provision of accurate data, and contribution to scientific research

• tile record of compliance with conservation and management measures

(111ft ht < :1 oJ

(0 III a/ 1111111111 iti

Pacific Is lands Forum Fisheries A

('I , •• ~ - ... . ~~ • •• .,


Pacjfjc I slands Forum Includes all the independent

island states including Australia and New Zealand

The allocation decisions that will be made by regional fishery management organizations in the next few years arc extremely tmpOnanl, because il is almost iftevitable that allocation schemes will e~'olve imo someehi"f aki" /0 a l'rights-based" system, and that countries wil view their aJ location quotas as a vested propeny right that they are entitled to maintain in future years.

Each aJlocation will lhus have imponance not just for the current year, but because il will sel a baselille/or jUllIre years, and states will seek to maintain and increase their allocation.

5,'11./1 ,,'.',' '1:.,' ,.1.'. ,5tI111"' .:' ii' ,,,:.In. 011 ,h~

'. IJI· and they will insist that they are entitled to continue fishing at the rate thaI they have fished in previous years.

A ocatlon ptlOns • COllservation [s ParamoullI. • Developing States Have Priorities • Population? • Historical Fishing Practices? A State's

" Dependence" on Fish for Food Security? • "Contiguity" or Geographical Proximity .. • Other "Equitable" Criteria? • How Should States Be Rewarded for

Good Behavior? • How Should States Be

Punished for Misbehaving? t.\·(//\'ill· IIlfo IJ Ria/Ii -/Jm.etl SV\leJi .

Compliallce

Flllg SWte EI~fO/'celnel'lt ~ Wc~tem"nd ~~ ~ CootrlllPBCUlc

_ , .. ~ Fillhorlc5 Commisflion

Port Stale Ellforcell/elll ""'_

Boarding lind II/spectiol/ by Specially Idel/tified GOl'eTIIII/ental Vessels

Regiol/al Observers 01/ Board Vessels

• Nellr Real-Time Satellite PO.lilioll - FL\'illg Trlll/smillers flJllsl Be Used ill All High Seils Fisheries

A ocation ptions Allocations should be both "eqllitable" and

"efficient, " and should be I' 'T . il,·Ii.1 fa if .. 10 proltll1te ClJItlplilillce.

"E ui "is a com licated and mu tl acete conce t Wit I erent app Icatlons In I erent contexts.

It certainly includes the concept of being "fai r," but just as certainly it does not inevitably mean that everyone should receive an equal amount.

.' '

\ -_ .. - ... -~

·A

Conservation Is Paramount Michael Lodge & Satya

Nandan: "allocation rights, both in the EEZ and on the high seas, are subordinate to the obligation

to conserve. "


The Rio Principles

Principle "': "'" order to achieve sustainable

developm etll, en vironmelJlai protection

sha/l constitute all ilJlegraf part of the

development process and call1lot be considered in isolatioll from it. "

This Principle confinns the point made recemly by Michael Lodge and Satya Nandan that conservation values must remain paramount in any allocation regime.

n,!, ocean\ UIlII tlll.!ir fL·\Ol'rL·i!.~ Uft. tlte conmuJIl ill.'ritage of 1II1IIlUIlliillll, (I//(I public 1m ~t I'ullies ItIWi! be app(i(d to UIl) '1 "{em dil-hlillg Iht!\1! rr. oltrces.

ow S OU States e ewar e or Good Behavior?

Countries Ihat make jinallcial sacrifices to m onitor and malllfain tlll"eU,ell et! should receive som e rewardf or th eir actions.

Artic le 66 of the Law of the Sea Convention, which says that "[s]tates in whose rivers anadromous stocks onginate shall have the primary interest in and responsibility for such slocks.'

Because the spawning habitat of salmon must be maintained carefully to enable them 10 reproduce successfully, countries that maintain their river systems to pennit successful spawning can reap the bounty of the salmon harvest.

If we exuapolate from this principle, we shouldji" d ways of rewarding countries that invest in th e m onitoring and m aintenance of jish stocks by g iving them a/loCl1liOll bonuses.

I mpact of Global Warming on Anadromous Species

* JlacJ.ien:ie RiI'er (Callada) - used to be devoid of salmon except for the occasional chum, but now sees all five salmon species.

* Fraser Ri"eJ"~-----------

(Callada) - is

warming

Should Allocation Be Based on Population? Historical Fishing Practices? Or On a State's "Deoendence" on Fish for Food Se:curity?

Others might suggest that utilizillg llistoricaifisltillg practices wjJI if/.i!\'illibty reward ,he nwre dln'eloped coulUries, which haw! been able 10 fillallce largejisltillg operatiolls, mId will ollce again disad\'allulge de\'t!loplllg cOllntries.

Basing allocations on historical fishing activities will tend to r~'ard rilo!ie coumries ,hat hm'r! overcapitaliud alld subsidi:ed lheir fiShing fleets , thus giving benefits ror activities that have distoned the market and which would be punished in other economic sectors.

