factual background - university of virginiazonal approach resulting in two distinctions: resource...

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1896 1920 1987 2006

Conservation and Sustainable Use of Marine

Biological Resources: Some Reflections from

the Evolving Management Approaches

XUE Guifang (Julia)

Chair Professor, KoGuan Law School

Director

Center for Rule of Ocean Law Studies

Center for Polar and Deep Ocean Development

Shanghai Jiao Tong University

Factual background

World oceans: 72% of the Earth’s surface

EEZs: 30% of ocean space (under sovereign rights

and state jurisdiction)

• 90% of world fish catch

High Seas: 10% of world fish catch

• Over 40% reported catch from high seas in the 1990s

• Exclusive Flag State Jurisdiction

• Distant water fishing States counter responses to EEZ

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Management Phases and Approaches

Prior to 1958 conventions: Free fishing era

1958-1982 UNCLOS: creeping jurisdiction:

restricted fishing activities

Post UNCLOS responses: legislated control of

fishing related matters closing the legal loop holes

21st Ocean Century: fill in the management gaps with

a variety of international policy and legal

instruments, institutional arrangements and

processes relevant to fisheries management and

biodiversity conservations

Evolution of Legal Regimes

1958 High Seas Convention

• Freedom of Fishing on high seas

1958 Convention on Conservation of

Living Resources

• Flag State Regulation/responsibility

• Failure to ratify Convention

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Environmental Instruments

The Stockholm Declaration on the Human

Environment made at the Stockholm Conference in

1972

• ….the need for a common outlook and for common

principles to inspire and guide the peoples of the world in

the preservation and enhancement of the human

environment: 7 common outlooks + 26 principles.

Environmental Instruments Relevant to Fishing and

Its Impact on Marine Biological Diversity

The Dumping Convention and its Protocol (London

Convention 1972/1996)

Convention on Biological Diversity (CBD 1992)

Convention on International Trade in Endangered

Species of Wild Fauna and Flora (CITES 1973)

Convention on the Conservation of Migratory

Species of Wild Animals (CMS 1979)

International Plan of Action for Reducing Incidental

Catch of Seabirds in Longline Fisheries (IPOA-

Seabirds 2000)

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Global Effort Addressing Environmental Issues

“Earth Summit” and the “Rio Declaration” 1992

“Rio+10” 2002 for 10th anniversary of Rio

Conference (World Summit on Sustainable

Development: WSSD)

Rio+20 (WSSD)

Shipping Instruments Relevant to fishing and its

Impact on Marine Biological Diversity

IMO regulatory framework and standards to promote

safety, security and environmental performance of

international shipping

The International Convention for the Prevention of

Pollution from Ships (MARPOL 1973/1983) and its

annexes

Revised Guidelines for Identification and

Designation of Particular Sensitive Sea Areas

(PSSAs) (IMO Assembly Resolution A. 982(24)),

2005

IMO Ship Identification Schemes (fishing vessels)

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United Nations Convention on the

Law of the Sea (UNCLOS 1982)A Constitution for the Ocean: The Most

Comprehensive Single Convention

Codification of customary int’l law.

Common heritage of mankind.

Extension of resource limits

• Exclusive Economic Zone

• Continental shelf.

• Archipelagic waters.

Progressive development by subsequent

instruments……

UNCLOS Framework

Comprehensive legal framework for ocean

governance

Establish basic rights and duties of states in

relations to all maritime activities

It is the most important instrument for regulating

fishing and conservation of marine biodiversity

within and beyond national jurisdiction

Post UNCLOS instruments make reference to its

provisions either explicitly or indirectly via dealing

with issues covered by its general provisions.