Lodge & 'andan: '1Ilfacl,';lhill mUll RrUOs, IIl;;;jfotiatt!ti 'riteria fo aiel d/oC'afiom arl! oftl!" haset/

011 the IlOti/J1I of historical (:atcl"

.. hidl is II pawl'rflll i"C'etUh'e 10

;11 ,II;:/! ill a race to lish . ..

• ,+-""'1':-1 -I . ,~~ . , : '\.:--:;:-

'~' " ;

Article 66 -- Anadromous Stocks I . States ill whose

(m at/rom ous stocks origillate shall have tlte primary interest in ami respollsibility for such stocks.

3. (a) Fisheries for anadromous stocks shal l be conducted only in waters landward of the outer limits of exclusive economic zones, except in cases where this proVision would result in ecollomic dislocation for a Stale other than the State of origin ..

for Misbehaving? SelfISh and Destructive: Fishing Practices.

,.. All owing its flag vessels to engage in highly destruclb'e jis"illg practices, such as high seas bottom trawling

• Providing ajlag oj cOll velliell ce (or "j1u/.: of IWllcomplhlllcej to vessels that engage in improper fishing activities

,.. Distorting the market by su bsidizing fishing vessels.

* Failing to control Illegal, Unregulated alld Ull rep orted (I UU) Fishillg


paramount & the precautionary approach must be uti lized. Countries must share data and must support sci""!>fic".,,,,"

• Del'eloplng counlries must be gi\cn priorities and assistance:. • Geographical proximity to the fi sh stocks must be recognized

as an imponanl element of any allocation scheme • COUlllries 'lint make expel/ditures 10 monitor and maintain the

fis h stocks slrould be rewarded with enhanced allocations. • Those coumries that misbeflm'l! by abusing the flaJ;-o f

convenience system, by pcrmittin~ ruu fishing, by allOWing their vessels to enga~e In deS!ruclive high-seas boltom tr.lwitng. and by SUbSidiZing their fishing Industry should be puw's!ted by having their allocations reduced

*The ,'. ' ofacounUY, its I, . on the fisheries In question, and its . of sea food and need for il as kfood security" are also relevant considerations. although of less importallce than those listed above

Decisions must, of course, be made Ihrough a trnllspnrelll process, and by COllSel/SUS whenever possible.

• [mema/ioltal Pacific Halibw Commission - has developed an assessment method and management strategy that is responsive 10 changes in the Pacific halibut slock resulting from climate change.

Examples of Institutional Responses to Climate Change

'" North Pacific Marine Science Organization (PICES) - repons regularly on the state of the Nonh

'x;~ ;""J~ 'e' .'

,,,.t" -.. \ "Ie-~:.~ •. _., - <-~~

, ,

',r - . -:

> .

Examples of Institutional Responses to Climate Change

'" Internafional Baltic Sea Fishery Commission (ceased 10 exisl Jail. 1,2007) - concern about effect of global wanning on inputs of salt water, fresh water, oxygen, nutrients and pollutants.

'" International Whaling Commission -conducting research on the effects of climate changes and ozone dep letion on cetaceans -SOWER 2000 -- (Southern Ocean Whale and Ecosystem

Research

Programme)

'" SOllth Pacific Commu.nity's Oceanic Fisheries Program -rE!~~!ll!Jg research program to

understand the

pool ecosystem,

re lating climat ic

conditions to the

distribution of fish.


•

Examples of Institutional Res to Climate Change

• Commission/or the Conservation oj Antarctic Marine Living Resources (CCAMLR) Ecosystem Monitoring Program (CEMP) - designed to delect changes in the condition, abundance and distribution of creatures within the Convention Area.

.;;,;-~ .

'.= . . ':..: ... ~

, ---- .~~. -;-:-., ..

• Reduction of lime periods for fishillg and number allowed

Examples 0 Institutiona Responses to Climate Change

• North Pacific Fishery Management

Council (US - Alaska) - has held meetings to track and model cl imate change and its impacts on the fisheries around Alaska:

.. Februllry 2006 EctHY<;'l?m J/m/eling: Clim{lte flml Lower Tropltir: Lel'e/ Models - trends in climate suggesting a warming trend for the Bering Sea, plus an overview of monitoring projects funded through the North Pacific Climate Regimes and Ecosystem Productivity (NPCREP) initiative.

• • December 2002 Obsen'Ufiolls of Ecosystem Challge - discussing the latest information on the trends of the marine ecosystems off Alaska, and how this in formation might be used in the fishef)' management process,

The Way Forward Improvement of management practices

related to fisheries. Sharing of data,

Active research projects to mOllitor aJl(I

understand climate change. Limit or at least make adjustments of harvesting commercial fISheries (depending 011 the degree of climate challge).

Mallagement based 011 precalltioll- being particularly cautiolls illligltt of the uncertail/ effects of climate challge. £cosywem btLfed managl'/nI!IlI- multifaceted - ;m'o/l'es u balancillg of \o/.·ia/. eCfJnomh.', I!IH'irOllnWtlu/. politil."l1/ alld olher