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UNCLOS Framework

Zonal Approach resulting in two distinctions: resource

under (sovereignty, sovereign rights) and high seas

Within areas of national jurisdiction

• Silent for conservation and management of marine living

resources in TS, Archipelagic waters

• Protection and conservation of marine environment and

marine living resource in EEZ

Protection and preservation of the marine environment

beyond national jurisdiction

• Jurisdiction and control of fishing vessels on the high seas

• Inclusion of power to prohibit or restrict fishing in certain

areas to protect rare or fragile ecosystems

UNCLOS Provisions

Freedom of Fishing on the high seas (Art. 87(1)(e)),

Subject to conditions: i.e.

• Art. 116: Treaty obligations

• Rights duties and interests of coastal States in Arts. 63 (2),

64 and 67

• Duty to adopt measures in respect of nationals (Art. 117)

• Duty to cooperate in taking measures in respect of nationals

to conserve (Art. 117)

Art. 118: Cooperation to conserve and manage

Art. 119: Conservation requirements:

• TAC

• MSY-best science available

• Dependent and associated species

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High Seas Fisheries Challenges

Vessel re-flagging to escape controls

Use of “flags of convenience” vessels

Unreliable data base

Marginal high seas fishing

Lack of sufficient cooperation among

States

Limitations of the UNCLOS Regime

Resource Pool Not Under Single Ownership

Zonal Approach: Artificial jurisdictional boundaries

Freedom of Fishing on the high seas

Failure to define scope of cooperation

• Failure to cooperate

Failure to regulate nationals

Failure to determine TAC

Compatibility of EEZ/High Seas fishing regimes

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Post UNCLOS Responses: International

Fisheries Agreements1992: Agenda 21: Chapter 17 (Ocean Chapter)

1993: FAO Compliance Agreement

1995: UNFSA

1995:Code of Conduct for Responsible Fisheries

IPOAs: 1999 IPOAs on Seabirds, Shark

Management, and Fisheries Overcapacity, 2001 on

IUU Fishing

New instruments to resolve practical aspects and

emerging issues: Flag State Guidelines 2008, Port

State Measures 2009, and UN Resolutions

Post UNCLOS Responses

Agenda 21 (1992)(Chapter 17): Sustainable

development and protection of the oceans

States to take effective action to deter re-

flagging of fishing vessels

States to convene international conference

with a view to promoting effective

implementation of the Law of the Sea

Convention

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Compliance Agreement 1993: Agreement to promote

compliance with international conservation and

management measures by fishing vessels on the high

seas

States to ensure that fishing vessels that fly their flags

do not undermine the effectiveness of international

conservation and management measures

Proper authorization procedures for fishing vessels on

the high seas

Proper marking and full details of operations


Compliance Agreement 1993

Not to authorize vessels unless sufficient links to

exercise flag State responsibilities effectively

Link authorization to fish with right to fly the flag

Enforcement procedures against vessels with

sanctions of “sufficient gravity”

Port State enforcement measures

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UN Fish Stocks Agreement 1995

Scope

• Applies to Straddling Fish stocks and highly migratory

fish stocks only

Requires cooperation among coastal States and

States whose national fish on the high seas to

cooperate by establishing Regional Fisheries

Management Organizations



Applies essentially to management measures on the

high seas

Requires compatibility between high seas measures

and EEZ measures

Requires the application of the precautionary

principle both in areas under national jurisdiction

and on the high seas

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Framework for International Cooperation (Art. 8)

• agree on specific conservation and management

measures intended to ensure the long-term

sustainability of the stocks;

• agree on participatory rights such as allocation of

allowable catch or levels of fishing effort;

• adopt and apply any generally recommended

international minimum standards for the responsible

conduct of fishing operations;


UN Fish Stocks Agreement 1995: Framework for

Cooperation

obtain and evaluate scientific advice, review the

status of the stocks and assess the impact of fishing

on non-target and associated or dependent species;

agree on standards for collection, reporting,

verification and exchange of data on fisheries for the

stocks;

compile and disseminate accurate and complete

statistical data to ensure that the best scientific

evidence is available;

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UN Fish Stocks Agreement 1995: Framework for

Cooperation

promote and conduct scientific assessment of the

stocks and relevant research and disseminate the

results of such research;

establish appropriate co-operative mechanisms for

effective monitoring, control, surveillance and

enforcement;

agree on means by which fishing interests of new

members of, or participants in, the organisation or

arrangement will be accommodated;


UN Fish Stocks Agreement 1995: Regulation of non-

Parties

Only States which are members of regional/sub-regional

organisations or arrangements or States which agree to

apply the conservation and management measures

instituted by the organisation or arrangement can have

access to the fisheries resources to which the measures

apply (Article 8(4)).

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Regulation of Non-Parties (cont)

Non-parties to sub-regional or regional fisheries

management organisations or arrangements are not to

authorise vessels flying their flags to engage in fishing

operations for relevant stocks subject to the

conservation and management measures imposed by

the organisation or arrangement (Article 17(2)).

Parties are to take measures consistent with

international law and the Agreement to deter activities

of vessels of third Parties which undermine the

effectiveness of sub-regional or regional conservation

and management measures (Article 17(4)).

Flag State Responsibilities (Art. 18)

Control of vessels on the high seas by mean of

fishing licences, authorisations or permits

Regulations to:

• apply terms and conditions to the licence,

• authorisation or permit; prohibit fishing on the high seas

by vessels not licensed or authorised;

require vessels fishing on the high seas to carry their

licence, authorisation or permit on board at all times;

• ensure that such vessels do not conduct unauthorised

fishing within areas under national jurisdiction of other

States;

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Flag State Responsibilities

Creation of a national record of fishing vessels

authorized to fish on the high seas

Requirements for marking of fishing vessels and

fishing gear to facilitate easy identification;

Recording and timely reporting of relevant fishing

statistics and information such as vessel position, catch

of target and non-target species, and fishing effort;

Catch verification through measures such as observer

programs, inspection schemes; monitoring, control and

surveillance of vessels, including the use of satellite

vessel monitoring; and

Regulation of transshipment on the high seas.


Agreement on Port State Measures to Prevent,

Deter and Eliminate Illegal, Unreported and

Unregulated Fishing, 2009

Marine biodiversity and biotechnology

UN Resolution

Development on biodiversity in areas beyond

national jurisdiction

BBNJ PrepComs: forthcoming 4th session

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The Problem: Concept Conflicts or

Business as Usual?Oceans Law & policy has been greatly enhanced to

control and enclose the open ocean for resources

exploitation and conservation purposes

Maritime activities have been restricted to the greatest extent;

Yet,

Enduring problems related to the usage of ocean space and resources have not been resolved to any satisfaction, and

More and more environmental problems are transnational in nature and are linked with issues of sustainable development

The Problem: Concept Conflicts or

Business as Usual?Fisheries resource were used to be regarded as

“inexhaustible.”

We know this is not true, but the demand has to be

met……

Big questions need to be asked:

• How far have we gone to exploit the natural resources our

planet has to offer?

• How much have the international laws and policies been

performing and functioning?

• Are we confident in keeping the present biodiversity and

pass them on to the future generations to come?

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Problems and Solutions

Challenges of domestic implementation of

international instruments

Global warming, sea level rise etc.

Precautionary approach: not too late?

Need or greed?

• Environmental and biodiversity damage: Individual Users

Have a Disincentive to Conserve

NATO vs. action?

• Global Commitment: Is another mega conference

necessary?

• Do we have enough international legal instruments?


Beneath these issues with such a long process are

hidden complex State interests on

• Food security

• Economic development

• International trade

• Intrinsic ecological considerations

For sustainable resource and marine biodiversity:

• Effectiveness of the system

• The constraints affecting effectiveness

• National implementation choices

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Moratorium on new international instruments?

• More than adequate international legal and policy framework to address the problem

Need for fresh thinking on implementation strategies

• Holistic approach?

• Collaboration and linkages between and among

• Instruments

• Sectors-National and International

• Capacity building

• especially for developing countries?

Thank you for your attention!

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